
    Frederick de Turckheim, Respondent, v. Orlando F. Thomas, Appellant.
    First Department,
    May 18, 1906.
    Costs — what costs taxable upon demurrer to complaint sustained with leave to amend.
    When a demurrer to the entire complaint in a common-law action is sustained and leave is given to the plaintiff to amend, the defendant is entitled, as a matter of right, on entering the interlocutory judgment, to costs of the trial of the - issue of law and of all proceedings after notice and before trial.
    Appeal by the defendant, Orlando F. Thomas, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk .of the county of New York on the 20th day of June, 1905, upon the decision of the court? rendered after a trial at the New York Special Term, as provides that the defendant’s demurrer to the complaint be sustained with only twenty dollars costs instead of full statutory costs, and permits the plaintiff to serve an amended complaint within' twenty days. .
    
      Richard A. Irving, for the appellant.
   Laughlin, J.:

This is a common-law action for work, labor and services per- * formed and materials furnished. The demurrer was upon the ground that the complaint failed to state facts sufficient to constituté a cause of action. The issue of law arising on the demurrer was duly noticed for trial and placed upon the Special Term calendar and tried. The complaint served was clearly insufficient and the-demurrer was sustained, but the court assumed to have discretion with respect to the allowance of costs and allowed only twenty dollars. The question presented is whether the court had any discretion with respect to the allowance of costs, and if not, ivhat are the statutory costs to which the defendant is entitled.

When an issue of fact and an issue of law are joined between the same parties in the same action the ‘court, on deciding the issue of law before the issue of fact has been disposed of, is expressly given discretionary authority to deny costs to either party, or to award costs to the prevailing party, either absolutely or to abide the event of'the-trial of the issue of fact., (Code Civ. Proc. § 3232; Adams v. Ward, 60 How. Pr. 288 ; Doelger v. O’Rourke, 12 Civ. Proc. Rep. 254 ; 2 Rumsey Pr. [2d ed.] 273, 275, 276.) But even then-it has been held thatif costs áre allowed the amount of costs is not within the discretion of' the court but is governed by section 3251 of the Code of Civil Procedure. ( Vogt Mfg. & Coach Lace Co. v. Oettinger, 88 Hun, 52.) Judge. Rumsey applies the .rule in Vogt Mfg. & Coach Lace Co. v. Oettinger (supra) generally and states it to be that where costs are allowed on an issue of law the court may not arbitrarily fix the amount, but they are to be governed by the provisions-of the Code of Civil Procedure. (2 Rumsey Pr..[2d ed.], 273.) The practice under the Code of Procedure was to allow full costs and it was held that the court had no -discretion with respect' to the amount thereof. ( Van Gelder v. Van Gelder, 13 Hun, 118.) Here, however, the demurrer was to the entire pleading and.no issue' of fact remained to be tried. In such case there is no express prbvision of law conferring upon the court discretion with respect to the award of costs. The only provision of the Code of Civil Procedure relating to costs in these circumstances appears to be section 3251 which, so far as material, provides as follows:. “ Costs awarded.. ■to a party to an action must be at the following rates: * * * 2. To'the defendant: For all proceedings before notice of trial, except as otherwise prescribed in this article, ten- dollars. 3. To either party: F,or all proceedings after notice of trial and before trial, except as; otherwise prescribed i-n this article, fifteen dollars. * ' * * For the trial of an issue of law, tw_uty dollars.”

