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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 IIow. 245.

d Where a party is entitled to costs of a circuit, he should move the first opportunity. Whipple vs. Williams, 4 How. 28. $ 308. [Sec. 263.] In addition to these allowances, if the Allowance 1

in addition action be for the recovery of money, or of real or personal centage on 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,


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Amended 1949.

&c., agt. Gould, 5 How. 278; Gould and others agt. Chapin and others, 4 How. 185; Dexter, president, &c., agt. Gardner and others, 5 How. 417.

Cases in which extra allowance was granted. Niver and another agt. Rossman, 5 How. 153; Dyckman agt. McDonald and Decker, id. 121; Wil. lard agt. Andrews and others, 4 How. 65; Howard vs. The Rome and Turin Plank Road Company, id. 416.

The extra allowance must be granted by the court of original jurisdiction and none other. Wolf and others vs. Van Nostrand, 2 Com. 570; S. C., 4 How. 208.

$ 309. [Sec. 261.] These rates shall be estimated as folcomputed.


1. If the plaintiff recover judgment, it shall be upon the amount of money, or the value of the property recovered, or claimed, or attached, or affected by the construction of the will, or sought to be partitioned, or the amount found due upon the mortgage in an action for foreclosure:

2. If the defendant recover judgment, it shall be upon the amount of money, or the value of the property claimed by the plaintiff, or attached or affected by the construction of the will, or of the defendants interest in property sought to be partitioned, or the amount claimed in an action for foreclosure.

Such amount of value must be determined by the jury, court, or referees, by whom the action is tried, or judgment rendered, or the commissioners appointed to make partition in an action therefor.

§ 310. [Sec. 265.] When the judgment is for the recovwhen al- ery of money, interest from the time of the verdict or re

port, until judgn.ent be finally entered, shall be computed by the clerk, and added to the costs of the party entitled thereto.

$ 311. [Sec. 266.] The clerk shall insert in the entry of serted in judgment, on the application of the prevailing party, upon judgment.

two days notice to the other, the sum of the charges for costs, as above provided, and the necessary disbursements and fees of officers allowed by law, including the compensation of referees, and the expense of printing the papers

Interest on verdict or


Costs how to be in

Amended 1349.

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upon any appeal. The disbursements shall be stated in
detail, and verified by affidavit, which shall be filed.
A defendant appearing but not answering, is entitled to notice


adjustment of costs. The provision of the Revised Statutes (2 R. S., 356, § 1, 3 and 4), in relation to assessment not repealed. King agt. Stafford and Maxwell, 5 How. 30; Elson vs. The N. Y. Equitable Ins. Co., 2 Sand. 654.

If defendant has no notice, the judgment is regular, the irregularity affects only the costs. Rickards vs. Sweetzer, 3 How. 413. Goldsmith vs. Marpe, 2 Code Rep. 49. The President &c., vs. Dwight and others, id. 49; Snyder vs. Young, ex’r., &c., 4 How. 217.

In actions of tort, where plaintiff recovers less than fifty dollars, he is not entitled to recover fees of officers and disbursements, in addition to the amount of costs equal to the verdict. Wheeler vs. Westgate et. al., 4 How. 269. Belding agt. Conkling, id., 196. Contra, Newton agt. Sweet et al., id. 134; Taylor and wife agt. Gardner, id. 67.

Adjustment of costs may be reviewed. Whipple vs. Williams, 4 How 28.

And a motion for readjustment should be made before payment, and the first opportunity. Collomb and others agt. Caldwell and others, 5 How. 336. § 312. [Sec. 267.] The clerk shall receive,

Clerks' On every trial, from the party bringing it on, one dol

Amended lar ; on entering a judgment by filing transcript, six cents : 1849.

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.

« On every trial,” applies only to actions tried at the circuit. Benton vs. Sheldon and others, 1 Code Rep. 134.

The clerk is not required to take papers from the Post-Office sent to him postage unpaid. Jenkins agt. McGill, 4 How. 205.

