DENNIS * CO., INC L*w Book Publishers 251 MAIN STREET WJFFALO 3. N Y. i I . UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY MANDEV1LLE 7P.OY ATTORNEY-AT-LAW x OLE AN, N. Y. A HANDBOOK ON THE TAXATION OF COSTS AS OF RIGHT IN THE STATE OF NEW YORK WITH FORMS FOR VARIOUS BILLS OF COSTS BY ELIAS LOEWENKOPF, B. A., LL. B. in OF THE NEW YORK BAR NEW YORK BAKER, VOORHIS & CO. 1916 COPYRIGHT, 1916, BY BAKER, VOORHIS & CO. wife PREFACE Very often attorneys deprive their clients and them- selves of substantial sums of money as costs of an action or proceedings to which they are justly entitled. There- fore a short and concise text on the code provisions and cases together with decisions relating to them, should be of great value and assistance in taxing costs. In the following pages it is not intended to treat the subject of costs in general, but only the taxation thereof as of right, as it comes up before the taxing officer upon the entry of judgment or otherwise. The treatment of the subject-matter is such as to be of practical value to the attorney. Cases are used to illustrate the various rules and statutes governing the taxation of costs. The text employed, therefore, is in most instances a verbatim statement of the law as enunciated by the court rendering the decision, or an excerpt of the official headnote of the case. It is for that reason authoritative, and attorneys will find it unnecessary to refer to the books where the cases are reported. Costs in law actions allowed to litigants are statutory, and these statutes are set forth in connection with the decisions interpreting them. The forms are intended to be of practical value and were prepared for use in the actions specified. The lists of itemized costs and disbursements refer to the 761325 vi PREFACE individual statutes or laws authorizing them, and should be of great assistance to the practitioner. Only leading cases are cited upon undisputed ques- tions, but where there is a variance of decisions, the leading cases of both sides are discussed, and the general rule of law usually followed by a majority of the courts stated. I want to express my appreciation of the valuable sug- gestions of Joseph Harvis and of the able assistance given me by Thomas J. Sullivan. Mr. Sullivan's long experi- ence as law clerk and taxing officer of the City Court of the City of New York has been of inestimable value to me. This book is intended to be a ready reference and is, therefore, concise and brief without loss of accuracy or comprehensiveness. ELIAS LOEWENKOPF, 115 BROADWAY, CITY. CHAPTER I TAXING COSTS IN GENERAL 1. General appearance necessary to obtain allowance of costs. 2. Statutory costs in law actions. 3. Actions in equity. 4. Clerk must follow statute or order of the court in taxing costs. 5. There must be a verdict, etc., before costs may be taxed. 6. When clerk's taxation not disturbed. 7. Clerk must examine bill carefully. 8. Power of clerk to adjourn taxation. 9. Costs belong to party. 10. When clerk is doubtful whether action is in tort or contract. 11. Clerk not to dismiss taxation. 12. Dismissal of taxation. 13. Retaxation. (a) Costs reduced on taxation. 14. Review of taxation by the court. 15. When re taxation not required after review by court. 16. Appeal from judgment does not prevent retaxation on the merits. 17. Clerk must tax bills of several defendants when presented. 1 8. Only items objected to are reviewable by the court. 19. Judgment incomplete without inserting costs therein. 20. Stipulation as to costs. 21. Two or more actions tried as one. 22. Only one bill of costs against several defendants. 23. When defendant succeeds against one of several plaintiffs. 24. Interest on verdict forms no part of bill of costs. 25. Abatement of action. vii viii CONTENTS CHAPTER II COSTS BEFORE NOTICE OF TRIAL 26. Statutory provisions. 27. Nature of actions within 420 of the Code of Civil Pro- cedure. 28. Not taxable on demurrers. CHAPTER III COSTS AFTER NOTICE OF TRIAL 29. Item may be taxed once only. 30. When more than one charge is allowed. 31. Effect of return of notice of trial. 32. Failure to place cause on the calendar. CHAPTER IV TRIAL FEE 33. In general. 34. On dismissal of action. 35. On discontinuance of action. 36. Cause on short cause calendar sent back to general calendar. 37. Mistrial. 38. Disagreement of jury. 39. Withdrawal of juror. 40. Inquest. 41. Cause sent to referee. (a) Reference to admeasure dower. (b) Reference cancelled. 42. Stipulation that costs are to be the same as of another trial. 43. Additional costs for a trial lasting more than two days. 44. What constitutes period of trial. CONTENTS ix CHAPTER V TERM FEES 45. Statutory provisions. 46. Cause must be necessarily on the calendar. 47. Stay of proceedings. 48. Term fees allowed although notice was filed by adversary. 49. Fee for one term only in the City Court. 50. No costs allowed for term at which cause is tried or dis- posed of. 51. Effect of amendment of pleadings on term fees. 52. Adjournment to other terms on consent. 53. No term fee allowed in Appellate Term of the Supreme Court. 54. Term fees in other appellate courts. CHAPTER VI DISMISSAL OF COMPLAINT 55. Costs are statutory. 56. Trial fee allowed. 57. Costs to each of several defendants. 58. Dismissal as to one of several defendants. CHAPTER VH DISCONTINUANCE OF ACTION 59. Costs to date are statutory. 60. Costs before and after notice of trial allowed. 61. No trial fee nor disbursements allowed. 62. When trial fee may be allowed. 63. When no term fee allowed. 64. When allowed without costs. 65. Consolidation of actions. 66. No judgment for costs to be entered on discontinuance of action. x CONTENTS CHAPTER VIII DEMURRERS AND INTERLOCUTORY JUDGMENTS 67. Statutory provisions. 68. When entitled to allowance of costs. 69. When nominal damages are demanded. 70. As a contested motion. 71. As a trial of an issue of law. 72. When demurrer is sustained or overruled in whole. 73. Demurrer to one of several defenses or counterclaims. 74. On entry of interlocutory judgment. 75. Disbursements. 76. Full bill allowed on failure to plead over. 77. Costs of interlocutory judgment contained in final judg- ment. CHAPTER IX MOTIONS AND SPECIAL PROCEEDINGS 78. Motion costs allowed in the discretion of the court. 79. When "with costs" does not include disbursements. 80. Costs in special proceedings. 81. Must be a final decree or order in a special proceedings. 82. When 3240 is applicable. CHAPTER X COST FOR PROCEEDINGS AFTER THE GRANTING OF AND BEFORE NEW TRIAL 83. Statutory provisions. 84. Where verdict is set aside and new trial ordered. 85. Verdict set aside because of misconduct of jury. 86. Reversal of judgment by appellate court. 87. On opening an inquest no costs allowed. 88. Nor after disagreement of jury. 89. Restoring cause to day calendar. 90. Item taxable more than once. CONTENTS xi 91. Costs allowed are the same as on an appeal. 92. Motion is made on a case. 93. What a case consists of. . 94. Entitled to costs of motion in addition to costs on appeal from judgment. 95. Appeal costs follow as a matter of course. CHAPTER XII TAXATION OF COSTS PREVIOUSLY PAID AS TERMS 96. Costs paid as terms on amendment of pleadings cannot be taxed again. 97. Items of costs paid as terms allowed to be taxed again by successful party. 98. Where terms allowed is an amount equal to costs. 99. Payment of costs on opening default. 100. Costs accrued before amendment of pleadings not taxable on final judgment. CHAPTER XIII APPEALS 101. Statutory provisions. 3251, subds. 4 and 5. 102. Case on appeal must be perfected. 103. More than one appeal in one case. 104. Simultaneous appeal from judgment and order. 105. When costs of trial need not be retaxed. 106. Costs in all courts on entry of final judgment. 107. Amount of recovery less than $50. 1 08. Dismissal of appeal. 109. Motion costs of appeal need not be taxed. 1 10. Costs in judgment of affirmance. in. Costs of appeal to be set off on entry of final judgment. 112. An appearance in the appellate court subjects a party to costs therein. xii CONTENTS \ 1 13. Objection to appeal costs. 114. Costs on appeal from an interlocutory judgment of the City Court. 115. Interlocutory judgment reversed. 116. Interlocutory judgment affirmed. 117. Demurrer heard as a contested motion. 1 1 8. Only one bill against several respondents. IIQ. Motion for new trial made at close of trial. 1 20. Appeal from order granting new trial on newly discovered evidence. 121. Appeal from order. 122. Costs of appeal from order same as motion costs. 123. Costs include disbursements. 124. Costs on reargument of appeal. 125. Submission of papers same as argument. 126. Reargument on disqualification of judge. 127. Motion costs granted in appellate court. 128. Costs of reargument when same is referred. 1 29. Costs as awarded in Court of Appeals. 130. "Costs" as used in undertakings. 131. Costs for making and serving a case in Court of Appeals not taxable. 132. Costs for case on appeal to be taxed by appellant only. 133. Costs on dismissal of appeal. 134. Costs in certiorari proceedings. 135. Costs to abide the event. 136. Construed to include all costs in the action. 137. Construed as costs in appellate court only. 138. Party finally successful entitled to tax them. 1383. When appeal costs may be taxed. CHAPTER XIV ACTIONS RELATING TO REAL PROPERTY 139. Right to costs not limited to amount of recovery. 140. Title to property must be in question. 141. Plaintiff must obtain an affirmative judgment. CONTENTS xiii CHAPTER XV ACTIONS FOR ASSAULT, SLANDER, ETC. 142. Statutory provisions. CHAPTER XVI ACTIONS IN REPLEVIN 143. Statutory provisions. 144. Costs dependent on amount of recovery. 145. Allowance of costs. 146. Costs disallowed. 147. When recovery is within 3228, subdivision 5, of the Code. CHAPTER XVII ACTIONS TO RECOVER SUM OF MONEY ONLY 148. Recovery of $50 or more. 149. Recovery less than $50. CHAPTER XVIII ALLOWANCE OF COSTS WHEN RECOVERY COMES WITHIN 3228, SUB- DIVISION 5, OF THE CODE 150. Statutory provisions. 151. Allowance of costs dependent upon place of service. 152. Meaning of "triable." 153. When amount of recovery brings cause within section. 154. No allowance on voluntary appearance of defendant. 155. When costs allowed on voluntary appearance of defendant. 156. Subdivision does not apply to appeal costs. 157. Effect of subdivisions 4 and 5 of 3228 and 3229. xiv CONTENTS CHAPTER XIX DEFENDANT ENTITLED TO COSTS 158. Statutory provisions; 3229. 159. When one of several defendants obtains judgment. 1 60. Where attorney for defendant is public official. CHAPTER XX PARTIAL RECOVERY BY BOTH PARTIES IN SUIT OF SEVERAL CAUSES OF ACTION 161. Statutory provisions; 3234. 162. Allowance of costs to both plaintiff and defendant. 163. When defendant not entitled to costs. 164. When counterclaim is interposed by defendant, prevailing party entitled to costs. CHAPTER XXI DRAWING INTERROGATORIES AND TAKING DEPOSITIONS 165. Statutory provisions as to drawing interrogatories. 1 66. Only one fee of ten dollars taxable. 167. Where more than one fee may be charged. 1 68. Statutory provisions as to taking depositions. 169. Fees are statutory and follow issuance of commission. 170. Deposition by stipulation. 171. Fee follows general costs. 172. One fee allowable where one order is issued. 173. Where several parties obtain orders. 174. Allowance of costs although examination is waived. 175. Costs allowed although order was obtained by adverse party. 176. No allowance of costs where officer other than commis- sioner takes deposition. CONTENTS xv CHAPTER XXII ADDITIONAL ALLOWANCE TO PLAINTIFF ON FORECLOSURE, ETC. (177. Statutory provisions. 178. How value of property is fixed. 179. Limitation of allowance to two thousand dollars defined. CHAPTER XXIII WHEN DEFENDANT ENTITLED TO INCREASED COSTS ! 1 80. Statutory provisions. 181. Increased costs allowed in actions against sheriff. 182. Not allowed in actions on bond of officer. 183. Writ of certiorari not within the section. 184. Allowance of increased costs includes costs on appeal. CHAPTER XXIV OFFER OF JUDGMENT i 185. Statutory provisions. 1 86. Plaintiff's acceptance of offer. i86a. When offer must be made. i86b. Withdrawal of offer. 187. Recovery by plaintiff in excess of offer. i87a. When counterclaim is interposed. i87b. On foreclosure of mechanic's lien. 1 88. When defendant entitled to costs. 189. When recovery is reduced so as to be less than the offer. 190. Confession of judgment. CHAPTER XXV REFEREE'S FEES 1 191. Statutory provisions. 192. Without stipulation only legal fees are taxable. 193. Effect of stipulation on fees. xvi CONTENTS 194. Several actions tried together. 195. Entitled to fees for every day of attendance. 196. Fee allowed for preparation of report. 197. Where no fee will be allowed. 198. Attorneys of parties may enter into stipulation. 109. Report of referee must be filed as prescribed. 200. Misconduct of referee. CHAPTER XXVI EXECUTORS AND ADMINISTRATORS 201. Statutory provisions. 202. Entitled to a complete trial. 203. Unreasonably resisting claim. 204. Certificate of judge or referee must be furnished. 205. When taxation against an executor or administrator allowed. 206. When executors and administrators are liable for appeal costs. 2o6a. Exemption from payment of costs limited. CHAPTER XXVII FORMA PAUPERIS 207. Statutory provisions. 208. Order must be presented on taxation or served on adverse party. 209. When costs may be taxed. 210. Not relieved from payment of costs accured prior to grant- ing of order. 211. In appellate court. 212. Costs of an unsuccessful appeal taxable. 213. When recovery is less than $50. CHAPTER XXVIII DISBURSEMENTS 214. Statutory provisions. 215. Authority of taxing officer to tax disbursements. CONTENTS xvii 216. Affidavit as to disbursements must accompany bill of costs. 217. An award of costs includes disbursements. 218. Clerk's taxation of disbursements not disturbed. 219. Service of summons. (a) Additional costs for additional defendants. (b) Effect of voluntary appearance. 220. Disbursements for service of subpoena not allowed. 221. Premiums paid on bond or undertaking not taxable. 222. Disbursements for official searches allowed. 223. Stenographer's fees. 224. Stenographer's minutes to prepare amendments. 225. Minutes to be used on another trial. 226. Disbursements for minutes allowed when procured by direction of court. 227. Stipulation as to payment of stenographer's fees. 228. Stenographer's fees on a reference. 229. Excess rate nor transcript of summation allowable. 230. Printing may be allowed on appeal from order. 231. Proof of expense incurred to be submitted. 232. Appeal of several defendants on same papers. 233. Same document used in several actions. 234. No allowance to be made for service of papers on attorney. 235- Jury fees. CHAPTER XXIX DISBURSEMENTS FOR ATTENDANCE OF WITNESSES 236. Statutory provisions. 237. Affidavit must accompany the bill of costs for attendance of witnesses. 238. Stipulation by parties as to fees. 239. Witness subpoenaed but not called to testify. 240. Witness fees allowed for (a) Adverse party. (b) Stockholder of corporation. (c) Officer of corporation. xviii CONTENTS 241. Witness fees disallowed for (a) Party in the action. (b) Co-defendant. (c) Attorney of record. 242. Expert testimony. 243. Allowance of mileage, affidavit of mileage necessary. 244. Mileage allowed one way once only. 245. Mileage computed from place of actual residence. 246. Mileage allowed for foreign witness. 247. Fees must appear to have been paid or will be paid. 248. Testimony taken at residence of witness. CHAPTER XXX 249. Disbursements not included in motion costs. CHAPTER XXXI COLLECTION OF COSTS 250. Execution against property. 251. Supplementary proceeding. 252. Motion costs. 253. Contempt proceedings. 254. Matrimonial actions. 255. Attorney's lien for costs. 256. Execution against the person. 