This case is now before us on motion of the plaintiff that a counsel fee be allowed to him under rule 36 of our Rules of Practice, which reads as follows; “ When a demurrer is overruled by the Appellate Division a counsel fee for the hearing will be allowed to the prevailing party, unless the court shall order otherwise.''

We do not think the demurrer in this case was frivolous, or that it was interposed for delay. The questions raised thereby were fairly open to discussion before the court, and hence the case is not one calling for the imposition of any penalty upon the defendant for interposing a demurrer to the plaintiff's-declaration.

The uniform practice of the court under said rule 36 has been not to allow a counsel fee as matter of course, but only in those cases where the demurrer was either clearly frivolous or was evidently interposed for delay.

The motion is denied.