judge or referee, duly served, such person, party, or witness, may be punished by the judge, as for a contempt. (2.) And in all cases of commitment under this chapter, or the act to abolish imprisonment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just.

a. Punishing for contempt.-The judge who made the order has full power, out of court, to punish for contempt (Shepherd v. Dean, 13 How. 174; 3 Abb. 424; Lathrop v. Clapp, 40 N. Y. 337; Re Smethurst, 2 Sand. 724) ; the judge at special term has the same power (Dresser v. Van Pelt, 15 How. 19; The People v. Kelly, 22 How. 309; Kearney's Case, 13 Abb. 459). The enforcement of an order in supplementary proceedings, is a proceeding as for contempt to enforce a civil remedy; such a proceeding is a proceeding in the action (Pitt v. Davison, 37 N. Y. 235); and the papers may be entitled either as in the action (4 Paige, 360), or as The People, &c., on the relation of A. [the plaintiff] (7 Paige, 325). In such a proceeding reference must be had to the revised statutes (2 R. S. 535) as to the mode of procedure (Re Smethurst, 2 Sand. 724). An order requiring a debtor to show cause why he should not be punished for a contempt, is well served upon the attorney for the debtor (Pitt v. Davison, 37 N. Y. 235).

b. Where the debtor is ordered to pay the judgment, and a specified sum for costs, within a specified time, on his failing to do so he may be proceeded against as for a contempt, and imprisoned until the order be complied with (Brush v. Lee, 2 Trans. App. 95); and on violating an order, forbidding transfer of property, the court may impose a fine (The People v. Kingsland, 3 Keyes, 325; 5 Abb. N. S. 90; 1 Trans. App. 270).

e. When a referee, on the examination before him, directs a witness to answer, that is a sufficient order, and the question being proper, if the witness refuse to answer, he is guilty of contempt (Lathrop v. Clapp, 40 N. Y. 337; The People v. Marston, 18 Abb. 257).

d. Where a party disobeys an order for payment of money, the precept to commit may issue at once (The People v. King, 9 How. 97); or the party may proceed by order to show cause (Brush v. Lee, 2 Trans. App. 97; 6 Abb. N. S. 50); if the proceeding is by order to show cause, no interrogatories need be filed (Pitt v. Davison, 37 N. Y. 235; Lathrop v. Clapp, 40 N. Y. 335; Brush v. Lee, 2 Trans. App. 97; Watson v. Fitzsimmons, 5 Duer, 629).

e. An attachment, to bring a party before the court to answer for alleged disobedience of an order of the court or a judge, cannot be granted without proof, by affidavit, both of the service of such order and of the failure to appear (Ward v. Arenson, 10 Bosw. 589). An affidavit by the attorney that the order was personally served by the sheriff is not sufficient. Nor is it sufficient to state in the affidavit that some of several orders have been duly served (De Witt v. Dennis, 30 How. 131). The attachment should be made returnable before the judge by whom it was issued, and not before one of the judges of the court at chambers (Kelly v. McCormick, 28 N. Y. 318). A copy of the affidavits on which the attachment issued should be served a reasonable time before the return of the attachment, to enable the party to prepare his defense (Ward v. Arenson, 10 Bosw. 589). If, on being brought into court, the party does not admit the contempt, interrogatories must be filed, copies furnished to the party, and time given him to answer them. Refusing to answer the interrogatories is a contempt (De Witt v. Dennis, 30 How. 131). If on the return of an attachment, or order to show cause for an alleged con

tempt in not attending to be examined, the party submits to an examination, usually the court proceeds no further for the contempt (Hilton v. Patterson, 18 Abb. 245).

a. Discharge under subdivision 2.-This provision is applicable, in the discretion of the court, to cases of imprisonment under the Act of 1831, but in such cases, the prisoner should not be discharged where his proceedings have not been fair, and his inability to pay is not clearly established (Maass v. La Torre, 6 Abb. N. S. 219).

SECTION 303. 304.

305.

306.

307.

308.

TITLE X.

Of the costs in Civil Actions.

Existing statutes regulating costs repealed.

Costs, when allowed of course to the plaintiff, costs where
several actions brought on one instrument.
Costs, when allowed of course to the defendant.

Costs, when allowed to either party, in the discretion of
the court.

Amount of costs allowed.

Allowance in addition to costs.

309. Allowance, how computed.

cases.

