
    Malden G. Marsh, Plaintiff, v. William X. Graham, Defendant.
    (Supreme Court, Greene Special Term,
    January, 1897.)
    Demurrer — Costs.
    Where an order is made sustaining or overruling a demurrer to the whole complaint in a common-law action, the successful party is entitled, as a matter of law, to costs after notice and before trial, a trial fee and disbursements, and 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 designated therein.
    Demurrer to complaint. -
    The plaintiff’s complaint alleges that he is the owner of a certain judgment against the defendant duly rendered in Justice’s Court in his favor for $197.28, December 6, 1890, and that a transcript of such judgment was duly docketed in the Greene county clerk’s office December 19, 1890, and that such judgment has not been paid. That he obtained an order of the County Court of Greene county, June 19, 1896, on notice, granting leave to bring this action.
    
      Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause'of action.
    On the argument the attorney for the defendant stated that,; since serving the demurrer, he had .concluded that the demurrer could not he sustained, and consented that the demurrer be overruled. . The only question arising is as to the form of the order' and the amount of costs that" the plaintiff is entitled to, if any, on the demurrer.
    Sidney Crowell, for plaintiff.
    Frank H. Osbom, 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. Pro., § 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 ás a matter of law. Tallman v. Bernhard, 31 Abb. N. C. 84; S. C., 75 Hun, 30.

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; Louis v. Empire State Ins. Co., 75 id. 364.

Interlocutory costs may be taxed by the' clerk, or the court may direct that they be taxed by a judge. Code Civ. Pro., § 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 twenty days on payment of such costs.

If defendant fails to answer as provided, final judgment may be entered for the relief demanded in the complaint.

Ordered accordingly.  