Keyes v. Lestershire Heights Realty Co. , 158 N.Y.S. 617 ( 1916 )

Howard, J.:

A demurrer may be brought on for hearing in three ways — under the original provisions of the Code, which require that the issue be noticed for trial at Special Term, put on the calendar, and reached in regular order; under section 547 of the Code, which authorizes a motion for judgment upon the pleadings; under section 976 of the Code, which provides that the demurrer may be brought on and tried as a contested motion. In the case before us the plaintiff chose the latter method; that is to say, she noticed the issue as a contested motion and it was disposed of by an order, the demurrer being overruled. The defendants appealed to the Appellate Division from this order and the order of the Special Term was affirmed. (170 App. Div. 926.) The plaintiff contends that costs should be taxed in her favor as though she had pursued the old complicated process of bringing the demurrer on for argument, instead of the simplest and latest process, as provided in section 976. On a motion for a retaxation of costs the Special Term has held against her on this contention and she appeals to this court.

The Special Term was unquestionably right. The whole trend of modern thought and legislation is to simplify the practice of the law. The original method provided in the Code for bringing on a demurrer for trial was cumbersome, expensive and dilatory. It has become antiquated and will very soon be abandoned altogether. As Mr. Justice Miller, sitting in the First Department, said in comparing the old method of bringing on a demurrer with the practice under section 547 of the Code (National Park Bank v. Billings, 144 App. Div. 536): “ Naturally most practitioners chose the simpler, quicker and less expensive method.” And naturally now they choose, as the plaintiff did here, the simplest and least expensive method. It was to avoid red tape, roundabout routes and useless expense that the Legislature provided these two simple, expeditious and inexpensive methods of bringing a demurrer before the court for trial and determination. The method by contested motion, applicable throughout the State except in the first and second judicial districts, was provided in 1900 (Chap. 569). Motion for judgment upon the pleadings was authorized in 1908 (Chap. 166). The remedy by contested motion was made general in 1909 (Chap. 493). We would be blocking the wheels of progress and traveling backwards were we to cumber this direct road to justice by requiring litigants to pay the same tolls as are exacted from those who travel the ancient road. We are not disposed to do this.

This demurrer was brought on as a contested motion; that is, became a contested motion; the plaintiff’s attorney stood up at the Special Term among other attorneys who were arguing contested motions and presented his matter in the same way that they did their matters; the motion was disposed of by an order; an appeal to the Appellate Division was taken from this order and was affirmed by this court. It follows that the plaintiff was entitled to ten dollars costs of motion at the Special Term and ten dollars on an affirmance of the order in the Appellate Division, but to no other costs. She is, of course, entitled to her disbursements. Therefore, the order appealed from should be affirmed, with costs.

Order unanimously affirmed, with ten dollars costs and disbursements.