6osv c.± QJonwll Haw ii>ri}nnl IGibrary Cornell University Library KFN6051.P26 A treatise on the law of costs as settle 3 1924 022 883 700 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022883700 A TREATISE ON THK LAW OF COSTS AS SETTLED LN THE STATE OF NEW YORK AND ADAPTED TO THE CODE OP THE STATE OE OHIO By F. M. PARSONS OF THE CAYCGA BAB —7 %» NEW YORK JAMES COCKCROFT & COMPANY 1876 fay-oiLo Copyright, Frank M. Parsons, 1876. PREFACE. That a classified and annotated collection of tin* Statutes and adjudications which determine our law of Costs and Fees would be convenient, occurred to the author very long ago ; and it was with a view merely of preserving for his own use the results of his investigations in this direction, that he collected much of the matter which is the ground-work of this volume. It having been suggested that the subject was one of such general interest to the profession as to invite a treatise, the author, for the purposes of publication, has, with great care, entirely revised his original notes, and made extensive additions thereto. It has been his aim to consider every branch of the subject in all its aspects, and to leave no statement unsupported by the authorities. The statutory part of this volume, which has been 'brought down to October, 1875, has, for the most part, been taken from Fay' s Digest, a work of vast labor and undoubted merit, whose uniform simplicity of arrangement and accurate text can not fail to secure for it words of praise wherever it is consulted. An appendix has been added, containing the items iv PREFACE. of Costs and Disbursements, with references to the law allowing each item. In the notes, under the proper headings, will be found the provisions of the Code of the State of Ohio relating to Costs and Fees. As in many instances they closely resemble the sections of our own Code in this particular, the profession of that State can herein find well-considered precedents and judicial construction' on various points in connection with this subject which in their own State as yet remains unsettled. CONTENTS. PART I. CHAPTER PAGE I. Costs parties, general 1 II. ' when of course to plaintiff 14 HI. defendant 25 IV. to either party 29 V. Amount of costs allowed 39 VI. Additional allowance 5» VII. How computed 66- VIII. Costs on offer to compromise 79 IX. discontinuance 84 X. review of decisions of inferior courts on special proceedings 96. XI. motions 98 XH. granting a favor 10> XIII. actions by the people Ill XIV. against the assignee of a cause of action after suit 113 XV. Costs against infant plaintiff 118- XVI. in actions by and against executors, &c 120 XVII. on foreclosure of mortgage by advertisement 140 XVIII. in supplementary proceedings 144 XIX. county court 14D XX. surrogate's court 15$ XXI. justices courts 162 XXII. criminal cases 16ft XXIII. miscellaneous 168 XXIV. Security for costs 174 XXV. Taxation of costs 18ft •vi CONTENTS. PART n. •CHAPTER PAGE I. Concerning fees 208 II. Attorney and counsel fees 211 III. Fees of officers in civil cases 218 IV. criminal cases 250 V. town officers 260 THE LAW OF COSTS. PART I. CHAPTER I. THE EIGHT TO COSTS. § 1. The right to costs is created by statute and wholly depends upon it, and does not become fixed until the termination of the suit, (a) At common law neither party recovered costs against the other, (b) But, before the enactment of any statute on the sub- ject, although costs were not given to either party, yet if the plain tiff did not prevail in his action, he was amerced for his false claim, which sum went to the king, and if he did prevail, then the defendant was likewise amerced for his unjust detention of the plain- tiff's right ; but no indemnity was allowed to either party for the costs to which he had been subjected, (c) This amercement to the king was at that time the only sum required of either party in the way of costs. The first statute which gave costs eo nomine to a party (a) Supervisors of Onondaga v. Briggs, 3 Denio, 174. (6) Same. (c) 3 Blackstone's 0. 399. 1 * THE LAW OF COSTS. in an action was the statute of Gloucester ; (d) by the provisions thereof, costs were only given to the plain- tiff in all cases where he recovered damages. But no costs were allowed to the defendant, by statute, until the statute of 23 Hen. 8, c. 15, (e) which gave the defendant, in case he succeeded in the cause, the same costs to which the plaintiff would have been entitled upon his recovery. (/) This statute was subsequent to the statute of Gloucester. Afterward it was enacted that the king should neither receive nor pay costs ; (#) consequently the common-law rule was abrogated, and no amercement was afterward required of either party, except under the provisions of these statutes. After the statute of Gloucester, other statutes followed, in- cluding those already mentioned, relating to and affect- ing the same subject, all of which were substantially adopted at an early period in the state of New York ; Qi) and in a somewhat modified condition, they were subsequently incorporated in the Revised Statutes of New York, (i) Under these various statutes costs consisted principally of the fees allowed to attorneys and counsel for their services in the management of the proceedings, and also included the fees paid to the other officers of the court, fees of witnesses, and such other disbursements as became necessary in the progress (rf) BEdw. 1, c. 1, §2. (e) 4 Jac. 1, c. 3. (/) 3 Black, c. 399. (j7) 24 Hen. 8, o. 8. (A) SneL. 1813, cb. 96, p. 343. (i) Sec i 11 S. 612, 635. THE RIGHT TO COSTS. 3 of the action. (/) The costs, therefore, given under the provisions of the statute prior to the adoption of the Code in 1848, belonged to the attorney ; thus it was a rule, that a party not an attorney, conducting a suit or defense in person, was not entitled to costs, (h) although he might recover his disbursements. (Z) The costs in chancery were not dependent upon any statu- tory provision, but rested almost wholly in the sound discretion of the court, which was based upon all the circumstances in the case, (m) § 2. By the provisions of the Code of Procedure tbe old fee bill was abolished, i. e., " all statutes establish- ing or regulating the costs or fees of attorneys, solici- tors, and counsel in civil actions, and certain sums were allowed to the prevailing party as an indemnity for his expenses in the action, which are termed costs. ' (n) Consequently there are no costs to an attorney or counsel, but simply to the party. § 3. It seems that the giving of costs to the pre- vailing party in an action is founded upon the prin- ciple of natural justice ; that if a person commit an injury or resist an honest claim, or seek to enforce an unjust or false demand, it is not exceeding justice that he should be compelled to make compensation not only for the principal injury, but also as an indemnity to th .■ injured party for the costs and expenses necessarily in- (J) 1 Bur. P. 271. (h) Stewart v. N. Y. C. P., 10 Wend. 597. (I) Eastman d. Stuben, C. P., 12 Wend. 20. (m) Eastburn v. Kirk, 2 Johns. Ch. 317. (n) Code. § 303. 4 THE LAW OF COSTS. curred in obtaining redress in the proper court, or m defending an unjust or fraudulent claim. This is the principle recognized and thus briefly stated by the fram- ers of the Code in their report to the legislature. " The losing party ought as a general rule to pay the expenses of the litigation ; he has caused a loss to his adversary unjustly, and should indemnify him for it. The debtor who refuses to pay ought to make his creditor whole." (o) § 4. The Code provisions (p) have made a com- plete and radical change, and have established an en- tirely new system in the law of costs. Costs under the Code are composed — 1. Of the sums allowed in lieu of attorneys' fees. 2. Of the fees of officers. 3. Disbursements, composed of postage, witness fees, printing bills, &c. (. Zeller, 52 Barb. 147 ; Stillwell v. Staples, 5 Duer, 691 ; S. C, 3 Abb. 365. WHEN ALLOWED. 21 § 18. But in a case where the plaintiff claimed and established his demands to be one hundred and fifty dollars and thirty-six cents, and the defendant claimed payments to the amount of one hundred and five dollars, and a deduction for the value of certain timber bought of twenty-seven dollars and six cents, thus making the demands of both parties only two hundred and eighty- two dollars and forty-two cents, held, no costs to plaintiff. (J) § 19. There appears to be a distinction made in ascertaining the amount in litigation which tends to decide whether or not a justice of the peace has juris- diction, by the manner in which the plaintiff's demand is reduced, whether by offset or payments. In an ex parte matter in the New York Common Pleas, (c) the plaintiff's account as presented was for five hundred and twenty-one dollars and sixty-eight cents, upon which he had credited the defendant with the pay- ment of money, &c, to the amount of four hundred and thirty-four dollars and sixty-eight cents, and sued for the balance, eighty-seven dollars. It was tried before referees, who reported less than fifty dollars for plaintiff. The court said, " The accounts as exhibited exceeded four hundred dollars, but payments were shown on each side, and as far forth as payments were made the account or demand of each party was extin- guished." All the plaintiff demanded was eighty-seven dollars, being the balance due. There was no offset (b) Mattesono. Bloomfield, 10 Wend. 555. (c) Mills v. New York Common Pleas, 10 Wend. 557. 22 THE LAW OF COSTS. to the account, as stated by the plaintiff. He further said, " The payments mutually made, can not be con- sidered as debts, demands or accounts within the mean- ing of the statute, therefore the plaintiff can not have costs," the claim having been reduced by payments, but otherwise if reduced by set-offs, (d) Where the total amount contested on the trial exceeds four hundred dollars, a recovery by the plaintiff of any amount entitles him to costs. § 20. And where a demand is admitted on the trial it was held to be the same as if contested and proven, (e) § 21. Where an action for libel or slander is com- menced, in which the plaintiff has damages less than fifty dollars ; Held, that he could not recover the fees of officers and disbursements, together with the amount of costs equal to the verdict ; (/) but he is simply held to the amount of the recovery, and no more costs are allowed in any form or manner than the amount of the recovery, and the same must necessarily apply under § 304 of the Code, in actions for assault and battery, false imprisonment, malicious prosecution, criminal conversation, and seduction. § 22. These words are used in the same sense in both § 304, sub-division 4, and § 308 of the Code, and do not include actions in which relief other than (d) Id. (e) Glackin v. Zeller, 52 Barb. 147. (/) Wheeler v. Westgate, 4 How. 269; Belding o. Conklin, Id. 196: S. C, 2 Code R. 130, overruling Newton v. Sweet, 4 How. 134. WHEN ALLOWED. 23 a judgment for money, must be granted to enable a plaintiff to maintain tbe action ; these words as here used mean an action in which the plaintiff merely seeks to recover a judgment for a sum named. (#) § 23. In an equitable action commenced against an insolvent partner, and the representative of his deceased co-partner, if the plaintiff prevails he is en- titled to costs, and may also have an extra allowance. The question does not come within 2 R. S. 90, § 41 ; but is an equitable action, and §§ 304, 317 of the Code govern. (A) § 24. An action was commenced against a railroad company under laws of 1850, ch. 140, § 39 ; and laws of 1854, ch. 282 ; the court imposed a fine of sixty dollars, the jury having found the company guilty of ■eight separate offenses. This was held to be a civil action for the recovery of money, and the plaintiff had costs. (1) § 25. "Where the plaintiff obtains several judg- ments against separate defendants in the same action, he is entitled to a separate bill of costs against each defendant so defeated ; but where the plaintiff recovers but one judgment, however numerous may be the de- fendants, or the defenses or issues, he is entitled to but one bill of costs, (j ) (g) Buchanan v. Morrell, 13 How. 296; S.' C, 6 Duer, 658. (A) York v. Peck, 9 How. 201. (i) People v. New York Central R. R. Co., 28 Barb. 284. (j) Buell v. Gay, 13 How. 81; Lathamar v. Bliss, Id. 416; S. C, 6 Duer, 661; Philipps v. Van Cott, 15 How. 110; Hall v. Luids, 8 Abb. 341 ; 4 Sand. 671, overruled in 13 How. 31. 24 THE LAW OF COSTS. § 26. Where one of several defendants jointly liable, fails to make answer to the complaint, and the- others defend the action, the defendant who ha& suffered a default is held jointly liable with them for all the costs recovered by the plaintiff. (7c) (*) Warner «. Ford, 17 How. 54. WHEN ALLOWED. 25 CHAPTER m. WHEN ALLOWED TO DEFENDANT OF COURSE. (Z) § 1. "Costs shall be allowed to the defendant of course in the actions mentioned in the last section (Code, § 304), unless the plaintiff be entitled to costs therein." (m) § 2. No other actions are included in the above section but those mentioned in § 304 of the Code ; thus it has no application to the foreclosure of mortgages, as is pretty clearly indicated by § 308 of the Code, (n) § 3. Thus in an action for the foreclosure of a mortgage, the plaintiff may discontinue the action upon receiving the amount of his claim, and the costs of the action, without costs to the defendants, where junior incumbrancers, who were defendants in the action, interposed defenses therein simply because they were made defendants ; and the same was held with reference to the mortgagor, who was personally liable for the debt, and had conveyed the mortgaged premises subject to its payment. But the case would be differ- ent if the junior incumbrancers had been subjected to (t) See Ohio Code, § 253; the meaning is the same but differently worded. (m) Code, § 305. (n) Gallager v. Egan, 3 Sand. 742. 26 THE LAW OF COSTS. any costs which were necessary to protect their rights ; then it is proper that they should be paid be- fore the suit is discontinued, (o) § 4. It was laid down as a rule by Bosworth, C. J., (p) that without an exception, whenever a plain- tiff recovers property unjustly detained, he is entitled, as a matter of course, and as a strict legal right, to recover at least nominal damages. But whether he recovers six cents damages, and only six cents costs, or recovers no damages and collects no costs, is a matter of only twelve cents consequence, so long as he can not in any event be compelled to pay costs." § 5. And in a case where the plaintiff recovers nominal damages only, and fails to enter judgment thereon, the defendant should move for leave to enter judgment for his costs. He can not enter judgment in such an action without leave from the court ; if he does, it will be vacated, (g) § 6. Prima facie, the defendants are entitled to costs on the dismissal of an action ; if the plaintiff desires to escape, he must bring himself within some of the exceptions to the general rule, (r) § 7. Where the complaint was dismissed for want of jurisdiction, upon the ground that the plaintiff was a non-resident, this fact not having been brought (o) Merchants' Insurance Co. v. Marvin, 1 Paige, 557 ; Gallagher ». Bgan, 2 Sandf. 743 (p) Van Scheming v. Bucnannn, 23 How. 164; S. (.'., 14 Abb. 185; 11 A b. 4C8, affirming S. 0., 23 How. 44. (j) Rummull v. Griffin, 8 Abb. 39. (r) Bauta v. Marcellus, 2 Barb. 370. WHEN ALLOWED. 27 to notice until upon the trial, the court held, that no order was necessary, and the defendant might have judgment for costs as of course, (s) § 8. Where two causes of action are set forth in the complaint, one of which was sustained, and the other dismissed, the defendant was not entitled to costs for his successful defense to one of the causes of action, (t) § 9. In an action of tort against two defendants for the conversion of a promissory note, both defend- ants appeared by the same attorney and put in a sin- gle answer, but each defendant answering severally therein, one of the defendants succeeded in his defense, and the plain tiff prevailed against the other defendant, the court held that the successful defendant was en- titled to costs as of course, (u) This action was de- cided in the Court of Appeals under the Code of 1849, which section of the Code was amended in 1851, under which amendment several cases have been decided not allowing the defendant costs of course, but leaving it discretionary with the court. («) § 10. An action in the Supreme Court, for the con- version of personal property, was brought, in which the plaintiff recovered one dollar damages, and the court held, that the action was one which could be («) McMahon «. Mutual Benefit Life Insurance Co., 3 Bosw. 644; S. C, 8 Abb. 297 ; Harnott v. New Jersey B. B. & Transportation Co., 1 D ey, 377, reversing S. C, 6 Abb. 284. (Q Watson v. Gardiner, 5 N. Y. 67 i («) Decker v. Gardiner, 8 N. Y. 29; Corbett v. Ward, 3 Bosw, 632. (v) fee post, , § i. 28 THE LAW OF COSTS. tried in a justice's court, and the plaintiff was not en- titled to costs, as it is not at all dependent upon the amount claimed in the complaint, but upon the amount of the recovery, (w) § 11. It has been decided in a case where a plain- tiff recovered less than fifty dollars, but at the same time a counterclaim was extinguished by him which exceeds that amount, that neither party was entitled to costs, (a) In this case it was also held that both parties were plaintiff and defendant, as one had a claim and the other a counterclaim, and that each one was the prevailing party, as each had established his claim, and the costs of one shall offset the costs of the other, (y) § 12. Where one of several defendants is an infant, the plaintiff may, on a proper application to the court, discontinue as to such infant without costs, if it is done before trial ; but if the infant is obliged to establish his infancy, he shall have costs.- (z) And this seems to be the rule generally, " that where the defendants have not been put to any cost, or caused any injury or hardship in the matter, the plaintiff may discontinue without costs." This is certainly sustaining the intent of the law "to, as far as possible, with justice and equity, hinder litigation." («>) Seaman v. Glegner, 5 N. Y. S. C. R. 273. (x) Kalt v. Leignot, 3 Abb. 190; S. C, 12 How. 535, affirming 8. C, 3 Abb. 33. (y) 12 How. 535. (e) Cuyler v. Coats, 10 How. 141. WHEN ALLOWED. 29 CHAPTER IV. WHEN EITHER PARTY ALLOWED COSTS, (a) § 1. The following is the Code provision relating to costs under this chapter : " In other actions, (6) costs may be allowed or not in the discretion of the court. " In all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them. In the following cases the costs of an appeal shall be in the discretion of the court. " 1. Where a new trial shall be ordered : (a) The provision of the Ohio Code, § 550, is that "unless other- wise provided by statute, the costs of motions, continuances, amend- ments, and the like, shall be taxed and paid as the court in its discre- tion may direct." And § 142 of the Ohio Code makes the following provision concerning supplemental pleadings : " Either party may be allowed on notice, and on such terms, as to costs, as the court may pre- scribe, to file a supplemental petition, answer, or reply, alleging facts, material to the case, occurring after the former petition, answer, or reply." And with reference to variance and amendments, § 132 pro vides that, "when the variance is not material, as provided in the last section (§ 131), the court may direct the fact to be found according to the evidence, and may order an immediate amendment, without costs. See amendment. (4) This has reference to all other actions not enumerated herein- before. 3o THE LAW OF COSTS. "2. Where a judgment shall be affirmed in part and reversed in part." (c) § 2. The words " other actions," contained in the above section (Code, 306), refer to other causes of action than those enumerated in § 304 of the Code, and there being no other except equity actions, it has reference only to those, (d) § 3. "Where a question is new and unsettled, and the irregularity complained of is merely technical, costs will not be allowed to either party ; (e) the principle in such cases seems to be that the irregularity must not injure or delay the adverse party; (/) if it does, costs will be allowed. § 4. By § 306 of the Code, as amended in 1851, the rule was somewhat changed by extending the pro- vision to common law as well as equitable actions. This amendment could have had no other object than to make the conditions upon which one or more of several defendants might recover costs against a plain- tiff who should recover against other defendants, appli- cable to all actions. These conditions are, first, that the successful defendant be not united in interest with those against whom the plaintiff recovers ; secondly, th at they make separate defenses by separate answers ; and thirdly, that the court award costs to the successful defendant. This section of the Code, as amended, (c) Code § 306. (d) Hinds v. Myers, 4 How. 357 ; S. C, 3 Code R. 48; Gallagher v. Egan, 2 Sandf. 743. (e) Hoffman v. Skennier, 5 Paige, 526. (,/") Kane o. Van Vranken, 5 Paige, 62 WHEN ALLOWED. 31 must be regarded as regulating the whole subject of the recovery of costs by one or more of several defend- ants who obtains judgment in his favor, and confining the right to such recovery to cases expressly mentioned, to the exclusion of all others, the defense or answer must be made separate, (g) § 5. It is well settled that a party will not be per- mitted to conduct a defense or prosecution in an action in an oppressive manner, when the court has an oppor- tunity or means to interpose its authority, and prevent injustice or unnecessary hardship ; nor permit the party to realize the unjust fruits of proceedings taken in a cause not for the purpose of protecting any right or enforcing the same, but solely with a design to cause an adversary unnecessary and unreasonable costs, and if a severence of a defense in an action is made for such a purpose, i.e., if it were a mere unnecessary and oppressive device to extract extra costs from an opponent, it would be such a case as the court could and would interfere. (Ji) In such cases where costs are discretionary, the court will exercise its most sound discretion ; and but one bill of costs will be allowed, notwithstanding all the defendants succeed in the case. This is most evidently the just and equitable dispo- sition of such matters. § 6. In an action against seven insurance com- (g) Allis v. Wheeler, 56 N. Y. 50, overruling Gorbett v. Ward, 3 Bosw. 632; and Ziuk 11. Atterburg, 18 How. 108. (h) Bridgeport Fire and Marine Insurance Co. v. Wilson, 20 How. 512. 32 THE LAW OF COSTS. panies which was submitted to arbitrators, each com- pany appearing by their own separate attorney and put in separate demurrers, all of which were sustained, but one award was made by the arbitrators ; an appeal was taken and judgment rendered in favor of the defend- ants, without any provision for costs ; the defendants claimed that each were entitled to full costs. In the opinion of the court, Mitchell, J., says : (i) " The fact that the defendants are incorporated companies and have each their own attorney, give them no greater rights than private individuals have. The costs being in this case in the discretion of the court, the regula- tion of them upon equitable principles is also in its discretion." The defendants in this case were not allowed full costs, as there was nothing said in the order below respecting costs. § 7. "Where several defendants employed the same attorney in an action brought against them for assault and battery, and some of the defendants had judgment in their favor, — Held, that the prevailing defendants were entitled to costs. (/) § 8. In an action against several defendants alleged to be jointly liable on contract, two of the defendants appeared by one attorney, and the other defendant by another attorney, who was clerk in the office of the former attorney, the defendants succeeded, and there was allowed to them but one bill of costs. (Jc) (i) Wood v. Brooklyn Insurance Co., 10 How. 154. (j) Stone v. Duffy, 3 Sandf. 761 ; S. C, 1 Code R. ST. S. 129; Marks «. Bard, 1 Abb. 62. (k) Perry v. Livingston, 6 How. 404. WHEN ALLOWED. 33 § 9. Where in an action against several defendants, part of them allow judgment to be taken against them by default, and the remainder succeed in the defense, those who are successful are entitled to costs. (T) The prevailing defendant is entitled to costs ; although he nut in a joint answer with other defendants who were defeated, (m) he is as much a prevailing party as if he had defended alone. § 10. Where several defendants appear by the same attorney, and answer jointly, and the issue is joined and the case noticed for trial, part of the defendants make an offer under § 385 of the Code, which is ac- cepted by the plaintiff, the plaintiff can in such a case discontinue as against the remaining defendants, with- out paying costs to them. («) § 11. In actions where there are several defend- ants, and by its nature they are required to make separate defenses, and to establish distinct and separ- ate rights, and obtain against the plaintiff distinct and separate judgments, or awards of damages, they are entitled to separate bills of costs. (0) The old rule of chancery in this respect was not abolished by the Code, which is " that where the same solicitor appears for different defendants, and separate answers are put in, or other proceedings had by or for the defendants sep- arately, the taxing officer should consider whether (l) Comstock v. Bayard, 3 Sandf. 705. («i) Stone v. Dufiy, 1 Code R. N. S. 129; S. C, 3 Sandf. 761. (n) Stafford v. Onderdonk, 8 Barb. 99; S. C, 2 Code R. 115. {0) New York & New Haven R. R. Co. ». Schuyler, 29 How. 89. 3 34 THE LAW OF COSTS. such separate answers or other separate proceedings were necessary or proper, and if in his opinion any part of the costs occasioned thereby, was unnecessarily or improperly incurred, the same shall be disal- lowed." (p) § 12. With reference to the granting of new trials, on the ground that the verdict is against the evidence, it seems to be the settled rule, that it can only be granted on the payment of costs ; (q) in such cases the order should not be " with costs to abide the event," but upon the "payment of costs." But this rule does not apply to setting aside the reports of referees as against the weight of evidence, and ordering a new trial; in such cases the costs are discretionary with the court, and the costs may be ordered to abide the event, (r) and this is the case where an action is tried before the court without a jury. § 13. When, upon a motion for a new trial, costs are ordered to be paid by the applicant, the costs of the former trial, and of the motion for a new trial, or of such proceedings as are vacated for the purpose of a new trial, are included, (s) § 14. In all cases before a referee, to hear, try, and determine, his authority to grant or refuse costs is co- equal with that of the court in whose stead he acts ; (p) Chancery Rule, 130; Wendell v. Lewis, 8 Paige, 622. (g) Bailey ». Park, 12 Hun. S. 0. R. 41 ; Ward ». Woodburn, 27 Barb. 346 ; North e. Sergeant, 14 Abb. 226 ; 22 How. 480. (r) Wentworth v. Candee, 17 How. 405; Smith, v. Schenck, 18 Barb. 344. (s) Ellsworth v. Gooding, 8 How. 1. WHEN ALLOWED. 35 they should be disposed of by him, except in cases noticed below, (i) and the court will not interfere with such awarding or disallowance of costs, unless it be upon some manifest error, (u) But in actions pros- ecuted or defended by executors or administrators, it seems that referees have no power to award costs, or in any way decide the question thereof, (v) A referee also has no power to grant an extra allowance, in the way of costs, as this appears to be a matter specially designed for the court to pass upon, (w) The applica- tion must be made at special term, and the referee should furnish a certificate to the court showing what has been done on the trial before him. (x) § 15. Where upon an appeal in an equity case from an order granting a new trial, and the order is affirmed by the Court of Appeals, and judgment absolute is ordered against the appellant, without costs to either party, Rapallo, J., said : " All costs which previously were dependent upon the event of the action were dis- posed of by this final result." (y) § 16. In an action brought to recover several pen- alties for violations of the pilot laws, the defendant, before answering, made an offer of judgment under § 385 of the Code, for the amount of one penalty, with interest and costs to the time of offer. The offer was (t) Pratt v. Stiles, 17 How. 211. (u) Luddington v. Taft, 10 Barb. 449. , 0) Fort «. Gooding, 9 Barb. 388. (w) S. C. Rule, 56 ; Howe v. Muir, 4 How. 252. (x) Osborne v. Betts, 8 How. 31. {y) Patten v. Hill, 50 N. Y. R. 591. 36 THE LAW OF COSTS. refused, defendant answered, and the case was tried at the circuit. Plaintiff recovered the amount of the pen- alties, upon which judgment was entered, with costs. Defendants appealed to the general term, and judgment was affirmed with costs, and an appeal was taken to the Court of Appeals, in which judgment was " reversed except as to one penalty, with costs included in the judgment, without costs to either party in the Court of Appeals," and upon motion in the Court of Appeals the judgment was modified by striking out the words, " with costs included in the judgment." The defendant taxed a bill of costs for the circuit and general terms. From this taxation the plaintiffs appealed to the special term, which ordered a retaxation of costs, and that defendant be allowed costs from the offer of judg- ment to and including the trial, and that said costs be set off against the penalty recovered by plaintiffs. De- fendants appealed therefrom to the general term, and special term order was affirmed, with costs ; defendants then appealed to the Court of Appeals, where the orders of the general and special terms were reversed, with costs and judgment ordered for defendants, " for their costs,- subsequent to the offer including the appeal to general term, with costs of the motion and of the appeal from the order of the special to the general term, and from the latter to the Court of Appeals." The clerk taxed a full bill of costs, including those of the Court of Appeals, on appeal from the judgment. Plaintiff appealed to the special term, where the taxa- tion was affirmed, and the plaintiffs appealed to the gen- WHEN ALLOWED. 37 eral term, upon the question whether or not defendants are entitled to costs in the Court of Appeals on appeal from the judgment. It was held that the case came clearly under § 306 of the Code, and the granting or withholding of costs was discretionary with the court, (z) § 17. Where a party refuses to make partition by deed, it is not proper in an action of partition to charge the whole costs upon either party, but each must share their proportion thereof, (a) § 18. An unsuccessful claimant to surplus money, should pay extra costs to those who are rightfully en- titled thereto, where such parties have been subjected to costs and expenses by reason of such unjust claim, and the amount of such extra costs is to be determined by some proper officer, upon the usual notice of taxa- tion. (6) § 19. In an action of interpleader, where the com- plainant is obliged to resort to such a suit in conse- quence of the conflicthig claim of the defendants, he should be allowed costs. But costs in such cases rest in the discretion of the court, and are not a matter of course, and where an action of interpleader is unneces- sarily brought, the plaintiff will not be allowed his costs out of the fund, (c) § 20. Where an action of ejectment is brought by ihe vendor to recover the possession of premises, for a («) Commissioners of Pilots v. Spofford, 5 N. T. S. C. R. 357. (a) McGowan 0. Morrow, 3 Code R. 9. (b) Lawton v. Sagar, 11 Barb. 349. (c) Bedell v. Hoffman, 2 Paige, 199. 38 THE LAW OF COSTS. default in the payment of the purchase money, it being a legal action as defined by the Code, the defendant, if he succeeds, is entitled to costs, although in an equit- able action for the same relief, he may be charged with costs, (d) (d) Cythe ®. La Fontain, 51 Barb. 186. AMOUNT OF COSTS. 39 CHAPTER V. AMOUNT OP COSTS. § 1. The amount of costs allowed are pretty fully- stated in the following section of the Code : " "When allowed, costs shall be as follows : " 1 . To the plaintiff for all proceedings before notice of trial, in actions where judgment for failure to an- swer can be taken without application to the court, fifteen dollars ; where judgment can only be taken on such application, twenty-five dollars ; for all proceed- ings after notice of and before trial, fifteen dollars ; for each additional defendant served with process, not exceeding ten, two dollars ; and for every necessary defendant in excess of that number served with process, one dollar. "2. To the defendant for all proceedings before notice of trial, ten dollars ; and for all proceedings after notice and before trial, fifteen dollars. " 3. To either party, where a new trial shall be had, for all proceedings after the granting of and before such new trial, twenty-five dollars ; for attending upon and taking the deposition of a witness conditionally, or attending to perpetuate his testimony, ten dollars ; for drawing interrogatories to annex to a commission for the taking of testimony, ten dollars ; for attending 40 THE LAW OF COSTS. the examination of a party before trial, ten dollars ; for making and serving a case, or case containing exceptions, twenty dollars ; except that, where the case shall necessarily contain more than fifty folios, there shall be allowed ten dollars, in addition thereto ; and for making and serving amendments thereto, ten dollars. To the plaintiff, for the appointment of a guardian of an infant defendant, ten dollars ; but no more than ten dollars shall be allowed for the appoint- ment of guardians in any one action. To the plaintiff for procuring an order of injunction, ten dollars. "4. To either party for the trial of an issue of law, twenty dollars ; for every trial of an issue of fact, thirty dollars - ; and where the trial shall necessarily occupy more than two days, ten dollars in addition thereto. " 5 To either party on appeal, except to the Court of Appeals, and except in appeals in cases mentioned in subdivisions 1, 3, 4, and 5, of § 349 of the Code, and except in cases mentioned in the second paragraph of § 344 of the Code, before argument, twenty dollars; for argument, forty dollars ; and the same costs shall be allowed to either party before argument, and for argument on application for judgment upon special verdict, or upon verdict subject to the opinion of the court, or for a new trial on a case made and in cases where exceptions are ordered to be heard in the first instance at a general term, under the pro- visions of § 265 of the Code. " 6. To either party, on appeal to the Court of AMOUNT OF COSTS. 4r Appeals, before argument, thirty dollars; for argument, sixty dollars ; and when a judgment is affirmed, the court may, in its discretion, also award damages for the delay, not exceeding ten per cent, on the amount of the judgment, for preparing and serving a case, or case containing exceptions ; in appeals to the Court of Appeals, twenty dollars. " 7. To either party, for every circuit or term not exceeding five circuits, and five special and five gen- eral terms, at which the cause is necessarily on the calandar, and is not tried, or is postponed by order of the court, ten dollars ; and for every term not exceed- ing ten, excluding the term at which the cause is ar- gued in the Court of Appeals, ten dollars ; but in an action hereafter brought to recover dower, before ad- measurement of real property aliened by the husband, the plaintiff shall not recover costs unless it appear that the dower was demanded before the commence- ment of the action, and was referred. The same costs shall be allowed to the plaintiff in proceedings under chapter two, title twelve, of the second part of the Code (§§ 375 to 381), as upon the commence- ment of an action." (e) § 2. It is of no consequence whether an answer is put in or not, to entitle the plaintiff to the allowance for all proceedings before notice of trial; the amount depends upon the nature of the action. (/) The rule for the amount of allowance pertaining to this («) Code, § 307. (/) Candee v. Ogilvie, 5 Duer. 658. 42 THE LAW OF COSTS. item, is not whether the pleadings render such appli- cation necessary, but what is required from the nature of the action. If the action makes an appli- cation to the court necessary, the item of twenty-five dollars is then allowed ; if not, fifteen dollars only can be taxed, {g) § 3. The court has no discretion as to the allow- ance of costs ; where there is a fee bill provided by statute for the identical case in question, the statute should be strictly construed, and no more or less should be allowed as costs than is provided for by such statute. (K) § 4. The two dollars for each additional defen- dant served with process, should only be allowed for defendants necessarily made parties to the suit, and a party does not lose the right to object to an im- proper charge of such item by not demurring there- to. (%) § 5. Trustees of a corporation are not necessary parties to be included in such item of costs, unless they have some vested right, or legal or equitable estate therein. And the objection that some of the parties named as defendants are not necessary, may be taken at any time ; if not taken until on the adjustment, it will be sufficient. ( f) § 6. For all proceedings after notice of trial, it (gr) Pardee v. Schenck, 11 How. 500, overruling Lawrence v. Davis, 7 Id. 354. (h) Downiug ii. Marshall, 37 N. Y. 380. (*) Case e. Price, 17 How. 348 ; S. C, 9 Abb. 111. ( j) Case v. Price. 17 How. 348. AMOUNT OF COSTS. 43 makes no change to this item of allowance, that the case has been noticed for trial more than once, nor that it is tried several times ; it can be only once charged, (7c) and the notice of trial must be actually served before this item is chargeable, notwithstand- ing other proceedings may have been taken. (I) Where a defendant has allowed a default, and the case had not been noticed, this item is not taxa- ble, (m) nor in a case' where there is no issue, as no notice of trial could properly be given; (n) but in such a case, where the judgment was vacated and the defendant let in to defend, upon condition that he pay " all the costs of the hearing, and the proceedings subsequent thereto," the fifteen dollars is to be regarded as a part of the costs of the hearing. This allowance is undoubtedly intended for services con- sequent upon and preliminary to that hearing, and should be a part of the costs thereof, (o) § 7. The evident meaning of the word " proceed- ing" is, any precautionary, judicious, or necessary step which has been taken in the cause, by which the party has been caused expense or trouble, e. g., where a defendant has retained an attorney, and a notice thereof has been sent to the plaintiff's attorney, in an action under the Code, the defendant is entitled to (7c) Perry 0. Livingstone, 6 How. 404 ; Jackson v. McBurney, Id. 408 ; Sipperly v. Warner, 9 Id. 332 ; Jackett v. Judd, 18 Id. 385. (I) Morrison 11. Ide, 4 How. 304. (to) Slyter v. Smith, 2 Bosw. 673. (») Pardee a. Schenck, 11 How. 500. (0) Buckingham v. Miner, 18 How. 287. 44 ■ THE LAW OF COSTS. costs, (p) and the plaintiff can not discontinue until they are paid, (q) And in a case of dismissal of the complaint, the defendant can only have costs of pro- ceedings before notice of trial, and the costs of the motion to dismiss, if it be dismissed before notice of trial, for want of prosecution, (r) § 8. In a case where the verdict is set aside on payment of costs of the circuit, the amount given to defendant for proceedings after notice of trial, by § 307 of the Code, is allowed, (s) § 9. Nothing should be allowed a party for the ex- penses of serving subpoenas, in taxing a bill of costs, as it is a service that a party can perform, and it is- one that he should do at his own expense, (i) The reason for disallowing this item, very evidently, is the injury and hardship it would cause honest litigants, when in the hands of tricksters and those whose only aim is to make a bill of costs for the opposite party. How often do we see this illustrated. Even with the allowance of witness fees, witnesses are often subpoe- naed who know no more of the matter at issue, or who are intended to be used upon the trial, than if they were the smallest infant. Allow such a person the expense of subpoenaing witnesses, and in many cases the most severe hardships would be caused. (p) Posters. Brown, 1 Code-It. N. S. 236. (q) Robinson v. Taylor, 12 Wend. 191 ; White v. Smith, 4 Hill, 167. 0) Tillspaugb v. Dick, 8 How. 33. (s) Mitchel v. Westervelt, 6 How. 265. (t) Burnett v. West fa 11, 15 ITow 430. AMOUNT OF COSTS. 45 § 10. No allowance of costs can be made for pro- ceedings before a new trial unless a new trial, has been granted ; (u) but when a new trial is granted, there seems to be no limit to the number of terms for which costs may be allowed for the proceedings before trial ; but no provision is made for a second trial fee, although the first trial is a nullity, (y) And the court, in view ■of this fact, usually give an extra allowance where the cause is tried more than once, as a difficult and extraordinary one. § 307, subdivision 3, of the Code does not apply where a new trial has not been in- tended. § 11. A motion for a new trial, before judgment, on a, case and exceptions, can not be regarded as a trial ; it is denominated as a motion by § 265 of the Code, and is simply an application for a new trial, not the trial itself, (w) and motion costs should only be awarded in such a case. § 12. In distinguishing between a motion and a trial to ascertain the amount of costs to be allowed, it is well to keep the definition of the two in the mind, as laid down by the Code. A motion is "an application for an order," (x) and "every direction of a court or judge made or entered in writing, and (b) Hamilton 9. Butler, 30 How. 36 ; 8. C, 19 Abb. 446; 4 Rob. ■«34. (t>) Id. (w) Moore ». Cockrof t, 9 How. 479. The Potsdam and Watertown E. B. Co. ». Jacobs, 10 How. 453, disapproving Ellsworth 9. Gooding, -8 Id. 1. (x) Code, § 401. 46 THE LAW OF COSTS. not included in a judgment, is denominated an order." (jj) " A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact," (z) and an order is the decision of a motion, and a judgment is the decision of a trial. (. Ford, 14 Barb. 577. (n) Wiggins v. Arkenburgh, 4 Sandf. 688. (a) Callombo. Caldwell, 5 How. 336 ; S. C, 1 Code R., N. S. 41. (p) Mygatt «. Wilcox, 35 How. 410. (?) Scudder v. Gori, 28 How. 155: S. C, 18 Abb. 207, 3 Rob. 629; Jackett v. Judd, ]8 How. 385, criticised. 4 So THE LAW OF COSTS. Court from the County Court, the successful party- shall have full costs, under subdivision 5, § 307 of the Code, notwithstanding the appeal is brought from an order and not from a judgment, (r) § 23. In actions where the plaintiff obtains a verdict at the circuit for fifty dollars or more, and the defendant makes and serves a case for a new trial, the plaintiff is entitled to the following costs : for making and serving amendments to case, ten dollars ; on application for a new trial on a case made before argument, twenty dollars ; and for argument, forty dollars, (s) § 24. The provisions of the Code which relate to costs on appeal, are equally as applicable to appeals in special proceedings, as to those taken in civil actions, strictly so called, (f) § 25. In a case appealed to general term from an order at special term, overruling a demurrer, and granting leave to defendant to answer on payment of costs of demurrer, the general term reversed the order of special term, sustained the demurrer, and gave the plaintiff leave to amend upon payment of the costs of the demurrer, and ten dollars costs of the appeal, and held, that a motion to allow defendant full costs on appeal should be denied, (m) Boardman, J., gave as a rule governing costs in cases of appeals the following : (r) Gray ». Hannah, 3 Abb., N. S. 183. (s) Selover v. Wisner, 37 How. 176 ; see also Still v. Rawley, Id. 17ft (f) People v. Sturtevant, 3 Duer, 616; S. C, 9 How. 304. («) Hoffman v. Barry, 4 N~. T. S. C. R. 253. AMOUNT OF COSTS. 51 "1, Full costs are given upon an appeal from an order or judgment sustaining or overruling a demurrer to an entire pleading, when no leave is granted to plead anew. ■' 2. Ten dollars costs of appeal are given when the order sustains or overrules a demurrer to a part only of a pleading. " 3. The latter sum is also given on appeal where the order sustains or overrules a demurrer to an entire pleading ; but gives leave to plead anew, so long as the leave to plead is in force ; but if the time to plead anew expires, and judgment is entered for want of a plea on appeal from such judgment, full costs are allowed. "4. When the order is or becomes final, so as to determine the rights of the parties in that action, full costs of appeal will be given to the prevailing party upon such appeal. " 5. While the order is interlocutory, and does not determine the final rights of the parties, it is an order and not a judgment, and upon appeal ten dollars costs only will be allowed." When by the order liberty is given a party to amend or to plead over, the court is at liberty to fix and determine what costs, or the amount which must be paid as a condition ; and this is so, whether such condition be imposed by the special term or by the general term on appeal, (y) (e) Hoffman 9. Barry, 4K.Y.S.C. R. 256. 