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1 E.D. Smith 386

Richards v. Cook

New York Court of Common Pleas

Decided April 15, 1852

New York Court of Common Pleas · decided 1852-04-15

The plaintiff in this action obtained an order, at special term, sustaining his demurrer to the answer. The order was affirmed at general term, by an endorsement upon the papers in suit, of the words, “ with $10 costs.” The plaintiff then moved at the general term, on notice, to modify the direction contained in the endorsement, so as to allow full costs of an appeal,

Decided 1852-04-15

By the Court. Woodruff, J.

¶1The endorsement upon the papers in this cause, so far as it relates to the question of costs, *387was made without adverting to the change made in the sixth subdivision of the 307th section, by the act of 1851.

¶2Now, by the terms of that subdivision, the costs on appeal are fixed at $45, in all cases, except appeals from an order on a non-enumerated motion.

¶3Under the former practice, a demurrer never was a non-enumerated, motion.

¶4By the code, sec. 249, a demurrer raises an issue of law to be tried by the court.

¶5By rule 30th of the supreme court, (in force when the act of 1851 was passed,) an issue of law is an enumerated motion, as it always was before the code, and a demurrer to pleading is so declared in both rules, 30 and 31.

¶6An appeal, therefore, from the determination of an isSue of law, (i. e., from the decision of the court upon a demurrer,) is not an appeal from a non-enumerated motion, and the party prevailing is entitled to the full costs of an appeal.

¶7Order modified accordingly.

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