257. Mandamus. ADDENDA Sheriff's fees page 146 Bronx County, Clerk's Fees page 148 Kings County, Clerk's Fees page 149 Costs itemized page 1 50 Disbursements itemized page 151 Forms of bills of Costs page 1 56 INDEX TO CASES CITED References are to sections A Adams v. Massey, 51 Misc. 230 137 Agricultural Ins. Co. v. Bean, 45 How. Pr. 444 8, 237 Agar v. Tibbets, 56 Hun, 272 64 Ahrens v. Coleman, 66 Misc. 569 244 Allen v. Wells Fargo Co., 95 N. Y. S. 597 19 Alexander v. Hard, 42 How. Pr. Rep. 131 140 Allen v. Glass, 60 Hun, 546 186 Alexander v. Henry, L. J. Feb. 24, '15 24ia Allison v. Board of Education, 26 A. D. 208 257 Andrews v. Schnitzler, 48 Sup. Court Rep. 173 48 Andrew v. Cross, 1 7 Abb. N. C. 92 99 Anderson . De Braekeleer & Co., 25 Misc. 343 228 Audenried v. Wilson, 2 N. Y. Weekly Digest, 108 21, 42 Auerbach v. Ramor, L. J. Feb. 20, '15 164 Averil v. Patterson, 10 N. Y. 500 64 Anderson v. A. E. Norton, Inc., 158 N. Y. S. 152 66 B Bailey v. Stone, 41 How Pr. 346 S Babcock v. Smith, 19 N. Y. S. 817 256 Barry v. Third Ave. R. R. Co., 87 A. D. 543 9 Basso v. Basso, 19 Abb. N. C. 173 73 Bannerman v. Quackenbush, 17 Abb. N. C. 103 188 Ball v. Doherty, 144 A. D. 277 189 Bankers Money Order Ass. v. Nachod et al., 125 A. D. 373 . . 252 Benner v. Benner, 12 N. Y. S. 472 68 Berrent v. Simpson, 61 Misc. 611 106, 137 Beardsley Scythe Co. v. Foster, 36 N. Y. 561 no Benjamin v. Brownstein, 79 Misc. 84 121 Belt v. Am. Central Ins. Co., 33 A. D. 239 137 xix xx INDEX TO CASES CITED References are to sections Beil v. Supreme Council, 42 A. D. 168 188 Benjamin r. VerNooy, 168 N. Y. 578 202, 206 Bernard v. Cowen, 82 Misc. 384 252 Bick r. Reese, 52 Hun, 125 221 Block t 1 . Linsley, 40 Misc. 184 39, 89 Bley v. Village of Hamburg, 84 A. D. 23 82 Bloomingdale v. Steubing, 35 N. Y. S. 1074 140 Blashfield v. Blashfield, 41 Hun, 249 162 Blank r. Spies, 62 N. Y. S. 1039 195 Boissevain v. Pope, L. J. Aug. 28, '09 41 Bowen i 1 . Sweeney, 66 Hun, 42 46 Bowen r. Holdredge, 134 A. D. 855 141 Booth v. H. S. Kerbaugh, 143 N. Y. S. 624 244 Browning v . Brokaw, 1 14 A. D. 104 36 Brennan v. Joline, 70 Misc. 537 95, 120, 121, 227, 230 Brassington v. Rohrs, 3 Misc. 262 103 Broadway Savings Inst. v. Town of Pelham, 148 N. Y. 737. . 137 Bruck v. Lambeck, 63 Misc. 185 159 Browning v. Lake Erie & W. R. R. Co., 64 Hun, 513 162 Briggs v. Allen, 4 Hill, 538 163 Brick v. Fowler, 61 How. Pr. 153 193 Brush v. Kelsey, 47 A. D. 270 195 Brown v. Windmiller, 14 Abb. Pr. N. S. 359 196 Brown v. Sears, 23 Misc. 559 197, 227, 228 Brown r. Brockett, 55 How. Pr. Rep. 32 256 Brown r. Mapelson, 2 City Court Rep. 404 219 Burrows v. Butler, 38 Hun, 121 14 Buell v. Gray, 13 How. Pr. 31 22 Bullard v. Pearsall, 46 How. Pr. 530 104 Burnel v. Coles, 26 Misc. 378 123 Burgdorf v. Brooklyn, Queens Co., & S. R. Co., 130 A. D. 253 152 Burns r. D., L. & W. R. R. Co., 63 Hun, 19 163 Burns r. D., L. & W. R. R. Co., 135 N. Y. 268 166, 169, 171, 172, 176, 215 Butterly v. Deering, 69 Misc. 75 196 Burt v. Oneida Community, 59 Hun, 234 238 Burkle r. Luce, i N. Y. 239 184 INDEX TO CASES CITED xxi References are to sections C Cassidy v. McFarland, 139 N. .Y. 208. . .4, 53, 79, 122, 230, 249 Cassidy v. McFarland, 2 Misc. 189 \ . . . 123 Carter v. Builders Const. Co., 134 A. D. 553 4 Candee v. Ogilvie, 5 Duer, 658 46 Cassavoy v. Pattison, 101 A. D. 130 77, 252 Capozzi v. Bulkly, 156 A. D. 55 84, 106 Cahil v. Mayor, 50 A. D. 276 96 Campbell v. Hallihan, 46 Misc. 409 114, 115 Case v. Price, 17 How. Pr. Rep. 348 2193, Catlin v. Adirondack Co., 20 Hun, 19 256 Cheever v. Pittsburg S. & L. E. R. Co., 26 N. Y. S. 829 24oc City Tax Lien Co. v. Murray, 91 Misc. 119 4ia Claflin v. Robinson, 6 N. Y. S. 430 59 Clegg v. Aiken, n State Rep. 354 215 Clinton v. South Shore M. G. & F. Co., 61 Misc. 339 252 Collomb v . Caldwell, 5 How. Pr. 336 14 Coddington v. Scott, 21 N. Y. S. 473 22 Cole v. Lowery, 23 N. Y. S. 674 34, 56 Comstock v. Halleck, 4 Sandford, 671 48 Cohn v. Huson, 3 How. Pr. N. S. 130 97 Cooley v. Cummings, 4 N. Y. S. 530 139 Collins v. Adams, 4 N. Y. S. 217 140 Coatsworth v. Ray, 52 N. Y. S. 498 189 Cornwell v. Sheldon, 134 A. D. 58 204 Corning v. Radley, 25 Misc. 318 i86a Coyle v. Third Ave. R. R. Co., 19 Misc. 345 209 Crotty v. De Dion Bouton M. Co., 102 A. D. 405 14 Crossley v. Cobb, 37 Hun, 271 14 Crasto v. White, 52 Hun, 473 76 Crossley v. Cobb, 42 Hun, 166 163 Grain v. Holcomb, 2 Hilton, 269 164 Cusick v. Adams, 47 Hun, 455 119 D Dame v. Maynard, 139 A. D. 385 33, 4ia Davis v. Grand Rapids Fire Ins. Co., 5 A. D. 36 92 xxii INDEX TO CASES CITED References are to sections Dayton v. Parke, 67 Hun, 137 187 Davids v. Brooklyn Heights R. Co., 92 N. Y. S. 220 256 Davids v. Brooklyn Heights R. Co.", 104 A. D. 23 256 Deyo v. Morss, 21 Misc. 497 46, 52 Delcomyn v. Chamberlain, 48 How. Pr. 409 223 Dodd v. Curry, 4 How. Pr. 1 23 34 Dovale v. Ackerman, 24 Abb. N. C. 214 97 Dobeck v. Austro-American S. S. Co., 83 Misc. 641 137 Doremus v. Crosby, 66 Hun. 125 178 Douglas v. Smith, 19 N. Y. S. 630 199 Dowd v. Smith, 8 Misc. 619 i87a Duprey v. Phoenix, i Abb. N. C. 133, note 62 Dunphy v. Callahan, 126 A. D n 205 Dunn v. Arkenburg, 62 N. Y. S. 861 2o6a Egan v. Interborough Rapid Tr. Co., L. J. June 12, '15 44 Ellsworth v. Gooding, 8 How. Pr. i 38 Elliot v. Luengene, 19 Misc. 428 138 Elwin v. Routh, i Civ. Pro. Rep. 131 209 Ennis v. Wilder, 14 Weekly Dig. 211 54 Enright v. Shalvey, i City Ct. Rep. 58 181 Equitable L. Ass. Soc. v. Hughes, 125 N. Y. 106 222, 223 Evans v. Silberman, 7 A. D. 139 14, 63, 165 Evans v. Ferguson, 10 Civ. Pro. Rep. 57 44 Everson v. Gehrman, 10 How. Pr. 301 188 F Farley v. 16 Bottles of Champagne, 153 A. D. 502 82 Feiber v. Home Silk Mills, L. J. Nov. 10, '14 7, 53, 132 Fink v. Stachelberg, 86 N. Y. S. 20 36 Finkel v. Kohn, 53 N. Y. S. 694 196 Finkenmaur v. Dempsey, 8 Civ. Pro. Rep. 418 256 First N't'l Bank of M. v. Fourth N't'l Bank of N. Y., 84 N. Y. 469. . . 137, 138 Flor v. Flor, 73 A. D. 262 254 INDEX TO CASES CITED xxiii References are to sections Fordyce v. Wolff, L. J. May 7, '15 13 Fourteenth Street Bank v. Strauss, 54 Misc. 588 18 Fox v. Davidson, 40 A. D. 620 100 Forstman v. Schulting, 42 Hun, 643 253 Franey v. Smith, 126 N. Y. 658 136 Friedman v. Borchard, 161 A. D. 672 222 Fulton v. Krull, 151 A. D. 143 137 Fuller Buggy Co. v. Waldron, 49 Misc. 278 234, 24ib G Garret v. Wood, 61 A. D. 293, 294 72, 73, 74, 76 Garrison v. Garrison, 67 How. Pr. 271 '. . . . 188 GalHnger v. Engelhardt, 26 Misc. 49 130 Gaetjens v. City of New York, 145 A. D. 640 149 Gilmartin v. Smith, 6 N. Y. Sup. Ct. 684 13 Gilroy v. Badger, 58 N. Y. S. 1 106 36 Girberkian v. Costikyan, 126 A. D. 813 153 Gilbert v. Deshon, 16 N. Y. S. 36 192 Gilmour v. Stettler, 58 Misc. 361 225 Goodkind v. Met. St. R. Co., L. J. June n, '04 44 G. P. Putnam's Sons v. Picket, 152 A. D. 814 151 Grant v. Pratt & L., no A. D. 149 97 Greenwald et al. v. Weir, 131 A. D. 568 106 Gregory v. Cryder, 10 Abb. Pr. N. S. 289 199 Guckenheimer v. Angevine, 16 Hun, 453 124 Guttroff v. Wallach, 3 Misc. 136 i86a H Hackett v. Edwards, 22 Misc. 659 i86b Hagar v. Danforth, 8 How. Pr. 448 46 Hakonson v. Met. St. R. Co., 40 Misc. 182 . 247 Hallet v. Hallet, 10 Misc. 304 64 Hall v. Hodskins, 30 How. Pr. 15 139 Hall v. Dusenbury, 38 Hun, 125 182 Hammer v. Schreiber, L. J. Dec. 10, '12 31 Hamilton v. Butler, 19 Abb. Pr. 446 38 xxiv INDEX TO CASES CITED References are to sections Hamilton v. Wentworth, 27 N. Y. Sup. Ct. Rep. 654 88 Hanna v. Dexter, 15 Abb. 135 186 Harris v. Wiener, L. J. Nov. 20, '15 99 Hauselt v. Godfrey, 3 Civ. Pro. Rep. 116 21 Hausauer v. Machawich, 54 A. D. 23 145 Hascall v. King, 165 N. Y. 288 129 Hawley v. Davis, 5 Hun, 642 40, 186 Havemeyer v. Havemeyer, 48 Sup. Ct. Rep. 104 97 Hayden v. Hayden, 8 A. D. 547 212 Hewitt v. City Mills, 136 N. Y. 211, p. 213 i3a Herzfeld v . Reinach, 57 N. Y. S. 669 51 Herman v. Gervin, 8 A. D. 418 146 Heller v. Katz, 62 Misc. 266 188 Herzberg v. Elvidge, 80 Misc. 290 200, 223 Herrmann v. Herrmann, 88 A. D. 77 225 Hill v. Muller, 53 Misc. 262 28, 74, 113, 116, 127, 219 Himberg v. Rogers, 40 Misc. 190 59 Hicox v. New Yorker Staats Zeitung, 23 Civ. Pro. Rep. 87. . . 65 Hill v. McMahon, 81 A. D. 324 141 Hill v. Kann, 50 Misc. 360 153 Hirshspring v . Boe, 20 Abb. N. C. 402 186, 188 H. G. Vogel v. Reinhardt, L. J. Dec. i, '15 86 H. G. Vogel i). Reinhardt, 89 Misc. 608 97 H. G. Vogel v. Wolff, 160 A. D. 831 117 Hoepfner v. Barzlay, L. J. Sept. 30, '02 32 Howell v. Van Siclen, 8 Hun, 524 137 Hoornbeck v. Baker, L. J. Feb. 7, '14 147 Hewlett v . Brown, 7 Abb. Pr. 74 24oa Hudson v. Erie R. R. Co., 57 A. D. 98. . 29, 43, 85, 88, 225, 235 Hubbard v. Heinze, 145 A. D. 828 154 Hyde v. Anderson, 112 A. D. 76 66-252 I Inderlied v. Whaley, 17 Civ. Pro. Rep. 377 237 Isaacs v. Kobre, L. J. March 6, '14 51 INDEX TO CASES CITED xxv References are to sections J Jacobs v. Feinstein, 133 A. D. 416 57 Jacob v. White, 164 A. D. in 155 Jermain v. Lake Shore & M. S. R. Co., 31 Hun, 559 233 Johnson v. Fellows, 6 Hill, 353 162 Johnson v. N. Y. Elevated R. Co., 10 Misc. 136 226 Johnson v. Sager, 10 How. Pr. 552 187 Johnston v. Catlin, 57 N. Y. 652 . . . . 188 Jones v. Emery, i Civ. Pro. Rep. 338 2 K Kantrowitz v. Kulle, 13 Civ. Pro. Rep. 74 188 Kantz v. Vandenburgh, 28 N. Y. S. 1046 i87a Kane v. Met. El. R. R. Co., 7 N. Y. S. 653 231 Kane v. Rose, 87 A. D. 101 253 Kaplan v. Olsen, 118 N. Y. S. 634 17 Keiser v. Schreier, L. J. Nov. 3, 1916 page 147 Kesner v. Greenfield, L. J. March 31, '15 58 Kennedy v. Jarvis, 126 A. D. 551 24ic Keyes v. Lestershire Heights Ry Co., 158 N. Y. S. 617 ... 70, 117 Kiernan v. Agricultural Ins. Co., 3 A. D. 26 i88b Knowlton v. Pierce, 41 How. Pr. 361 23 Kniering v. Lennon, 3 Misc. 247 73 Knapp v. Murphy, 20 A. D. 83 256 Koch v. Koch, i City Ct. Rep. 255 21 Kohn v. Man. R. Co., 8 Misc. 421 239 Krause v. Averill, 66 How. Pr. Rep. 97 i Kramer v. Wien, L. J. Feb. 20, '15 27 Kramer v. Barth, 79 Misc. 80 70 Kummer v. Christopher & T. St. Ry. Co., 33 N. Y. S. 581 . 20, 88 L Lange v. Schile, in A. D. 613 10 LaRosa v. Wilner, 54 Misc. 574 18, 156 LaFarge v. Chilson, 3 Sandf. 752 188 Lansing v. Lansing, 41 How. Pr. 248 254 xxvi INDEX TO CASES CITED References are to sections Levitas v. Hart, 117 N. Y. S. 1027 14 Levine v . Klein, 66 Misc. 571 90 Lennon v. Mclntosh, 19 Abb. N. C. 175 98 Lennon v. Chang, 54 Misc. 298 107, 149 Leyden v. Brooklyn H. R. R. Co., 122 A. D. 383 153 Lee Injector M'f'g Co. v. Penberthy Inj. Co., 109 Fed. Rep. 964 221 Lindbald v. Lynde, 81 A. D. 603, p. 605 100 Littauer v. Stern, 177 N. Y. 233 I L. I. Contracting Co. v. The City of N. Y., 142 A. D. i 224 Ljunquist v. Hartmetz, 54 Misc. 87 58, 159 Loring v. Morrison, 25 A. D. 139 t 186 Louis v. Empire State Ins. Co., 75 Hun, 364 28, 71, 75 Locklin v. Casler, 50 How. Pr. 43 139 Lockwood v. Waldorf, 36 N. Y. S. 199 146 Louisville Lumber Co. v. Smith, 154 A. D. 386 221 Losaw v. Smith, 109 A. D. 754 256 Lyman v. Young Men's Cosm. Club, 38 A. D. 220 14 Lyons v. Murat, 54 How. Pr. Rep. 368 210 M Mahon v. Mahon, 64 A. D. 262 108 Marsh v, Graham, 19 Misc. 263 72 Marx v. Gross, 22 N. Y. S. 387 96 Margulies v. Damrosch, 51 N. Y. S. 833 109 Malcolm v. Hamill, 65 How. Pr. 506 125 Mangin v. Dinsmore. 47 How. Pr. n 186 Mark v. Buffalo, 87 N. Y. 184 193, 198, 238, 242 Marshall v. Meech, 51 N. Y. 140 255 Matter of Babcock, 86 A. D. 563 79, 81, 82, 123, 217 Matter of Bensel, 143 A. D. 962 81 Matter of Brady, 145 A. D. 49 82 Matter of Brooklyn Union El. R. Co., 176 N. Y. 213 82 Matter of Bender, 86 Hun, 570 249 Matter of Hood, 30 Hun, 472 136 Matter of Hess, 48 Hun, 586 257 Matter of Kin, 139 A. D. 766 118 INDEX TO CASES CITED xxvii References are to sections Matter of Molinari, 82 Misc. 663 82 Matter of N. Y., L. & W. R. Co., 26 Hun, 592 82 Matter of Peterson, 94 A. D. 143 79 Matter of Perry, 131 A. D. 284 81 Matter of Smith, 161 A. D. 638, p. 642 24 Matter of School Street Nos. i & 2, 162 A. D. 158 82 Matter of Simmons, 71 Misc. 152 179 Matter of Stoddard, 128 A. D. 759 251 Matter of Van Dusen, 132 A. D. 592 79, 122 Matter of Wray Drug Co., 93 A. D. 456 133 Matter of Water Commissioners, 104 N. Y. 677 137 Matter of Young, 66 Misc. 216 82 Mead v. Tuckerton, 105 N. Y. 557 193, 195 Megrue v. Megrue, 160 A. D. 817 193, 227 Miller v. City of Buffalo, 129 A. D. 833 106 Midbury v. Butternuts, & S. T. Co., i How. Pr. 231 2400 Miller v. Woodhead, 5 N. Y. S. 88 256 MoUne Auto Co. P. DeLamater&B. Auto Co.,L. J. 3/3i/'i5.35, 62 Mott v. Consumers Ice Co., 8 Daly, 244 38, 136 Mossein v. Empire State Surety Co., 117 A. D. 782.. .50, 51, 106 Moraff v. Kohn, 157 A. D. 648 151 Moosbrugge v. Kaufman, 7 A. D. 380 163 Morgenthaler v. Carlin, 132 A. D. 361 193 Morse v. City of Troy, 38 Hun, 301 212 Murdock v. Adams, 10 Hun, 566 n Murtha v. Curley, 92 N. Y. 359 137, 148 Murthey v. Burke, 121 A. D. 400 148 Muller v . Brooklyn H. R. Co., 139 A. D. 727 252 Me McDermott v. Yvelin, 103 A. D. 418 16 McCarthy v. Innis, 61 Hun, 354 163 McEntyre v. Tucker, 40 A. D. /|/|1 100 McNally v. Rowan, 101 A. D. 342 i87a McVicar v. Keating, 19 A. D. 581 i86b McWilliams v. Dayton, 27 Misc. 828 68 McWhirter v. Bowen. 1 14 A. D. 68 112 xxviii INDEX TO CASES CITED References are to sections N Newhal v. Appleton, 4 Mo. Law Bui. 6 54 Newman v. Greif, 3 Civ. Pro. Rep. 362 170 New York Bank Note Co. v. Hamilton Bank N. Co., 75 N. Y. S. 520 200 Neugrosche v. Manhattan R. Co., i State Rep. 302 208 Nichols v. Moloughny, 85 A. D. i 217 Noble v. Crandel, 49 Hun, 474 I Norton v. Fancher, 36 N. Y. S. 1032 2 Norton v. Erie R. R. Co., 83 Misc. 159 37 Nobis v. Pollock, 18 Civ. Pro. Rep. i 54, 102 O O'Keefe v. Shipherd, 23 Hun, 171 20 O'Brien v. Commercial Fire Ins. Co., 38 N. Y. Sup. Ct. 4. . . 166 Obermeyer & L. v. Adinsky, 123 A. D. 272 253 Olifier v. Belmont, 24 Civ. Pro. Rep. 408 72 O'Loughlin v. Hammond & Co., 12 Civ. Pro. Rep. 171 237 O'Neil v. Mansfield, 47 Misc. 516 82 O'Rourke v. Degnon R. T. Improvement Co., 139 A. D. 695. 244 P Paine Lumber Co. v. Galbraith, 38 A. D. 68 I Pagano v. Lacobelli, L. J. Jan. 22, '14 34, 56 Parker v. Baxter, 19 Hun, 410 199 Parkinson v. Scott, 5 Misc. 261 209 Park t>. N. Y. C. & H. R. R. Co., 33 Misc. 320 224 Park v. N. Y. C. & H. R. R. Co., 57 A. D. 569 224 Patrick v. N. Y. State Ry. Co.. 85 Misc. 473 30 Patterson v. Woodbury Derm. Inst., 117 A. D. 600 157 Penfield v. James, 4 Hun, 69 14 Petrakion v. Arbeely, 23 Civ. Pro. Rep. 183 68 Penfield v. City of N. Y. et a/., 102 N. Y. S. 784 74 Perkins v. Brainard, 1 1 Misc. 337 93 Pease v. Penn. R. R. Co., 137 A. D. 459 94, 104 Peck v. Haverstraw Water Supply Co., 81 Misc. 428 141 TABLE OF CASES CITED xxix References are to sections Perkins v. Heert, 14 Misc. 425 178 Ferine v. Wiggins, 18 Civ. Pro. Rep. 172 i86a People v. Newcomb, 75 Misc. 258 25 People v. Keller, 35 Misc. 785 146 People v. Quiggley, 75 Misc. 151 179 People v. Town Auditors, 42 A. D. 250 183 People v. Bank of Staten I., 70 Misc. 637 197 People ex rel. v. Barker, 90 Hun, 254 134 People ex rel. v. Pratt, 50 State Rep. 355 134 Pfister v. Sturnm, 7 Misc. 526 i87b Phipps v. Carman, 23 Hun, 150 199 Philbrook v. Kellogg, 21 Hun, 238 256 Pike v. Nash, 16 How. Pr. 53 .' 244 Pinckney v. Childs, 7 Bosw. 660 186 Porter v. Cobb, 25 Hun, 184 184 Post v. N. Y. Central R. R. Co., 12 How. Pr. 552 186 Pomeroy v. Huhlin, 7 How. Pr. Rep. 161 186 Pratt v. Allen, 16 How. Pr. 450 22 Price v. Price, 61 Hun, 604 41 Pratt v. Clark, 124 A. D. 248 224, 229 R Raff v. Koster Bial & Co., 27 Misc. 47 216 Ranney v. Russell, 3 Duer, 689 186 Ranzenhoffer v. Barrere, L. J. Sep. 30, 1916 32 Rapid Safety Filter Co. v. Wyckoff, 20 Misc. 429 144, 146 Rathbone v. McConnel, 21 N. Y. 466 140 Regelman v. The South S. T. Co., 67 Misc. 590 i Reilly v. Lee, 33 A. D. 201 163 Reichel v. N. Y. C. & H. R. R. Co., 18 Civ. Pro. Rep. 256. . 