having put in a joint defense, and judgment having been entered for the plaintiff against two of the defendants, and the plaintiff having discontinued as to the other defendant, such defendant is not entitled to costs; because he did not sever in his defense, but joined with the others (Stafford v. Onderdonk, 8 Barb. 99).

a. Several defendants, not united in interest, who make separate defenses, and recover separate judgments on counter-claims, and who succeed on appeals from those judgments, are each entitled to separate bill of costs (N. Y. & New Haven R. R. v. Schuyler, 29 How. 89). In an action to enforce a mechanic's lien against several defendants, who appeared by the same attorney, the defendants were not allowed separate bills of costs (Bailey v. Johnson, 1 Daly, 62).

§ 307. (Am'd 1849, 1851, 1852, 1857, 1858, 1859, 1862, 1863, 1864, 1866,. 1867.) Amount of costs allowed.

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 answer 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 dol lars; and for each 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 of, 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, twentyfive 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 the examination of a party before trial, ten dollars; for making and serving a case, or case containing exceptions, twenty dollars, ex-cept 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 appointment 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, teň dollars in addition thereto.

5. To either party on appeal, except to the court of appeals, and except appeals in the cases mentioned in subdivisions one, three, four and five, of section three hundred and forty-nine, and except in cases mentioned in the second paragraph of section three hundred and forty-four, 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 provisions of section two hundred and sixtyfive.

6. To either party on appeal to the court of 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 general terms, at which the cause is necessarily on the calendar and is not tried, or is postponed by order of the court, ten dollars; and for every term not exceeding ten, excluding the term at which the cause is argued in the court of appeals, ten dollars.

8. But in an action hereafter brought to recover dower, before admeasurement, of real property aliened by the husband, the plaintiff shall not recover costs, unless it appear that the dower was demanded before the commencement of the action, and was refused.

9. The same costs shall be allowed to the plaintiff in proceedings under chapter two, title twelve, of the second part of this code (sections three hundred and seventy-five to three hundred and eighty-one), as upon the commencement of an action.

Note to subdivision 1.

a. The amount of costs, $25 or $15, before notice of trial, does not depend on the fact whether an application is made to the court or not, or whether the issue is such that application to the court would be necessary; but on the nature of the action and the mode of service, without reference to the pleadings (see Pardee v. Schenck, 11 How. 500; Van Valkenburg v. Van Schaick, 8 id. 272; People v. Van Deusen, 2 Code Rep. 7; Candee v. Ogilvie, 5 Duer, 658).

a. The allowance for each additional defendant should only be allowed for defendants who are neccssarily made parties. The objection may be taken, for the first time, on the adjustment of the costs, that some of the persons named as defendants are not necessarily parties (Case v. Price, 17 How. 348; 9 Abb. 111).

b. The charge after notice of trial is taxable but once, although the cause is more than once noticed at the circuit, or upon a reference (Perry v. Livingston, 6 How. 404; Jackson v. McBurney, ib. 408; Jackett v. Judd, 18 How. 385). Where a verdict was set aside on payment of the costs of the circuit,held, that in such costs might be included the fee for all proceedings subsequent to the notice of trial (Mitchell v. Westervelt, 6 How. 265).

Note to subdivision 2.

c. Where, in an action against several defendants, the cause had been noticed and put on the calendar, by one of the defendants, but had never been noticed or put on the calendar, either by the plaintiff or the other defendant,— held, that as to that other defendant, the case had never been noticed, and that on obtaining an order dismissing the complaint as to him, he was not entitled to the fee for all proceedings after notice and before trial (Tillspaugh v. Dick, 8 How. 33).

d. On costs of amending after decision upon a demurrer, the successful party, if a defendant, is entitled to charge for proceedings before notice of trial (Hendricks v. Bouck, 2 Abb. 360; 4 E. D. Smith, 461).

e. Costs of the circuit or term [to the defendant] include costs after notice of trial and before trial (Shanks v. Rae, 19 How. 540; Mitchell v. Westervelt, 6 How. 265, 311; Dewey v. Stewart, 6 How. 465).

f. On dismissal, before notice of trial of a complaint, for want of prosecution of the action, the defendant is entitled only to proceedings before notice of trial and costs of the motion to dismiss (Tillspaugh v. Dick, 8 How. 33).

Note to subdivision 3,

g. The allowance of $25 where a new trial shall be had, &c., applies only to cases where a new trial has been granted, it does not apply to the cases of a new trial by reason of the disagreement of the jury (Hamilton v. Butler, 4 Rob. 654; 19 Abb. 446; 30 How. 36).

