a. The defendants being sued as drawers and endorsers of a note, and having put in a joint defence, 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 defence, but joined with the others. Stafford v. Onderdonk, 2 Code Rep., 115. b. "It is the uniform practice of the court of appeals, as it was of the court for the correction of errors, not to give costs of the appellate court on reversing the decree of a subordinate court in an equity suit. The remittitur shows that the judgment of this court was reversed, and that of the supreme court affirmed with costs. It is not stated "with costs of the appellate court." As effect can be given to the words "with costs," without holding them to give, contrary to the settled practice of the appellate court, the costs of that court, it will probably be doing justice to all parties, and not be an overstrained construction, to hold them to mean such costs as are usually awarded, instead of such as are invariably denied, in such cases." Per Bosworth, J., in Bogardus v. Rosendale Manufacturing Co., 1 Duer, 592. c. A party who succeeds on the trial on a ground which might have been taken advantage of by motion under section 154, ought not to recover costs. Bridge v. Payson, 5 Sand., 217. d. In an action to vacate an award of arbitrators, the costs are in the discretion of the court. Wood v. Brooklyn Fire Ins. Co., 10 Pr. R., 154. e. In an action against several as joint debtors, where the costs are in the discretion of the court, and where each defendant appears by a separate attorney and counsel, and the judgment is for the defendant, the court will not allow full costs to each defendant as of course. Thus, where the action was against seven different insurance companies who each appeared by separate attorney and counsel, on judgment in favor of the defendants only three sets of costs were allowed. And per Mitchell, J., "The fact that the defendants are incorporated companies, and have each their own attorney, gives them no greater right than private individuals have. Individuals who are in the habit of litigation have each their own attorney unless they be in partnership, and that is no reason why they should each appear by separate attorney where they have made their liabilities joint." Wood v. Brooklyn Fire Ins. Co., 10 Pr. R., 154. See note to section 305. § 307. [262.] (Amended 1849-1851-1852.) Amount of costs allowed. When allowed, costs shall be as follows: 1. To the plaintiff, for all proceedings before notice of trial (including judgment when entered),— In an action where judgment upon failure to answer may be had without application to the court, seven dollars; in an action where judgment can only be taken on application to the court, twelve dollars; for all subsequent proceedings before trial, seven dollars. 2. To the defendant; for all the proceedings before notice of trial, five dollars; for all subsequent proceedings before trial, seven dollars. 3. For the trial of issues of law, if separate from the trial of issues of fact, to the plaintiff, fifteen dollars; to the defendant twelve dollars. 4. For the trial of the issues of fact, if separate from the trial of the issues of law, to the plaintiff, fifteen dollars; to the defendant, twelve dollars. 5. For the trial of the issues of fact and of law, when tried at the same time, to the plaintiff, twenty dollars; to the defendant, fifteen dollars. 6. To either party on appeal, except to the court of appeals; before argument, fifteen dollars; for argument, thirty dollars; but this provision shall not apply to appeals in the cases mentioned in section 349. 7. To either party on appeal to the court of appeals, before argument, twenty-five dollars; for argument, fifty dollars. 8. To either party, for every circuit or term at which the cause is necessarily on the calendar, and not reached, or postponed, excluding that at which it is tried or heard, 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 dower was demanded before the commencement of the action and was refused. new. The amendments of 1852, are the parts in italic. The part in subdivision 8, is Subdivision 1. a. Whether a plaintiff entitled to costs is to be allowed $7 or $12, for "all proceedings before notice of trial," does not depend on the question whether application has in fact been made to the court for judgment, but upon the nature of the action. People v. Van Deusen, 2 Code Rep., 7. Thus, where a plaintiff recovers a verdict in an action for assault, he is entitled to have inserted in the entry of judgment the sum of $12 costs, " for all proceedings before notice of trial," whether any application to the court has in fact been made for judgment or not. 1b. Harris, J. b. In Lawrence v. Davis, 7 Pr. R., 354, the action was on a promissory note; the defendant demurred. The plaintiff moved for and obtained judgment under section 247, on the ground of the frivolousness of the demurrer; and the question was raised whether the plaintiff was entitled to $7 or $12, for proceedings before notice of trial. It was contended by the plaintiff's counsel, and apparently acquiesced in by the court (Roosevelt, J.), that as the defendant by his demurrer had rendered an application to the court necessary in order to obtain judgment, the plaintiff was entitled to $12 for proceedings before notice of trial; and in Gould v. Carpenter, 7 Pr. R., 97, Harris, J. said, "As judgment can only be taken on application to the court after a frivolous answer has been put in, perhaps the plaintiff in every such case would be entitled to the sum prescribed ($12) as the allowance when such application is necessary." In a subsequent case it is said, "The criterion (as to whether $7 or $12 is to be allowed for proceedings before notice of trial) is not, as seems to have been held in Lawrence v. Davis (supra), whether the pleadings are such as to render an application to the court necessary; but it is, whether the action is such that judgment, in case no defence had been interposed, might have been perfected without such application. The language of the first subdivision of the 307th section, too explicit to admit of question upon this point." Harris, J., in Van Valkenburg v. Van Schaick, 8 Pr. R., 272. In a previous case (Gould v. Carpenter, 7 Pr. R., 97), the same judge (Harris) is reported to have said: "Whether in a case where it would not have been necessary to apply to the court [for judgment] had there been no answer, the costs should be $7 of $12 is not very clear." Subdivision 2. a. The fee of $7 for all subsequent proceedings before trial, is not chargeable until the action has been noticed for trial; Bedell v. Powell, 3 Code Rep. 61; Morrison v. Ide, ib., 27; and on payment or tender to the defendant of $5, and disbursements, the plaintiff may, at any time before the cause is noticed for trial, discontinue the action. Ib. b. If an attorney has been actually employed, though no notice of retainer has been given, the defendant is nevertheless entitled to $5 costs, and the plaintiff cannot discontinue, except on payment of such costs. Foster v. Bowen, 1 Code Rep. N. S., 236. The retaining an attorney is a proceeding in the cause, and entitles the defendant to costs. Ib. c. The charge after notice of trial, $7, is taxable but once, although the cause is more than once noticed at the circuit, or upon a reference. It is a charge for all proceedings before actual trial. Perry v. Livingston, 6 Pr. R., 404; Jackson v. McBurney, ib. 408. d. Where a verdict was set aside on payment of the costs of the circuit, held, that in such costs might be included the item of $7, allowed for all proceedings subsequent to the notice of trial. Mitchell v. Westervelt, 6 Pr. R., 265. e. 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-the other-defendant, the cause had never been noticed, and that on his obtaining an order dismissing the complaint as to him, he was not entitled to the fee for all subsequent proceedings before trial. Tillpsaugh v. Dick, 8 Pr. R. 33. f. "The $7 given by the second subdivision of section 307 are intended to pay for preparing the cause for trial, embracing every thing to be done by the party and his attorney after the notice of trial and before the circuit." Welles, J., Forbes v. Locke, 8 Pr. R. 21. Subdivision 3. g. Where questions of law arise pending the trial of an issue of fact, and the presiding judge reserves such questions for further consideration, and such questions are subsequently decided at special term, as a motion founded on the clerk's minutes, the successful party is entitled to include in his costs $15, as for the trial of an issue of law under this subdivision. Waterbury v. Westervelt, 1 Code Rep. N.S., 215. h. "I am inclined to think the provision allowing a specific fee for the trial of an issue, should be so construed as to entitle the prevailing party to that fee as often as the cause is brought to a hearing upon the merits under the issue that has been made. Thus, if an issue of fact be brought to trial, and for any cause a juror is withdrawn, or, being unable to agree, the jury is