52 THE LAW OF COSTS. §26. No distinction is made in the Court of Appeals between appeals from orders of the Supreme Court and judgments rendered therein, in the allowance of costs; in both cases costs are the same, and the pro- vision regulating them is general ; (w) but, as has been observed herein before, the rule is different in appeals from orders made at special term to the general term of the Supreme Court. When an appeal is dismissed in the Court of Appeals with costs, it is always with general costs, (x) § 27. Under special circumstances, where consider- able delay has been caused, the Court of Appeals have allowed five per cent, as damages for such delay on appeal, (y) § 28. Upon a motion for readjustment of costs at special term, of an action that was tried before a referee, who gave defendants judgment for costs amounting to one hundred and ninety-three dollars and twenty-five cents, upon appeal to general term, judgment was affirmed with costs ; which costs were taxed at fifty- four dollars and eighty cents, and judgment in favor of defendants was entered and perfected, affirming said judgment for one hundred and ninety-three dollars and twenty-five cents, with fifty-four dollars eighty cents costs of said appeal. Plaintiff appealed therefrom to the Court of Appeals, where the judgment of general (u>) White v. Anthony, 23 ST. Y. 164. (as) Id; see also Kanouse c. Martin, 2 Sandf. 739; S. C, 3 CodeR. 208; Webb v. Norton, 10 How. 117; Peterson v. Dickel, 8 Abb. 259. (y) See Day v. Roth, 18 N. Y. 448. AMOUNT OF COSTS. 53 term was affirmed with costs, and ten per cent, in addition thereto, as damages. The two sums above named, on the 21st day of March, 1863 (the time when the remittitur was filed), with interest thereon, amounted to three hundred and thirty-eight dollars and seventy-two cents. The cause was necessarily on the Court of Appeals calendar eight different times, prior to the term at which it was argued. Upon the adjustment of costs, the clerk allowed ten dollars for each of the eight terms, and ten per cent, on said three hundred and thirty-eight dollars and seventy two cents, as damages allowed by the Court of Appeals, held, that the term fees were properly allowed, and the clerk was right in computing the ten per cent, on the whole amount of the recovery ; but it was wrong to add the interest thereto, before such computation, to make a base for such percentage, i. e., the computa- tion should be made upon the amount of the judgment, but not that amount and interest down to the time of filing the remittitur. A readjustment was ordered in accordance with the above, without costs of this motion to either party, (z) It therefore seems that there is no limitation to the number of term fees in the Court of Appeals, (a) § 29. A cause is necessarily on the calendaj^vhen being at issue, and in readiness for trial; the party who has noticed it for trial, has put it onrthe calen- ds 3nfthe (s) Adams v. Perkins, 25 How. 868. (a) Shord v. Dwight, 26 Id. 163 ; Hakes v. Peck, 30 How. 104. 54 THE LAW OF COSTS. dar for the purpose of trying it if he has an oppor- tunity, (b) §30. But in a case where the cause had been more than once on the calendar, and an order was procured by the plaintiff at chambers for judgment on the answer as frivolous, it was held, that he could not recover term fees, (c) And the same rule must necessarily apply to a judgment upon any pleading given at chambers before the issue has been actually tried, as the party moving should do so at his earliest opportunity, and it is not necessary to put such a cause on the calendar for trial, until after the motion is decided. § 31. Also, in cases where a submission of the cause to a referee is made, no term fees will be allowed for terms which occur between the order of reference and the trial by the referee, (d) § 32. And in case the plaintiff notices the cause for trial, and places it upon the calendar, and it was in his power to try it at that term, but he neglects to do so, and there is no stipulation or agreement to put the cause over the term, the defendant can not be charged with the costs of the circuit, (e) § 33. Neither party has a right to term fees, lb) Sipperly v. Warner, 9 How. 333 ; Trustees of Penn Tan «. Tueil, Id. 400. (e) Candee v. Ogilvie, 5 Duer, 658. (d) 1 Duer, 651. (e) Whipple v. Williams, 4 How. 28 ; Titus v. Bullen, 6 Wend. 562 Levcn v. Lush, 3 Wend. 305 ; Sloeum v. Lansing, 3 Denio, 259 ; Ormsbj r. Ba'> ock, 2 Abb. 253. AMOUNT OF COSTS. 55 unless the cause is actually at issue, e. g., where the complaint was served in February, and the answer not until May, but by stipulation the cause was placed on the calendar at the March and April terms, no term fee is allowable for the March and April terms. (/) § 34. Where, on the application of the defendant, a cause is put over the circuit, on payment of ten dollars costs and disbursements, which are paid, the plaintiff on recovering a verdict, is not entitled in his general bill of costs to ten dollars term fee for that circuit, (g) § 35. It seems that no application can be made to a reference of the provision of the Code allowing ten dollars to the successful party for a circuit, or a term, at which the cause was on the calendar. (Ji) § 36. Where an appeal was on the calendar for argument, and before it was reached, and at the first term after it had been placed on the calendar, the respondent moved to dismiss the appeal, and the motion was allowed with costs. Held, that he was not entitled to a term fee. (t) § 37. But where an appeal was on the calendar, and not reached at the first term, but was reached at a subsequent term and dismissed, the court refusing to hear it, there the respondent was entitled to his term (/) Livingstone v. Vielle Montague Zinc MiniDg Co., 2 Abb. 255; 4 Duer, 681. (g) Trustees of Pen Tan v. Tuell, 9 How. 400. (h) 1 Duer, 596. (i) Kanouse v. Martin, 2 Sandf. 739. 56 THE LAW OF COSTS. fee for all the terms during which the appeal was on the calendar and not reached, but not for the term at which the court refused to hear it. (/) § 38. In a case where several suits were depend- ing on the same principal point, a stipulation was made between the parties, that all the suits should abide the result of the first tried, they were all noticed for trial several times after such stipulation, but no- notes of issue were filed except in one case, it was held, that upon recovery by the plaintiff, he might tax a fee for attending the terms for which the causes were noticed, for each cause. (&) This seems to- be a pretty broad construction of the Code, and some- what doubtful. § 39. In actions "necessarily on the calendar," and referred at the circuit after the cause was called r the prevailing party, on entering judgment, is entitled to ten dollars costs of the circuit, besides disburse- ments. (J) And where a cause is on the calendar,, and before it is reached is referred by stipulation, then the successful party is entitled to a fee of ten dollars for the circuit at which the cause was referred; (m) but where the cause was referred on motion before it was reached on the calendar at the circuit, a fee for circuit will not be allowed, (n) (j) Bokerman v. Spoor, 3 Code R. 70. (k) Trustees of Penn Tan v. Tuell, 9 How. 400. (Z) Benton v. Sheldon, 1 Code R. 134. (m) Sipperly v. Warner, 9 How, 333; see Toll v. Tbomas, 15 How. 315. (ra) Perry v. Livingstone, 6 How. 404 ; also Slipperly o. Warner, supra. AMOUNT OF COSTS. 57 § 40. A term fee of ten dollars is given for every term where the cause is necessarily on the calendar, and not tried ; but when tried, then there is no term fee, but a trial fee in place thereof, (o) § 41. Where a stipulation is made settling an action by which the defendants agreed to pay the " legal costs of the action," a fee for a term subsequent to such settlement can not be allowed upon the taxa- tion of the costs therein, (jp) § 42. When the cause was noticed at the circuit by both parties, and put upon the calendar by the clerk, and on Saturday previous to the commencement of the circuit on Monday, the plaintiff discontinued : Held, the defendent was not entitled to a term fee for the circuit which commenced on the Monday after the discontinuance, (q) § 43. Where a party is entitled to costs of a circuit, he should move for them, at his first opportunity after the adjournment of the circuit, or he will be deemed to have waived his right to them, (r) §44. In cases of appeals from a verdict which is against the evidence and also against the charge of the judge, such a verdict should be set aside, with costs to abide the event, (s) (0) Place v. Butternuts Woolen & Cotton Manufacturing Co., 28 How. 184; see also note 187. (p) Latham e. Bliss, 13 How. 416; S. C, 6 Duer, 661. (q) Drew v. Comstock, 17 How. 469. (r) Whipple v. Williams, 4 How. 28. (g) Knapp v. Curtis, 9 Wend. 60. 58 THE LAW OF COSTS. CHAPTER VI. ADDITIONAL ALLOWANCE. § 1. The Code makes provision for allowances in addition to those already mentioned, which is a per- centage upon the claim recovered. The following is the section of the Code pertaining thereto : " In addition to these allowances, there shall be allowed to the plaintiff, upon the recovery of judgment by him in any action for the partition of real property, or for the foreclosure of a mortgage, or in any action in which a warrant of attachment has been issued, or for an adjudication upon a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per cent, on the recovery as in the next section prescribed (§ 309 of the Code) for any amount not exceeding two hundred dollars ; an additional sum of five per cent, on any additional amount not exceeding four hundred dollars; and an additional sum of two per cent, for any addi- tional amount not exceeding one thousand dollars, and in the action above named, if the same shall be settled before judgment therein, like allowances upon the amount paid or secured upon such settlement, at one half the rates above specified." (t) (t) Code, § 308. ADDITIONAL ALLOWANCE. 59 § 2. Under § 308 of the Code, the court has no discretion concerning extra costs. The cases in which they are allowed are denned therein, and it is not necessary, for a motion in order to obtain it. It is the duty of the clerk upon the adjustment to insert the amount of the percentage, when a party is entitled thereto, (u) § 3. In an action of foreclosure, where the defend- ant makes a tender of the amount due, before judg- ment, which amount, with costs including percentage, was given by defendant to the plaintiff in a note made by defendant, upon which an action was brought, Marvin, J., said : " I think, in a case like the present, the defendant may offer to pay the amount due upon the mortgage, and such costs as he may think proper, and upon a refusal to accept the amount he may apply to the court for leave to pay the amount due, and such costs as the court may in its discretion allow, and that the court should entertain the application and permit the payment, fixing the costs, and upon the payment being made, order a discontinuance or stay of the action, as may be proper." And referring to the per- centage being included in the note, he said : " I am satisfied that the amount claimed and included in the note, was no more than reasonable, and no more than the court would have allowed as terms upon which an order, as above indicated, would have been made upon (m) Hunt v. Middlebrook, 14 How. 300; Downing a. Marshall, 37 N. Y. 380 ; Williams v. Hemon, 13 Abb. 297. 60 THE LAW OF COSTS. the application of the defendant, (v) This decision was made in 1858, before the amendment of 1862 r which allows one half the rates named in said section where the action is settled before judgment, and it seems where the amount claimed, with costs, .and the allowance is tendered before judgment, the plaintiff is bound to take it, and upon motion to compel plain- tiff to accept such tender, he should pay costs of the motion, as a matter of right. § 4. An action was commenced, and a warrant of attachment had been issued ; before the cause was at issue, the parties agreed on a settlement, the plaintiffs agreeing to discontinue, provided the costs of their attorneys should be paid. Held, that the costs to be paid included a full allowance (i. e. under amendment of 1862 one half the rates of full allowance), under §§ 308 and 309 of the Code, (w) § 5. In all actions prosecuted by attachment against non-resident debtors, the allowance of a per- centage by way of additional costs may be made, (x) It makes no difference whether or not any property has been attached, (y) § 6. Where a cause has been twice on the calendar, and it being a difficult and extraordinary case, an order was entered before trial, on motion of the plain- 0) Bartow v. Cleveland, 16 How. 364; S. C, 7 Abb. 339; Pratt t). Ramsdell, 7 Abb. 340 (n) ; S. C, 16 How, 59. (w) Brown v. Safeguard Insurance Co. of New York and Pennsyl- vania, 7 Abb. 345. (x) Woodward v. Grier, 2 Code R. 13. (y) Jackson u. Pigauvrii-, 15 How. 234. WHEN ALLOWED. 61 tiff discontinuing the action, on payment of defendant's costs to be taxed, and also an extra allowance which may thereafter be granted to defendant ; held, that an extra allowance should be made to defendant, in addi- tion to the taxable costs. {%) The plaintiff appealed to the general term, where the order was unanimously affirmed. § 7. In actions for the construction of wills, brought by executors, the special term has power to make allowances to trustees and others acting in a fiduciary -capacity, for all expenses necessarily incurred in the faithful performance of their duties, including counsel fees, and that power is independent of the statutory provisions relating to costs, (a) A surrogate can not allow a sum in gross for counsel fees ; the taxable costs only can be allowed, (i) § 8. An appeal was taken to the general term from a decree of the surrogate, admitting a will to probate. The general term affirmed the decree, and its judgment was affirmed by the Court of Appeals, (c) which directed costs of all parties paid out of the •estate. After the decision in the Supreme Court, the surrogate allowed contestant's attorney one thousand -dollars, and after the final decision the special term made a further allowance of one thousand dollars, above the taxable costs. Held, that the special term (s) Polsom v. Van Wagner, 7 Lans. 309. (as) Wetmore v. Parker, 52 K. T. 450. (&) Reed ». Reed, 52 N. T. 651. <«) Dupuy t>. Wurtz, 58 N. T. 556. 62 THE LAW OF COSTS. had the power to make this allowance. Appellate courts can not grant an extra allowance in ordinary cases. But in an appeal from a surrogate's decree, the Supreme Court is, by § 318 of the Code, made the court of origi- nal jurisdiction for the purposes of costs, (d) § 9. In cases where allowances can be made in the discretion of the court, they can only be made by the court of original jurisdiction, (e) except as above noted. § 10. Where an action for an adjudication upon a will is commenced, the authority of the court to make further allowance of costs under this section of the Code is not appealable, unless it has plainly exceeded the limits of its discretionary authority ; in such a case an error has been committed which should be corrected. (/) § 11. In an action brought to recover ninety-six penalties of one hundred dollars each, for alleged violations of the pilot laws, the defendants offered judgment under § 385 of the Code, for one hundred dollars, the amount of one penalty, with costs. The offer was not accepted, and judgment was obtained against defendants for four thousand six hundred dollars, and upon appeal it was affirmed by the gene- ral term; from which affirmance an appeal was taken to the Court of Appeals, where the judgment was affirmed as to one penalty, and reversed as to the (d) Id., 3 ST. T. S. 0. R. 113. (e) Wolf ». Van Nostrand, 2 N. T. 570; S. C, 4 How. 208; 2 Code R. 130. (/) Downing v. Marshall, 37 N. Y. 380. WHEN ALLOWED. 63 residue, without, costs to either party, (g) The costs were taxed without an additional allowance, or any application therefor, on the 14th of September, 1871 ; afterwards, and in June, 1874, a new bill of costs was presented, and a motion for an additional allowance made. In the meantime a settlement had been made with the defendants. Held, that the plaintiff has waived his rights to an extra allowance by the long delay in making the motion therefor, (h) § 12. § 308 of the Code only gives an allowance upon the recovery of judgment, and unless there is such a recovery, no allowance can be had, (i) except there be a settlement before judgment, in which case there may be an allowance, as provided by the above section of the Code. § 13. An allowance can not be had in an action to restrain a foreclosure of a mortgage or a hen. (y ) And in an action to foreclose a mechanic's lien, where no answer has been interposed by the defendant, and a sheriff's jury assess the damages, no allowance can be made. (&) § 14. In actions for the specific performance in the sale of real estate, no allowance can be had under § 308 of the Code. (Z) Nor can there be an allow- ance in an action to set aside a conveyance ; it is not (g) Sturgis 9. Spofford, 45 K. T. 446. (h) Commissioners of Pilots v. Spofford, 5 JST. T. 8. C. K. 353. (i) Bostwick v. The Tioga R. E Co., 17 How. 456. (.7) Sprong 8. Snyder, 6 How. 11 ; S. C. 1 Code, R, HT. S. 178. (J) Randolph v. Foster, 3 E. D. Smith, 648 ; S. C, 4 Abb. 263. (Z) Strong v. Snyder, 6 How. 11 ; S. C, 1 Code R., N. S. 178. 64 THE LAW OF COSTS. an action for the recovery of money within the meaning of this section of the Code, (rn) and in doubtful cases, i. e., where they do not come clearly within the Code provision, no allowance should be allowed, (n) § 15. In a case where an answer is stricken out as frivolous, and a judgment given, it is not a proper case for an allowance to be given, (o) A surety should not be charged with an extra allowance, unless he has misbehaved himself in the defense, or has acted in bad faith. But the case might be different if he were indemnified. \p) § 16. Where the defendant contracted to sell solely to plaintiff certain manufactured articles, held, that in an action to restrain him from selling to others, he could not have an additional allowance ; (q) and the same is the rule in all actions brought for the sole purpose of restraining another action, (r) § 17. No allowance should be given in an action of quo warranto, brought to try the title to an office. No rate per cent, can be fixed in a suit of this nature, as the statute authorizing an allowance in certain actions is not applicable to this, (s) (m) Buchanan v. Morrell, 13How. 296; S. C, 6 Duer, 658; see also Bridges ». Miller, 2 Duer, 683. (ra) Gould«. Chapin, 4 How. 185, S. C, 2 Code R. 107. (o) Beers v. Squire, 1 Code B. 84; disapproving Fowler e. Houston, Id. 51. (/>) Rice v. Wright, 3 How. 405. (q) Gray v. Robjohn, 1 Bosw. 618. (r) Sprong v. Snyder, 6 How. 11 ; S. C, 1 Code R. (,) People v. Flagg, 15 How. 36. WHEN ALLOWED. 65 § 18. A judgment was recovered by the plaintiff, in a case where a warrant of attachment as a provis- ional remedy had been issued. This was subsequently «et aside : held, that he was not entitled to an allow- ance under § 308 of the Code, (i) § 19. A trial was had by referees, at which plaintiff had a verdict; he obtained an order for an allowance; subsequently the defendant obtained an order for a new trial, — held, that the plaintiff's right to the allowance was defeated. If the recovery is set aside, it is not effectual ; it is based on the recovery, (u) § 20. The effect of the provision of § 385 of the ■Code, which gives a defendant, whose offer is not accepted, costs, does not include an allowance under this section, (v) (t) Iselin v. Graydon, 26 How. 95. (u) Hicks v. Watermire, 7 How. 370. <») McLees s. Avery, 4 How. 441 ; S. C, 3 Code R. 104. 5 66 THE LAW OF COSTS. CHAPTER VII. PERCENTAGE, HOW COMPUTED. § 1. These rates, (w) shall be estimated upon the value of the property claimed or attached, or affected by the adjudication upon the will or other instrument, or sought to be partitioned or the amount found due or unpaid upon the mortgage in an action for fore- closure. And whenever it shall be necessary to apply to the court for an order enforcing the pay- ment of an installment falling due after judgment, in an action for foreclosure, the plaintiff shall be entitled to the rate of allowance in the last section prescribed, but no more in the aggregate than if the whole amount of the mortgage had been due when judgment was entered. Such amount of value must be determined by the court, or by the commissioners, in case of actual partition. In difficult and extraordinary cases, where a defense has been interposed, or in such cases where a trial has been had, and in actions or proceedings for the partition of real estate, the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent, upon the amount of the recovery, or claim, or subject-matter involved. And in an action for the foreclosure of a (w) See ante, § 1, ch. 6. PERCENTAGE. 67 mortgage, the court may make a like allowance, not exceeding two and one-half per cent, (x) § 2. The Supreme Court has made the following rule, with reference to the application for the above allowance: "Applications for an additional allowance, under the provisions of § 309 of the Code of Proce- dure, can only be made to the court before which the trial is had, or the judgment rendered, and shall in all cases be made before final costs are adjusted." (y) § 3. Smith, J., says : " These terms (difficult and extraordinary) must apply to the general character of the cause, the nature and extent of the litigation in- volved in it, the period of its continuance, the trouble of conducting it in respect to witnesses, counsel, and parties, their situation and number, traveling and other expenses, the time consumed in the trial, and the extent of the litigation afterwards. All these con- siderations enter into the question whether the suit was such." (z) The statutes pertaining to such allow- ances, and cases in which they should be made, should be construed liberally, and executed fairly, like all other statutes, according to their intent, and the dis- cretion which they confer should be exercised carefully and discretely, (a) § 4. The statute in force at the time the right of the party to costs becomes fixed, is the one that con- tracts the taxation, and establishes the items and (as) Code, § 309. (y) Supreme Court Rule, 56. (s) Powers v. Wolcott, 12 How. 565. (a) lb. 68 THE LAW OF COSTS. amount to be allowed, (6) and the right to costs accrues upon the coming in of the verdict in those actions in which costs of course are given to the prevailing party ; (c) and where the first verdict was set aside, and an- other one obtained, the statute in force at the time of the rendition of the last verdict should govern the allowance of costs. (cZ) § 5. Where a party obtained a verdict at a time when the existing statute gave him an extra allow- ance, held, that he was entitled to it, notwithstanding the order which granted the allowance and fixed its amount, was not granted until after the repeal of said statute, (e) § 6. The additional allowance beyond the costs given by § 307 of the Code, can only be made by the court of original jurisdiction, and in reference to the trial in that court, (/) the appellate court has no power to grant an extra allowance, (g) But the Supreme Court has power, under § 318 of the Code, to grant an extra allowance in appeals from the surro- gate's court, nor is this power affected by the fact that (6) Luckers. Hunter, 15 How. 156; Crary v. Norwood, 5 Abb. 219. (c) Burnett v. Westfall, 15 How. 431 ; Torry-8. Hadley, 14 Id. 357; Moore v. Westervelt, 14 Id. 279; 8. C, 6 Duer, 684. (d) Jones v. Underwood, 18 How. 532 ; Jaeketfc a. Judd, Id. 385 ; see also People r>. Herkimer Common Pleas, 4 Wend. 210 ; Supervi- sors of Onondaga County ■». Briggs, 3 Denio, 173 ; Van Home v. Petrie, 2 Caines, 213; Seamen v. Bailey, Id. 214 ; McMasters v. Vernon, 4 Duer, 625 ; S. C, 1 Abb. 179; Fishery Hunter, 15 How. 156: Cook «. New Tork Floating Dry Dock Company, 1 Hilt. 556. (e) Cook v. New Tork Floating Dry Dock Company, 1 Hilt. 556. (/) Wolfa v. Van Nostrand, 4 How. 208; S. C, 2 N. Y. 570; 3 Code R. 130. (ff) People v. N. Y. C. R. R. Co., 29 N. Y. 418. PERCENTAGE. 69 an allowance has already been granted in the case by the surrogate, (A) as the Supreme Court under such section in cases of this kind is made the court of origi- nal jurisdiction. § 7. Application for an additional allowance should be made at the circuit at which the trial was had, or the judgment rendered, or before the justice who held the same, and none other. {%) It must be the court, and not a justice at chambers, (y) except in the first district ; (k) and the application should be made in the same county where the cause was tried, unless some special reason can be shown for making it else- where. (Z) § 8. Where a motion is made for an extra allow- ance, under § 309 of the Code, the grounds on which the extra allowance is asked, must be set forth in the motion papers. The reason is, that such allowances may be appealed from, and it is necessary that the facts on which such allowances were granted, should be presented in such a form as will enable the court, on appeal, to determine whether or not it was proper to have allowed it. An order granted on improper papers will be reversed on appeal, (m) (A) Dupuy ». Wurtz, 1 How. 119. (i) Saratoga & Washington R. B. Co. v. McCoy, 9 How. 339 ; Os- borne v. Betts, 8 Id. 31; Dyckinan v. McDonald, 5 Id. 121; Van Bensselaer ». Kidd, Id. 242; Sackett v. Ball, 4 Id. 71. (J) Mann v. Tyler, 6 How. 235. (k) Main v. Pope, 16 How. 271. (Z) Niverfl. Rossman, 5 How. 153; 8. C. 3 Code R. 192; but see Spiong v. Snyder, 6 How. 11. (rri) Gori v. Smith, 3 Abb. N. S. 51 ; S. C. 6 Bob. 563. 70 THE LAW OF COSTS. § 9. An order made by a single judge for an allow- ance under the Code (§ 309) is appealable to the general term, under § 349 of the Code, as it affects a substantial right of a party, but the Court of Appeals has no power to review a decision of the Supreme Court, upon the question of discretionary allowan- ces, (n) § 10. Notice of an application for an extra allow- ance of costs is not necessary, where the judge who tries the cause makes the order at the same term ; nor need the party against whom it is made be pres- ent in court, (o) but if the order is not then made, due notice must be given under § 311 of the Code, (p) § 11. A motion for an allowance should not be made, until after the right to recover taxable costs has been determined, and it seems that an applica- tion for costs and an extra allowance may be united in one motion, and it may be made upon the same papers, (q) § 12. Where a party is successful in a trial before a referee, he must apply for an extra allowance to a special term of the court ; this he may do by the last clause of the 56th Rule, and he must do so, as no (n) People e. The N. T. 0. R. R. Co., 29 N. T. 418; S. C, 30 How. 148; Gori v. Smith, 6 Rob. 563 ; S. C, 3 Abb. N. S. 51. (o) Marshall v. Hall, 7 How. 490 ; Van Rensselaer v. Kidd, 5 How. 242 ; S. C, 3 Code R. 224. (p) Manna. Tyler, 6 How. 235 ; 8. C, 1 Code R., N. S. 882 ; Sar- atoga & Washington Railroad Co. v. McCoy, 9 How. 339 ; Nivere. Rossman, 3 Code R. 192 ; S. C, 5 How. 153 ; Howe v. Muir, 3 Code R. 21; S. C., 4 How. 252. (,;) Mesereau v. Ryerss, 12 How. 800. PERCENTAGE. 71 application can be made to the referee, and the same notice must be given as if the trial was by the court, (r) § 13. The party making the application, must be furnished with an affidavit setting forth the facts, in order that the court may judge of the proper amount to be allowed. A mere certificate, that in the opin- ion of the referee the case comes within the section, will not answer. The affidavit should be made by the referee, and not by a party ; (s) and the same rule applies with reference to the place of application, whether the cause was heard before the court or a referee, (t) § 14. Where a motion is made for an extra allow- ance, costs of the motion will not be allowed, (u) § 15. The application should be made at the coming in of the verdict, or report of referee. It should not be later than the end of the term at which the trial was had, (v) (this is the better practice, but does not appear to be absolutely necessary, as will be seen by the opinion given below), and in a proper case for the application for an extra allowance, all litigation should (r) Sacketta. Ball, 4 How. 71 ; S. 0., 2 Code R. 47 ; Osborne ». Betts, 8 How. 31 ; Howe v. Muir, 4 Id. 252 ; S. C, 3 Code R. 21 ; Niver v. Rossman, 5 How. 153 ; S. C, 3 Code R. 192. («) Gould v. Chapin, 4 How, 185 ; S. C, 2 Code R. 107 ; Main v. Pope, 16 How. 271. ft) Sprong v. Snyder, 1 Code*R, K. S. 178; S. C, 6 How. 11 ; Niver Rossman, 5 Id. 153 ; S. C, 3 Code R. 192. (u) Swartz v. Poughkeepsie Mutual Fire Insurance Co., 10 How. 93 ; Dickson v, McElwin, 7 How. 140. (») Flint v. Richardson, 2 Code R. 80; see also Van Rensselaer «. Kidd, 5 How. 242; S. C, 3 Code R. 224. 72 THE LAW OF COSTS. be ended before it is made, (w) Judge E. Darwin Smitb, in a case which involved the question of " when the application should be made," in which a number of adverse cases were cited, and disagreed with, said : (x) " The provision authorizing the court to give an extra allowance is a general and extensive grant of power and jurisdiction over the question and subject,, which can more wisely and discreetly be exercised when the litigation is at an end, and may be exercised whenever the court is applied to, to allow costs or to- enter a judgment. An extra allowance may be granted after trial at the circuit, after appeal to the general term or Court of Appeals, whenever there is to be an adjustment of costs. No limitation exists, except, I think, the extra allowance must be granted so as to- go into a judgment upon an adjustment of costs, when it can be included in a judgment upon which an exe- cution can issue." This case was appealed to the gen- eral term, where the special term order was reversed : semble, upon the ground that the allowance should have been made before judgment, Smith, J., dissent- ing. The opinion given by Justice Smith, at special term, is very clear and exhaustive, and, notwithstand- ing the conflicting opinions, it seems to be a right construction of the Code pertaining thereto, and should have been sustained and followed. (w) Powers v. Wolcott, 12 How. 565. (x) Bealss. Benjamin, 29 How. 101; see contra Martin v. McCormick, 3 Sandf. 755; S. C, 1 Code R., N. 8. 214; see also Clark s. City of Rochester, 29 How. 97; S. C, 34 N. Y. 355; 30 How. 593. PERCENTAGE. 73 § 16. The court is only limited in the amount of allowance by the restriction of the statute, and can allow any amount in its discretion, that the circum- stances may warrant, not exceeding the statutory limit, (y) It is only where the party recovers judg- ment that the allowance can be on the amount claimed- (2) And the value of the property to be directly, affected by the result of the action, is the proper basis upon which to compute the percentage authorized by § 309 of the Code, as an allowance in difficult and extra- ordinary cases, (a) E.g. plaintiff claimed as a copartner, and received a one-fourth interest in a lease taken by defendants in their own name. An extra allowance was granted him under the second clause of § 309 of the Code, based upon the value of the lease, — held, error ; that the subject of litigation was simply the one-fourth of the value of the lease, and adopting either of the three classes specified in said clause, — the recovery, the claim, or the subject matter involved, — it would em- brace not the whole value of the lease, but only the one-fourth thereof. (6) § 17. Where an action is commenced to recover pos- session of property, and the defendant has a verdict un- less the jury assess the value of the property claimed, he can not have an additional allowance for costs, (c) (y) Union Bank v. Mott, 13 Abb. 247. (z) Wilkinson v. Tiflany, 4 Abb. 98. (a) People v. Albany & Vermont R. R. Co., 16 Abb. 465. (Z>) Struthers o. Pearce, 51 N. Y. 365. (. Ford, 14 Barb. 577. (h) Burnett v. Sullivan, 24 How. 337. (i) New York Life Insurance & Trust Co. t. Vanderbilt, 12 Abb. 458. (j) Brace v. Beatty, 7 Abb. 445; Bev'g 9 S. C, 5 Abb. 221. (h) Allaire v. Lee, 4 Duer, 609; 8. O., 1 Abb. 125; Uanen hover v. March. 4 Id. 254 ; Woods ». Illinois Central R. E. Co., 20 How 258. 76 THE LAW OF COSTS. to the complaint, and upon motion was sustained, with leave to the plaintiff to amend, which he did, and afterwards had judgment in his favor. This is a trial, and a motion for an allowance should be granted. (T) . § 26. A final judgment on a dumurrer is a " trial," under § 309 of the Code, and the prevailing party is entitled to an additional allowance in a proper case therefor, (m) § 27. The right to costs or allowances does not accrue on the signing and delivery of a referee's report to the successful party. The report does not become a decision or judgment by the court until filed with the clerk ; it is thus made a record of the court, (n) § 28. In a case where a party has a right to an allowance, it is no ground for denying an allowance upon a second trial, because it was denied upon the first, (o) But it would seem that'where the grounds of the second motion are the same as of the first, upon which the allowance was denied, that the denial to allow costs on the first would be conclusive of an appli- cation on the 'second, (p) But where the pleadings have been amended, and new issues formed, the case presents a different state of facts than upon the first (Q Hausett «. Lansing, 3 Code R. 236; see also Small v. Ludlow, 1 Hilt. 307. («) Lowry v. Inman, 37 How. 286; S. C.,.6 Abb., N. S. 394. (n) Torry v. Hadley, 14 How. 357; but see Hunt a. Miidlebrook, Id. 300. (o) Fox v. Fox, 24 How. 385. (P) lb- PERCENTAGE. 77 trial, and the grounds for an allowance would necessa- rily be changed. § 29. An allowance of extra costs should not be made to one party for the sole reason of punishing the other ; but the principal reason for allowing extra costs seems to be for the purpose of compensating a party in a case where the ordinary costs would not be suffi- cient to indemnify the party for his expenses in the action, (q) § 30. In the following cases no allowances should be made : 1. Where a judgment is granted on a frivolous answer, (r) 2. Where an answer is put in, but no affidavit of merits filed, (s) 3. Where a case necessarily occupies no more than two or three hours, although the questions are some- what complicated, (t) unless the case before trial has been difficult or extraordinary, i. e., a case which re- quired an unusual amount of labor in preparation before trial, and coming under the rule heretofore stated, (u) 4. And where the trial is protracted for the reason of the plaintiff claiming too much, (v) These are some of the cases where no allowance should be made, and others are also contained in this chapter, (g) Anon., 12 How. 317. (r) Hall v. Parker, 7 N. T. Leg. Obs. 138. (t)Ib. (t) Dexter 0. Gardner, 5 How. 417; 8. 0., 1 Code R., N. S. 80. (u) § 3, ante. (0) Sands v. Sands, 6 How. 4S3. 78 THE LAW OF COSTS. which will give a pretty full idea of the principle governing the allowance in particular cases. § 31. A reference under 2 E. S., page 89, is not an action. An executor or administrator can not there- fore claim costs under the Code, in such cases; he is only entitled to disbursements, (w) § 32. The provision for an extra allowance, under § 309 of the Code, does not apply to special proceed- ings, but to actions only, (x) In such proceedings, costs, when allowed, must be at the same rate as in civil cases, and there is no rate of discretionary allow- ance in civil cases : only a limit. (w) Van Siciler t>. Graham, 7 How. 208 ; Avery v. Smith, 9 Id. 349. (*) Rensselaer & Saratoga R. R. Co. v. Davis, 55 N. T. 145. COSTS ON COMPROMISE. 79 CHAPTER VIII. COSTS, WHEN DEFENDANT OFFERS TO COMPROMISE, (j/) § 1. The defendant may, at any time, before the trial or verdict, serve upon the plaintiff an offer in writing, to allow judgment, to be taken against him for the sum or property, or to the effect therein speci- fied, with costs. If the plaintiff accept the offer, and give notice thereof in writing, within ten days, he may file the summons, complaint, and offer, with an' affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and can not be given in evidence ; and if the plaintiff fail to obtain a more favorable judgment, (y) The following is § 493 Ohio Code, relating to compromise : "The defendant in an action for the recovery of money only may, at any time before the trial, serve upon the plaintiff, or his attorney, an offer in writing, to allow judgment to be taken against him for the sum specified therein. If the plaintiff accept the offer, and give notice thereof to the defendant or his attorney, within rive days after the offer was served, the offer and an affidavit that the notice of ac- ceptance was delivered in the time limited, may be filed by the plain- tiff, or the defendant may file the acceptance, with a copy of the offer verified by affidavit ; and, in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given in the period limited, the offer shall be deemed withdrawn, and shall not be given in evidence; or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer." So THE LAW OF COSTS. he can not recover costs, but must pay the defendant's costs from the time of the offer ; and in case the defendant shall set up a counter-claim in his answer to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, then the plaintiff may serve upon the defen- dant an offer in writing to allow judgment to be taken against him for the amount specified, with costs. If the defendant accept the offer, and give notice thereof in writing within ten days, he may enter judgment as above for the amount specified, if the offer entitle him to judgment, or the, amount specified in said offer shall be allowed him in the trial of the action. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and can not be given in evidence ; and if the defendant fail to recover a more favorable judgment, or to establish his counter- claim for a greater amount than is specified in said offer, he can not recover costs, but must pay the plaintiff's costs from the time of the offer, (z) § 2. An offer in writing to allow judgment to be taken against the defendant, which is signed by the defendant's attorney, is a compliance with the requirements of the Code, (a) And it must also state, that judgment for the sum offered may be taken against the defendant, with costs. (6) It should be distinctly and clearly made, so that there can be no (s) Code, § 385. (a) Sterae v. McLaughlin, 3 How. Pr. 331 ; 3. C, 1 Gode R. 109. (ft) Ranney v. Russell, 3 Duer, 689. COSTS ON COMPROMISE. Si 'doubt as to its meaning or extent, (c) and where •there are several defendants, it should be made in behalf of all against whom, at the time of filing the offer, plaintiff might enter judgment, (d) § 3. If a sufficient tender is made before suit, and kept good, and the money tendered is produced and paid into court on the trial, that is sufficient to entitle the defendant to costs, (e) § 4. Where the plaintiff, for the purpose of mak- ing costs, and in bad faith, prevented a tender before ^action, which the defendant was prepared to make, the defendant may be allowed to pay the same into court, and have the action discontinued without •costs. (/) § 5. A payment into court is a payment pro *tanto, (g) and it admits the plaintiff's cause of action 'to the full amount of the payment. (Ji) And in any ■event, the plaintiff is entitled to the amount tendered, and it seems that tender of this nature in an action at law commenced for an involuntary injury or trespass, is virtually a payment, and if the plaintiff recover more than the tender, this amount must be 'deducted therefrom, and judgment rendered only for .the amount of the residue, and the plaintiff's right to (c) Post v. N. T. C. E. R. Co., 121 How. Pr. 552. (i) Griffith v. DePorest, 25 How. Pr. 336 ; 8. C, 16 Abb. Pr. 292. («) Knight «. Beach, 7 Abb. Pr. K. S. 241. •(/) People v. N. T. Superior Court, 19 Wend. 104. (ff) Murray v. Bethune, 1 Wend. 191. (A) Spaulding v. Vandereook, 2 Wend. 431 ; Johnstone «. Colum- bia Insurance Co., 7 Johns. 315. 8a THE LAW OF COSTS. recover or pay costs is determined by the amount of such residue, {%) and where the amount paid is suffi- cient to carry costs, defendant must pay them to the time of payment, (y) and if the plaintiff fails to prove a cause of action for more than the sum paid in, the verdict should be for the defendant. (Jc) § 6. The judgment recovered is not "more favor- able " where the amount offered, with interest to the date of the judgment, exceeds the amount recovered ; in which case the defendant is entitled to costs. (Z) The plaintiff is entitled to the benefit of any counter- claims which the defendant may interpose subsequent to the offer, and which are extinguished by the judg- ment, (m) § 7. And in reference to the costs, when the amount offered is accepted, it seems that the same rule governs as where judgments are obtained, e. g., in an action on contract, at issue and on the calendar for trial, the defendants made an offer of judgment for forty-nine dollars and fifty cents, which the plaintiff accepted : Held, the defendant was entitled to recover his costs of the defense, (n) § 8. A bond conditioned for the payment of money (i) Slack v. Brown, 13 Wend. 390. ( j) Aikins v. Calton, 3 Id. 326. (jfc) Daikin v. Dunning, 7 Hill. 30; Logan v. Gillick, 1 E. D. Smith, 398. (1) Tillman v. Keane, 1 Abb. Pr. N. S. 23. (ra) Tompkins v. Ives, 36 N. Y. (9 Tiff.) 75; 3 Abb. Pr. N. B. 267; 31 How. Pr. 66; Budd v. Jackson, 26 How. Pr. 398; see also 57 N. Y. 652, (n) Johnson v. Sagar, 10 How. Pr. 552. COSTS ON COMPROMISE. 83 by installments is not within 2 R. S. 353, § 12, per- mitting defendant to discontinue, on bringing the amount due into court, with costs. (0) (0) People v. New York Superior Court, 19 Wend. 104. 84 THE LAW OF COSTS. CHAPTER IX. COSTS ON DISCONTINUANCE. § 1. This branch, of costs is considered very impor- tant, and is commonly referred to in ordinary practice, as actions are often brought upon a supposed favorable state of facts, but during the various stages of the case, it is not rare that new facts present themselves, that are fatal to the plaintiff's interest, and if tried would subject him to unnecessary costs, e. g., where the defendant has been discharged in bankruptcy after bringing suit, infancy, misjoinder, wrong ]Wty, action in the wrong court, &c. The Code provision con- cerning "costs on a settlement," apply to cases of discontinuance, and is given in full in the next section. § 2. Upon the settlement before judgment of any action mentioned in § 304 of the Code, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section, (p) § 3. The general rule is that a plaintiff has a right to discontinue his action as a matter of course, on the payment of costs. The rule is the same in equity cases as in actions at law. This is the rule, unless (?) Code, § 822. COSTS ON DISCONTINUANCE. 85 the adverse party has acquired some absolute rights which a discontinuance would destroy or im- pair, (q) § 4. Before an action can be discontinued, an order to that effect must be entered with the clerk. The Code has not changed or superseded the old practice in this respect, (r) An action, either at law or in equity, can not properly be discontinued by the service of a notice alone, (s) § 5. Where the complainant obtains the usual order to dismiss his action upon payment of costs, the defendant may apply to the court to en- force the payment of such costs, according to the implied agreement to that effect contained in the order ; or, if the costs are not paid after a demand thereof, he may consider the action as still in court, and may plead the pendency thereof in abatement of a subsequent action, which has been commenced for the same cause of action, or he may apply to the court to stay all proceedings in the second action, until the costs in the first are paid, (f) (q) Cooke v. Beach, 25 How. Pr. 356 ; Bedell v. Powell, 13 Barb. 183, 185, 186; Seaboard & Roanoke Railway Co. v. Ward, 18 Barb. 585 ; Van Alen v. Sehermerhorn, 14 How. Pr. 287 ; see also Carring- ton v. Holly, 1 Dick. R. 280 ; Dixon v. Parks, 1 Ves. Jr. 403 ; Perine 0. Swain, 2 Johns. Ch. 478. (r) Averill v. Patterson, 10 How. Pr. 85; S. C, 10 N. Y. (6. Seld.) 500; Morrison v. Ide, 3 Code R. 27; S. C, 4 How. Pr. 304; Wergan v. Held, 3 Abb. Pr. 462 ; Moffatt ■». Ford, 14 Barb. 577; Bedell v. Powell, 13 Id. 183. (8) Bishop s.Bishop, 7 Rob. 194. (t) Cummins v. Bennett, 8 Paige, 81 ; Kerr v. Davis, 7 Id. 53 ; Simp- son s. Brewster 9 Id. 245; Saxton v. Stowell, 11 Id. 526. 