Summary
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 costs were allowed they could not be fixed by the court but are governed by the Code of Civil Procedure.
Summary of this case from de Turckheim v. ThomasOpinion
March Term, 1901.
Franklin Couch, for the appellant.
James Dempsey, for the respondent.
The relator applied for a peremptory writ of mandamus, but an alternative writ was issued. An amended return to the writ was filed by the respondent board, and the relator demurred to two of ten separate defenses of the return. The court overruled the demurrer, with ten dollars costs, and directed judgment, and an interlocutory judgment was entered accordingly. The board of commissioners appeals.
Five briefs have been submitted by the two counsel, and, while other matters are argued, the real contention seems to be on the question of costs, whether they should have been ten dollars or costs as upon the trial of an issue of law.
We think the interlocutory judgment should be modified so as to direct the taxation of a bill of costs as upon a trial of an issue of law. While the award of costs in such case is within the discretion of the court, yet when that is exercised and the award made, the costs are to be such as are allowed upon the trial of an issue of law. ( Van Gelder v. Van Gelder, 13 Hun, 118; Lonsdale v. Lonsdale, 41 App. Div. 224; People ex rel. Stilwell v. New York Produce Exchange, 64 How. Pr. 523; Matter of Protestant Episcopal Pub. School, 86 N.Y. 396.)
The interlocutory judgment should be modified in accordance with this opinion, and as modified affirmed, with costs.
All concurred, except SEWELL, J., taking no part.
Interlocutory judgment modified in accordance with opinion of GOODRICH, P.J., and as modified affirmed, with costs.