Note to subdivision 4.

h. A trial fee is taxable, if a trial has been entered upon, whether the trial results in verdict or not; as where the jury disagree (Hamilton v. Butler, supra; Elsworth v. Gooding, 8 How. 1), or a juror is withdrawn (Dewey v. Stewart, 6 How. 465), or on a nonsuit (Allaire v. Lee, 1 Abb. 125; 8 How. 4; 4 Duer, 609), or a reference is ordered (Wiggins v. Arkenburg, 4 Sand. 688). The trial fee is properly allowed for every time the cause is tried (Hamilton v. Butler, 4 Rob. 654). Upon judgment on an answer or demurrer as frivolous, under § 247, the prevailing party is entitled to a fee for trial of an issue of law (Pratt v. Allen, 19 How. 450; Lawrence v. Davis, 7 How. 354; Roberts v. Morrison, id. 396).

i. Where a defendant continues his defense until his cause is called, he cannot then withdraw without paying a trial fee (Jones v. Case, 38 How. 349).

j. If, on the cause being called, plaintiff fails to appear and defendant takes an order dismissing the complaint, he is entitled to a trial fee (Dodd v. Curry, 4 How. 123; Shannon v. Brower, 2 Abb. 377; Mora v. G't West. Ins. Co. 10 Bosw. 622).

Note to subdivision 5.

k. On a motion for a new trial on a case, costs are to be granted as upon an appeal from a judgment (Scudder v. Gori, 3 Rob. 629; 18 Abb. 207; 28 How. 155); and on motion on the judge's minutes for a new trial, for newly discov

ered evidence, the successful party is entitled to costs as on the argument on a case (Warner v. West. Trans. Co. 5 Rob. 491); on motion for a new trial on a case, the moving party, if successful, is entitled to costs-for making a case, $20 or $30, as may be, according to the length of the case (subd. 3); before argument $20, for argument $40 (Stitt v. Rowley, 37 How. 179); the party opposing the motion, if successful, is entitled to costs; for amendments to case $10, before argument $20, for argument $40 (Selover v. Wisner, 37 How. 177); and the successful party is also entitled to a term fee for each term the cause was on the calendar and not reached (Van Schaick v. Winne, 8 How. 7; and see Elsworth v. Gooding, ib. 1; Moore v. Cockcroft, 9 ib. 480; Hager v. Danforth, 8 ib. 448; Mechanics' Banking Association v. Kiersted, 10 ib. 400; 4 Duer, 639; Malan v. Simpson, 12 Abb. 225; 20 How. 488). The costs on appeal from an inferior court to the supreme court are those prescribed by this subdivision, and they follow of course to the successful party (Williams v. Murray, 32 How. 187). The supreme court has no power to deprive him of them (Gray v. Hannah, 3 Abb. N. S. 183).

a. On an appeal to the general term from an order granting or refusing a new trial, the costs are $20 before argument, and $40 for argument (see Ellsworth v. Gooding, 8 How. 1; Jackett v. Judd, 18 How. 385).

Note to subdivision 6.

b. This subdivision is applicable to costs of appeals to the court of appeals in special proceedings (The People v. Sturtevant, 9 How. 304).

c. In the court of appeals, all appeals are on the same footing, and, on the dismissal of an appeal with costs, general costs follow, whether the appeal be from an order or a judgment (White v. Anthony, 23 N. Y. 164; see Kanouse v. Martin, 2 Sand. 739; Peterson v. Dickell, 8 Abb. 259). And where the court of appeals, after argument of an appeal on its merits, dismisses some with costs, it will be intended that full costs were meant; if costs of a motion only are intended, it would be so specified (Webb v. Norton, 10 How. 117).

d. Where there was judgment at special term for the defendant for costs $193, which judgment was affirmed at general term with $54, the court of appeals affirmed the judgment of the general term, with costs and ten per cent. in addition upon the amount of the judgment,-held that the percentage should be computed upon the amount of both the judgments below, but not upon the interest accrued thereon (Adams v. Perkins, 25 How. 368). Ten per cent. allowed as penalty on an appeal in a foreclosure suit (Warner v. Lessler, 33 N. Y. 296).

