
    TALLMAN v. BERNHARD.
    
      N. Y. Supreme Court; General Term, First Department,
    
    
      January, 1894.
    
      Costs on demurrerl\ Upon sustaining a demurrer to the whole complaint in a common law action, the right of defendant to costs is. absolute, and a direction in the order that the demurrer be sustained “without costs " is erroneous.
    Appeal by defendant from so much of an interlocutory judgment and order sustaining a demurrer to the complaint as provided that the same should be without costs, and as provided that plaintiff might serve an amended summons and complaint. The action was. brought by Cornelius H. Tallman, as executor of Jacob B. Tallman, against Adolph Bernhard to recover a sum of money alleged to be due under the terms of a Iea.se. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The issue of law raised by the demurrer was. tried at Special Term and the demurrer sustained. The order was as follows : “ Ordered that the said demurrer be-sustained without cost, and that plaintiff be allowed to-serve an amended summons and complaint in said action within ten days from the granting of this order.” The interlocutory judgment followed the terms of the order..
    
      
      Carlos C. Alden (James McG. Smith, attorney), for appellant.
    
      James M. Smith, for respondent.
   Per Curiam. [Van Brunt, P. J., O’Brien and Parker, JJ.]

The court in sustaining the demurrer erred in refusing to grant the demurrant costs. There is only one exception to the rule that costs are absolute where a demurrer to a complaint in a common law action is sustained, and that is furnished by Sec. 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, or ■award costs either absolutely, or to abide the event.

So much of the order and interlocutory judgment as refuses to allow costs should be reversed with $10 costs and printing disbursements.

The General Term order was as follows:

Ordered, that so much of said interlocutory judgment and order appealed from as refuses to allow costs and as permits plaintiff to serve an amended summons and complaint on or before December 28, 1893, be and the same is hereby reversed with ten dollars costs and printing disbursements to appellant, and that a provision be inserted in said interlocutory judgment and order awarding to the defendant costs of the demurrer to be taxed by the clerk, and that plaintiff be permitted to serve an amended complaint herein within ten days after service upon his attorney of a copy of this order upon payment to defendant’s attorney of the costs of said demurrer, and the said costs and printing disbursements of this ■appeal.  