In Tallman v. Bernhard (75 Hun, 30 ; 31 Abb. N. C. 84) an . * in terloeutory judgment sustaining a,deinurrer to the entire complaint without costs was_ reversed by the General Term in this department upon the ground that “ There is only one exception to the rule that costs arejabsolute where a demurrer to a complaint in a common-law^ action is sustained, and that-is furnished by section ■ 3232- of the Code which provides that where an issue of law and an , . issue of fact are joined, and the issue of fact remains undisposed of, it is in the discretion of the court to deny costs to either party, oí award costs either absolutely or to abide the event.” That decision was cited -and followed by the Appellate Division in the second department in Doyle v. Douglas Shoe Co. (92 App. Div. 614) and by Mr. Justice Chase at Special Term in Marsh v. Graham (19 Misc. Rep. 263) and by the General Term of the City Court of New York in Keller v. Shrady (30 id. 833). In People ex rel. Scribner v. Water Comrs. (58 App. Div. 554) it was held that costs on demurrer to two of ten separate defenses set up in a return to an alternative writ of mandamus were discretionary, but if bests were allowed they could not be fixed by the court but are governed by the Code of Civil Procedure. In that case the costs -were discretionary because it was a special proceeding (Matter of Protestant Episcopal Public School, 86 N. Y. 396) and since other issues remained to be tried, the rule would have been the same if it had been an action. (Code Civ. Proc. § 3232.) Judge Rumsey in his work on Practice (Vol. 2 [2d ed.], p. 273) says, “ where the demurrer is interposed to the whole complaint or to the-whole ans ver, the party succeeding is entitled,'either •absolutely or in the discretion of the court, to the costs as fixed by the Code,” and cites People ex rel. Scribner v. Water Comrs. (supra) as authority for that proposition. The learned jurist and author did not, we think, mean to lay down the rule that in all cases the costs on an issue of law are discretionary, and the case cited does not so hold, but rather that in some cases they are discretionary and in others not.

We now come to the question as to the amount of costs allowed by section 3251 of -the Code of Civil Procedure in such case. The authorities, with a few exceptions, hold that costs after notice of trial and before trial and of the trial of the issue of law are recoverable; but they are not in harmony with respect to the costs before notice of trial. The appellant contends that the costs before notice of trial are intended as compensation for drawing the pleading, and that unless he is allowed those costs now he never can recover any costs for drawing the demurrer provided the plaintiff accepts the privilege of amending the complaint. Of course if -the plaintiff does not amend, the defendant, on entering final judgment, would be at" liberty.to tax costs before notice of trial; but if the complaint be ■, amended, then the defendant may be obliged to prepare an answer, and for that, but not for the demurrer, he could tax costs before notice of trial on entering final judgment..

Some authorities'hold that the costs allowed to either party before "notice of trial are intended as compensation for drawing the plead-, ing upon which he is successful and that- the defeated party should be obliged to pay the costs of such proceedings as will be vacated as a result of the decision. (Louis v. Empire State Ins. Co. 75 Hun, 364 ; Van Valkenburgh v. Van Schaick, 8 How. Pr. 271 ; Collomb v. Caldwell, 5 id. 336.) In Louis V. Empire State Ins.Co. (supra) a demurrer to the complaint .was overruled and the plaintiff claimed costs before notice of trial. It was held that as his pleadings would stand and he would be entitled ■ to tax these costs later if .'successful, they were, not ■ allowable on demurrer; but the ■ court by way of illustration cited with approval the ease of Adams v. Ward (60 How. Pr. 288), holding that where a demurrer to an answer was sustained, the plaintiff was entitled to recover the costs before notice of trial of the issue of law as compensation for drawing the demurrer. Other cases lay down' the rule of Adams v.. Ward (supra),, that where the demurrer, is-sustained so that the party demurring will be obliged to prepare á new pleading,, he is entitled to costs of proceedings.before notice .of trial. (Collomb v. Caldwell, 5 How. Pr. 336.) Jones v. Butter (83 Hun, 91) is • opposed to this view, but it contains no discussion of the authorities and cites Kneering v. Lennon (3 Misc. Rep. 247 ; 51 N. Y. St. Repr. 907) and Thompson v. Stanley (22 Civ. Proc. Rep. 348). as authority for,the decision. In Kneering v. Lennon (supra) a demurrer to one •of several counterclaims was sustained, with leave to plead over, and only twenty dollars costs of the demurrer were, allowed, The General Term of the Hew York Common Pleas held that as other issues remained to be tried the costs were discretionary under section 3232 of the Code, of Civil Procedure, and that the court only intended to award costs upon said demurrer,” 'That decision is clearly in conflict with all the authorities, which hold that when, costs are awarded they are to be governed by the Code of Civil Procedure and include costs of the trial ,of the issue of law and'of all procéedings after notice .and before trial. In. Thompson v. Stanley (supra) a demurrer cd a . . coinplaint was overruled, and as the. plaintiff was not obliged to draft a new pleading as a result of the decision on the demrirrer he was not permitted' to recover costs before notice of trial. Hence, that decision was not authority to sustain the proposition for which it was cited. The Third Department, in Garrett v. Wood, No. 2(61 App. Div. 294), following Jones v. Butler (supra), without discussion and citing approvingly Louis v. Empire State Ins. Co. (supra), which, so far as it is authority at alhon the proposition, holds the contrary, held that costs before notice of trial are not recoverable by plaintiff on his demurrer to one of three defenses being sustained, with costs. The Second Department in arnemorandum"decision, in which the facts are not stated, cited Jones v. Butler and Garrett v. Wood, No. 2, approvingly. (Chase v. Drake, 92 App. Div. 613.)