Difficult and extraordinary

310. Interest on verdict or report, when allowed.

311. Costs, how to be inserted in judgment. Adjustment of interlocutory costs.

312. Clerk's fees.

314. Costs on postponement of trial.

315. Costs on a motion.

316. Costs against an infant plaintiff.

317. Costs in an action by, or against, an executor or adminis trator, trustee of an express trust, or a person expressly authorized by statute to sue. Security for costs.

318. Costs on review of a decision of an inferior court in a special proceeding.

319. Costs in actions by the people.

320. The like.

321. Costs against assignee of cause of action, after action brought.

322. Costs on a settlement.

$303. Fee bill abolished.

All statutes establishing or regulating the costs, or fees of attorneys, solicitors and counsel in civil actions, and all existing rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor or counsel, for his compensation, are repealed; and hereafter the measure of such

compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity, for his expenses in the action; which allowances are in this act termed costs.

ɑ. Former rules as to costs abrogated.—The code establishes rules regulating costs, which supersede all former rules upon the subject (Montgomery Co. B'k v. Albany City B'k, 7 N. Y. 465), except in certain cases, some of which are mentioned below.

b. Costs in actions, &c., against Mayor, &c., of New York.— In actions or special proceedings against the mayor, aldermen and commonalty of the city of New York, if the plaintiff recover judgment, "he shall recover full taxable costs, without regard to the amount of judgment" (Laws 1860, ch. 379, § 2). Laws 1859, ch. 262, provide that no costs shall be recovered in actions against municipal corporations, unless, prior to commencing the action, the claim in suit was presented for payment to the chief fiscal officer of such corporation. This provision does not apply to actions arising ex delicto (McClure v. Superv. of Niagara, 4 Trans. App. 275).

c. School district officers.-See Laws 1847, ch. 480; Clark v. Tunniclift, 4 Abb. N. S. 451.

d. Surrogates' courts.-These provisions do not apply to costs in surrogates' courts (Devin v. Patchin, 26 N. Y. 441); costs on appeal from surrogate's decree. See § 318.

e. Costs in federal courts.-This section does not affect the question of costs in the federal courts. See 1 Blatch. C. C. R. 647, 650.

f. Costs as between attorney and client.-Costs as adjusted under the code are not the measure of compensation for the services of the attorney, in an action between himself and his client to recover compensation for such services. In such an action, the attorney must prove the value of his services (Garr v. Mairet, 1 Hilton, 498). The taxable costs are prima facie the measure of the attorney's compensation (Keenan v. Dornflinger, 19 How. 153; 12 Abb. 327, note).

g. Agreements as to compensation to attorneys.-This section is supposed to have so far repealed the provisions of the revised statutes, prohibiting an attorney buying causes of action to sue thereon, as to make it lawful for a party to agree with an attorney to give him a portion of a demand, if and when recovered, in consideration of his bringing suit for the recovery of such demand (Satterlee v. Frazer, 2 Sand. 141; Benedict v. Stuart, 23 Barb. 420). See Barry v. Whitney, 3 Sand. 696; Easton v. Smith, 1 E. D. Smith, 318; Wilde v. Joel, 15 How. 329; Stow v. Hamlin, 11 id. 452; Hitchings v. Van Brunt, 5 Abb. N. S. 272).

h. Substitution of attorney.-The court, in the absence of any agreement as to the amount of costs, will not order a substitution of an attorney on payment of the taxed costs only, but will allow the attorney such further compensation, as under the circumstances is proper (Cregier v. Cheesbrough, 25 How. 200). On the substitution of an attorney, where the attorney alleges that, subsequent to the judgment, his client assigned it, with a view to defeat the attorney's lien, the attorney may have a reference to ascertain his lien on the judgment for taxed costs, without prejudice to his right as against the assignee (Richardson v. Brooklyn Railroad, 24 How. 321; id. 480; 15 Abb. 342, note); see Supreme Court Rule 12; Superior Court Rule XVII.