As to what fees the County Clerk is entitled as Clerk of the Supreme Court. See matter of Albany County Clerk, 5 How. 11.

§ 313. [Sec. 268.] The fees of referees shall be three Referees, 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.

§ 314. [Sec. 269.) When an application shall be made to Costs on a court or referees, to postpone a trial, the payment to the means of




Costs on a motion.

Amended 1849.

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adverse party of a sum not exceeding ten dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement.

$ 315. [Sec. 270.] Costs may be allowed on a motion, in the discretion of the court, not exceeding ten dollars.

On motion to set aside irregular proceedings, and the irregular party has leave to amend, he must pay costs. Weir agt. Slocum, 3 How. 397.

On' motion for judgment as in case of nonsuit, the plaintiff, on being al. lowed to stipulate, must pay costs. Anderson vs. Johnson, 1 Sand. 736, S. C. 1 Code Rep. 94.

In special motions appealed to the general term, the moving party gets no costs under the Code of 1849. Van Wyck vs. Alger, 3 How. 292; S. C. 2 Code Rep. 27.

The amount of costs must be fixed at the time of the motion and inserted in the order. Morrison agt. Ide, 4 How. 304; Chadwick vs. Brother, 4 How. 283; Van Wyck agt. Alliger, 4 How. 164. But see Thomas agt. Clark and Rogers, 5 How. 375.

Costs may be collected by execution in nature of fi. fa., an attachment will not issue. Buzzard vs. Gross, 4 How. 23. See Session Laws of 1847, p. 491, Chap. 390.

Where rule is entered by default upon motion, no costs will be allowed unless notice of the application for costs is given in the notice of the mo. tion. Northrop agt. Van Deusen, 5 How. 134.

If the moving party asks for more than he is entitled, costs for opposing will be allowed. Smith vs. Jones, 2 Code Rep. 33. Supreme Court Rule, 38.

§ 316. When costs are adjudged against an infant plainfant plain- tiff, the guardian by whom he appeared in the action, shall

be responsible therefor, and payment thereof may be enforced by attachment.

§ 317. In an action prosecuted or defended by an executor, action by or against administrator, trustee of an express trust, or a person extor of ad pressly authorized by statute, costs shall be recovered, as in lor, trustee

an action by and against a person prosecuting or defending in or a person his own right, but such costs shall be chargeable only upon or expressly authorised collected of the estate, fund or party represented unless the

court shall direct the same to be paid by the plaintiff or de

fendant, personally, for mismanagement or bad faith in such Amended action or defence. But this section shall not be construed

to allow costs against executors or administrators, where they



Passed 1849.

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Passed 1849.


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ore now exempted therefrom, by section forty-one, of title three, chapter six of the second part of the Revised Statutes; 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.

Nor is it any reason that costs should be given against executors,
the latter have not advertised for the presenting of claims. Van Vleck vs.
Burroughs and others, adm’rs, &c., 6 Barb. 341; Snyder vs. Young, exor,
&c., 4 How. 217.

An executor cannot be charged with costs, on the ground that he was
beneficially interested in the recovery, in right of his wife. Finley and
Jones, ex’rs, &c., vs. Jones, 6 Barb. 229.
See section 311 and notes, and 2 R. S., 90, § 41, and cases there cited.

§ 318. When the decision of a court of inferior jurisdic- Costs on retion, in a special proceeding, shall be brought before the decision of supreme court for review, such proceeding shall, for all special perc

ceeding. purposes of costs, be deemed an action at issue, on a question of law, from the time the same shall be brought into 1849. the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case.

§ 319. In all civil actions prosecuted in the name of the tionis by the people of this state, by an officer duly authorized for that purpose, the people shall be liable for costs in the same 1849. cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant's costs; which shall not be recovered of the people, till after execution issued therefor against such private party and returned unsatisfied.

§ 320. In an action prosecuted in the name of the people of this state for the recovery of money or property, to establish a right or claim, for the benefit of any county, city, town, village, corporation or person, costs awarded (NOTES.]



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