In Marsh v. Graham (supra) it was held that only costs after notice arid before trial and of the trial of the issue of law are recoverable either on sustaining .or overruling a demurrer, and Jones v. Butler (supra), which so holds, and Louis v. Empire State Ins. Co. (supra), which, as has been seen, contains a dictum directly opposed,, are cited as authority. The decisions, which hold that costs before notice of trial are not recoverable either on sustaining or overruling a demurrer, fail to discriminate between the two classes of cases, in one of which the pleading of the successful party, which is sustained, stands, and in the other of which it becomes indirectly vacated in consequence of the leave given to the defeated party to plead over, and the authorities holding that the costs before notice of trial are allowed as compensation for drawing the pleading, which thus becomes useless in the future, appear to have been overlooked. Hnless the demurrant who is successful is allowed costs before notice of trial he can never recover costs for drawing the demurrer if the defeated party avails himself of the privilege of amending. ( There is no danger of an unauthorized.recovery of this item of costs twice. If the defeated party does not amend, the successful party on enter ing final judgment on the demurrer could not retax the costs before notice of trial which had already been taxed on the entry of' the interlocutory judgment, and if the defective pleading should be amended, the successful party would be obliged to draw a new pleading, for which he should subsequently recover costs if successful in the action.

There is no distinction to be drawn from the provisions of s.ec- ■ turn 3251 of the Code of Civil .Procedure with respect to the recovery of costs before and after notice- of trial. - As already shown, the authorities, with few exceptions, agree that where costs are allowed or are recoverable on demurrer, they include costs after notice and before trial! Section 3251 does not expressly provide -that costs either before or-after notice of trial may in any, case be recovered twice. It prescribes the amount of costs the successful party is entitled to recover fór proceedings before and after notice of trial. The only proceedings of the defendant before notice of trial of his demurrer .to the complaint are the prepáration and seiwice of his demurrer,',which are precisely the same, excepting as the pleading itself differs, as those he is subsequently obliged to go through in his preparation and service of his pleading "to the amended pleading served by leave of the court -on the demurrer being sustained. With the exception that the summons need not be reserved, the action proceeds de novo upon the service of the amended complaint pursuant to the leave granted. It is manifest that if final judgment should be enfered on the ^demurrer the defendant would be entitled to tax the costs of proceedings before notice of trial, Since, if the plaintiff avails himself of the leave to amend, the prior pro-'., ceedings, for which the defendant would have been entitled to recover if final judgment had been, entered, become abortive, I see no reason for depriving him- of the. right to. those costs as costs upon the decision of the demurrer. Tam, therefore, of the opinion that where a demurrer to the entire complaint in a common-law aét'ion is sustained and leave is given to the plaintiff to amend, the .defendant is entitled as. a matter of right on entering the interlocutory judgment to tax full costs to that time and then,, if the. leave to amend be not accepted, on entering final judgment he would only be entitled to-tax'the costs of entering the'final judgment.,

If this were an original question we would.decide it in accordance -with our - own views as . herein-expressed, but we feel constrained, to follow Jones v. Butler, Garrett v. Wood, No. 2, and Chase v. Drake (supra), and leave’it to the Court of Appeals- to- decide whether those cases properly construe.the provisions of the Code of Civil Procedure.

Tt follows, therefore, that the interlocutory judgment should be modified by including therein costs of proceedings after notice of trial and as thus modified affirmed, with costs to the appellant.

O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to appellant. Settle order on notice. 
      
       Code Civ, Proc, chap. 21, tit 2,. art. 1.—[Rep.
     