Keller v. Shrady

Per Curiam.

The defendants in this instance, a common-law action, were entitled to costs.

Where a demurrer is sustained, costs upon it are absolute, except where issues of law and fact are thereby joined and the issue of facts remains undisposed of, the court has no discretion upon the question of awarding costs. Code Civ. Pro., § 3232. In this ease only an issue of law was presented by the pleadings, so that defendants, when their demurrer was sustained, were entitled to costs prescribed in section 3251 of the Code, as a matter of right. They also had the right to appeal from so much of the order and interlocutory judgment as denied them costs. IS Hun, 30. The fact that the plaintiff sues as a public official, in our judgment, does not alter the case.

That part of the order and interlocutory judgment which refuses the defendants’ costs is reversed, with ten dollars costs and disbursements for printing.

Present: Fitzsimons, Ch. J., and O’Dwyer, J.

Order reversed, with ten dollars costs and disbursements for printing.