86 THE LAW OF COSTS. § 6. No clerk of an attorney, however exten- sive his general powers may be, can discontinue an action without the consent of his principal, (u) § 7. A notice countermanding a summons will not do so ; and if an attorney has appeared it will be inoperative, unless costs are paid, (v) § 8. In a case where the plaintiff's attorney ob- tains the consent of the defendant to discontinue, but enters no order, nor gives the defendant's attorney any notice of such discontinuance, the plaintiff must therefore pay all subsequent costs made by the defen- dant's attorney in the case. («;) § 9. Where a cause is noticed for trial before the service of the order, the defendant is entitled to the fee for all proceedings before notice of trial, (x) §10. Where an injunction is obtained in an action, and is afterwards dissolved by an order of discontinuance, the action there terminates in all regards and to all purposes, (jf) § 11. The discontinuance of an action and an order entered therein, does not operate as a bar to a second action for the same cause, it simply debars the con- tinuance of that identical action in which the order was entered, (z) (u) Irvine v. Spring, 35 How. Pr. 479; S. 0., 7 Rob. 298. (v) Pignolet v. DaVeau, 2 Hilt. 584. (w) Pilger v. Gow, 21 How. Pr. 155; S. C, 12 Abb. Pr. 344. (as) Hall «. Linds, 8 Abb. Pr. 341. (y) Hope v. Acker, 7 Abb. Pr. 308. (•?) Earl •<>. Campbell, 14 How Pr. 330. COSTS ON DISCONTINUANCE. 87 § 12. It seems that anex-parte motion to the court or an ex-parte order in the clerk's office, is a regular mode of discontinuance, and is not reviewable upon appeal, (a) This is in keeping with court deci- sions, but it appears to be somewhat at variance with the rights of the defendant, as there are cases in which it would work great injustice to allow the plaintiff to discontinue without giving the defendant the right of opposing the application therefor. § 13. In an action which is commenced by an overseer of the poor, whose term of office expires during the pendency of the action, he can not stipulate to discontinue the action after his time has ex- pired. (6) § 14. It becomes very necessary may times to require a stipulation from the plaintiff before a discon- tinuance will be allowed, in cases where a discontinu- ance would be a substantial injury to the defendant, e. g., where evidence sustaining a defense has been made by a witness since deceased, and where a coun- ter-claim is interposed which was since that time ex- hausted by the statute of limitations. In such cases, and others of like nature, the discretionary power of the court should be exercised very cautiously, and in a way not to bar the rights of either party, (c) § 15. Where an attorney has been actually retained, notwithstanding there has been no notice of retainer (a,) Cooke v. Beach, 25 How. Pr. 356. (i) Wright v. Smith, 13 Barb. 414. (c) Young v. Bush, 36 How. 240. 88 THE LAW OF COSTS. served, the plaintiff must pay costs if he wishes to> discontinue, (d) § 16. In cases where the statute of limitations has- been interposed as a defense, it does not furnish suffi- cient grounds for discontinuing without costs, (e) § 17. If the object of the action is defeated by the plaintiff's own act or procurement, he can not be per- mitted to discontinue without costs. (/) § 18. Where the defendant has been arrested and a motion to vacate the order of arrest has been made by the defendant, held, that the costs of the motion, to vacate must be paid before the plaintiff could dis- continue as of course, (g) § 19. "Where a new trial has been granted at * general term on the condition of payment of costs, the plaintiff can not apply to the special term for an order of discontinuance while the costs are unpaid and in dispute, (h) § 20. An action brought by more than one officer in, a public capacity, can not be discontinued by one with- out the consent of the other, unless it appears that the- thing represented by them requires that such a course- be taken, and an injury will result thereto unless such a step be taken, (i) There seems also to be a differ- ed Bedell v. Powell, 13 Barb. 183; Foster o. Bowen, 1 Code R. 191; contra, Schencka. Fancher, 14 How. Pr. 95; Smith v. White, t Hill, 520. («) Houseman v. Rosenfield, 18 Abb. Pr. 379. (/) Hammersley t>. Barker, 2 Paige, 372. (g) Crockett v. Smith, 14 Abb. Pr. 62. h) North v. Sargeant, 14 Abb. Pr. 223. (t) Perry «. Tynen, 22 Barb. 137. COSTS ON DISCONTINUANCE. 89 ence in the manner in which the action is commenced, whether by all the officers personally, or by one acting in a ministerial capacity. In the latter case it will be presumed that the officer applying has au- thority from others for such application to discon- tinue, (j) § 21. Where a plaintiff revives an action already commenced, and, in his supplemental complaint, claims the same relief as was claimed by the plaintiff in the original complaint, he can not discontinue, with- out paying cost from the beginning, (k) § 22. Where the defendant has set up a counter- claim, and on his own motion the complaint is dis- missed at the trial, the plaintiff taking exception thereto, the plaintiff has a right to insist that such counter-claim shall be passed upon by the jury ; the defendant can not be allowed to withdraw it, and bring an action for the same cause. (I) § 23. The plaintiff had an absolute right to discontinue (prior to the Code), on payment of the costs, at any time before judgment, or a submission of the case to the jury. The Code has not abrogated the former practice ; the plaintiff's right is now the same as it was before. The fact that a counter- (j) Downing v. Kugar, 21 Wend. 183. (Jc) Fisher v. Hall, 9 How. Pr. 259 ; see also Rogers v. Rogers, 2 Paige, 459; Crippin v. Crippin, 11 Id. 221; Raymond v. Johnson, 11 Johns. 490 ; American Life Insurance & Trust Co. v. Sackett, 1 Barb. Ch. 585. Miller v. Freebone, 4 Rob. 608 ; see also Fabricatte s. Lauritz, 1 Code R., K". S. 121; 8.C., 3 Sandf. 743. 9° THE LAW OF COSTS. claim has been set up by the defendant is no ground for refusing to allow a discontinuance, (m) § 24. In a case where a counter-claim would be barred by the statute of limitations if the plaintiff was allowed to discontinue, he will not be allowed so to do. (n) § 25. Where a counter-claim has been set up, and the time to reply has not expired, the plaintiff is not precluded from discontinuing thereby, (o) § 26. The rule seems to be that the plaintiff may discontinue at any time before judgment, on payment of costs, unless he has failed to appear at the trial, or has not demurred, or replied to a counter-claim, (j?) The principal is the same now as before the Code in this respect. § 27. Where the plaintiff creates unnecessary costs, and afterwards moves to discontinue, he must pay costs ; e. g., proceeding in the action after he has knowledge of defendant's discharge in bank- ruptcy, (q) or where, by defendant's answer, infancy is interposed, (r) and where two actions were brought, when one only was necessary, (s) (m) Seaboard & Roanoke R. R. Co. v. Ward, 1 Abb. Pr. 46; S. C, 18 Barb. 595. (ft) Van Allen v. Schermerborn, 14 How. Pr. 287; Rees v. Van Pat- ten, 13 How. Pr. 358. (o) Oaksmith v. Sutherland, 4 Abb. Pr. 15; S. C, 1 Hilt. 265; Pacific Mail Steamship Co. «. Lenling, 7 Abb. Pr., N. S. 37. (p) Rees «. Van Patten, 13 How. Pr. 258; Seaboard & Roanoke R. R. Co. 9. Ward, 1 Abb. Pr. 46; S. C, 18 Barb. 595. (q) Ludlow i>. Hackett, 18 Johns. 252 ; Merritt v. Archer, 1 Wend. 91. (r) St. John v. Hart, 16 How. Pr. 192. (*) Loweree v. Vail, 5 Abb. Pr. 229. COSTS ON DISCONTINUANCE. 91 § 28. Where part only of a bond payable in installments is due, an action having been commenced to recover it, the defendant can not bring the amount due into court, with the costs, and take a discontin- uance, (t) § 29. Where an action is commenced to foreclose a mortgage, on default of the payment of interest, unless there is some oppressive conduct on the part of the plaintiff, the defendant can not move that the action be discontinued, on his paying into court the interest due. (u) § 30. Where an action is commenced to foreclose a mortgage, the plaintiff may discontinue his action, without paying the costs of junior incumbrancers, who have appeared in order that their rights might be pro- tected, (v) § 31. " Where an appellant elects to dismiss his own appeal, he must enter an order to that effect, and pay the respondents costs. A written notice served on the respondent that the appeal has been dismissed is not sufficient." (w) § 32. Where two actions are pending for the same (t) People v. New York Superior Court, 19 Wend. 104. O) Ferris v. Ferris, 28 Barb. 29; 8. C, 16 How. 102; see also Hunt v. Keech, 3 Abb. 204; JSToyes v. Clark, 7 Paige, 179; Lynch v. Cunningham, 6 Abb. 94; Steele v. Bradfield, 4 Taunt. 227; Thurston a. March, 5 Abb. 389, S. C, 14 How. 572; sub. none, Thurston v. March; Gowlett v. Hanforth, 2 Wm. Black, 958; Bartow v. Cleveland, 7 Abb. 339; S. C, 16 How. 364. (») Gallagher v. Egan, 2 Sandf. 742. («) Burnett «. Harkness, 4 How. Pr. 158; S. C, 2 Code R. 100; see also Gale «. Wells, 7 How. Pr. 191 ; Porter v. Jones, Id 192. 92 THE LAW OF COSTS. cause and the answer sets this up as a defense, the plaintiff should allege in his reply that the former action is discontinued, (x) And it is necessary in such a case to allege in the reply, that an order of discon- tinuance has been entered in the first suit, (j/) It is essential that such discontinuance should be made before the issue had been made, or noticed for trial in the second action, (z) § 33. In actions brought by the attorney-general under laws of N. Y., 1853, page 917, ch. 466, § 24, to close the business of an insurance company, he has no discretion in the matter ; he can not carry out his own views ; he is merely an assistant to the comptroller ; he, of his own motion, can not discontinue, (a) § 34. In all actions, where any defendant inter- poses the defense of infancy, the plaintiff may, upon a proper application to the court, before the trials discontinue as to such defendants, without costs. (b) In such a case the plaintiff must make his motion as soon as he is informed of such defense ; but, as heretofore remarked, if he proceeds with the cause after such notice, and incurs more costs, he will be obliged to pay them, (c) § 35. Where an executor or administrator brings (t) Beals v. Cameron, 3 How. Pr. 414. (y) AverilU Patterson, 10 N. Y. 500; S. C, 10 How. Pr. 85. (z) Swart v. Borst, 17 How. Pr. (59. (a) Matter of Mechanics' Fire Insurance Co., 5 Abb. Pr. 444. (J) Cuyler v. Coats, 10 How. Pr. 141 ; Wellington c. Closson, 18 Id. 10; S. C, 9 Abb. Pr. 175. (c) St. Johns. Hart, 16 How. Pr. 193; see also VanBuren v. Port, 4 Wend. 209. COSTS ON DISCONTINUANCE. 9i an action in his representative capacity, and in good faith, he may discontinue without costs, when a valid defense is discovered, (d ) § 36. And where an executor or administrator brings an action under a mistake, they may discon- tinue without costs, (e) § 37. In actions where the defendant is discharged under the insolvent laws, the plaintiff may discon- tinue the action, without costs. (/) § 38. Where the defendant has been decreed a bankrupt, although he has not yet obtained his certificate, the plaintiff may in such a case discon- tinue without costs. (. De Forest, 6 Id. 413; Mitchells. Westervelt, Id. 265, affirmed Id. 311 (n) ; see also Wesley d. Bennett, 6 Abb. Pr. 12. COSTS ON A MOTION. 99 § 4. The same rule applies upon appeal from an order granted at chambers, and in fact under any of the cases named in § 349 of the Code, which are to be considered as motions for the purpose of costs, and are held to be within § 315 of the Code, (y) § 5. All orders awarding costs, upon granting or denying special motions, shall specify the amount of such costs ; and, where the order for the payment of such costs, or any sum of money upon a special motion, is not conditional, a precept to enforce pay- ment of such costs, or sum of money, may be issued without any demand or application to the court. (2) § 6. No person shall be imprisoned for the non- payment of interlocutory costs, or for contempt of court for not paying costs, except attorneys, solicitors, and counselors, and officers of the court, when ordered to pay costs for misconduct as such, and witnesses, where ordered to pay costs on an attachment for non- attendance. Process in the nature of a fieri facias against personal property may be issued for the collec- tion of such costs, founded on such order of court, (a) § 7. The term " interlocutory " means, in law, that which decides, not the cause, but some matter relating to it, and which must be determined before the final determination of the whole issue, (b) («/) Savage «. Darrow, 4 How. Pr. 74; 8. C, 2 Code R. 57; Penuell e. Wilson, 5 Rob. 674 ; S. C, 2 Abb. Pr. N. S. 466. (s) Laws of N. Y., 1840, ch. 386, § 15. (a) Laws of 1ST. Y., 1847, ch. 390, § 23. (I>) Mora v. Sun Mutual Insurance Co., 13 Abb. Pr. 301 ; S. C, 22 Plow. Pi. 60; see also Purchase e. Ik-Hows, 16 Abb. Pr. 105; 9 Bosw. ioo THE LAW OF COSTS. § 8. Where costs are ordered on the argument and determination of a demurrer, they can not be considered as interlocutory costs, neither are they costs of a special motion under §§5 and 6, ante. And the costs can not in such a case be collected by a precept, but are collected the same as the final costs in a cause, (c) § 9. Where a motion to change the venue is made, the costs are discretionary with the court; they can not, however, exceed ten dollars. The amount must be inserted in the order, or it can not be col- lected under the Code ; the costs of such a motion can in no- case go into the judgment, (d) § 10. In case a motion to dissolve an injunction is granted, and the order expressly says, "that no costs be allowed," none can be taxed in the gen- eral costs, although the party in whose favor the motion was decided, finally succeeds in the ac- tion, (e) § 11. No judgment can be entered upon the remittitur of the order of the Court of Appeals, reversing an interlocutory order of the Supreme Court. An entry of a judgment for costs upon an interlocutory order is unauthorized. In interlocutory and special proceedings, the costs are to be adjusted by the judge or court before whom the motion is made, or in such manner as the judge or court may (c) Moza v. Sun Mutual Insurance Co., 22 How. Pr. 60 ; S. C, 13 Abb. Pr. 304; see also Palmer ». Smedley, Id., 185. {v. Pr. 170. .'.(? 102 THE LAW OF COSTS. favor, and it is granted him, it is not proper to allow him costs, (li) § 14. There is no provision made by the Code for costs in special proceedings ; therefore the only costs that can be given, are motion costs, (i) § 15. The costs of a motion under § 315 of the Code, are in the discretion of the court, and if they have been allowed by the court who entertained the motion, where it was in part granted, and in part denied, the general term, on affirming the order on appeal, should not interfere with the allowance, (j) § 16. In all cases where a motion is heard upon a notice, no costs will be granted to the moving party, unless such notice asks for costs, (&) or is in accor- dance with the next section hereof. § 17. Where a notice of motion contains the clause, " other and further relief," the party, if en- titled thereto, can have the costs of the motion on default being made. (I) § 18. All applications to the court are not to be considered motions under § 315 of the Code. The distinction is made by §§ 400 and 401 : " Every direction of the court or judge, made or entered in writing, and not included in a judgment, is denomin- ated an order, and an application for an order is a (h) Jones «. United States Slate Co., 16 How. Pr. 129. (*) Matter of Pierce, 12 How. Pr. 532. ij) Dennison v. Dennison, 9 How. Pr. 246. (k) Saratoga & Washington R. R. Co. s. McCoy, 9 How. Pr. 339. (I) Northrop v. VanDusen, 5 How Pr. 134; S. C, 3 Code R. 140; see also Potter v. Richards, 10 Wend. 608 ; Bonta v. Marcellus, 3 Bark 373; Falconer!). Ucoppell, 2 Code R. 71. COSTS ON A MOTION. 103 motion." Thus an application to the court is not a motion within this definition, where the direction of the court is included in the judgment. Neither is an ex-parte motion one in which costs of motion should be given. It seems very evident that it was the de- sign of the framers of the Code, to put an absolute limit upon the amount of costs in cases where there is no appearance or defense. Thus, applications for a reference for judgment, or for a confirmation of the report of sale, in cases where there is no appearance, are such as require no labor or preparation, and costs should not be allowed, (rri) § 19. When two motions are made by the same party, where he might have obtained the requisite relief by one, held, that he must pay costs of opposing as to one of them, (n) § 20. In case the report of a referee is set aside upon the ground of its being against the weight of evi- dence, and a new trial ordered, the allowance of the costs of the motion must be governed by the peculiar circumstances of the case, (o) although the general rule in reference to the verdict of a jury, which is against the weight of or contrary to the evidence, will be set aside only on the payment of costs by the moving party. (jt>) The courts have never adopted (ro) Brown v. Anthony, 13 How. Pr. 301. (ri) Mitchell v. Westervelt, 6 How. Pr. 265; see also Hornbagers. Hornbager, Id. 13; S. C, 1 Code R., N. S. 181. (0) Wentworth ». Candee, 17 How. Pr. 405; Smith v Schanck, 18 Barb. 344 ; Scranton v. Baxter, 4 Sandf. 5. (p) Id. ; see also Alcard v. Moncbon, 1 Johns. Cases, 280. io 4 THE LAW OF COSTS. such rule, in determining the right to costs upon the report of a referee. § 21. Where a motion is made for a new trial, the allowance of costs is in the discretion of the court, and when granted shall not exceed ten dollars for the motion, (q) §22. In all cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such pay- ment or performance, the party whose duty it shall be to comply therewith, shall have twenty days for that purpose, unless otherwise directed in the order ; but where costs to be adjusted are to be paid, the party shall have fifteen days to comply with the rule, after the costs shall have been adjusted by the clerk, on notice, unless otherwise ordered, (r) (q) Fellows v. Sheridan, 6 How. Pr. 409 ; Jackett v. Judd, 18 How. Pr. 385. (r) Supreme Court Eule, 32. COSTS UPON GRANTING A FAVOR. CHAPTER XII. COSTS UPON GRANTING A FAVOE. § 1. Where a party seeks a favor from the court, upon motion or otherwise, it should require the pay- ment of costs, and the amount of the costs should be fixed in the order that grants them. In cases where a party is required to pay costs as the condition of such favor, and the order does not specify the amount, it should designate some officer to settle the amount of costs. This is usually directed to be done by the clerk, one of the justices of the court, or by a county judge, (s) § 2. As a general rule, where* an amendment is granted on payment of costs, the costs of all proceed- ings which the order vacates must be paid, (t) § 3. The Code has made provision for amending pleadings, which directs when costs should be allowed, and is as follows : " No variance between the allega- ta) Van Sohaick v. Winnie, 8 How. Pr. 5 ; see also Ellsworth ». Gooding, Id. 1; Chadwick v. Brother, 4 How. Pr. 283: S. C, 3 Code R. 21 ; Morrison v. Ide, 4 How. Pr. 304; S. 0., 3 Code IX. 27; Browne e. Anthony, 13 How. Pr. 301; overruling Thomas i\ Clark, 5 Id. 375; S. C, 1 CodeR., N. S. 71. (£) Nellis v. De Forest, 6 How. Pr. 413; Ellsworth v. Gooding, 8 Id. 1; Buckingham t>. Miner, 18 Id. 287; Keil v. Rice, 24 Id. 228; North v. Sargeaot, 14 Abb. Pr. 223. 106 THE LAW OF COSTS. tion in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. "Whenever it shall be alleged that a party has been misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled ; and thereupon the court may order the pleading to be amended, upon such terms as shall be just." (u) This section of the Code gives the court a discretionary power in the matter, and the amount has no limit, as have costs of a motion. § 4. And the Code further provides for cases where costs can not be allowed upon an amendment : " Where the variance is not material, as provided in the last section (§ 169), the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs." (y) § 5. Where an objection is taken to the form ol the action, by the defendant, at the first opportunity, and the plaintiff is granted leave to amend, it should be on payment of defendant's costs, and also relin- quishing his contingent right to costs made prior thereto, (w) § 6. In all cases where the plaintiff seeks to in- troduce new parties, he should do so at his earliest opportunity after he is informed of the facts which (u) Code, § 169. 0) Code, § 170. (w) Downers. Thompson, 6 Hill, 377; Carriers. Dellay, 3 How. Pr 173; see also Proctor's administratrix v. An Irew, 1 Sandf. 70. COSTS UPON GRANTING A FAVOR. 107 render it necessary to make them parties, and if he fails so to do, he should be required to pay all the costs since such information, (sc) § 7. The Code also contains another provision concerning the amendment of a pleading, or process, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by insert- ing other allegations material to the case, or when the amendment does not charge substantially the claim or defense, by conforming the pleadings or proceedings to the fact proved. The court may, before or after judgment, in furtherance of justice, amend the same, on such terms as may be proper, (y) § 8. In a case where a defendant is stricken out as a party, it should be upon such terms as will in- demnify the co-defendants for any expense to which they will be subjected by reason of such amend- ment, (z) In such a case the defendants were allowed ten dollars for opposing the motion, and in a case where defendant was sued alone upon a con- tract made by himself and partner jointly, and an answer of non-joinder was interposed, the cause was tried, and the plaintiff was allowed to amend, upon the payment of costs of the trial, (a) § 9. Where the report of a referee shows a larger (x) Sage n. Moshor, IT How. Pr. 367. (y) Code, g 173. (a) Turners. Hillerline, 14 How. Pr. 231; Bemis v. Bronson, 1 Code R. 27 ; 'Hare v. White, 3 How. Pr. 296 ; 8. 0., 1 Code R. 70. («1 Mayhew 11. Robinson. 10 How. Pr. 162. ioS THE LAW OF COSTS. sum due than the complaint claimed, the pleadings- in such a case can not be amended, except upon con- senting to a new trial, and paying the costs of opposing the motion, and also the costs of the former trial, (h) § 10. Where there has been one trial on the original pleadings, and a second trial is ordered on amended pleadings, the prevailing party should have a second fee, for proceeding before notice of trial, after the amended pleadings have been served, (c) § 11. An action was commenced against a judg- ment debtor and his grantees, a large Dumber, for the purpose of setting aside conveyances made by him to them, which were alleged to have been fraudulent, collusive, and void. Many of the defendants appeared by different attorneys. Six demurrers were interposed to the whole complaint, substantially the same objec- tion being presented by each. Three of the demur- rants were represented by one attorney, two separate attorneys representing the other defendants, and they moved that the complaint be made more definite and certain. The motion was heard at special term, and an order was entered that the complaint be amended, and the demurrants have judgment on al! the demurrers. An appeal was taken to the general term by the plaintiff, where the orders were reversed, with leave to defendants to answer on payment of cocts. Separate bills of costs against all the demurrants was (h) Bowman z E;irU\ 3 Duer, 601 : see also Dox v. Uey, 3 Wend. 356; Corning v. Corning, 6 N. Y. 07; S. C, 1 Cod,' K., X. S. 351. O) Consicleranti'. 13rNl>;inc, 1 Bo^v. 0-1 -I: S. 0. \V>. 34 "> (V; see alsoTi-ivifc ; » w i> i r i. :. ' >. ". :\ > >m i, it : i v. i'r. lil. COSTS UPON GRANTING A FAVOR. 109 claimed by the plaintiffs, who claimed costs as on an appeal from a judgment, held — 1. That only a single bill of costs against all the demurrants could be recovered ; that the plaintiffs were entitled to all the disbursements which had been incurred by them in consequence of the numerous appearances put in by the defendants, and the mul- tiplied proceedings which had necessarily resulted ; also, the expense of printing the case and points might properly be included in the costs. 2. That the plaintiffs were entitled to recover for an appeal in this case the proper costs of the trial of an issue of law, and subsequent proceedings before trial, which were to be paid upon amending, with the proper term fee, as specified in this section (§ 307, sub- division 7), and the trial fee at the special term, the notice of argument being in effect a notice of trial. 3. The plaintiffs were not concerned with any apportionment of the bill of costs allowed between the different defendants ; before any one of the defendants would be allowed to answer, the whole bill must be paid; the defendants must apportion the amount between themselves as best they can; the whole amount of costs must be paid by the defendants, or the privilege of answering would be lost, and the plaintiff entitled to final judgment. (<:/) § 12. In a case where the attorneys have fairly (d) Phipps v. Van Cott, 15 How. Pr. 110; Bverson «. Gehrman, 2 Abb. Pr. 413; Buel v. Gay, 13 How. Pr. 31; Frieot «. Adams, 3 Id. 138; see, however, Comstock ». Halleck, 4 Sandf. 671. no THE LAW OF COSTS. stipulated to allow the term fees to abide the event, they may waive the limits fixed by the statute as to the number of term fees recoverable, (e) § 13. Where the plaintiff has leave to withdraw his demurrer on payment of costs, the only costs the defendant is entitled to claim, are those occasioned by the demurrer ; he can not claim costs before notice of trial. (/) § 14. Where a commission to take testimony-has been issued, with a stay of proceedings pending its execution, this is no postponement that will entitle the party to" term fees. ((7) § 15. If a cause is put over on the terms that the party " pay the costs of the term, to be adjusted," ten dollars for costs subsequent to notice of trial and be- fore trial, should be included. (7i) § 16. Where a favor is granted on the condition that the costs of the litigation be paid, they are suffi- ciently demanded by giving due notice to the attor- ney, (t) («) Emmons «. N. Y. & Erie R. R. Co., 17 How. Pr. 490. (/) Crary v. Norwood, 5 Abb. Pr. 219. (g) Sbufelts. Power, 13 How. Pr. 89. (h) Shanks i>. Roe, 9 How. Pr. 540 ; 1 Bosw. 644. (i) Hanna ». Dexter, 15 Abb. Pr. 135. COSTS IN ACTIONS BY THE PEOPLE, m CHAPTER XIII. COSTS IN ACTIONS BY THE PEOPLE. § 1. In an action prosecuted in the name of the people of this state, for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corpora- tion or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the people, (j) § 2. In connection with the above provision of the Code, we give the part of the Revised Statutes which pertains to the liability of a person bringing an action in the name of the people of this state: " Where a suit or proceeding shall be instituted in the name of the people of this state, on the relation of any citizen, such relator shall be liable for costs in the same case's, and to the same extent, as if such suit or proceeding had been commenced in his own name." (&) § 3. Pending the action, the cause of action, either by assignment or otherwise, becomes the property of (j) Code, § 320. (A) 2 Fay's Digest, 31, § 12. ii2 THE LAW OF COSTS. a third party, not a party to the action ; held, that the test of such person's liability for costs, under § 320 of the Code, was : Had he himself com- menced the action, would he have been liable for costs ? (Z) § 4. In all civil actions prosecuted in the name of the people of this state, by an officer duly authorized for that purpose, the people shall be liable for costs in the same cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant's costs, which shall not be recovered of the people till after the execution is issued therefor against such private party, and re- turned unsatisfied, (to) § 5. Where an action is commenced by the dis- trict attorney in the name of the people, under laws of N. Y., .1857, ch. 628, § 21, for selling liquor on Sunday, held, that where defendants had judgment, the costs of the defense must be paid by the people from the state treasury, (n) {V) Conger ) Proud v. Whiton, 15 How. Pr. 304; S. C, affirmed 15 Id. 305 (n) ; Stephenson®. Clark, 12 Id. 282, overruling Ford v. Gooding, 9 Barb, 394; Buckhout v. Hunt. 16 How. Pr. 407 T2 4 THE LAW OF COSTS. merely on the ground that notice to creditors had not- been published in more than one newspaper, (w) § 14. Where a reference has been agreed upon, no notice need be taken of matters of defense. No pleadings are necessary. The executors, &c, may insist on any defense they may think proper, and the plaintiff must prove his claim, (x) 8 15. The agreement to refer must be filed with the clerk, and an order of reference entered. Until this has been done, the court has no jurisdiction in the matter. The statute in this matter (2 It. S. 89, §§ 36, 37) must be strictly complied with, (y) § 16. There is no necessity of making the offer to refer in writing. It is equally as good if made by parol, (z) Yet the better practice is to reduce all such matters to writing, as the writing in most cases- is the better evidence, and shows more clearly what was intended. § 17. A plaintiff suing as executor, and having judgment rendered against him, must pay costs in all cases where one suing in his own name and right would be obliged to do so. (a) § 18. Where an executor or administrator defends an action instituted against him, and such defense is (w) Dolbeer v. Casey. 19 Barb. 194. (as) Tracey v. Suydam, 30 Barb. 110; see also Munson s. Howell, 12 Abb. Pr. 77; 8. C, 20 How. 59. (y) Comstock v. Oluistead, 6 How. Pr. 77; see also Robert v. Ditmas, 7 Wend. 525. (2) Lansing v. Swarts, 9 How Pr. 434. (a) Curtis v. Dutton. 4 Stinrlt. 719. COSTS BY OR AGAINST EXECUTORS. 125 xaade for the purpose of delay, and not in the ex- pectation of defeating the plaintiff's recovery, it is •clearly an unreasonable resistance of such claim, and costs should be awarded against such representative personally. (6) § 19. Costs in actions under this chapter can not be included in a judgment therein, unless leave has been obtained therefor, from the court, and if costs -are inserted without such leave, they will be stricken out on motion, (c) although by § 317 of the Code, " the prevailing party shall be entitled to the fees •of referees and witnesses, and other necessary dis- bursements, to be taxed according to law." § 20. It is now considered as well settled, that the omission of the executor to publish the notice does not entitle a creditor to costs, and that a plain- tiff can in no case recover costs, unless there has been a, refusal to refer, the claim being disputed, or an unreasonable resistance or neglect of payment, the demand having been presented, (d ) § 21. In actions against executors or administra- tors, to entitle the plaintiff to charge the defendant with the costs of the action, he must establish to the satisfaction of the court, 1. That the demand was unreasonably neglected; or, 2. That it was unreasonably resisted ; or, 3. That the (J) Boyd v. Wilkin, 23 How. Pr. 137. (c) Snyder v. Young, 4 How. Pr. 217. (d) Snyder v. Young, 4 How. Pr. 217; Van Vleck v. Burroughs, 6 Barb. 345; Bullock v. Bogardus, 1 Denio, 276; Knapps. Curtis, 6 Hill, 386; Harvey v. Skilliman, 22 Wend. 571, overruled in 1 Denio, 276. iz6 THE LAW OF COSTS. defendant refused to refer the matter in controversy, (e) There must be an opportunity afforded the executor or administrator to examine into the circumstances of the account presented, before it can be said that he is guilty of unreasonable delay. A person acting in a representative capacity, is not supposed to be famil- iar with all the accounts and transactions of the estate, and it is but just, and in fact a duty which he owes to those for whom he is acting, that he should take a reasonable time to make inquiry, and properly examine all accounts presented to him for pay- ment, and while in the proper and judicial exercise of such duty, he will be protected from costs ; and when prosecuted for the payment of a claim, before such opportunity has been allowed, it is his duty to make all reasonable resistance thereto, until the j ustness of the claim has been satisfactorialy proven ; e. g., where a demand was presented to an executor just thirty-four days after the issuing of the letters testamentary, and a suit commenced fifteen days after such presentation, this is not an unreasonable delay, nor is a resistance thereto unreasonable. (/) § 22. It seems to be necessary, where a motion is made for costs under this chapter, that a certificat from the judge or referee who tried the cause should be produced before the court upon such a motion, (e) Buckhouts. Hunt, 16 How. Pr. 407; see also Bullock i\ Bogar- dus, 1 Denio, 276; Snyder v. Young, 4 How. Pr. 217; Russell .-, Lane, 1 Barb. 51 9 ; Van Vleck «. Burroughs, 6 Barb. 341 ; Fort v. Gooding, 9 Id. 388. ' f) Buckhout ». Hunt. 16 How. Pr. 411. COSTS BY OR AGAINST EXECUTORS. 127 unless the motion is made before the judge who tried the cause, setting forth the facts which entered into such trial, bearing upon the question of costs, i. e., facts tending to show that the demand was unrea- sonably neglected, or that it was unreasonably resisted, or that the defendant refused to refer, (g) and unless facts are shown by such certificate sufficient to estab- lish at least one of these propositions, it will not be proper to allow costs. § 23. It seems to be a well settled rule, that where an executor or administrator commences an action and fails therein, he must pay costs in the cases where he would have been obliged to do so if he had sued in his own right. But unless upon the trial the court directs that the plaintiff shall pay costs, they must be collected of the estate. (A) § 24. The section of the statute prohibiting the recovery of costs in suits at law against executors and administrators, where payment has not been un- reasonably refused, resisted, or neglected, and where there has been no refusal to refer the claims, apply to suits commenced against such executors and adminis- trators, and not to suits commenced against the testa- tor or intestate in his lifetime. {%) (ff) Garkhill v. Hillman, 13 How.'Pr. 353; Mersereau v. Ryera, Id. 300. (A) Dodge v. Crandall, 30 N. T. 294; Curtis v. Dutton, 4 Sandf. 719; Woodruffs. Cook, 14 How. 481; see also Fox v. Fox, 22 How. Pr. 453. 0') Merritt v. Tompson, 27 1ST. Y. 225; S. C, 25 How. Pr. 592 (n.); Murray «. Smith, 9 Bosw. 689. 128 THE LAW OF COSTS. § 25. § 317 of the Code was only intended to exempt executors and administrators personally, and not to exempt the estate from costs. § 26. "Where a suit is brought, or any proceedings instituted to compel an executor to pay over the interest due under the provisions of a will, or other- wise, the court has power to charge the executor with •costs, (y) § 27. The plaintiff in an action against an execu- tor or administrator is entitled to costs in the same manner as he would have been entitled to them in an action against the deceased in his life-time ; and the judgment should in all such cases direct that the amount recovered shall be collected out 6f, or charged upon, the estate or assets in the hands of the executor ■or administrator. (&) § 28. But if the defendant has been guilty of mis- management or bad faith in the defense, the court may direct the costs to be paid by the defendant person- ally ; but this can not be done where the defendant is exempt by the provisions of the Revised Statutes, (F) § 29. The plain and manifest interpretation of the 2 E. S., page 90, § 41, is that in cases where the action is against the defendant as executor or admin- istrator, no costs can be- recovered, unless it be by •order of the court. Such cases are expressly excepted (j) Dubois v. Sands, 43 Barb. 412. (h) Fish v. Crane, 9 Abb. Pr., N. S. 252. (t) lb. COSTS BY OR AGAINST EXECUTORS. 129 from the provisions of § 317 of the Code. The Code was not intended to provide merely a formal exemp- tion to the executor or administrator from liability for costs, and to hold the estate liable in all cases ; but to leave the Revised Statutes in full force where an action is brought against an executor or adminis- trator. This is the construction which has been generally followed by the courts in such cases, and it seems that costs can not be recovered as a matter of ■course against an executor or administrator, to be collected from the assets of the deceased, but are simply confined as of course to cases where an executor or administrator is a plaintiff, and fails to recover in the action, (m) § 30. In cases where an administrator is removed during the pendency of an action, he does not become liable for the costs if he commenced the action as administrator, (n) § 31. In a case where during the pendency of the action the defendant dies, and upon the order of the •court the action is continued against his personal representatives, in which the plaintiff has judgment : in such case if the plaintiff would have been entitled to costs against the defendant upon such a verdict, if he had not died, costs should be allowed to the plain- tiff out of 5 the estate, without an application to the court therefor. Such a case is not included within the statute referred to by § 317 of the Code, which statute (to) Howes. Loyd, 2 Lans, 335; 8. C, 9 Abb. Pr., N. 8. 257. (n) Baxter*. Davis, 3 Abb. Pr., N. S. 249. 9 130 THE LAW OF COSTS. only has reference to actions commenced against exe cutors or administrators, and not those commenced against the intestate, (o) § 32. A written promise was given to pay " the estate of A deceased." If the executors commence an action on such an instrument, and fail to recover costs, they are personally liable for costs, without notice. They should have brought the action in person, the deceased being dead before the promise was given. (^)) § 33. It seems that an equitable action that has never been referred, does not come under 2 Revised Statutes, 90, § 41, (g) but is included in the follow- ing statutes : " If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to three disinter- ested persons, or to a disinterested person, to be approved by the surrogate, and upon filing such agreement and approval of the surrogate in the office of the clerk of the Supreme Court in the county in which the parties, or either of them, reside, a rule shall be entered by the clerk, either in vacation or term, referring the matter in controversy to the person or persons so selected." (r) (p) Lemen v. Wood, 16 How. Pr. 285 ; Benedict v. Caffe, 3 Duer, 669; McCame v. Bradley, 15 How. Pr. 79. (p) Lyon v. Marshall, 11 Barb. 241 ; People v. Judge of Albany Mayor's Court, 9 Wend. 468 ; Reynolds v. Collins, 3 Hill, 441 ; Ketchum v. Ketchum, 4 Cow. 87. (q) Yorks v. Peck, 9 How. Pr. 203. (r) Laws of New Tork, 1859, ch. 261, p. 569, § 36. COSTS BY OR AGAINST EXECUTORS. 131 § 34. In construing the foregoing statute, Mullin, J., said : (s) " In order to confer jurisdiction on the court under this statute, it is not necessary there should be a literal compliance with its terms ; a substantial compliance is enough. To give jurisdic- tion there must be — " 1. An agreement in writing to refer. " 2. The persons agreed on as referees, must be approved by the surrogate. " 3. The agreement and approval must be filed. "4. The rule referring the claim to the persons in- dicated, must be entered by the clerk of the Supreme Court." § 35. Where the whole issue or cause is referred to a referee, in an action prosecuted or defended by an executor or administrator, such referee has not the right to decide the question of costs ; neither can he award costs against the executor personally, or against the estate which he represents, (t) § 36. In actions proscu ted or defended by receivers, unless they obtain leave from the court to so prose- cute or defend, they will be personally liable for costs, (u) § 37. Where a receiver, as such, prosecutes an action in good faith, he can not be made liable for costs on the ground that he has not proceeded to trial, («) Bucklin v. Chapin, 35 How. Pr. 158; S. C, 53 Barb. 488; 1 Lans. 443. (1!) Mersereau v. Ryers, 12 How. Pr. 300. 0) Phelps v. Cole, 3 Code E. 157 ; see also Smith v. Woodruff, 6 »>>>>. Pr. 65; Murray a. Hendrickson, Id. 96 : S C, 1 Bcsw. 606. 132 THE LAW OF COSTS. where he is able to give a good reason for not doing $o ; e. g., commencing a wrong action, or subsequently discovering facts which would render it unwise to proceed, (y) § 38. The Code did not affect the costs or allow- ances to trustees, but they are now the same as be- fore the Code, and the rules of costs and allowances to trustees were — 1. That trustees, in all cases, unless chargeable with misconduct, are entitled to costs, either from the opposite party, or out of the fund, if there was one in court. 2. That trustees should be allowed, in addition to the costs to which other parties were entitled, such reasonable counsel fee and disbursements as they had incurred and were bound to pay. 3. That in actions for the construction of wills and the regulation of charities, all the persons nec- essarily made parties were entitled to their costs out of the fund. And it seems the trustees were entitled to an additional allowance, which was de- nominated " trustees' costs." (w) And these rules are still in force. § 39. " Trustees' costs " are not allowed in this state to parties to actions for the construction of wills, or relating to charities, other than trustees or others (») St John «. Dennison, 9 How. Pr. 343; Purily u. Purely, 5 Cow. 14; Reeder ». Seeley, 4 Id. 548; Arnouxc. Steinbremer, 1 Paige, 82; Phoenix e. Hill, 3 Johns. 249. {«>) Rose v. Rose Benefioient Association, 28 N. T. 184 ; see also 9 Pai«e, 94; 6 Id. 277; Downing v. Marshall, 37 N. Y. 380. COSTS BY OR AGAINST EXECUTORS. 133 sueing or defending autre droit, but they are allowed their taxable costs, and no more, (a;) § 40. Trustees, assignees, and receivers, are in a great degree the officers of the court by Avhich they are appointed, and should receive the same protec- tion, and are entitled to the same indulgence, as an executor or administrator prosecuting on behalf of an estate, (jj) §41. In actions brought by an officer of a bank in his own name, but in behalf of the bank, he is not to be considered, as a trustee of an express trust, within the meaning of § 317 of the Code. (2) § 42. Any endorser or other surety,, and any assignee, executor, administrator, or other trustee, shall be entitled to and allowed to recover from his principal or cestui que trust, all necessary and rea- sonable costs and expenses paid or incurred by him, in good faith, as surety or trustee, in the prosecution or defense, in good faith, of any action by or against any assignee, executor, administrator, or other trustee, as such, (a) § 43. When officers of school districts are prose- cuted for any act performed by virtue of or under color of their offices, which might have been the sub- ject of an appeal to the superintendent, no costs shall be allowed to the plaintiff where the court shall cer- (a;) Rosea. Rose Beueficienr. Association, 28 N. Y. 184; see also TBarrella. Dickey, 1 Johns. Ch. 153 ; Rogers «. Ross, 4 Id. 608. (y) St. John 0. Denison, 9 How. Pr. 343. («) Lowerec «. Vail, 5 Abb. Pr. 229. (a) Laws of N. Y. 1858, ch. 314, § 3. 134 THE LAW OF COSTS. tify that it appeared upon the trial of the cause that the defendant acted in good faith. (V) §44. It appears that actions named in the pre- ceding section are undoubtedly within § 304 of the Code, as relates to costs, where no certificate is given by the court ; but it seems that by such certificate being given, the case is thereby taken out of the oper- ation of such section of the Code, and the plaintiff does not recover costs of course, notwithstanding the amount of his recovery would otherwise entitle him thereto; neither in such a case is the plaintiff en- titled to his costs of a motion for a new trial, (c) § 45. Where an action is brought by the receiver of an insurance company, in which he fails to recover, such action having been brought to recover money to enhance the fund of which he is receiver, the defendants should have costs. Third parties should not be sued in order to increase such fund, except at the expense and risk of the fund. The defendant having recovered in such a case, is entitled to an immediate order for the payment of his costs out of any funds in the receiver's hands. He is not to be paid pro rata with the general creditors. Where an action was begun by the company, prior to the ap- pointment of a receiver, and he continues it, he is personally chargeable with the costs, in like manner as if he were plaintiff. (d~) (ft) Laws of 1847, ch. 480, § 146. (c) Clarke v. Tunnicliff, 38 N. Y. 58; S. C, 4 Abb. Pr., N. S. 451. (d) Columbian Insurance Co. ». Stevens, 37 N. Y. 536; S. C, 35 How. Pr. 101 ; 4 Abb. Pr., N. S. 122. COSTS BY OK AGAINST EXECUTORS. 