20 Johns. 295
Decided October 15, 1822
New York Supreme Court · decided 1822-10-15
CADY, for the plaintiff, moved to amend the judgment record in this cause, by striking out that part of the judgment which awarded costs to the defendant. He said, that this was an action of audita querela, in which there was a demurrer, and judgment given thereon for the defendant, in August term last, with costs. He contended, that in audita querela, no costs can be recovered by either party: 1. Because, costs are only recoverable by statute ; and the statute (1 JV‘.
Decided 1822-10-15
¶1The twelfth section of the act gives costs in all cases of demurrer; and though the general rule is, that costs are not recoverable, unless damages are given, we think, that the party is entitled, under this section of the act, to costs, as well as in any other case of a judgment on demurrer.
¶2Motion denied.