Note to subdivision 7.

e. Term fees, when allowed.—A cause is not necessarily on the calendar until it is actually at issue (Livingston v. Viele Mont. Zinc. Co. 2 Abb. 255), or on appeal until the case is filed (Stafford v. Crasto, MS.), or until the return is filed in court of appeals (Ref. Dutch Church v. Brown, 24 How. 89), or during a stay of proceedings, until the return of a commission (Shufeldt v. Power, 13 How. 89), or after discontinuance of the action (Drew v. Comstock, 17 How. 469), or stipulation to settle (Latham v. Bliss, 13 How. 416), or during the time the cause is reserved generally, by consent and not by the order of the court (Crawford v. Kelly, 10 Bosw. 697), or after the cause has been referred (Anon. 1 Duer. 651; 8 How. 82), or where there is no issue to try and the answer is on motion for judgment held to be frivolous (Pardee v. Schenck, 11 How. 500; Candee v. Ogilvie, 5 Duer, 658), or after notice that plaintiff abandoned the suit and left the State (Jennings v. Fay, 1 Code Rep. N. S. 231). No term fee is allowed when the cause is unnecessarily on the calendar (id.) Where, pending an appeal in the court of appeals, the respondent died in February, and the cause was revived in March following, the term fees for the March and June terms were allowed; the appeal was necessarily on the calendar for those terms (Carpentier v. Willett, 28 How. 376; 3 Rob. 700). A cause is necessarily on the calendar when being at issue and

ready for trial it is put on the calendar for trial (Sipperly v. Warner, 9 How. 333; Trustees of Penn Yan, id. 400); and the successful party is entitled to a term fee; for the term in which a cause is set down for a particular day and is not reached (Ormsby v. Babcock, 2 Abb. 253; 4 Duer, 680); and for the term at which the action is referred (Benton v. Sheldon, 1 Code R. 143; Sipperly v. Warner, 9 How. 333), and for the term at which the party attends to try, and the cause goes off without his fault (Fisher v. Hunter, 15 How. 156; Minturn v. Main, 2 Sand, 737; Forbes v. Lock, 8 How. 218). If parties do not dispose of their causes when reached, they are not entitled to the costs of the term (Hendricks v. Bouck, 2 Abb. 360; 4 E. D. Smith, 461). No term fee is allowed for the term at which the cause is tried (Place v. Butternuts Wool. Fuct. 28 How. 184).

a. Where only the plaintiff notices the cause for trial, and has it in his power to try, but for any reason does not choose to do so, he cannot recover the costs of the circuit (Whipple v. Williams, 4 How. 28). Where a cause goes off for the term at the request of one party, he is not entitled, on his prevailing, to a term fee for that term (Hanna v. Dexter, 15 Abb. 135; Hinman v. Berger, 5 How. 245).

b. Where, on the application of the defendant, a cause is put over the circuit on payment of $10 costs and disbursements, which are paid, the plaintiff, on recovering a verdict, is not entitled in his general bill of costs to $10 term fee for that circuit (Trustees of Penn Yan v. Tuell, 9 How. 400).

c. 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 (Kanouse v. Martin, 2 Sand. 739). 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, then the respondent was entitled to his term 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 (Eckerson v. Spoor, 3 Code Rep. 70).

d. Where there are two defendants defending separately, and only one of them puts the cause on the calendar, the cause not having been put on the calendar either by the plaintiff or the other defendant,-held that, as between the plaintiff and the defendant who did not put the cause on the calendar, the cause had never been on the calendar; and on a dismissal of the complaint for nonprosecution of the suit, it was held that the defendant who did not put the cause on the calendar was not entitled to a term fee (Tillspaugh v. Dick, 8 How. 33).

e. Number of term fees.-Except in appeals to the court of appeals no more than five term fees can be allowed in any action (Hamilton v. Butler, 30 How. 36; 19 Abb. 446; 4 Rob. 654), and no term fee can be allowed for the term in which the cause is tried (Place v. Butternuts Woolen Factory, 28 How. 184). But where parties stipulate that the costs of a certain term shall abide the event, the costs of that term should be allowed without regard to the limitation to five term fees (Emmons v. Erie R. R. Co., 17 How. 490).

f. Costs where favors granted on payment of costs.-The general practice, in all cases where an amendment is allowed on payment of costs, is, that the party paying such costs shall be charged with the costs of all proceedings which, by the operation of the order authorizing the amendment, will be vacated. Thus, if upon the trial a plaintiff is permitted to amend his complaint in a material matter, so that a new answer is required, he would be charged with the costs of the former answer, which, as the effect of the rule, would be vacated. In other words, he would be required to pay the costs allowed for proceedings before notice of trial. On the other hand, if the defendant were allowed to amend his answer, that being the last pleading, no proceeding before the notice of trial would be vacated as the effect of the order, and the fee for proceeding before notice of trial should not be allowed. So, in case of a demurrer, if the party demurring has judgment against him,