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Proceed

ings upon claim of another party to property, or on de

debtedness

to judg

ment

debtor.

have notice of all subsequent proceedings in relation to said receivership. No more than one receiver of the property of a judgment debtor shall be appointed. The judge may also by order, forbid a transfer or other disposition of the property of the judgment debtor not exempt from execution, and any interference therewith.

As to appointment of receiver, see Wilson, receiver, &c., vs. Allen and others, 6 Barb. 542; Corning and others agt. Tooker and Ladue, 5 How. 16. Kemp and Fiske agt. Harding, 4 How. 178,

Supreme Court Rule, 81.

§ 299. [Sec. 254.] If it appear that a person or corporation alleged to have property of the judgment debtor or indebted to him, claims an interest in the property, adverse to nial of in- him, or denies the debt, such interest or debt shall be recoverable only in an action against such person or corporation by the receiver; but the judge may, by order, forbid a Amended transfer or other disposition of such property or interest, till a sufficient opportunity be given to the receiver to commence the action, and prosecute the same to judgment and execution; but such order may be modified or dissolved, by the judge granting the same, at any time, on such security as he shall direct.

1849.

Reference

by judge. Amended 1849.

proceeding

§ 300. [Sec. 255.] The judge may, in his discretion, order a reference to a referee agreed upon or appointed by him, to report the evidence or the facts.

Costs of § 301. [Sec. 256.] The judge may allow to the judgment creditor, or to any party so examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs.

Amended 1349.

Disobedi

ence of or

der, how

.

§ 302. [Sec. 257.] If any person, party or witness, disobey an order of the judge or referee duly served, such person, party punished. or witness may be punished by the judge as for a contempt. Amended 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

1349, 1851

court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just:

Although the code gives the power of punishing disobedience of his orders to the judge, reference must be had to the Revised Statutes as to the mode in which the power is to be exercised. In the matter of Smethurst 2 Sand. 724; S. C. 4 How. 369; matter of Pester, 2 Code Rep. 98.

TITLE X.

Of the costs in civil actions.

SECTION 303. Fee bill abolished. Allowances given, termed costs. 304. When allowed, of course, to plaintiff.

305. When allowed to defendant.

306. When allowed to either party in the discretion of the court.
307. Amount of costs allowed.

308. Allowance, in addition, of a per centage on the recovery or

claim.

309. Per centage, how computed.

310. Interest on verdict or report, when allowed.

311. Costs, how to be inserted in judgment.

312. Clerk's fees.

313. Referee's fees.

314. Costs on postponement of trial.

315. Costs on a motion.

316. Costs against infant plaintiff.

317. Costs in an action by or against an executor or administrator,
trustee of an express trust, or a person expressly authorised

by statute to sue.

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

proceeding.

319, 320. Costs in actions by the people.

321. Costs against assignee of cause of action after action brought,
322. Costs on a settlement.

bolished.

$303. [Sec. 258.] All statutes establishing or regulating Feehill 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 Allowance the judgment, certain sums by way of indemnity, for his given, expenses in the action; which allowances are in this act costs. termed costs.

Costs on suits pending on the 1st of July, 1848, (except on motions,) must be taxed according to the old fee bill, where the appeal had been taken previous to the operation of the code. Doty agt. Brown, 4 How. 429; Truscutt agt. King et al., id 173.

termed

When alJowed of course to

The attorney has no lien on the judgment for his costs-must trust to the responsibility of his client. Noxon agt. Gregory, 5 How. 339. Benedict agt. Harlow and Wendell, id. 347. Davenport agt. Ludlow, 4 How. 337.

Public officers entitled to double costs. Murray vs. Haskins, 4 How. 263; Chadwick vs. Brother, id. 283; Burkle vs. Luce, 1 Com. 239; S. C. 3 How. 236; Calkins agt. Williams and Brand, 5 How. 393. Contra, Van Rensselaer agt. Kidd, 5 How. 242. Hallenbeck vs Miller, 4 How. 239.

The new fee bill applicable to suits existing when it took effect. Holmes agt. St. John, et al. 4 How. 66. Supervisors of Onondaga vs. Briggs, 3 Denio, 173.

§ 304. [Sec. 259.] Costs shall be allowed of course to plaintiff. the plaintiff upon a recovery, in the following cases: 1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial;

Amended 1349.

2. In an action to recover the possession of personal property;

3. In the actions of which, according to section 54, a court of a justice of the peace has no jurisdiction;

4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars or more. But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which with the damages amounts to fifty dollars. Such value must be determined by the jury, court or referee, by whom the action is tried.

When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs

other than disbursements shall be allowed to the plaintiff, in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions, shall at the time of the commencement of the previous action or actions have been within this state, and not secreted.

No more costs than damages allowed. Belding agt. Conkling 4 How. 196. Holmes agt. St. John and others, id. 66; Taylor and wife agt. Gard id. 67.

ner,

A discontinuance withont paying costs is a nullity. Morrison agt. Ide and others, 4 How. 304.

Costs include disbursements. De Witt ads. Swift, et al., 3 How. 280. On the dismissal of appeal, costs must be paid, or a second appeal may be stayed. Dresser agt. Brooks, 5 How. 75.

lowed to defendant.

§ 305. [Sec. 260.] Costs shall be allowed of course to the When aldefendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.

Two defendants defend by one attorney, but answer separately, and judg ment in their favor, but one bill of costs allowed. Tracy agt. Stone and others, 5 How. 104; S. C., 3 Code Rep., 73; Castellanos vs. Beauville et al., 2 Sand. 670.

Defendants appearing and defend separately, each is entitled to costs. Colcomb et al. vs. Caldwell et al., 5 How. 336; Castellanos vs. Beauville, 2 Sand. 670. Comstock vs. Bayard et al., id. 705; Hinds agt. Myers and others, 4 How. 356.

§ 306. [Sec. 261.] In other actions costs may be allowed or When alnot, in the discretion of the court.

lowed to either par ty in the discretion of the

court.

In all actions where there are several defendants, not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the Amended court may award costs to such of the defendants as have judgment in their favor, or any of them.

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.

1849, 1851.

Amount of costs allowed.

Amended

1849, 1851.

The referee is to decide the question of costs, (but not extra allowance, where the whole cause is referred to him. Graves vs. Blanchard et al., 4 How. 300; S. C. 3 Code Rep., 25.

See notes to section 308.

§ 307. [Sec. 262.] When allowed, costs shall be as fol

lows:

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:

a 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:

b6. 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 from an order granting or denying a non-enumerated motion.

c

7. To either party on appeal to the court of appeals, before argument, twenty-five dollars; for argument, fifty dollars:

d 8. To either party, for every circuit or term, at which the cause is necessarily on the calendar, and not reached or is postponed, excluding that at which it is tried or heard, ten dollars.

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