
    (19 Misc. Rep. 263.)
    MARSH v. GRAHAM.
    (Supreme Court, Special Term, Greene County.
    January, 1897.)
    1. Costs—Decision on Demurrer.
    The costs taxable on overruling a demurrer to the complaint for insufficiency of facts are costs after notice and before trial, a trial fee, and disbursements.
    2. Same—Terms of Order—Taxing Officer.
    An order granting costs on overruling a demurrer should expressly provide for taxation before the clerk of the county in which the action was brought, or before a judge designated in the order.
    Action by Malden G. Marsh, against William X. Graham, brought by leave of the Greene county court, on June 19, 1896, on a judgment rendered by a justice of the peace on December 6, 1890, and docketed in the Greene county clerk’s office on December 19, 1890. Defendant demurs to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. On the hearing, defendant’s attorney abandoned the demurrer, as untenable, and consented that it should be overruled.
    Sidney Crowell, for plaintiff.
    Frank H. Osborn, for defendant.
   CHASE, 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. Proc. § 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, as a matter of law. Tallman v. Bernhard, 75 Hun, 30, 27 N. Y. Supp. 6. Costs after notice and before trial, and the trial fee, are made by reason of the demurrer to the whole cause of action. Such costs at the statutory rate, and disbursements, are the costs that the successful party is entitled to, as a matter of law. See Jones v. Butler, 83 Hun, 91, 31 N. Y. Supp. 401; Louis v. Insurance Co., 75 Hun, 364, 27 N. Y. Supp. 83. Interlocutory costs may be taxed by the clerk, or the court may direct that they be taxed by a judge. Code Civ. Proc. § 3262. The order should expressly provide for the taxation of the costs before the clerk of the county in which the action is brought, or before a judge, designating him. The practice seems to be to have the costs on the decision of a demurrer taxed by the clerk in the usual way.

An order is granted directing that interlocutory judgment be entered overruling the demurrer, with costs to be taxed by the clerk of Greene county; defendant to have leave to serve answer within 20 days on payment of such costs. If defendant fails to answer a» provided, final judgment may be entered for the relief demanded in the complaint. Ordered accordingly.  