it was disclosed on the trial, for the first time, that the plaintiff was a nonresident, and the complaint was thereupon dismissed, for "want of jurisdiction" in the court,-held that the defendants were entitled to costs as of course without any order for the purpose (McMahon v. Mutual Benefit Ins. Co. 3 Bosw. 644; 8 Abb. 297; contra, Harriott v. New Jersey R. R. Co. 8 Abb. 284. See ante, p. 483 b).

See note to §§ 306, 386; and as to costs after an offer, see § 385 and note.

§ 306. (Am'd 1849, 1851.) Costs in discretion of the court. (1.) In other actions costs may be allowed or not, in the discretion of the court.

(2.) 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 judg ment in their favor, or any of them.

(3.) 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.

a. Other actions.-The "other actions" referred to in this section, are equity causes (Hines v. Myers, 4 How. 356; Gallagher v. Egan, 2 Sand. 742; Staiger v. Schultz, 3 Trans. App 4; Barber v. White, id. 86; 5 Abb. N. S. 121). Costs are in the discretion of the court in actions: to vacate the award of arbitrators (Wood v. Brooklyn Fire Ins. Co. 10 How. 154), to enjoin the parties from perfecting an irregular sale (Sunney v. Roach, 4 Abb. 16), to recover of a mere stakeholder under the lien law (Eagleson v. Clarke, 2 Abb. 364), to set aside an assignment for the benefit of creditors (Webb v. Daggett, 2 Barb. 10). Where the def ndant succeeds on the trial on a ground that might have been taken advantage of under section 154 (Bridge v. Payson, 5 Sand. 217); of strict foreclosure (O'Hara v. Brophy, 24 How. 379); of foreclosure (Bartow v. Cleaveland, 16 How. 364; 7 Abb. 339).

b. Several defendants not united in interest, making separate defenses by separate answers.-This clause applies to all actions, whether of a legal or an equitable nature (B'k of Attica v. Wolf, 18 How. 102; Wicklow v. Bell, id. 397). One of several defendants not united in interest, who defends separately and succeeds, is not entitled to costs of course, but must obtain an order for their allowance (Williams v. Horgan, 13 How. 138); otherwise if the defendants are united in interest, and the case is one of those mentioned in § 304 (id.) And where several defendants, sued as makers and indorsers of a promissory note, answered separately, and one of them succeeded on the defense of infancy,-held he was not entitled to costs of course; and he having entered judgment for his costs, without any order for the purpose, was held to be irregular in so doing (B'k of Attica v. Wolf, 18 How. 102; Wicklow v. Bell, id. 397. But where such defendants do not make a separate defense by separate answers, but unite in one general denial, such as the plaintiff fails to recover against, are entitled to costs of course under section 305 (Zinck v. Attenburg, 18 How. 108). In an action to dissolve a copartnership and for an accounting, the defendants appeared by one attorney, but put in separate answers,-held that the defendants were not entitled to separate bills of costs (Hall v. Lindo, 8 Abb. 341). Where two defendants appear by the same attorney, but put in separate answers, and

the plaintiff succeeds in the action, either after a verdict in his favor, on demurrer, or otherwise, he can have but one bill of costs (Latham v. Bliss, 13 How. 416; Buel v. Jay, 13 id. 33; Phipps v. Van Cott, 15 id. 110; Hall v. Lindo, 8 Abb. 341; see, contra, Comstock v. Halleck, 4 Sand. 671). So, if the defendants appear by different attorneys, but pending the action the defendants unite in employing the same attorney, but one bill of costs can be allowed them if they succeed (Cistellanos v. Beauville, 2 Sand. 670). Two defendants sued on the same note appeared by one attorney, put in separate answers, the defense being substantially the same, on judgment for defendants,-held they could have but one bill of costs (Atkins v. Lefever, 5 Abb. N. S. 221).

a. Where defendants sever in their defenses, collusively, and to increase the costs, the court, on judgment for defend nts, will allow but one bill of costs (Slater Bank v. Sturdy, 15 Abb. 75). The fact that the attorneys who appear for defendants severing in their defenses, occupy the same office, affords strong presumption that the s verance was to increase costs (id) But where, in good faith, several defendants appear by different attorneys, and defend successfully, each defendant was held entitled to costs, although the action was on an indemnity bond, executed by the defendants, who at the time were partners (Bridgeport Ins. Co. v. Wilson, 7 Bosw. 699); where the action was against seven different insurance companies, who each appeared by separate attorney, on judgment in favor of the defendants, only three sets of costs were allowed (Wood v. Brooklyn Fire Ins. Co. 10 How. 154); and in an action against several defendants not united in interest, and making separate defenses by separate answers, on judgment for all the defendants, it is in the discretion of the court to restrict the defendants to one bill of costs, or to allow certain of the defendants each a bill of costs (Harper v. Chamberlain, 14 Abb. 408). See notes to §§ 304, 305. Where in actions of tort separate defenses are made by several defendants [by separate attorneys], in good faith, and not for costs, each is entitled to a full bill of costs on succeeding in the suit (Castellanos v. Beauville, 2 Sand. 670; Collomb v. Caldwell, 5 How. 326; Bridgeport Ins. Co v. Wilson, 12 Abb. 209; 20 How. 511). Where, in an action for an assault and batery against several defendants, who appeared and answered jointly and by one attorney, the plaintiff recovered against some of the defendants only, and to an amount not sufficient to carry costs,-held that the defendants who had judgment in their favor were entitled to costs (Stone v. Duffy, 3 Sand. 761; and see Marks v. Bard, 1 Abb. 63).

b. Where, in an action against several defendants sued jointly, one of them appears and demurs to the complaint, and the other defendants appear by a different attorney and put in a joint answer, and judgment is given for the defendant on the demurrer and the complaint is dismissed, and judgment thereon in favor of the other defendants, two separate bills of costs are taxable against the plaintiff (Wilbur v. Wiltsey, 13 How. 506). But where in such a case some of the defendants, who have jointly answered, appear by different attorneys on the argument of the appeal taken by the plaintiff to the general term, they cannot recover s parate bills of costs on affirmance of the judgment (id.; see Delamater v. Carman, 2 Daly, 182).

c. Several defendants appearing by different attorneys who are partners, are entitled if they succeed, to only one bill of costs (Crofts v. Rockefellow, 1 Code Rep. N. S. 177); and where 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 appeared by another attorney, who was clerk in the office of the former attorney, and the defendants succeeded, but one bill of costs was allowed (Perry v. Livingston, 6 How. 404).

d. Where, in a suit against three, for the recovery of money, two suffer judgment by default, and the third defends the suit and has a verdict in his favor, he is entitled to costs against the plaintiff (Comstock v. Bayard, 2 Sand. 705).

e. The defendants being sued as drawers and indorsers of a note, and

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 dollars; 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, 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 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, ten 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 necessarily 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