When allowed 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 1849.

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 ner, id. 67.

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

§ 305. [Sec. 260.] Costs shall be allowed of course to the When aldefendant, in the actions mentioned in the last section, defendant. 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 party in the discretion

court.

In all actions where there are several defendants, not united of the 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 cests al

lowed.

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.

с

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.

a Where the defendant takes an order dismissing the complaint on the default of the plaintiff, he is entitled to a trial fee. Dodd agt. Curry, 4 How. 123.

b Sub. 6 specifies the fees on appeals from a special to a general term. Smith vs. Lynes, 2 Sand. 733; Livingston agt. Miller, 4 How. 42.

c Where an appeal is dismissed with costs, for want of prosecution, the respondent is entitled to recover twenty-five dollars and disbursements. Kanouse vs. Martin, 2 Sand. 739.

c Where a default is opened, the applicant must pay the costs of the term and of opposing the motion, and fifty dollars counsel fee. Vanderheyden and wife vs. Mallary and Hunter, 3 How. 295; Conant and Wells agt. Vedder, 4 How. 141.

d A term fee cannot be charged when the court refuses to hear it. Elkerson vs. Spoor et al., 4 How. 361; S. C., 3 Code Rep. 70.

d Nor is it allowed to the prevailing party for a term, when the cause was postponed at his request. Hinman agt. Bergen, 5 How. 245.

d Where a party is entitled to costs of a circuit, he should move the first opportunity. Whipple vs. Williams, 4 How. 28.

Allowance in addition of a per

centage on

the recove

§ 308. [Sec. 263.] In addition to these allowances, if the action be for the recovery of money, or of real or personal property, and a trial has been had, the court may in diffi- ry or claim. cult or extraordinary cases, make an allowance of not more Amended than ten per cent. on the recovery or claim, as in the next section prescribed, for any amount not exceeding fivé hundred dollars; and not more than five per cent. for any additional amount.

Such allowance may likewise be made, upon the recovery of judgment in any action for the partition of real property, or for the foreclosure of a mortgage, or in which a warrant of attachment has been issued, or for the construction of a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, and also in any case where the prosecution or defence has been unreasonably or unfairly conducted.

The allowance must be made by the judge who tried the cause. Sackett agt. Ball, 4 How. 71; Howe and Skinner vs. Muir, id. 252; Supreme Court Rule, 86.

Cases in which extra allowance was denied. Sackett agt. Ball, 4 How. 71; Lees agt. Avery, id. 441; Fish agt. Forrance, 5 How. 317; Hall vs. Prentice, 3 How. 328; Rice et al. vs. Wright et al., id. 405; Fox, adm'r,

1849.

Amount of costs allowed.

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:

Amended 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 :

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

с

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.