248 Re Hess, 48 Hun, 586 257 Rieger v. Swan, 2 Misc. 467 18 Rich v. Roberts, 18 Civ. Pro. Rep. 205 ' 188 Richardson v. Richardson, 5 Paige, 58 210 Ridabock a. Met. El. R. R. Co., 8 A. D. 309 224 Rinaldo v. Cowen, 22 N. Y. S. 1075 60 xxx INDEX TO CASES CITED References are to sections Robert v. Aden, 2 City Court Rep. 302 32 Rose v. Swarthout, 73 Misc. 583 6, 167, 218, 222 Roome v. Jennings, 3 Misc. 413 69 Rowe v. Gerry, 109 A. D. 156 100 Robertson v. Rochester Folding Box Co., 68 A. D. 528 126 Rohrs v. Rohrs, 72 Misc. 108 164 Rothery v. N. Y. Rubber Co., 90 N. Y. 30 242 Rudd v. Cropsey, L. J. Dec. 6, '15 30 S Salerno v. Vogt, 78 Misc. 64 189 Saffier v. Haft, 86 A. D. 284 256 Schum v. City of Rochester, 16 Civ. Pro. Rep. 218 18 Schenck v. Fancher, 14 How. Pr. 95 64 Schmidt v. Mackie, 9 Weekly Digest, 288 Q& Schwartz v. Ribaudo, 63 Misc. 64 128- Scheu v. Blum, 1 19 A. D. 825 204 Schwinger v. Hickox, 46 How. Pr. 1 14 2igb Seifter v. Brooklyn Heights R. R. Co., 53 A. D. 443 2q, 30 Seneca N't'l Bank v. Hawley, 32 Hun, 288 96 Seymour v. Wheeler, 137 A. D. 52 152 Seldin v. Block, 153 N. Y. S. 980 156 Senter v. Petheram, 64 Misc. 294 1 79 Seasongood v. Elevated R. R. Co., 46 N. Y. State Rep. 832.. 223 Shufelt v. Power, 13 How. Pr. 89 47 Shaver v. Eldred, 86 Hun, 51 131 Sipperly v. Warner, 9 How. Pr. 332 46, 47 Singer M'f'g Co. v. Granite Spring W. Co., 67 Misc. 575 70 Sinne v. City of N. Y., 8 Civ. Pro. Rep. 252n 242 Smith v. Walker, 131 N. Y. S. 676 J 45 Smith v. Servis, 59 Hun, 552 170 Smith v. Cooper, 30 Hun, 395 - 181 Smith v. Kerr, i N. Y. S. 454 i8& Smith v. Dunn, 94 A. D. 429 193. Smith v. Hutton, 134 A. D. 445 243, 245 Smith v. Cayuga Lake Cement Co., 107 A. D. 524 255 INDEX TO CASES CITED xxxi References are to sections Smith v. Duffy, 8 N. Y. Civ. P. Rep. 191 256 Smith v. Sheldon, 94 A. D. 497 i87a Studwell v. Baxter, 33 Hun, 331 61 Starr Cash C. Co. v. Reinhardt, 6 Misc. 365 97, 136, 138 Stanton v. King, 76 N. Y. 585 103 Streep v. McLoughlin, 36 Misc. 165 104 Stevenson v. Pusch, 40 How. Pr. 91 i n Stevens v. Central N't'l Bank, 168 N. Y. 560 137 Streat v. Wolf, 132 A. D. 873 150, 157 Stearns v. Titus, 1 14 A. D. 197 160 Steiner v. Ainsworth, 53 How. Pr. 31 173, 174, 175 Sturgis v. Spofford, 58 N. Y. 103 189 Starkweather v. Sundstorm, 113 A. D. 401 224 Sutphen v. Lash, 10 Hun, 120 35, 61 Swarthout v. Scheideberg, 68 Misc. 133 155 Syracuse Savings Bank v. Stokes, 71 Misc. 508 82 Syms v. Mayor, 105 N. Y. 153 104 T Talcott v. Jonasson, 42 Misc. 372 7, u, 12 Tallman v. Bernhard, 75 Hun, 30 68 Talcott v. The Wabash R. R. Co., 99 A. D. 239 105 Taaks v. Schmidt, 25 How. Pr. 340 237, 243, 246 Tillspaugh v. Dick, 8 How. Pr. 33 32, 48 Tillman . Keane, i Abb. N. S. 23 188 Third N't'l Bank of Syracuse v . McKinstry, 2 Hun, 443 41 Thompson v. Stanley, 22 Civ. Pro. Rep. 348 72, 75 Thomas v. Evans, 50 Hun, 441 138 Thayer v. Holland, 63 How. Pr. 180 164 Town of Pierrepont v. Loveless, 4 Hun, 681 220 Turkheim v. Thomas, 113 A. D. 123 28, 71 Turner v. Woolworth, 153 A. D. 293 254 U Union Trust Co. v. Whiton, 78 N. Y. 491 '137 Ury v. WUde, 3 N. Y. S. 791 164 xxxii INDEX TO CASES CITED References are to sections V Van Gelden v. Hallenbeck, 2 N. Y. S. 252 34 Van Gelden v. Hallenbeck, 18 State Rep. 19 54 Van Gelden v. Hallenbeck, 25 Civ. Pro. Rep. 333 181 Van Vliet v. Kanter, 139 A. D. 602 55 Van Allen v. Am. N't'l Bank, 10 Abb. Pr. N. S. 331 104 Vandever v. Warren, n Civ. Pro. Rep. 319 53 Valk v. Erie R. R. Co., 128 A. D. 470 176, 247 Vibbard v. Kruser Const. Co., 145 A. D. 673 15, 226 Veeder v. Mudgett, 27 Hun, 519 228 Vogt v. Oettinger, 88 Hun, 52 71 Von Schuckman v. Heinrich, 93 A. D. 278, p. 281 203 W Walker v. Johnson, 8 How. Pr. 240 i86a Wallnut Hill Bank v. N't'l Reserve Bank, 76 Misc. 208 137 Warren v. Warren, 203 N. Y. 250 178, 179 Warden v. Frost, 35 Hun, 141 189 Warren v. Chase, 8 Misc. 520 215 Ward v. Ward, 23 Civ. Pro. Rep. 61 249 Wasserman v. Benjamin, 91 A. D. 547 252 Washburne v. Oliver, 62 How. Pr. 482 44 Weiss et al. v. Morrel et al., 7 Misc. 541 40 Wessels v. Carr, 22 Abb. Pr. N. C. 464 87 Webb v. Nortin, 10 How. Pr. 117 108 Weltman v. Posenbecker, 19 Misc. 592 213 Weber v. Weber, 93 A. D. 149 252 Weill v. Weill, 18 Civ. Pro. Rep. 241 254 Whitlegge v. DeWitt, 12 Daly, 319 164 Wheeler v. Lozee, 12 How. Pr. 446 237 Wilkins v. Williams, 3 N. Y. S. 897 140 Wolff v. Horn, 9 Misc. 100 14, 198, 227, 238 Wolkoff v. Silverstein, L. J. Dec. 10, '13 49 Wood v. Excise Comm., 9 Misc. 507 184 Z Zinsser v. Herrman, 24 Misc. 689 249 TAXATION OF COSTS CHAPTER I TAXING COSTS IN GENERAL 1. General appearance necessary to obtain allowance of costs. 2. Statutory costs in law actions. 3. Actions in equity. 4. Clerk must follow statute or order of the court in taxing costs. 6. There must be a verdict, etc., before costs may be taxed. 6. When clerk's taxation not disturbed. 7. Clerk must examine bill carefully. 8. Power of clerk to adjourn taxation. 9. Costs belong to party. 10. When clerk is doubtful whether action is in tort or con- tract. 11. Clerk not to dismiss taxation. 12. Dismissal of taxation. 13. Retaxation. (a) Costs reduced on taxation. 14. Review of taxation by the court. 15. When retaxation not required after review by court. 16. Appeal from judgment does not prevent retaxation on the merits. 17. Clerk must tax bills of several defendants when pre- sented. 18. Only items objected to are reviewable by the court. 19. Judgment incomplete without inserting costs therein. 20. Stipulation as to costs. 21. Two or more actions tried as one. 22. Only one bill of costs against several defendants. 2 TAXATION OF COSTS 23. When defendant succeeds against one of several plain- tiffs. 24. Interest on verdict forms no part of bill of costs. 26. Abatement of action. 1. General appearance necessary to obtain allowance of costs. There must be a general appearance by the attorney or an appearance in fact by the party to entitle him to the allowance of costs. The service by an attorney of an order to show cause or notice of motion why an injunction should not be vacated is not a general appearance. Regelman v. The South S. T. Co., 67 Misc. 590; Paine Lumber Co. v. Goldbrant, 38 A. D. 68. Nor is a motion made to set aside a judgment considered a general appearance but a special appearance. Noble v. Crandel, 49 Hun, 474. An order extending time to answer is not equivalent to an appearance under section 421 of the Code of Civ. Pro. Krause v. Averill, 66 How. Pr. 97; Littauer v. Stern, 177 N. Y. 233. 2. Statutory costs in actions at law. Where the costs are statutory the court has no power to grant or withhold the same, and the additional words "with costs" are ineffective nor does "without costs" deprive the party of the right to costs. Jones v. Emery, i N. Y. Civ. Pro. Rep. 338; Norton v. Fancher, 36 N. Y. S. 1032. Motion costs are discretionary with the court and may be allowed or disallowed; they cannot, however, exceed $10 besides disbursements under the provisions TAXING COSTS IN GENERAL 3 of subdivision 3, par. 9 of section 3251 of the Code of Civil Procedure. 3. Actions in equity. In equity actions costs are discretionary with the court, except as limited in section 3230 of the Code which provides that the sum allowed should not exceed the total amount authorized by the statute. Where the judgment demands a sum of money only, section 3228 of the Code, subdivision 4 thereof, governs the statutory costs that must be allowed. 4. Clerk must follow statute or order of the court in taxing costs. Sec. 3262. Costs must be taxed by the clerk, upon the application of the party entitled thereto; except that the court may direct, that interlocutory costs, or costs in a special proceeding be taxed by a judge. The clerk must insert in the judg- ment or final order, the amount of the costs as taxed * * * . Sec. 3263. Costs may be taxed, upon notice to the attorney for each adverse party, who has ap- peared, and is interested in reducing the amount thereof. Notice of taxation must be served, not less than five days before the taxation; unless the attorneys, serving and served with the notice, all reside, or have their offices, in the city or town, where the costs are to be taxed; in which case a notice of two days is sufficient. A copy of the bill of costs specifying the items, with the disburse- ments stated in detail, must be served with the no- tice of taxation. 4 TAXATION" OF COSTS In the City Court time for service of notice of taxa- tion is set forth in section 3161, subdivision 6, which reads as follows: Notice of taxation of costs not less than two days; except where all the attorneys, serving and served with the notice, reside or have their offices in the city of New York, in which case one day's notice is sufficient. Costs are the creature of the statute and cannot be imposed except in the cases authorized by its provisions, and the clerk has no authority to tax costs except such as may be conferred upon him by statute or by an order of the court. Cassidy v. McFarland, 139 N. Y. 208. The authority of the clerk to tax costs upon the appli- cation of a party and without an express order of the court, is to be found in section 3262 of the Code. This applies to cases in which costs are to be inserted in a judgment or final order. Carter v. Builders' Construc- tion Co., 134 A. D. 553. 6. There must be a verdict, etc., before costs may be taxed. There must be a verdict, report of a referee, or an order of the court before the clerk may tax costs. Bailey v. Stone, 41 How. Pr. 346. 6. When clerk's taxation not disturbed. Where the affidavit of the successful party as to dis- bursements stating that the amount paid is correct, true and reasonable, and actually and necessarily in- curred, is met by an affidavit of the opposing party that TAXING COSTS IN GENERAL 5 the amount was not necessarily paid or incurred under section 3256 of the Code of Civil Procedure, the action of the clerk in taxing the disbursements will not be disturbed. Rose v. Swarthout, 73 Misc. 583. 7. Clerk must examine bill carefully. It is the duty of the clerk carefully to examine the bill presented to him and to satisfy himself that all the items allowed by him are correct and legal in accordance with section 3266 of the Code. The court holding, "it was not intended to allow an obviously illegal taxation to stand because the items were not formally objected to before the clerk, since the party against whom the taxation is ordered is justified in relying on the clerk's obligation to satisfy himself, whether opposition is pres- ent or not, that the items are correct and legal." Feiber v. Home Silk Mills, L. J., Nov. 10, 1914; Talcott v. Jonasson, 42 Misc. 372. 8. Power of clerk to adjourn taxation. The clerk has power to adjourn the taxation of costs. Agricultural Insurance Co. v. Bean, 45 How. Pr. 444. 9. Costs belong to party. Costs awarded to a party in an action belong to the party and not to the attorney. Barry v. Third Ave. Railroad Co., 87 A. D. 543. 10. When clerk is doubtful whether action is in tort or contract. Where the allegations of a complaint make it doubtful whether an action is in tort or in contract, it should be 6 TAXATION OF COSTS considered ex contractu and the costs before notice of trial taxed at $15. Lange v. Schile, in A. D. 613. 11. Clerk not to dismiss taxation. The clerk should not dismiss a taxation of costs upon the failure of a party to appear. Section 3266 of the Code places the duty upon the clerk of ascertaining and satisfying himself, as the taxing officer of the court, that all the items of the bill of costs are "correct and legal," and proper notice of retaxation having been given, it is not essential to such determination that the party should be present at the time named for such retaxation. Talcott v. Jonasson, 43 Misc. 372. After the clerk once taxes costs he cannot retax them in the absence of both parties. Murdock v. Adams, 10 Hun, 566. 12. Dismissal of taxation. Where, however, the clerk does dismiss the retaxation because of the failure of the adverse party to appear, such costs should not again be noticed for retaxation under section 3264 of the Code. The remedy is to re- view the original taxation by a motion for a new taxa- tion under section 3265 of the Code. Talcott v. Jonasson, 43 Misc. 372. 13. Retaxation. Sec. 3264. Costs may also be taxed without notice. But where they are so taxed, notice of retaxation thereof must immediately afterwards be given as prescribed in the last section, by the party at whose instance they were taxed; in default TAXING COSTS IN GENERAL 7 whereof, the court must, upon the application of a party entitled to notice, direct a retaxation, with costs of the motion, to be paid by the party hi default * * * . A defendant who appears is entitled to notice of re- taxation of costs although he does not answer. Gil- martin v. Smith, 6 N. Y. Sup. Ct. 684. When, therefore, after having taxed his bill of costs without notice, the party failed to have the same noticed for retaxation, the court ordered that all the proceedings on the part of the plaintiff and the sheriff toward the collection of the judgment be stayed pending such retaxation. Fordyce v. Wolff, L. J. May yth, 1915. (a) Costs reduced on retaxation. If costs are reduced on retaxation, the judgment is not to be changed but the amount of the reduction is to be credited on the execution. Hewitt v. City Mills, 136 N. Y. 211-13. 14. Review of taxation by the court. Sec. 3265. A taxation or a retaxation may be reviewed by the court, upon a motion for a new taxation. The order made upon such a motion may allow or disallow any item, objected to before the taxing officer, in which case it has the effect of a new taxation; or it may direct a new taxation before the proper officer, specifying the grounds or the proof upon which the item may be allowed or disallowed by him. Only those papers which were before the clerk upon taxation of costs can be considered upon a motion to 8 TAXATION OF COSTS correct his decision. Evans v. Silberman, 7 A. D. 139; Levitas v. Hart, 117 N. Y. S. 1027; Grotty v. DeDion Bouton M. Co., 102 A. D. 405. Where oral objection is made, an affidavit can be made showing what took place, but this does not allow the submission of affidavits on the merits. Lyman v. Young Men's Cosmopolitan Club, 38 A. D. 220. Statements of counsel on the argu- ment which were not before the clerk on the taxation cannot be considered by the court on review of such taxation. Wolff v. Horn, 9 Misc. 100. Upon a motion to review taxation, when the objection raises a question of law, the Special Term should allow or disallow the item instead of ordering a new taxation. Crossley v. Cobb, 37 Hun, 271. Taxation should be re- viewed before costs are paid. Collomb v. Caldwell, 5 How. Pr. 336. The right to review may also be lost by laches. Penfield v. James, 4 Hun, 609. However, the party entering the judgment waives his right to review the allowance of costs. Burrows v. Butler, 38 Hun, 121. 15. When relaxation not required after review by court. Although the clerk may have determined the amount taxed under the wrong section of the Code, nevertheless since the court at Special Term adjudged the amount reasonable it was not necessary to order a retaxation. Vibbard v. Kinser Construction Co., 145 A. D. 673. 16. Appeal from judgment does not prevent retaxation on the merits. Although a substantial period such as twelve days, have elapsed since the original taxation, the court held TAXING COSTS IN GENERAL 9 that the party is still entitled to have the motion for relaxation considered upon the merits, notwithstanding that during the interval an appeal from the judgment had been taken and an undertaking on appeal filed. McDermott v. Yvelin, 103 A. D. 418. 17. Clerk must tax bills of several defendants when presented. The clerk has no authority to determine the question whether several defendants should be limited to one bill of costs on the ground that the separate defenses were interposed by them unnecessarily so as to enhance the costs. The clerk can exercise no judicial power in granting or refusing costs. It is within the province of the court at Special Term upon motion in a proper case to make such limitation. Kaplan v. Olsen, 118 N. Y. S. 634. 