
    (58 App. Div. 554.)
    PEOPLE ex rel. SCRIBNER v. BOARD OF WATER COM’RS OF VILLAGE OF PEEKSKILL.
    (Supreme Court, Appellate Division, Second Department.
    March 8, 1901.)
    Mandamus—Interlocutory Judgment—Allowance of Costs.
    While the award of costs on an interlocutory judgment entered on overruling demurrers to a part of the defenses to a return to an alternative-writ of mandamus are within the discretion of the court, if award is. made they should be such as are allowed on the trial of an issue of law.
    Appeal from special term, Westchester county.
    Application for mandamus by the people, on the relation of Rose-Scribner, against the board of water commissioners of the village of Peekskill. From an interlocutory judgment entered on overruling a demurrer to a part of the defenses to the return to an alternative writ,, defendant appeals.
    Modified.
    Argued before GOODRICH, P. J., and WOODWARD, HIRSOHBERG, JERKS, and SEWELL, JJ.
    Franklin Couch, for appellant.
    James Dempsey, for respondent.
   GOODRICH, P. J.

The relator applied for a peremptory writ of mandamus, but an alternative writ was issued. An amended return to the writ was filed by the respondent board, and the relator demurred to two of ten separate defenses of the return. The court overruled the demurrer, with $10 costs, and directed judgment, and. an interlocutory judgment was entered accordingly. The board of commissioners appeals.

Five briefs have been submitted by the two- counsel; and, while-other matters are argued, the real contention seems to be on the-question of costs,—whether they should have been $10, or costs as-upon the trial of an issue of law. We think the interlocutory judgment should be modified so as to direct the taxation of' a bill of costs as upon a trial of an issue of law. While the- award of costs: in such case is within the discretion of the court, yet when that is exercised, and the award made, the costs are to- be such as are allowed upon the trial of an issue of law. Van Gelder v. Van Gelder. 13 Hun, 118; Lonsdale v. Lonsdale, 41 App. Div. 224, 58 N.Y. Supp. 532; People v. New York Produce Exchange, 64 How. Prac. 523; In re Protestant Episcopal Pub. School, 86 N. Y. 396.

The interlocutory judgment should be modified in accordance with this opinion, and, as modified, affirmed, with costs. All concur, except SEWELL, J., taking no part.  