
    Hinman Louis, App’lt, v. Empire State Insurance Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1894.)
    
    Costs—Interlocutory judgment.
    In entering an interlocutory judgment overruling defendant’s demurrer, the defendant should be required to pay the costs of such proceedings as,by the operation of the order overruling his demurrer, will be vacated.
    Appeal from an order of the Monroe special term denying the plaintifli’s motion for a re-taxation of costs. ’
    
      John F. Dorthy, for app’lt; S. L. Adler, for resp’t.
   Lewis, J.

The defendant demurred to the plaintifli’s complaint upon the ground that it failed to state a cause of action. The demurrer was overruled with costs, but with leave to the defendant to withdraw the demurrer and answer over within twenty days upon the payment of costs, and in case of his failure so to do, plaintiff was at liberty to enter final judgment for the relief demanded in his complaint. Plaintiff presented to the cleric for taxation a full bill of costs including the items of twenty-five dollars before notice of trial, one dollar for serving summons and complaint, and sixty-three cents for sheriff’s fees on execution. These items mentioned the clerk refused to tax, and the plaintiff moved the special term for an order directing the clerk to tax said items. His motion was denied, and from the order denying the motion plaintiff appealed to this court.

It was an interlocutory judgment the plaintiff was to enter upon the decision overruling the defendant’s demurrer. The twenty-five dollars costs before the notice of trial he will be entitled to tax when he comes to enter his final judgment. The twenty-five dollars before notice of trial is for preparing the complaint. The complaint being held to be good, it is not necessary to redraw it. The defendant should be required to pay the costs of such proceedings as by the operation of the order overruling his demurrer will be vacated. The plaintiff was obliged to prepare for the argument of the demurrer; therefore he was entitled to costs after notice and before trial; but nothing that he had done before noticing the case for trial was in any way vacated by the judgment overruling the demurrer. The weight of authority seems to sustain this rule. Krxiering v. Lennon, 51 N. Y., St. Rep., 907; Skinner v. White, 69 Hun, 127; 52 St. Rep., 737; Edson v. Dillaye, 8 How., 273; Phipps v. Van Cott, 15 How., 110; Crary v. Norwood, 5 Abb., 219; Anon., 3 Sand., 756.

In Adams v. Ward, 60 Howard, 288, the plaintiff demurred to the answer. His demurrer was sustained, and it was very properly held that he was entitled to costs before notice of trial as compensation for drawing the pleading.

The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Haight, J., concur.  