#### Moritz Pach, Pl’ff, *v.*Frank T. Gilbert, as sheriff of Erie Co., Def’t.

*(Superior Court of Buffalo, Special Term,*

*Filed February, 1890.)*

Costs—Tbial—What constitutes.

At the trial, "before empanelling a jury, plaintiffs counsel moved for judgment on the pleadings. The court heard arguments and briefs were *834filed, and subsequently, after the jury had been discharged for the term, the court denied the motion and directed the trial to proceed, either party to ¡have liberty to put the cause on the calendar, costs to abide event. The case was tried at the subsequent term. *Held,*that the proceeding at the first term was not a trial; that the order directing the trial to proceed .at the subsequent term was not an order for a new trial, and that plaintiff was entitled to but one trial fee.

Motion" for a new taxation of costs.

The action was noticed for trial, and on the calendar for March, 1889, and when reached was moved for trial. Before empanelling a jury the plaintiff’s counsel read the pleadings, and moved for judgment on the allegations of the complaint and answer, and on the ground that the answer did not state a defense. Counsel for both parties consented to submit the question to the court whether proof of the answer could be admitted as a defense. Thereupon the court heard the arguments of the counsel for the respective parties, and, some days thereafter, received written briefs, and took time to examine and consider. Subsequently, but after the jury for that trial term had been discharged, the court made its decision upon which an order was entered as. follows:

*“*It is ordered that the said motion be, and the same is hereby denied, and the trial of this action is hereby directed to proceed, and either party may be at liberty to put the same on the calendar, unless the plaintiff’s counsel shall elect to appeal from the order. And it is further ordered that the costs of this motion (if any costs are taxable) shall abide the event of the action.” The cause was thereupon placed on the calendar of the May trial term, which was held by another judge. The cause was reached, moved for trial again, tried, and a verdict directed for the plaintiff. The plaintiff’s attorney now claims that there was a trial at the former term, and that the order in effect granted a new trial, and that the clerk should be directed to allow the plaintiff, on a new taxation of costs, two trial fees and the statutory allowance of twenty-five dollars for proceedings after the order, which he claims granted a new trial, and the trial which he claims was a second and new trial.

*0. 0. Goitle,*for pl’ff; *Charles B. Wheeler,*for def’t.

Beckwith, Ch. J.

The old Code (the Code of Procedure) contained, § 252, a definition of the term *a trial.*It defined a trial to be *“*the judicial examination of the issues between the parties, whether they be issues of law or of fact.” Notwithstanding the exact, well-known, technical meaning of the word issues, and the explications found in the preceding sections of that Code, and the concise, scientific language of the definition, yet the courts in the day of that Code seemed to find latitude to call points of controversy arising by other means than the pleadings, issues, and their determination, trials. *Place*v. *The Butternuts W. & C. Manufacturing Co.,*28 How. Pr., 184.

The Code of Civil Procedure does not give a definition of the word trial. But it tells what issues are, and declares that they must be *tried.*Those issues me those only which are presented *835by the pleadings, and arise only upon facts or conclusions of law-maintained by one party and controverted by the other by their pleadings. An issue of law arises only upon a demurrer, and an issue of fact upon a denial in the answer of a material allegation of the complaint upon a similar denial in the reply of a material allegation of the answer, and allegations of new matter in the answer or reply. Code Civ. Pro., §§ 963, 964, 965. Issues of such character and origin are to be tried as prescribed in chapter 6, which directs notice of trial, filing the note of issue, entering the cause upon the calendar, and that either party, who has served the notice, may bring the issue to trial. §§ 965, 980.

It is with reference to such issues that the Code, § 3251, allows, as costs, “for the trial of an issue of law, twenty dollars; for the trial of an issue of fact, thirty dollars.” Mow, when the plaintiff moved for judgment on the pleadings, and counsel argued the motion and submitted briefs, and the court “duly considered” and denied the motion and refused to give judgment, was there a trial within the meaning of the mentioned sections of the Code ? In the first place, it is observable that what was done had not the ordinary formalities and incidents, nor results of a trial. There was no decision stating, as the Code requires in the case of a trial by the court, the facts found and the conclusions of law and directing the judgment to be entered. Again, while the question raised by the motion as to the sufficiency of the answer and whether any material allegation of the complaint was controverted was a question of law, yet it was not an issue of law, which can be raised only by demurrer, and it is for the trial of an issue of law that costs are given. And, again, it is a frequent occurrence that such a motion is made and the court takes time to consider, and after the disposal of intervening trials decides the motion, and the parties proceed before a jury: are there two trials ? Such a motion is preliminary and in substance an objection to the reception, of any evidence in support of the allegations of the answer on the ground that if the allegations should be proved they will amount to nothing. The decision of the motion merely affects the course of the trial. If not a trial, what is it that is done on such a motion ? If the answer purports .to be a denial of the allegations of the complaint the court considers the sufficiency of the answer for that purpose. If it be held that the answer is sufficient the plaintiff proceeds to make proof of the allegations of the complaint. If, on the contrary, the answer is not sufficient, does not deny any material allegation of complaint, the court must still determine the conclusion of law that follows from the facts alleged in the complaint, and must declare, after taking such proof as may be necessary, the proper form of judgment. In such case a trial involves the judicial examination of the allegations of the complaint and the expression of the legal conclusion in the form of a verdict or decision. And when the answer sets up an affirmative defense, that is to say, sets up new matter as a defense and there is a motion for judgment for the insufficiency of the answer, what is the legal or logical process ? The court compares the allega*836tians with a rule, or certain rules, of law with reference to which the allegations are deemed to have been made.

The court simply determines whether, if proved, they would or would not constitute a defense. It is apparent that that is all the court does. That process does not amount to a trial, for, if the answer is held to be sufficient, 'the defendant must yet prove his allegations. The process is the same if the court hold that the alleged new matter is not a defense. The trial still involves the determination of what conclusion of law follows from the facts alleged in the complaint. There is not a trial until the proceedings have reached that point where only the verdict or decision remains to be announced. If the allegations of the complaint are not sufficiently answered, there must still be a judicial examination of those allegations before the court can tell what judgment the law pronounces, and before the court can advise the jury as to the law governing their verdict, or give its own decision.

In this case the answer set up new matter as a defense. When the plaintiff’s counsel moved for judgment on the ground that the matters alleged in the answer did not amount to a defense and that evidence was not admissible, he simply raised a *question*of law, and when the court ruled the point against him neither party .acquired therefrom a right to enter judgment, but the plaintiff became entitled to an *exception*only. Code, § 992. The cause was not tried. At the most it was a thing done “upon the trial,” *Starin*v. People, 45 N. Y., 337, and when the order of the court •directed the trial “to proceed” at the subsequent term, it follows that it was not an order for a new trial.

Counsel for the plaintiff cited a number of cases which have some appearance of sustaining his contention, but for the reasons above stated the motion for a new taxation of costs is denied, with ten dollars costs.