18. Only items objected to are reviewable by the court. Upon a review of taxation only such items may be considered as were objected to before the taxing officer at time of taxation. Where there has been no objection made to any item, the party is in no position to ask for any relief. LaRosa v. Wilner, 54 Misc. 574; Fourteenth Street Bank v. Strauss, 54 Misc. 588. On review in an Appellate Court of the clerk's taxation of costs, the defendant cannot raise the point that there was insufficient proof before the clerk, when the same was supplied at Special Term without objection on his part Rieger v. Swan, 2 Misc. 467. Upon an appeal from an order denying a motion for io TAXATION OF COSTS a relaxation of costs, where it appears that the only objection made before the clerk on taxation was to the effect that the plaintiff was not entitled to tax costs because the main issue in the action was not disposed of and no final judgment was authorized, the court is not called upon to consider the various items embraced in the bill, but only to consider and determine whether the clerk properly taxed the bill presented. Schum v. City of Rochester, 16 Civ. Pro. Rep. 218. 19. Judgment incomplete without inserting costs therein. A judgment roll is not complete until the costs are inserted therein. Allen v. Wells, Fargo Co., 95 N. Y. S. 597- 20. Stipulation as to costs. Attorneys may stipulate the amount to be paid to referees under section 3296 of the Code of Civil Proce- dure, but cannot stipulate to increase the amount of costs. O'Keefe v. Shipherd, 23 Hun, 171. 21. Two or more actions tried as one. Where a stipulation has been entered into by the attorneys that two or more actions should be tried to- gether or that one action is to abide the event of the other, a full bill of costs may be taxed in each case in- cluding a trial fee. Koch v. Koch, i City Court Rep. 55; Hauselt v. Godfrey, 3 N. Y. Civ. Pro. Rep. 116. So held in cases on appeal although only one argu- ment was had. Hauselt v. Godfrey, 3 N. Y. Civ. Pro. Rep. 1 1 6. TAXING COSTS IN GENERAL n Similarly a full bill of costs may be taxed including a trial fee in an action which is stayed upon stipulation until the determination of another action the result of which is to be adopted as final, and judgment to be entered as if a trial had been had. Audenreid v. Wilson, 2 N. Y. Weekly Dig. 108. 22. Only one bill of costs against several defendants. Where two or more defendants appear by different attorneys and plaintiff recovers judgment against all of them he is entitled to tax only one bill of costs. Cod- ding v. Scott, 21 N. Y. S. 473; Buell v. Gray, 13 How. Pr. 31; Pratt v. Allen, 19 How. Pr. 450. 23. When defendant succeeds against one of several plaintiffs. Where several plaintiffs unite in an action against one defendant, and some plaintiffs recover against de- fendant and as to the others defendant succeeds, de- fendant can enter judgment for costs against the latter. Knowlton v. Pierce, 41 How. Pr. 361. 24. Interest on verdict forms no part of bill of costs. Section 1235 of the Code of Civil Procedure pro- vides: Where final judgment is rendered for a sum of money awarded by a verdict, report, or decision, interest upon the sum awarded, from the time when the verdict was rendered, or the report or decision was made, to the time of entering judg- ment, must be computed by the clerk, added to the sum awarded, and included in the amount of the judgment. 12 TAXATION OF COSTS Therefore the interest on a verdict from the date of its rendition should be included in the judgment and is not collected as costs on any taxation or on any order of the appellate court affirming it. It is a part of the original recovery and has no relation to costs or dis- bursements in the action. Matter of Smith, 161 A. D. 638, p. 642. 25. Abatement of action. Where an action brought is such that it abates with the death of the party, the costs cannot be taxed in favor of one or the other upon the death of the party. People v. Newcomb, 75 Misc. 258. CHAPTER II COSTS BEFORE NOTICE OF TRIAL 26. Statutory provisions. 27. Nature of actions within 420 of the Code of Civil Pro- cedure. 28. Not taxable on demurrers. 26. Statutory provisions. The plaintiff is entitled to $15 for all proceedings before notice of trial in an action specified in section 420 of the Code of Civil Procedure; in every other case $25. Sec. 3251, sub. i, par. i of the Code. 27. Nature of actions within section 420 of the Code. Whether an action comes within the provisions of section 420 of the Code may be ascertained from a reading of the complaint, which must be such as to permit the clerk to enter judgment without application to the court. They are actions where the "complaint sets forth a breach of contract to pay a sum of money fixed by the terms of the contract or capable of being ascertained therefrom by computation only; or a con- tract to pay money received or disbursed, or the value of property delivered, or of services rendered, to or for the use of defendant or a third person; and demands judgment for a sum of money only. This includes where breach is only partial; also where the amount claimed has been reduced by payment, counterclaim or other vcredit." 13 I 4 TAXATION OF COSTS An action for breach of contract of employment car- ries with it unliquidated damages and plaintiff is en- titled to $25 before notice of trial. Kramer . Wien, L. J. Feb. 20, 1915. 28. Not taxable on demurrers. Costs before notice of trial are not taxable upon entry of an interlocutory judgment. Turkheim v. Thomas, 113 A. D. 123; Louis v. Empire State Insurance Co., 75 Hun, 364; Hill v. Muller, 53 Misc. 262. CHAPTER III COSTS AFTER NOTICE OF TRIAL 29. Item may be taxed once only. 30. When more than one charge is allowed. 31. Effect of return of notice of trial. 32. Failure to place cause on the calendar. 29. Item may be taxed once only. Only one item of $15 should be allowed for costs after notice of trial. Seifter v. Brooklyn Heights R. R. Co., 53 A. D. 443; Kummer v. Christopher &c. Street Co., 33 N. Y. S. 581. Thus where a trial was had and the jury disagreed, and at a trial held thereafter a verdict was rendered for the plaintiff which was set aside for the misconduct of the jury, and subsequently the complaint was dismissed because of plaintiff's default which was opened upon payment of costs to defendant, and a verdict having been finally rendered for plaintiff, the Court held that only $15 could be taxed for all proceedings after notice and be- fore trial. Hudson v. Erie R. R. Co., 57 A. D. 98; sec. 977 of the Code. 30. When more than one charge is allowed. There are some instances where more than one charge is allowed, as where both relator and respondent served upon each other a second notice of trial. The court saying in part, "whether necessary or not, the litigants have deemed it necessary to serve a new notice of trial. There were in fact two complete trials. Where there is is 1 6 TAXATION OF COSTS in fact two trials a reasonable construction of the Code entitles the successful party to statutory costs to both trials." Distinguishing Seifter v. Brooklyn Heights R. R. Co., 53 A. D. 443; Rudd v. Cropsey, L. J. Dec. 6, 1915. In Patrick v. N. Y. State Ry., 85 Misc. 473, the court holds that in counties where only one notice of trial need be served, only one item should be allowed, but in counties where a notice of trial must be filed for each term more than one item of $15 will be allowed for costs after notice of trial. In this case the trial was not completed because of a juror's illness and the case was again noticed for trial and a verdict having been ren- dered for plaintiff, the court allowed two fees for after notice and before trial. Section 977 of the Code. 31. Effect of return of notice of trial. Where the defendant declined to receive and accept a notice of trial served upon him and failed to file or serve a cross notice, the item of $15 costs after notice of trial was stricken out. Hammer v. Shreiber, L. J. Dec. 10, 1912. 32. Failure to place cause on the calendar. Service of the notice of trial must be followed by the filing of a note of issue with the clerk to have the cause placed on the calendar. Failure to do so makes the service of the notice of trial ineffective, and costs after notice of trial cannot be taxed. Hoepfner v. Barzlay, L. J. Sept. 30, 1902; Ranzenhoffer v. Barrere, L. J. Sept. 30, 1916; Tillspaugh v. Dick, 8 How. Pr. 33; although Roberts v. Aden, 2 City Court Rep. 302, holds that the item should properly be taxed. CHAPTER IV TRIAL FEE 33. In general. 34. On dismissal of action. 35. On discontinuance of action. 36. Cause on short cause calendar sent back to gen- eral calendar. 37. Mistrial. 38. Disagreement of jury. 39. Withdrawal of juror. 40. Inquest. 41. Cause sent to referee. 41a. Reference to admeasure dower. 41b. Reference cancelled. 42. Stipulation that costs are to be the same as of another trial. 43. Additional costs for a trial lasting more than two days. 44. What constitutes period of trial. 33. In general. Section 3251, sub. 3, par. 5 of the Code of Civil Pro- cedure allows $30 as a trial fee for the trial of an issue of fact. The general rule is that a trial fee is allowed for each trial whether such trial results in a determina- tion of the question, or prove abortive for any reason. Dame v. Maynard, 139 A. D. 385. 34. On dismissal of action. Where a cause is at issue on an issue of fact and is regularly noticed for trial and placed on the calendar 17 1 8 TAXATION OF COSTS and, when reached in its regular order, the complaint is dismissed on the failure of the plaintiff to appear, there has been a trial of the action, and a trial fee should be taxed. Pagano v. Lacobelli, L. J. Jan. 22, 1914; Dodd v. Curry, 4 How. Pr. 123; VanGelden v. Hallen- beck, 2 N. Y. S. 252. Likewise where a cause of action comes regularly on the calendar for trial at a Trial Term, and is dismissed for failure of plaintiff to appear, and default is opened without terms, and a second trial results in a dismissal of the complaint, defendant is entitled to two trial fees. Cole v. Lowery, 23 N. Y. S. 674. 35. On discontinuance of action. Where an order is entered discontinuing an action before it appears on the day calendar, upon payment of costs, a trial fee cannot be taxed. Sutphen v. Lash, 10 Hun, 120; Moline Auto Co. v. DeLamater-B. Auto. Co., L. J. Mar. 31, 1915. 36. Cause on short cause calendar sent back to general calendar. Where a party has caused an action to be. placed on the short cause calendar and after a partial trial thereof, it is sent back to the general calendar, the same party, if successful on the second trial, cannot tax two trial fees because the court will not allow the adversary to be charged with cost of a trial put on by the mistake of the other party. But if the unsuccessful party has brought the cause on for trial on the short cause calen- dar, a trial fee is properly taxable. Browning v. Brokaw, 114 A. D. 104. This case overrules Gilroy v. Badger, TRIAL FEE 19 58 N. Y. S. 1106. "There can be no reasonable ground for dispute that the rule which permits the taxation of a trial fee for a mistrial applies only to cases where the party finally successful was not responsible for the abortive character of the proceedings." Fink v. Stachel- berg, 86 N. Y. S. 20. 37. Mistrial. Likewise where the plaintiff was allowed to withdraw a juror, thus producing a mistrial, so that he might amend his pleading, he is not entitled upon recovery of a judgment on the second trial to have taxed against the defendant the costs after notice and before trial, and the trial fee of the first trial. Otherwise if the defendant were successful in the action. Norton v. Erie R. R. Co., 83 Misc. 159. 38. Disagreement of jury. A trial fee is taxable upon the disagreement of a jury because a trial without a verdict is still a trial, the work of counsel is just as great whether the jury agree or not. Ellsworth v. Gooding, 8 How. Pr. i ; Hamilton v. Butler, 19 Abb. Pr. 446; Mott v. Consumers Ice Co., 8 Daly, 244. 39. Withdrawal of juror. When a trial has been duly commenced and the court has allowed the withdrawal of a juror and the discon- tinuance of the trial, it is considered a trial within the Code for the purpose of taxing a trial fee for the party finally successful at the trial. Block v. Linsley, 40 Misc. 184. 20 TAXATION OF COSTS 40. Inquest. A trial fee is allowed the plaintiff upon an inquest under the section of the Code which provides for a trial fee of an issue of fact. Weiss et al. v. Morrel et al., 7 Misc. 541; Hawley v. Davis, 5 Hun, 642. 41. Cause sent to referee. Where a case appears before a court and is then sent to a referee, such reference is considered as a continua- tion of the trial and only one trial fee is allowed. Boisse- vain v. Pope, L. J. Aug. 28, 1909; Price v. Price, 61 Hun, 604. A trial fee will not be allowed when a case is stopped during a hearing and then sent to a referee. Third National Bank of Syracuse v. McKinstry, 2 Hun, 443. (a) Reference to admeasure dower. Nor will a reference to admeasure dower be considered a trial within section 3251 of the Code and therefore the costs as of a trial before such referee cannot be taxed. Price v. Price, 61 Hun, 604. Nor should a trial fee be allowed where a reference is had merely auxiliary to an application for judgment on default in an action to foreclose a tax lien. City Tax Lien Co. v. Murray, 91 Misc. 119. (b) Reference cancelled. However an allowance of a trial fee before a referee will be made, although the reference is cancelled. Where therefore a referee having heard the case re- ferred to him, delayed his decision beyond the time allowed him under section 1019 of the Code, a motion TRIAL FEE 21 was made to cancel the reference which was granted and a trial fee was allowed, the court holding that "there was nothing in the facts to take it out of the general rule that a trial fee was allowed for each trial, whether such trial results in a determination of the question or prove abortive for any cause." Dame v. Maynard, 139 A. D. 385. 42. Stipulation that costs are to be the same as of another trial. Where a stipulation has been entered into by the attorneys that judgment should be entered with costs upon the result of another trial "the same as if a trial had been had," the successful party is entitled to a trial fee. Audenreid v. Wilson, 2 Weekly Digest, 108. 43. Additional costs for a trial lasting more than two days. Additional costs of $10 is allowed for a trial lasting more than two days under section 3251, sub. 3, par. 5, of the Code of Civil Procedure. So that where each .of three trials had in an action lasted more than two days, ten dollars was allowed in addition to the thirty dol- lars trial fee in each of the three trials. Hudson v. Erie R. R. Co., 57 A. D. 98. 44. What constitutes period of trial. The trial begins within the meaning of the section of the Code, when the judge to whom the cause is as- signed actually directs the commencement of the pro- ceedings which constitutes the opening of the trial. The time of waiting to become actually engaged is not to be 22 TAXATION OF COSTS included, nor is the time after the submission of the case to the court or jury for decision within the meaning of the section. Egan v. Interborough Rapid Transit Co., L. J. June 12, 1915. Where the jury was examined and then adjourned because the trial counsel was not present, and subse- quent to that the trial lasted two days, the court held that the trial occupied three days. Goodkind v. Metro- politan Street Ry. Co., L. J. June n, 1904. However, the fact that counsel was given time to submit briefs should not be considered as added to the time of the trial to make it more than two days to entitle the suc- cessful party to additional costs. Evans v. Ferguson, 10 Civ. Pro. Rep. 57. Nor where the trial of an action closed at the end of the second day and the jury re- turned a sealed verdict the following day, the court held there that the trial lasted only two days and that additional costs of ten dollars could not be taxed. Wash- burne v. Oliver, 62 How. Pr. 482. CHAPTER V TERM FEES 45. Statutory provisions. 