
    SUPREME COURT.
    Moses Roberts agt. Joseph W. Clark and another.
    Application for judgment, under § 247 of the Code, is a motion; and the prevailing party is only entitled to costs as upon a motion. ( This decision sustains that in Gould agt. Carpenter, 7 How. Pr. R. 97, and is adverse, to Lawrence agt. Davis, id. 354, and Roberts agt. Morrison, id. 396.)
    
      At Chambers, Penn Yan,
    
    
      Jan., 1855.
    Taxation of costs.
    The defendant, Joseph W. Clark, had demurred to the complaint of the plaintiff, and the plaintiff, under § 247 of the Code, applied, on a notice of five days, at chambers, for judgment, on the ground of the frivolousness of the demurrer. Judgment was rendered for the plaintiff upon the demurrer, but with liberty to the defendant, Clark, to answer within twenty days, upon payment of the costs of the demurrer. By consent, the taxation was referred to Mr. Justice Welles.
    F. W. Salisbury, for plaintiff.
    
    T. Hinckley, for defendant, Clark.
    
   Welles, Justice,

said, I incline to think, upon examination, and so decide, that the defendant, Clark, should be allowed to answer, upon paying ten dollars costs—being costs as upon a motion.  