
    Samuel Paley et al., Plaintiffs, v. Evelyn C. Smith, Defendant.
    (Supreme Court, Kings Special Term for Trials,
    December, 1911.)
    Costs: When allowable — In general — Discretion under the .Code generally: Amount — Where costs are in the discretion of the court.
    In an-equity case, costs are in the discretion of the court; and, in the exercise of such discretion, the court may properly award the defendant upon sustaining his demurrer to the complaint ten dollars costs, thus conforming the costs to those on a.motion for judgment on the pleadings.
    Application for the allowance of costs in an action in equity.
    
      George Tonkonogy, for plaintiffs.
    Abraham Walodarsky, for defendant.
   Crane, J.

The defendant insists upon a full bill of costs as a matter of right upon the decision sustaining the demurrer to the complaint in this, an equity action. Costs in an equity action are discretionary, both as to the granting and as to the amount, except that the total amount cannot exceed that authorized by statute. Code Civ. Pro., § 3230.

In actions at law, costs upon the sustaining of a demurrer are not discretionary, but must be allowed in the amount specified by statute; fifteen dollars after notice of trial and twenty dollars trial fee. 2 Rumsey Pr. 273; DeTurckhein v. Thomas, 113 App. Div. 123, and cases therein cited.

In all the cases cited where costs have been held to be mandatory and not discretionary, it will be noted that it is specifically stated that the action is one at common law and not in equity. DeTurckheim v. Thomas, supra,.

A different rule also applies to special proceedings, such ■as was the case of People ex rel. Scribner v. Water Commissioners, 58 App. Div. 554. According to section 3240 of the Code costs may be allowed in the discretion of the court; but, if allowed, they must be at the rates fixed by the statutes in an action. See also Matter of Protestant Episcopal Public School, 86 N. Y. 396.

This being an action in equity, I have allowed but ten dollars costs, conforming the practice to that of a hearing upon the motion for judgment pursuant to sections 547 and 976 of the Code of Civil Procedure.

Ordered accordingly.  