
    SUPREME COURT
    Lawrence and another agt. Davis.
    Where a demurrer is interposed to the complaint, it becomes necessary for the plaintiff to apply to the court for judgment, and therefore becomes a trial by § 252. The attorney’s fees in such case of §12 before trial, §7 after trial, §15 on the trial, and $1 clerk’s fees, is properly allowed
    
      New York Special Term, December 1852.
    This was an action against the defendant as drawer of a bill of exchange; the defendant demurred to the complaint, and the plaintiffs, under section 247 of the Code, applied on a notice of five days at chambers, for judgment for the amount claimed in the complaint, on the ground of the frivolousness of the demurrer, and the application was granted, no -one appearing to oppose.
    The plaintiffs entered judgment and had their costs adjusted by the clerk on notice, but for some reason the defendant did hot attend on the adjustment; the clerk on the adjustment allowed as attorney’s fees f 12 before trial, $7 after trial, $15 fee oh the trial, $1 clerk’s fee on trial.
    
      The defendant now by his counsel, Mr. Holmes, moved on notice of motion and affidavit, excusing his non attendance on the adjustment, for a readjustment of the costs and disbursements, and insisted that the clerk allowed $5 too much on the first item, and that the three last items should be stricken out and disallowed altogether.
    The motion was opposed by R. W. Townsend, for plaintiffs, who insisted that by demurring defendant had turned an action, which, before the demurrer was put in, was one where no application to the court was necessary to obtain judgment, into one where such application was necessary, and that, therefore, $12 was the proper charge. That the demurrer, by section 249 of the Code, made an issue of law and that the application for judgment thereon was a trial by section 252 of the Code as amended in 1852.
   Roosevelt, Justice,

before whom the motion was made, adopted the views of the plaintiffs’ counsel, and decided that the costs were properly adjusted hy the clerk, and allowed all the charges as adjusted, and denied the motion without costs.  