135 § 46. Where an action is brought upon the sub- scription of a sum of money to an educational corpora- tion, to compel the payment thereof, and the plain- tiffs describe themselves in the complaint as " trus- tees," &c, they are to be considered as trustees of an express trust, under § 113 of the Code, and as such •costs can not be recovered against them personally without an express order from the court; and the court in no case can make such an order against a trustee, unless it appears that he is guilty of misman- agement or bad faith. Where costs are awarded against the plaintiffs in such cases, they must be col- lected out of the estate, party, or fund represented, unless the court shall specially order as above stated, (e) §47. The bad faith and mismanagement men- tioned in § 317 of the Code (to which the references hereinbefore have been made) are to be understood as relating to the commencement of the action, and the proceedings therein, and not to the conduct of the person generally in the management of the trust. (/) E. g., a receiver having no funds in his hands to pay costs, brought an action in which judg- ment was recovered against him ; he was guilty of bad faith, (g) («) Slocum v. Barry, 38 N. T. 46; S. C, 34 How. Pr. 320; 4 Abb. Pr., N. S. 399. (/) Kimberly v. Stewart, 22 How. Pr. 281; see also Devendorf o. Dickinson, Id. 275; Kimberly v. Blackford, Id. 443; Kimberly v. Goodrich, Id. 424. (g) dimming v. Edgerton, 9 Bosw. 684. 136 THE LAW OF COSTS. § 48. The estate can be required to reimburse the trustee for all just costs and expenses incurred in pro- tecting it. Personal property should be exhausted first. Where the decree of a court of foreign juris- diction orders costs to be paid by the trustees out of the estate of the deceased, and he has actually paid them under such decree, it is an error not to allow them to be included in an accounting. (7i) §49. Where an action is brought by an assignee, as such, for the benefit of creditors, it can not be maintained by such assignee, as the assignment is. void, and in such a case the plaintiff can not claim an exemption from costs under § 317 of the Code, as being a trustee of an express trust; (*') the trust having been Void, there evidently could have been no trustee. § 50. Courts may require a person who is acting in a representative capacity to give security in suits- brought or defended by him. The power of the court so to do is purely discretionary, and ought not to be exercised unless the imputation of bad faith was rendered at least highly probable. (,/) § 51. An assignee brought an action to obtain possession of property belonging to the assignor, seized on an attachment. Held, that he would not (h) Youngf. Brush, 28 N. Y. 667; S. C„ 18 Abb. Pr. 171, reversing; 8. C, 38 Barb. 294; 24 How Pr. 70. (i) Sibell v. Remsen, 30 Barb. 441; S. C, affirmed 29 How. Pr. 574 (d.) (j) Shepherd ». Burt, 3 Duer, 645; Durby v. Condit, 1 Id. 599; B. C, 11 N. Y. Leg. Obs. 154. COSTS BY OR AGAINST EXECUTORS. 137 be compelled to give security under § 317 of the Code, unless the evidence of the truth of alleged collution arid fraud be clearly made out. (k) § 52. In case an order is granted upon an ex-parte motion, giving a person acting under § 317 of the Code leave to commence a suit, such an order is no bar to a motion for the .plaintiff to be required to tile security for costs. (Z) And in such a case an order requiring security is not appealable. § 53. Where an estate, &c, is insolvent, and an action is brought by its representative, he can not be required to give security simply upon the ground of such insolvency, (m) § 54. The law making such parties liable for costs was not intended to apply to cases of actions brought in the name of sheriffs, receivers, &c, although third parties might be interested in the recovery, unless the action was brought at the sole suggestion and urgency of such parties, and it was virtually conducted by them, and especially so in a case where an action was brought by direction or leave of the court, (n) § 55. When costs are awarded against executors, &c, they can in no event be a charge upon real estate in the hands of an heir. The act of April, 1843, (h) Shepherd v. Burt, 3 Duer, 645. ([) Bolles v. Duffy, 17 Abb. Pr. 448. (m) Durby v, Condit, 1 Duer, 599; S. C, 11 Leg. Obs. 154. («) Cutter v. Reilley, 31 How. Pr. 474; S. C, 5 Rob. 637; see also Wheeler v. Wright, 2 How. Pr. 328; S. C, 14 Abb. Pr. 353; Giles v. Halbert, 12 N. Y. 32 ; I Hill 629; 18 Weed. 672. t38 THE LAW OF COSTS. does not charge the real estate with the costs of the suit in which the judgment or decree against the personal representatives is obtained, but merely makes the judgment or decree presumptive evidence of the existance and amount of the debt due from the intestate, (o) § 56. Where a reference of a claim is had against executors, &c, under the Revised Statutes, and they have judgment, they are entitled to costs as in an action under the Code. The provisions of the Revised Statutes, authorizing the court to adjudge costs as in actions against executors, is in full force. In such cases, it is irregular to enter judgment upon the report, without an application to the court. (2->) § 57. Where there has been a reference of a claim against executors, &c, pursuant to v 2 R. S., 88, the court has power to set aside the report, or to confirm it; costs may be adjudged, and judgment rendered on the report ; this judgment will be valid in all respects, in like manner as if the action had been commenced by ordinary process. If either party feels aggrieved by such judgment, a motion should be made at special term to have the report set aside ; this should be done before the judgment is entered. Should this motion be denied, an appeal may be taken to -the (o) Wood v. Byington, 2 Barb. Ch. 387; vide Sandford v. Granger, 12 Barb v 392. (p) Bradley ». Fisher, 24 How. Pr. 404; see also Munson v. Howell, 12 Abb. Pr. 77; S. C, 20 How. Pr. 59; Coe v. Coe, 14 Abb. Pr. 86,89(11.); S. C, 37 Barb. 232. COSTS BY OR AGAINST EXECUTORS. 139 general term, on the facts as well as the law. A further appeal may be had to the Court of Appeals on questions of law. (q) (q) Boyd v. Bigelow, 14 How. Pr. 511. 14© THE LAW OF COSTS. CHAPTER XVII. FORECLOSURE OF MORTGAGE BY ADVERTISEMENT. § 1. The proceeding to foreclose a mortgage by advertisement, although a special statutory proceeding,, is not a special proceeding within the meaning of § 3 of the Code. It is by no means an action at law r nor in any sense a proceeding in court, but it is simply and strictly a proceeding in rem ; consequently, cost* of actions, or costs of special proceedings, do not apply. But the statute instituting such a proceeding makes a special provision for costs therein. § 2. The statute has established the amount of costs and expenses to be allowed in the taxation of costs for such a proceeding, as follows : (?•) " 1. For drawing and copies of the advertisement of foreclosure and sale, affidavits of the publication, posting, and serving thereof, and of the circumstances of the sale, and the deed thereof, the same allowance as herein made to attorneys in the Supreme Court for drawing and copies of pleadings, (s) and one dollar for serving each copy of the notice of sale, required by law to be served. (r) 2 Fay's Digest, 34, § 4. (s) The foe bill to attorneys was abolished by the Code; sec a?ile, ch. 1, § 2; see Laws of 1830 for fee bill. FORECLOSURE OF MORTGAGE. 141 " 2. A fee of ten dollars, for superintending the sale thereon, and attending to the execution of the necessary papers. "3. The expense of publishing the advertisement according to the rates herein allowed, for a period not exceeding twenty-four weeks; the expense of posting such advertisement and inspecting the same, not exceeding one dollar ; the expense of recording the necessary affidavits, and of the proving or acknowl- edgment of the deed, and of its being recorded, and of necessary postage and searches." § 3. The costs and expenses of foreclosing any mortgage by advertisement, shall be taxed by some officer authorized to tax costs in the Supreme Court, upon the requisition of any party liable to pay the same, and upon such party paying the expense thereof, (t) § 4. There shall be allowed to the party foreclos- ing, as provided in § 1 hereof, according to the rates allowed to attorneys under the fee bill of 1830 for the draft and copies of pleadings. As far as relates to these proceedings the rates therein allowed have not been abolished by the subsequent changes therein, (u) As provided therein, the party foreclosing is entitled to twenty-five cents for the draft, and twelve and one- half cents for each copy thereof. § 5. The county clerk in such a proceeding should receive a fee of twenty-five cents for affixing the («) 2 Fay's Digest, 34, § 3. («) 6 How. Pr. 493. i42 THE LAW OF COSTS. ' notice of sale in the book kept by him for that pur- pose, and for making the entry and index there- of. 0) § 6. The printer's fees for publishing the notice of sale in a newspaper, as required by law, are seventy- five cents per folio (one hundred words) for the first insertion, and fifty cents per folio for each subsequent insertion, (to) § 7. The taxing officers referred to in the statute who appear to be authorized to tax costs in proceedings of this nature, are the justices of the Supreme Court, and county judges of the degree of councilors of the Supreme Court; (x) also the clerk of the Supreme Court has certain power conferred upon him by the Code, § 311, by which he is constituted the tax- ing officer in all cases where a judgment has been rendered. But it seems somewhat doubtful about his right to tax in a proceeding of this kind, as there is no action, or judgment to be rendered therein, although there is no doubt that upon the proper application to the court, he may be delegated to tax such costs. The question admits of so much doubt, that it is not safe to say who is, by law, the proper officer to tax such costs. The courts hold that a county clerk has no power to tax costs, except on a final judg- ment, (j/) And a judge at chambers has no power to tax or adjust general costs ; this is to be done by (v) Laws of 1857, ch. 308, § 1. (w) Laws of 1869, vol. 2, ch. 1967. (x) 3 How. Pr. 32; Id. 40; Id. 172. (y) Nellis e. De Forest, 6 How. Pr. 413. FORECLOSURE OF MORTGAGE. 143 the clerk, and his authority is limited to the costs upon the entry of judgment, (z) § 8. The fee to officers for taxing costs is fixed by statute at fifty cents, (a) and it seems that the clerk is the only officer that can receive such fee, as the justices of the Supreme Court and county judges are prohibited from taking fees. § 9. Where an injunction is obtained by the mort- gagor restraining the mortgagee or assignee of a mort- gage from selling, but allows the continuance of the notice of sale, and the notice is published more than twenty-four weeks, the expense of publishing for the whole time should be allowed, notwithstanding the time is limited by the statute to less than the time of such publishing. (6) In such a case, the notice must continue, or the party foreclosing would be subjected to the costs for printing already incurred, and the extra expense of such printing being made by the mortgagor restraining the sale at the time when it should have been sold according to the first notice, should be the one to pay such extra ex- pense. (See Appendix for bill of costs in foreclosure.) («) Van Schaick v. Winne, 8 How. Pr. 5. (rt) 2 Fay's Dig. 36, § 13. (6) Collins v. Standish, 6 How. Pr. 493. 144 THE LAW OF COSTS. CHAPTER XVIII. COSTS IN SUPPLEMENTARY PROCEEDINGS. § 1. This chapter includes costs under §§ 292 and 294 of the Code relating to supplementary proceedings. The Code provides for costs in such cases as follows : "The judge may allow to the judgment creditor, or to any party so examined, whether a party to the action or not, witness fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs." (c) It is simply in the discretion of the judge as to the allowance of such costs, and he should be governed by all the circumstances in the case. § 2. The above section should not be construed so as to allow a mere witness anything more than his legal fees as a witness. It is only a party exam- ined, or the judgment creditor, who is entitled to any other allowance. (cZ) (c) Code, § 301. The Code of Ohio provides concerning costs in proceedings of this nature, as follows, by §475: "The judge shall allow to clerks, sheriffs, referees, receivers, and witnesses, such com- pensation as is allowed for like services in other cases, to be taxed as <:osts in the case, and shall enforce by order the collection thereof from such party or parties as ought to pay the same." And it further pro- vides, by § 476 : " The judge of probate shall be allowed for his services ■under this chapter, the sum of three dollars in each case, and such ifees as are allowed by law to the clerks of the court of Common Pleas for similar services." (d) Davis v. Turner, 4 How. Pr. 190; anon. 11 Abb. Pr. 108. SUPPLEMENTARY PROCEEDINGS. 145 § 3. The words in § 1 hereof, "whether a party to the action or not," undoubtedly refer to those who -are examined upon an order in such proceedings known as " third parties," who are alleged to have property of the judgment debtor in their posesssion, but were not parties to the original action, (e) § 4. Where the judgment creditor fails in such a proceeding and the order is dismissed by the judge, it is within the province of the judge to award costs to the parties against whom he is proceeding, and it is just that he should be required to pay such costs. (/) § 5. There must be an examination, and the pro- ceedings must be terminated, before costs can be allowed to any person in such proceedings, (g) And it seems that where the order is set aside before an examination is had, for an irregularity, that no •costs should be allowed. § 6. It is but justice, and has been adopted as the Tule by some judges, in cases where the examination has been had, and property has been found, and upon motion of the party examined the proceedings are set aside for irregularity, to refuse costs tcr either party. The reason for not allowing costs in such cases to the party examined, is, that if he had paid the demand, all costs and trouble thereon would have ceased, and if any hardship results from the proceedings, it should be borne by the party owing the demand. («) 4 How. Pr. 194. (/) w. (g) Eagle ». Boimeau, 2 Sandf. 679; S. C, 3 Code B. 205; Davis v. Turner, 4 How. Pr. 190. 10 146 THE LAW OF COSTS. In such a case the judgment creditor virtually suc- ceeds, i. e., he succeeds in finding property, but simply fails because of an irregularity in the proceedings. § 7. The principle adopted seems to be, that where an examination is had, under § 394 of the Code, of a third party, who denies having property of the judg- ment debtor, or of being any way indebted to him, or of holding property adversely to such debtor, and the proceedings are discontinued as against such third party, he then should receive costs against the party instituting the proceeding. But where a receiver is appointed to try the title to such property or in debtedness, the third party will then be restrained from applying for costs, until such action against him is decided in his favor. § 8. A third party examined is entitled to costs; i. e., where costs are granted to him by the judge, they should be allowed out of the funds in his hands belonging to the debtor, the same as in an action of interpleader, in case the party so examined simply seeks to protect himself against a second claim for the same property, (h) § 9. Proceedings supplementary to execution are special in their character, and the intent is to afford the creditor a speedy and efficient remedy against a dishonest debtor, and the party proceeding against him should receive a reasonable compensation for his expenses and trouble in the proceeding, not exceed- ing the amount allowed by the Code. But a third (h) Anon., 11 Abb. Pr. 108. SUPPLEMENTARY PROCEEDINGS. 147 party should not be charged with costs, unless he acted clandestinely, and with a very probable intent to hinder the judgment creditor from obtaining the property or amount of indebtedness from such third party, belonging to the judgment debtor. § 10. Upon the termination of the proceedings by the discovery of property, the judgment creditor should be allowed all his necessary expenses, such as witness fees, referee's fees, for service of subpoenas, and the exemplification of the necessary records to be used in the proceedings, &c, and upon moving for costs, his disbursements should be fully set forth, by affidavit therein, (i) § 11. Costs may be allowed at any time before the final order is made to apply the debtor's property, in the hands of the receiver, to the payment on the j udgment. (j ) The usual practice is to allow the dis- bursements and thirty dollars, or any amount less than that, to the judgment creditor at the time of appointing the receiver, to be included in the order appointing him. § 12. The allowance of costs is made by the judge who has charge of the proceedings, or who con- tinues therein. And where a receiver brings an action to set aside a transfer of property on the ground of fraud, and succeeds, the allowance of costs should be made by the court in which the action is brought, (j) goss ». Clnssman, 3 Sanrlf. 725. (j) Webber v. Hobble, 13 How. Pr. 382. 148 THE LA W OF COSTS. where such court has jurisdiction over the party to be charged. § 13. Costs in these proceedings are granted on motion, a notice of which should be given to the party to be affected by the order; but it will be deemed the same as if a notice had been served, if the party is present at the time the motion is made. The notice when given should be eight days before the motion. COSTS JJV COUNTY COURT. 149 CHAPTER XIX. COSTS IN COUNTY COURT. § 1. Costs shall be allowed to the prevailing party in judgments rendered on appeal in all cases, with the following exceptions and limitations. In the notice of appeal, the appellant shall state in what particular or particulars he claims the judgment should have been more favorable to him. If he claims that the amount of judgment is less favorable to him than it should have been, he shall state what should have been its amount. Within fifteen days after the service of the notice of appeal, the respondent may serve upon the appellant and justice an offer, in writing, to allow the judgment to be corrected in any of the par- ticulars mentioned in the notice of appeal. The appellant may, thereupon, and within five days there- after, file with the justice a written acceptance of such offer, who shall thereupon make a minute there- of in his docket, and correct such judgment accord- ingly, and the same, so corrected, shall stand as his judgment, and be enforced accordingly ; and any ex- ecution which has been issued upon the judgment appealed from, shall be amended by the justice to cor- respond with the amended judgment; and no under- taking given to stay execution shall be enforced for iS° THE LAW OF COSTS. more than the amount of the corrected judgment. If such offer be not made, and the judgment in the appellate court be more favorable to the appellant than the judgment in the court below ; or if such offer be made and not accepted, and the judgment in the appellate court be more favorable to the appellant than the offer of the respondent, the appellant shall recover costs ; provided, however, that the appellant shall not recover costs unless the judgment appealed from shall be reversed on such appeal, or be made more favorable to him, to the amount of at least ten dollars. If the offer be made, and accepted by the appellant, the appellant shall recover all his disbursements on appeal, and all his costs in the court below. But the appellant shall not recover costs except as pro- vided in this chapter. (&) The respondent shall be entitled to recover costs where the appellant is not. Whenever costs are awarded to the appellant, he shall be allowed to tax as part thereof the costs and fees paid to the justice on making the appeal, as dis- bursements, in addition to the costs in the appellate court ; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him, which he would have been entitled to recover in case the judg- ment below had been rendered in his favor. If upon an appeal a recovery for any debt or damages be had by one party, and costs be awarded to the other party, (k) Chapter 5, Code of Procedure. COSTS IN COUNTY COURT. 151 the court shall set off such costs against such debt or damages and render judgment for the balance. The following fees and costs, and no other, except fees of officers, disbursements, and witnesses' fees, shall be al- lowed on appeal, to the party entitled to costs as here- in provided, when the new trial is in the county court : For proceedings before notice of trial, ten dollars ; for all subsequent proceedings before trial, seven dollars ; for trial of an issue at law, ten dollars ; for every trial of an issue of fact, fifteen dollars ; for argu- ment of a motion for a new trial on a case or a bill of exceptions, ten dollars ; in all cases to either party for every term not exceeding five, at which the appeal is necessarily on the calendar, and is not tried or is not postponed by the court, seven dollars. In other appeals the costs shall be as follows : To the appellant on reversal, fifteen dollars ; to the respondent on the affirmance, twelve dollars ; if the judgment appealed from be -reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as pro- vided by § 364 of the Code, no costs shall be allowed to either party. In every appeal the justice of the peace before whom the judgment appealed from was rendered, shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings, not affecting the merits, costs shall be in the discretion of the court. If in the notice of appeal i5 * THE LAW OF COSTS. the appellant shall not state in what particular or particulars he claims the judgment should have been more favorable to him, he shall not be entitled to costs unless the judgment appealed from shall be wholly- reversed. (7) § 2. If a judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs- shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as the court shall deem just, may be awarded to either party, (rn) § 3. Costs in the county court in actions authorized to be brought therein by § 1, ch. 467, 2 Eevised Statutes, Edm.'s ed., page 743, shall be the same, and shall be recovered in the same cases only as in like actions in the Supreme Court, (n) § 4. In cases where an appeal is taken to the county court from a judgment in a justice's court, and is certified to the Supreme Court, on account of the disqualification of the county judge, and there a trial is had, and a judgment is therein rendered, and the unsuccessful party moves at special term for a new trial, and a new trial is ordered, which order, upon appeal to the general term, is reversed, with costs, the party succeeding upon such appeal is limited to the same costs as he would have been entitled to had the motion for a new trial been heard and disposed of by t' e county court, (o) (I) Code, ? 371. (m) Code, § 368. (n) 2 R. S., Edm.'s ed. 743; ch. 467, § 2. o) SIcL.'iug'ilin v. Smith, 5 N. Y. S. C. 522; see also Taylor v. COSTS IN COUNTY COURT. 153 § 5. The costs to the appellant on a new trial do not depend solely upon the fact that he has recovered a more favorable judgment, but much depends upon whether his notice of appeal was sufficient, (^p) § 6. In an action in a justice's court, the plaintiff recovered one hundred and fifty-nine dollars and fifty cents damages, and two dollars and eighty cents costs, and appeal was taken by the de- fendant to the county court under § 371 of the Code. The notice of appeal, among other things, claimed that " the judgment at most should not have been for more than five dollars." There was no offer to allow judgment to be corrected, and upon a new trial in the county court, the plaintiff recovered a judgment for one hundred and thirty dollars. The defendant was entitled to costs, (q) § 7. Where an action is tried in a justice's court, and the plaintiff recovers judgment, and from such judgment the defendant appeals to the county court, claiming in his notice that judgment should have been more favorable to him ; that it should not have been for more than twenty-five dollars damages, besides costs, and the plaintiff makes no offer under § 371 of the Code to modify the judgment, — upon the trial in the county court, the jury gave a verdict to the plain- tiff for forty-nine dollars, being forty-six dollars less Seeley, 4 How. Pr. 314; O'Callahan 11. Carroll, 16 How. Pr. 327; 3 Code R. 84. O) Forsyth ». Ferguson, 27 How. Pr. 67. (q) Fox v. Nellis, 25 How. Pr. 144. See also. Wynkoop v. Hol- bert, 25 How. Pr. 158. 1 54 THE LAW OF COSTS. than the judgment appealed from, the appellant in such a case is entitled to the costs of the appeal, as the judgment is made more favorable to him, by ten dollars at least, (r) which, brings it under § 371 of the Code, wherein provisions governing costs upon such a recovery are made. The above case was de- cided in the Court of Appeals, December, 1871, upon an appeal from an order of the general term, affirm- . ing an order of the county court, granting costs to the plaintiff in the action, and the Court of Appeals decided that an appeal to that court would not lie from such an order, for the reason that the action was not commenced in the Supreme Court, or brought there from another court. § 8. Where an appeal is taken from a judgment in a justice's court, and the notice of appeal claims that the judgment should have been more favorable to the appellant in more than one amount, he can not re- cover costs on the judgment in the county court, although the amount recovered be reduced more than ten dollars, (s) With regard to the notice, the court said : " The appellant must name the precise sum to which the judgment should be reduced, and if he does not, the respondent is not bound to make an offer, and he is entitled to the costs of the appeal, what- ever sum he may recover on the second trial. It is impossible for the respondent to know to what sum (r) Younghause v. Fingar, 47 N. Y. 99. (s) Putnam v. Heath, 41 How. Pr. 262; Wadley v. Davis, 43 Id. 82; Murphy v. Simmons, 3 N. Y. S. C. 794. COSTS IN COUNTY COURT. 155 the appellant is willing the judgment should be re- duced, and it is this information he was bound to by his notice." (J) § 9. Where an action is brought in a justice's court, in which the defendant sets up a counter-claim for an amount equal to the plaintiff's claim, upon which the defendant recovers judgment for the amount of his counter-claim, and upon an appeal therefrom to the county court, a judgment of no cause of action is rendered, and nothing is said therein con- cerning defendant's counter-claim, the defendant is entitled to costs in the county court, and the defen- dant in such a case is not bound to make an offer to allow judgment upon the appeal under § 371 of the Code, (u) The defendant is the prevailing party, as the plaintiff failed to recover any judgment; and not- withstanding the defendant fails to recover a judg- ment, but in fact is deprived of the judgment obtained in the court below, yet he is entitled to costs. If it was a case wherein the defendant should make an offer to allow the judgment to be modified, the rule then would be otherwise. § 10. In a proceeding of mandamus, costs are to be taxed under the fee bill of 1830, and it has not been affected by the fee bills of 1840, or the Code. A county judge has power to tax such costs, (v) (t) Putnam v. Heath, 41 How. Pr. 269 (u) Church v. Miller, 2 N. Y. S. C. 583. (v) People v. Lewis, 28 How. Pr. 159. 156 THE LAW OF COSTS. CHAPTER XX. COSTS IN SURROGATES' COURTS. § 1. Costs in surrogates' courts are governed mostly by statute. When the Code was adopted in this state, no provision was made for costs in these courts, and the statute is apparently very meagre con- cerning them. By the act of 1837, § 70, it was pro- vided, that in all cases where the surrogate is author- ized by law to award costs, he shall tax them at the same rate as allowed for similar services in the Court of Common Pleas, (w) The act allowing costs in the Court of Common Pleas was repealed by an act passed May 14, 1840. (x) The allowances in the Court of Common Pleas for services similar to those performed in the surrogates' courts, are not very complete. While the Court of Common Pleas has been abolished, yet no> provision was made for costs in surrogates' courts, other than existed prior to such abolition. The courts hold, and it seems to be well established, that costs are still to be taxed in the surrogates' courts at the same rates as were allowed for similar services in the Court of Common Pleas in the year 1837. (y) (w) See Appendix for items of costs in Court of Common Pleas. (x) See Laws 1840, 336, § 40. (y) Wilcox v. Smith, 26 Barb. 316; Westerns. Romain, 1 Bradf. Sur. R. 37. COSTS IN SURROGATES' COURTS. 157 § 2. The statute makes the following provision concerning costs in surrogates' courts : " In all cases of contest before a surrogate's court, such court may award costs to the party in the judgment of the court entitled thereto, to be paid either by the other party personally, or out of the estate which shall be the subject of controversy." (z) § 3. Counsel not being parties to proceedings before a surrogate, can not have costs awarded to them, inasmuch as the statute only authorizes the surrogate to award costs to parties, (a) § 4. In the case of "Wilcox v. Smith, (b) Balcom, J., said : " Casts when adjudged to a party by the surrogate are such only as were formerly allowed for similar services in the late Courts of Common Pleas ;" (c) and he further says : " They must still be taxed at the rates of common pleas costs as they were allowed prior to the Code. This is certainly the rule, for the reason that the second part of the Code, which includes that portion thereof which allows and regu- lates costs in civil actions, is not applicable to pro- ceedings in surrogates' courts, and does not affect appeals from such courts." (d) § 5. Where, upon the settlement of the accounts of executors or administrators, objections are made to (z) 2 R. 8., Edm.'s ed. 232. (a) Wilcox v. Smith, 26 Barb. 316. (&) Id. (c) See Sherman v. Youngs, 6 How. Pr. 318 ; Burtis v. Dodge, 1 Barb. Cb . 77 ; Halsey 11, Van Amrenge, 6 Paige, 12 ; 3 Id. 1 82 ; Western v. Romain, 1 Bradf. 37. (d) See 6 How. Pr. 318: also Code, § 371. 158 THE LAW OF COSTS. such account by those who are entitled to contest the account, and the objections are sustained, it seems that the contestants are clearly entitled to costs,, and such costs should be paid out of the estate, (e) § 6. In order to entitle the executor or adminis- trator to costs in a surrogate's court, they must not be guilty of gross neglect, palpable injustice, or inten- tional mismanagement; or, in other words, they must have used ordinary care, diligence, and integrity, in the managment of the affairs of the estate. (/) § 7. The power of the surrogate to award costs is limited to taxable costs. It is error to allow a sum in gross to the litigants, or the counsel therefor, {g) § 8. The costs of an application to the surrogate for an order upon an executor to give security, are properly chargeable upon the fund which is to come into his hands, and not upon the petitioner personally, nor should such costs be charged upon the executor personally. (7i) § 9. It has been decided by the surrogate of the county of New York, and also by the chancellor, that the provisions of the Eevised Statutes relative to se- curity for costs, apply only to suits in courts of record, and are not applicable to proceedings before a surro- gate, (i) This does not refer to the power of the surrogate to require security to be given by the execu- («) Wilcox v. Smith, 26 Barb. 333. (/) lb.; see also Lain«. Lain, 10 Paige, 191. (g) Reed v. Reed, 52 N. Y. 651. (h) Holmes*. Cock, 2 Barb. Cli. 437. (i) Westervelt ». Gregg, 1 Barb. Oh. iC><>. COSTS IN SURROGATES' COURTS. 15? tor under 2 K. S. 72, § 20, but has reference only to parties litigating before him. § 10. As the statute now gives surrogates power to award costs, in cases of contest before their courts, to the party entitled thereto, and as the fee bill under which such costs must be taxed, or which governs the rate of allowance of such costs, provides for certain allow- ances to counsel as his fee, the surrogate can make such allowances, but he is not authorized to award counsel fees to both of the contesting parties, to be paid out of the estate. (/) This does not apply to the county of New York. § 11. Where an attorney is employed by an exe- cutor or administrator on an accounting before a sur- rogate, the party so employing such counsel is per- sonally liable for his fees, (k) By statute the surrogate of New York county is authorized to grant allowances to counsel in lieu of of costs, in any proceeding before him, in the cases provided by the Code of Procedure in civil actions. (J) The practice of the surrogate of that county is to grant allowances to counsel for both parties in a proper case. § 12. On the settlement of the account of an ex- ecutor or administrator, the surrogate shall allow to him for his services; and if there be more than one, shall apportion among them, according to the services (j) Lee . ?. criminal cause shall be tried, under the pro- visions of this act (pertaining to town officers), shall be satisfied from the evidence and proceedings had before them, that the person or persons charged and tried were complained of and proceeded against with- out probable cause, and with malicious intent to injure or harass, they may render a verdict for costs against the complainant ; whereupon the magistrate shall enter judgment for the amount of such costs, upon which an execution may issue against the prop- erty or person of such complainant, in the same man- ner as upon a judgment rendered for a tort by a justice of the peace, (y) § 2. Whenever, under the order of any court of competent jurisdiction, the pleadings and issue in any indictment or prosecution for any crime or misde- meanor shall have been sent down to any county in this state for trial therein, in consequence of any inability to obtain an unprejudiced or impartial jury in the county in which the venue was originally laid, (n) 2 Fay's Dig. 47, § 1. COSTS IN CRIMINAL CASES. 167 the expenses of the trial of said indictment or prose- cution, shall be a charge upon the county from which the same was transferred; and in case they shall have been assessed on any county in which such issue shall have been determined, the same, with interest thereon, shall be reimbursed to the treasury of such county by the county treasurer in the county from which such proceedings have been sent down, and the board of supervisors of the county liable to pay such expense as aforesaid, are hereby authorized to include the same in their annual levy of taxes, (w) (w) 2 Fay's Dig. 47, § 3. »68 THE LAW OF COSTS. CHAPTER XXIII. COSTS, MISCELLANEOUS. § 1. There are some special cases in which costs are provided for that are not contained hereinbefore, and the provisions therefor being so brief, it was deemed best to include them all in one chapter. Quo Warranto. § 2. A proceeding in the nature of a quo warranto under chapter 2 of title 13 of the Code, is a civil action, and the prevailing party is entitled to costs as in civil actions, and if any one of several issues in such an action be found for the relator upon which judgment of ouster is given, he is entitled to costs of all the issues, (x) Interpleader. § 3. Where an action of interpleader is properly brought, the plaintiff is entitled to his costs out of the fund in controversy, almost as a matter of course, (y) And the same is the case in an action at law against him, brought by the defendant in relation to th e (x) People ex rel. Furman v. Clute, 52 N. T. 576. (y) Aymer v. Gault, 2 Paige, 284; Thompson r>. Ebbets, 1 Hopk. 272; Cantield v. Sterling, Id. 224; Atkinson v. Manks, 1 Cow. 691. COSTS— MISCELLANEOUS. 169 same subject-matter in dispute. As the successful defendant in an action of this nature is entitled to the fund in court, less the plaintiff's costs, he should recover costs against the other defendant, sufficient for his own costs, and also those of the plaintiff, (z) § 4. If an action of interpleader is unnecessarily brought, the plaintiff is not entitled to costs. Thus, where one of the parties claiming the fund in contro- versy offers to indemnify the plaintiff if he would pay the money over to him, the party making such offer should not be required to pay any of the com- plainant's costs, if in the end such party succeeds in establishing his right to the fund, (a) .'§ 5. Where one of the claimants to the matter in controversy does any act, or refrains from conducting the proceedings on his part after the action is brought, by which he admits that the claim by him is ground- less or unjust, he must pay the plaintiff's costs. (&) And he rightfully should be required to pay the costs of the rightful claimant. The rule is not changed by the party who is in wrong, being out of the court's jurisdiction, (c) Costs on Postponement of Trial. § 6. Where an application shall be made, to a court or referee, to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, (a) Richards v. Salter, 6 Johns. Ch. 445; Miller v. De Peyster, 4 Duer, 203; 8. C, 1 Abb. Pr. 234. (a) Bedell v. Hoffman, 2 Paige, 199; Radeu v. Rogers, Id. 209. (1) Id. (e) Canfield v. Sterling, 1 Hopk. 234. 170 THE LAW OF COSTS. besides the fees of witnesses, may be imposed, as the condition of granting the postponement, (d) § 7. Where a cause is postponed upon condition of paying costs, they should be paid at the time of such postponement. It is the duty of the party applying for the postponement to make the tender thereof without a demand therefor, (e) § 8. Where the costs due under a conditional order granting a postponement are not paid, and, in consequence of the order, the cause goes over the circuit, the court will make the proper order for en- forcing payment. If the cause is postponed on pay- ment of costs, either for the day or for the entire circuit, and the party neglect to pay, his opponent may proceed with the trial. (/) § 9. Where, upon the application of a party, a cause is postponed for the term, upon payment of costs within a certain time, or that the opposite party should have judgment, the costs must be paid pursu- ant to such order, or judgment can be taken against the party who obtained the postponement, (cj) The justice thereof seems to be in the fact that if the party seeking such postponement did not like the terms, he should not have taken the order of postpone- ment. (d) Code, § 314. (e) Pinkney v. Pell, 19 Johns. 269; see also Lewis v. Lowry, 3 Johns. Cases, 114. (/) Bagleyj). Ostrone, 5 Hill, 516; see also Buckleys. Kcteltaa, 3 Sandf. 735. (g) Booth v. Whitby, 5 Hill, 440. COSTS— M ISC ELL AN EO US. 171 § 10. The costs of postponing a cause are limited to ten dollars, besides the witnesses' fees. (A) § 11. In regard to the postponement of a hearing before a referee, on the application of the plaintiff, it seems that he must pay the costs the same as a defen- dant would be bound to do, if the postponement was on his application, (i) § 12. Whenever there is an order directing the payment of costs, a process in the nature of a fieri facias may issue against the personal property of the party directed to pay them, and this may be done without application to the court, on the expiration of the time allowed for payment, (j ) § 13. "Where the defendant has the trial put over, on payment of costs, the plaintiff, at his option, may await the event of the action ; or he may demand the costs at once, and, if they are not paid, go on with the action ; or he may serve due notice and have the costs regularly taxed, and serve the taxed bill and demand on defendant's attorney. The notice and bill can not be served on defendant's counsel. (&) The pre- ceding section directs the manner of collecting costs. Costs on Attachment. § 14. In proceedings by attachment to enforce or protect the civil rights and remedies of parties, or for Qi) Noxon v. Bentley, 6 How. Pr. 418. (i) Van Rensselaer v. Fay, 18 Wend. 509. (j) Wetzel v. Schultz, 13 How. Pr. 191. \k) Pinckney v. Laraway, 2 Johns. Cases, 114; Jackson v. Pell, 19 Johns. 270. 172 THE LAW OF COSTS. the non-payment of any sum of money, costs shall be awarded, to be paid by the offending party. (I) If such attachment be issued by the Supreme Court, and the amount to be collected thereon, or the fine or other sum ordered to be paid, exceed two hundred and fifty dollars, such costs shall be taxed at the rate allowed for services in the Supreme Court; if such sum be two hundred and fifty dollars or less, such costs shall be taxed at the rate allowed for services in a county court, (m) Costs on Mandamus. § 15. In suits and proceedings upon writs of man- damus, the Supreme Court may, in its discretion, award or refuse costs to any party therein, (n) § 16. Under the above section, costs will not be allowed to be entered against a party, unless by special order of the court, (o) and the costs of the motion on the original application for the writ of man- damus, will be awarded or not in the discretion of the court, (p) Costs against Municipal Corporations. § 17. No costs, fees, disbursements, or allowance shall be recovered or inserted in any judgment against municipal corporations, unless the claim upon which such judgment is founded shall have been presented for payment to the chief fiscal officer of said corpora- te 2 Fay's Dig. 31, § 13. (m) Id. § 14. (») Id. § 15. (o) Caller v. Supervisors of Dutchess County 3 How. Pr. 380. (p) MrGee v. Densmcrc, 1 Barb. 557. COSTS— MISCELLANEOUS. 173 tion, before the commencement of an action there- on. (5) This rule is equally as applicable to actions brought to recover damages from such corporations on account ■of the negligence or misconduct of its officers, as for -demands on contract, (r) (q) 2 Pay's Dig. 31, § 17. (r) Hart v. City of Brooklyn, 36 Barb. 236. 174 THE LAW OF COSTS. CHAPTER XXIV. , SECURITY FOR THE PAYMENT OP COSTS. § 1. When a suit shall be commenced in any court, 1. For a plaintiff not residing within the jurisdic- tion of such court ; or for several plaintiffs, who are all non-residents : or, 2. For or in the name of the trustees of any debtor: or, 3. For or in the name of any person being insol- vent, who shall have been discharged from his debts, or whose person shall have been exonerated from imprisonment, pursuant to any law, for the collec- tion of any debt contracted before the assignment of his estate: or, 4. For or in the name of any person committed in execution for a crime : or, 5. In the name of any infant whose next friend has not given security for costs : The defendant may require such plaintiff to file security for the payment of the costs that may be in- curred by the defendant, in such suit or proceed- ing, (s) («) 2 Fay's Dig. 32, § 1. The Code of Ohio, § 543, provides that in all cases in which the plaintiff is a non-resident of the county in which the action is to be brought, before commencing such action, SECURITY FOR PA YMENT OF COSTS. 175 § 2. The practice of obtaining and filing security for costs is the same now as before the Code. The statute has made no change therein. (J) § 3. The practice in obtaining security seems to be well established, which is, to obtain a chamber order, ex parte, directing security to be filed within a certain number of days ; and in the event of security not being filed within such time, then requiring cause to be shown at the first special term to be held after the expiration of said time, why security should not be filed. On the return day of the order, if the security have not been previously filed, the motion for security should be heard in pursuance to the alternative of the order to show cause ; and if the motion is granted, a peremptory order to file security should be made, and the plaintiff must furnish sufficient surety for costs. The surety must be a resident of the county where the action is to be brought, and approved by the clerk. His obligation shall be complete, simply by indorsing the summons, or signing his name on the petition as surety for costs. He shall be bound for the payment of all costs which may be adjudged against the plaintiff, in the court in which the action is brought, or to any other to which it may be carried, and for all costs which may be taxed against the plaintiff in such action, whether lie obtained judgment or not; provided that instead of giving security as above, the plaintiff may deposit with the clerk of the court such sum of money as security for costs in the case, as in the opinion of the clerk shall be sufficient for the purpose. But the court may, on motion of the defendant, and if satisfied that such deposit is not sufficient, require the same to be increased, or personal security to be given. (t) Caldwell v. Manning, 24 How. Pr. 38; S. 0., 15 Abb. Pr. 271. § 545 of the Ohio Code relating hereto is that "if the plaintiff in an action, after its commencement, become a non-resident of the county in which it is brought, he shall give security for costs, in the manner ani under the restrictions provided in the two preceding sections " (§5 543, 544). i7<5 THE LAW OF COSTS. if security is not filed within a reasonable time in pursuance thereof, the party moving for such security is entitled to an order dismissing the action, (u) § 4. Such security shall be given in the form of a bond, in a penalty of at least two hundred and fifty dollars, with one or more sufficient sureties, to the defendant, conditioned to pay on demand all costs that may be awarded to the defendant in such suit ; and in case it shall be made to appear to said court, or any judge thereof, at any stage of the litigation after the filing of said bond, as in the next section provided, that the penalty thereof is insufficient, or that the surety, or sureties, on said bond, or either of them, have died or become insolvent, the said court, or any judge thereof, shall make an order requiring the filing of another bond in the penalty of a sum sufficient to cover the costs and disbursements already accrued and incurred in the action, and the costs and disbursements probably to accrue and be incurred, in the further progress of the action, with one or more sufficient sureties, conditioned to pay on demand to the defendant, his representatives or assigns, all costs that may be awarded against the plaintiff in such action, and that all proceedings on the part of the plaintiff be stayed until such further bond be filed, and the sureties shall justify, if excepted to ; and in case of the failure of the plaintiff to cause said further bond to be filed within twenty days after service upon («) Caldwell v. Manning, 24 How. Pr. 38; S. C, 15 Abb. Pr •271. SECURITY FOR PAYMENT OF COSTS. 