discharged without rendering a verdict, the party who is finally successful, would, undoubtedly, be allowed a trial fee, though the trial did not result in a decision. So, if there be a verdict subject to the opinion of the court, or special verdict, the prevailing party is entitled, upon the adjustment of the costs, to a trial fee, both for the circuit and the term of the court when judg. ment is rendered. And so when a case or bill of exceptions has been made, and the cause is argued upon the question whether the party who has obtained the verdict shall have judgment or a retrial shall be awarded, I think the same principle should be applied, and the successful party should be allowed a trial fee upon such a bearing.' Harris, J., in Ellsworth v. Gooding, 8 Pr. R., 4; and see Van Schaick v. Winn, ib., 5; see infra. a. Where a verdict is taken subject to the opinion of the court at general term upon questions of law, and judgment in the meantime is suspended, if judgment is rendered upon the verdict, the prevailing party is not entitled to costs as upon an appeal from a judgment at special term. The prevailing party can only be allowed for the trial of an issue of law, besides such costs as he may be entitled to under subdivision 8 [7 in report] and disbursements. Roosevelt v. Brown, 1 Duer, 642. b. Where at a circuit a verdict is entered for the plaintiff subject to the opinion of the court at general term, the plaintiff on a case made and decided in his favor is entitled to a trial fee of an issue of law ($15), his disbursements for printing the case, and trial fee paid to the clerk. Wilcox v. Curtis, 10 Pr. R., 91. e. The code has defined an issue of law and an issue of fact; and the argument of a motion for a new trial on a case is neither. The only costs that can be allowed for such argument are the costs of a motion. Moore v. Cockroft, 9 Pr. R., 479. d. A motion for a new trial, at a general term before judgment, on exceptions, cannot be regarded as a trial in any proper sense. With deference I dissent from the decision in Ellsworth v. Gooding (supra), Hubbard, J., Potsdam R. R. Co. v. Jacobs, 10 Pr. R., 454. e. Where a demurrer was noticed for the general term, and placed on the calendar, and then ordered to be heard at the special term, and was placed on the special term calendar, and heard during the same month for which it was noticed at general term, it was held, that the prevailing party could not tax a fee of $10 for the general term, and that he was entitled only to the fee of $15 for the argument at the special term. Comstock v. Halleck, 4 Sand., 671. f. In a suit for a partnership account, a fee for the trial of issues of law is taxable on the cause being heard at the special term, and a reference to take an account * directed. Wiggins v. Arkenburg, 4 Sand., 688. After the referee had determined the question of fact, there was a motion for a rehearing at a general term, held that a fee for the trial of an issue of law was taxable. Ib. g. Where the plaintiff withdraws a juror and is allowed to amend his complaint on payment of costs of the term, the defendant is allowed $12 for trial fee, and $7 for services, subsequent to notice of trial and before trial. Dewey v. Stewart, 6 Pr. R., 465. Subdivision 4. h. A fee of $12, for the trial of an issue of fact, is allowable in an action at issue where the plaintiff fails to appear when the case is called upon the calendar, and the defendant takes an order that the complaint be dismissed. Dodd v. Curry, 2 Code Rep., 69; 4 Pr. R., 123. i. Where there were issues of fact in an equity case, and on the reference of the cause, the referee determined the questions of fact involved, held that the prevailing party was entitled to the fee for the trial of issues of fact, although the order of reference reserved all other questions. Wiggins v. Arkenburg, 4 Sand., 688. j. In the first judicial district, an application to the court for judgment under section 246 is regarded as a trial of an issue of fact; and a trial fee is always allowed on the adjustment of costs. k. When a plaintiff voluntarily submits to a nonsuit after evidence admitted on both sides, and while the defeudant's counsel is summing up, a trial has been had; and semble, on the adjustment of costs defendant is entitled to the fee for trial of an issue of fact; and so where the plaintiff is nonsuited on resting his case. Allaire v. Lee, 1 Abbott, 125. Subdivision 6. 