
    SUPREME COURT.
    The Saratoga and Washington Rail Road Company agt. McCoy and others, Trustees, &c
    COSTS.
    Where a decision is made upon demurrer, allowing a plaintiff to amend or plead over, upon payment of costs, the costs are to be construed single costs. If-the defendants were public officers, and under the statute entitled to double costs, on the final determination of the suit they could not claim double costs on such an order, unless it expressly gave rt to them in terms.
    
      Washington Special Term, June 1852.
    The defendants demurred to the plaintiffs’ reply, and judgment was given in their favor, with leave to the plaintiffs to amend on payment of costs.
    The defendants were sued as trustees of a school district, and claimed the following costs:
    1st. Proceedings before notice of trial,_____________ $12-00
    Subsequent to notice of trial,_________________ 7*00
    Trial,..................................... 15-00
    Cause on calendar, June term at Salem and postponed, costs to abide the event of the suit,____ 10-00
    5th. Cause on calendar, August term at Caldwell,____ - 10-00
    6th. One half of above, in addition, allowed by statute,. 27-00 Disbursements in all,______________ 5-02^
    $86-02^
    -, for Motion.
    
    -, Opposed.
    
   Cady, Justice.

The 1st, 5th and 6th items were disallowed, and the costs adjusted at $37. The defendants move for a readjustment of the costs, and insist that the items which were disallowed, ought to have been allowed.

By the second subdivision of section 307 of the Code, the defendants were entitled to $5 instead of $12, for all the proceedings before notice of trial. By the third subdivision of § 307, the defendants were entitled for trial of an issue of law only, $12 instead of $15.

The 5th item in the bill was properly disallowed, as the cause was improperly noticed for trial at a special term. The most important question is, whether the defendants, as public officers, were entitled to double costs, under 2 R. S. 617, § 24, on the order of the court, granting the plaintiffs leave to amend, or plead over, on payment of costs?

By § 172 of the Code, after a decision of a demurrer, the court may in its discretion, allow the party to plead over, upon such terms as may be just. In this case, such allowance was made upon payment of costs. The terms were in the discretion of the court before whom the demurrer was tried, and the words used by the court do not import double costs; if the court had intended to grant the favor, on the payment of double costs, double costs would have been mentioned. The claim for double costs was properly disallowed. The costs ought to have been adjusted at $39 instead of $37. The defendants asked for more than they were entitled to. The order for readjusting the costs is allowed, without costs to either party.  