Van Gelder v. Van Gelder

Learned, P. J.:

Section 307, subdivision 5, of tbe Code of Procedure fixes costs on appeals at twenty dollars before argument and forty dollars for argument. From this rate it excepts appeals to the Court of Appeals and appeals in cases mentioned in subdivisions 1, 3, 4 and 5 of section 349 and in the second paragraph of section 344. The present appeal was from an order overruling a demurrer. It was therefore brought under subdivision 2 of section 349, and is not excepted from the prescribed rate.

In reply it is urged that the repealing act (chapter 417, Laws of 1877, subdivision 4, section 1) has repealed section 349 of the Code, and that sections 1347 and 1349 of the Code of Civil Procedure have substantially taken its place; that subdivision 2 of section 1347 does not mention an order overruling or sustaining a demurrer. The commissioners say that an appeal from such an order is provided for in section 1349, as an interlocutory judgment. However that may be, we cannot apply the language and the exceptions of the section 307, subdivision 5, above referred to, to the sections of the Code of Civil Procedure above cited. If we cannot, since the repeal, refer at all to the old sections 349 and 344 for the meaning of section 307, then every appeal (except to the (jourt of Appeals) would cany the costs of section 307, subdivision 5. "We think it more fair and simple to construe section 307, subdivision 5, as if it incorporated the description of appeals instead of designating them by reference to other sections; and we think therefore that the rule of costs in this respect is not altered by the changes of the last year. In this view it seems to us that on an appeal from an order overruling or sustaining a demurrer the successful party is entitled to tax twenty dollars before argument and forty dollars for argument. This is contrary to previous practice. Put the matter has not before been called to our notice; and the change in the language of the Code has not been observed. The order of the last term must therefore be modified, as asked by the defendant.

The plaintiff asks a modification also that he may be allowed to withdraw his demurrer and to reply. He should be allowed to do so, on payment of the costs on overruling the demurrer at the Special Term,' the costs of the appeal, including taxable disbursements *120and ten dollars costs of motion, to be paid in ten days after service of a copy of tbe order.