¿. Costs in certain actions where damages claimed do not exceed $500.—The marine court of the city of New York has jurisdiction "of actions of assault and battery, false imprisonment, malicious prosecution, libel and slander, where the damages claimed do not exceed $500; and the costs of all such actions, when prosecuted in any other court of the city of

New York, are limited to the amount which would have been recovered in said marine court, if prosecuted therein, but in no such action shall the costs exceed the damages recovered" (Laws of 1853, p. 1165, § 1). But if the damages claimed exceed $500, and the plaintiff recover, his right to costs will be regulated by the code (Murray v. De Gross, 3 Duer, 668). In an action for assault, the place of trial was Dutchess county, where the plaintiff resided, the damages claimed being $1,000. Afterwards the place of trial was changed to the city of New York. The cause was twice tried. On the first trial the plaintiff had a verdict for $450, and on the second trial a verdict for $75,held that it was not a case within the act, and that the plaintiff's costs were not limited to the amount of his recovery (Sleight v. Hancox, 4 Abb. 245).

a. Opening streets, &c.-The act of April 1, 1854 (Laws of 1854, p. 281), governs as to the taxation of the costs and expense of street improvements in the city of New York. Consequently all bills of the corporation counsel, for services rendered, or of proceedings pending previous to the first of January, 1855, are to be taxed at the rates allowed previous to the passage of the bill of 1854 (In the matter of The Bowery, 19 Barb. 589). An appeal from the taxation of costs in such cases must be taken before the report is confirmed; it cannot be taken afterwards (Re Sixty-fifth Street, 23 How. 256).

b. Costs of one of several issues.-The provision of the revised statutes, that where there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on the issues found for him, and the defendant on those found in his favor, is not abrogated by the code (Dresser v. Wickes, 2 Abb. 460).

c. Costs in special proceedings.-See note to § 318, post. The legislature has made no provision for costs in a special proceeding on an original application to the court. Therefore, in an original application in a special proceeding, motion costs only can be allowed (Re Pierce, 12 How. 532). The provisions of that part of the code which relates to costs upon appeal, are applicable to appeals in special proceedings, as well as to those taken in civil actions, strictly so called (The People v. Sturtevant, 3 Duer, 616; The People v. Robinson, 24 How. 345).

d. Costs in proceedings on forfeited recognizances in New York city. In no case whatsoever, upon proceedings upon forfeited recognizances, shall any fees or costs be chargeable to the mayor, commonalty, aldermen, or supervisors of the city and county of New York, by the officer prosecuting the same (Laws 1855, ch. 202, § 3).

e. Attorney's lien.-The code has not affected the lien of the attorney upon the judgment for his costs (Ward v. Wordsworth, 1 E. D. Smith, 598; Rooney v. Second Ave. R. R. Co. 18 N. Y. 368; Sherwood v. Buffalo and N. Y. City Railroad Co. 12 How. 136; Robbins v. Alexander, 11 id. 100; Wilkins v. Batterman, 4 Barb. 47; Creighton v. Ingersoll, 20 id. 541; Haight v. Holcomb, 16 How. 173, 160; 7 Abb. 210; Ex parte Kyle, 1 Cal. R. 331; and see 3 E. D. Smith, 66; McGregor v. Comstock, 28 N. Y. 237; Ely v. Cooke, 28 N. Y. 365 ; Cock v. Palmer, 19 Abb. 372; Adams v. Fox, 27 How. 409). But the lien is lost by an assignment of the attorney's claim to a third person (Chappell v. Dunn, 21 Barb. 17).

f. As between the parties to an action, an attorney, as such, has no lien upon the subject of the action, and the parties may settle and discharge it before judgment without consulting him, if there is no collusion to deprive him of costs (McDowell v. Second Avenue R. R. Co. 4 Bosw. 670; see Benedict v. Harlow, 5 How. 347; Brown v. Comstock, 10 Barb. 67; Platt v. Jerome, 19 How. U. S. Rep. 384; Harrison v. Wilcox, 11 Ire. Law Rep. 500; Davenport v. Ludlow, 4 How. 337; Shank v. Shoemaker, 18 N. Y. 489; Ex parte Morrison, 4 Law Rep. 153, Q. B.); where the parties compromise an action behind the back of the plaintiff's attorney, and with a view to deprive him of his costs, the court will allow the attorney to proceed in the action to recover his costs (Rasquin v. Knickerbocker Stage Co. 21 How. 293; 12 Abb. 324; Robbins v. Al

exander, 11 How. 100; Murquat v. Mulvy, 9 How. 460; see, however, McKenzie v. McKenzie, 21 How. 467; McKenzie v. Rhodes, 13 Abb. 337; Carpenter v. Sixth Av. R. R. Co., 1 Amer. Law Reg. N. S. 410; Ackerman v. Ackerman, 14 Abb. 229; Owen v. Mason, 18 How. 156; Goodridge v. New, 18 How. 189; Cock v. Palmer, 1 Rob. 658; and see Pearl v. Robitchek, 2 Daly, 138).

