
    Hugh Hill and Eugene Miner Taylor, Copartners, Doing, Business Under, the Firm Name and Style of Edward Hili's Son & Company, Respondents, v. Henry C. Muller, Defendant, and Charles Muller, Appellant.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Costs: Amount — Allowances on motions and interlocutory proceedings — Argument of demurrer; Payment and enforcement thereof—Staying further proceedings in actions till costs paid — Waiver ot stay.
    A defendant, by serving a notice of argument'of an appeal from an order denying his motion to retax costs on an appeal, waives a stay because of plaintiff’s non-payment of costs of a motion.
    Where, upon the affirmance of a judgment overruling defendant’s demurrer, he is granted leave to withdraw it and plead over upon payment of costs “ in this court and the court below ”, the clerk of the court below has no authority to refuse to tax the costs as directed by such order; and defendant, on an appeal from an order denying, his motion for a retaxation of costs, may not object to the allowance of the costs upon the appeal because plaintiffs served no notice of argument and made no oral argument nor submitted a brief. Such objection should have been made to the appellate court on motion to resettle the order.
    Where, upon the entry of an interlocutory judgment overruling a demurrer, the defeated party is allowed to plead over on payment of costs, the successful party is entitled to tax costs after notice and before trial and a trial fee and disbursements, hut not costs before notice of trial.
    Costs subsequently imposed upon a motion made for a reargument of the appeal are improperly taxed, as they form no part of the costs referred to in the order affirming the judgment.
    Costs which were or should have been taxed on. the entry of the interlocutory judgment in the court below are not properly taxable under the order of the Appellate Term,
    
      An item of costs for service of the summons and complaint, being taxable upon entry of the final judgment, is not properly taxable under the order of the Appellate Term and should have been disallowed.
    Appeal by the defendant Charles Muller from an order entered in the City Court of the city of Mew York, denying appellant’s motion to retax costs on appeal.
    John Oscar Ball (A. P. Bachman, of counsel), for appellant.
    Chester A. Bayles, for respondents.
   Hendrick, J.

This is an appeal from an order denying deféndant’s motion to retax the costs upon an appeal taken from a judgment of the City Court overruling the defendant’s demurrer, which judgment was affirmed by the Appellate Term. The order of the Appellate Term affirmed the judgment of the City Court and granted leave to the defendant to withdraw his demurrer and plead over within six days upon payment of the costs “ in this Court and the Court below.” Thereupon the plaintiff served a.bill of costs and gave notice of taxation thereof. Upon such taxation the defendant appeared and objected to several of the items some of which were allowed and some disallowed. Subsequently, the defendant moved for a retaxation and, upon such motion, asked to have disallowed the following items:

Costs before notice of trial......................... $25

Motion costs. ..................................■ 10

Costs on demurrer.............................. 20

Costs on affirmance. ............................ 40

Serving summons and complaint.................. 2

The defendant’s objections to the taxation of the foregoing items are: First. That the plaintiffs are stayed by an order entered on September 25, 1906, which awarded the defendant ten dollars costs’ against the plaintiffs which costs the defendant avers have never been paid. The order of the Appellate Term was made on November 14, 1906. The ease appeared upon the October, 1906, calendar and was noticed for argument by the defendant. By thus serving a notice of argument he waived any stay then existing. Reeder v. Lockwood, 30 Misc. Rep. 532. The defendant also objects to such taxation of costs upon the ground that the plaintiffs are not entitled thereto for-the reason that they served no notice of argument of the appeal, and did not argue said appeal orally or submit any brief thereon. This objection could only apply to the costs of such appeal, and the defendant’s objection to the allowance of costs upon appeal should have been made to the Appellate Term on a motion for resettlement of the order. The clerk of the City Court was .required to carry out the order of the Appellate Term and had no authority to refuse to tax the costs as directed by such order. The item of Costs before notice of trial, twenty-five dollars,” was improperly allowed. Where upon the entry of an interlocutory judgment a defeated party is allowed to plead over upon the payment of costs, the success.ful party is entitled to tax costs after notice and before trial and a trial fee and disbursements. Garrett v. Wood, 61 App. Div. 294. Motion costs, ten dollars ” is also an improper item. They were costs subsequently imposed upon a motion made for a re-argument and form no part of the costs referred to in the order affirming the judgment. The item of “ Costs on demurrer, twenty-dollars,” evidently refers to the costs which were or should have been taxed on the entry of the interlocutory judgment in the court below and therefore are not properly taxable now. Costs of two dollars for serving summons and complaint are taxable upon entry of the final judgment and are not properly taxable under the order and should have been disallowed. The item of forty dollars on affirmance was evidently intended to be forty dollars for argument on appeal and may be so considered and the defendant had the right to tax that item (Campbell v. Hallihan, 46 Misc. Rep. 409), under the order of the Appellate Term.

The order taxing the costs in the Court below is modified by' striking therefrom the following items: Costs before notice of trial, twenty-five dollars; motion costs, ten dollars; costs on demurrer, twenty dollars; serving summons and complaint, two dollars, and allowing the other items objected to, and, as modified, affirmed, without costs of this appeal to either party.

Gildebsleeve and Davis, JJ., concur.

Order modified and, as modified, affirmed without costs of this appeal to either party.  