
    James A. Campbell, Appellant, v. William Hallihan, Respondent.
    
    (Supreme Court, Appellate Term,
    February, 1905.)
    Appeal — Judgment of City Court overruling demurrer — Costs — Appeal from order on retaxation — Code, §§ 3188-3189, as amended in 1902 — “ Trial term ” in section 3251 (4) construed.
    Upon the reversal of an interlocutory judgment of the City Court of the city of New York, overruling a demurrer to a complaint with costs of the appeal and in the trial court, the successful party is entitled to tax twenty dollars costs before notice of argument and forty dollars for argument, and from an order on retaxation allowing said items, an appeal lies to this court under section 3188 and not under section 3189 of the Code of Civil Procedure.
    The failure to omit “interlocutory judgment” from section 3189 of the Code of Civil Procedure by the amendatory act of 1902 (L. 1902, eh. 515) abrogating the-former general term of the City Court of the city of New York was inadvertent, it being the legislative intent by the affirmative act of introducing a reference to section 1349 “ interlocutory judgment ” into section 3188, to omit them from section 3189.
    The words “trial term” in section 3251 (4) of the Code of Civil Procedure are intended to be the equivalent of “ in the same court or in a circuit court” as said section stood prior to the consolidation of and alterations in our judicial system made by the Constitution of 1894, 'which alterations went into effect January 1, 1896.
    Appeal from an order of the City Court of the city of Mew York, made at a Special Term thereof, allowing a re-taxation of costs.
    
      James A. Allen, for appellant.
    Joseph Rowan, for respondent.
    
      
       See Campbell v. Hallihan, 45 Misc. Rep. 325.
    
   Giegerich, J.

The defendant appealed to this court from an interlocutory judgment of the City Court of the city of New York overruling his demurrer to the complaint. This court reversed that judgment, with costs of the appeal, and in the court below to the appellant. When it came to taxing costs in the court below the items of twenty dollars for costs of the appeal to the Appellate Term before argument, and forty dollars for such costs on the argument were disallowed by the clerk, and ten dollars allowed in place thereof. On a motion for retaxation the court below allowed both of said items; from that order this appeal has been taken.

The recent amendments to the Code have somewhat obscured the question at issue. Section 3251, subdivision 4, provides for costs at the following rates: “ 4. To either party, upon an appeal to the supreme court, from an inferior court, excepting upon an appeal to the supreme court from the city court of the city of New York; or upon an appeal to the appellate division of the supreme court or to the supreme court from the city court of the city of New York, taken from an interlocutory or final judgment, or from- an order granting or refusing a new trial, rendered or made at a trial term of the supreme court or of the city court of the city of New York * * *. Before argument, twenty dollars. For argument, forty dollars. * * * In all appeals taken under section 3189 costs awarded to the successful party shall not exceed ten dollars in addition to the taxable disbursements.”

The specific point in issue is whether the appeal in question was taken under section 3188 or section 3189 of the Code of Civil Procedure. Those sections, as they stand at present, after the amendments made by chapter 515 of the Laws of 1902, which abrogated the former General Term of the City Court and provided that appeals from that court should be taken directly to the Supreme Court, are as follows: § 3188. Appeal from a judgment. An. appeal, to the supreme court may be taken from a final or interlocutory judgment rendered in the city court of the city of Few York in a ease where an appeal may be taken to the appellate division of the supreme court from a final or interlocutory judgment rendered in the supreme court, as prescribed in section thirteen hundred and forty-six and section thirteen hundred and forty-nine of this act.”

§ 3189. Idem; from an order. An appeal to the supreme court may also be taken from an interlocutory judgment rendered, or an order made at chambers, or at a special term or a trial term of said city court, or from an order made by a judge thereof out of court, in a case where an appeal may be taken to the appellate division of the supreme court from an interlocutory judgment rendered, or an order made, in like manner, as prescribed in sections thirteen hundred and forty-seven, thirteen hundred and forty-eight, thirteen hundred and forty-nine of this act. Upon such an appeal the supreme court shall have full power to review any exercise of discretion by the court or judge below.”

The original form of-the above sections was as follows: “ § 3188. An appeal, to the General Term of the Court, may be taken from a final judgment rendered therein, in a case where an appeal may be taken to the General Term of the Supreme Court, from a final judgment rendered therein, as prescribed in section one thousand three hundred and forty-six of this act.

“ § 3189. An appeal, to the General Term of the court may also be taken from an interlocutory judgment rendered, or an order made, at a special term or a trial term thereof, or an order made by a justice thereof, out of court, in a case, where an appeal may be taken, to the General Term of the Supreme Court, from an interlocutory judgment rendered or an order made, in like manner, as prescribed in sections one thousand three hundred and forty-seven, one thousand three hundred and forty-eight and one thousand three hundred and forty-nine of this act.”