1. In the code of 1849 this subdivision read thus: "To either party on appeal, excepting to the court of appeals, before argument $15, for argument $30, but this provision shall not apply to appeals in cases other than those mentioned in section 349." The construction of this provision gave rise to much discussion, the 'result being that the word "not" was construed to mean "only." Wilson v. Allen, 2 Code Rep., 26; Livingston v. Miller, 4 Pr. R., 42; Savage v. Darrow, ib., 74; Smith v. a. In the code of 1851, this subdivision read thus: To either party on appeal except to the court of appeals, before argument, $15; for argument, $30; but this provision shall not apply to appeals from an order granting or denying a non-enumerated motion ;" and as thus worded, it was held, by Crippen, J., in Nellis v. De Forest (6 Pr. R., 413), that on an appeal to the general term from a decision at special term overruling a demurrer, it did not entitle either party to the costs ($45) mentioned in this subdivision. In that case there was a demurrer to two of the counts or statements of causes of action in the complaint, and on argument at special term the demurrer was overruled; from this decision the defendant appealed. The report of the case does not state whether or not any judgment was entered on the decision at special term, nor whether the appeal at the general term was heard as a calendar cause or not. It seems the papers were printed, but it may be inferred that no judgment was entered on the decision at special term. b. In the case of Elworth v. Gooding, 8 Pr. R., 1 (reported as a decision in August, 1852, but said to have been a case decided on the law of 1851, Van Schaick v. Winne, 8 Pr. R., 7), the verdict was for the plaintiff; the defendant moved at special term on a case for a new trial. The motion was granted. The plaintiff appealed to the general term; and the decision at special term, was affirmed in that respect, and it was held that the motion for a new trial was not a non-enumerated motion, and that the costs on the appeal to the general term were the costs allowed by this subdivision, $45. c. The case of Richards v. Cook, 1 Smith, 386, was decided under the code of 1851, and it was then held, that a demurrer raises an issue of law, and an appeal from the determination of the court at special term there on, is not an appeal from a non-enumerated motion. The prevailing party on such an appeal is entitled to $45 costs. d. The case of Van Schaick v. Winne, 8 Pr. R., 5 (decided upon this subdivision as now worded, and by the same judge (Harris) as was the case of Elsworth v. Gooding, supra), was that of a demurrer to the complaint, argued and overruled at a special term, with leave to the defendant to amend. The defendant did not amend, but appealed to the general term, and there the decision at special term was reversed. The demurrer being allowed and judgment ordered for the defendant, with liberty to the plaintiff to amend on payment of costs, held that the amendment of 1852 took away the right to $45 for costs on an appeal from an order allowing or overruling a demurrer, such a case being expressly provided for by section 349, subd. 2. e. In the superior court in Drummond v. Husson, 8 Pr. R., 246; 1 Duer, 633, it was held, by Bosworth, J., all the other judges concurring, that on an appeal to the general term from a decision on a demurrer to an entire pleading, the costs to be allowed are those prescribed by this subdivision ($45); but that on an appeal from a decision on a demurrer to part of a pleading, the only costs are the costs of a motion. Subdivision 7. f. The appeals referred to in this subdivision are the same that the chapter " Of Appeals" has declared may be taken. The People v. Sturtevant, 9 Pr. R. 304. g. Where the court of appeals, after argument of an appeal on its merits, dismisses same with costs, it will be intended that full costs were meaut; viz., before argument, $25; for argument, $50, and term fees; and that if costs of a motion only had been intended, it would have been so specified. Webb v. Norton, 10 Pr. R., 117. h. Where an appeal from a judgment to a court of appeals is dismissed with costs for want of prosecution, the respondent is entitled to recover $25 together with his disbursements. Kanouse v. Martin, 2 Sand., 739; and where such an appeal is dismissed with costs on motion, the cause not having been argued on the merits or dismissed on being called on the calendar, the respondent is not entitled to the fee of $50 for argument; nor to the fee of $10 for attending, when the cause is not reached and the suit is dismissed at the first term. Ib. |