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ticular items, to bring the question as to such items directly before the court by a motion on his part, although the adverse party applies for a readjustment as to other items (Rogers v. Rogers, 2 Paige, 460).

a. If the adjustment of costs by the clerk of a county court is erroneous, the remedy of a party aggrieved, is by a motion in that court in the nature of an appeal from the decision of the clerk, not by an appeal from the judgment of the court (Beattie v. Qua, 15 Barb. 132).

b. Adjustment of costs by judge at chambers.-The taxation of costs other than those in an interlocutory proceeding, by a judge at chambers is a nullity (Nellis v. De Forest, 6 How. 413; Van Schaick v. Winne, 8 id. 6; Hanna v. Dexter, 15 Abb. 135).

§ 312. Clerks' fees:

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.

c. The fee of one dollar on every trial, from the party bringing it on, is not payable until the cause is called on to be heard (Malcomb v. Jennings, 1 Code Rep. 41). Nor is this fee payable in actions referred at the circuit, and tried before referees (Benton v. Shelden, 1 Code Rep. 134).

d. The clerk is not entitled to charge for entering in the rough minutes, or in the books, any rule or order. Where either party desires a copy of an order, or of any other paper, the clerk may charge for the same at the rate of five cents for every hundred words. There can be no additional charge for the certificate, or for the signature to the certificate. This provision extends to every entry made, and to every paper filed (Re Clerk of Albany, 5 How. 11).

e. The clerk is allowed one dollar for every trial, to be paid by the party bringing it on. This extends to trials of issues of law as well as issues of fact (§ 252). The clerk is, therefore, entitled to this fee for every cause actually tried at the circuit, including demurrers (id.) and arguments at general term on questions reserved (Wilcox v. Curtiss, 10 How. 91).

J. The fee for entering judgment is not payable till the judgment is perfected Clerk's Case, 5 How. 11). It is chargeable to the party in whose favor judgment is entered, although he may not recover costs (Burnett v. Westfall, 15 How. 430). The fee belongs to the clerk, and he may refuse to receive it (Schermerhorn v. Van Vorst, 5 How. 458).

g. The fee bill in the revised statutes, so far as it relates to clerks' fee, is repealed (The People v. Supervisors of Monroe, 15 How. 225).

h. The clerk before performing any service is entitled to insist on the payment of the fees for such service. If, however, he performs the service without insisting on payment of the fees therefor, he gives credit to the party who is bound to pay them, and must look to him personally (Purdy v. Peters, 23 How 328), and the clerk is bound to perform each service required of him on being paid his fee therefor. He cannot insist that, before performing some certain service required of him, he shall first be paid his fees for some previous service for which he has given credit (id.)

§ 313. Referees' fees.

The fees of referees shall be three dollars to each, for every day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation.

See note to Trial by referees, ante. p. 414 d.

§ 314. Costs on postponement of trial.

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.

a. The costs, on postponing a cause at the circuit, cannot exceed $10, besides the fee of witnesses (Noxon v. Bentley, 6 How. 418). The case of Mitchell v. Westervelt (ib. 265) does not apply to a postponement under this section.

b. The costs should be paid immediately after they are ascertained, without waiting for any demand (19 Johns. 270). If the trial be postponed at the defendant's request, on condition of his paying costs, if the condition is not complied with, the plaintiff may proceed to trial (5 Hill, 516); or the court may, if the plaintiff has lost the opportunity of going to trial, enforce payment of the costs by attachment (18 Wend. 509; Bulkeley v. Keteltas, 2 Sand. 375).

c. Where the court ordered a cause postponed for the term, at defendant's instance, on payment of costs, within twenty days, or that plaintiff have judgment, it was held that on default made in payment of the costs, the plaintiff might take judgment (5 Hill, 446).

§ 315. (Am'd 1849, 1857.)

Costs on a motion.

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.

d Costs discretionary.—Costs of a motion are discretionary, and cannot be interfered with on appeal (Dennison v. Dennison, 9 How. 246).

e. Order should determine amount of costs.-"The amount of costs upon interlocutory proceedings should be fixed in the order which awards them. In cases where a party is required to pay costs as the condition of granting him a favor, the order should specify the amount, or designate some officer to settle the amount. It is usual in such cases to provide in the order that the costs should be fixed by the clerk, or by one of the justices of the court, or by a county judge" (Van Schaick v. Winne, 8 How. 6; see 4 How. 283, 304; 13 How. 301).

f. Where no provision is made in an order at a general term for the taxation of the costs to be paid as the condition upon which the party is to have the benefit of the order, the proper practice is to apply at a general term for a modification of the order, so as to fix the amount of costs, or direct the payment of such amount as shall be fixed by some officer designated for that purpose (Ellsworth v. Gooding, 8 How. 1). Where a new trial is ordered, on appeal, the clerk cannot tax the costs of the appeal unless the order so directs (Pennell v. Wilson, 5 Rob. 674).