177 iiis attorney of a copy of said order, or of the surety, •or sureties, on said further bond to justify as in the sixth section of this title provided, the defendant shall be entitled, on notice to the plaintiff's attorney, and on proof, by affidavit, of the facts, to an order that the plaintiff's action, or the proceeding therein then pending, be discontinued, and to a judgment on said -order against the plaintiff for his costs and disburse- ments, (y) § 5. The order to file such security, and that all pro- ceedings on the part of the plaintiff be stayed until such security be filed and the sureties shall justify, if excepted to, may be made by the court in which the .-action is pending, or by any judge thereof in vaca- tion, upon due proof, by affidavit, of the facts enti- tling such defendant thereto, (w) § 6. The said bond or bonds shall be filed with the clerk of the court, and notice thereof be given to the defendant or his attorney. Within twenty days after the service of such notice, the defendant may •except to the sufficiency of the sureties, by giving notice of such exception to the plaintiff's at- torney, (x) § 7. Within twenty days after such notice of («) Laws of 1875, p. 298, ch. 305, § 4. The Code of Ohio, § 544, provides that "an action in which security for costs is required by •.the last section (§ 543), and has not been given, shall be dismissed on •the motion and notice by the defendant at any proper time before judgment, unless in a reasonable time, to be allowed by the court, such tsecurity tor costs be given." (as) 2 Fay's Dig. p. 32, § 3. (x) Id. § 5. 12 178 THE LAW OF COSTS. exception, the plaintiff may give to the defendant, or his attorney, notice of the justification of the sureties before the judge of the court or county judge, at a specified time and place : the time to be not less than five, nor more than ten . days thereafter. The quali- fication of the sureties shall be, that each must be a resident of and householder or freeholder in the state, and they must each be worth the sum of five hundred dollars, exclusive of property exempt from execution. For the purpose of justification, each of the sureties shall attend before the judge or justice of such court or county judge, at the time and place mentioned in the notice, and may be examined on oath on the part of the defendant, touching his sufficiency, in such manner as such judge or justice in his discretion may think proper. The examination shall be reduced to writing, and subscribed by the sureties, if required by the defendant or his attorney. If such judge or justice find the sureties sufficient, he shall annex the examination to the undertaking, indorse his allow- ance thereon, and cause them to be filed with the clerk ; and such justification shall operate to dis- charge the stay of proceedings, (y) § 8. The proceedings herein are not precluded by the fact that an affidavit of justification was made and filed "with the bond. Notwithstanding such is the fact, the sureties may be required to justify, (z) § 9. Where an action of ejectment, under the (y) Laws of 1875, p. 17, ch. 16, § 16. (z) Bronson v. Freeman, 8 How. Pr. 493. SECURITY FOR PAYMENT OF COSTS. 179 statute for a determination of a claim to real prop- erty, is brought by a non-resident plaintiff, he should be required to file security for costs, (a) § 10. It seems that where the real plaintiff resides out of the state, but the plaintiff of record is a resi- dent of the state, an insolvent security may be required, (b) And the same applies, even if the resident plaintiff of record is not insolvent, when the only plaintiff in interest is a non-resident, (c) § 11. Where the plaintiff of record is a non- resident, the defendant is entitled to security for costs, although the cause of action was assigned to a third party, who was a resident of the state, which assignment had been made before the commencement of the action, (d) § 12. Where a non-resident commences an action, he may be required to file security for costs at the commencement of the action, (e) § 13. The statute which allows the defendant to require a non-resident plaintiff to file security for costs, does not make it imperative on the court to grant an order for such security under all circum- stances. (/) § 14. In the cases in which, according to the pro- visions of this chapter, a defendant at the commence- to) Northrop v. Wright, 1 How. Pr. 146. (6) Allen v. Collins, 1 How. Pr. 251. (c) Charles ». Wateman, 2 How. Pr. 122. [d) Phenix d. Townshend, 2 Code R. 2. - («) AmMer «, Ambler, 8 Abb. Pr. 340. (/) Fearn «. Gilpike, 13 Abb. Pr. 473. 180 THE LAW OF COSTS. ment of a suit shall be entitled to require security for costs, the attorney for the plaintiff shall be liable for such costs, to an amount not exceeding one hundred dollars, until security therefor be filed, as herein pro- vided, whether such security shall have been required by the defendant or not. {g) § 15. Although a plaintiff has been absent from the state for more than two years, and was not in it at the commencement of the action, yet where his wife and minor daughter continued to reside here, and to receive letters from him expressing his intention to return to his home here, he is not such a non-resident that the court will compel him to file security for the costs of the action. (A) § 16. Where a foreign corporation fails to file secu- rity at the commencement of an action brought by them, it will be treated as an irregularity, and not a condition precedent to their right to sue. (i) § 17. Where an assignee for the benefit of credi- tors brings an action, and at the time is a non-resident, he may be required to file security for costs, and he may be compelled to do so even after he has taken an appeal, (j) § 18. It is the general rule under the statute to require all non-residents who commence an action in this state to give security for costs, if demanded by {g) 2 Fay's Dig. 32, § 7. (A) Roberti v. Methodist Book Concern, 1 Daly, 8. O) Persse & Brooks Paper Works v. Willet, 14 Abb. Pr. 110. ( j) Ramsey v. (Stringer, 4 Bosw. 668. SECURITY FOR FAYMENT OF COSTS. 181 the defendant, and the same is the case if the action has been brought by a non-resident in a representative capacity. Thus where a non-resident administrator prosecutes an action in behalf of his intestate, he may be required to give security for costs. (7c) § 19. In construing the latter clause of § 317 of the Code, which authorizes the court in its discretion to require the plaintiff who prosecutes an action in his representative capacity to give security for costs, "Welles, J., said : " I incline to the opinion that the cases in which the discretion in question should be exercised, are those mentioned in a previous part of the section, in which the court is authorized to direct the costs to be paid by the plaintiff or defend- ant personally, for mismanagement or bad fath in such action or defense, and that whenever the plaintiff is shown to be guilty of mismanagement or bad faith, such as would justify the court in charging the costs of the defense upon him personally, it would be the duty of the court, on motion, pending the action, to require the plaintiff to give the security contemplated in the last clause of the section." (7) And with refer- ence to bad faith and mismanagement he says : " The bad faith and mismanagement mentioned in the section, are to be understood as relating to the com- mencement of the action, and the proceedings therein, and not to the conduct of the person generally in the management of the trust." (k) Murphy v. Darlington, 1 Code R. 85. (Q Kimberly o. Stewart. 23 How. Pr. 281. 182 THE LAW OF COSTS. §20. It is no bar to requiring security for costs, that a receiver obtained leave upon an ex-parte order to sue, but he may be required to file security the same as if no order had been granted, (m) § 21. In the supervisors' court of the city of New- York, the rule requires the plaintiff who brings an action therein, and who resides outside of the city or county of New York, to file security for costs, if demanded by the defendant, as not being a resident within the jurisdiction of the court, (n) \ 22. The power of the court, or of a judge, mak- ing the order for security a stay of the plaintiff's proceedings until the securities be filed, and the sureties justify, if excepted to, is derived from the statute, and is the only method therein provided to compel the plaintiff to file the security ordered, (o) § 23. A motion to require the plaintiff to file security for costs, where the defendant is required to put in special bail, to the action, can not be made until after special bail has been put in and per- fected, (p) § 24. All appeals by municipal corporations from the judgment or decree of any court of this state, shall be valid to stay proceedings on such judgment or decree, without security or undertaking being given, unless the court in which such judgment or (to) Bolles v. Duff, 17 Abb. Pr. 448. 01 Bolton v. Taylor, 18 Abb. Pr. 385; S. C, S Bob. 647; Blossom v. Adams, 2 Code B. 59; Hicks ». Payson, 7 Abb. Pr. 326. (o) Washburn v. Langley, 16 Abb. Pr. 259. C.m Davidson v. Hackstaff, 3 How. Pr. 11. SECURITY FOR PAYMENT OF COSTS. 183 decree is rendered shall otherwise direct; and in such a case an undertaking executed in their official capacity, by either the mayor, comptroller, or counsel to the corporation, in the name and on behalf of said corporation, shall be valid for the purpose of such appeal, and shall bind said corporation to the per- formance of the conditions of said undertaking, (q) § 25. Where all the plaintiffs are not non-resi- dents, they can not be required to file security for costs, although the only resident plaintiff is insolvent, as the statute allows security only where all the plaintiffs are non-residents, (r) But in cases where a guardian ad litem is one of the plaintiffs in an action, and a non-resident, he may be required to give secu- rity for costs, whether he is solvent or not, although the other plaintiffs are residents, (s) § 26. The defendant can not require the plaintiff to file security for costs, where there is any determin- ation in the action which amounts to an interlocu- tory judgment against him, and until that judgment is disposed of, he can not be entitled to a judgment for costs against the plaintiff; consequently, the defendant is not in a position to ask security, (f) § 27. Where an action is brought in the courts of this state by a foreign government, it may be com- pelled to file security for costs, on motion of the de- fa) 2 Fay's Dig. 32, § 9. (r) Ten Broeck v. Eeynolds, 13 How. Pr. 462. («) Id. <() Butler v. Wood, 10 How. Pr. 313. 1 84 THE LAW OF COSTS. fendant, the same as in the case of other non-resident plaintiffs, (u) § 28. The statute requiring security for costs does not apply to actions of replevin, as the undertaking in such cases is security for costs, (v) §29. The practice concerning the filing of se- curity for costs in actions prosecuted by a next friend,, is entirely the creature of the court, and is wholly under its control, except in cases where actions are- brought by a next friend of an infant, and in such cases, it seems security may be required or not, ac- cording to the circumstances in the case, (w) § 30. With regard to the giving of security by the general guardian of an infant, the Supreme Court has made the following rule : " The security to- be given by the general guardian of an infant shall be a bond, in a penalty of double the amount of the personal estate of his ward, and of the gross amount, or value of the rents and profits of the real estate during his minority, together with at least two suffi- cient sureties, each of whom shall be worth the amount specified in the penalty of the bond, over and above all debts ; or instead of personal security, the guardian may give security by way of mortgage on unincumbered real property, of the value of the pen- (u) Republic of Mexico v. Arrangois, 3 Abb. Pr. 470; 8. C, 11 How. Pr. 1, affir'd Id. 1570. (v) Rogers v. Hitchcock, 9 Wend. 4G2. (w) Thomas v. Thomas, 18 Barb. 149. The Code of Ohio, § 31, provides that "the guardian or next friend is liable for the costs of the action brought by him, and when he is insolvent, the court may require security for them." SECURITY FOR PAYMENT OF COSTS. 185 alty of his own bond only. But the court, in its dis- cretion, may vary the security, where from special circumstances it may be found for the interest of the infant ; and may direct the principal of the estate, or any part thereof, to be invested in the stocks of the state of New York, or of the United States, or with the New York Life Insurance and Trust Com- pany, the United States Trust Company, or Farmers' Loan and Trust Company, or on bond and mortgage, for the benefit of the infant, and that the interest or income thereof only be received by the guardian, (as) (x) Supreme Court Rule 66. 186 THE LAW OF COSTS. CHAPTER XXV. TAXATION OF COSTS. § 1. The adjustment or taxation of costs is a sub- ject of considerable importance, wbile the statutes, or that part thereof comprising the Code of Procedure, has plainly enumerated certain allowances which shall be taxed and allowed as costs ; yet there are many items which compose the costs in an action or proceeding, denominated disbursements, that have been left to the court's discretion, which in many cases have been conflicting, so much so, that it may be impossible to give the general principle in all matters pertaining thereto. § 2. The Code provides that, " the clerk shall insert in the entry of judgment, on the application of the prevailing party, upon five days' notice to the other, except when the attorneys reside in the same city, village, or town, and then upon two days' notice, the sum of the allowances of costs, as provided by this Code, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking- depositions, the fees of referees, and the expenses of printing the papers for any hearing, when required by a rule of the court. The d s- bur. ements shall be stated in detail, and verifi d TAXATION OF COSTS. 187 by affidavit. A copy of the items of the costs and disbursements shall be served with a notice of adjustment. Whenever it shall be necessary to adjust costs in any interlocutory proceeding in an action, or in any special proceeding, the same shall be adjusted by the judge before whom the same may be heard, or the court before which the same may be decided or pending, or in such manner as the judge or court may direct." (jj) § 3. It seems very apparent by the above section, that it was intended to make the clerk the taxing officer, although he is not made so by positive or express terms, (z) The Revised Statutes (a) pro- vided that the costs should be taxed by one of the justices or by the clerk, a circuit judge, or a Supreme Court commissioner, and by the provisions of the act of 1813, authority to tax costs was conferred upon the clerk, and undoubtedly by reason of these statutes the Code is silent, except what can be inferred from the preceding section, as to who the taxing officer is. § 4. It is well settled, that disbursements can not be taxed where costs can not, as they are in fact a part of the costs, (b) {y) Code, § 311. (z) Whipple v. Williams, 4 How. Pr. 28 ; Nellis v. De Forest, 6 Id. 413; Union India Kubber Co. «. Babcook,. 1 Abb. Pr. 262; S. C, 4 Duer, 620. (a) 2 R. S. 282, §§ 34, 37. (6) Peet v. Warth, 1 Bosw. 653; Belding v. Conklin, 4 How. Pr. 196; S. C, 2 Code R. 112; Wheeler v. Westgate, 4 How. Pr. 269; Newton v. Sweet, 4 Id. 134; S. C, 2 Code R. 61; Taylor v. Gardner, 4 How. Pr. 67; 8. C, 2 Code R. 47; Keating v. Anthony, 1 Code R., N. S. 233. '88 THE LAW OF COSTS. § 5. Every officer authorized to tax costs in any court of law or equity, or for services rendered in any proceeding authorized by law, shall examine the bills- presented to him for taxation, whether such taxation be opposed or not, and shall be satisfied that the items- charged in such bill are correct and legal ; he shall strike out all charges for services which, in his judg- ment, were not necessary to be performed, and for all folios in pleadings, entries, or proceedings, which were unnecessarily inserted, (c) § 6. When a bill of costs shall be presented for taxation, upon a judgment rendered upon any bond or instrument having a penalty, before such bill shall be taxed, an affidavit of the plaintiff or his attorney shall be produced, specifying the amount due by the condition thereof, (d) §' 7. No county clerk shall tax costs in any case except where the amount thereof, exclusive of actual disbursements, which the party for whom they shall be taxed shall be entitled to recover, shall be limited by law ; and the taxed bill of costs and all affidavits presented to the taxing officer on the taxation of such costs, shall be in all cases attached to and filed with the judgment record or enrollment, (e) § 8. When there shall be charges in a bill for the attendance of any witness, or for copies or exemplifi- cations of documents or papers, or for any other dis- (e) 2 Fay's Dig. 85, § 5. (d) Id. § 6. (e) I.I.. 36 § 14. TAXATION OF COSTS. 189 bursements, except to officers for services rendered, such charges for witnesses shall not be taxed, without an affidavit stating the distance they respectively traveled, and the days they actually attended ; and such charges for copies shall not be taxed without an affidavit that such copies were actually and necessa- rily used, or were necessarily obtained for use ; nor shall such disbursements be allowed without an affi- davit specifying the items thereof particularly, nor unless they appear to have been necessary and reason- able in amount. (/) § 9. If, upon the trial of any cause, the title to land shall come in question, or the plaintiff's claim shall be reduced by set-offs, or the trespass shall ap- pear to be malicious, or any other fact shall appear, which will entitle either party to costs, or to double •costs, the judge or judges holding the court, shall, on the application of either party, either before or after verdict rendered, cause an entry to be made in the minutes of the court, specifying that such title came in question, or that such fact appeared ; and no evi- dence shall be received by any taxing officer, of such matter, other than a certified copy of such minutes, or the certificate of the judge or judges who tried the cause, (g) §10. In all suits which may be commenced after this act takes effect, in the name of the people of this (/) Id. 85 § 7. (g) Id. § 8. See ante, p. 14. i9° THE LAW OF COSTS. state, where the debt, damages, or sum of money in controversy, if recovered, will not belong to the treasury of this state, the cost of prosecuting such suit, or defending where the defendant succeeds in his de- fense, shall not be a charge against the state treasury ; but such costs, if the suit shall be brought for a debt, damages, or sum of money, or where the matter in controversy, if recovered, will belong to any particular county, city, town, or village, shall be a charge against such county, city, town, or village. (Ji) § 11. Wherever suits have been brought, or shall hereafter be brought, by the direction of the commis- sioners of the land-office, pursuant to the fifth article of the fifth title of the ninth chapter of the first part of the Revised Statutes, and the plaintiffs in such suits have failed or shall fail to recover in such suits, or the defendant in such suits shall be unable to pay the costs adjudged against them, the comptroller shall have power to audit and settle the amount of the tax- able costs in such suits, and to direct the payment thereof out of the treasury of this state to such district attorneys as may be entitled to the same, (i) § 12. Upon the settlement of an execution by a defendant, or upon settling any suit or demand, the sheriff or attorney, claiming any fees which shall not have been taxed, shall, upon being required by the defendant, and upon his paying the expense thereof, have his fees taxed by some proper officer of the court (h) 2 Fay's Dig. 35, § 9. (i) Id. § 10. TAXATION OF COSTS. 191 in which the action may be pending, or from which the execution shall have been issued. (/ ) § 13. No sheriff or attorney shall collect any fees after having been required, as aforesaid, to have the same taxed, without such taxation having been made, (k) § 14. The surrogates of the several counties in this state shall, upon the written request of the person or persons liable to pay the same, procure their bills for fees and charges, taxed by the judge of the county court, . or by some other officer authorized to tax bills of costs in the Supreme Court, residing in the county with such surrogate ; upon due service of a copy of such bill and notice of taxation on the executor, ad- ministrator or other person liable to pay the same, at least six days before such taxation, for which service the taxing officer shall be entitled to receive from the person or persons requiring the same to be taxed, fifty cents, the surrogate, or any party interested, conceiving himself aggrieved by such taxation, may appeal therefrom to the Supreme Court, according to the practice of said court in cases pending therein. (Z) § 15. All clerks and registers of counties claiming any fees by virtue of their respective offices, shall, upon being required in writing by the party liable to (j) 2 Pay's Dig. 34, § 1. (*) M. § 2. (I) Id. 36, § 15. 192 THE LAW OF COSTS. pay the same, his agent or attorney, and on payment of the expense thereof, have their fees taxed by some officer authorized to tax costs in the Supreme Court, and either party may appeal from such taxation to the Supreme Court, (m) § 16. No clerk or register shall collect any fees after having been required as aforesaid to have the same taxed, without such taxation having been made. (») § 17. The fee for such taxation shall be fifty cents, (o) § 18. The items of disbursements which should be allowed to the prevailing party upon the taxation of costs, are separately given below, in which it is purposed to include all the disbursements commonly taxed. The word "disbursements," has a more ex- tensive meaning since the adoption of the Code than prior thereto, as seems very conclusive from the spirit and tenor of its various provisions, as the intention therein expressed is the making of certain allowances as " an indemnity," and it being for that purpose, the party should be indemnified for all his just and necessary disbursements. § 19. The prevailing party should be allowed the necessary expenses of a commission to examine a witness in another state, and the same should be (m) Faj's Dig. 35, § 11. (n) Id. § 13. (p) Id. § 13. TAXATION OF COSTS. 193 taxed, (p) and the fees of witnesses so examined should be allowed upon such taxation, (q) § 20. The rule seems to be, that the only dis- bursements in a civil action under the Code, are those specified in § 311 thereof, (r) § 21. Witnesses' fees are proper items to be taxed in the bill of costs, as a necessary disbursement, but a party to an action who is examined as a witness therein, is not entitled to witness's fees, and they can not be taxed, (s) § 22. The necessary expenses for all searches and ■copies of papers, from the clerk's or surrogate's office, that are needed in an action, are taxable, (t) § 23. The necessary expense of printing cases and points, as required by Rule 52 of the Supreme Court of 1875, are proper disbursements to be taxed, (u) It is error to charge for printed copies of the case and points by the folio, (v) § 24. The fees paid for stenographers' notes, when necessary in making amendments to a case, are taxa- ble in the first judicial district, (w) § 25. Where the respondent makes affidavit on (p) Finch v. Calvert, 13 How. Pr. 13; Dunham v. Sherman, 19 How. Pr. 572; S. C, 11 Abb. Pr. 152. (q) Case ». Price, 17 How. Pr. 348, affirming 13 How. Pr. 13. (r) Case v. Price, 17 How. Pr. 348; S. C, 9 Abb. Pr. Ill; Hand e. Baare, 9 Bosw. 682. (s) Walker a. Russell, 16 How. Pr. 91 ; S. C, 7 Abb. Pr. 452 (n.); see fees of witnesses for amount. («) Cases. Price, 17 How. Pr. 348; S. C, 9 Abb. Pr. 111. (v) Wilcox v. Curtis, 10 How. Pr. 91. (11) Brockway a. Jewett, 16 Barb. 590. (w) Sebley v. Nichols, 32How.Pr. 182; Reynolds v. Mayor, &c. of 13 194 THE LAW OF COSTS. settlement of a case on appeal, that in order that he may propose proper amendments, it is necessary that he have the whole or part of the stenographer's notes taken on the trial. In such a case, the expense of procuring such notes is a proper item to be taxed in the adjustment of costs at a general term, (x) § 26. Where a cause is referred, it is proper to tax for a certified copy of the order of reference. It is a necessary paper in the cause, as it is the only authority upon which the referee can properly act. The fees of the referee are also taxable, but it seems that they must be shown to have been paid by the affidavit of the party entitled to have them taxed. (?/) § 27. In cases in which it is necessary to take a transcript of a judgment, and docket it in another county, the fees paid therefor are proper items to be taxed, (z) § 28. The statute prescribes the amount of fees allowed a sheriff for serving a summons, and the amount so prescribed is a proper item to tax in a bill of costs. But where the service is made by a person other than a sheriff, the fees allowed sheriffs for such services can not be taxed in such a case, but a rea- sonable compensation for such services can be allowed, and should be taxed, (a) New York, 14 Abb. Pr. 176 (n.); Laws of N. T. 1863, 659; but see Gilman®. Oliver, 14 Abb. Pr. 174; 8. C., 9Bosw. 589; Aroux®. Phelan, 21 How. Pr. 88. (x) Selbey v. Nichols, 32 How. Pr. 182. (y) Toll v. Thomafi, 15 How. Pr. 315. («) w- (a) Case v. Price, 17 How. Pr. 348. TAXATION OF COSTS. 195 § 29. All the necessary fees paid to officers, and other persons in a cause, are a part of the necessary ' disbursements which should be taxed. (5) § 30. A charge for postage paid, is a proper dis- bursement to be taxed. But it can not be allowed when stated in gross, but must be set forth in items, specifying briefly the occasion and circumstances of the expenditure; (c) e. g., on letter to the county clerk enclosing judgment roll. And where papers are sent by express instead of mail, the amount paid there- for, if it does not exceed the ordinary postage thereon, should be allowed as a necessary disbursement, (d) § 31. We shall endeavor to give a few of the cases and circumstances in and by which certain dis- bursements are not allowed. While the amendment of 1857 of the Code makes the provisions concerning the allowance of disbursements more liberal than be- fore, yet it should not be extended beyond such dis- bursements as are incident to the due and regular proceedings in the action. And it was not intended to cover the ordinary disbursements of the parties to the suit; (e) e. g., their expenses while attending court, although they were sworn as witnesses. § 32. Where a commission is executed in a foreign country, it is no ground for the allowance of solicitor's (6) De Witt v. Swift, 3 How. Pr. 280; S. C, 1 Code R., 25; Finch u. Calvert, 13 How. Pr. 13. (c) Rodgera t. Rodgers, 2 Paige. 468. (d) NewYork Life Insurance and Trust Co. v. Davis, 10 Paige 507. (*) Case v. Price, 17 How. Pr. 348; S. C, 9 Abb. Pr. Ill; see also Finch v. Calvert, 13 How. Pr. 13. 196 THE LAW OF COSTS. charges who are employed there for the purpose ol executing such commission, for the reason that the attorney of record would not have been entitled to any allowance for such services if he had performed them himself. (/) § 33. Nothing can be allowed for the service ol subpoenas, as there is no law, express or implied, which favors an allowance therefor. A party must be at this expense without the right to a reinbursement, as it is a matter which the party can do himself, and there is no more propriety in allowing a party for such ser- vice, than there would be for his personal expenses while attending upon the trial, {g) § 34. Where a judgment is obtained by an inquest, the defendant not appearing, and thereby waiving a trial by jury, no jury fee can be taxed. (A) § 35. Where a party procures a survey simply for the purpose of determining his rights in property, and it being for his own benefit, the expense thereof is not taxable, It is only when the survey is a part of the proceedings in the action (e. g., in case of par- tition or admeasurement of dower), that a surveyor's fees are taxable as a disbursement. (%) § 36. Where a reference is had simply to take an account, or to ascertain damages, no trial fee can be (/) Dunham v. Sherman, 19 How. Pr. 572; S. C, 11 Abh. Pr. 152. (g) Burnett ®. Westfall, 15 How. Pr. 430 ; Wheeler s. Lozee, 12 How. Pr. 446. (A) Goodyear*. Baird, 11 How. Pr. 377. (»') Haynes b. Moaher, 15 How. Pr. 216. TAXATION OF COSTS. 197 allowed therefor, as there has been no trial before the referee within the meaning of the Code, (j) And in any case, although the defendant may answer, if he does not controvert the allegations of the com- plaint, it seems there can be no trial fee allowed, notwithstanding there has been a trial by the plain- tiff. (&) E. g. y the plaintiff brings an action on a note. The defendant does not deny the allegations of the complaint, but sets up a counter-claim of part of the amount claimed in the complaint. This was admitted by the plaintiff 's not replying. § 37. Double costs are not allowed upon the re- ports of referees. (Z) Nor can they be allowed in actions in equity, (m) The authority for allowing double costs is a statutory provision, and it has not been abolished by the Code, in) § 38. There is another item that should be in- cluded in the taxation of costs, as is specially pro- vided by the Code, as follows: " When the judgment is for the recovery of money, interest from the time of the verdict or report until judgment be finally entered shall be computed by the clerk, and added to the costs of the party entitled thereto." (o) § 39. It shall be lawful for any party to a suit, who shall have obtained a verdict or a report of a (j) Taaka v. Schmidt, 25 How. Pr. 340. (k) Pardee v. Schenck, 11 How. Pr. 500. (Z) Anon., 19 Wend. 225. (m) Taaks v, Schmidt, 25 How. Pr. 340. (n) Id. (0) Code, § 310. 198 THE LAW OF COSTS. referee in his favor, to tax interest upon the amount of such verdict or reports as costs, from the time of the obtaining of the same to the time of the perfect- ing judgment therein. And whenever money paid out shall have been directed to be refunded or repaid, such direction shall, unless otherwise expressed, be deemed to include lawful interest. ( p) §40. Where a clerk is authorized to compute in- terest on the report of a referee under § 310 of the Code, such interest should be computed from the time of making the report, and not from its date, (q) § 41. Interest which is allowed after a verdict or report of a referee, forms no part of the recovery for damages, but must be taxed as costs, (r) § 42. Whenever an action is commenced which is founded on contract, bearing interest, if the judgment recovered is delayed by the party defeated, the other party is entitled to interest on his verdict until the time of taxing the costs, (s) Where the delay is caused partly by both parties, if the plaintiff recover, he can only have interest during that part of the delay which was caused by the defendant, (t) § 43. The affidavit required, as far as relates to witnesses' fees, needs to be carefully drawn, so as to include a full statement of the days on which they (p) Laws of New York, 1869, vol. 2, p. 1890. ch. 807, § 3. (q) Fuller ». Squire, 8 How. Pr. 121. (r) Troy City Bank v. Grant, 1 How. Pr. 135. (a) Vredenburgh v. Hallett, 1 Johns. Cas. 27; People v. Gaiur, 1 Johns. 343. (t) Bull v. Ketchum, 2 Denio, 188. TAXATION OF COSTS. 199 attended, and whether they attended each time on a subpoena or not ; and if they did not attend upon a subpoena, then their affidavits must be given that they attended at the request of the party, for the sole pur- pose of being witnesses, and would not otherwise have come to the place where the court was held. The affidavit of the party should also state the distance from the place of residence of the witness to the court- house, by the usual modes of traveling. If a foreign witness, then the distance from the point where per- sons coming from his place of residence to the state of New York usually enter the state to the court-house, must be given. It should also appear that each of the witnesses, for whom the party entitled to costs claims to be allowed, was a material and necessary witness for the party upon the trial of the action, also giving their name and place of resi- dence, (zt)' § 44. "Where a reference is had, and the defendants appear by two different attorneys, two bills of costs are properly allowed, but only one set of witness fees can be taxed for the same witness, unless affidavits are produced showing that the witness was subpoenaed or requested to attend by both parties. The party (u) Taaks v. Schmidt, 25 How. Pr. 340; Loll v. Thomas, 15 Id. 315 ; Haynes v. Mosher, Id. 216 ; Hicks s. Brenuan, 10 Abb. Pr. 304 ; "Wheeler v. Lozee, 12 How. Pr. 446; Logan v. Thomas, 11 Id. 160; Dowling v. Bush, 6 Id. 410; Clark v. Sterling, 4 Id. 243: Schemerhorn v. Van Vroast, 5 Id. 458; S. C, 1 Code R., N. S. 400; Dean v. Wil- liams, 6 Hill, 376; Ehle v. Bingham, 4 Id. 595; Anon., 3 Id. 457; Willink v. Reekie, 19 Wend. 82 ; Bank of Niagara v. Austin, 6 Id. ■548. 200 THE LAW OF COSTS. who subpoenaed the witness or made the request should make the affidavit, (v) § 45. Where several witnesses were subpoenaed,, but part of them only were allowed to be examined,, fees may be taxed for the whole of them, the same as though they had all been examined, (w) § 46. The Revised Statutes (x) provides that "no counsel or attorney in any cause shall be allowed any fee for attending as a witness in such cause." But where counsel shall attend in good faith as a witness, and is not retained as counsel until after he arrives at the court, his fees as a witness are taxable ; (jj) and an attorney of record is entitled to his fee as a witness for the day on which he was sworn, but not to mileage, (z) § 47. The mileage to witnesses is it seems only necessary to be paid once, where his per diem fees- are paid for the time he is required to stay, unless the court adjourn, and in such case he is entitled to his mileage. But where the cause is only adjourned for a day, and he is paid his fee for that day before re- turning home, he can not claim mileage, (a) § 48. Where an agreement is made with an expert to pay him a certain sum on condition that his testimony led to the satisfactory termination of an (d) Taaksfl. Schmidt, 25 How. Pr. 340; see Hicks e. Brenan, 10 Abb. Pr. 304; Vence ». Spier, 18 How. Pr. 168. (w) Lawrence v. Vail, 5 Abb. Pr. 227. (x) 2 R. S., Edm.'sed. 671. (y) Reynolds v. Warren, 7 Hill, 144. (z) Taaks v. Schmidt, 25 How. Pr. 344. (a) Muscott ». Runge, 27 How. Pr. 85. TAXATION OF COSTS. 201 action in which the party making such agreement- was interested, no fees or traveling expenses can be recovered, as the agreement is void, and the ordinary legal fees only can be taxed, when such witness is sworn. (6) § 49. Where a witness is duly subpoenaed, and his legal fees paid, but before he gets to the court he is informed of its adjournment, and returns home with- out going into court, his fees should be taxed, (c) And where a witness is subpoenaed on his way to the place where the court is held, he is entitled to his mileage from his home, and the same can be taxed, (d) § 50. Where a witness is subpoenaed at the place of trial, whether he be a foreign or other witness, he is not entitled to his travel fees, and they can not be taxed, (e) But where he comes there only as such witness pursuant to a request, and is subpoenaed after his arrival, his fees should be paid. (/) § 51. Where witnesses are subpoenaed, and the case is referred, it being one of that class that the practice of the courts required to be referred, which is well known to the plaintiff, who refuses to refer before the circuit convenes, he can not tax witnesses' fees for such circuit. (#) (b) Dodge v. Stiles, 26 Conn. 403 ; see Pollak v. Gregory, 9 Bosw. 116; Dawkins v. Gill, 10 Ala. 206. (c) Roth a. Meads, 20 How. Pr. 287. (d) Pike v. Nash, 16 How. Pr. 53. (e) Dowling v. Bush, 6 How. Pr. 410 ; Wheeler t>. Lozee, 12 Id. 446; Peck v. Wood, 21 Id. 209. (/) Wheeler v. Lozee, 12 How. Pr. 446. (g) Pike v. Nash. 16 How. Pr. 53. so2 THE LAW OF COSTS. § 52. When a witness, for good cause shown, is subpoenaed late, and does not reach the place of trial until after the cause is postponed, his fees are tax- able, (h) § 53. A judgment entered, and costs adjusted without giving the proper notice, where the party is entitled to a notice of taxation, is irregular, and will be set aside on motion, (i) In such a case there must be a retaxation of costs, at the cost of the party who should have given the notice. § 54. Upon the taxation of costs for an appeal to the Court of Appeals, the amount and items thereof should be governed by the law in force at the time the decision therein is rendered. (/) § 55. In cases where it is necessary to tax costs, the judgment should be entered before the costs are adjusted by the clerk. The costs are to be adjusted by the clerk, and inserted in the record by him, after judgment has been entered, as the Code requires the clerk upon receiving a verdict to enter the judgment in conformity therewith ; consequently he has no right to delay such entry of judgment until the costs are taxed, so as to include them there- in. (*) § 56. In case a new trial is allowed upon an (A) Clarke v. Staring, 4 How Pr. 243. (i) Edsoti v. N. Y. Equitable Life Insurance Co., 2 Code K. 30; S. C, 2 Sandf. 654; Gilmartin v. Smith, 4 Id. 684; Mitcbel v. Hall, 7 How. Pr. 490. (j) Ackley v. Tarbox, 19 Abb. Pr. 119. (k) Coles «. Smith, 29 How. Pr. 326 ; S. C, afi'd 31 Id. 146, 638 (n.). TAXATION OF COSTS. 203 appeal, the clerk can not tax the costs of the appeal, unless a direction authorizing such costs to be taxed is made by the order of the appellate court. (J) § 57. The notice of adjustment required by the Code is necessary to be served upon the party to the action, in order to make the taxation regular and valid as respects the notice, except in cases where the party does not give notice of appearance, (m) § 58. Where due and proper notice is given for a certain time in which to tax the costs, and the party served therewith, fails to attend, and no costs are adjusted, no new notice of adjustment need be given, (n) § 59. Where a party entitled to notice of taxa- tion of costs makes a positive affidavit that he has never received such nqtice, the party claiming to have given it must positively show the time and manner of such service, (o) Notice to the attorney of record is sufficient, (p) § 60. The courts will always use the discretionary power which they possess in such matters, to hinder unmerited hardships or undue advantage. And where the opposing attorney resides a great distance from the place of taxation, and the time is evidently (I) Penuell v. Wilson, 2 Abb. Pr., N. S. 466; S. C, 2 Rob. 585; 5 Id. 674. (m) Edson r. New York Equitable Insurance Co., 2 Code R. 30; 8. C, 2 Sandf. 654; Dix v. Palmer, 5 How. Pr. 233; S. C, 3 Code R. 214. (ra) Cooper v. Astor, 1 Johns. Cas. 32. (T-i. TAXATION OF COSTS. 205 been paid. But the motion therefor must be made before payment, (u) § 65. Objections can not be considered on the re- adjustment of costs, unless they are made before the taxing officer upon the taxation, (y) unless it be in such a case as named in § 60, ante. § 66. It is necessary upon the adjustment of costs, to present all the affidavits upon which the party intends to rely, as none other can be used on an appeal from such taxation, (w) § 67. The proper course to pursue when the clerk upon the taxation of costs admits improper items, or in any way erroneously adjusts such costs, is by a motion to the court in the nature of an appeal ; but no appeal should be taken from the judgment of the ■court, (x) Where the costs are taxed upon a judg- ment in the county court, the motion should be made to the county court, but an appeal from the taxation ■of circuit costs should be taken to the special term. § 68. The fact that costs have been improperly or irregularly taxed, does not in any way affect the validity of the judgment, (y) § 69. Where an appeal is taken from the decision ■of the clerk in taxing a bill of costs, it is necessary (u) Schemerhorn v. Van Vroast, 5 How. Pr. 458; S. C, 1 Code R., ST. S. 400; Dresser v. Wickes,2 Abb. Pr.460;Collomb v. Caldwell, 1 •Code R., N. S. 41; 8. C, 5 How. Pr. 336. (») Cuyler n. Coats, 10 How. Pr. 141. (w) Logan v. Thomas, 11 How. Pr. 160. (x) Beattie v. Qua, 15 Barb. 132. (y) Watson v. Gardiner, 50 N. T. 671 ; Coats «. Smith, 29 How. Pr. 326; S. C, aff'd 31 Id. 146, 633 (n.). 206 THE LAW OF COSTS. to use an affidavit to support such appeal, showing that the items claimed to have been improperly allowed, were allowed under objection, (z) § 70. The clerk only has power to tax costs upon the entry of final judgment. But the court may confer authority upon him, by an order therefor, to tax such costs as the court or a judge thereof has the power to tax. (a) § 71. The county clerk has the power to tax costs in special proceedings under the statute, and while there is no statutory provision for taxing costs on a mandamus, the courts hold that he may tax 1 such costs. (5) § 72. The clerk has the power, and it is his duty to strike out all charges which have been unnecessarily incurred, whether such charges are objected to or not. (c) § 73. Costs may be taxed, although an appeal in the case has been taken and security given there- on, (d) § 74. Supplementary proceedings are proceedings in the action, and not special proceedings. Where an attachment is issued for the violation of an order in such proceeding, it is a proceeding in the action, (a) People v. Oakes, 1 How. Pr. 195. (a) Eckerson v. Spoor, 4 How. Pr. 361; S. C, 3 Code R. 70; see Morrison v. He, Id. 304; S. C, 3 Code R. 27; Nellis v. DePorest, 6 How. Pr. 413; Mitchell v. Westervelt, Id. 365. (b) People v. Colburn, 20 How. Pr. 378. (c) Belding v. Conklin, 4 How. Pr. 196; S. C, 2 Code R. 112; Stimpson v. Huggins, 10 Barb. 658; 8. C, 9 How. Pr. 86. (d) Curtis v. Leavitt, 1 Abb. Pr. 118; 8. C, 19 Barb. 530. TAXATION OF COSTS. 207 and costs therein should be taxed as costs in the action, and not as costs of an action which are allowed in special proceedings, (e) («) Beeley o. Black, 35 How. Pr. 869. PART II. CHAPTER I. CONCERNING FEES. § 1. The fees hereinafter named do not pertain to criminal cases, unless so specially designated, but apply to all civil cases and proceedings and in the ordinary or special duties of the officers named, and the allowance of any fees by this chapter shall not apply to any case where special provision is made by law for any particular service ; but the fees for such service shall be such as are provided in the statute requiring the service or providing the compensation therefor. § 2. The secretary of state, comptroller, treasurer, attorney-general, and surveyor, respectively, shall be authorized to require searches in the respective offices of each other, and in the offices of the clerks of the Supreme Court, for any papers, records, or documents, necessary to the discharge of the duties of their respec- tive offices, and to require copies thereof and extracts therefrom, without the payment of any fee or charge whatever. (/) (/) a Fay's Dig. 33, § 3. CONCERNING FEES. 209 § 3. No judge, justice, sheriff, or other officer whatsoever, or other person to whom any fees or com- pensation shall be allowed by law for any service, shall take or receive any other or greater fee or reward for such service, but such as is or shall be allowed by the laws of this state, (g) § 4. No fee or compensation allowed by law shall be demanded or received by any officer or person for any service, unless such service was actually rendered by him ; except in the case of charges for prospective ■costs, hereinafter specified. But this section shall not prevent any officer from demanding any fee herein allowed for any service, of which he is entitled by law to require the payment, previous to rendering such service, (h) § 5. A violation of either of the two last sections shall be deemed a misdemeanor ; and the person guilty thereof shall be liable to the party aggrieved for treble the damages sustained by him. (i ) § 6. The fees and charges of officers for services rendered to the people of this state, or chargeable to the state, and which have been beretofore audited by the court of exchequer, shall hereafter be audited by the comptroller, and paid on his warrant. ( j ) § 7. No fee shall be charged by any officer, for ad- ministering the oath of office to any member of the (a) id- § 5. (h) Id. § 6. (i) W. § 7. (j) Id. 34, § 12. 