
    SLEIGHT a. HANCOX.
    
      Supreme Court, First District;
    
    
      Special Term, March, 1857.
    Costs.—Marine Court.—Demurrer to Answer.—Allowance.
    The provision of the act of 1853 (Laws, 1165, ch. 617, § 1) limiting costs in certain actions when prosecuted in any other court in New York city than the Marine Court, does not apply to an action commenced in the Supreme Court in another county, but which, the place of trial being changed to the city and county of New York, is afterwards prosecuted there.
    In a cause pending before the passage of the act of 1856 (Laws, 54, ch. 44) authorizing a demurrer to an answer in all cases for insufficiency, the plaintiff demurred to part of an answer which did not contain a counter-claim. The demurrer was heard and sustained.
    
      Held, on taxation of costs on final judgment in the action, that the demurrer was a nullity, and there could be no costs for trying it.
    Plaintiff had a verdict for §450, and an allowance of five per cent, was granted him. A new trial being ordered, his verdict thereon was only §75, on which an allowance of ten per cent, was ordered.
    
      Held, that plaintiff could insert only the last allowance in his judgment
    Appeal by defendant from, an adjustment of costs.
    
      A. H. Wallis and E. W Stoughton, for appellant.
    
      E. R. Bogardus, for respondent.
   Birdseye, J.

—This action was brought in July, 1854, for an assault and battery; the damages claimed being $1000. The county of Dutchess was originally named as the place of trial; the plaintiff being a resident of that county. In October, 1854, the place of trial was changed to the city and county of Hew York; and in January last the cause was brought to trial at the circuit, and a verdict for $75 rendered in favor of the plaintiff. The costs of the plaintiff have since been adjusted at $357.22. Several questions are now presented on the appeal from that adjustment.

It is first objected that the costs, in the whole, should not exceed the sum of $75, the damages recovered. By section 1 of chapter 617, of the Laws of 1853 (1165), it is declared that the Marine Court of the city of Hew York shall have jurisdiction over and cognizance of actions of assault and battery, and certain other actions, where the damages claimed do not exceed $500 ; and the costs in all such actions, when prosecuted in any other court in the city of New York, are limited to the amount which would have been recovered in the Marine Court, if prosecuted therein; but in no such action shall the costs exceed the damages recovered.

The defendant contends that the steps which have been taken, in the city of New York, since, on his own motion, the place of trial was changed to this city, amount to a "prosecution” of this action in New York, within the meaning of this act, so that the plaintiff can recover no more costs than damages, and so that he can only recover such costs as he could have recovered in the Marine Court.

I cannot assent to any such position. It is by no means clear that the continuance of an action in New York, which has been commenced elsewhere, after the place of trial has been changed to that city, is & prosecution of the action there, even within the most literal reading of the act. But when the reason of the enactment, the mischief which it was intended to prevent, are considered, it is clear that the statute does not reach the present case. The law was meant to relieve the superior courts of the city of New York of a class of business which occupied much time, but which was thought to interfere seriously with other business of greater importance to the parties, and to the public at large. The design was to discourage the commencement of those suits in the courts of general jurisdiction in the city of New York, and by withholding costs to induce the bringing of those suits in the inferior court. The protection and relief were to be given to the higher courts in the city ; not to the supreme court in other and distant parts of the State. There was no general complaint of an excess of such cases there'; and if there had been, it could not have been remedied by the enactment in question. For the Marine Court could scarcely ever have jurisdiction of parties to such action, who resided elsewhere.

The plaintiff had a clear right by law (Code, § 125) to bring this action in Dutchess county. Bo such penalty as is contended for can now be visited upon him, because he did not leave the county of his residence, come to the city of New York, and subject himself to the jurisdiction of this local court. The objection must be overruled.

The next objection to the bill of costs relates to the costs of. the demurrer to a portion of the answer. This demurrer was put in in August, 1884, the answer containing no counter-claim. At that time there was much conflict of opinion whether section 153 of the Code authorized the interposition of a demurrer to an answer, unless it contained a counter-claim. That such a demurrer would lie, was held in Hopkins v. Everett (6 How. Pr. R., 159), Salinger v. Lusk (7 Ib., 430), Wisner v. Teed (9 Ib., 143), Kneedler v. Sternbergh (10 Ib., 67). The opposite view was taken in Head v. Florence (9 Ib., 396), Richtmeyer v. Haskins (Ib., 481), Hyatt v. The Saratoga County Hutual Insurance Company (Ib., 488), Perkins v. Farnham (10 Ib., 120), and in several other cases. I think the weight of authority is decidedly in favor of the latter view. The demurrer thus interposed was argued and sustained ; and the plaintiff now claims the costs of the demurrer. In my judgment, they cannot be allowed. The demurrer being in law a nullity, there was in fact no issue of law joined, or to be tried. Where there was no issue to be tried, there can be no costs for trying it. These items, amounting to §18.24, must be stricken out of the bill as adjusted.

After the decision on the demurrer, the cause was noticed for trial at the Dutchess circuit in September, 1854, at which an inquest was taken, and the plaintiff obtained a verdict for §450, and an allowance of five per cent, thereon was made to plaintiff. Soon after, the inquest was set aside, and the costs of both parties thereon were ordered to abide the event of the action. The plaintiff now claims the allowance then made him, though it is more than three times as great as the Code warrants his recovering, and though the court gave him another allowance of ten per cent, on his last verdict. That allowance is the utmost he can in any event recover, being fully up to the limit allowed (Code, §§ 308, 309). In whatever manner the conflict of opinion between the cases of Hicks v. Waltermire (7 How. Pr. R., 371), and Ellsworth v. Gooding (8 Ib., 3), shall finally be settled, there can be no doubt that the clerk properly rejected the plaintiff’s claim to this first allowance.

The attendance of the plaintiff’s witnesses is sufficiently proved. That proof may he presented to the clerk on the adjustment. It need not he served, beforehand, on the opposite party. The item for sheriff’s fees on execution, among the costs of the Dutchess circuit, must be stricken out, as no execution was issued.

The costs must be readjusted, and the items above indicated disallowed. 
      
       See MeQuade «. The New York & Erie Railroad Company (11 How. Pr. R., 434), where it was held by the general term of the Superior Court that an order for an allowance made at the'circuit on the rendition of the verdict, is ineffectual if the verdict is afterwards set aside, and a new trial ordered.
     