
    WHITMAN against NICOLL.
    
      New York Superior Court,
    
      Special Term,
    
      January, 1875.
    Costs.—Motions and Obdees.— Pleading.—Appeal. —Judgment.
    The costs to be allowed upon a motion for judgment for frivolousness of a demurrer, are the ordinary ten dollars motion fee; the full costs as upon a trial can not be allowed.
    An appeal from judgment entered on such a motion is not within subdivisions 134 or 5 of § 349 of the Code—which provides for an appeal from an order granting or refusing a provisional remedy, a new trial, involving the merits, or determining the action, &c.—but is within subdivision 5 of § 307—which provides for costs on other appeals—and the full costs of an appeal from a judgment are to be-"allowed.
    An appeal will not lie from an order overruling a demurrer as frivolous without judgment entered thereon; the appeal is from the judgment.
    In this case, the defendant demurred ito the complaint, and the plaintiff moved at special term for judgment upon the demurrer as frivolous. The court granted the motion, and the following order was en tered:
    “ Ordered and adjudged that the demurrer of the defendants herein be, and the same is hereby overruled as frivolous, and that the.plaintiff have judgment for the relief demanded in the complaint, with the costs of the action.”
    Several days afterwards the following judgment was entered:
    “ An order having been entered overruling the demurrer as frivolous, and directing judgment in favor of the plaintiff; now on motion, &c., it is ordered and adjudged that the plaintiff recover of the defendants the sum of, Src. (the amount claimed in the complaint), with, &c., his costs and disbursements.”
    The plaintiff appealed to the general term “from the order setting aside the demurrer as frivolous, and directing judgment, and also from the judgment entered herein, &c.”
    The general term reversed the judgment, with costs, and ordered judgment for the defendant upon the demurrer, with costs, but gave leave to the plaintiff to amend, on payment of the costs of the demurrer and subsequent proceedings.
    The plaintiff elected to amend, and the clerk in adjusting the costs allowed as costs of the special term the full costs as upon a trial, and of the general term the full costs of an appeal from a judgment.
    The plaintiff now applies for readjustment of costs.
    6r. W. Ootterell, for the plaintiff.
    
      -Palmer, for the defendant.
   Mouigll, Ch. J.

The order made at the special term was upon a motion for judgment on account of the frivolousness of the the demurrer, under section 247 of the Code.

Without attempting to reconcile or determine between the conflicting opinions, I will follow the decision of this court in The Butchers & Drovers’ Bank v. Jacobson (22 How. Pr., 470), which holds that only a motion fee is taxable upon the motion at special term. .See also Bell v. Noah (24 How. Pr., 478).

Those were cases where the party prevailing in the motion to overrule the demurrer claimed costs as of a trial, as a part of his judgment. But upon the denial of such motion, the demurring party could only claim interlocutory costs. Having been unsuccessful below, he can not have any other costs upon the reversal.

But upon the appeal, the appellant is entitled to the full costs of am appeal from a judgment.

In Joannes v. Day (3 Robt., 650) we held that an appeal does not lie from an order overruling a demurrer as frivolous. That the motion, under the Code, is for judgment, and that judgment must be actually entered after an assessment of damages, and the appeal must be from such judgment.

In this case the judgment was actually entered, and the appeal was not from the order exclusively, but also from the judgment; and it was entertained only because it was an appeal from the judgment.

It was not, therefore, an appeal under subdivisions 1, 3, 4 and 5 of section 349 of the Code of Procedure, but it falls within the 5th subdivision of section 307, and the appellant is entitled to the costs therein specified.

It will be observed that both the order and judgment are absolute and without condition. The demurrer was overruled as frivolous, and judgment was ordered for the plaintiff in the action. Ho one can doubt that had the general term affirmed the judgment, the respondent would have been entitled to the full costs of an appeal from a judgment. Why should not the appellant be entitled at same the rate upon a reversal \

The case of Hoffman v. Barry (2 Hun., 52), sustains this view, although that was an appeal from an order overruling a demurrer, and granting to leave amend.

The court held that while the right to amend was unexpired it was a mere order, and upon the appeal from it, motion costs only were taxable. But they say : When the order becomes final by the expiration of the time to amend, full costs are allowed on the appeal.

The- costs must be readjusted by disallowing all costs of the special term, except a motion fee of ten dollars.  