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Costs on a

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

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

Amended 1849.

Costs

against in

tiff.

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 allowed 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 motion. 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.

Passed

1849.

Costs in an action by

an execu

§ 317. In an action prosecuted or defended by an executor, or against 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

tor or ad

ministra

tor, trustee of an ex

press trust,

expressly

by statute to sue.

or a person his own right, but such costs shall be chargeable only upon or authorised 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 Amended action or defence. But this section shall not be construed to allow costs against executors or administrators, where they

Passed 1849.

1851.

are 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, because 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, ex'r, &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.

view of a

decision of

inferior court in a

ceeding.

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 supreme court for review, such proceeding shall, for all special propurposes 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.

Passed

Costs in ac

people.

Passed

§ 319. In all civil actions prosecuted in the name of the tions 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.

The same.

Passed

§ 320. In an action prosecuted in the name of the people of this state for the recovery of money or property, or 1849. to establish a right or claim, for the benefit of any county, city, town, village, corporation or person, costs awarded [NOTES.]

9

Costs against assignee of cause of

action, after

action. brought

Passed 1849.

settlement.

against the plaintiff, shall be a charge against the party for whose benefit the action was prosecuted, and not against the people.

§ 321. In actions, in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and ment thereof may be enforced by attachment.

pay

Costs on a § 322. Upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section.

Passed 1849.

And the plaintiff is entitled to full costs up to the time of settlement. Rockefeller vs. Weiderwax, 3 How. 382; S. C., 2 Code Rep. 3.

TITLE XI.

Of appeals in civil actions.

CHAPTER I. Appeals in general.

II. Appeals to the court of appeals.

III. Appeals to the supreme court from an inferior court.

IV. Appeals in the supreme court, and the superior court, and
the court of common pleas of the city of New-York, from
a single judge to the general term.

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V. Appeal to the court of common pleas for the city and county
of New-York, or to a county court, from an inferior
court.

CHAPTER I.

Appeals in general.

SECTION 323. Writs of error abolished, and appeals substituted. 324. Orders made out of court, how vacated or modified. 325. Who may appeal.

326. Parties how designated on appeal.

327. Appeal how made.

328. Clerk to transmit papers to appellate court.

329. Intermediate orders affecting the judgment, may be reviewed

on the appeal.

330. Judgment on appeal.

331. Certain appeals to be within two years.

332. Other appeals within thirty days.

§ 323. [Sec. 271.] Writs of error in civil actions, as they writs of er

have heretofore existed, are abolished, and the only

ror abolish

mode ed and ap

of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title.

See section 268 and notes.

peals substituted.

Passed 1849.

made out

how vaca

§324. [Sec. 272. An order, made out of court, without Orders notice to the adverse party, may be vacated or modified, of court, without notice, by the judge who made it, or may be vaca- ted or ted or modified on notice, in the manner in which other motions are made.

On a motion to vacate or modify, no opposing affidavits can be used by the defendant, nor additional affidavits by the plaintiff. Conklin and Conklin agt. Dutcher, 5 How. 386.

As to orders granting injunctions, see section 226 and notes, and Mills vs. Thursby, 1 Code Rep. 121.

modified.

§325. [Sec. 273.] Any party aggrieved may appeal in Who may the cases prescribed in this title.

appeal.

Parties, how desig

nated on appeal.

Appeal,

how made.

Amended 1849.

Clerk to transmit

papers to

An appeal from a judgment does not lie until it is entered and perfected, and the time of appealing begins to run on service of notice of entry of judgment. Bentley vs. Jones et al., 4 How. 335.

If the appellant neglects to prosecute his appeal, it will be dismissed with costs. Hogan vs. Brophy, 2 Code Rep. 77.

And if he elects to dismiss his own appeal he must enter the order and pay the respondent's costs. Burnett agt. Harkness, 4 How. 158.

§ 326. [Sec. 274.] The party appealing, shall be known as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed, in consequence of the appeal.

But the entitling, as it regards the court, must be changed. Clickman vs. Clickman, 1 Com. 611.

§ 327. [Sec. 275.] An appeal must be made by the service of a notice in writing, on the adverse party, and on the clerk, with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof. When a party shall give in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just.

The notice of appeal must be served on the attorney of record, in the court below. Tripp agt. De Bow, 5 How. 114.

The time of service of notice on the clerk when made by mail, does not date from the day of depositing in the Post Office. Crittenden agt. Adams and others, 5 How. 310.

Time to appeal cannot be enlarged by the court. Enos and others agt. Thomas and Hunter, 5 How. 361; Renoul vs. Harris, 2 Sand, 642. Contra, Crittenden agt. Adams and others, 5 How. 310; Traver vs. Silvernail, 2 Code Rep. 96. Westcott vs. Platt, 1 Code Rep. 100.

But where notice of appeal was given in good faith, the court allowed other debts to be done necessary to complete the appeal. Rich vs. Beekman, 2 Code Rep. 63.

§ 328. [Sec. 276.] Upon the appeal allowed by the seappellate cond and third chapters of this title, being perfected, the clerk with whom the notice of appeal is filed, shall, at the expense of the appellant, forthwith transmit to the appel

court.

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