Marsh v. Graham
New York Supreme Court
Demurrer to complaint. - The plaintiff’s complaint alleges that he is the owner of a certain judgment against the defendant duly rendered in Justice’s Court in his favor for $197.28, December 6, 1890, and that a transcript of such judgment was duly docketed in the Greene county clerk’s office December 19, 1890, and that such judgment has not been paid.
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Demurrer to complaint. - The plaintiff’s complaint alleges that he is the owner of a certain judgment against the defendant duly rendered in Justice’s Court in his favor for $197.28, December 6, 1890, and that a transcript of such judgment was duly docketed in the Greene county clerk’s office December 19, 1890, and that such judgment has not been paid. That he obtained an order of the County Court of Greene county, June 19, 1896, on notice, granting leave to bring this action. Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause'of action.…
1Opinion of the CourtChase, J.
Costs on demurrer are in the discretion of the court ■where an issue of law and an issue of fact are joined-between the same parties to the same.action, and the issue of .fact remains undisposed of When an interlocutory judgment is rendered upon the issue of law. Code Civ. Pro., § 3232. .
"Where an order is made sustaining or overruling a demurrer ■ to the whole complaint in a' common-law action, the successful party is entitled to costs ás a matter of law. Tallman v. Bernhard, 31 Abb. N. C. 84; S. C., 75 Hun, 30.
Costs after notice and before trial and. the trial fee are made by reason of the…
2Cases cited2 opinions
- Tallman v. BernhardNew York Supreme Court · 1894
- Jones v. ButlerNew York Supreme Court · 1894
3Cited by2 opinions
- de Turckheim v. ThomasAppellate Division of the Supreme Court of the State of New York · 1906
- Garrett v. WoodAppellate Division of the Supreme Court of the State of New York · 1901