
    Himan Louis, Appellant, v. The Empire State Insurance Company, Respondent.
    
      Taxation of costs — where a demurrer is ovm'r-uled with lerne to a/nswer on payment of costs.
    
    Where a demurrer to a complaint is overruled, with leave to a defendant to answer upon payment of costs, the plaintiff is not entitled to tax the twenty-five dollars costs before notice of trial. ,
    The defendant in such a case should only he required to pay the costs of such proceedings as by the operation of the order overruling his demurrer will he vacated.
    The plaintiff is entitled to costs after notice and before trial.
    Appeal by the plaintiff, Himan Louis, from an order of the Supreme Court, made at the Monroe County Special Term and entered in tbe office of tbe clerk of the county of Monroe on tbe 31st day of May, 1893, denying a motion for tbe retaxation of costs.
    
      John F. Dor-thy, for tbe appellant.
    
      S. L. Adler, for tbe respondent.
   Lewis, J.:

Tbe defendant demurred to tbe jflaintiff’s complaint upon tbe ground that it faded to state a cause of action. Tbe demurrer was overruled with costs, but with leave to tbe defendant to withdraw tbe demurrer and answer over within twenty days upon the payment of costs, and in case of bis failure so to do, plaintiff was at liberty to enter final judgment for tbe relief demanded in bis complaint.

Plaintiff presented to tbe clerk for taxation a full bill of costs, including tbe 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 tbe clerk refused to tax, and tbe plaintiff moved- tire Special Term for an order directing tbe clerk to tax said items. His motion was denied, and from tbe order denying tbe motion plaintiff appealed to this court.

It was an interlocutory judgment tbe plaintiff was to enter upon tbe decision overruling tbe defendant’s demurrer. Tbe twenty-five dollars costs before notice of trial be will be entitled to tax when be comes to enter bis final judgment.

Tbe twenty-five dollars before notice of trial is for preparing tbe complaint. Tbe complaint being held to be good, it is not necessary to redraw it. Tbe defendant should be required to pay tbe costs of such proceedings as by tbe operation of the order overruling bis demurrer will be vacated.

Tbe plaintiff was obliged to prepare for tbe argument of the demurrer; therefore, be was entitled to costs after notice and before trial; but nothing that he had done before noticing tbe case for trial was in any way vacated by tbe judgment overruling tbe demurrer. Tbe weight of authority seems to sustain this rule. (Kniering v. Lennon, 51 N. Y. St. Repr. 907; Skinner v. White, 69 Hun, 127; Edson v. Dillaye, 8 How. Pr. 213; Phipps v. Van Cott, 15 id. 110 ; Crary v. Norwood, 5 Abb. 219; Anon., 3 Sandf. 756.)

In Adams v. Ward (60 How. 288) tbe plaintiff demurred to tbe answer. His demurrer was sustained, and it was very properly held that -be was entitled to costs before notice of trial as compensation for drawing tbe pleading.

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

Dwight, P. L, and Haight, J., concurred.

Order appealed from affirmed, witb ten dollars costs and disbursements.  