46. Cause must be necessarily on the calendar. 47. Stay of proceedings. 48. Term fees allowed although notice was filed by adver- sary. 49. Fee for one term only in the City Court. 60. No costs allowed for term at which cause is tried or disposed of. 61. Effect of amendment of pleadings on term fees. 62. Adjournment to other terms on consent. 53. No term fee allowed in Appellate Term of the Supreme Court. 64. Term fees in other appellate courts 45. Statutory provisions. The statutory provisions relating to the allowance of term fees is contained in section 3251, subdivision 3, paragraph 10, which reads: - For one term of the City Court of the city of New York, at which the case is necessarily on the calendar, and for each trial term or special term, of the Supreme Court, or any County Court, not exceeding five, at which the cause is necessarily on the calendar, excluding the term at which it is tried, or otherwise finally disposed of, ten dollars. 23 24 TAXATION OF COSTS Paragraph 15 of the same subdivision and section reads: For each term of the Appellate Division, not ex- ceeding five, of the Supreme Court, at which the cause is necessarily on the calendar, excluding the term at which it is argued, or otherwise finally disposed of, ten dollars. Paragraph 4 of subdivision 5 of same section reads: For each term (of Court of Appeals), not exceeding ten, at which the cause is on the calendar, exclud- ing the term at which it is argued, or otherwise finally disposed of, ten dollars. 46. Cause must be necessarily on the calendar. To entitle a party to term fees the cause must be nec- essarily on the calendar. Deyo v. Morss, 21 Misc. 497- A cause is necessarily on the calendar when it has been noticed for trial and placed on the calendar ready to be tried when reached. Sipperly v. Warner, 9 How. Pr. 332- Therefore, unless the cause is in a condition to be tried it is not necessarily on the calendar and no term fee can be allowed. Bowen v. Sweeney, 66 Hun, 42. Nor is a case properly on the calendar until all the parties have been served and all of them have answered. Bowen v. Sweeney, 66 Hun, 42. A cause is not considered necessarily on the calendar where judgment could have been obtained without noticing it for trial and placing it on the calendar. A TERM FEES 25 term fee in that event will not be allowed. Candee v. Ogilvie, 5 Duer, 658. But when a party notices a case for trial and places the same on the calendar he is estopped from denying that the case is necessarily on the calendar. Hagar v. Danforth, 8 How. Pr. 448. 47. Stay of proceedings. Where a party procures a stay of proceedings until the return of a commission, it was held that he was not entitled to term fees while the stay was in effect. Shu- felt v. Power, 3 How. Pr. 89. Nor will any term fees be allowed to a successful party in an action who, with- out the consent of the other party, procures a postpone- ment of the case for his own benefit. Sipperly v. Warner, 9 How. Pr. 332. 48. Term fees allowed although notice was filed by adversary. Where an action has been noticed for trial, the party finally successful is entitled to term fees, although the notice of trial was given by the opponent. Andrews v. Schnitzler, 48 Sup. Ct. 173. But in an action against two defendants, where the case is noticed and put on by one of the defendants only as to whom the complaint is dismissed, the other defendant is not entitled to a term fee on obtaining a dismissal. Tillspaugh v. Dick, 8 How. Pr. 33. Where a demurrer is noticed for argument on the general calendar and is then ordered to be heard at the Special Term for the same month, only one term fee can be charged. Comstock v. Halleck, 4 Sandf. 671. 26 TAXATION OF COSTS 49. Fee for one term only in the City Court. In the City Court of the City of New York only one term fee is allowed. So held on a motion at Special Term for a retaxation disallowing ten dollars term fee because the case was tried at the same term it was placed on the calendar. Wolkoff v. Silverstein, L. J. Dec. 10, 50. No costs allowed for term at which cause is tried or disposed of. The term fee will be taxed only for the term at which the case is necessarily on the calendar, excluding the term at which it is tried or otherwise at which it is finally disposed of. So that where the case is discontinued at the first term at which the case has been on the calendar upon payment of taxable costs to date, no term fee is taxable. Mossein z>. Empire State Surety Co., 117 A. D. 782. 51. Effect of amendment of pleadings on term fees. An amendment of a pleading changes the old issues and creates new ones. So that where a case had been on the calendar and the defendant pursuant to an order served an amended answer, the court held that this destroyed the old issue, and inasmuch as the case was not on the calendar for more than one term since the creation of the new issue, no term fee should be allowed. Isaacs v. Kobre, L. J. March 6, 1914. For the same reason four months term fees were disallowed although the case was on the calendar four months, exclusive of the term at which it was disposed of, because just before the case was referred the plaintiff served an TERM FEES 27 amended complaint. The old issue was thereupon de- stroyed and the term fees that had previously accrued could not be allowed. Herzfeld v. Reinich, 57 A. D. 669; Mossein v. Empire State Surety Co., 117 A. D. 782. 52. Adjournments to other terms on consent. The prevailing party in an action is entitled to costs of the terms other than that at which the cause was tried although the cause was continued from term to term on consent of the parties. Deyo v. Morss et al., 21 Misc. 497- . 53. No term fee allowed in Appellate Term. The Code of Civil Procedure does not provide for the allowance of term fees at the Appellate Term and the court cannot therefore allow any such costs. Feiber v. Home Silk Mills, L. J. Nov. 10, 1914. Cassidy v. Mc- Farland, 139 N. Y. 208. The successful party is entitled to tax the term fees although he did not notice the cause for trial. Vandever v. Warren, n N. Y. Civ. Pro. Rep. 319. 54. Term fees in other appellate courts. No term fee is allowable on appeal from an order. Ennis v. Wilder, 14 Weekly Dig. 211. Only one term fee can be charged for each year in the Court of Appeals. Term fees are not taxable for terms during which an appeal is improperly on the calendar. When therefore the findings have not been properly made and signed, the case is not in a condition for the consideration of the court and therefore improperly on the calendar. 28 TAXATION OF COSTS Nobis v. Pollock, 18 Civ. Pro. Rep. i. So also when the case is not printed or ready for argument, especially when put there by the party whose duty it is to print the case. Van Gelder v. Hallenbeck, 18 State Rep. 19. Where an appeal is placed on the calendar, not for argument, but to have it dismissed, a term fee cannot be taxed. Newhall v. Appleton, 4 Mo. Law Bull. 6. CHAPTER VI DISMISSAL OF COMPLAINT 65. Costs are statutory. 66. Trial fee allowed. 67. Costs to each of several defendants. 68. Dismissal as to one of several defendants. 65. Costs are statutory. The right to costs on dismissal of complaint is statu- tory and not within the discretion of the court. The judgment is a final one and terminates the action and therefore costs should be allowed. Van Vliet v. Kanter, 139 A. D. 602. 56. Trial fee allowed. A trial fee will be allowed where a cause has been regu- larly noticed for trial and placed on the calendar and, when reached, is dismissed on failure of the plaintiff to appear on trial. There has been a trial of the action for the purpose of taxation. Cole v. Lowery, 23 N. Y. S. 674; Pagano v. Lacobelli, L. J. Jan. 22, 1914. 57. Costs to each of several defendants. Where several defendants appeared by separate at- torneys and each moved separately to dismiss complaint which was granted, each defendant is entitled to a sepa- rate bill of costs. Jacobs v. Feinstein, 133 A. D. 416. 58. Dismissal as to one of several defendants. Where complaint is dismissed as to one defendant who answers separately, such defendant is not entitled 29 30 TAXATION OF COSTS to costs as a matter of course, provided the plaintiff is entitled to costs as against one or more defendants. The allowance of costs is in the discretion of the court. Code section 3229. Ljungquist v. Hartmetz, 54 Misc. 87. So held in a Special Term decision where the court said: "This is peculiarly a case in which the court should exercise the discretion conferred by section 3229 of the Code and withhold costs from the two defendants as to whom the trial terminated favorably. The motion to direct the clerk to tax costs is denied." Kesnerfl. Green- field, L. J. March 31, 1915. CHAPTER VII DISCONTINUANCE OF ACTION 69. Costs to date are statutory. 60. Costs before and after notice of trial allowed. 61. No trial fee nor disbursements allowed. 62. When trial fee may be allowed. 63. When no term fee allowed. 64. When allowed without costs. 66. Consolidation of actions. 66. No judgment for costs to be entered on discontinuance of action. 59. Costs to date are statutory. The defendant is entitled to all costs to date upon the plaintiff's discontinuance of his action. These costs are not discretionary with the court but are regulated by statute. Claflin v. Robinson, 6 N. Y. S. 430; Him- berg v. Rogers, 40 Misc. 190. 60. Costs before and after notice of trial allowed. Where therefore an action is discontinued after the issues were joined and cause noticed for trial defendant is entitled to the sum of twenty-five dollars as costs for before notice of trial and after notice of trial. Rinaldo v. Cowen, 22 N. Y. S. 1075. 61. No trial fee nor disbursements allowed. No trial fee, however, will be allowed the defendant although the action had been noticed for trial and placed 31 32 TAXATION OF COSTS on the calendar and just as it was about to be moved for trial an order was entered discontinuing the action. Sutphen v. Lash, 10 Hun, 120. Nor will disbursements for the entry of judgment, filing a transcript or for issuing execution, be allowed to be taxed under an order allowing the plaintiff to dis- continue the action upon payment of costs. Studwell v. Baxter, 33 Hun, 331. 62. Where trial fee may be allowed. A trial fee may be allowed the defendant where the plaintiff discontinues his cause of action when it is marked ready for trial after it had appeared on the day calendar and answered ready prior to the date of dis- continuance. Moline Auto. Co. v. De Lamater-B. Auto. Co., L. J. March 31, 1915; Duprey v. Phcenix, i Abb. N. C. 133, note. 63. When no term fee allowed. Where a case is discontinued at the same term at which the case has been placed on the calendar upon payment of taxable costs, no term fee is taxable. Evans o. Silberman, 7 A. D. 139. 64. When allowed without costs. An order of discontinuance may be allowed without costs if entered before appearance of defendant. The fact that defendant retained an attorney is not suffi- cient. Averill v. Patterson, 10 N. Y. 500; Hallet v. Hallet, 10 Misc. 304; Schenck v. Fancher, 14 How. Pr. 95- But an unexpected decision of the Court of Appeals DISCONTINUANCE OF ACTION 33 which renders further prosecution of the case useless is no ground for exemption from costs which accrued in the action. Agar v. Tibbets, 56 Hun, 272. 65. Consolidation of actions. By consolidating two actions the original actions are discontinued and only the consolidated action remains, and the successful party will be entitled to tax only the costs of the consolidated action, unless the right to tax the costs of the discontinued action is reserved in the order directing the consolidation. Hicox v. New Yorker Staats Zeitung, 23 N. Y. Civ. Pro. Rep. 87. 66. No judgment for costs to be entered on discon- tinuance of action. On motion for leave to discontinue either at Special Term or Trial Term, an absolute order of discontinuance is unauthorized and a judgment for such costs should not be entered. The court can only impose costs, but the plaintiff is free either to discontinue and pay costs, or go on with the action. Hyde v. Anderson, 112 A. D. 76; Anderson v. A. E. Norton, Inc., 158 N. Y. S. 152. CHAPTER VIII DEMURRERS AND INTERLOCUTORY JUDGMENTS 67. Statutory provisions. 68. When entitled to allowance of costs. 69. When nominal damages are demanded. 70. As a contested motion. 71. As a trial of an issue of law. 72. When demurrer is sustained or overruled in whole. 73. Demurrer to one of several defenses or counter- claims. 74. On entry of interlocutory judgment. 75. Disbursements. 76. Full bill allowed on failure to plead over. 77. Costs of interlocutory judgment contained in final judg- ment. 67. Statutory provisions. Section 3251, subdivision 3, paragraph 4, provides: "For the trial of an issue of law, twenty dollars." Section 3232 provides: Where an issue of law and an issue of fact are joined, between the same parties to the same action, and the issue of fact remains undisposed of, when an interlocutory judgment is rendered upon the issue of law; the interlocutory judgment may, in the discretion of the court, deny costs to either party, or award costs to the prevailing party, either ab- solutely, or to abide the event of the trial of the issue of fact. 34 DEMURRERS AND INTERLOCUTORY JUDGMENTS 35 68. When entitled to allowance of costs. A party is not entitled to costs on demurrer when he succeeds only as to one of the grounds and fails as to the others. Petrakion v. Arbeely, 23 Civ. Pro. Rep. 183. Nor are costs allowed to either party when the demurrer is sustained only in part and overruled hi part Benner v. Benner, 12 N. Y. S. 472. The right to costs is absolute when the demurrer to the pleading is disposed of, except as provided for in section 3232 of the Code. Tallmann v. Bernhard, 75 Hun, 30. Costs of a motion to overrule a demurrer cannot be charged in addition to the costs of a trial of an issue of law on the disposition of the demurrer. McWilliams v. Dayton, 27 Misc. 828. 69. When nominal damages are demanded. Where the demand in a complaint is for nominal dam- ages, the costs allowed on the overruling of a demurrer by defendant to the complaint, are taxable by defendant under section 3228, subdivisions 4 and 5, and section 3229 of the Code, providing that where plaintiff recovers less than fifty dollars defendant is entitled to tax costs. Roome v. Jennings, 3 Misc. 413. 70. As a contested motion. A demurrer may be brought on for hearing either as a contested motion or as a trial of an issue of law. Where it is brought on as a contested motion under section 976 of the Code or for judgment on the pleadings under section 547 of the Code, only $10 motion costs should be allowed. When final judgment is entered costs 36 TAXATION OF COSTS before notice of trial and motion costs are taxable. Kramer v. Earth, 79 Misc. 80. Where a demurrer is disposed of on motion for judgment on the pleadings under section 547 of the Code, costs after notice of trial and a trial fee are not taxable. Singer Mfg. Co. v. Granite Spring W. Co., 67 Misc. 575; Keyes v. Lestershire Heights Ry. Co., 158 N. Y. S. 617. 71. As a trial of an issue of law. When a demurrer comes on to be heard as an issue of law and the court determines that the successful party is entitled to costs such costs are statutory as provided for in section 3251 of the Code, and the court has no power to fix any different amount such as $10. Vogt v. Oet- tinger, 88 Hun, 52. So that when a demurrer to the entire complaint in a common-law action is sustained and leave is given to the plaintiff to amend, the defendant is entitled as a matter of course on entering the interlocutory judgment, to $20 costs for trial of an issue of law and $15 for all proceedings after notice of trial (section 3232 of Code). Turkheim v. Thomas, 113 A. D. 123. Costs before no- tice of trial is not taxable. Louts v. Empire State In- surance Co., 75 Hun, 364. 