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and is permitted to withdraw his demurrer and plead over upon payment of costs, the fee for proceedings before notice of trial is not allowable on the taxation of costs (Nellis v. De Forest, 6 How. 413; Crary v. Norwood, 5 Abb. 219). But if judgment is rendered in favor of the party demurring, and the party whose pleading is found defective is allowed to amend on payment of costs, the fee for proceedings before notice of trial should be allowed. It is the compensation allowed for drawing and serving the demurrer (Collomb v. Caldwell, 5 How. 336; Van Valkenburg v. Van Schaick, 8 How. 272; Hendricks v. Bouck, 4 E. D. Smith, 461; 2 Abb. 360).

a. When a special term order, which overrules a demurrer to an amended complaint, is on appeal reversed, and judgment is ordered in favor of the defendant, but leave is given to the plaintiff to amend his complaint on payment of the costs of the demurrer at special term, the defendant is entitled, (1) for proceedings before notice of trial; (2) for proceedings after notice of trial, although that sum has been once paid in the action on sustaining a demurrer to the original complaint (Considerant v. Brisbane, 1 Bosw. 644; 7 Abb. 345, note; and see 11 How. 168; 15 How. 210).

b. Costs fixed as the condition of a favor granted to the client are sufficiently demanded by giving notice to the attorney (Hanna v. Dexter, 15 Abb. 136). c. New trial on payment of costs.-Where a new trial is granted on payment of costs, it means the costs of the trial and all subsequent costs (North v. Sargeant, 14 Abb. 224), but not term fees on appeal (North v. Sargeant, 13 Abb. 259; Pennell v. Wilson, 2 Abb. N. S. 466; 4 Rob. 610; 5 id. 674); but it includes the costs of proceedings subsequent to notice and before trial (Kiel v. Rice, 24 How. 228); but does not include any allowance (McQuade v. Erie R. R. Co. 5 Duer, 613; 11 How. 434). See Rule 57.

308. (Am'd 1849, 1857, 1862.) Additional allowance.

In addition to these allowances there shall be allowed 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, for any amount not exceeding two hundred dollars; an additional sum of five per cent. for any additional amount not exceeding four hundred dollars; and an additional sum of two per cent. for any additional amount not exceeding one thousand dollars.

And in the actions 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.

d. No motion necessary. In the cases specified in this section the clerk enters the extra allowance of course; no order for the purpose is necessary (Hunt v. Middlebrook, 14 How. 300).

e. Extra allowance may be made.-In an action by the people for the repeal of royal letters patent for fraud (The People v. Clark, 9 N. Y. 349). Tender of the principal, interest, and costs in a foreclosure suit, before hearing, does not defeat the plaintiff's right to an allowance (Connecticut River

Banking Co. v. Voorhies, 3 Abb. 173). And where an attachment has issued, a percentage may be allowed on the amount claimed, although no property has been levied upon (Jackson v. Figaniere, 15 How. 224).

a. Extra allowance cannot be had in the following cases. -An action to restrain defendant from violating his written agreement to sell certain articles to the plaintiff solely (Gray v. Robjohn, 1 Bosw. 618). In proceedings to foreclose a mechanic's lien (Randolph v. Foster, 4 Abb 262; 3 E. D. Smith, 648). In proceedings under the act of May, 1841, authorizing the sale of real estate to pay assessments; or under the act of April, 1855, to apportion taxes, &c. on such a sale (Powers v. Barr, 24 Barb. 142), In an action in the nature of a quo warranto to try the title to an office (The People v. Flagg, 15 How. 36; 25 Barb. 652), or to set aside a voluntary assignment (Osborne v. Betts, 8 How. 31); or to compel specific performance of a contract for sale of real estate (Weeks v. Southwick, 12 How. 170), or to restrain foreclosure of a mortgage (Strong v. Snyder, 6 How. 11), or to set aside a conveyance (Buchanan v. Morrell, 13 How. 296).

b. A plaintiff in an action in which an attachment issued, is not entitled to an allowance where, pending the action, the attachment was vacated (Iselin v. Graydon, 26 How. 95).

c. In the actions mentioned in this section the court have no discretion to make any allowance other than that prescribed, and the allowance can be to the plaintiff only (Williams v. Hernon, 13 Abb. 297; Hotaling v. Marsh, 14 Abb. 161; 13 Abb. 297, note; McLees v. Avery, 4 How. 441; Downing v. Marshall, 37 N. Y. 380; Pinder v. Stoothoff, 7 Abb. N. S. 433).

§ 309. (Am'd 1857, 1858, 1859, 1862, 1865, 1870.) Percentage, how computed. Difficult and extraordinary cases. Partition-Foreclosure.

(1.) These rates 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 foreclosure. And whenever it shall be necessary to apply to the court for an order enforcing the payment 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 to 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 partitions. (2.) 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. (3.) And in an action for the foreclosure of a mortgage, the court may make a like allowance, not exceeding two and onehalf per cent.

a. Section does not apply.-This section does not apply to applications to the court for the distribution of surplus money on a foreclosure sale (N. Y. Life Ins. Co. v. Vanderbilt, 12 Abb. 458); nor to trials of issues in the nature of feigned issues (Burritt v. Silliman, 24 How. 337).

