
    SUPREME COURT.
    Masters agt. Barnard.
    Where there is an issue of law and an issue of fact, joined in a cause, no judgment for costs can he entered in favor of the party who prevails upon the issue of law until the issue of fact is disposed of.
    Accordingly, where a judgment was entered in favor of the plaintiff for costs of a demurrer interposed to a part of a reply, leaving an issue of fact undetermined, held that the judgment was irregular, and on motion was set aside.
    
      Madison Special Term, June 1851.
    Motion by the defendant to set aside a judgment entered in favor of the plaintiff for costs of a demurrer.
    The plaintiff sued to recover on a promissory note for $78'46, to which the defendant set up in his answer the defence of payment, and also other matters not necessary to state here.
    The plaintiff replied, denying the allegation of payment, and alleging other matters in reply to the other allegations contained in the defendant’s answer.
    To a part of the reply the defendant demurred, leaving, however, the issue of fact as to the defence of payment undisturbed; the demurrer so taken to a part of the reply was argued, and decided in favor of the plaintiff.
    The plaintiff thereupon applied to the clerk of Madison county to have his costs adjusted, and judgment entered for the amount thereof; and accordingly, judgment was entered for $30-50, costs and disbursments, which the defendant now moves to set aside.
    Alfred Nichols, for Defendant.
    
    David J. Mitchell, for Plaintiff.
    
   Mason, Justice.

There can be no doubt, in my mind, that the plaintiff was in error in entering judgment for costs upon the demurrer, while the issues of fact in the cause were undetermined.

The practice was settled under our former system and there is nothing in the Code that changes it in this respect (Williams ads. Wright, 1 Wend. R. 277; 6 Cow. R. 71; Osborn vs. Lawrence, 9 Wend. R. 445; The People vs. Feeter, 12 Wend. R. 480; 2 Arch. Pr. 286; 1 Burril's Pr. 252; 5 East R. 261). These cases seem to settle the doctrine that where there is an issue of law and an issue of fact joined in a cause, no judgment for costs can be entered in favor of the party who prevails upon the issue of law until the issue of fact is disposed of. This judgment, therefore, must be set aside as irregularly entered, and if the plaintiff succeeds upon the issues of fact, then he will be entitled to insert the costs of the demurrer in the record; but if/ on the contrary, the defendant shall succeed upon the issues of fact in the case, then the plaintiff will not be entitled to have his costs upon the demurrer. This is a new question of practice under the Code, and I think it is not a proper case, therefore, to impose costs, especially as this is the first time the question has been presented to me.

The clerk of Madison county will enter an order setting aside the judgment in this cause, but without costs.  