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 b. 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 Ē. 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,

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.

b. 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).

66

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. McDonald, 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. Ñ. 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. Ń. 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. McCormick, 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). And to the judge who tried the cause (ib.; Sackett v. Ball, 4 How. 71). When the