PART III When allowed to defendant. When allowed to either party in the dis cretion of the court. or is certified by the court to have come in question at the trial; 2. In an action to recover the possession of personal property; 3. In the actions of which, a court of a justice of the peace has no jurisdiction; 4. In an action for the recovery of money where the plaintiff shall recover fifty dollars. But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which with the damages, amounts to fifty dollars, or the possession of property be adjudged to him, the value of which with the damages amounts to fifty dollars. Such value must be determined by the jury, court or referee, by whom the action is tried. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff, in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions, shall at the time of the commencement of the previous action or actions have been within this state, and not secreted. As amended by Laws of 1862, ch. 460. 21 N. Y., 467; 9 N. Y., 550; 7 N. Y., 465, 491; 19 B., 203; 8 B., 100; 12 Ab., 209; 11 Ab., 246; 8 Ab., 35, 39; 7 Ab., 342, 445; 5 Ab., 222; 4 Ab., 17; 3 Ab., 191, 365, 449, 463; 1 Ab., 183; 23 How. P. R., 44, 164; 19 How. P. R., 450; 17 How. P. R., 457; 16 How. P. R., 60, 479; 15 How. P. R., 250, 281; 13 How. P. R., 138; 9 How. P. R., 201; 8 How. P. R., 3, 55, 238; 7 How. P. R., 74; 6 How. P. R., 266; 4 How. P. R., 356; 1 Hilt., 558; 3 E. D. S., 574. $305. Costs shall be allowed of course to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein. 9 N. Y., 550; 7 N. Y., 465; 19 B., 203; 8 B., 100; 18 How. P. R., 108; 17 How. P. R., 457; 13 How. P. R., 138; 8 Ab., 36; 3 Ab., 191, 367, 449, 463. $306. In other actions 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. When a new trial shall be ordered; 2. When a judgment shall be affirmed in part and reversed in part. As amended by Laws of 1851, ch. 479. 9 N. Y., 550; 7 N. Y., 465; 20 B., 343; 13 B., 541; 10 B., 453; 8 B., $307. When allowed, costs shall be as follows: In an action where judgment upon failure to answer may be had without application to the court, ten dollars; in an action where judgment can only be taken on application to the court, fifteen dollars; and two dollars for each additional defendant upon whom process shall have been served, except in actions for the foreclosure of a mortgage, the allowance for additional defendants is limited to ten such defendants and in other cases to five such defendants. 2. To the defendant for all proceedings before notice of trial, ten dollars. 3. To either party for all subsequent proceedings before trial, ten dollars. To either party, for attending upon and taking the deposition of a witness conditionally, or attending to perpetuate his testimony, ten dollars; to either party, for drawing interrogatories, to annex to a commission for the taking of testimony, ten dollars. 4. To either party, for the trial of an issue of law, fifteen dollars; for every trial of an issue of fact, twenty dollars. 5. To either party on appeal, except to the court of appeals, and except appeals in the cases mentioned in section three hundred and forty-nine, before argument, fifteen dollars; for argument, thirty 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 sixty-five. 6. To either party, on appeal to the court of appeals, before argument, twenty-five dollars; for argument, fifty dollars; and when a judgment is affirmed the court may, in its discretion, also award damages for the delay, not exceeding ten per cent upon the amount of the judgment. 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. 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 CHAP. XI. Costs to be allowed. PART III. Per centage to be allowed plaintiff. Rule of computa tion. Allowance dower was demanded before the commencement of the action and was refused. The same costs shall be allowed to the plaintiff, in proceedings under chapter two, title twelve of the second part of this Code, as upon the commencement of an action. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1857, ch. 723; 1858, ch. 306; 1859, ch. 428; 1862, ch. 460; 1863, ch. 392. 8 N. Y., 29; 2 N. Y., 570; 8 B., 575; 22 How. P. R., 470; 18 How. P. R., 387; 17 How. P. R., 228, 457, 470, 492; 16 How. P. R., 60, 327, 364; 15 How. P. R., 117, 157; 13 How. P. R., 33; 9 How. P. R., 304, 332, 400; 8 How. P. R., 1, 5, 82; 7 How. P. R., 97, 486; 6 How. P. R., 266, 405, 408, 419; 5 How. P. R., 245, 394, 395; How. P. R., 42, 55: 10 Ab., 314; 9 Ab., 111; 8 Ab., 261; 7 Ab., 341. 445; 6 Ab., 384; 5 Ab., 220; 2 Ab., 223; 1 Ab., 267; 4 E. D. S., 461. $308. 