14 zio THE LAW OF COSTS. legislature, to any military officer, to any inspector of elections, or to any town officer ; and no more than twelve and a half cents shall be charged for adminis- tering such oath to any other officer, (k) § 8. It shall be the duty of every court at which a grand jury shall be summoned, to charge such jury specially to inquire into any violations of law by public officers in demanding, charging, or receiving fees to which they are not entitled by law, except in the counties of Kings, Queens, Suffolk, and New York. (I) (h) Id. § 13. (I) Id. § 14. ATTORNEY AND COUNSEL FEES. 211 CHAPTER II. ATTORNEY AND COUNSEL FEES. § 1. Formerly the fees of attorneys and counsellors were regulated by the fee bill, but since the adoption of the Code, by which the old fee bill was abolished, the compensation for the services of attorney and coun- sellor depends wholly upon the agreement, either express or implied, between him and his client. (IT) § 2. Where there is no agreement between the attorney and his client as to the amount of his com- pensation, he is entitled to whatever his services are reasonably worth, (m) It has also been decided by the Court of Appeals, that the sum recovered by the party as an indemnity for his expenses would be the measure of compensation allowed to the attorney, where there is no agreement as to his compensation, for the purpose of establishing his lien, (n) And . where an action is brought by the attorney, against his client, for his services, costs as taxed by the clerk (It) Stow d. Hamlin, 11 How. Pr. 452; Moore v. Westervelt, 3 Sandf. 762. (ro) Garr v. Mariet, 1 Hilt. 498; Bartle v. Gil man; 18 N. Y., 260; S. C, 17 How. 1. (») Richardson v. Brooklyn & Newtown R. R. Co., 24 How Pr. 321, approving Rooney ». Second Ave. R. R. Co., 18 N. Y. 308; Keenan o. Doflnger, 19 How. Pr. 158; Hall v. Ayer, Id. 91. 812 THE LAW OF COSTS. under the Code are not the measure of the compensa- tion for his sevices in the case, but proof of the ser- vices performed by him must be given, and also the value thereof, (o) § 3. An attorney can not make an agreement to indemnify his client against the costs which may be recovered against him in an action in which they were interested as attorney and client, as it would be champerty and maintenance, (p) But any attorney may purchase a judgment for the purpose of enforce- ing an execution thereon, (g) § 4. An attorney may make an agreement with his client, making his fees contingent upon his suc- cess in the action, and such agreement is valid although it is not reduced to writing, (f) And an agreement between an attorney and his client is valid where he is to share in the proceeds of the action, (s) unless it be in an action to recover land, as such an agreement would come under 2 R. S. 691, wherein, it is expressly prohibited. § 5. An attorney may forfeit his right to fees by great neglect in conducting the cause, misconduct, or any breach of trust. But while he may thus lose his right to compensation in one action, he does not thereby forfeit his right to compensation in a prior (o) Stow v. Hamlin, 11 How. Pr. 452; Garr v. Mariet, 1 Hilt. 498 ; Bartle v. Oilman, 18 N. Y. 260 ; Moore v. Westervelt, 8 Sandf. 762. (p) Brotherson v. Consales, 26 How. Pr. 213. (j) Id. (r) Pitch v. Gardiner, 2 Keyes, 516. (») Benedict v. Stewart, 23 Barb. 420. ATTORNEY AND COUNSEL FEES. 213 action for the same client, which was entirely sep- arate and distinct therefrom, (t) § 6. Where an attorney makes an agreement with a client for a large compensation, it is a well-settled doctrine of the law, that such agreements will be looked upon with great suspicion by the court ; that it will be regarded with jealousy, and scrutinized with care, and the meaning of an instrument of this nature must be transparently obvious, and the client is en- titled to the benefit of any doubt therein, and the construction thereof should be most favorable to him. (it) § 7. Where an account is rendered for professional services by an attorney, and it is retained by the client without objection, it is deemed to be an account stated, and interest thereon may be collected from the time it was rendered, (v) § 8. The Code has not in any way affected the the right of an attorney to a lien upon the judgment for his costs. It is therefore well settled, that the at- torney has a lien upon the judgment recovered by him for his services therein ; and to the extent of the costs included in the judgment, the attorney should be regarded as the equitable assignee of such judg- ment, (w) (f) Currie v. Cowles, 6 Bosw. 452. («) Hutchinga v. Van Brunt, 38 N. Y. 342, approving Nesbit v. Lochman, 34 K. T. 169. (p) Case e. Hotchkiss, 37 How. Pr. 283. (w) Rooney & Second Ave. R. R. Co., 18 N. T. 368; Adams e. Pox, 40 Id. 577. 214 THE LAW OF COSTS. § 9. The statutory costs are not the limit of the attorney's lien, but include the full amount of the compensation agreed upon between him and his client, (x) But for a general balance due an attorney, he has a lien upon all the papers, money, or other things which may come into his possession, and be- longing exclusively to his client, but can have no lien upon the judgment therefor, (if) § 10. Where an attorney has a lien upon a judg- ment for his fees and expenses, that lien attaches to all collateral securities for its satisfaction, (z) § 11. An attorney in any case loses his lien by assigning his claim to another person, and the recov- ery of a judgment for the amount by the assignee, and a subsequent purchase of the judgment by the attorney, will not revive the lien, (a) * And in case he parts with the property in his possession belonging to his client, although it be by mistake, he loses his lien thereon. But if the property is unlawfully taken from him, his lien still attaches. (6) § 12. Although the attorney has a lien upon the papers in the case for his fees and expenses, his Hen will be cut off where the client gives security for the amount shown to be due, and in such a case the attorney must give up all the papers, (c) (x) Hall v. Ayer, 19 How. Pr. 91; S. C, 9 Abb. 220. («/) St. John v. Difendorf, 12 Wend. 261. (z) Shackelton j>. Hurt, 20 How. Pr. 39; S. C, 12 Abb. Pr. 325. («) Chappell v. Dann. 21 Barb. 17. (b) Dicas v. Stockloy, 7 Carr. & P. 587. (r) Cunningham v. Widing, 5 Abb. Pr. 413. ATTORNEY AND COUNSEL FEES. 215 § 13. The attorney's lien has the preference over all others, and even the adverse party must wait nmtil such lien is disposed of, providing such parties have had notice of such lien, (d) It is not necessary that the notice shall be given by the attorney, but it is of the same effect if such party suspects the exis- tence of the lien and endeavors to evade it. (e) § 14. A settlement can not be made between the parties in fraud of the attorney's right, so as to pre- . •elude him from costs, and when such settlement is made he may continue the action and take judgment ibr his costs. (/) But where the action is brought ito obtain a divorce, the attorney can not insist upon proceeding on the ground that his costs are un- paid, (g) § 15. Where an attorney proceeds with the case =after a settlement has been made, it will be at his own jisk, and he must conclusively show that such settle- ment was made in bad faith, and with the intent of •evading his claim for costs, and if he fail so to do, his proceedings will be set aside, (h) The defendant's (d) Rooney v. Second Ave. E. R. Co., 18 N. T. 368; Wilkin v. Uatterrnan, 4 Barb. 47; Martin v. Hawks, 15 Johns. 405; S. C, 4 Uosw. 870. (e) Ten Broeck v. Delbitt, 10 Wend. 617 ; Wilkins v. Batterman, -4 Barb. 47 ; Rasquin v. Knickerbocker Stage Co., 21 How. 293 ; S. C, 12 Abb. 324. (/) Id.;Keernan v. Durfinger, 12 How. 327; 19 Id. 153; Owen ». Mason, 18 Id. 156 ; Wood v. Northwestern Pres. Church, 7 Abb. Pr. 310. (g) Kirby v. Kirby, 1 Paige, 565. (h) McDowell v. Second Ave. R. R. Co., 4 Bosw. 670; Nelson 0. "Wilson, 4 Bing. 568. 216 THE LAW OF COSTS. attorney can not object to a settlement made prior to the decision of the cause. {%) But his lien is pro- tected to the same extent after judgment as if he were attorney for the plaintiff. (/) § 16. "Whether or not an attorney's lien has been disregarded in the settlement of an action, is a ques- tion for the court to determine upon the papers, be- yond which it will not go. (&) § 17. Where a settlement is made between the parties after judgment, the party against whom the judgment is entered settles the costs therein con- tained at his peril, as the attorney has, as appears on the judgment roll itself, a 'prima facie claim, of which all parties thereby have legal notice. And where such settlement is collusively made in fraud of the attorney's rights, the party against whom the judg- ment was obtained will be liable to the attorney for those costs. (J) § 18. It may be proper in this chapter to mention a few cases in which the attorney will be liable for costs in actions in which he is attorney. The statute provides (m) that in all cases wherein the defendant may require security to be filed for costs at the com- mencement of a suit, the attorney for the plaintiff is liable therefor to an amount not exceeding one hun- (i) Shank v. Shoemaker, 18 N. Y. 489. ( j) Power ». Kent, 1 Cow. 172. (Jc) Degraw v. Boardman, 13 Abb. Pr. 337. (1) Haight v. Halcoinb, 16 How. Pr. 173; S. C, 7 Abb. 210; Roc ney v. Second Ave. R. R. Co., 18 N. Y. 368; Ward v. Wardsworth, 1 v:. . Smith, 598; S. C, 9 How. Pr. 16. { m) 2 R. S. 621 ; 2 Pay's Dig. 32, § 7. ATTORNEY AND COUNSEL FEES. 217 dred dollars, until such security is filed pursuant to the statute, whether it is required by the defendant or not. § 19. It must appear affirmatively that the plain- tiff was a non-resident at the time of the commence- ment of the action, before the attorney can be com- pelled to pay the costs, where he is charged there- with upon the claim of non-residence of the plain- tiff, (n) The attorney's liability can only be en- forced by an execution against his personal prop- erty, (o) § 20. Where an action is brought by an attorney, in the name of another in which he is beneficially in- terested, he is thereby liable to pay the defendant's costs to the same extent in which the plaintiff of record would be liable, (j?) § 21. The statute provides that an attorney may relieve himself from such liability by filing security, and the securities therein justifying, if excepted to, as provided in Chapter XXIV. ante, without being re- quired to do so by the defendant, and by giving notice thereof to such defendant, or his attorney, (jj) (n) Long v. Hale, 1 Code R., N. 8. 114; Alexander v. Carpenter, 3 Denio, 366; 8. C, 3 Sandf. 729; Moir v. Brown, 9 How. Pr. 270. (0) Boyce r>. Bates, 8 How. Pr. 495. O) Voorhees v. McCartney, 51 N. T. 387. (j) 2 Pay's Big. 32, § 8. 2i8 THE LAW OF COSTS. CHAPTER III. FEES OF OFFICERS IN CIVIL CASES. § 1. We shall simply endeavor to give the statu- tory provisions concerning the fees of officers herein- after named, omitting the numerous decisions which have been made by the courts pertaining thereto. The statute provides therefor as follows : " For the following services hereafter done or performed in the several courts of law and equity in this state, by the officers thereof, or in any proceeding authorized by law, the following fees shall be allowed." § 2. For administering an oath or affirmation, in cases where no fee is specially provided by law, and certifying the same when required, twelve and a half cents (5) (except when taken by a justice of the peace; see § 6). § 3. No officer authorized to perform such duties shall receive for administering any oath or affirmation, or for taking any acknowledgment, any greater sum than justices of the peace are now authorized by law to receive for like services, (i) (Justices of the peace were then entitled to receive for administering oaths, generally, twelve and a half cents for an oath (s) 2 Fay's Dig. 36, § 1. (t) Id. 37, § 2. FEES OF OFFICERS. 219 to a witness, and for taking acknowledgments, the amount specified in section 6, post.) § 4. Fees of county judges. — County judges shall not hereafter take or be allowed any fees for services rendered by them, except for such services as may be performed by justices of the peace or commissioners of deeds. This act shall not be deemed to apply to surrogates' fees, (u) No county judge shall receive or be allowed any greater fees for services rendered by him, than are now allowed by law to said justices of the peace or commissioners of deeds, (v) § 5. Fees of justices of the peace. — Justices of the peace in this state shall hereafter be allowed and entitled to receive the fees hereinafter stated for the following named services in civil cases : For a summons, twenty-five cents ; a warrant, attachment, or transcript of judgment, twenty-five cents each ; adjournment, twenty-five cents ; sub- poena, including all the names inserted therein, twenty-five cents ; administering an oath, ten cents ; filing every paper necessary to be filed, five cents ; swearing a jury, twenty-five cents ; swearing a con- stable to attend a jury, ten cents ; trial of an issue of fact, in case of no appearance by the defendant, twenty- five cents ; and in case of appearance and answer, seventy-five cents; entering judgment, twenty-five (u) Id. § 3. (o) Id. § 4 ; see also § 3, for allowances to justices at that time for oaths and acknowldgmeiits. 220 THE LAW OF COSTS. cents ; taking affidavit, ten cents ; drawing any bond, twenty-five cents ; receiving and entering verdict of jury, twenty-five cents ; venire, twenty-five cents - r drawing affidavits, applications, and notices in cases required by law, five cents per folio; execution, twenty-five cents ; renewal of execution, twenty-five cents ; making a return to an appeal, two dollars ; warrant for the apprehension of any person charged with any violation of the laws concerning the inter- nal police of the state, twenty-five cents ; warrant for the apprehension of any person charged with being the father of a bastard, fifty cents ; indorsing any warrant issued from another county, twenty-five cents ; summons for any offense relating to the inter- nal police of the state, or in case of any special pro- ceedings to recover the possession of lands or other- wise, twenty-five cents ; for drawing a record of con- viction for contempt and other special cases, fifty cents ; for an execution upon any such conviction, twenty-five cents ; warrant of commitment for any cause, twenty-five cents ; for a precept to summon a jury in special cases, fifty cents; swearing such jury, twenty-five cents; hearing the matter concerning which such jury is summoned, fifty cents ; receiving and entering the verdict of such jury, twenty-five cents ; for a view of premises alleged to be deserted, fifty cents ; hearing an application for a commission to examine witnesses, fifty cents ; for every order for such commission, and attending, settling, and certify- ing interrogatories, fifty cents ; taking depositions of FEES OF OFFICERS. 221 witnesses upon an otder or commission issued by some court in this or a foreign state or territory, ten cents per folio ; for making the necessary return and certi- ficates thereto, fifty cents ; indorsement on affidavit in an action to recover possession of personal property, twenty-five cents, (w) § 6. Fees of justices of the peace for acknowedg- ments. — For taking the proof or acknowledgment of a deed and drawing and signing the certificate, for one person, twenty-five cents ; for each additional person having executed the same deed, twelve and a half •cents, (x) § 7. Fees of clerks of counties and the register of New York City. — To a county clerk for searching the records in his office, or the records of mortgages deposited in his office by loan officers and commission- ers of loans, or the dockets of judgments, for each year, five cents : Recording conveyances of real estate, and all other instruments, which by law may be recorded, ten cents for each folio : Filing every certificate of the satisfaction of a mortgage, and entering such satisfaction, twenty-five •cents : Entering a minute of a mortgage being foreclosed, ten cents. Entering in a book the bond of every collector, twelve and a half cents : (w) 2 Fay's Dig. 37, § 5. (a) Id. § 6. 2 --2 THE LAW OF COSTS. Searching for such bond, six cents : Entering satisfaction thereof, twelve and a half cents : Receiving and filing every paper deposited with him for safe keeping, three cents : Searching for every such paper on request, three cents for each paper examined : Receiving and filing the papers of any insolvent, or relating to the proceedings against any absent, con- cealed, absconding, or imprisoned debtor, twelve and a half cents in each case, and such papers are not to be charged as having been separately filed : Searching for such papers, six cents for each year for which searches shall be made : For determining and certifying the sufficiency of the sureties of any sheriff, fifty cents : For every report upon the title of the parties in partition, pursuant to a reference for that purpose, one dollar: For every report respecting the incumbrances upon the estate or interest of any party in partition, pursu- ant to a rule or order for that purpose, one dollar : For investing the proceeds of the sale of any estate under proceedings in partition, pursuant to the order of the court, one-half of one per cent, upon any sum not exceeding two hundred dollars, and one-quarter of one per cent, for any excess : For receiving the interest on such investments, and paying over the same to the persons entitled, one- half of one per cent. : FEES OF OFFICERS. 223 To every county clerk, for attendance in canvass- ing the votes given at any election, two dollars : For drawing all necessary certificates of the result of such canvass, and copies thereof, the same fees as are allowed to attorneys in Courts of Common Pleas, for drafts and copies of pleadings : For recording such certificates, the same fees as are allowed for recording deeds : For making and transmitting certified copies of the returns of commissioners of common schools, six cents for each folio, to be paid by the county : For giving notice to the governor, of persons who have taken the oath of office, three cents for each name : For giving such notice of persons who have neglected to take the oath of office, or to file or renew any security, within the time required by law, and of any vacancy created by any officer dying or remov- ing out of the county or place for which he was appointed, and of all other vacancies in his county, six cents for each name so reported : Notifying every person appointed to office, twenty- five cents, and all expenses actually and necessarily incurred by him in giving any notice, which the comptroller sball deem reasonable : For searching for a bail-piece and annexing it to recognizance roll, twelve and a half cents : For recording every certificate of incorporation, authorized by law to be recorded, seventy-five cents : For entering in the minutes of the court a license 224 THE LAW OF COSTS. to keep a ferry, and for a copy thereof, one dol- lar : For taking and entering a recognizance from any person authorized to keep a ferry, twenty-five cents, (jj) § 8. Fees of clerk of Kings county. — The clerk of the county of Kings shall be entitled to charge and receive, for rendering the services hereinafter men- tioned, the following fees, viz. : For seaching the dockets of judgments and decrees, and transcripts of judgments and decrees, fifteen cents per year : For searching all other matters of record he may be required to seach for, five cents per year respectively for each lien : For returning in his search any judgment or other lien, five cents each : For filing a transcript of judgment, five cents ; and for docketing the same, five cents for each name against which it shall be docketed : For a transcript of any judgment docketed in his office, ten cents : For filing any instrument by virtue of which any judgment or other lien shall be canceled or discharged of record, five cents ; and for entering such discharge upon the record, ten cents for each name as to which such discharge shall be entered : For every certificate of the discharge of any lien, fifteen cents : (y) Id. § 7; see Laws of 1847, ch. 432, § 1; L. 1852, ch. 83, § 7; L. 1858, ch. 293, § 5. FEES OF OFFICERS. azs For recording all papers which by law may be recorded in his office, ten cents for each folio, and for ■copies of records or papers on file therein, ten cents ifor each folio. For searching for papers on file in his office, ten ■cents for each paper searched for, but nothing herein contained shall authorize more than one charge of ten ■cents for any or all of the papers embraced in any judgment, record, or special proceeding, or upon any motion, or in any case where two or more papers shall Tse connected with each other in their general subject- xmatter : For receiving and paying over money which may !be deposited with him, the same fees as county treas- urers are entitled to for like services. (z) § 9. The clerk of the county of Kings shall be en- titled to charge and receive, for rendering the services hereafter mentioned, the following fees, viz. : For docketing a deficiency on a judgment of forclosure and sale, twenty-five cents ; for a certificate of ap- pearance in any action, fifty cents ; for adjusting a bill of costs, twenty-five cents ; for docketing a mechanic's lien, fifty cents ; for docketing a sheriff's certificate of sale on execution, fifty cents ; for index- ing an undertaking, twenty-five eents ; for indexing a notice of pendency of action, fifty cents, (a) § 10. Fees of court clerks for naturalization. — The -several clerks of the courts of this state, which by law liave jurisdiction in cases of naturalization, shall, after (z) 2 Fay's Dig. 38, § 8. (a) Id. 39, § 9. 15 226 THE LAW OF COSTS. the passage of this act, be entitled to demand and receive in naturalization cases, the following fees, and no more : For all the services of any such clerk upon the first application of an alien, including the oath or affirmation of such alien of his intention to be- come a citizen of the United States, the record and a certificate thereof, delivered to such alien, the sum of twenty cents. For. all the services of any such clerk upon the completion of the proceedings necessary for any alien to become a citizen of the United States, including the record thereof, and a certified copy to be delivered to any person demanding the same, the sum of fifty cents, (b) § 11. The clerk shall receive, on every trial, from the party bringing it on, one dollar ; on entering a judgment by filing a transcript, six cents ; on enter- ing judgment, fifty cents; except in courts where the clerks are salaried officers, and in such courts, one dollar. He shall receive no other fee for any services whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words, (c) § 12. Surveyor's fees. — For actual service in sur- veying, laying out, marking, and mapping any real estate, of which partition shall be made pursuant to law, or of which dower shall be admeasured, two dollars and fifty cents per day: For each of his necessary chain and flag bearers, (J) Id. § 10. (o) Code, § 813. FEES OF OFFICERS. zzj and other necessary assistants, one dollar per day. (d) § 13. Fees of commissioners in partition and dower. — For every day's actual and necessary service, two dollars to each commissioner, (e) § 14. Juror's fees. — To each juror impanneled to try a cause in any circuit court or [county] court, twenty-five cents for .each cause in which he shall be impanneled, to be paid by the party noticing the cause for trial, or if noticed by both parties, to be paid by such party as the court shall direct: To each juror sworn in any action in a mayor's court, twenty-five cents : To each juror sworn before any officer in any special proceeding allowed by law, or before any sheriff upon any writ of inquiry, or try any claim to personal property, twelve and a half cents. (/) § 15. Allowance to jurors by county. — The sev- eral boards of supervisors in this state may, at their first or any subsequent meeting after the passage of this act, direct a sum not exceeding two dollars a day to be allowed to every grand and petit juror for at- tending the courts of record held within their several counties, in addition to other fees which such jurors may receive ; and they may also direct an allowance to be made to such jurors for traveling, in coming to and returning from such courts, not exceeding five (i) 2 Fay's Dig. 39. § 11. (e) Id. § 12. (/) Id. § 13; see L. 1866, oh. 692; L. 1870, ch. 539. 228 THE LAW OF COSTS. cents a mile ; such money shall be raised in the same manner as other county charges are by law raised and collected, (g) § 16. Fees of surrogates. — Copies and exemplifica- tions of any record, proceedings, or order had or made before him, or of any papeps filed in his office, trans- mitted on an appeal or furnished to any party on his request, six cents for every folio, to be paid by the person requesting them. (A) § 17. From and after the passage of this act (i) no surrogate shall charge or receive any fee or compensa- tion for any official services performed by him, except for copies of records or papers, for which he shall charge and receive for the use of the county, the same fees which he was authorized to receive before the passage of the act hereby amended, (y ) § 18. Fees of surrogates' clerks. — The board of supervisors of any county may authorize the surrogate of such county to appoint a clerk, and may authorize said clerk to receive for his own use the legal fees for making copies of any record or paper in the office of such surrogate, (h) § 19. Witnesses' fees. — For each witness, fifty cents, for each day while attending any court or officer, and if the witness resides more than three miles from the place of attendance, traveling fees at (ff) 2 Fay's Dig. 40, § 14. (h) Id. § 15. (i) L. 1869, ch. 246. (j) 2 Tay's Dig. 40, § 16. (A) Id. § 17. FEES OF OFFICERS. 229 the rate of four cents per mile going and return- ing. (I) § 20. Witnesses' fees in justices' courts. — Wit- nesses shall hereafter be allowed the fees hereinafter stated for the following named services : For attending before , a justice of the peace, in a justice's court, or before a commissioner appointed by a justice of the peace, or before a justice of the peace, taking despositions to be used in courts in other states, twenty-five cents for each day's actual atten- dance, (m) § 21. Sheriffs' fees, in general. — For a copy of every other writ, (n) when demanded or required by law, nineteen cents : Returning a writ, twelve and a half cents : Advertising goods or chattels, lands or tenements, for sale, on any execution, two dollars ; and if the execution be stayed or settled, after advertising and before sale, one dollar: , The fees herein allowed for the service of an ex- ecution,' and for advertising thereon, shall be col- lected by virtue of such execution, in the same man- ner as the sum therein directed to be levied : But when there shall be several executions against the defendant, at the time^of advertising his property, in the hands of the same sheriff, there shall be but one advertising fee charged on the whole, and the (I) Id. § 18; see also L. 1849, ch. 144; L. 1857, ch. 344. (m) 2 Fay's Dig. 40, § 19; see also L. 1866, ch. 693, § 11. (n) This excepts a scire facias. 2 3 o THE LA W OF COSTS. sheriff shall elect on which execution he will receive the same : Bringing up a prisoner upon a habeas corpus, to testify or answer in any court, one dollar and fifty cents ; and for traveling each mile from the jail, twelve and a half cents : For attending any court with such prisoner, one dollar per day, besides actual necessary expenses : Bringing up a prisoner upon any habeas corpus, with the cause of his arrest and detention, one dollar and fifty cents ; and for traveling, twelve and a half cents for each mile from the jail : For executing any warrant to remove any person from lands belonging to the people of this state, or to Indians, such sum as the comptroller shall audit and certify to be a reasonable compensation : For giving notice of any general or special elec- tion, to the inspectors of the different towns and wards of his county, one dollar for each town or ward, and the expenses of publishing such notices as required by law ; such fees and expenses to be paid by the supervisors of the county, as part of the con- tingent charges thereof: For any services which may be rendered by a constable, the same fees as are allowed by law, for such services, to a constable : For any person committed to prison and every person discharged from prison in civil cases, twenty- five cents for receiving and twenty-five cents for dis- charging, to be paid by the plaintiff in the process : FEES OF OFFICERS. 231 For any person committed to prison, and every person discharged from prison in civil cases, twenty- five cents for receiving and twenty-five cents for dis- charging, to be paid by the plaintiff in the process ; for summoning constables to attend the Supreme Court, or any other court, fifty cents for each con- stable, (o) §■ 22. Sheriffs' fees, except in New York, Kings, and Westchester. — For the following services hereafter done and performed by the sheriffs of the counties of this state, except the counties of New York, Kings, and "Westchester, the following fees shall be allowed : 1. For serving a summons or summons and com- plaint, or summons and notice of object of action, or any other paper issued in any action, the sum of one dollar, and for necessary travel in making such service, the sum of six cents per mile to and from the place of service, to be computed in all cases from the court- house of the county ; and if there are two or more court-houses, to be computed from the nearest to the place of service. 2. For taking a bond of the plaintiff in proceedings for the claim and delivery of personal property, or for taking a bond from either the plaintiff or defendant, or any other party, in any case where he is authorized to take the same, the sum of fifty cents. 3. For a certified copy of every such bond, twenty- five cents. (0) 2 Pay's Dig. 40, § 20; L. 1850, ch. 225, § 1; for fees on execu- tion by mail. 232 THE LAW OF COSTS. 4. For serving an attachment for the payment of money, or an execution for the collection of money, or a warrant for the same purpose issued by the comp- troller or by any county treasurer, for collecting the- sum of two hundred and fifty dollars or less, three- cents per dollar ; and for every dollar collected more- than two hundred and fifty, the sum of two cents. For mileage on every execution, the sum of ten cents per mile for going only, to be computed from the court- house. For receiving and entering such execution on. their books and searching for property, the sum of fifty cents ; which sum shall be a charge against and to be collected of the person by whom the said execu- tion was issued, except when he is a county clerk, or of the person in whose favor the judgment was ren- dered, except as is otherwise hereinafter provided. The said sum of fifty cents in the case of judgments,, hereafter recovered, shall be one of the disbursements to be included in the bill of costs taxed in favor of the- party entitled thereto. In cases where judgment has- been already obtained, the said sum shall be collected by the sheriff from the defendant in the execution in the same manner as his other fees are now collected. The fees allowed by law and paid by such sheriff to- any printer for publishing an advertisement of the sale of real estate for not more than six weeks, and for continuing such advertisement more, than six weeks, or for publishing the postponement of any such sale, the expense of such continuance or postponement sh 11 be pnid by the party requiring the same. The FEES OF OFFICERS. 233 fees herein allowed for the service of an execution, and for advertising thereon, shall be collected by virtue of such execution in the same manner as the sum therein directed to be levied ; but when there shall be several executions against the defendant at the time of advertising his property in the hands of the same sheriff, there shall be but one advertising fee charged on the whole, and the sheriff shall elect on which execution he will receive the same. 5. For drawing and executing a deed pursuant to a sale of real estate, two dollars, to be paid by the grantee in such deed. 6. For serving a writ of possession, assistance, or of restitution; putting any person entitled into the possession of premises, and removing the tenant, one dollar and fifty cents ; and the same compensation for traveling to serve such writ, as is herein allowed on the service of a summons. 7. For taking a bond for the liberties of the jail, one dollar. Summoning a jury upon a writ of in- quiry, or in any case where it shall become necessary to try the title to any personal property, attending such jury, and making and returning the inquisition, two dollars and fifty cents. For summoning a jury in pursuance of the warrant or precept of commis- sioners appointed to inquire concerning the lunacy, idiocy, or habitual drunkenness of any person, for each juror summoned, the sum of twenty-five cents; for attending such jury when required, one dollar. For summoning a jury in any case not hereinbefore 234 THE LAW OF COSTS. mentioned, one dollar ; and for attending such jury when required, one dollar. 8. Attending before any officer with a prisoner for the purpose of having him surrendered in exonera- tion of his bail, or attending to receive a prisoner so surrendered, who was not committed at the time, and receiving such prisoner into his custody in either case, one dollar. 9. For attending a view, two dollars per day, and for going and returning, eight cents for each mile actu- ally traveled. 10. For serving an attachment against the prop- erty of a debtor under the provisions of chapter five of the second part of the Revised Statutes, or against a ship or vessel under the provisions of the eighth title of chapter eight of part third thereof, one dollar, with such additional compensation for his trouble and expenses in taking possession of and preserving the property attached as the officer issuing the war- rant shall certify to be reasonable ; and when the property so attached shall afterward be sold by the sheriff, he shall be entitled to the same poundage on the sum collected as if the sale had been made under an execution. For making and returning an inventory and appraisal such compensation to the appraisers, not exceeding one dollar to each per day, for each day actually employed, as the officer issuing the attach- ment shall allow, and twenty-five cents per folio for drafting, and twelve and a half cents per folio for copying the inventory. For selling any property so FEES OF OFFICERS. 235 attached, and for advertising such sale, the same al- lowance as for sales on execution. 11. Attending any term of the Supreme Court or of the county court of any county, per day, three dollars, (p) § 23. Inconsistent acts repealed. — All provisions of former acts fixing compensation for above services and inconsistent with the provisions hereof, are hereby repealed, (q) § 24. Sheriff's fees in New York county on fore- closure sales. — In cases of sales on foreclosure, he shall be entitled to receive the following fees, and no more : For receiving order of sale and posting notices of sale, ten dollars ; for attending sale, ten dollars ; for drawing each deed of premises sold, five dollars ; for attending and adjourning a sale at the request of the plaintiff in the action, or by order of the court, three dollars, but no more than three such adjourn- ments in one action shall be charged for ; for making report of sale, five dollars ; for paying over surplus moneys, three dollars. And all disbursements made by him for printers' fees, at the rate allowed by law therefor, fees of officers for taking acknowledgments and administering oaths, and for internal revenue stamps affixed to conveyances executed and delivered by him, and all auctioneers' fees actually paid by him, but not to exceed for such auctioneers' fees twelve dollars for each parcel separately sold, which auction- (p) 2 Fay's Dig. 41, § 21. (?) Id. 42, § 22. 236 THE LAW OF COSTS. eers' fees shall be paid by the purchaser of the parcel in addition to the amount bid by him therefor, (r) § 25. Sheriff's fees, New York county. — For serving a summons or any other process by which a suit shall be commenced in a court of law [or] cita- tion, when there shall have been no process previous thereto, fifty cents : For traveling in making any such service, six cents per mile, for going only, to be computed in all cases from the court-house of the county : •For taking a bond of a plaintiff in replevin, or tak- ing a bond on the arrest of a defendant, or taking his- indorsement of appearance, or for taking a bond in any other case where he is authorized to take the same, for which no fee is herein allowed, thirty-seven and a half cents : For a certified copy of such bond, twenty-five cents : For serving an attachment for the paj^ment of money, or an execution for the collection of money, or a warrant for the same purpose, issued by the comptroller or any county treasurer, for collecting the sum of two hundred and fifty dollars, or less, two cents and five mills per dollar ; and for every dollar collected, more than two hundred and fifty, one cent and two and a half mills : The fees allowed by law and paid by such sheriff to any printer for publishing an advertisement of the sale of real estate, for not more than six weeks ; and (r) 2 Fay's Dig. 42, § 23. FEES OF OFFICERS. 237 for continuing such advertisement more than six weeks, cr for publishing the postponement of any such sale, the expense of such continuance or postpone- ment shall be paid by the party requiring the same : For drawing and executing a deed, pursuant to a sale of real estate, one dollar, to be paid by the grantee in such deed. Serving a writ of possession or of restitution ; put- ting any person into the possession of premises, and removing the tenant, one dollar and twenty-five cents; and the same compensation for traveling to serve the same, as is herein allowed for the service •of a [summons]. Taking a bond for the liberties of the jail, thirty- seven and a half cents : For summoning the jury to attend any court, fifty ■cents in each cause noticed for trial at such court, or placed on the calendar thereof for trial : Summoning a jury upon a writ of inquiry, or in any case where it shall become necessary to try the title to any personal property, attending such jury, and making and returning the inquisition, one dollar and fifty cents : Summoning a foreign or special jury, pursuant to venire for that purpose, and returning the panel, one dollar and twelve and a half cents : Summoning a jury, pursuant to any precept or summons of any officer, in any special proceeding one dollar ; and for attending such jury when required, fifty cents : «3 8 THE LAW OF COSTS. Attending before any officer with a prisoner, for the purpose of having him surrendered in exoneration of his bail ; or attending to receive a prisoner so sur- rendered, who was not committed at the time ; and receiving any such prisoner into his custody, in either case, one dollar : Attending a view, one dollar and eighty-seven and a half cents per day; going and returning, one dollar and twenty-five cents per day. For serving an attachment against the property of a debtor, under the provisions of chapter five of the second part, or against a ship or vessel, under the provisions of the eighth title of chapter eight of part third, fifty cents, with such addi- tional compensation for his trouble and expenses in taking possession of, and preserving the prop- erty attached, as the officer issuing the warrant shall certify to be reasonable; and where the property so attached shall afterwards be sold by the sheriff, he shall be entitled to the same poundage on the sum collected, as if the sale had been made under the execution. For making and returning an inventory and appraisal, such compensation to the appraisers, not exceeding one dollar to each per day, for each day actually employed, as the officer issuing the attach- ment shall allow : For selling any property so attached, and for advertising such sale, the same allowance as for sales on executions : FEES OF OFFICERS. 239 For mileage on any execution, six cents per mile, for going only, to be computed from the court- house, (s) § 26. Sheriff 's fees in Kings county for civil prison- ers. — After the passage of this act, the sheriff of the county of Kings shall not confine in the county jail of said county any person or persons arrested upon process in civil actions, until the plaintiff or person upon whose application said arrest is made, shall pay to the said sheriff, for the use of the said county of Kings, and to apply on expense of board of such prisoner, the sum of twenty-five dollars, and a like sum shall be paid to said sheriff, for a like purpose, every twenty days that said debtor is so confined after the lapse of the first twenty days after the arrest is made, and the said sheriff shall account to said county for all moneys so received, (t) § 27. Sheriff's fees, Kings county, for juries. — The compensation for summoning grand and petit jurors shall be the same as now paid by the said county for like services, to be paid out of the treasury of the county by the treasurer thereof; and in addi- tion thereto, the sheriff shall be allowed the sum of seventy-five cents for each term that any cause may be noticed for trial and placed on the calendar of any court, to be paid to the clerk thereof for the use of the sheriff, at the time of filing the note of issue, or when the same is placed on the calendar for trial, («) 2 Fay's Dig. 43, §24. (*) Id. 44, § 25. 24° THE LAW OF COSTS. which sum shall be paid by the party putting the cause on the calendar, and in default of such pay- ment the cause shall not be placed thereon, (u) § 28. Pees for coroners generally. — For confin- ing a sheriff in any house, on civil process, two dol- lars for each week, to be paid by such sheriff before he shall be entitled to be discharged from such con- finement, (v) § 29. Fees of coroners except in New York and Kings. — "When required to perform the duties ■ of sheriff, shall be entitled to and receive the same fees as sheriffs for the performance of like duties. Shall be reimbursed for all moneys paid out actually and necessarily by him in the discharge of official duties. For performing the requirements of law in regard to wrecked vessels, shall receive three dollars per day and fractional parts thereof, and a reasonable com- pensation for all official acts performed, and mileage to and from such wrecked vessel, ten cents per mile, (to) § 30. Fees of coroners, New York and Kings county. — For all services rendered by them, the same fees as are herein allowed to sheriffs for similar services, (x) § 31. Fees of constables. — Advertising and selling any property distrained for doing damage; or levying any fine, penalty, or sum, pursuant to any warrant ; (u) 2 Fay's Dig. 44, § 26. (») Id. § 27. (w) Id. § 28. (x) Id. § 29. FEES OF OFFICERS. 241 the same fees as are allowed for similar services on executions from justices' courts. And for any ser- vices not herein provided for which may be rendered by a constable, the same fees as are allowed by law to sheriffs for similar services, (y) § 32. Constables shall hereafter be allowed for services rendered in civil actions, the following fees : J"or serving a warrant or summons, twenty-five cents; for a copy of summons on request of defendant, •or left at defendant's dwelling in his absence, fifteen cents; for serving an attachment, seventy-five •cents ; for copy of the attachment and inventory of the property seized, left at the last residence of the -defendant, seventy-five cents ; for serving an execu- tion, for every dollar collected to the amount of fifty •dollars, five cents; for every dollar collected over fifty dollars, two and one half cents ; for every mile traveled, going and returning, to serve a summons, warrant, attachment or execution, the distance to be computed from the place of abode of the defen- dant, or where he shall be found, to the place where the precept is returnable, ten cents; for notifying the plaintiff of the service of a warrant, twenty-five cents; forgoing to plaintiff's residence or where he shall be found to serve such notice, for each mile traveled, going and returning, ten cents; for sub- poenaing, not exceeding four, twenty-five cents ; for summoning a jury, seventy-five cents ; for summon- (y) 2 Fay's Dig. 44, § 30. 