Tallman v. Bernhard , 75 Hun 30 ( 1894 )

PER CURIAM.

The court, in sustaining the demurrer, erred in refusing to grant the demurrant costs. There is only one exception to the rule that costs are absolute where a demurrer to a complaint in a common-law action is sustained, and that is furnished by section 3232 of the Code, which provides that where an issue of law and an issue of fact are joined, and the issue of. fact remains undisposed of, it is in the discretion of the court to deny costs to either party, or award costs, either absolutely, or to abide the event. So much of the order and interlocutory judgment as refuses to allow costs should be reversed, with $10 costs and printing disbursements.