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, 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. Amended by Laws of 1857, ch. 723; 1862, ch. 460. 9 N. Y., 370; 8 N. Y., 71; 25 B., 336; 24 B., 146; 14 B., 578; 11 B., 337; 9 B., 394; 17 How. P. R., 457; 16 How. P. R., 364; 15 How. P. R., 27, 36; 14 How. P. R., 300, 310; 13 How. P. R., 298; 12 How. P. R., 170, 318; 9 How. P. R., 339; 7 How. P. R., 138, 370, 490 6 How. P. R., 172, 235; 5 How. P. R., 121, 154, 278; 4 How. P. R., 71, 208, 252, 416; 13 Ab., 297; 7 Ab., 340, 346, 445; 5 Ab., 221; 4 Ab., 100, 247, 254, 262; 1 Ab., 123, 125. $ 309. 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 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 partition. In difficult and extraordinary cases where a trial has been by the court had, except in any of the actions or proceedings (other than those for the partition of real estate), specified in section in certain савев. three hundred and eight, and in actions or proceedings for the Amended by Laws of 1857, ch. 723; 1858, ch. 306; 1859, ch. 428; 1862, 9 N. Y., 370; 8 N. Y., 71; 24 B., 126; 11 B., 337; 20 How. P. R., 285; CHAP. XI. verdict or $310. When the judgment is for the recovery of money, Interest on interest from the time of the verdict or report, until judg- report ment be finally entered, shall be computed by the clerk, and allowed. added to the costs of the party entitled thereto. 16 B., 660; 9 How. P. R., 86; 8 How. P. R., 121. when clerks as to S311. The clerk shall insert in the entry of judgment, on Duty of the application of the prevailing party, upon five days' notice costs. 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 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 Costs, how adjust costs in any interlocutory proceeding 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. As amended by Laws of 1862, ch. 460; 1857, ch. 723. 23 B., 410; 19 B., 531; 16 B., 658; 15 B., 135; 11 Ab., 154; 9 Ab., 74, $312. The clerk shall receive, On every trial, from the party bringing it on, one dollar; on entering a judgment by filing transcript, six cents; On entering 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. 23 B., 410; 5 How. P. R., 12. adjusted. Clerks' fees. fees. $313. The fees of referees shall be three dollars to each for Referee's every day spent in the business of the reference; but the par PART IIL Costs on postpone. ment of trial. Costs on motions. Costs against infant plaintiff. Costs by or exe ministrators. trustees, &c. ties may agree in writing upon any other rate of compensation. 17 How. P. R., 472; 9 Ab., 74. S314. When an application shall be made to a court or referees, to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement. 6 How. P. R., 408, 418. S 315. Costs may be allowed on a motion in the discretion of the court or judge, not exceeding ten dollars, and may be absolute or directed to abide the event of the action. As amended by Laws of 1857, ch. 723. 15 How. P. R., 117; 13 How. P. R., 301; 10 How. P. R., 400; 8 How. P. R., 1; 6 How. P. R., 123; 5 How. P. R., 375; 4 How. P. R., 283; 12 Ab., 188; 10 Ab., 41; 8 Ab., 296; 1 Ab., 123. S316. When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action shall be responsible therefor, and payment thereof may be enforced by attachment. 6 How. P. R., 233. S 317. In an action prosecuted or defended by an executor, against ex administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting or defending in his own right, but such costs shall be chargeable only upon or collected of the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defense. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section forty-one, of title three, chapter six, of the second part of the Revised Statutes; and whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law. And the court may in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs. Costs on decision of As amended by Laws of 1852, ch. 392; 1851, ch. 479. 22 N. Y., 468; 30 B., 441; 9 B., 394; 22 How. P. R., 281, 453; 14 How. P. R., 481, 508; 12 How. P. R., 302, 306, 451; 9 How. P. R., 349; 8 How. P. R., 5; 7 How. P. R., 64; 12 Ab., 78; 11 Ab., 261; 7 Ab., 255; 6 Ab., 96. S318. When the decision of a court of inferior jurisdiction, review of a in a special proceeding, including appeals from surrogates' inferior courts, shall be brought before the supreme court for review, special pro- such proceeding shall, for all purposes of costs, be deemed an court in a ceeding. action at issue, on a question of law, from the time the same shall be brought into the supreme court, and costs thereon |