16 242 THE LAW OF COSTS. ing a jury to assess damages in proceeding relative to highways, two dollars; for serving affidavit, notice, and summons in an action to recover possession of personal property, fifty cents ; for a copy of such affidavit, notice, and summons left with the defendant, his agent, or at the last place of abode of the de- fendant, fifty cents; for every mile traveled, going and returning, to serve such affidavit, notice, and summons, the distance to be computed from the place where the precept is returnable to the place of abode of the defendant, or where he shall be found, ten cents ; for taking charge of a jury during their de- liberations, fifty cents, (z) § 33. Constables shall hereafter be allowed the fees hereinafter stated for the following services, in cases of special proceedings : For serving a summons, twenty-five cents ; for serving a warrant, fifty cents ; for arresting and committing any person pursuant to process, one dollar; for every mile traveled, going and returning, in each case, ten cents, (a) § 34. Constables' fees in Kings and Westchester. — Constables in the counties of Kings and Westchester, shall hereafter be allowed and entitled to receive the fees hereinafter stated, for the following named ser- vices in civil cases : (h) For attending court, three dollars for each day's actual attendance. (z) 2 Fay's Dig. 44, § 31. (a) Id. 45, § 32. (6) Id. § 33. FEES OF OFFICERS. 243 § 35. Referees' fees. Partition. New York city. — In cases of sales in actions of partition, by referees appointed by the court, they shall be entitled to re- ceive the same fees and disbursements as are allowed by § 2 hereof (c) to the sheriff of the city and county of New York, and in addition thereto, com- missions on all moneys received and paid out by them, at the same rates as are allowed by law to ex- ecutors and administrators. Provided, however, that the commissions allowed by this section shall not, in any case, exceed the sum of five hundred dollars, (d) § 36. Fees of notaries public. — It shall not be lawful for any notary public, directly or indirectly, to demand or receive for the service of any notices of the non-payment of any tax or assessment upon any mort- gagee or mortgagees, pursuant- to the act authorizing mortgagees to redeem real estate sold for taxes and assessments, passed May 14th, 1840, and for a certifi- cate thereof under his hand and seal, any greater fee or reward than seventy-five cents for each mortgage upon which such notice or notices are given. But this act shall not operate to change the present rates of compensation for the publication of the session laws ; nor shall the provisions of this act apply to. proceedings in surrogates' courts, or any notices re- quired to be published relating to the estates of deceased persons, (e) (c) See § 24, ante. (d) 2 Fay's Dig. 45, § 34. («) Id. § 35. *44 THE LAW OF COSTS. §37. It shall not be lawful for any notary public, directly or indirectly, to demand or receive for the protest for the non-payment of any note, or for the non-acceptance or non-payment of any bill of exchange, check, or draft, and giving the requisite notices and certificates of such protest, including his notarial seal, if affixed thereto, any greater fee or reward than seventy-five cents for such protest, and ten cents for each notice, not exceeding five, on any bill or note ; and it shall be the duty of such notary to affix his seal to such protest free of expense, except as herein provided, whenever he shall be requested to do so ; and he shall also give a certificate under his seal free of expense, except as aforesaid, under the provisions of the eighth section of the act entitled " An act relative to proceedings in suits commenced by declar- ation and for other purposes," passed April 29th, 1833. (/) § 38. So much of the act, entitled "An act to create a fund for the benefit of the creditors of certain moneyed corporations, and for other purposes," passed May 11th, 1835, as restricts the fees of certain notaries public therein mentioned, is hereby repealed. (#) § 39. Charges of attorney-general. — The attorney- general shall be allowed all charges for expenditures and disbursements, necessarily incurred by him, in or about the prosecution or defense of any action, right or claim, in which the people of this state may be in- (/) 2 Fay's Dig. 45, § 86. (g) Id. § 37. FEES OF OFFICERS. 245 terested, to be audited and allowed by the comp- troller. (Ji) § 40. Fees for publishing legal notices. — The pro- prietor or proprietors of any newspapers may charge and collect for publishing any notice, order, citation, summons, or other proceeding or advertisement, re- quired by law to be published, not more than seventy five cents per folio for the first insertion, and fifty cents for each subsequent insertion after the first; provided that the present rates of compensation for the publication of the session laws shall not be less than thirty cents nor more than fifty cents per folio, as the supervisors shall determine. (1) § 41. Notice by insolvent. — Such notice (J) may be published in the following manner : First, a general heading, stating whether such notices are for the purpose of being discharged from debt, or for the purpose of having the person exon- erated from imprisonment, shall be prefixed to each class of applicants; next, the name of the applicant; next, the date of the first publication of such notice ; next, the name of the officer before whom creditors are required to appear ; next, the place appointed for such appearance ; next, the time for such appearance : And every such publication shall be deemed as valid as if such notice had been published at length, (k) (A) 2 Fay's Dig. 46, § 38. (i) Id. § 39. (j) Pertaining to applications by insolvents for a discharge. (*) 2 Fay's Dig. 46, § 40. 246 THE LAW OF COSTS. % 42. Refusal to publish notices. — If all the printers and proprietors of newspapers in any county in which any notice, order, citation, or other proceed- ing or advertisement, is by law required to be pub- lished, shall refuse to insert the same for the price herein specified, then it shall be lawful to publish the same in the state paper, instead of a newspaper printed iu such county ; and the state printer shall not demand or receive any greater price for the pub- lication thereof, than that above prescribed, (t) • § 43. If such notice or other advertisement be re- quired by law to be published in the state paper, and also in a newspaper of any county, and the printers and proprietors of newspapers in such county, shall all refuse to publish the same for the price herein speci- fied, then such notice or advertisement may be pub- lished in a newspaper printed nearest to the place where any person shall be required to appear, or where any act or proceeding is to be had, pursuant to such advertisement, the printer of which will consent to publish the same for the said price. Such publica- tion shall be as valid as if made in the county required by law. (m) § 44. Dispensing with publication. — If no printer will consent to publish such notice or advertisement for the said prices, on proof thereon being made, as hereinafter required, the law requiring such publica- tion in any particular county shall not take effect, or (I) 2 Fay's Dig. 46, § 41. (m) Id. § 42. FEES OF OFFICERS. 247 be in force in respect to such notice or advertise- ment, (n) § 45. Special affidavit. — In all cases in which notices shall be published in the state paper, or in a newspaper of any other county, in consequence of the refusal as aforesaid of the printers or proprietors of newspapers in any county, and in which an affidavit of such publication shall be required by law, there shall also be an affidavit of application having been made to all the printers or proprietors of newspapers printed in such county, of the price as above specified having been tendered to them for publishing such notice, order, citation, advertisement, or proceeding, and of their having refused ; which affidavit, together with proof of such publication in the state paper, or in any other newspaper as herein required, shall be deemed evidence of a compliance with any law requir- ing such notice, order, citation, proceeding, or adver- tisement, to be published in any particular county. (0) § 46. Notice of mortgage sale. — When notice of any sale by virtue of a mortgage, shall be published in the state paper, pursuant to the provisions of this title, a copy of the said notice shall be served at least six weeks before the time of such sale, on the person in possession of the mortgaged premises, in all cases where the premises are occupied ; and where they are not occupied, and the mortgagor, his heirs or personal representatives, shall reside in the county where such (it) 2 Fay's Dig. 46, § 43. (0) Id. § 44. 248 THE LAW OF COSTS. premises lie, then upon such mortgagor, his heirs or personal representatives, as the case may be. Proof of the service of such notice may be made, certified and recorded, in the same manner and with the like effect, as proof of the publication of a notice of sale under a mortgage, (p) § 47. Fees of county clerks and registers for searching. — Clerks of counties and registers of cities, shall charge and receive for searching and certifying the title of and incumbrances upon real estate, ten cents for each conveyance and incumbrance certified by him, instead of fees now allowed by law, provided that such fees shall in no case amount to less than fifty cents, nor more than five dollars, (q) §48. Fees of New York county clerk for search- ing. — The clerk of the city and county of New York shall be entitled to charge and receive for his services, in addition to his salary in making searches in his office, as follows : For searching the dockets of judgments and decrees, and transcripts of judgments and decrees, fifteen cents per year : For searching all other matters of record he may be required to search for, five cents per year respec- tively : For returning in his search any judgment or mat- ter of lien, five cents each, (r) (ji) 2 Fay's Dig. 46, § 45. (q) Id. 47, § 46. (r) Id. § 47. FEES OF OFFICERS. 249 § 49. It shall be lawful for the clerk of the city and county of New York to retain to his own use the fees specified in this act. (s) (») 2 Fay's Dig. 47, § 48. 850 THE LAW OF COSTS. CHAPTER IV. FEES OF OFFICERS IN CRIMINAL CASES. § 1. Justices' fees. — Justices of the peace in this state shall hereafter be allowed and entitled to re- ceive the fees hereinafter stated, for the following named services in criminal cases : For administering an oath, ten cents ; a warrant (but no justice of the peace shall be obliged to issue a warrant on any complaint for assault and battery, unless the person making such complaint and requir- ing such warrant shall pay the fee therefor), twenty- five cents ; a bond or recognizance, twenty-five cents ; a subpoena, including all the names inserted therein twenty-five cents ; a commitment for want of bail, twenty-five cents; an examination of the accused where such examination is required by law, for each day necessarily spent, one dollar; every necessary adjournment of the hearing or examination, twenty- five cents, (t) § 2. But no board of supervisors shall allow any account in favor of any justice of the peace, for any (t) 2 Fay's Dig. 48, § 1. FEES OF OFFICERS. 251 warrant on any complaint for an assault and bat- tery. («) § 3. Associate justice. — Whenever any justice of the peace shall be associated with any other justice of the peace in the trial or examination of any crim- inal cause, or in cases of bastardy, the compensation of such justice of the peace so associated, shall be two dollars for each day actually and necessarily devoted to such service, (v) § 4. Fees of courts of special sessions. — For a venire, twenty-five cents ; swearing each witness on the trial, ten cents ; swearing a jury, twenty-five cents ; swearing a constable to attend a jury, ten cents ; a subpoena, including all the names inserted therein, twenty-five cents ; for a trial fee, one dollar per day during the necessary and actual continuance of the trial ; receiving and entering verdict of jury, twenty- five cents ; entering the sentence of the court, twenty- five cents; warrant of commitment on sentence, twenty- five cents ; for record of conviction and filing the same, seventy-five cents ; but all such charges in any one case shall not exceed five dollars, unless such court continue more than one day ; ir* such case the costs of such additional day may be added thereto ; for re- turn to any writ of certiorari, to be paid by the county, two dollars ; for services when associated with an- other justice of the peace in cases of bastardy, for each day actually and necessarily spent, two dollars, (w) (u) 2 Fay's Dig. 48, § 2. (?) Id. § 3. (v>) Id. § 4. 2S* THE LAW OF COSTS. § 5. Special sessions, New York city. — No extra compensation shall be paid or awarded to any police justice, for serving as a member of the said court of special sessions, (x) § 6. Pay of justices of sessions. — The compensa- tion of justices of sessions is hereby established at three dollars for each day's attendance at any court of sessions or court of oyer and terminer, held in and for any county in this state, and said justices of sessions shall be entitled to the further sum of five- cents per mile for traveling expenses in coming to and returning from said courts. (?/) § 7. Pay of justices of sessions, in "Westchester and Kings. — There shall be paid to each of the pres- ent justices of the sessions, and others hereafter to be designated to hold the courts of sessions in and for the county of Kings and Westchester, the sum of five dollars per day for their services ; such compensation to be a county charge and paid by the county treasurer on the production of the certificate of the clerk of the court, specifying the number of days such justices shall have at- tended, (z) § 8. Constables' fees. — Constables shall hereafter be allowed the fees hereinafter stated for the follow- ing services in criminal cases : For serving a warrant, seventy-five cents ; for every mile traveled, going and (as) 2 Fay's Dig. 48, § 5. (30 Id. § 6. (z) Id. § 7; $2 per day additional allowed justices of sessions id Kings County, see L. 1 800, oh. 7:10.. FEES OF OFFICERS. 253 returning, ten cents ; for taking a defendant into cus- tody on a mittimus, twenty-five cents ; for every mile traveled in taking the prisoner to jail, going and re- turning, ten cents ; for taking charge of a jury during their deliberations, fifty cents; for attending any court pursuant to a notice from the sheriff for that purpose, two dollars for each day, and five cents a mile for each mile traveled in going to and returning from such court, which fees shall be chargeable to the county, and shall be paid by the treasurer thereof on the pro- duction of the certificate of the clerk specifying the number of days and distance traveled, (a) § 9. To entitle any constable or other officer to the increased or additional travel fees provided for in this act, (&) such constable or officer shall show by affidavit that such travel was necessary on the pro- cess on which it was charged; that no more miles are ■charged for than were actually and in good faith traveled on the execution of such process ; and that such con- stable or officer at the time had no other official or private business on such traveled route, and that the charge for going and returning was made only upon one process, which process shall be attached to or described in such affidavit, and such additional or in- creased travel fees shall not be allowed by any court or auditing board, unless such court or auditing board shall be satisfied that the miles charged were actually (a) 2 Fay's Dig. 49, § 8. (6) § 8, ante. 254 THE LAW OF COSTS. and necessarily traveled on the process named, and on that process only, (o) § 10. Whenever a subpoena for witnesses in crim- inal cases or complaints, containing one or more names, shall be served by a constable or other officer, such officer shall be allowed for mileage only for the dis- tance, going and returning, actually traveled to make such service upon all the witnesses in such case of complaint, and not separate mileage for each witness, unless the board of supervisors auditing accounts for such services shall deem it equitable to make a further allowance, (d) § 11. Conveying a person to the magistrate or court before whom he is to brought, twelve and a half cents, if within one mile, and for every mile more, going only, six cents : Serving a subpoena, twelve and a half cents for each witness, and the like mileage as above provided, but mileage shall be allowed only on the ' distance actually and necessarily traveled : The board of supervisors may allow such further compensation for the service of process, and the ex- penses and trouble attending the same, as they shall deem reasonable : For other services in criminal cases, for which no compensation is specially provided by law, such sum as the board of supervisors of the county sh ill allow, (e) (c) 2 Fay's Dig. 49, § 9. (d) Id. § 10. (e) Id. § 11. FEES OF OFFICERS. 255 § 12. Coroners' fees, except in New York and Kings. — The coroners in and for the state of New York, except in the counties of New York and Kings, shall be entitled to and receive the following compen- sation for services performed : Mileage to the place of inquest and return, ten cents per mile. Summoning and attendance upon jury, three dollars. Viewing body, five dollars. Service of subpoena, ten cents per mile traveled. Swearing each witness, fifteen cents. Drawing inquisition for jurors to sign, one dollar. Copying inquisition for record, per folio, twenty- five cents, but such officers shall receive pay for one copy only. For making and transmitting statement to board of supervisors, each inquisition, fifty cents. For warrant of commitment, one dollar. For arrest and examination of offenders, fees shall be the same as justices of the peace in like cases. When required to perform the duties of sheriff, shall be entitled to and receive the same fees as sheriffs for the performance of like duties. Shall be reimbursed for all moneys paid out actually and necessarily by him in the discharge of official duties. Shall receive for each and every day and fractional parts thereof spent in taking inquisition (except for one day's service), three dollars. 25 6 THE LAW OF COSTS. For taking ante-mortem statement, shall be en- titled to the same rates of mileage as before men- tioned, and three dollars per day and fractional parts thereof, and for taking deposition of injured persons in extremis, one dollar. (/) § 13. A coroner shall have power, when necessary, to employ not more than two competent surgeons to make post-mortem examinations and dissections, and to testify to same, and fix their compensation, the same to be a county charge. (#) § 14. Whenever, in consequence of the per- formance of his official duties, a coroner becomes a witness, he shall be entitled to receive mileage to and from his place of resideuce, ten cents per mile, and three dollars per day for each day or fractional parts thereof actually detained as such witness. (7i) § 15. All items of coroners' compensation shall be'' a county charge, to be audited and allowed by the board of supervisors, (i) § 16. Coroners' fees, Kings county. — The compen- sation to be paid to the coroners ... for hold- ing any inquest in the cases authorized by law, shall be fixed and, together with all necessary incidental expenses, shall be audited and allowed by the board of supervisors of the respective counties, and paid in like manner as other county charges. (J) (f) 2 Fay's Dig. 49, § 12. (?) Id. 50, § 13. (h) Id. § 14. (i) Id. § 15; see also L. 1868, ch. 155. U) W. § 16. FEES OF OFFICERS. 257 § 17. Coroners' fees, New York city. — The super- visors of the county of New York are hereby directed to audit the bills of the coroners of the city and county of New York for services, as follows : For viewing each dead body and holding an inquest thereon, the sum of ten dollars ; for summoning and swearing a jury in each inquest, five dollars ; for making and filing each inquest, five dollars ; and all other fees or expenses now existing, whether by city or county •usage, or by law, charged by said coroners, are hereby abolished. And no fees herein established shall be audited by said board of supervisors, or hereafter paid, •except upon the sworn accounts filed Avith said board, and with the comptroller of said city, (li) § 18. Sheriff's fees. — For every person committed to prison, thirty-seven and a half cents : For every prisoner discharged from prison, thirty- seven and a half cents : For summoning a grand jury for a court of oyer and terminer or general sessions, ten dollars : For serving a warrant or performing any other •duty which may be performed by a constable, the same fees as are allowed by law to a constable for such service. (V) § 19. Sheriff's fees for commitments, New York city. — In cases where there is no other officer to whom, according to the provisions of law, a police justice (Jc) 2 Fay's Dig. 50, § 17. (I) Id. § 18; see also L. 1849, ch. 123; L. 1859, ch. 254; L. 1869, ch. 574. 17 258 THE LAW OF COSTS. may direct a commitment, and when no such officer is present, such police justice shall direct the same to the sheriff of said city and county, who shall be en- titled to receive such fees for his services therefor, not exceeding fifty cents on each commitment, as shall be allowed by the supervisors of the county of New York, (m) § 20. Fees, how paid. — The fees herein allowed for services, except those which by law are other- wise provided for, shall be county charges, and shall be audited by the board of supervisors of the county in which such services are rendered, and shall be paid in the same manner as other contingent charges of the county. («) § 21. Certain witnesses to be paid. — When any person shall attend a court of oyer and terminer, or a court of general sessions, as a witness in behalf of the people of this state, upon the request of the public prosecutor, or upon a subpoena, or by virtue of a recognizance for that purpose, and it shall appear that such person has come from any other state or territory of the United States, or from any foreign country, or that such person is poor, the court may, by an order in its minutes, direct the county treasu- rer of the county in which the court shall be sitting, to pay to such witness such sum of money as shall seem reasonable for his expenses, (o) (m) 2 Fay's Dig. 50, § 19. (n) Id. § 20. (o) Id. 51, § 21; see L. 1846, ch. 59. FEES OF OFFICERS. 259 § 22. Order therefor. — The clerk of the court by which such order shall be made, shall immediately make out and deliver a certified copy thereof to the person in whose favor the same is made, without exacting any fee for such service, (p) § 23. Payment. — Upon the production of such cer- tified copy to the county treasurer, or as soon there- after as he shall have sufficient moneys in his hands, he shall pay to the person authorized to receive the same, or to the order of such person, the sum of money so directed to be paid, which shall be allowed to him in his accounts, (g) § 24. Extortion. — The provisions of law prohibits ing the taking of any fees for services in civil cases other than such as are allowed by statute, shall apply to the taking of fees for services in criminal cases beyond the amount allowed by law for such services, (r) (p) 2 Fay's Dig. 51, § 22. (?) Id. § 23. (r) Id. § 24. 26o THE LA W OF COSTS. CHAPTER V. FEES OF TOWN OFFICERS NOT HEREINBEFORE PROVIDED FOR. § 1. Supervisors, except in New York and Kings counties. — Each supervisor, whose compensation is not specially provided for by law, shall be entitled to charge and receive three dollars per day for each full day's services during the sessions of the board, besides mileage now allowed by law (eight cents per mile for all necessary travel in the discharge of his official duty), (s) but such supervisor shall not be entitled to receive any other compensation whatever, except as the same is specially provided for by law. (t) He shall also receive three cents for each name for making a copy of the assessment roll of his town, and making out the tax bill to be delivered to the collector for the first hundred names, and two cents per name for the second hundred names, and one cent for each name over two hundred. But no per diem allowance shall be made to any supervisor while employed in making out each copy of tax. (u) And for all other services, two dollars for each («) 3 R. S., Edm.'s ed. 834, § 10. (0 7 Id. 488, § 8. {u) 3 Id. 335, § 10. FEES OF OFFICERS. 261 day's services performed by him, i e.,for attending with the board of town audit, and settling with the same, &c. (y) And for services under title 6, chapter 555, 6 R. S., Edm.'s ed., one dollar and fifty cents per day for each day's service in any such matter, to be levied and paid as a charge upon the town, (w) § 2. Town clerk. — Town clerks shall receive two dollars per day for each day's service performed by them, (a;) And for drawing a jury to certify to the necessity of altering any road, or laying out a new road, one dollar, to be paid by the applicant for such jury, (y) They shall also be allowed in their accounts for all postage actually paid by them in communica- tions from commissioners of common schools, or from trustees of school districts, (z) For entering strays in the town book, six cents each, for all neat cattle and horses, and three cents for each sheep, to be paid by the person delivering the note, (a) And for filing every chattel mortgage or copy, six cents ; for enter- ing the same in the mortgage book, six cents. (J) For the necessary expenses and disbursements in the performance of his duties, under title 5, ch. 555, 6 R. S., Edm.'s ed., they are a town charge, and should be audited and paid as such, (c) And for services (v) 7 R. S., Edm.'s ed. 676, § 2. (w) 6 Id. 324. («) 7 Id. 676, § 2. (y) L. 1873, ch. 315, § 2. (z) 3 R. 8., Edm.'s ed. 449, ch. 260, § 81. (a) 1 Id. 324. (4) 4 Id. 441. (c) 6 Id. 323, § 2. a6« THE LAW OF COSTS. under title 6, ch. 555, 6 R. S., Edm.'s ed., one dollar and fifty cents per day, to be levied and paid as a charge upon their town. (c£) § 3. Justices of the peace. — Justices of the peace are entitled to receive two dollars per day for each day's services performed by them (this pertains simply to services performed in behalf of the town of which they are officers, i. e., in meeting with the board of town audit, settling with • the supervisor, attending town meetings as town canvassers, &c). (e) For sum- moning and swearing a jury to alter or lay out a high- way, two dollars, to be paid by the applicant. (/) § 4. Assessors, overseers of the poor, commis- sioners of highways, inspectors of elections, and clerks of the polls, shall each receive two dollars per day for each day's service performed by them, (gr) § 5. Collector of taxes. — The (town) collector of taxes shall not receive more than one per cent, fees, for receiving or collecting any taxes within thirty days from the first posting of his notice. (K) But two per cent, fees are allowed on all voluntary payments made to them within the thirty days, as now pro- vided by law, in all cases where the aggregate amount to be collected by the warrants, when put into their hands, shall not exceed the sum of two thousand dollars, (*) and five per cent, for all taxes collected (d) 6 R. S., Edm.'s ed. 324, § 5. (e) 7 Id. 676, § 2. (/) L. 1873, ch. 315, § 4. (ff) 7R. 8., Edm.'s ed. 676. (A) L. 1845, ch. 180, § 29. (j) L. 1847, cb. 482. FEES OF OFFICERS. 263 by them after said thirty days, and two per cent, for all taxes returned by them to the county treasurer, uncollected, (/) REFEREES' FEES. The fees of referees shall be three dollars to each for every day spent in the business of the reference. But the parties may agree, in writing, upon any other rate of compensation. (/£) (j) L. 1847, ch. 482 ; See Supervisors of Livingston Co. v. McCart- ney, 26 Barb. 90. (k) Code, § 313. APPENDIX. APPENDIX. 267 BILLS OF COSTS (Plaintiff). For all proceedings before notice of trial (where judgment can be taken with- out application) (a) ... $15.00 " all proceedings before notice of trial (where judgment can only be taken on application) (&)... 25.00 " each additional defendent served "not ex- ceeding ten (c) . . . .2.00 " each additional defendant served exceed- ing ten (d) ..... 1.00 u all proceedings after notice and before trial (e) 15.00 " trial of an issue of fact (/) . . 30.00 " " " " more than two days additional (cj) .... 10.00 " trial of an issue of law (A). . 20.00 " " " " more than two days additional (i) . . . . 10.00 (a) Ante, p. 39, § 1. (5) Id. (c) Id. (d) Id. («) Id. Jackett v. Judd, 18 How. Pr. 385, ante, p. 39, § 1. (/) See Hamilton v. Butler, 30 How. Pr. 36; S. C. 19 Abb. Pr. 446. (g) Id. Mygatt r. Wilcox, 35 How. Pr. 410. (h) Ante, p. 40, § 1. (*) Id. Mygatt v. Wilcox, 35 How. Pr. 410 ; see ante, p. 49, § 20. 268 APPENDIX. For appointment of guardian for infant de- fendant (/) .... $10.00 " procuring an order of injunction (&) . 10.00 " each term cause necessarily on calen- dar (I) 10.00 " examination of defendant before trial (m) . . . . 10.00 " attending and taking deposition of wit- ness (n) 10.00 " drawing interrogatories to annex to com- mission (o) . . . . . 10.00 " making and serving case or case con- taining exceptions (jj) . . 20.00 " the same where there are more than 50 folios additional (g) . . . 10.00 " making and serving amendments to case (r) ...... 10.00 motion at special term for new trial (a) 10.00 proceedings after granting, and before new trial (i) . . . . 20.00 " application for judgment on special ver- dict before argument (u) . . 20.00 (i) Ante, p. 40, § 1. (k) Id. (1) Id. See Hamilton v. Butler, 30 How. Pr. 36 ; S. C, 19 Abb. Pr. 446 ; Sipperly n. Warner, 9 How. Pr. 332. (m) Ante, p. 40, § 1. (n) Id. (*) Id. (p) Ante, p. 40. (2) H. (r) Id. (s) Id. Moore o. Cockroft, 9 How. Pr. 479; see ante, p. 45, § 11; but see ante, p. 49, § 21. («) Id. p. 39. (u) Id. i. 40. « APPENDIX. 269 For application for judgment on special ver- dict for argument («) . . . $40.00 " appeal to general term, before argu- ment (w) 20.00 " appeal to general term, for argu- ment (») 40.00 " each general term not exceeding five {y) 10.00 *' appeal to court of appeals, before argu- ment (a) 30.00 " appeal to court of appeals, for argu- ment (a) 60.00 " each term cause on calendar court of appeals (b) 10.00 ** preparing and serving case containing exceptions, appeals (c) . . 20.00 " damages of delay in court of appeals 10 per cent, (d) .... " interest on judgment (e) (Costs to the defendant are the same as in the preceding, except he is only en- titled to $10 for all proceedings before notice of trial.) (Additional allowances — Partition — Foreclo- sure — On warrant of attachment — Ad- judication upon will 'or other instru- ct Id. (to) Id. (z) Id. ft) Id. 41, § 1. (f) Id. (a) Id. (ft) Id. <«) Id. (d) Id. Also, ante, p. 52, § 27. . Lee 48, 75 Albany and Vermont R. E. Co., People v 73 AUiger, Van Wyck v 98, 100 Alchard v. Mouchon. 103 Albany Mayor's Court, People v 130 Allen v. Collins 170 Alexander r>. Carpenter 217 American Life Ins. and Trust Co. v. Sackctt 89 Ambler v. Ambler 179 Anthony, Keating v 187 Andrews, Proctor v 106 Anthony, Brown v 103, 105 Anonymous 77, 146, 197, 199 Anthony, White v 52 Archer v. Cole 18 Arkenburgh, Wiggins v 47, 49 Archer v. Bondinet 73 Archer, Meiritt « 90 Arnoux v. Steinbremer 132 Arrangois, Republic of Mexico v 184 Aroux v. Phelan 194 Astor, Cooper v 203 Atkinson v. Manks 168 278 TABLE OF CASES. PAOB Averill v. Patterson • 85, 92 Avery, McLees v 65 Aymer, Hall v 211, 214 Aymer v. Gault 168 B. Briggs, Supervisors of Onondaga e 1, 5, 68 Beldingu. Conklin 4, 22, 187, 206 Brannau, Johnston t> 6 Bogardus t>. Richttncycr 6 Bennett, Wesley v 7, 98 Ballard, Herniston v 7 Baker v. Bradfield 7 Bradfield, Baker* 7 Bayard, Muller » 16 Burger, Snyder o 17 Brown, McCurdy v 19 Brown, Griffin v 20 Bloomfield, Matteson « 21 Buchanan v. Morrell 23, 64 Buell o. Gay 23, 109 Bliss, Latham v 23, 57 Buchanan, Yan Scheming v 26 Banta v. Marcellus 26, 102 Bridgeport Fire and M. Ins. Co. v. Wilson 31 Brooklyn Ins. Co., Wood v 32 Bard,Markse 32 Bayard, Comstock v 33 Bailey v. Park 34 Betts, Osborne v 35, 69, 71 Bedell v. Hoffman 87, 169 Buckingham v. Miner 43, 105 Brown, Foster v 44, 88 Burnetts. Westfall 5,44, 68, 196 Butler, Hamilton » 45, 47, 48 Bentley t. Jones ' , 46 Brigham, Marquisee t> 47 Butchers' and Drovers' Bank of Providence «. Jacobson 47 Bell v. Noah 47 Brower, Shannon v.. 48 Barry, Hoffman v 50, 51 Bullen, Tituso 54 Babcock, Ormsby z 54 TABLE OF CASES. 279 TAGK Benton v. Sheldon 56 Butternuts, W. & C. M., Co. Place v 57 Bartow v. Cleveland 00, 91 Brown v. Safeguard Ins. Co., of N. Y. and Penn 60 Bostwiok v. Tioga R. R. Co 63 Bridges v. Miller 04 Beers v. Squire 64 Bailey, Seamen v 68 Ball, Sackett » 09, 71, 74 Beals v. Benjamin 72 Benjamin, Beals c 72 Bondiuet, Archer v 73 Brace v. Beatty 74, 75 Beatty, Brace v 74, 75 Bennett v. Sullivan 75 Beach, Knight v 81 Bethune, Murray v 81 Brown, Slack v 1 82 Budd v. Jackson 82 Beach, Cook v 85, 87 Bedell v. Powell 85, 88 Bishop v. Bishop 85 Bennett, Cummings -o , 85 Brewster, Simpson v 85 Bush, Young s 87, 136 Barker, Hammersly v 88 Bradfield, Steele v 91 Burnett v. Harkness 91 Beals v. Cameron 92 Borst, Swart v 92 Belnap, Case v 93 Board of Police, People v 97 Brother, Chadwick v 98, 105 Bellows, Purchase v 99 Brown v. Leigh 101 Brown v. Anthony 103, 105 Baxter, Scranton v 103 Bemis v. Bronson 107 Bronson, Bemis v 107 Bowman v. Earle 108 Brisbane, Consideiant v 108 Bolwer, Taylor v 113 Bendernagle v. Cocks 114 Bliss v. Otis 114 aSo TABLE OF CASES. PAGK Bowen v. Idley 119 Buckhout ». Hunt 123, 126- Boyd v. Wilkins 125 Burroughs, VanVleck v 125, 12& Bullock «. Bogardus 125, 126 Bogardus, Bullock v 125, 1 26- Baxter v. Davis 129 Benedict v. Caffe 130 Bradley, McCame v 130 Bucklin v. Chapin 131 Barry, Slocum v 135 Blackford, Kluiberly v 135 Burt, Shepherd a 136, 137 Bolles v. Duffy 137, 182: Byington, Wood v 138 Bonurau, Eagle v 145- Bertis v. Dodge 157 Bachman, Niagara Falls Suspension Bridge Co. v 164 Bagley v. Ostrone 170' Buckley v. Ketellas 170 Booth v. Whitby 170 Bentley, Noxon v 171 Bronson v. Freeman 17$ Bolton v. Taylor 182. Blossom v. Adams 183 Butler t>. Wood 183 Babcock, Union India Rubber Co. v 187 Barre, Hand v las' Brockway v. Jewett 193 Baird, Goodyear v 196, 204 Bull e. Ketcham 198- Brennan, Hicks v 199, 200 Bush, Dowling v 199 Bingham, Ehle v 199- Bank of Niagara v. Austin 199 Beattie v. Quia 205 Black, Seeley v 207 Bartle v. Gilman 211,212. Brooklyn & Newtown R. R. Co., Richardson v 211 Brothersons. Consales 213 Benedict v. Stewart 212 Batterman, Wilkin v 215- Boardman, DeGraw v 216- Brown, Moir v 217 TABLE OF CASES. 281 PAGH Boyce v. Bates 217 Bates, Boyce v 217 C. Conklin, Beldon s 22, 187, 206 Cook v. N. Y. Floating Dry Dock Co 5, 68 Crary v. Norwood 5, 110 Cumberland Coal Co. v. Hoffman 7 Cole, Archer v 18 Campbell, Gilliland 20 Corbett v. Ward 27, 31 Cuyler «. Coats 28, 92, 205 Coats, Cuyler e 28, 92, 205 Comstock n. Bayard 33 Candee, Wentworth r> 34, 103 Commissioners of Pilots v. SpofEord 37, 63 Cythe v. La Fontaine : 38 Candee v. Ogilvie 41, 54 Case v. Price 42, 192, 194, 195 Cockroft, Moore v 45 Curry, Dowd t 46 Chapman v. Lemon 47 Case, Jones v 49 Callumb v. Caldwell 49, 205 Caldwell, Callomb e 49, 205 Comstock, Drew v 57 Curtis, Knapp v 57, 123, 125 Cleveland, Barton v 60, 91 Chapin, Gould v 64, 71 Clark v. City of Rochester 72 City of Rochester, Clark v 72 Columbia Ins. Co., Johnstone v 81 Colton, Aikins v 82 Cook v. Beach 85, 87 Carrington v. Holly 85 Cummings v. Bennett 85 Campbell, Earl v 86 Crockett v. Smith 88 Crippen ». Crippen 89 Clark, Noyes v 91 Cummingham, Lynch v 91 Cameron, Beals v 92 Closson, Wellington v 92 28a TABLE OF CASES. FAOB Collins v. Evans 98 Case v. Belnap 93 Coats e. Coats 95 Commissioners of Highways of Cherry Valley, People s. 97 Commissioners of Highways of Schodack, People » 97 Chadrick v. Brother 98, 105 Clark, Thomas » 105 Carrier v. Dellay 106 Cowing v. Cowing 108 Considerant x. Brisbane 108 Comstock v. H.illeck 109 Conger e. Hudson R. R. Co 112 Cocks, Bendernagle v 114 Cooper, Whitney v 114 Colvard v. Oliver 115 Columbia Ins. Co. v. Stevens 115, 134 Crane, "Waning v 119 Curtis n. Dutton 121, 134, 127 Crane, Fishers; 121, 128 Cook, Woodruff v 121, 127 Cunningham v. McGregor 121 Croft, Sands v 122 Clark, Stephenson v 123 Casey, Dolbeer » 124 Comstock v. Olmstead 124 Crandall, Dodge v 127 Caffe, Benedict v 130 Collins, Reynolds v 130 ChapiD, Bucklin v 131 Cole, Phelps J) 131 Clarke v. Tunnicliff 134 Cumming v. Edgerton 135 Condit, Durby v 136, 137 Cutler o. Reilley 137 Coe». Coe 138 Collins v. Standish 143 Cluspm.in . Ross v 147 Carroll v. O'Callahan 153 Church v. Miller 155 Cock, Holmes v 158 Clute, People ex rel. Furman v 168 Canfield ». Sterling 168, 169 Calter v. Supervisors of Dutchess County 172 City of Brooklyn, Hart v 178 TABLE OF CASES. ?.8$ PAGE Caldwell «. Manning 175, 170 Collins, Allen « 179 Charles v. Wateman 179 Calvert, Finch v 193, 195 Curtis, Wilcox v 193 Clark v. Sterling 199, 202 Ccles v. Smith 202 Cooper v. Astor 203 Coats v. Smith 205 Colburn, People v 206 Curtis v. Lcavitt 200 Consales, Brotherson v 212 Currie v. Cowles , 213 Cowles, Currie v 213 Case v. Hotchkiss 213 Chappell v. Dann 214 Cunningham v. Widing 214 Carpenter, Alexander « 217 D. Davis v. Duffe 5 Duffe, Davis v 5 Dunckel v. Parley 17 Ditmas, Vrooin v 18 Decker i>. Gardiner 27 Duffy, Stone v 32, 33 Downing v. Marshall 42, 59, 62, 132 Dick, Tillspaugh v 44 Dowd v. Curry 46 Davis, Lawrence s 47 Dickel, Peterson v 52 Day v. Roth 52 Dwight, Shord v 53 Drew r. Comstock 57 Dupuy v. Wurtz 61, 69 Dychman v. McDonald 69 Dickson v, McElwin 71 Dresser v. Jennings 74 Danenhover v. March 75 Dexter v. Gardner 77 Davis, Rensselaer and S. R. R. Co. v 78 De Forest, Griffith v 81 Daikin Dunning » 82 Dunninp, Daikin v 82 a84 TABLE OF CASES. PAGE Dixon v. Parks 85 Davis, Kerr v 85 Daveau, Pignolet v 86 Downing v. Rugar 89 De Barante v. Deyermand 95 Deyerrnand, De Barante o 95 De Forest, Nellis v 98, 105, 142, 187, 206 Darrow, Savage v 99 Dennison v. Dennison 102 Denver v. Thompson 106 Dellay, Carrier v 106 Dox v. Dey 108 Dey, Dox v 108 Dexter, Hanna v 110 Dutton, Curtis v .121, 124, 127 Dolbeer v. Casey 124 Ditmas, Robert o 124 Dodger. Crandall 127 Dubois v. Sands 128 Davis, Baxter v 129 Dennison, St. John v 132,133 Dickey, Morrell v 733 Devendorf 1>. Dickinson 135 Dickinson, Devendorf v 136 Durbef v. Condit 136, 137 Duffy, Bolles « 137, 182 Davis v. Turner 144, 145 Davis, Wadley » 154 Dodge, Bertes v 157 DePeyster, Miller » 169 Densmore, McGee v 172 Darlington, Murphy v 181 Davidsun v. Hagstaff 182 Dunham 1>. Sherman 193, 196 DeWitt v. Swift 195 Davis, New York Life Insurance & Trust Co. © 195 Dowling 8. Bush 199 Dean v. Williams 199 Dodge v. Stiles 201 Dawkins v. Gill 201 Dixfl. Palmer 203 Dresser v. Wiekes 205 Dofflnger. Keenan 211215 Difenriorf, St. John v 214 Tann, C a,i,)j n 214 TABLE OF CASES. 285 IVAGE Dicas v. Stockley 214 Delbitt, TenBroeck v 215 Degraw v. Boardman 216 E. Eastman v. Stuben, C. P S Eastman v. Kirk 3 Ed wards v. Ninth. Ave. R. R. Co 5 Eustaces. Tutbill 17 Eagan, Gallager v 25, 30, 91 Ellsworth i>. Gooding 34, 45, 105 Eckerman «. Spoor 56, 206 Earl v. Campbell 86 Evans, Collins v 93 Earle, Bowman v , 1 08 E verson v. Gehrman 109 Emmons v N. Y. & Eric. R. R. Co 110 Evans ». Reese 115 Edgerton, Cummiug v 134 Eagle v. Bonnean 145 Ebbets, Thompson v 168 Ehle v. Bingham 199 Edson ». New York Eq. Life Ins. Co 202, 203 F. Fowler v. Van Surclam 115 Farmer's Loan & Trust Co. v. Kersh 115 Fishers Crane 121, 128 Franciso v. Fitch 122 Fitch, Francisco v 122 Forsyth v. Ferguson , 153 Ferguson, Forsyth v , 153 Fox ». Nellis 153 Fingar, Younghause v 154 Fay, Van Rensselaei v 171 Freeman, Bronson v 178 Fearn v. Gilpike 179 Finch v. Calvert 193, 195 Fullers. Squire 198 Fitch v. Gardiner 212 Fox, Adams s 213 Fisher v. Hunter 4, 68 Farnham, Perkins v 8 a86 TABLE OF CASES. PAGB Parley, Dunckle » 71 Ford, Warner v 24 Forts. Gooding 35, 123, 126 Foster v. Brown 44. 88 Foster, Randolph v 46, 63 Ford, Moffatt v 49, 75, 85 Figauerie, Jackson i> 60 Falsom v. "Van Wagner 61 Fowler v. Houston 64 Flagg, People v 64 Flint ». Richardson 71, 73 Fox v. Fox 76, 127 Fancher, Schenck v 88 Fishero. Hall 89 Freebone, Miller » 89 Fabricatte v. Lauritz 89 Ferris v. Ferris 91 Fort, Van Buren ® 92 Fowler v. Starr 93 Ford 9. Stock 93 Flake, People v 97 Falconer v. Ucoppcll 102 Fellows v. Sueridan 102 Frieot ». Adams 109 Foot, Yates v 115 G. Gori, Scudder v 5, 49 Glegner, Seamen v 19, 28 Griffin, Runnell « 19, 26 Gilliland v. Campbell 20 Griffin ». Brown 20 Glackin v. Zeller 20, 23 Gay, BueU 23, 109 Gallager ». Egan 25, 30, 91 Gardiner, Watson v 27, 205 Gardiner, Decker v 27 Gooding, Ellsworth v 35, 45, 105 Gooding, Fort v 35, 125, 126 Gray v. Hannah 50 Grier, Woodward v 60 Gould o. Chapin 64, 71 Gray v. Robjohn • 64 TABLE OF CASES. 287 PAQB Graydon, Iseline v 65 Gori v. Smith 69, 70 Gardner, Dexter v 77 Graham, Van Sickler v 78 Griffith v. De Forest 81 Gilliek, Logan e 82 t Gow, Pilger v 86 Gowletto. Hanforth 91 Gale v. Wells 91, 95 Gehrman, Everson v 109 Giles v. Halbert 114, 137 Groff, Morgan v 115 Grautman v. Thrall 118 Qorham v. Ripley 122 Garkhill ». Hillman 127 Goodrich, Kimberly v 135 Grigg, Westervelt v 158 Gault, Aymer v 168 Gilpike, JFearn 179 Gardner, Taylor v 187 Gilman v. Oliver 194 Goodyear v. Baird 196, 204 Grant, Troy City Bank v 198 Grier, People v 198 Gregory, Pollak v 201 Gill, Dawkins v 201 Gilmartin v. Smith 202 Griffith v. Griffith 203 Garr v. Mariet 211, 212 Gilman, Bartle v 211, 212 Gardiner, Fitch v 212 H. Huber v. Lock wood, 4 Hunter, Fisher v 4, 68 Hunt v. Middlebrook 5, 59, 76 Hadley, Torry s 5, 76 Henderson v. Jackson 7 Hill v. Simpson 7 Hoffman, Cumberland Coal Co, v 7 Herniston v. Ballard 7 Hancox, Sleight 8 Hall v. Luids 23, 86 288 TABLE OF CASES. PAOE Harnott, v. New Jersey R. R. & T. Co 27 Hinds v. Myres 30 Hoffman v. Skinner 30 Howe v. Muir 35, 70, 71 Hill. Pattern v 35 Hoffman, Bedell v 37, 169 Hamilton v. Butler 45, 47, 48 Hulin, Pomeroy v 49 Hannah, Gray v 50 Hoffman v. Barry 50, 51 Hemon, Williams v 59 Houston, Fowler t> 64 Hicks i>. Watermire 05 Hunter, Lueker i v 68 Hadley, Long v 68 Herkimer. C. P. People v 68 Hall, Marshall v 70 Hansett ». Lansing 76 Hall ». Parker 77 Hally, Carrington v 85 Held, Wergan » 85 Hope v. Acker 86 Houseman v. Rosenfield 88 Hammersley v. Barker 88 Hall, Fisher ».. : 89 Hackett, Ludlow v 90 Hart, St. John » 90, 92 Hunt v. Kerch 91 Haniorth, Gowlett v 91 Harkness, Burnett v 91 Hill, Phoenix v 93, 132 Hart v. Story 93 Hallett, Steinback v 93 Haviland v. White 97 Heath, People v 97 Hornbager v. Hornbager 103 Hillerline, Luiner v 107 Hare v. White 107 Halleck, Cnmstock « 109 Hanna v. Dexter 110 Hudson R. R. R. Co., Conger v 112 Hedges, Rycis v 114 Holcomb, Walcott v 114, 116 Halbert, Giles v.... 114, 137 TABLE OF CASES. 2»» PAGE Hunt, Buckhart v 133, 136 Howell, Munson v 134, 138 Harvey v. Ski llim an 135 Hillman, Garkhill v 137 Howe ». Lloyd 139 Hendrickson, Murray © 131 Hobbie, Webber v 147 Holbert, Wynkoop v 153 Heath, Putnam v 154, 155 Halsey v. Van Anirenge 157 Holmes v. Cock 158 Howard, Sibley v 165 Hart v. City of Brooklyn 173 Hackstaff , Davidson v 183 Hitchcock, Rogers v 184 Hand d. Baire 193 Haynes ... Mosher 196, 199 Hallett, Vredenburgh v 198 Hicks v. Brennan 199, 200 Hall, Mitchell v 202 Higgins, Stimpson v 206 Hamlin, Stow v 211, 212 Hall«. Ayer 311,214 Hutchins v. Van Brunt 213 Hotcbkiss, Caae v 213 Hart, Shockelton v 214 Hawks, Martin v 215 Haight v. Holcomb 216 Holcomb, Haight v 216 Hale, Long v 217 I. Ide, Morrison v 43, 85, 98, 105, 206 Iseline v. Graydon 65 Illinois, Cent. R. R. Co., Woods v 75 Inman, Lowry r 76 Ives, TompkiDS « 82 Irvine i> Spring 86.94 Idley, Bowen v 119, J. Jacket v. Judd 5, 49, 68, 104 19 2 9° TABLE OF CASES. PAOK Judd, Jacket t> 5, 49, 68, 104 Johnston v. Bran nan ft Jackson, Henderson o 7 Judah v. Stagg's executors 11 Jackson v. McBurney 43- Jacobs, Pottsdam & W. R. R. Co. c 45 Jones, Bentley v 48 Jacobson, Butchers' and D. Bank of Providence v 47 Jones v. Case 49 Jackson v. Figauerie 60 Jones v. Underwood 68 Jennings, Dresser v 74 Johnstone v. Columbia Ins. Co 81 Jackson, Budd v 82 Johnson v. Sagar 82 Johnson, Raymond v 89 Jones, Porter v 91, 95 Johnson v. Jilett 100 Jiletr, Johnson v 10O Jones v. United States Slate Co 102 Jordan v. Sherwood 113, 114 Jackson v. Van Anthwerp 115 Jackson v. Pell Jewett, Brockway v 193 K. Eirk, Eastman v 3 King v. Pool 7 Kalt ». Lignot 9, 28 Kaur v. Van Vranken Kanouse v. Martin 52, 55 Knapp v. Curtis 57, 123, 125 Kidd, Van Rensselaer v 69, 70, 71 Knight v. Beach 81 Keane, Tillman » 83 Kerr ». Davis 85 Kerch, Hunt v 91 Krause, Waterproof Leather Man'g Co. v 94 Keil v. Rice 105 Kursch, Farmers' L. & T. Co. e 115 Ketchum ». Ketchum 130 Kimberly ». Stewart 135, 181 Kimberly v. Blackford 135 TABLE OF CASES. 291 PAGH Kimberly v. Goodrich 136 Keteltas, Buckley v 170 Keating v. Anthony 187 Ketchum, Bull o 198 Keenan v. Doffinger 21] , 215 Knickerbocker Stage Co., Basquin e 215 Kirby v. Kirby 215 Kent, Power v 216 L. Lockwood, Huber v •••• 4 Lamereaux. Stewart t> 5 Lignot, Kalt v 9, 28 Lindsley, Niles » 16 Landsberger v. Magnetic Telegraph Co 19 Latham 0. Bliss 23, 57 Linds, Hall v 23, 86 Livingston, Perry t> 32, 43, 56 Lewis, Wendell 84 Luddington v. Taft 35 Lawton v. Sagar 37 La Fontain, Cythe o 38 Lemon, Chapman v 47 Lawrence v. Davis 47 Lee, Allaire v 48, 75 Leven v. Lush 54 Lush, Leven v 54 Lansing, Slocum v 54 Livingston n. Vielle Montague Zinc Mining Co 55 Lucker v. Hunter 68 Long v. Hadley 68 Lansing, Hansett v 76 Ludlow, Small v 76 Lowry «. Inman 76 Logan v. Gillick 82 Lynen, Perry v 88 Lauritz, Fabricatte v 89 Lenling, Pacific M. S. Co. v 90 Ludlow v Hackett 90 Loweree v. Vail 90, 133, 200 Lynch 0. Cunningham 91 Lackey v. McDonald 93 Lallis, Butter v 94 ags TABLE OF CASES. PAGE Leigh, Brown v 101 Lumer v. Hi llerline 107 Lathrop, Schoolcraft v 115 Liko v. Thompson 115 Lane, Russell v 126 Loyd, Howe v 129 Lemen ». Wood 130 Lyon v. Marshall 130 Lewis, People v 155 Lain v. Lain 158, 161 Lee ». Lee 159 Lewis v Lowry 170 Lowry Lewis v 170 Laraway, Pinckney v 171 Langley, Washburn v 182 Lozee, Wheelers 196,199, 201 Logan v. Thomas 199, 205 Leavitt, Curtis v 206 Lochman, Nesbit v 213 Long ». Hale 217 M. Moore v. Westervelt 5, 68, 212 Middlebrook, Hunt « 5, 59, 76 Mora v. Sun Insurance Co 6, 99, 100 McMahon v. Mutual Benefit Life Insurance Co 7, 27 Mutual Benefit Life Insurance Co., McMahon v 7, 27 Matter of Pierce 8, 102 Muller v. Bayard 16 Mitchell, Van Schoning v 17 Minks i>. Wolf 18 Magnetie Telegraph .Co., Landsberger v 19 McCurdy v. Brown 19 Matteson v. Bloomfield 21 Mills i>. New York Common Pleas. 