72. When demurrer is sustained or overruled in whole. Where an order is made sustaining or overruling a demurrer to the whole complaint in a common-law action the successful party is entitled to costs after notice of trial, trial fee and disbursements as a matter of law. Marsh v. Graham, 19 Misc. 263; Garret v. Wood, 61 A. D. 294. DEMURRERS AND INTERLOCUTORY JUDGMENTS 37 Where the demurrer to complaint is sustained, the defendant is entitled to costs, and if there are several defendants not united in interest, each is entitled to a separate bill of costs, as of right Olifier v. Belmont, 24 Civ. Pro. Rep. 408. But such costs do not include costs before notice of trial, nor fees for entering judgment, satisfaction piece, transcript and filing of judgment, or sheriff's fees on execution. Thompson v. Stanley, 22 Civ. Pro. Rep. 348. 73. Demurrer to one of several defenses or counter- claims. Where there is a demurrer to one of several defenses only twenty dollars as an argument fee is allowable. Full costs will not be allowed because the entire defense is not disposed of. Basso v. Basso, 19 Abb. N. C. 173. Similarly upon an allowance of a demurrer to one of several counterclaims with leave to amend on payment of costs, only twenty dollars for the trial of an issue of law should be allowed, full costs to be taxed on the final determination of the action. Kniering v. Lennon, 3 Misc. 247. Where a demurrer is interposed to the entire complaint or answer with leave to amend and the party elects not to avail itself of the privilege and fails to amend, final judgment should be entered for full costs. Garret v. Wood, 61 A. D. 294. 74. On entry of interlocutory judgment. Upon entry of an interlocutory judgment the success- ful party is entitled to tax costs after notice of trial, a 38 TAXATION OF COSTS trial fee of an issue of law and disbursements. Costs before notice of trial is not allowed. Hill v. Muller, 53 Misc. 262; Garret v. Wood, 61 A. D. 294. Similarly on sustaining a demurrer to an answer, plaintiff is not entitled to costs of proceedings before notice of trial. Penfield v. City of New York et al, 102 N. Y. S. 784. On an affirmance of an interlocutory judgment on a demurrer, the successful party is entitled to the taxation of $40 only for argument of appeal. Hill v. Muller et al., 53 Misc. 262. 75. Disbursements. Disbursements allowed in an interlocutory judgment are those connected with the argument and entry of judgment, but does not include service of summons and complaint and sheriff's fees on execution. Louis v. Em- pire State Insurance Co., 75 Hun, 364; Thompson v. Stanley, 22 Civ. Pro. Rep. 348. 76. Full bill allowed on failure to plead over. Where a demurrer has been either sustained or over- ruled and leave having been granted to plead over and the party fails to do so, final judgment may be entered with a full bill of costs. Crasto v. White, 52 Hun, 473; Garret v. Wood, 61 A. D. 294. 77. Costs of interlocutory judgment contained in final judgment. Although the costs awarded in an interlocutory judg- ment are absolute, they are not collectible by execution (section 3232 and section 779 of the Code). The judg- DEMURRERS AND INTERLOCUTORY JUDGMENTS 39 ment, therefore, should not provide that execution should be issued for their collection. They should be included in the final judgment if the party is finally successful, or set off in the final judgment if the party is unsuccess- ful. Cassvoy v. Pattison, 101 A. D. 130. CHAPTER IX MOTIONS AND SPECIAL PROCEEDINGS 78. Motion costs allowed in the discretion of the court. 79. When "with costs" does not include disbursements. 80. Costs in special proceedings. 81. Must be a final decree or order in special proceedings. 82. When 3240 is applicable. 78. Motion costs allowed in the discretion of the court. It is within the discretion of the court either to allow or disallow motion costs. The amount allowed is fixed by statute, in section 3251, subdivision 3, par. 9, of the Code of Civil Procedure, wherein it provides that the sum allowed is to be "fixed by the court or judge not exceed- ing $10 besides necessary disbursements for printing and referee's fees." But costs on a motion for a new trial on newly dis- covered evidence is regulated by subdivision 4, of sec- tion 3251 of the Code, and is the same as costs on an appeal. Motion costs may be allowed to abide the event. The allowance thereof must be set forth in the order. 79. When "with costs" does not include disburse- ments. Section 3236 of the Code of Civil Procedure provides that "Costs upon a motion in an action, where the costs are not specially regulated in this act, or upon a reference 40 MOTIONS AND SPECIAL PROCEEDINGS 41 made may be awarded, * * * in the discretion of the court or judge." A motion is an application in an action, and motion costs are entirely independent of those allowed in an action upon final judgment. Sub- division 3, of section 3251 of the Code limits the amount of motion costs that may be allowed. Matter of Peter- son, 94 A. D. 143. An order that is merely incidental to a proceeding is not a final order and costs allowed therein are motion costs within section 3236 and only $10 motion costs are allowable unless the court expressly awards disburse- ments. Matter of Babcock, 86 A. D. 563. Similarly on an order of reference under section 3236, the utmost that could be allowed is $10 and an allowance for print- ing. "While the court was not required to fix the amount it could have directed the clerk to tax them. But without such a direction the clerk could not tax them." Cassidy v. McFarland, 139 N. Y. 201. So also on motion made, an order appointing a commission does not determine the rights of the parties or end the proceeding and there- fore is not a final order. It is a decision of a motion made in the progress of the proceeding and the costs awarded are motion costs and not those in a special proceeding under section 3240 of the Code. Matter of VanDusen, 132 A. D. 592. 80. Costs in special proceedings. Section 3240 reads: Costs in a special proceeding, instituted in a court of record, or upon an appeal in a special proceeding taken to a court of record, where the costs thereof are not specially regulated in this act, may be 42 TAXATION OF COSTS awarded to a party in the discretion of the court, at the rates allowed for similar services, in an action brought in the same court, or an appeal from a judg- ment taken to the same court and in like manner. 81. Must be a final decree or order in special pro- ceedings. This section applies to final orders in special proceed- ings, and the costs are to be ascertained by taxation. It is not necessary to specify costs and disbursements, as under section 3256 costs carries disbursements with it. Matter of Babcock, 86 A. D. 563. An award of costs upon a judgment or upon a final decree or order in special proceedings carries taxable dis- bursements. Matter of Perry, 131 A. D. 284; Matter of Bensel, 143 A. D. 962. 82. When section 3240 is applicable. Although a statute is silent as to costs in proceedings for opening, extending, and grading streets, there is authority under section 3240 of the Code to award costs to property owners upon confirmation of the report by the commissioners. Matter of School Street Nos. 1-2, 162 A. D. 158. The section applies similarly in proceed- ings for the recovery of damages resulting from changing the grade of streets. Bley v. Village of Hamburg, 84 A. D. 23; Matter of Brady, 145 A. D. 49. In proceedings to acquire title to land instituted under the general Railroad Act, the court may in its discretion under section 3240 of the Code, award costs to any party at the rates allowed for similar services in an action brought in that court. Where no issue had been joined MOTIONS AND SPECIAL PROCEEDINGS 43 and no question of fact had been raised or tried, the court's disallowance of a trial fee was correct. Matter of New York L. & W. R. Co., 26 Hun, 592. Where the compensation awarded to a landowner by commissioners in condemnation proceedings under sec- tion 3372 of the Code, exceeds the amount offered by the corporation, the landowner is entitled to same costs as a successful defendant in the Supreme Court under section 3251 of the Code, viz. : $10 before notice of trial, $15 after notice of trial, $30 trial fee, and for a trial occupying more than two days $10 additional. Matter of Brooklyn Union El. R. R. Co., 176 N. Y. 213. Section 3240 applies also where a proceeding is in- stituted to have a liquor tax certificate revoked, and an answer is interposed. Matter of Young, 66 Misc. 216. Where a warrant of seizure was executed. Farley v. 16 Bottles of Champagne, 153 A. D. 592. In a proceeding to remove a commissioner by the mayor. O'Neil v. Mansfield, 47 Misc. 516. So also in a proceeding to dis- tribute surplus moneys arising from a sale upon a fore- closure of a mortgage. Syracuse Savings Bank v. Stokes, 71 Misc. 508. Not, however, in a proceeding for the sale of infant's property which is regulated by section 2348. Matter of Molinari, 82 Misc. 663. A decree of a surrogate vacating or setting aside the assessment of a transfer tax made by him is a final order in a special proceeding and the costs awarded are the same as on an appeal from a judgment including costs and disbursements. Matter of Babcock, 86 A. D. 563. CHAPTER X COSTS FOR PROCEEDINGS AFTER THE GRANTING OF AND BEFORE NEW TRIAL 83. Statutory provisions. 84. Where verdict is set aside and new trial ordered. 86. Verdict set aside because of misconduct of jury. 86. Reversal of judgment by appellate court. 87. On opening an inquest no costs allowed. 88. Nor after disagreement of jury. 89. Restoring cause to day calendar. 90. Item taxable more than once. 83. Statutory provisions. Under the provisions of section 3251, subdivision 3, par. 10, of the Code, "where a new trial is had pursuant to an order granting the same," $25 is allowed for all proceedings after the granting thereof, and before the new trial. 84. Where verdict is set aside and new trial ordered. Upon the rendition of a verdict for the plaintiff at the close of the trial, the defendant moved without opposi- tion by the plaintiff, to set the verdict aside which was granted. On the second trial a verdict was again ren- dered for the plaintiff. The court held that the plaintiff was entitled to costs of both trials as well as to $25 as provided for in section 3251, subdivision 3, of the Code, where a new trial is had pursuant to an order granting the same. Capozzi v. Bulkley, 156 A. D. 55. 44 COSTS FOR PROCEEDINGS BEFORE NEW TRIAL 45 85. Verdict set aside because of misconduct of jury. Where a jury brings in a verdict and the same is set aside because of the misconduct of the jury, and a new trial is ordered by the court, the successful party is en- titled to tax $25 costs for proceedings after the granting of and before a new trial. Hudson v. Erie R. R. Co., 57 A. D. 98. 86. Reversal of judgment by appellate court. A judgment having been reversed by the Appellate Term leave to appeal to the Appellate Division was obtained and upon stipulation the appellate court heard the argument, and after modifying the original judgment, judgment absolute was given to the plaintiff. The clerk on taxation of bill of costs allowed $25 because the Appellate Term had reversed the judgment and ordered a new trial. On motion to review the clerk's taxation, the court at Special Term of the City Court held that "The costs as taxed by the clerk have the unqualified approval of the court." H. G. Vogel Co. v. Reinhardt, L. J. Dec. ist, 1915. 87. On opening an inquest no costs allowed. The trial of an action after opening an inquest, is not a new trial within the meaning of the section of the Code. Wessels v. Carr, 22 Abb. N. C. 464. 88. Nor after a disagreement of jury. A new trial ordered after a disagreement of a jury is not an order within the provisions of the section allowing costs. Hamilton v. Wentworth, 27 N. Y. Sup. Ct. Rep. 654. Held contra in Kiimmer v. Christopher T. Street Co., 33 N. Y. S. 581. However the court in Hudson v. 46 TAXATION OF COSTS Erie R. R. Co., 57 A. D. 98, seems to be in accord with Hamilton v. Wentworth, supra. 89. Restoring case to day calendar. An order restoring a cause to the day calendar for trial at a subsequent term after the withdrawal of a juror, is not considered an allowance of a new trial "pursuant to an order of the court granting the same" so as to tax $25 costs for proceedings after the granting of and before a new trial. Bloch v. Linsley, 40 Misc. 184. 90. Item taxable more than once. There seems to be no limit to the number of times this item may be taxed. It depends solely on the number of new trials that were had "pursuant to an order of the court" granting them. Levine v. Klein, 66 Misc. 571. CHAPTER XI NEW TRIAL UPON NEWLY DISCOVERED EVIDENCE 91. Costs allowed are the same as on an appeal. 92. Motion is made on a case. 93. What a case consists of. 94. Entitled to costs of motion in addition to costs on appeal from judgment. 95. Appeal costs follow as a matter of course. 91. Costs allowed are the same as on an appeal. Upon a motion for a new trial upon a case, or an ap- plication for judgment on a special verdict, either party is entitled to the same sum as upon an appeal: $20 before argument and $40 for argument. Section 3251, subdivision 4 of the Code. 92. Motion is made on a case. Where a motion is made for a new trial upon newly discovered evidence, a case must be made and settled under section 997 of the Code, and where the motion is denied, the successful party is entitled to the same costs as on an appeal. Davis v. Grand Rapids Fire Ins. Co., 5 A. D. 36. 93. What a case consists of. A motion is made on a case where it is made on "the settled case herein" and on affidavits and papers thereto- fore served. Perkins z>. Brainard Quarry Co., n Misc. 337- 47 48 TAXATION OF COSTS 94. Entitled to costs of motion in addition to costs on appeal from judgment. The prevailing party on a motion of this kind is en- titled to full costs of appeal although he is also entitled to full costs on a simultaneous appeal from the judgment. Pease v. Perm. R. R. Co., 137 A. D. 459, aff'd in 203 N. Y. 573- 95. Appeal costs follow as a matter of course. Where upon an appeal from an order of the City Court granting plaintiff a new trial on the ground of newly dis- covered evidence, the order is reversed with costs and disbursements, the defendants are entitled as a matter of course to tax $20 before argument and $40 for argu- ment. Brennan v. Joline, 70 Misc. 537. CHAPTER XII TAXATION OF COSTS PREVIOUSLY PAID AS TERMS 96. Costs paid as terms on amendment of pleadings cannot be taxed again. 97. Items of costs paid as terms allowed to be taxed again by successful party. 98. Where terms allowed is an amount equal to costs. 99. Payment of costs on opening default. 100. Costs accrued before amendment of pleading not taxable on final judgment. 96. Costs paid as terms on amendment of pleadings cannot be taxed again. The courts are at variance as to whether costs that have been paid by a party under an order permitting an amendment to the pleadings upon payment of taxable costs to date, can again be taxed by the party finally successful in the action. In Cahill v. Mayor, it was held that where costs are awarded against a party as a condition of leave to file an amended pleading, the party receiving the costs can- not again tax the same on finally succeeding in the action. Cahill v. Mayor, 50 A. D. 276. Nor can either party again tax the same items of costs that have been paid by the defendant pursuant to an order to pay costs to date for leave granted to him to amend his pleading. The order is a final adjudication that the items belong to the plaintiff. Marx v. Gross, 22 N. Y. S. 387; Seneca National Bank v. Hawley, 32 Hun, 288. The theory is 49 5 o TAXATION OF COSTS that the imposition of costs on the granting of a favor constituted an adjudication that such items of costs belong to the party to whom they are directed to be paid and when once paid cannot again be taxed by either party. 