1 Hilt. 307

Wilson Small v. Peter G. Ludlow and others.(a)

The argument of a demurrer, on -which a final judgment is rendered, is a trial, and the successful party may have an extra allowance where the case is difficult or extraordinary.

But this rule does not apply to a decision upon a demurrer noticed as frivolous and so adjudged.

Appeal by defendants from an order denying a motion for an extra allowance. In this case the defendants demurred to the complaint. The demurrer was sustained, and judgment ordered for the defendants, with leave to the plaintiff to amend. From this order the plaintiff appealed, and it was affirmed on *308appeal.(a) Tbe defendants then moved for an extra allowance. Tbe motion was denied. Tbe judge denying tbe motion granted a certificate, giving tbe defendants leave to appeal, under a rule of this court, adopted March 22d, 1854, and tbe defendants appealed accordingly.

Schell, Slosson and Hutchins, for tbe appellants.

A. 0. Morris, for tbe respondent.

Daly,> J. —

The argumento! a demurrer on wbicb a judgment is rendered, wbicb is a final disposition of tbe action, is a trial. w. trial is a judicial examination of tbe issues between tbe parties, whether of law or fact. § 252. A demurrer involves an examination and decision of tbe issues, and where it is followed by a judgment, wbicb disposes of tbe case, tbe argument must be regarded as a trial. An argument upon a demurrer, noticed as frivolous, is not a trial, because if tbe judge does not see that the demurrer is frivolous, he makes no decision upon tbe issues. Rochester Bank v. Rapelje, 12 How. 26. It is merely a motion to get rid of a frivolous pleading. Gould v. Carpenter, 7 ibid. 97. Put a demurrer not frivolous raises an issue of law, and tbe argument of it is tbe trial of an issue of law. Hendricks v. Buck, 2 Abbott, 360. There may be some doubt, perhaps, whether it may be regarded as a trial, where liberty is given to amend. But in this case tbe plaintiff did not avail himself of that liberty, but appealed to tbe general term, and tbe defendant bad judgment. It must, therefore, be regarded as a trial, and tbe case was one entitling tbe defendant to an extra allowance.

Order Appealed from reversed, and an extra allowance granted.

Small v. Ludlow
1 Hilt. 307

Case Details

Small v. Ludlow
Decision Date
Apr 1, 1857

1 Hilt. 307

New York



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