A comparison of the sections before amendment and after will show, in addition to the alterations necessary to conferring appellate power upon the Supreme Court instead-of the former General Term of the City Court, another change was made by introducing in section 3188 a reference to section 1349 and also the words “interlocutory judgment.”

Turning now to sections 1346, 1347, 1348 and 1349, it is found that section 1346 relates to .appeals from final judgments; section 1347 relates to court orders, section 1348 relates to orders made by a judge, and finally, that section 1349 relates to interlocutory judgments. Under the original form of section 3188 and 3189, there was a distinction drawn between, first, final judgment (§ 1346), and, second, court orders (§ 1347) made by a judge (§ 1348) and interlocutory judgments (§ 1349); section 3188.em-bracing the first, and section 3189 the second. The amendment of 1902 on its face introduces confusion by embracing interlocutory judgments in the former section without omitting them from the latter, but our opinion is that failure to make such omission from the latter section was an inadvertence, and that the intention of the Legislature, as evinced by the affirmative act of introducing a reference to section 1349 “interlocutory judgment” into section 3188 was to omit the reference to that section (1349) and those words from section 3189.

At any rate, we think that the established rule of allowing on appeals from. demurrers twenty dollars before notice of argument and forty dollars for argument which has long obtained in the Supreme Court (Van Gelder v. Van Gelder, 13 Hun, 118; Wright v. Fleming, 18 id. 360), as well as in the City Court (Thompson v. Schieffelin, N. Y. Daily Reg. Dec. 28, 1883, City Court Special Term), should not be held to have been departed from except by legislative language of plain import.

There is one other point which perhaps ought to be adverted to, and that is the use of the words “ trial term ” in subdivision 4 of section 3251 above quoted. That subdivision taken literally would be limited in its application to final and interlocutory judgments rendered at trial term and leave no measure provided anywhere for the amount of costs on appeal from either final or interlocutory judgments rendered at a special or equity term. It is obvious, however, that the word “ trial ” was used in the broad sense and that the subdivision was meant to embrace judgments both interlocutory and final, whether rendered on the law or equity side of the court. A reference to this subdivision as it existed prior to the consolidation of and alterations in our judicial system made by the last constitution and which went into effect January 1, 1896, shows plainly that the word “ trial ” was used in the broad sense above referred to. The subdivision in question (§ 3251 subd. 4), prior to said consolidation read as follows: “4. To either party, upon an appeal to the Supreme Court, from an inferior court; or upon an appeal to the General Term of the Supreme Court, or of a superior City Court, or of the Marine Court of the City of New York, taken from an .interlocutory or final judgment, or from an order granting or refusing a new trial, rendered or made in the same court, or in a circuit court; or upon an appeal to the Court of Common Pleas for the City and County of ¡New York, from the Marine Court of that City; or upon an application to a General Term for a new trial, or for judgment upon the verdict, rendered.subject to the opinion of the court, or where exceptions are ordered to be heard, in the first instance, at the General Term. Before argument, twenty dollars. For argument forty dollars.

“ For one General Term of the Marine court of the City of ¡¡Slew York, at which the cause is necessarily on the calendar; and for each General Term not exceeding five of the Supreme Court, or of a superior City Court, at which the cause is necessarily on the calendar, excluding the term at which it is argued, or otherwise finally disposed of; ten dollars.”

It is thus seen that instead of the present expression Trial Term,” there was used the expression in the same court or in a Circuit Court.” ¡Now, the “ same court ” meant in the Supreme Court as distinguished from the Circuit Court, which formerly was enumerated and classified in the Code of Civil Procedure, section 2 thereof, as distinct courts. Under the present enumeration and classification there is simply a Supreme Court and no Circuit Court. It is manifest, therefore, that the word "trial ” as at present used in the subdivision referred to, is intended to be the equivalent of the former language in the same court or in a Circuit Court.” Otherwise, as above pointed out, there would be no measure provided anywhere for the amount of costs on appeal either for an interlocutory or a final judgment in equity, although the Code still provides for awarding costs on appeal from such judgments, both final (§ 3238, subd. 2) and interlocutory (§ 3239) which latter sections, without the construction we have given to the language of section 3251, would provide for a right to costs without making any provision anywhere else in the Code for the amount thereof.

Our conclusion is that the appeal in question was one taken not under section 3189 but under section 3188 and that the order appealed from was right in allowing the items in question.

Order affirmed, with ten dollars costs and disbursements.

Scott and McCall, JJ., concur.

Ordered accordingly.  