97. Items of costs paid as terms allowed to be taxed again by successful party. The decisions more generally followed, however, hold that the costs allowed are to be considered merely as a measure of compensation awarded to a party for his additional labor, and delay because of the favor granted to his adversary. So that where the plaintiff as a condi- tion of being allowed to amend his complaint before trial is required to pay costs up to the time of his application , he must be allowed to tax again such items if he after- wards succeeds in obtaining judgment. Dovale v. Ackerman, 24 Abb. N. C. 214; Havemeyer v. Havemeyer, 48 Superior Ct. 104. The reasoning is well stated in Havemeyer v. Have- meyer (supra), "The order having been made during the pendency of the issues and the exercise of the discretion of the court, and in respect to a matter of pleading merely, it contemplated not a final and complete disposition of all the costs that had accrued up to that time as such, but a compensation to the plaintiffs for the amendment, to be measured by the taxable costs to which they would have been entitled in case then and there they had suc- ceeded." Likewise it was held that the payment of costs paid by defendant as a condition of being allowed to amend his answer did not preclude the plaintiff who was finally TAXATION OF COSTS PREVIOUSLY PAID AS TERMS 5 1 successful from again taxing such items of costs. Stan- Cash Car Co. v. Reinhardt, 6 Misc. 365 ; Cohn v. Huson, 3 How. Pr. N. S. 130. Thus also in an action where the defendant as a con- dition for leave to amend his answer, was ordered to pay to the plaintiff costs and disbursements to date, and has paid the same, the plaintiff, although successful at the trial, was allowed again to tax the costs. The court held that when the amended answer was allowed the issues, presented were changed and from that time on the plain- tiff was compelled, to proceed as if he had at that time instituted a new action. For that reason he was entitled to tax the items of costs before notice of trial, costs after notice of trial, and a term fee as well as costs of all sub- sequent proceedings. As to disbursements, however, the court disallowed a relaxation of them. Disbursements are allowed simply for reimbursing the successful party for moneys expended by him, and when once paid cannot again be taxed. Grant v. Pratt & Lambert, no A. D. 149. This case was followed in an action that came on for trial on three different occasions. After the first trial the plaintiff moved to amend his answer. The motion was granted on payment of taxable costs to date. Costs were paid and complaint amended. At the second trial the cause was sent from the short cause calendar back to the general calendar, and on the third trial the case was dismissed. The court held "that notwithstanding the fact that the costs have once been paid, the clerk erred in refusing again to tax the same upon the defendant finally succeeding in the action." The court allowed $10 costs before notice of trial, $10 term fees, and $15 52 TAXATION OF COSTS after notice of trial. H. G. Vogel Co. v. Reinhardt, 89 Misc. 606. 98. Where terms allowed is an amount equal to costs. It will be noticed that the costs allowed to be taxed over again were the items of costs allowed by statute to the successful party. These decisions have no reference to the allowance of an amount equal to costs or an al- lowance of a lump sum. Where the payment allowed for a favor granted is a sum equal to the costs to date, with- out being designated as such, the party receiving them may tax full costs in the event of his success in the action. Schmidt v. Mackie, 9 Weekly Dig. 288. In Lennon v. Mclntosh, 19 Abb. N. C. 175, the de- fendant was permitted to open default taken at Trial Term on payment of $20 costs and certain witness fees. The plaintiff on recovery on a subsequent trial was en- titled to tax a full bill of costs without deducting the $20 paid to open the default. 99. Payment of costs on opening default. The same rule does not apply to the taxation of costs ordered to be paid on opening a default and allowing a party to come in and defend. There is no change of issue as is occasioned by an amendment of pleadings. The court merely allows the party to come in and try the issues already raised by the pleadings. The costs are allowed for the favor granted, and a retaxation of them against the defaulting party on the final judgment will not be permitted. So held where a plaintiff failed to appear when the case was called and the case was dis- missed with costs. A motion was made by the plaintiff to open the default which was granted upon payment of TAXATION OF COSTS PREVIOUSLY PAID AS TERMS 53 costs which were paid. When the cause appeared again on the calendar the plaintiff again defaulted and the complaint was dismissed. Upon the second taxation of costs the court held that if the items of costs after no- tice of trial and a trial fee for the first trial formed part of the $65 heretofore taxed and paid, such items cannot be retaxed. Andrew v. Cross, 17 Abb. N. C. 92. Similarly where complaint was dismissed and default opened on payment of costs which were paid. The de- fendant finally succeeded in the action and the bill of costs presented was taxed allowing two trial fees, twenty- five dollars for all proceedings after granting of, and before new trial and disbursements taxed upon dismissal of complaint and upon final trial. On motion for re- taxation it was held that the costs should be "retaxed so as to disallow $30 trial fee, and $25 for new trial, and the disbursements for the service of a summons, sheriff's fees on execution and for filing of a note of issue."' Harris v. Wiener, L. J. Nov. 20, 1915. 100. Costs accrued before amendment of pleading not taxable on final judgment. A party finally successful in the action is not permitted to tax costs that accrued prior to the amendment of the pleadings where such amendment was not merely a matter of detail but was such as to set up a new cause of action such as substantial performance instead of complete performance. A party has no right to go back and collect on a cause of action hi which he was de- feated. Rowe v. Gerry, 109 A. D. 156; Fox v. Davidson, 40 A. D. 620; McEntyre v. Tucker, 40 A. D. 444; Lind- bald v. Lynde, 81 A. D. 603-605. CHAPTER XIII APPEALS 101. Statutory provisions, 3251, subds. 4 and 5. 102. Case on appeal must be perfected. 103. More than one appeal in one case. 104. Simultaneous appeal from judgment and order. 106. When costs of trial need not be retaxed. 106. Costs in all courts on entry of final judgment. 107. Amount of recovery less than $50. 108. Dismissal of appeal. 109. Motion costs of appeal need not be taxed. 110. Costs in judgment of affirmance. 111. Costs of appeal to be set off on entry of final judg- ment. 112. An appearance in the appellate court subjects a party to costs therein. 113. Objection to appeal costs. 114. Costs on appeal from an interlocutory judgment of the City Court. 115. Interlocutory judgment reversed. 116. Interlocutory judgment affirmed. 117. Demurrer heard as a contested motion. 118. Only one bill against several respondents. 119. Motion for new trial made at close of trial. 120. Appeal from order granting new trial on newly dis- covered evidence. 121. Appeal from order. 122. Costs of appeal from order same as motion costs. 123. Costs include disbursements. 124. Costs on reargument of appeal. 125. Submission of papers same as argument. 126. Reargument on disqualification of judge. 54 APPEALS 55 127. Motion costs granted in appellate court. 128. Costs of reargument when same is referred. 129. Costs as awarded in Court of Appeals. 130. "Costs" as used in undertakings. 131. Costs for making and serving a case in Court of Ap- peals not taxable. 132. Costs for case on appeal to be taxed by appellant only. 133. Costs on dismissal of appeal. 134. Costs in certiorari proceedings. 135. Costs to abide the event. 136. Construed to include all costs in the action. 137. Construed as costs in appellate court only. 138. Party finally successful entitled to tax them. 138a. When appeal costs may be taxed. 101. Statutory provisions, 3251, subds. 4 and 5. Costs on appeal to the Appellate Term or Appellate Division are: $20 before argument, $40 for argument, $20 for making and serving a case, and when the case necessarily contains more than fifty folios, $10 in addition thereto, $20 for making and serving amendments to a case, $10 in the Appellate Division, for each term not exceeding five, excluding the term at which it is argued. In the Court of Appeals: $30 before argument, $60 for argument, $10 for each term not exceeding ten, excluding the term at which it is argued. 56 TAXATION OF COSTS 102. Case on appeal must be perfected. Where the case is improperly on the calendar because the findings are not properly made and signed by the trial judge twenty dollars costs before argument will not be allowed. To entitle a party to these costs under sec- tion 3251 of the Code, the case must be in a condition to be argued before the Appellate Court. Nobis v. Pol- lock, 13 N. Y. S. 837. 103. More than one appeal in same case. Where there is more than one appeal in the same case, costs will be allowed in each case but disbursements in one only. Brassington v. Rohrs, 3 Misc. 262; Stanton v. King, 76 N. Y. 585. 104. Simultaneous appeal from judgment and order. Costs cannot be taxed both from the appeal from the judgment, and also from the order denying a motion for a new trial. Van Allen v. American National Bank, 10 Abb. Pr. N. S. 331; Bullard v. Pearsall, 46 How. Pr. 530. Where, therefore, a verdict having been directed for defendant, and a motion for a new trial having been denied, and an appeal from the judgment and order having been taken and both judgment and order having been affirmed, the court awarded to defendants separate bills of costs on both appeals, it was held that the court having awarded costs on appeal from the judgment, it had no power to allow costs on appeal from the order. (Section 3239, subdivision 2.) Syms v. Mayor, 105 N. Y. 'S3- But an appeal from a judgment and an order denying a motion for a new trial on newly discovered evidence APPEALS 57 is not within section 3239, subdivision 2, and costs of each appeal can be taxed. Streep v. McLoughlin, 36 Misc. 165; Pease v. Penn. R. R. Co., 137 A. D. 459, aff'd 203 N. Y. 573. 105. When costs of trial need not be retaxed. The Court of Appeals having reversed a judgment as to one cause of action and granted a new trial and having otherwise affirmed the judgment without costs to either party, the costs of the first trial need not be retaxed after the new trial is had, only costs subsequent to the reversal are taxable. Talcott v. The Wabash R. R. Co., 99 A. D. 239. 106. Costs in all courts on entry of final judgment. The general rule is that a party finally successful in the action is entitled to tax costs of all trials had in the action, as well as costs on appeal unless otherwise or- dered by the appellate court. So that where the appel- late court reverses a judgment of the City Court with costs to appellant to abide the event, and where in such a case respondent succeeds in the second action he is en- titled to tax costs in both trials. Berrent v. Simpson, 61 Misc. 6n; Capozzi v. Bulkley, 156 A. D. 55. So also where a judgment in favor of the plaintiff was reversed with costs to abide the event, and upon a second trial the plaintiff again succeeded, he was entitled to tax costs of both trials. Mossein v. Empire State Surety Co., 117 A. D. 782. The event is a determination in the plaintiff's favor on the new trial sufficient to give costs on the trial. Miller v. City of Buffalo, 129 A. D. 833. Same rule applies to appeal costs. So held where 5 8 TAXATION OF COSTS an appeal was taken from an order of the Appellate Term reversing a judgment of the Municipal Court ordering a new trial, and the Appellate Division, having reversed the determination of the Appellate Term, affirmed the judgment of the lower court, with costs. The court in that case allowed the successful party costs of the appeal in both courts. Greenwald et al. v. Weir, 131 A. D. 568. 107. Amount of recovery less than fifty dollars. In an action in the City Court where the plaintiff re- covers judgment for more than fifty dollars, which is re- versed on appeal to the Appellate Term with costs to appellant to abide the event, and on the second trial the plaintiff recovers less than fifty dollars, the plaintiff is not entitled to costs of the first trial nor of the appeal, but defendant is entitled to costs of both trials and costs of appeal. Lennon v. Charig, 54 Misc. 298. 108. Dismissal of appeal. Where an appeal is dismissed for failure to make and serve a case, only ten dollars motion costs can be taxed. Mahon v. Mahon, 64 A. D. 262. If, however, an appeal is dismissed upon argument on its merits, general costs may be taxed. Webb v. Nortin, 10 How. Pr. 117. 109. Motion costs of appeal need not be taxed. Where the appellate court grants motion costs there is no necessity to tax them as the order is sufficient in it- self. But if disbursements are granted the clerk should tax them. Margulies v. Damrosch, 51 N. Y. S. 833. 110. Costs in judgment of affirmance. A judgment of affirmance should not contain costs . APPEALS 59 included in a previous judgment, but should contain only costs of appeal. Beardsley Scythe Co. v. Foster, 36 N. Y. 561. 111. Costs of appeal to be set off on entry of final judgment. Where a party to whom costs were allowed on the affirmance of an order, fails on the trial, these costs are to be deducted from the costs of the successful party. Stevenson v. Pusch, 40 How. Pr. 91. 112. An appearance in the appellate court subjects a party to costs therein. Although a party does not appear in the court below to answer or defend a suit against him, nevertheless he may be charged with appeal costs if he is unsuccessful in the relief he asks for in the judgment obtained against him. McWhirter v. Bowen, 114 A. D. 68. 113. Objection to appeal costs. An objection to the costs taxed pursuant to an order of the appellate court can only be made to the appellate court, as the clerk of the lower court has no authority to refuse to tax the costs as directed by such order. Hill v. Muller et al., 53 Misc. 262. 114. Costs on appeal from an interlocutory judgment of the City Court. To ascertain what costs are to be taxed on an appeal from an interlocutory judgment obtained in the City Court of the City of New York it is necessary to deter- mine as to whether the appeal is taken under section 3188 or section 3189 of the Code. 60 TAXATION OF COSTS Section 3188 reads: An appeal to the supreme court may be taken from a final or interlocutory judgment rendered in the city court of the city of New York in a case where an appeal may be taken to the appellate divi- sion of the supreme court from a final or interlocu- tory judgment rendered in the supreme court in sections 1346 and 1349 of this act. Section 3189 reads: An appeal to the supreme court may also be taken from an interlocutory judgment rendered or an order made at chambers or at a special term, or a trial term of said city court * * * in a case where an appeal may be taken to the appellate di- vision * * * from an interlocutory judgment rendered as prescribed in sections 1347, 1348, and 1349 of this act. Section 3188 was amended by the Laws of 1902, by in- serting the words "interlocutory judgment," but there was a failure to omit or to strike out these words in sec- tion 3189 and the failure to make such omission the court considered an inadvertence. So that an appeal from an interlocutory judgment was held not to come within section 3189 but section 3188 of the Code and therefore the costs to be allowed on an appeal from a de- murrer should be twenty dollars before argument and forty dollars for argument, as provided for in section 3251, subdivision 4, of the Code. Campbell v. Hallihan, 46 Misc. 409. The word "trial" in subdivision 4, is used in a broad sense and is meant to include judgments both interlocutory and final, whether rendered on the APPEALS 6 1 or equity side of the court. Campbell v. Hallahan (supra). 