21 Morrell, Buchanan e 23, 64 Merchants' Ins. Co. v. Maroni 26 Maroni, Merchant's Insurance Co. v 26 Marcellus, Banta v 26, 102 Myers, Hinds v 30 Marks v. Bard 32 Muir, Howe « 35, 70, 71 McGowan ». Morrow 37 Morrow, McGowan v 37 TABLE OF CASES. PAGB Marshall, Downing v 42, 59, 62, 133 McBurney, Jackson s 43 Morrison v. Ide 43, 85, 98, 105, 206 Muier, Buckingham v 43, 105 Mitchel «. Westervelt 44, 98, 103, 206 Moore v. Cockroft 43 McKinstry, National Bank of Syracuse t> 47 Marquiser v. Brigham 47 Morrison, Roberts v 47 Moflatt v. Ford 49, 75, 85 Mygatt s. Wilcox 49, 159 Martin, Kanouse » 52, 55 Miller, Bridges v , 64 McLees v. Avery 65 McMasters v. Vernon 68 McCoy, Saratoga & W. R. R. Co. « 69, 70, 102 McDonald, Dychman v 69 Mann v. Tyler 69, 70 Main s. Pope 69, 71 Marshall v. Hall 70 Mesereau v. Ryers 70, 1S7, 1 31 McElwin, Dickson v 71 Martin v. McCormick 72 McCormick, Martin « 73 Mott v. Union Bank 78 March, Danenhover « 75 McLaughlin, Steene » 80 Murray v. Bethune SI Miller u. Freebone 89 Merritt v. Archer 90 March, Thurston e 91 Matter of Mechanics' Fire Ins. Co 92 McDonald, Lackey o 98 Moore, Parks » 98 Monchon, Alcard v 103 Mosher, Sage v 107 Mayhew v. Robinson 107 Miller v. Adsitt 118, 115 Morgan v. Groff 115 McGregor, Cunningham v 121 Munson v. Howell 124., 138 Merritt *>. Thompson 127 Murray v. Smith 127 McCame «. Bradley 130 293 »94 TABLE OF CASES. PAOB Marshall, Lyon e 130 Murray v. Hendrickson 131 Morrell v. Dickey 133 McLaughlin v. Smith 152 Murphy «. Simmons 154 Miller, Church v 155 Manks, Atkinson t> 168 Miller e. DePeyster 169 M«Gee ». Densmore 173 Manning, Caldwell v 175, 176 Methodist Book Concern, Roberti v 180 Murphy t>. Darlington 181 Mayor, &c, of New York, Reynolds v 198 Moaher, Haynes « 196, 199 Muscott ». Range 200 Meads, Roth v 201 Mitchell o. Hall 202 Mariet, Garr « 211, 212 Martin v. Hawks 215 Mason, Owen t>... 215 McDowell v. Second Ave. R. R. Co 215 Moir v. Brown 217 McCartney, Voorhees c 217 McCartney, Supervisors of Livingston Co. » 263 N. New Tork, C. P. Stewart v 8 New York Floating Dry Dock Co., Cook » 5, 68 Norwood, Crary s 5, 110 Ninth Ave. R. R. Co., Edwards » 5 Niles v. Lindsley 16 New York Common Pleas, Mills v 21 Newton v. Sweet 22, 187 New York C. R. R. Co., People » 23, 68, 70 New Jersey R. R. & T. Co., Harriott v 27 New York & N. H. R. R. Co. «. Schuyler 33 North v. Sergeant 84, 88, 105 National Bank of Syracuse v. McEinstry 47 Noah, Bell » 47 Norton, Webb v 52 Niver v. Rossman 69, 70, 71 New York L. Ins. & T. Co. t>. Vanderbilt 75 New York C. R. R. Co., Post v 81 TABLE OF CASES. 295 PAGE "New York Superior Court, People *> 81, 83, 91 Noyes v. Clark 91 Nel'lis v. De Forest 08, 105, 142, 187, 206 Northrop v. Van Dusen 102 New York & Erie R. R. Co., Emmons v 110 Norton v. Rich ; 115 Nellie, Fox v 153 Niagara Falls Suspension Bridge Co. v. Bachman 164 Noxon v. Bentley 171 Northrop v. Wright 179 Nichols, Sebley v 193, 194 ;New York Life Insurance & Trust Co. . Babcock 54 . Flake 97 People v. Commissioners of Highways 97 People v. Board of Police 97 People v. Com'rs of Highways of Schodack 97 People v. Heath 97 Pennell v. Wilson 99 Purchase v. Bellows 99 Potter v. Richards 102 Proctor v. Andrews 106 Power, Shufelt v 110 People v. Tremaine 112 Proud v. Whiton 122, 123 People v. Albany Mayor's Court 130 Phelps v. Cole 131 Purdy v. Purdy 132 Putnam «. Heath 154, 155 People v. Lewis 155 Ponto v. Phelps 164 Phelps, Ponto e>. . . 164 People ex rel. Purman v. Clute 168 Pinkney v. Pell 170 Pell, Pinkneya , 170 Pinckney v. Laraway 171 Pell, Jackson v 171 Phenix e. Townshend 179 1 Persse & Brooks Paper Works v. Willet 180 Phelan, Aroux o 194 Power v. Sent 216 Q. Qua, Beattieo 205 R. Richardson v. White 5, 117 Remis, Taylor « 6 Richtmeyer, Bogardus o 6 Rossa v. S. & W. R. R. Co 8 Runnell 0. Griffin 19, 2ft Robinson v. Taylor 44 Randolph v. Foster 46, 63 Rochester City Bank «. Rapelge 47 *9 8 TABLE OF CASES. PAGE Rapelge, Rochester City Bank t 47 Roberts z>. Morrison 47 Roth, Day v 52 Ramsdell, Pratt v 60 Reed «. Reed 61, 158 Rice «. Wright 64 Robjohn, Gray v 64 Rossman, Niver v 69, 70, 71 Ryerss, Mesereau v 70, 127, 131 Richardson, Flint v 71, 73 Rensselaer & S. R. R. Co. t>. Davis 78 Ranney v. Russell 80 Russell, Ranney v 80 Rosenfleld, Houseman v 88 Rugar, Downing v 89 Rogers v. Rogers 89, 195, 204 Raymond v. Johnson 89 Rees ». Van Patten 9f Rutter v. Lallis 94 Robinson, People v 97 Richards, Potter v 102 Rice, Keil v 105 Robinson, Mayhew v 107 Roe, Shanks v 110 Ryers v. Hedges 114 Rich, Norton v 115 Reese, Evans v 115 Ripley, Gorham v 122 Robert v. Ditmas 124 Russell v. Lane 126 Reynolds*). Collins 130 Reeder v. Seeley 132 Rosa v. Rose Beneficent Ass'n 132, 183 Rogers v. Ross 133 Ross, Rogers v 133 Remsen, Sibell v • 136 Reilly, Cutter v 137 Ross v. Clussman 147 Romiin, Weston v 156, 157 Richards v. Salter 169 Rogers, Raden t> 169 Raden v. Rogers 169 Roberti v. Methodist Book Concern 180 Ramsey v. Stringer 180 TABLE OF CASES. 299 PAOK Reynolds, Ten Broeck » 188 Republic of Mexico v. Amangois 184 Rogers v. Hitchcock 184 Russell, Walker v 198 Reynolds v. Mayor, &c, N. Y Reekie, Willink v 199 Reynolds v. Warren 200 Range, Muscott v 200 Roth v. Meads 201 Reed, Van Wyck v 203 Richardson v. Brooklyn & Newtown R. R. Co 211 Rooney v. Second Avenue R. R. Co 211, 213, 215, 216 Rasquin v. Knickerbocker Stage Co 215 S. Supervisors of Onondaga Co. e. Briggs 1, 5, 68 Stewart e. N. T. C. P 8 Stuben C. P., Eastman t> 8 Stewart v. Lamereaux , 5, 49 Scudder v. Gori . 5 Schultz, Wetzel* 6, 171 Sun Insurance Co., Mora e 6, 99, 100 Smedley, Palmer v 7, 100 Simpson, Hill 7 Sleight «. Hancox 8 Saratoga & W. R. R. Co., Roosa v 8 Staggs, Judah v 11 Snyder, Buyer v 17 Seamen n. Glegner 18, 28 Stillwell b. Staples 20 Staples, Stillwell t> 20 Sweet, Newton v 22, 187 Skinner, Hoffman 80 Stone v. Duffy '. 32, 33 Stafford ». Onderdonk 33, 98 Schuyler, New York & N. H. R. R. Co. » 33 Sergeant, North o 34, 88, 105 Smith n. Schenck 34, 108 Schenck, Smith v 34, 103 Stiles, Pratt v 35 Spofford, Commissioners of Pilots e 37, 68 Sagar, Lawton v 37 Schenck, Pardee v 42, 43, 47, 197 3°° TABLE OF CASES. PAGE Sipperly v. Warner 48, 54, 56 Slyter v. Smith 43, 204 Smith, Slyter v 43, 204 Smith, "White v 44, 88 Schmidt, Taaks v 46, 94, 197, 199, 200 Shannon v. Brower , 48 Selovor v. Wisner 50 Sturtevant, People v 50 Shord v. Dwight 58 Slocum v. Lansing 54 Spoor, Eekerman e 56, 206 Sheldon, Benton v 56 Safeguard Ins. Co. of N. Y. & Penn., Brown v 60 Sturgis i>. Spofford 63 Spofford, Sturgis v 63 Sprong v. Snyder 63, 64, 69, 71 Snyder, Sprong v 63, 64, 69, 71 Squire, Beers v 64 Seamen v. Bailey 68 Saratoga & W. R. R. Co. v. McCoy 69, 70, 102 Sackett v. Ball 69,71,74 Smith, Gori v 69, 70 Swartz ». Poughkeepsie Mutual P. Ins. Co 71, 74 Struthers v. Pearce 73 Sullivan, Burnett v 75 Small v. Ludlow 76 Sands v. Sands 77 Sterne ». McLaughlin 80 Spaulding v. Vandercook 81 Slack v. Brown 82 Sagar, Johnson v 82 Seaboard & R. R. R. Co. v. "Ward 85, 90 Schermerhorn, "Van Allen v 85, 90 Swain, Perine v 85 Simpson v. Brewster 85 Saxon v. Stowell 85 Stowell, Saxon v 85 Spring, Irvine v 86, 94 Smith, Wright v 87 Sohenck v. Fancher 88 Smith, Crockett v 88 Sackett, American L. Ins. & T. Co. v 89 Sutherland, Oaksmith v 90 St. John v. Hart 90, 92 TABLE OF CASES. 301 PAGTC Steele v. Bradfield 91 Swart v. Borst. 92 Starr, Fowler v 93 Story, Hart v 98 Steinbach v. Hallett 93 Stock, Ford v 93 Shaw v. Wilmerden 93 State of Indiana v. Waram 94 Savage v. Darrow 99 South wick, Weeks v 101 Scranton v. Baxter 103 Sheridaa, Fellows v 104 Sage «. Mosher 107 Shufelt ». Power 110 Shanks v. Roe 110 Sherwood, Jordan v 113, 114 Schoolcroft v. Lathrop 115 Stevens, Columbia Ins. Co. d 115, 134 Sands e. Croft 122 Stephenson v. Clark 123 Suydam, Tracey » 124 Snyder v. Young 125, 126 Skillinian, Harvey v 125 Smith, Murray » 127 Sands, Dubois v 128 Smith v. Woodruff 131 St. John v. Dennison 132, 133 Seeley, Reeder v 132 Steinbremer, Arnoux v 132 Slocum v. Barry , 135 Stewart, Kimberly v 135, 181 Sibell v. Remsen 136 Shepherd 0. Burt 136, 137 Standish, Collins s 143 Smith, McLoughlin v 152 Seeley, Taylor v 153 Simmons, Murphy v 154 Smith, Wilcox® 156, 157, 161 Sherman 215 Shank v. Shoemaker 216 Shoemaker, Shank v 216 Supervisors of Livingston Co. v. McCartney 263 T. Torry v. Hadley 5, 76 Taylor t. Remis 6 Tuthill, Eustace v 17 Trust v. Pusson 19 Taft, Luddington v 35 Taylor, Robinson v 44 Tillspaugh v. Dick 44 Titus «. Bullen 54 Trustees of Pen Tan v. Tuell 55, 56 Tuell, Trustees Pen Tan e 55, 56 Toll v. Thomas 55, 194, 199 Thomas, Toll v 56,194,199 Tioga R. R. Co., Bostwick v 63 Tyler, Mann ». 69, 70' Tiffany, Wilkinson v 73 Tillman v. Keane 82 Tompkins «. Ives 82 Thurston v. March 91 Thomas b. Clark 105 Thompson, Denver x> 106 TABLE OF CASES. 303 PAGE Tibbits, Troy & B. R. R. Co. v 108 Troy & B. R. R. Co. t>. Tibbits 108 Tremain, People v 113 Taylor t. Bolwer 113 Thompson, Like v 115 Thrall, Grantman o 118 Tracey v. Suydam • 134 Thompson, Merritt v 137 Tunnicliff, Clark v 134 Turner, Davis v 144, 145 Taylor s. Seeley 153 Thompson v. Ebbet3 168 Townsend, Phenix v 179 Taylor, Bolton v 182 Ten Broeck ». Reynolds 183 Thomas v. Thomas 184 Taylor v. Gardner 187 Taaks v. Schmidt 46, 94, 197, 199, 200 Troy City Bank v. Grant 198 Thomas, Logan v 199, 205 Tarbox, Ackley v 202 Ten Broeck v. Delbitt 215 U. Underwood, Jones v C8 Union Bank 0. Mott 73 United States Slate Co., Jones v 102 Ucoppell, Falconer v 102 Union Ins. Co. a. Van Rensselaer 119 Union India Rubber Co. v. Babcock 187 V, Van Schoning v. Mitchell 18 Vroom v. Ditmas 18 Van Home e. Petrie 19, 68 Van Cott, Philippsfl 23, 109 Van Schoning v. Buchanan ... 26 Van Vranken, Kaur » 30 Vielle Montague Zinc Mining Co., Livingston v 55 Van Wagner, Folson » 61 Van Nostrand, Wolf v 62, 68 Vernon, McMasters » 68 304 TABLE OF CASES. PAGK Van Rensselaer e. Kidd 69, 70, 71 Vanderbilt, New York L. Ins. & T. Co. v 75 Van Sickler v. Graham 78 Vandercook, Spaulding » 81 Van Allen v. Schermerhorn 85, 90 Van Patten, Rees v 90 Vail, Loweree e 90, 133, 200 Van Buren v. Fort 32 Van Wyckfl. Alliger 98, 100 Van Dusen, Northrop v 102 Van Schaiekt). Winnie 105, 143 Van Surclam, Fowler v 115 Van Anthwerp, Jackson v 115 Van Rensselaer, Union Ins. Co. v 119 Van Vleck v. Burroughs 125, 126 Van Arnrenge, Halsey v 157 Van Rensselaer v. Fay 171 Vredenburgh v. Hallett 198 Van Vroast, Schermerhorn » 199, 204 Vense v. Spier 200 Van Wyck «. Reid 203 Van Brunt, Hutchings v 213 Voorhees ». McCartney 217 "W. "Wheeler i>. Westgate 4, 22, 187 Westgate, Wheeler v 4, 22, 187 Weptervelt, Moore v 5, 212 Westfall, Burnett » 5, 68, 196 White, Richardson v .5, 117 Warfield v. Watkins 5, 6 Watkins, Warfield v 5, 6 Wetzel «. Schultz 6, 171 Wesley v. Bennett 7, 98 Whitbeck v. Patterson 12 Warth, Peet v 18, 19, 187 Wolf, Minks v 18 Willett, Porter « 18 Warner v. Ford 24 Watson v. Gardiner 27, 205 Ward, Corbett v 27, 31 Wheeler, Allis « 31 Wilson, Bridgeport Fire & M. Ins. Co. v 31 Wood v. Brooklyn Ins. Co 32 TABLE OF CASES. 305 TAGB Wendell v. Lewis 34 Ward v. Wo-dburn 34 Woodburn, Ward v 34 Wentworth v. Candec 34, 103 Warner, SipjJerly 11 43, 54, 56 White i). Sm i th 44, 88 Westervelr, Mitchell » 44, 08, 103, 20G Westfnll, Burnett v 44 Wnteriiury v. Wcstervclt 40 Westervelt, Waterbury » 46 Wiggins t>. Ardenbnrgh 47, 49 Wilcox, Mygatt 49, 159 Wisner, Selover v 50 Wliite v. Anthony 52 Webb ». Norton 52 Whipple v. Williams 54, 57, 187, 204 "Williams, Whipple v 54. 57, 187, 204 Williams v. Hemon 59 Woodward v. Grier 60 Wetinorc v. Parker 61 Wurtz, Dupuy v 61, 69 Wolfs. Van Nostrand C2, 68 Wright, Rice 64 Watermire, Hicks v 65 Wolcott, Powers » 67, 72 Wilkinson r. Tiff.ny 73 Woods r. Illinois Cent. P. P. Co 75 Ward, Seaboard & R. P. R. Co. v 85, 90 Wergan v. Held 85 Wright v. Smith 87 Wells, Gale v 91, 95 Wellington 11. Class:>n 92 Wilmerden. Shaw -0 93 Waterproof Leather Man'g Co. v. Krause 94 Warain, State of Indiana v 94 Wliite. Havilanrl v 97 Wilson, Pcnnell v 99 Weeks v. Southwick 101 Winnie, Van Schaick v 105, 143 Wliite. Hare 107 Wheeler v. Wright 113, 116, 137 Wright, Wheeler a 113, 116, 137 Walcott «. llalcoinb 114,116 Whitm-v t. Cooper 114 20 3o6 TABLE OF CASES. PAGE Waring v. Crane 119 Woodruff v. Cook 121, 127 Whiton, Proud v 123, 123 Wilkin, Boyd v 125 Wood, Lemen v 180 Woodruff, Smith v 181 Wood v. Byington 188 Webber v. Hobbie 147 Wynkoop v. Holbert 153 Wadey v. Davis 154 Wilcox v. Smith 156, 157, 158, 161 Weston v. Romain 156, 157 Westervelt ». Gregg 158 Whitby, Booth v 170 Wright, Norihop v 179 Waieman, Charles v 179 Willet, Persse & Brooks Paper Works v 180 Washburn v. Langley 182 Wood, Butler s 183 Walker ». Russell 193 Wilcox v. Curtis 1£3 Wheeler v. Lozee 196, 199, 201 Williams, Dean v 199 Wiliink v. Reekie 199 Warren, Reynolds » 200 Wood, Peck v 201 Wilson, Pennell v ^03 Wickes, Dresser v 205 Willing, Cunningham » 214 Wilkin u. Batteruiaa 215 Wood v. Northwestern Pres. Church 215 Wilson, Nelson v 215 Ward v. Wardswoith 216 Wardsworth, Ward v 216 Y. York v. Peck 23, 130 Youngs. Bush 87, 136 Yates v. Foot 115 Young, Snyder v 125, 126 Younghouse v. Fingar 154 Youngs, Sherman v 157 Z. Zeller, Glaskin » 20, 22 INDEX. SEC. PAGE Additional Costs. — Allowed. Right to, when accrues 27 76 " waiver of 11 62 Principle for allowing 29 77 Must be op recovery 12, 16 63, 73 Example 16 73 What statute governs 4, 5 67, 68 By what court to be made 6, 7 68, 61 Application, where made 7, 11 69, 70 On what grounds and papers 8, 13 69, 71 What notice necessary 10 70 Special term, application to, when necessary 12 71 Costs of motion 14 71 When application should be made 15 71 Order, when appealable 9, 10 70, 62 Power of court to grant 16 73 Discretion, when court has no 2 59 Clerk's duty on adjustment 2 59 Appellate court, when can not grant 8 62 Court of original jurisdiction 9 62 Surrogate, when can not be made by 7 61 Executors, -fee, when can be giveD to 7 61 Allowed to plaintiff 1 58 Allowed to debt, amount 16 9 Examples 16 9,10 Attorneys, does not apply to 16 10 Case tried more than once 10 45 Difficult and extraordinary cases 6 60 What are such 3 67 Attachment, non-resident debtors 5,1 60, 58 Foreclosure 1, 3 58, 5!) Partition 1 58 Adjudication on will, &c 1 ">8 3°8 INDEX. EEC. TAGS Additional Costs — Continued. Real property, claim to 1 58 Dismissal, allowaDCC to defendant on 21 74 Extra counsel fees, third district 20 74 Property, when must be valued 18 74 " when more taken than claimed 19 74 Amended pleading 28 76 Ground for denying, what no 28 7G Defeated by new trial 19 65 Statute, how construed 3 67 Appeal from surrogate's court 6 68 Demurrer sustained 25, 26 75, 76 When not allowed. Attachment— Judgment set aside 18 65 Frivolous pleadings stricken out 15, 30 64, 70 Conveyance set aside 14 63 Specific performance 14 63 ' Personal property, recovery of 17 73 Feigned issue 22 75 Surplus money 23 75 Tender 23 75 Affidavits of merits, no 30 77 Short case 30 77 Trial protracted by plaintiff 30 77 Additional Defendants — Allowance to plaintiff for 1 39 When allowance given 4 42 Admission of demand 20 22 Administrators — Actions by or against 1 120 When costs must be paid from fund 1, 46 120, 135 In case of mismanagement 1 120 Reference of demand 1 120 Statutes superseded l>y the Code 2 121 Code, construction of 3 121 Defendant, when costs of course to 4 121 Reference, for what intended 5 121 Referees, how chosen 6 122 Neither party bound to refer 8 122 "What deemed a refusal to refer 8 122 Refusal, when by advice of counsel 9 123 Rejection of claim not a refusal 12 123 When claimant must offer to refer 12 123 Reference — Defense — Pleadings 14 124 Agreement, where filed 15 124 INDEX. 309 SEC. 1*A0B Administrators — Contin ued. Offer, how made 10 124 Reference, what statute applies to 24, 33 127, 130 What a compliance with the statute 34 131 Referee can not decide question of costs 35 131 Report of referee, court lias power to set aside. . . 57 138 Judgment on report, how entered 50 138 "When claimant must wait 10 123 How an estate is charged with costs 11 123 When claimant not bound to commence — Six months 13 123 Costs, when can not go into judgment 19 125 To what costs prevailing party entitled 19 125 Certificate from judge or referee 22 126 Removal of, during pendency 30,31 129,129 Equitable actions 32 130 Ex parte order no bar to security 52 137 No appeal from order 52 137 No security on ground of insolvency 53 137 Construction of statute requiring security 54 137 Costs against — No charge on real estate 55 137 When entitled to costs 56, 42 138, 133 No costs to — Mismanagement 47, 28 135, 128 Meaning of statute, concerning costs to or against 29 128 How collected against 27 128 How exempted from costs 25 128 How recovered against personalty 23, 18 127, 124 Actions against, plaintiff must show what 21 125 Allowance, Extra — Cause tried more than once 10 45 Appeal from surrogate's court 28 76 (See Additional Allowance.) Amount of Cost? 1 89 Amendment. — Costs on granting 2, 3 105 Trial fee, when allowed 13 47 Costs on, discretionary 3 105 When can not bo allowed 4 106 When should be imposed 5 106 Striking out parties 7 107 What terms imposed 8 Of complaint after report 9 « •' " trial 10 108 Several attorneys — Demurrer 11 108 Answers. — Separate. Costs to defendants, when 11 33 107 107 310 INDEX. 8EC. TAGE Appeals — Costs discretionary 1 29 Ru le for costs on 26 52 Orders and judgments 26 52 Dismissal of 26, 31 52, 91 Discontinuance on change of law 44 95 From county courts 22 50 " surrogates' courts 4,22 157,12 In special proceedings 24 50 From order at chambers — Motion costs 4 99 To County Court 1 149 (See County Court.) Munici pal corporations, security on 24 182 Items of costs on 54 202 Authority to tax costs of 50 202 Affidavit on, from taxation 69 205 Assault — Actions for. . . 1 14 Assignee. — Costs against. Code provision 1 113 Rule 3 113 When liable 2 113 Payment, how enforced 1 113 Extent of liability 4. 5 114. 114 Security by 17 180 When exempt from security 51 136 Rule 18 180 Defending in another name 6 115 When can not maintain action 49 130 Landlord, when must pay 7 115 Receiver appointed during action 8 115 Assignment after action brought 10 116 Proceedings, when stayed 11 116 Assignment of cause — Security 11 179 Attorney — When liable for costs 14 180 One — Several defendants 7 32 Separate and several 6 32 (For Fees of Attorneys, see Fees.) Attachment. — Mean ing of 2 118 Costs against infant 2 118 What costs on an 14 171 Taxation on an 74 206 Battery Action for 1 14 Bar to Costs. — When discontinuance co 11 86 INDEX. 311 SEC. PAGE Calendar — When cause necessarily on 29 53 Chancery. — Costs in chancery 1 3 Rule 11 33 Claim — must be stated, or action fails 22 23 Compromise. — OSer to What offer must contain 1, 2 79, 80 When offer must be made 1 79 Notice of acceptance 1 79 Effect of acceptance 7 82 Duty of clerk 1 79 What compliance with Code 2 80 Sufficient tender 3 81 When tender prevented 4 81 Recovery more than tender 5 81 Payment into court 5, 8 81, 82 Judgment when more favorable 6 82 Common-law actions 4 39 Conversion — No costs to plaintiff 10 27 Counter-claim. — No costs on 11 28 Costs to defendant 9 155 Who prevailing party 14 9 Plaintiff entitled to benefit of 6 82 County Courts — Amount of costs 3 152 On what costs depend 5 153 Appeal to, what must state 1 149 Affirmance, costs on 2 152 Reversal, costs on 2 152 Judgment less favorable 6, 7 153, 153, Counter-claim when costs to defendant 9 155 Defendant, when prevailing party 9 155 Sum claimed must be stated 8 154 More than one amount claimed 8 154 Appeal certified to supreme court Can not, to court of appeals, when 7 154 Review of allowauce 13 161 Taxation of costs in G7 205 Criminal Cases. — Indictment sent to another county. . 2 166 When costs against complainant 1 166 How collected 1 166 Costs. — Origination of 1 1 Right to 1, 27 1, 76 Common-law 1 1 Created by statute 1 2 Consist 01 what 1 2 3i2 INDEX. SKC. l'AOB Costs — Continued. Before Code : t S Under- the Code 2, 4 3,4 Principle for allowance of 3 3 In chancery 1 3- Damages — for delay , 1 41 Default — Judgment by 5 5 Against part of defendants 26 24 " and judgment by remaining defend- ants 9 3a Debt — When costs become a 7 5 Decision of Court — Judgment on 5 5 Demurrers — What proper costs on 19 49 Sustained — What costs, when 25 50- Overruled— " " 10 7 Final costs on 10 7 Costs on separate 6 32 Decision on, when a trial 25, 26 75, 75 Interlocutory costs on 8 100 Judgment on several — What costs 11 108 Withdrawal of a 13 110- Defendant — Costs of course to 1 25 Entitled double costs 20 11 Costs on dismissal 11,2 7, 74 " writ of error 19 11 " countermanding notice of trial 23 13- " plaintiff's recovering less than $50 11, 12 18, 1» " judgment for return of goods 15 19 " plaintiff's failure to enter judgment 5 26* " dismissal of complaint C, 7, 15 26, 26, 48 When must have leave to enter judgment for costs 5 26- Action for a tort — Two defendants — One attorney 9 27 Recovery — Several defendants 4 31 Several — ODe attorney — What costs 7 32 1 Example 8 3& Default apainst part of judgment by remainder. . 9 33 Several — Separate answers 11 33 Costs to— -Ejectment 20 37 Amount of costs to 1 89> For proceedings before notice of trial 1 89 " after " " 1 39 Additional costs allowed to plaintiff 1, 4 39, 42; When can not be charged with costs of Circuit. 32 5t INDEX. 313 SEC. TAGS Defendant — Continued. So costs to — Two causes, one dismissed, one sus- tained 8 27 No costs to foreclosure 3 25 , " uujust detention of property 4 28 Where no costs to on discontinuance 10 33 Delay — Damages for. Court of appeals 1, 27 41, 52 " " Surrogate's court 22 11 Costs on — Rule 3 30 Difficult and extraordinary cases, what are 3 67 Discretionary Costs 9 27 Rule 5 31 Amendment 13 47 Rate of allowance 13 8 Damages for delay — Writ of error 19,20 11, 11 When court has no power to grant 3 42 Dismissal — Costs on 11 7 When defendant entitled to costs on 11 17 When a trial, costs to defendant 12 46 Of complaint, trial fee 15 48 Of appeal, costs on 26 52 Discontinuance — Code provision on 1 84 Of course— Rule 3 84 Entry of order necessary 4 85 Equity cases 3 84 Injunction dissolved, when a 10 86 What costs to defendants on 9 £6 Stipulation, when necessary 14 87 Costs on, discretionary 45 C5 Costs to defendant, attorney retained 15 87 Costs when plaintiff defeats himself 17 88 Costs must be paid before 7 44 Amount of claim can not be brought in court on . . 28 91 When plaintiff must pay costs on 27 90 When plaintiff must move for a 34 , 92 When plaintiff can not — Counterclaim 29 90 Where counterclaim — Reply 25 90 Rule 26 90 When counterclaim must be settled before 23 89 Plaintiff must pay costs "on 23, 17 89, 88 Same relief twice claimed "3 89 Settlement before judgment 2 84 When order of arrest is vacated 18 88 Statute of limitations, when no costs ou 16 88 Foreclosure of mortgage 29, 30 91 314 INDEX. SEC. PAGE Discontinuance — Continued. Two actions for same cause 32 91 Actions by Attorney-General 33 92 Defense of infancy 34 92 Insolvent defendant 37, 38 93, 93 Application for payment of costs on 5 85 Neglect tu pay, what effect on 5 85 Ho entry of order for— Effect of 8 86 When does not affect second action 11 86 "Without costs— Infant 12 28 Appeal dismissed by appellant 31 91 Upon payment of costs — Infant 12 28 Payment of costs before — New trial 19 88 One defendant can not discontinue for others. .. . 20 88 By co-defendants 39 93 Executors, &c, when may discontinue 35,' 36 92, 93 Dissolution of partnership 40 93 Clerk of attorney can not discontinue 6 86 Misnomer 41 94 Notice countermanding summons. 7 86 When set aside 42 84 Ex parte order not reviewable 12 87 On change of law pending an appeal . ... 44 95 Officer, when can not discontinue 13 87 Action against counsel 43 94 Dismissal — When a trial 21 75 Disbursements — Meaning of 18 192 When party entitled to 24 13 When not taxable 4, 31, 21 187, 195,22 Cause referred at circuit 39 56 Dismissal of Action 6, 7 26, 20 Double and treble Damages — What costs allowed 15 9 To whom costs belong. 17 10 Dower — Admeasurement of 1 41 Each Party must pay costs, 'When 9 18 Either Party — When cost to, discretionary 1 29 Amount of costs to 1 39 Examples — After granting and before new trial 1 39 Taking deposition of witness 1 39 Perpetuating testimony 1 39 Drawing interrogatories 1 39 Examination before trial 1 40 Case and exceptions 1 40 INDEX. 315 SEC. PAGE Either Party — Continued. $ Amendments to case 1 40 Trial of law or fact ] 40 On appeal 1 40 For and before argument 1 40 Damages for delay of appeal 1 40 Term fees — -Appeal 1 40 Writ of error 18 10 Ejectment — Security for costs in action of 9 178 When defendant entitled to costs in 20 37 Equity Actions — Costs discretionary 2 30 Discontinuance in 3 84 Executors, &c — When must pay costs 17 124 When personally liable 33 130 Costs to or against — Code provision 1 120 Reference, when no costs 31 78 Statute superseded by the Code 2 121 Liability of surviving 7 122 Discontinuance by 35, 36 92, 93 Writ of error 18 11 Extra Allowance — Code provision for 1 58 When court has no discretion 2 59 Foreclosure 1, 3 58, 59 On settlement, what 4, 1 60, 58 Attachment 1,5 58, 60 Difficult, cases 6 61 Executors, trustees, &c 7 61 Surety .• 15 64 Restraining action 16 64 Cause tried more than once 10 45 Referee can not give 14 35 Where applicaticu must be made, reference 14 35 See Additional Allowance for further Extra Costs. Extra Costs — Surplus money 18 37 How determined 18 37 False Imprisonment — In actions for I 14 Favor — Costs on granting — Rule 2 105 Discretionary 3 105 When should be on payment of costs 5 106 Order should fix the. amount 1 105 What sufficient demand for costs 16 110 When no costs to applicant 13 102 When costs can not be allowed 4 106 Rule, where more than one bill is claimed 11 109 3i 6 INDEX. BEC. TAGE Favor — Continued. New parties C 106- Amending complaint after report 9 107 Striking out parties 7, 8 107, 107 Second trial on amended pleadings 10 108 Several attorneys — Demurrers 11 108 Withdrawal of demurrer 13 110 Amount of allowance on postponement 15 110 Fees and Disbursements — When not allowed 21 22 Fees. To what apply 1,1 208, 218 Searches — Who may require without charge 2 207 Extra fees prohibited 3, 3 209, 218 When may be demanded 4 209 Penalty for extortion of 5 209 Services to state 6 209 For oath, when prohibited 7, 2 209, 218 Court's duty concerning violations 8 210 Acknowledgments 6 22' Assessors, &c 4 262 Attorney and Counsel fees. Fee bill abolished— how regulated 1, 2, 17 211, 3, 10- When theve is no agreement 2 211 Attorney can not indemnify 3 212 Purchase judgment — When attorney can 3 212 Agreement, contingent on result 4 212 Eight to fees when forfeited 5 212 Agreement for large fees, suspicious 6 213 Interest allowed on attorney's account 7 213 Lien for C03ts 8 213 Statutory costs not the limit. 9 214 To what lien attaches 9, 10 214, 214 Lien, how lost 11 214 Same, when security given Vi 214 Preference of lien 13 21"> Notice of lien, to whom given 10 215- Lien, settlement by parlies . . 16, 17, 14 216, 21") " Divorce 14 215 " Continuance of action at attorney's risk. .. . 15 21.3 Liability of attorney for costs 18 216 Extent of liability 18 210 What must be shown 19 217 Where attorney is interested ' . . 20 217 Attorney how relieved 21 217 Of attorney general 39 244 INDEX. 317 SEC. TAGE Fees — Continued. Clerks of counties, general 7, 47 221, 248 Clerk of New York county 48, 49 248, 249 " Kings county 8, 9 224, 225 " counties for court services 11 226 " courts for naturalization 10 225 " surrogates 18 228 " towns 2 261 " the polls 4 262 Commissioners in partition and dower 13 227 " of highways 4 262 Collectors of taxes 1 5 262 Constables in civil actions 31, 32 240, 241 " special proceedings 33 242 " Kings and Westchester county 34 242 " criminal cases 8, 11 252, 254 " " " mileage 9,10 253,254 Coroners, general 28 240 " except in New York and Kings counties 29 240 " in New York and Kings counties 30 240 " in criminal cases, except in New York and Kings counties 12 255 " in King's county 16 256 *' " New York city 17 257 " employing surgeons 13 256 " as witnesses 14 • 256 " how paid 14 256 Of county judges 4 219 Extortions prohibited 24 259 Inspectors of elections 4 262 Of justices of the peace for town services 3 262 " " " in civil actions 5 219 " " " " criminal cases 1,2 250 " " " " bastardy cases 3 251 " " " " courts of special sessions 4 251 " " " for acknowledgments.... 6 221 Of jurors 14, 15 227 Notaries public 36, 37, 38 243, 244 Oath or affirmation 2 218 Overseers of the poor 4 245 For publishing legal notices 40 245 " notice by insolvent, how published 41 262 What, on refusal to publish 42, 43, 44 246 Special affidavit required 45 247 Notice of mortgage sale 40 247 3i8 INDEX. SEC. PAGE Fees — Continued. Restricted to the amount provided for 3 218 Of referees, general 50 249 " in partition in New York city 35 243 ' ' register in New York city 7 221 Of sheriffs, general 21 229 " except in New York, Kings, and West- chester counties 22, 23 231, 235 " in New York county 25 236 " " " , " on foreclosure sales 24 236 " " Kings county for civil services 26 239 " " " " juries 27 239 " " criminal cases 18 257 " " for commitments in New York city 19 257 " " how paid 20 258 " surrogates' clerks 18 228 " surrogates 16, 17 228 ' ' surveyors 12 226 " supervisor, except in New York and Kings counties 1 260 " witnesses, general 19 228 " ' ; in justices' courts 20 229 " " in criminal cases 21 258 " " " " , how paid 22, i3 259 Final Costs — Definition 10 6 Foreclosure of Mortgages 2 25 Discontinuance in 3, 29, 30 25, 91 When no allowance in 13 63 By advertisement, proceeding defined 1 140 Items allowed 2 140 By whom taxed .' 3, 7 141, 142 Allowance under fee bill 4 141 Fee to county clerk on 5 141 Printers' fees 6 142 Fee for taxing 8 143 Extra expense of publishing 9 143 (See Bill of Costs. — Appendix.) Frivolous .v. emurrer 11 7 Guardian of infant when liable for costs 1 118 " " not liable 4 119 Security by 25 1S3 Kule for security by general 30 184 Incorporated Companies 6 £3 INDEX. 319 SEC. PAGE Infant, guardian of 1, 4, 113, 119, 25, 30 183, 184 Plaiutiff, costs against 1 118 Payment, how enforced 1 118 Meaning of attachment 2 118 Extra allowance to 6 119 Fund, when costs should be paid out of the 3 lit! Continuing action after becoming of age 4 119 Dismissal by, of action improperly brought 5 119 Discontinuance by 12 28 Infancy — Defense of — Discontinuance 34 92 Interlocutory Costs 9, 6 6, 99 Judgmeu t, no security 26 183 What are. 7 99 A demurrer, when not 88 100 Insolvent Defendant 37, 38 £3 Interpleader, when costs to plaintiff 19 37 Costs to plaintiff out of the fund 3 168 " " not out of the fund 19 37 " against co-defendant 3 1G8 " action of, unnecessarily brought 4 169 "When claimant should pay costs 5 169 Judgment — What is a 12 46 Absolute, finally disposes of costs 15 35 How costs inserted 55 202 Must be entered before taxation 55 202 Offer of, in justice's court 2, 6 162, 134 With costs, in justice's court 3 163 Can not be entered on interlocutory costs 11 100 Creditor, when not liable 9 116 By default 5 On a verdict 5 5 On decision of the court 5 5 On frivolous pleading 11 7 On report of referee 20 12 On writ of error, costs to whom 18 10 Computation of .percentage on 28 53 When more favorable— Compromise 6 82 Affirmed in part and reversed in part 18, 19 11 Appeal from 26 52 Jurors, fees of 14,15 227 Juror, withdrawal of a, trial fee allowed 13 47 Justice of the peace no jurisdiction 1 14 320 INDEX. 8KC. PAGE Justice of the Peace — Continued.. " " rule for determining jurisdiction of 19 21 (For fees of, sec Fees.) Justices' Courts, what costs in 1 162 Amounts of costs in 3 163 Costs, how debarred by defendant 2 162 Offer of judgment in 2 1(32 Judgment with costs in 3 163 Title to real property, duty of justice 4 163 Costs to respondent on appeal 5 164 Acceptance of offer, costs to appellant 104 Verdict of jury, duty of justice 7 164 Distinction between offset and payment 19 21 Land — Action for trespass on wild 6 17 Right to overflow 7 17 Landlord — When must pay costs 7 115 Liability for costs — Assignees 1, 4 113, 114 Executors, &c 32 130 Receivers 3G 131 Libel — Action for 1 14 Damage less than fifty dollars 21 22 Malicious Prosecution 1 14 Mandamus — Costs discretionary 15 172 Costs must be by order of court 1G 172 Taxation of costs 71 206 How taxed — Who can tax 10 155 Misnomer — Discontinuance 41 94 Mistake on Settlement 16 20 Money — Action to recover 1 14 Mortgage — See Foreclosure. Motion— Defined 12 45 Not a trial 11 45 When costs of — Special proceedings 13, 14 8, 102 Costs on, discretionary amount 1 98 Order must give, or none allowed 3 98 What motions costs allowed in 2 98 Costs, are not general costs : 3 98 Order must specify amount 5 99 Payment of motion costs, how enforced 5 99 By whoin costs are adjusted 11 100 Notice inn t nsk costs 16 102 "Other and further relief " 17 102 When order must be complied with 22 104 1N&&X. 32,1 SEC. PAGB Motion — continued. Special proceed ings, motion costs IS; 14 8, 103 Papers necessary on motion 13 101 Interlocutory costs, imprisonment for 6 99 "What is " interlocutory " -7 99 No costs to mover on granting a favor. 18 ■ i'01 No appeal from a refusal to grant costs 11; 15 101; 102 For Dew trial 21, 11 104, '4'5 Two motions, when mover must pay costs of one. 19 108 Setting aside referee's report 20 103 For reference 12 101 To strike out, What costs 14 47 For new trial on case at special term 21 49 Appeal from orders at Chambers 4 99 On demurrer 8 100 To charge a venue 9 100 Dissolving an injunction 10 100 Municipal Corporations, costs against 17 172 New Trial, what costs 13, 21 84, 49, 21, 11 104; 45 Verdict against evidence 12 84 When no allowance for proceedings before 10 45 From verdict for plaintiff, amount of plaintiff's costs 23 60 Defects, allowance 19 65 New Parties, amend ment 6 ■ 106 Nominal Damages, costs to plaintiff 4, 5 26 Notice of Trial, costs for proceedings before and after. 2 41 Example 6 42 Non-suit— Trial fee 24 75 Offer of judgment — In justices' courts 2 162 Extra allowance 11 02 Refusal, no allowance 20 65 Where no costs to defendant 10 83 Example 16 85 Offer to Compromise ; 1 79 What must contain 2 80 When must be made 1 79 Notice of acceptance . . . : 1 79 Effect of acceptance. 7 82 Duty of the clerk 1 79 What a compliance with the Code 2 ifl What a sufficient tender u 61 21 J2.2 INDEX. BBC. PAOK Offer to Compromise — Continued, Tender prevented 4 81 ; Recovery more than tender 2 81 Payment into court 5, 8 81, 83 Judgment where more favorable. .. : 8 82 Officers- Of school districts — No costs to , .... 43 133 Offset — One party's costs against the other 11 28 -Oppressive — And unnecessary litigation no costs 5 31 Order— Definition of ; . ...12, 18 46, 102 Ex parte, to discontinue, not reviewable 12 87 ; Appeals from • • • 26 52 For payment of costs, when must be complied with 22 J 04 Should fix amount 1 105 Party — Prevailing, costs to 4 4 Parties — Who are not necessary 5 48 Payment of costs, when order should be for 12 34 Of motion costs, how enforced 5 99 Offer to compromise 5, 8 81, h2 Partition — Party refusing to 17 37 Penalties— Action for costs to plaintiff 24 23 Percentage — How computed 1 66 In what cases allowed 1 66 Application for allowance of — Rule 2 67 Meaning of " difficult and extraordinary " 8 67 On judgment 28 53 People — Actions by the Code provision 1 111 " " statute provision 2 111 When liable for costs 4 112 Liability of third persons in actions by 8 112 Liability of private person 4 112 Belling liquor on Sunday, liability to 5 112 Personal Property — Action for, when for money 13 19 Action to recover 1 14 Action for— Tender 10 18 Complaint dismissed 15 IS Recovery less than $50 8 17 Costs more than damages 8 18 Plaintiff — Costs to, when of course — Examples 1 14 •* " title in question 3 16 '< Rule 4 16 " mistake on settlement 16 20 " recovery less than $50, when costs to 17 20 •• extra allowanco — Insolvent partner.. 28 28 " writ of error 18* 10 INDEX. 323 SEC. PAOK Plaintiff — Continued Costs to, actions for penalties 24 83 " judgments against separate defendants. . 25 23 " default by part of defendants 26 24 " foreclosure, discontinuance : 3 25 " for unjust detention of property* ...... 4 26 " action of interpleader ■:....' 20 84 " amount 1 89 (See Biia op Costs — Appendix.) " upon new trial from verdict.. ... t . ... . 23 50 No costs to action for personal property — Tenders 10 18 " example : 18 21 ' failure to enter judgment 5 26 " conversion 10 27 No term fee to, when 84 60 Can not have costs on leave to withdraw 13 110 When can not discontinue until costs paid 7 44 Pleadings, Amended — Extra costs 28 76 Unauthorized or improper 12- 8 Postponement — What costs allowed on 15 110 Amount of costs on 6, 10 169, 171 What is not a 14 110 Where costs of, should be paid 7 170 Payment of costs of, how enforced 12- 171 Time of payment — Judgment 9 170 Optional with plaintiff 13 171 Costs of referee on 11 171 Cause over the term 8 170 Notice of, on whom served 13 171 Prevailing Party — Who is 11 18 Proceeding — Definition of 7 43 Stay of 6 5 Printing 23 193 Quo Warranto — No allowance in 17 64 Costs to whom in 2 168 Rate of allowance — Special proceedings. 13 8 Recovery — Defined 14 19 Example 14 19 Costs depend upon 10 28 Less than fifty dollars when 110 costs upon 11 28 By one of several defendants 4 31 Recover Real Property — Action to — Costs to plain- tiff 1 14 324 INDEX. SEC. PAGE Referee — Authority to give costs 14 84 When no power to give costs 14 35 Has no right to give extra allowance 14 35 When should dispose of costs 14 34 Reference— Trial fee on — When 13 46 No calendar fee on 35 55 No costs on, to executor account —when 31 78 Receiver — When must pay costs 8 115 In supplementary proceedings 9 115 Costs against on failure 45 134 When personally liable 36,45 131,134 When costs out of the fund 45 134 Action to set aside conveyance 12 147 Leave to sue — Security 20 182 Return of goods — When defendant entitled to 15 19 Reserved attrial — Questions 12 46 Review — In special proceedings 1 96 " " " costs discretionary.... 2 96 Summary proceedings— When 3 96 Costs must be allowed by court 4 97 Where motion made 4 97 When cases before referees 5 97 Motion for reference 12 101 Report set aside what costs 20 103 Settlement — Before judgment 2 84 Costs on '. , 7, 4 5, 60 Of execution 12 190 Searches, &c 22 193 Seduction — Action for 1 14 Separate Attorneys — Costs when 6 32 Several Defendants — One attorney 6 32 Judgments in same action 25 23 Actions on one instrument 1 15 Second Suit — Costs paid before 6 5 Security for Costs. Statute provision 1 174 Same as before the Code 2 175 General practice on 3 175 How given 4 176 Notice on whom served 6 177 Order to file 5 177 Bonds with whom filed 6 177 Excepting to sureties 6 i;7 Sureties — When must justify 7 1 78 INDEX. 325 SEC. TAGB Security for Costs — Continued. Justification how made 7 178 Affidavit -when not sufficient 8 178 Real party a non-resident , 10 179 Commencement of action 12 178 Statute not imperative 14 179 Attorney when liable 14 180 Non-resident— What is not a 15 180 Foreign corporation 16 180 Assignment of cause 11 179 Assignee — Security by 17 180 Kule 18 180 Construction of Code 19 181 Ejectment 9 178 Receiver, leave to sue 20 182 Superior Court, New York city— Rule 21 182 Power of court how given 22 182 Motion for — "When can not be made 23 182 Guardian must give— When 25, 30 183, 184 Next friend — Actions by 29 184 Trustee, &c 50 136 Part plaintiffs non-residents 25 183 Appeals — Municipal corporations 24 182 Interlocutory judgment 26 183 Replevin — Action of , 28 184 Assignee — When exempt 51 136 Sheriffs — See Fees. Single Judgment — Against separate defendants 25 23 Slander— Action for 1, 21 14. 22 Special Proceedings — Discretionary 2 96 Amount of allowance in 13, 32 8, 78 Costs on review in 1 96 Motion for costs where made 4 97 Motion costs 14 102 When summary proceedings a 3 96 Appeals in 24 50 Specific Performance — No allowance when 14 63 Stay of Action — Neglect to pay — Discontinuance 5 85 Statute — Governs costs when , 5 4 Stay of Proceedings — Until costs paid — When 6 5 Subpoenas — Service of — No fee for 9 44 Surplus Money- -Claimant — When should pay extra costs , 18 87 Extra costs how determined 18 37 " when not allowed 23 75 326 INDEX. BKO. PAOB Surrogates— Fees of . . . '. 16, 17 228 Clerk's fees of 18 228 Courts eosts in 1, 4 156, 157 See Feb Bili/ — appendix. Statutory provision 2 157 No costs to counsel in 3 157 No costs to executors 6 158 Costs to contestants in 5 158 Allowance to counsel 10, 7 159, 61 Power of New York county surrogate to allow fees 11 159 Party when liable for counsel fees 11 159 Security — Application for 8 158 To what applies 9 158 Appeals from 4, 6 157, 68 Executor — Rate of allowance to 12 159 Duty to tax costs 14 191 Power to tax 1 158 Supplementary Proceedings — Code provision 1 144 Contsruction of Code 2 144 Nature of proceeding 9 146 Party and third party 3 145 When condition fails 4 145 What necessary before allowance , 5 145 Irregularity — Rule 6 145 Discontinuance 6 145 When that party can not apply 7 145 Third party no costs against 9 146 Costs out of fund when 8 146 Amount of allowance 9 146 At what time allowed 11 147 By whom allowed 12 147 How allowed 13 148 Taxation of costs in 74 206 Discovery of property 10 147 Action to set aside transfer 12 147 Receiver in 9 115 Taxation of Costs — Code provision 2 186 Officerfor 3,7 187,14a Duty of officer in 5, 72 188, 206 Power how exercised 60 203 Clerk when can not tax 7 188 Affidavit when necessary 6 188 " what must contain 8 188 INDEX. 327 SEC. PAGE Taxation of costs — Continued, Notice of 57 203 Failure to tax — No new notice 58 203 Service of notice denied 59 203 Short notice when > 60 203 No notice— Effect of 53 202 Officers decision, not final 62 204 " power how limited 70 206 Review of GO ' 204 " how brought 61 204 Appeal from taxation 63 204 Re-adjustment 67 205 " in county court 67 203 " when not allowed 64 204 Objections when can not be considered 63 205 Affidavits on re-adjustment 66 205 Re-adjustment — No effect on judgment 68 205 After appeal is taken 73 206 Of appeal — What authority to tax 56 202 Judgment must be entered before 55 202 Cost how inserted in judgment 55 202 Supplementary proceedings 74 206 Attachment 74 206 Title to land— Set off— Duty of court 189 People — Actions in name of the 10 189 Commissioners of land office — Costs how taxed . . . 11 190 Attorney's fees — On settlement 12 190 Attorney and sheriffs, when can not collect fees. . 13 191 Surrogate, duty of — On 14 191 Fees of clerks and registers 15 191 When can not be collected 16 192 Fee for taxation 17 1 92 Disbursements — Rule for allowing 20 193 Meaning of 18 192 To prevailing party 19 192 Searches and copies 22 193 Printing cases and points 23 193 Stenographer's notes 24, 25 Transcript of judgment 27 Postage and express 30 195 Commission in foreign countries 32 195 Copy of order of reference 26 194 Service of summons 28 194 Fees for survey 35 190 Subpoenas, serving 33 196 193 194 328 INDEX. BEC. PAGK Taxation of Costs— Continued. Pees of officers generally 29 195 Referee's fees 26 194 Witnesses' fees 21 193 " part attend 45 200 " attorney as witness 40 20!) " expert 48 200 " mileage only once paid 47 200 " adjournment 50,52 201,202 " case referred, no fees 51 201 " no mileage 50 201 ' Affidavit 43 198 Not allowed 4, 31 187, 195 Interest when allowed 38, 39 197 " how computed 40 198 " after verdict or report 41 198 " delay of judgment 43 198 Reference — No trial fee 30 1 96 Inquest — No jury fee 34 19G Double and treble costs 15 9 " " to whom 17 10 " " not allowed 37 197 Appeal, items on 54 202 Term Fees — Cause referred after reached 39 56 " " before 39 56 When trial, no 40 57 To abide event — Stipulation — Waiver 13 109 Not allowed on postponement 14 110 Court of appeals 28 53 Not allowed— When 30, 31, 30 54, 55 When neither party need pay 33 55 Respondent entitled to — Cause not reached 37 55 Several causes — What allowance 38 56 Tender — What sufficient 3 81 When prevented 4 81 Recovery more than 5 81 Technical Questions — New — No costs 3 30 Costs when allowed 3 30 Title to real estate 1, 3 14, 16 " " arising on pleadings 3 16 Torts — Two defendants — Costs to successful de- fendant .'. ? 27 Trustees — W hen necessary parties 5 43 Rules governing costs 38 133 INDEX. 329 SEC. PAGE Trustees — Continued. Costs, to whom allowed 89 182 When entitled to costs 42 133 Reimbursement of 48 136 Security for costs by 50 130 Actions on subscriptions 4G 135 When no costs of motion against 44 134 (For Liability op Tbtjstee — Sec Executors.) Trespass — On wild land C 17 Trial, defined 13 46 When dismissal a 12 46 When no costs of 13 8 Fees, amount of 1 40 " additional allowance for 20 49 " when defendant must pay 17 48 " number of 16 48 " when two can be taxed 13 47 " to defendant, dismissal 15 48 " withdrawal of a juror '13 47 " non-suit 24 75 " demurrer 25 76 " case heard at special term 18 49 Verdict — Judgment on — .- 5 5 Sctaside S 44 Waiver of right to term fees 12 109 Waste — Actions for 5 17 Withdrawal of demurrer 13 110 Witnesses.— (See Fees— and Taxation of Costs.) Writ of Error — When costs to plaintiff. 18 10 " " to defendant 19 11 " " to cither party 18 10 " " damages to defendant 19 11 Executors and administrators 18 11 Party neglecting to file 21 12 Discontinuance or default 21 12