a. As against his client, an attorney has the right to collect a judgment and apply the proceeds towards satisfaction of his claim for services (Sherwood v. Buffalo R. R. Co. 12 How. 136); and to enforce his lien he may, without the consent of his client, sue in the client's name on the undertaking of bail, and the client cannot release the action to the prejudice of the attorney's lien (Shackleton v. Hart, 20 How. 39; 12 Abb. 325, note).

b. The attorney cannot issue an execution on the judgment, for the amount of his lien, after the judgment has been satisfied by the client (Ackerman v. Ackerman, 14 Abb. 229). Nor can he, where the judgment has been paid after an execution has been returned unsatisfied, enforce his lien by a proceeding supplementary to the execution (De Graw v. Boardman, 13 Abb. 337, note).

c. A motion made seven years after a judgment has been satisfied, to vacate the satisfaction to enforce the attorney's lien denied (Winans v. Mason, 21 How. 153; 33 Barb. 522).

d. The attorney cannot be deprived of his lien by a payment under section 293 of the code (East River Bank v. Kidd, 13 Abb. 337, note; and see note to § 293, ante), but he may be by a bona fide payment to the judgment creditor, without notice of any lien (Ackerman v. Ackerman, 14 Abb. 229; and see Fox v. Fox, 24 How. 409).

e. The attorney's lien to the extent of his costs extends to the costs and damages (Ackerman v. Ackerman, 14 Abb. 229); and to all the incidents of the judgment, or securities for its payment, including the undertaking of bail (Shackleton v. Hart, 20 How. 39; 12 Abb. 325, note; Fox v. Fox, 24 How. 409). The lien attaches to the subject-matter of the action from the commencement of the action (Keenan v. Dorflinger, 19 How. 153; 12 Abb. 327, note). But semble, not to the damages until they are received, unless by virtue of some special contract (Benedict v. Harlow, 5 How. 347).

f. Where an action is brought for the purpose of setting off a judgment, owned by the plaintiff, against a judgment for costs in favor of the defendant, against the plaintiff, the attorney's lien for costs on the latter judgment cannot be let in to obstruct the set-off. It is otherwise on a motion to set-off the judgments (Martin v. Kanouse, 17 How. 146; see Hayden v. McDermott, 9 Abb. 14; Ely v. Cook, 9 Abb. 366; Roberts v. Carter, 9 Abb. 366, note; 17 How. 341). The attorney's lien was on motion held superior to the right of set-off (Gridley v. Garrison, 4 Paige, 648; Ainslee v. Boynton, 2 Barb. 258; contra, Ferguson v. Bassett, 4 How. 168; Noxon v. Gregory, 4 How. 339).

g. Effect of assignment of cause of action pending the action, on the attorney's lien for costs (Creighton v. Ingersoll, 20 Barb. 541). An assignment of the judgment to the attorney in the action to secure his costs, is allowed a preference over the adverse parties' claim of set-off (Van Pelt v. Boyer, 8 How. 319; and see Ferguson v. Bassett, 4 How. 168, and note to § 293, ante). h. Query, whether an attorney can acquire a lien on a judgment in the New York marine court (Hayden v. McDermott, 9 Abb. 14).

i. Semble, the attorney's lien, as against the opposite party, may extend to a sum agreed by his client, to be paid in addition to the taxable costs (Richardson v. Brooklyn R. R. 15 Abb. 342, note; 24 How. 321, 480; Ackerman v. Ackerman, 11 Abb. 256; 14 Abb. 229; Fox v. Fox, 24 How. 409; Ward v. Syme, 9 How. 16; Rooney v. Second Avenue R. R. Co. 18 N. Y. 368; Hall v. Ayer, 9 Abb. 220; Carpenter v. Sixth Avenue R. R. Co. 1 Amer. Law Reg. N. S. 410; 19 How. 92; questioning Haight v. Holcomb, 16 How. 173; 7 Abb. 210).

j. The existence and extent of the lien may be determined in a summary way, as by a reference. The client cannot claim a right to a trial by jury (Ackerman v. Ackerman, 14 Abb. 230).