Opinion
November, 1902.
Nathan, Leventritt Perham, for appellant.
Dittenhoeffer, Gerber James, for respondent.
The demurrer herein was to a part of the answer, and was duly sustained with costs, to be taxed by the clerk. When these costs came on for taxation the clerk, on objection of defendant, taxed fifteen dollars costs after notice of trial. From an order disallowing said item this appeal is taken.
I am of opinion that the order is wrong and should be reversed. There are authorities to the effect that the costs in this court, upon the determination of an issue of law, cannot exceed the sum of twenty dollars, but I consider them disproved by the recent case of Garrett v. Wood, 23 Misc. 7. It was stated there by Mr. Justice Chester of the Supreme Court, third department, that: "As the Code of Civil Procedure required the issue of law to be disposed of before the trial of the issue of fact, and as the issue of law was required to be brought to trial upon notice, I think it is proper that the item of costs after notice and before trial should be allowed." This decision was unanimously affirmed on appeal ( 61 A.D. 294), and is binding on this court.
It follows, therefore, that the order appealed from should be reversed, with costs, and the motion for taxation denied, with costs.
McCARTHY and SEABURY, JJ., concur.
Order reversed, with costs, and motion denied, with costs.