Allowance in difficult and extraordinary cases.

6. When a trial has been had.—When a plaintiff voluntarily submits to a nonsuit, a trial has been had (Allaire v. Lee, 4 Duer, 609; 1 Abb. 125; Wood v. Illinois Cent. R. R. Co. 20 How. 285). And so on dismissal of complaint, for plaintiff's failure to appear, allowance may be made (Rogers v. Degan, 4 Bosw. 669; 19 How. 119; 10 Abb. 313; Danenhover v. March, 4 Abb. 254). The argument of a demurrer on which a final judgment is rendered, is a trial, and the successful party may have an extra allowance where the case is difficult or extraordinary (Small v. Ludlow, 1 Hilton, 307; Lowry v. Inman, 6 Abb. N. S. 405; 37 How. 286).

c. What cases are difficult and extraordinary.—That a cause occupied a long time in the trial of it, does not, of itself, make it a "difficult or extraordinary case" (Sands v. Sands, 6 How. 453; Dexter v. Gardner, 5 How. 417; Howard v. Rome Plank Road Co. 4 How. 416; and see Fox v. Fox, 22 How. 453). The term "difficult or extraordinary" is used in contradistinction to " common or ordinary" (Fox v. Gould, 5 How. 279). But all litigated trials are "difficult and extraordinary” in some respect (Dyckman v. MeDonald, 5 How. 121; Niver v. Rossman, id. 153; see Schwartz v. Po'keepsie Mut. Ins. Co. 10 id. 93; Matthewson v. Thompson, 9 id. 23). The motive of a plaintiff in purchasing a note for prosecution, is not a proper subject for an extra allowance of costs. After he has got the note, he may conduct the prosecution of it fairly and without objection (Burnett v. Westfall, 15 How 421). Where a case is retried, the fact that an allowance was denied on the first trial, does not prevent an allowance being made on the second trial (Fox v. Fox, 24 How. 385). Extra allowance denied where defendants had separated in their defense, and each obtained a bill of costs (Matthewson v. Thompson, 9 How. 231). Extra allowance is not made for the sole purpose of punishing the defendant (Anon. 12 How. 565).

d. Amount of allowance-how computed.—The amount of allowance within the limits prescribed by this section, is entirely discretionary (Union Bank v. Mott, 13 Abb. 247). The amount of the recovery, or claim, is not the measure, but the limit of the allowance (The People v. N. Y. Cent. R. R. 30 How. 148). Unless the allowance exceeds the limit of section 309, or is not authorized by that section, no appeal lies (Wilkinson v. Tiffany, 4 Abb. 98; Cook v. Dickenson, 5 Sand. 663; Dickson v. McElwain, 7 How. 139; Dresser v. Jennings, 3 Abb. 240; Dana v. Fielder, 1 Code Rep. N. S. 224).

e. It is only where the defendant recovers judgment that the allowance can be on the amount claimed (Wilkinson v. Tiffany, 4 Abb. 98).

f. The value of the property to be directly affected by the result of the action affords a proper basis for computing the percentage (The People v. Albany & Vermont R. R. Co. 16 Abb. 465; Coleman v. Chauncey, 7 Rob. 579).

g. Where, when, and to whom the application for the allowance should be made.-The application must be made before the entry of judgment (Martin v. Mc Cormick, 3 Sand. 755; Clarke v. City of Rochester, 29 How. 97; The People v. N. Y. Cent. R. R. 30 How. 148; contra, Beals v. Benjamin, 29 How. 101); but not "until all the litigation is ended" (Powers v. Woolcott, 12 How. 565). It must be made to the "court," and cannot be made to a "justice at chambers" (Mann v. Tyler, 6 How. 236; Rule 52); and it should be made in the county where the judgment is rendered, unless some reason exists for applying elsewhere (Niver v. Rossman, 5 How. 153; see Rule 52).

h. When the trial is by jury, the application should be made at the coming in of the verdict, or at least during the term at which the trial is had (Flint v. Richardson, 2 Code Rep. 80; Van Rensselaer v. Kidd, 5 How. 242). to the judge who tried the cause (ib.; Sackett v. Ball, 4 How. 71). When the

And

trial was at the circuit held in July, and the motion was made at a special term in September following, the delay was held not to be a waiver of the right to move, and an allowance was made (Saratoga R. R. Co. v. McCoy, 9 How. 341).

a. The motion can only be made in the court of original jurisdiction (Wolfe v. Van Nostrand, 2 N. Y. 570).

b. Unless where the motion is made at the trial, it should be on notice (Mitchell v. Hall, 7 How. 491; Niver v. Rossman, 5 How. 153; Van Rensselaer v. Kidd, 5 How. 242; Saratoga R. R. Co. v. McCoy, 9 How. 341); and on affidavits (Gori v. Smith, 6 Rob. 563; 3 Abb. N. S. 51).

c. When the allowance is made at the trial, notice of the application is not necessary (Mitchell v. Hall, 7 How. 491).

d. In an action against executors, the motion should not be made until the right to recover costs has been adjudged. But in such an action the motion for costs and for an allowance may be united in one motion (Mersereau v. Ryers, 12 How. 301).

e. The unsuccessful party has a right, upon an application for an allow ance, to insist that there be a determination of the value of the property recovered or claimed in the action (Dresser v. Jennings, 3 Abb. 240).