a. Where a motion has been granted or denied, and nothing is said about costs in the order deciding it, the clerk can make no allowance for costs of such motion in the final costs of the action (Morrison v. Ide, 3 Code Rep. 27; 4 How. 305; Van Wyck v. Alliger, 4 How. 164; Mitchell v. Westervelt, 6 ib. 265-311; Nellis v. De Forest, ib. 413); but where, on a motion, the order was made "with costs," not specifying the amount,-held the costs meant were full costs of a motion, $10 (Pennell v. Wilson, 5 Rob. 676).

b. An appeal from an order at chambers is a motion; and where no costs are awarded on the decision of such an appeal, none can be allowed (Savage v. Darrow, 4 How. 74).

c. Costs on a motion and interlocutory costs, how collected. The provisions of law for collecting interlocutory costs are not repealed by the code (Lucas v. Johnson, 6 How. 121; Poillon v. Houghton, 2 Code Rep. 14). And these provisions are (Laws of 1840, p. 333, § 15): "All orders awarding costs upon granting or denying special motions, shall specify the amount of such costs; and where the order for the payment of such costs, or any sum of money, upon a special motion, is not conditional, a precept to enforce payment of such costs or sum of money may be issued without any demand or application to the court."

d. Laws of 1847, p. 491, § 2: "No person shall be imprisoned for the nonpayment of interlocutory costs, or for contempt of court for not paying costs, except attorneys, solicitors, and counsellors, and officers of court, when ordered to pay costs for misconduct as such, and witnesses when ordered to pay costs on an attachment for nonattendance (§ 3). Process in the nature of a fieri facias against personal property may be issued for the collection of such costs, founded on such order of court.

e. If costs on a motion are not paid within twenty days, no previous demand is necessary prior to issuing an execution in the nature of a fi. fa. for their collection (Mitchell v. Westervelt, 6 How. 265; Wetzell v. Schultz, 3 Abb. 468; 13 How. 191).

f. The act of 1847 "does not apply to those cases of contempt where a party may be fined for any misconduct productive of an actual loss or injury to the other party" (Livingston v. Fitzgerald, 2 Barb. 396).

g. Process in the nature of a fieri facias cannot be issued to collect costs allowed by an order made in supplementary proceedings, because such an order is not an order of the court, but only of the judge or officer before whom the proceeding is pending (Hulsaver v. Wiles, 11 How. 446).

h. The costs of an application for judgment, when made upon the whole of the pleadings, relating to all or only one of the alleged causes of action, are to be collected as part of the judgment (Wesley v. Bennett, 6 Abb. 12).

i. What are interlocutory costs.-Where one of several defenses is demurred to and the demurrer is sustained with liberty to the defendant to amend on payment of costs, if the defendant does not amend, the costs of the demurrer are not interlocutory, and are not collectable by precept (Moza or Mora v. Sun Mut. Ins. Co. 22 How. 60; 13 Abb. 304; Palmer v. Smedley, 13 Abb. 185). Interlocutory costs are those of some proceeding intermediate the commencement of the action and its final decision (Purchase v. Bellows, 16 Abb. 108).

§ 316. Costs against infant plaintiff.

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.

j. The word may in this section is to be read must or shall, and if the action by the guardian fails, he is liable to be attached for the nonpayment of the costs. His poverty is no excuse (Grantman v. Thrall, 31 How. 464).

§ 317. (Am'd 1851, 1852.) Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. Reference of claim against a deceased person. Security for costs.

(1.) In an action prosecuted or defended by an executor, 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. (2.) 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. (3.) And the court may, in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs.

ɑ. Sureties and trustees.—Any indorser or other surety, and any assignee, executor, administrator or other trustee, shall be entitled to and allowed to recover from his principal or cestui que trust, all necessary and reasonable costs and expenses paid or incurred by him in good faith, as surety or trustee in the prosecution or defense in good faith of any action by or against any assignee, executor, administrator, or other trustee as such (Laws 1858, ch. 314, § 3).

b. Trustees of an express trust.-A general assignee for the benefit of creditors is a trustee of an express trust within this section (Cunningham v. McGregor, 12 How. 305; 5 Duer, 648); so is a person who, pending the action, became assignee of one of the plaintiffs, by an assignment, the object of which was to indemnify him, the assignee, from all loss by reason of having indorsed and guaranteed the notes of such plaintiff (Conger v. Hudson R. R. R. Co. 7 Abb. 255). An action brought on behalf of a bank, in the name of its president, is not an action prosecuted in another's right so as to excuse the plaintiff, failing in the action, from paying costs (Lowerre v. Vail, 5 Abb. 229). When the receiver of an insurance company prosecutes an action begun by the company before his appointment, and the action does not succeed, he is chargeable with the costs in like manner as if he had been made a party plaintiff (Colum. Ins. Co. v. Stevens, 37 N. Y. 536); and see post, p. 513 f. Executors, &c., personally liable for costs; and see in note to § 321, post.