And

f. A rule in the second judicial district provides that in actions tried at the circuit or the special term, application for additional allowance must be made to the justice who heard the cause, unless he is out of the State, or unable to attend to business from ill health, or out of office. in actions heard before referees, the application must be made in the judicial district where the action is pending. Such allowance will be made whenever there has been a trial, and the parties have appeared, and litigated the questions in controversy.

g. Costs on motion for allowance.-It has not been usual to allow costs on a motion for an extra allowance (Dickson v. McElwain, 7 How. 139; Schwartz v. Poughkeepsie Mut. Ins. Co. 10 id. 93).

h. Allowance after trial before a referee.-Where the trial is had before referees, the application must be made to the court for the allowance (Howe v. Muir, 4 How. 252; Niver v. Rossman, 5 How. 153; Osborne v. Betts, 8 How. 31; Sackett v. Ball, 4 How. 71). The application should be on notice to the adverse party (b.) And the court should be furnished with an affidavit of facts sufficient to enable it to form an opinion on the subject. The mere certificate of the referee that the cause is within this section, is not sufficient. Facts must be stated (ib.; Gould v. Chapin, 4 How. 185). But the certificate of the referee is proper, to show what took place before him (Main v. Pope, 16 How. 271, supra).

i. In cases heard before a referee, the motion for an extra allowance for costs is subject to the same rules, with respect to the place at which it should be made, as any other motion (Sprong v. Snyder, 6 How. 11).

j. Review of order for allowance.-The order for an allowance is not reviewable on motion before another judge (Dresser v. Jennings, 3 Abb. 240). But where the allowance exceeds the prescribed percentage, then it is said the order affects a substantial right, and is subject to appeal (Wilkinson v. Tiffany, 4 Abb. 98; Union Bank v. Mott, 13 Abb. 247), or review on motion at special term (id.) Order for allowance is appealable to general term (Clarke v. City of Rochester, 29 How. 97; Gori v. Smith, 6 Rob. 563; 3 Abb. N. S. 51), and to the court of appeals (The People v. N. Y. Cent. R. R. 29 N. Y. 418; and see 30 How. 148).

§ 310. Interest on verdict or report, when allowed.

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.

a. Interest on a report of a referee is to be computed from the time the report is made, and not from its date, if the date differs from the time when the report was in fact made (Fuller v. Squire, 8 How. 121).

b. Laws 1869, ch. 807, besides re-enacting this section, provide that whenever money paid out is directed to be repaid, the direction shall, unless otherwise expressed, be deemed to include interest.

$311. (Am'd 1849, 1857, 1862.) Costs, how to be inserted in judgment. Disbursements, how stated. Notice of adjustments.

Interlocutory costs.

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 allowance for 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 expense of printing the papers for any hearing when required by a rule of the court. The disbursements shall be stated in detail and verified 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 proceedings in an action, or in any special proceedings, 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 other manner as the judge or court may direct.

c. Adjustment of costs, and the entry of the amount in the judgment, are not stayed by an appeal with security (Curtis v. Leavitt, 1 Abb. 118).

d. The words "prevailing party" in this section, "must be understood to be that party whose right to costs has prevailed" (Johnson v. Sagar, 10 How. 554; Peet v. Wurth, 1 Bosw. 653).

e. Law of costs.-Costs are to be adjusted according to the law existing at the time of the verdict, as to all items prior to that time. The recovery which gives the right to costs means the verdict. The court cannot order judgment nunc pro tunc, as of a date prior to the actual judgment, merely to affect the amount of a party's costs (Moore v. Westervelt, 14 How. 279; Crary v. Norwood, 5 Abb. 219; Fisher v. Hunter, 15 How. 156; Huber v. Lockwood, id. 74; McCann v. Bradley, id. 80; Torrey v. Hadley, 14 id. 357; Hunt v. Middlebrook, id. 300; Jones v. Underwood, 18 How. 532; Jackett v. Judd, id. 385; Scudder v. Gori, 3 Rob. 629; 28 How. 155); and in the court of appeals according to the law in force at the time of the decision in that court, or when the judgment of the court of appeals is made the judgment of the supreme court (Ackley v. Tarbox, 19 Abb. 119).

f. The determination of an action, as respects the question of costs, is the final decision authorizing a judgment. In the case of a trial by the court, it is the making and filing the decision. In the case of a referee, it is the

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