c. Executor plaintiff-costs against.—A plaintiff who sues as executor, on judgment being rendered against him, is liable for costs, either personally or to be paid by the estate, in all cases where one suing in his own right would pay costs (Curtis v. Dutton, 4 Sand. 719; Woodruff v. Cook, 14 How. 481; Goodrich v. Pendleton, 3 Johns. Ch. 520). It is only in actions against executors

or administrators, not in actions by them, that any exemption from costs is provided for (Fox v. Fox, 22 How. 453); but the defendant cannot enter judgment for costs against the plaintiff personally unless the court so directs (Woodruff v. Cook, 14 How. 481; see ante, p. 428 h. and infra in this note). One who as administrator commences an action for the benefit of the estate, does not become personally liable for the costs, by the fact of his ceasing, pending the action, to be administrator (Baxter v. Davis, 3 Abb. N. S. 249).

a. There is no authority in the courts of this State for allowing what are termed "trustee costs" (Rose v. Rose Benev. Soc. 28 N. Y. 184).

b. The provisions of the revised statutes forbidding the recovery of costs against executors or administrators except in certain cases, and referred to in section 317 of the code, apply only to the general costs in the action, and have no reference to interlocutory costs or the costs of an appeal (Hunt v. Connor, 17 Abb. 466).

c. Costs against the estate will be allowed to a creditor who succeeds in an action against an executor or administrator on a claim the payment of which was unreasonably resisted (Boyd v. Wilkin, 23 How. 137).

d. Where, on a motion for costs against executors for refusing to refer, it is found as a question of fact that they did so refuse, the general term will not review that finding. An extra allowance to executors is governed by the same rules as the allowance of costs to them (Niblo v. Binsse, 31 How. 476). Where an order for costs and allowance to executors is made after judgment, the order should be entered as of the day of entering the judgment (id.)

e. Executor, &c., defendant.—Costs against.—To entitle a plaintiff to charge an executor defendant with the costs of the action, he must establish, to the satisfaction of the court, that the demand being duly presented, payment of it was, (1) unreasonably neglected, or (2) unreasonably resisted, or (3) that the executor refused to refer, as provided by the statute [2 R. S. 90, § 41] (Buckhout v. Hunt, 16 How. 407; Snyder v. Young, 4 How. 217; Van Vleck v. Burroughs, 6 Barb. 341; Fort v. Gooding, 9 id. 388; Russell v. Lane, 1 Barb. 519; Bullock v. Bogardus, 1 Denio, 276). An executor defendant is not liable for costs for omitting to advertise for the presentment of claims (Snyder v. Young, 4 How. 217; Van Vleck v. Burroughs, 6 Barb. 341; 22 Wend. 571; 6 Hill, 386).

f. Where an action is commenced against an intestate in his lifetime, and after his death is by order continued against his administrators pursuant to section 121, if the plaintiff succeed, he is entitled to costs against the estate (Lemen v. Wood, 16 How. 285; Benedict v. Caffe, 3 Duer, 669; Mitchell v. Mount, 17 Abb. 213; Merritt v. Thompson, 27 Ñ. Y. 225; Murray v. Smith, 9 Bosw. 689), if the verdict be one which would have entitled the plaintiff to recover costs of the original defendant if living (id.) The exception in this section (317) refers only to actions commenced against executors, &c., not to an action commenced against a testator and continued against his executor (id.; Tindall v. Jones, 11 Abb. 258; 19 How. 469; see, however, McCann v. Bradley, 15 How. 79).

g. When in an action upon a promissory note brought against the representatives of a deceased joint debtor upon the insolvency of the survivor, in which the surviving joint debtor was made a codefendant, and a recovery had in favor of the plaintiff,-held that the plaintiff was entitled to recover his costs (Yorks v. Peck, 9 How. 201).

h. Offer to refer.-The offer to refer may be by parol (Lanning v. Swarts, 9 How. 434; and see 1 Barb. 519).

i. What may be referred.-Both legal and equitable claims against the estate of a deceased person may be referred under the statute (White v. Story, 28 How. 173); but only those claims are referable which accrued against the testator during his life, or which would have accrued against him if he had continued in life (Godding v. Porter, 17 Abb. 374). A claim against a decedent's estate for a tort of the decedent, the conversion of personal property, is referable under the statute (Brocket v. Bush, 18 Abb. 337; see Sands v. Craft, 18 How. 438; 10 Abb. 246; Francisco v. Fitch, 25 Barb.

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