115. Interlocutory judgment reversed. An interlocutory judgment overruling a demurrer to a complaint having been reversed with costs of the appeal and in the trial court, the successful party is entitled to tax twenty dollars before argument, and forty dollars for argument. Campbell v. Hallihan (supra). 116. Interlocutory judgment affirmed. But on an affirmance of an interlocutory judgment on a demurrer, the successful party is entitled to the taxation of forty dollars only for argument of appeal. Hill v. Muller, 53 Misc. 262. 117. Demurrer heard as a contested motion. Costs on an appeal from a demurrer brought on as a contested motion at Special Term, is $10 costs at Special Term and $10 costs on appeal. Keyes v. Lestershire H. R. Co., 158 N. Y. S. 617. Where, however, the Court of Appeals affirmed a judgment of the Appellate Division overruling a demurrer to an answer heard at special term as a contested motion pursuant to section 976 of the Code, the successful party was held to be entitled to tax $30 before argument and $60 for argument (section 3251, subdivision 5). H. G. Vogel Co. v. Wolff, 160 A. D. 831. 118. Only one bill against several respondents. Where the order of an appellate court affirms an order of the court below "with costs," although there may be 62 TAXATION OF COSTS several respondents appearing separately such order has been construed to allow only one bill of costs on appeal. Matter of Kin, 139 A. D. 766. 119. Motion for new trial made at the close of trial. An appeal from an order entered on either the grant- ing or denial of a motion for a new trial carries costs as provided for in section 3251, subdivision 4, of the Code, $20 before argument and $40 for argument. Where, therefore, upon the rendition of a verdict a motion was made at the trial on the minutes of the court to set the verdict aside which was granted, and, upon appeal the order having been reversed with costs, the clerk refused to allow $20 before argument and $40 for argument, the appellate court reversed the Special Term order which up- held the clerk's ruling and directed that such costs should be taxed. Cusick v. Adams, 47 Hun, 455. Section 3251, subdivision 4, referred to, reads in part as follows, "an appeal * * * f rO m an order grant- ing or refusing a new trial, rendered or made at a trial term of the supreme court or of the city court of the city of New York" before argument $20, and for argu- ment $40. 120. Appeal from order granting new trial on newly dis- covered evidence. Order reversed. Costs of appeal on the reversal of an order of the City Court granting plaintiff a new trial on the ground of newly discovered evidence is $20 before argument, and $40 for argument; because the successful party is en- titled to the same costs as he would have been entitled to tax in the lower court had he been successful there. APPEALS 63 Section 3251, subdivision 3, paragraph 8, provides that a motion for a new trial upon newly discovered evidence must be made on a case and the taxable costs are the same as on an appeal as provided for in subdivision 4 of the same section. Although the costs were denomi- nated in the bill submitted as being costs "upon appeal to the Appellate Term" it was held to be immaterial. Brennan v. Joline, 70 Misc. 537. 121. Appeal from order. An appeal from an order granting or denying a new trial on newly discovered evidence carries only $10 costs, and disbursements are allowable. An allowance of $20 and $40 was held to be improper and was stricken out. Benjamin v. Brownstein, 79 Misc. 84. This latter decision is apparently contrary to that of Brennan v. Joline (supra). But upon a close reading of the two cases it will be noted that there was in the case of Benjamin v. Brownstein (supra) an affirmance of the order of the court below, not in any way inter- fering with costs granted there, and that the only ques- tion before the appellate court was as to costs granted on the appeal from the order only. Such costs are gov- erned by section 3236 and section 3251, subdivision 3, par. 9, of the Code allowing only ten dollars. 122. Costs on appeal from order same as motion costs. The hearing of an appeal from an order is to be re- garded as a motion for the purpose of costs, and the same costs are to be allowed as on a decision of a mo- tion. Cassidy v. McFarland, 139 N. Y. 201 ; Matter of Van Dusen, 132 A. D. 592. 64 TAXATION OF COSTS 123. Costs includes disbursements. Where an appellate court affirms a final order with costs it means ten dollars costs together with disburse- ments. Cassidy v. McFarland, 2 Misc. 189; Matter of Babcock, 86 A. D. 564. Otherwise if it is an interlocu- tory order. Disbursements in such event must be ex- pressly allowed. Burnel v. Coles, 26 Misc. 378. 124. Costs on reargument of appeal. Where a reargument is ordered the successful party is entitled to the costs of such reargument, provided it was not brought about through any act or omission of the party taxing them. Guckenheimer v. Angevine, 1 6 Hun, 453. 125. Submission of papers same as argument. A submission of an appeal by consent without oral argument is an "argument" within section 3251 of the Code of Civil Procedure. Malcolm v. Hamill, 65 How. Pr. 506. 126. Reargument on disqualification of judge. Where an appeal was argued before the Appellate Division, and the court ordered a reargument because one of the justices who heard the argument had been transferred, the successful party was entitled to tax a fee for the reargument as well as for the argument of the appeal. Roberson v. Rochester Folding Box Co., 68 A. D. 528. 127. Motion costs granted in appellate court. "Motion costs" imposed on a motion for reargument on appeal form no part of the costs referred to in the APPEALS 65 order affirming the judgment below, and the taxation of the same in the lower court was unauthorized. Hill v. Muller, 53 Misc. 262. 128. Costs of reargument when same is referred. Where a reargument was granted but the judges sitting refused to hear or permit reargument and sent the briefs submitted to the judges who had previously heard the argument, the successful party is entitled to tax costs of reargument. Schwartz v. Ribaudo, 63 Misc. 64. 129. Costs as awarded in the Court of Appeals. When the Court of Appeals awards a party costs in the trial court, the award carries with it not only the taxable costs and the taxable disbursements, but such further sum, if any, by way of extra allowance, as that court, in the exercise of a sound discretion may award. Hascall v. King, 165 N. Y. 288. 130. "Costs" as used in undertakings on appeal. The term "costs" as used in section 1326 of the Code, relative to undertakings on an appeal to the Court of Appeals, includes only such costs as are awarded in that court. Gallinger v. Engelhardt, 26 Misc. 49. 131. Costs for making and serving a case in Court of Appeals not taxable. Under section 3251, subdivision 5, of the Code costs allowable to be taxed upon appeal to the Court of Ap- peals are $30 before and $60 for argument. Nothing can be taxed for making and serving a case. Shaver v. Eldred, 86 Hun, 51. 66 TAXATION OF COSTS 132. Costs for case on appeal to be taxed by appellant only. The statutory costs allowed for making and serving a case can be taxed only by the appellant. Respondent does not become entitled to them when the appellant is defeated. Feiber v. Home Silk Mills, L. J. Nov. 10, 1914. 133. Costs on dismissal of appeal. Where the Court of Appeals dismisses an appeal "with costs and $10 costs of motion" upon a preliminary mo- tion to dismiss the appeal and after the argument thereof, or upon a motion embodied in the argument of re- spondent, respondent is not entitled to tax the argument fee in the Court of Appeals. Matter of Wray Drug Co., 93 A. D. 456. 134. Costs in certiorari proceedings. In certiorari against assessors to review their official actions, the award and taxation of costs is governed by the provisions of Chapter 269 of the Laws of 1880, and costs of appeal, if allowed, are to be allowed as on appeals from orders under section 3239 of the Code of Civil Procedure. People ex rel. v. Barker, 90 Hun, 253; People ex rel. v. Pratt, 50 State Rep. 355. 135. Costs to abide the event. The courts have been at variance as to the proper meaning, interpretation, and construction to be placed upon the phrases "with costs" and "with costs to abide the event" as used by the appellate courts in affirming or reversing a judgment or order of the court below. There are two lines of decisions which apparently are APPEALS 67 directly opposed to each other. One set of authorities, supported by the highest court in the state, draws a dis- tinction between "with costs" used without any addi- tional qualifying limitation, and "with costs to abide the event," holding that where a judgment is affirmed or reversed "with costs to abide the event," the party finally successful in the action, is entitled to all costs of the action including the costs on appeal; but when an order is affirmed or reversed "with costs" the costs in- tended are those of the appellate court only. 136. Construed to include all costs in the action. In an action where the appellate court dismissed with costs all the proceedings below, it was held that the court intended to control the whole subject and award costs in the lower courts. In the Matter of Andrew Hood, 30 Hun, 472. Chief Justice Daly in Star Cash C. Co. v. Reinhardt, 6 Misc. 365, said, "when we reverse a judg- ment of the City Court and order a new trial with costs to the appellant to abide the event, we intend that the costs of appeal to this court, and of the appeal to the General Term of the City Court and of the trial which resulted in the judgment reversed, shall be included in such costs." Similarly held where an order of the Court of Appeals ordered a new trial with costs to abide the event that the costs of the former trial as well as those of the appeal were intended to be allowed. Mott v. Consumers Ice Co., 8 Daly, 244. Another leading case is Franey v. Smith, 126 N. Y. 658, where the plaintiff having recovered judgment on the first trial and upon appeal to the Appellate Term the judgment was affirmed, but on appeal to the Court 68 TAXATION OF COSTS of Appeals it was reversed and a new trial granted "with costs to abide the event." Upon the second trial the complaint was dismissed. The court, Per Curiam, held that " where we reverse the judgment of the court below, and grant a new trial 'with costs to abide the event' all the costs of the action up to that time are intended." Opposed to these decisions and more generally followed by a majority of the courts, including the Court of Ap- peals, are those expressed in a very early decision where the court held that the costs allowed were the costs of appeal only, without drawing any distinction between the phrases "with costs" and "with costs to abide the event" whether the appeal was from a judgment or from an order. 137. Construed as costs in appellate court only. In Howell v. VanSiclen, 8 Hun, 524, the court granted a new trial with costs to defendant to abide the event. The costs allowed were held to mean the costs of the appeal and not the costs of the action. When therefore on the second trial the plaintiff was again successful he became entitled to costs in the action except the costs of the appeal. So also where a judgment of the City Court was re- versed by the Appellate Term with costs to abide the event, the costs conditional on the event were held to be those of the appellate court only. In such a case if the respondent succeeds on the second trial he is entitled to tax costs of both trials. Berrent v. Simpson, 61 Misc. 6zi. The Appellate Division reversed the Appellate Term and ordered a new trial with costs to appellant to abide APPEALS 69 the event. Upon a retrial the respondent again suc- ceeded in obtaining judgment. The court in that case did not allow the taxation of costs and disbursements of the appeal to the Appellate Term, but allowed the taxation of costs of the first trial to stand on the ground that the costs of the trial are given to the successful party by statute and that neither a trial court nor an appellate court can deprive him of it. Walnut Hill Bank v. National Reserve Bank, 76 Misc. 208; Murtha v. Curley, 92 N. Y. 359. In Belt i}. American Central Insurance Co., 33 A. D. 239, the court held that the costs awarded by the Court of Appeals in reversing a judgment with costs to abide the event were costs in the Court of Appeals only. Sim- ilarly in First National Bank of Meadville v. Fourth National Bank of New York, 84 N. Y. 469, the court said "where an order is made by this court, on appeal from a judgment, with costs to abide the event and with- out other limitation, the respondent if successful, is entitled to tax the costs of the appeal." The reversal of the original order was with costs and as construed it entitled the appellant to costs of this court only. Matter of Water Commissioners, 104 N. Y. 677; this case was followed and cited with approval hi Broadway Savings Institution v. Town of Pelham, 148 N. Y. 737; Dobeck v. Austro- American S. S. Co., 83 Misc. 641. Same rule followed in Adams v. Massey, 51 Misc. 230, where the defendant having appealed to the Appellate Division from a judgment against him, the judgment was reversed with costs to appellant to abide the event. The second trial which resulted in a judgment for de- 70 TAXATION OF COSTS fendant was also reversed with costs to abide the event. On the third trial the plaintiff having finally succeeded in the action was not allowed to tax the costs of appeal of the first judgment. "The rule seems to be well established that when the Court of Appeals in its discretion allows or disallows costs its determination of the subject applies to that court only." Fulton v. Krull, 151 A. D. 143; Stevens v. Central National Bank, 168 N. Y. 560. The Court of Appeals will not, however, interfere with the construction and interpretation by the lower court of its own order with reference to the words "with costs to abide the event" as used by it. Union Trust Co. v. Whiton, 78 N. Y. 491. 138. Party finally successful entitled to tax them. A recovery of costs in an action may be limited to one of the parties to the action but where an order re- versing a judgment and granting a new trial is made with costs to abide the event, without other limitation, the party finally succeeding in the action is entitled to tax them. First National Bank of Meadville v. Fourth National Bank of New York, 84 N. Y. 469, distinguished in Thomas v. Evans, 50 Hun, 441, wherein the court held that the costs intended were those of the Court of Ap- peals only. In Elliot v. Luengene, 19 Misc. 428, following the riding in Starr Cash Car Co. v. Reinhardt, a new trial was ordered "with costs to appellant to abide the event," and the respondent plaintiff having again suc- ceeded in the action, he was not entitled to tax the costs of the first trial nor the costs of the appeal. APPEALS 71 138a. When appeal costs may be taxed. On an appeal taken from the Supreme Court to the Court of Appeals the clerk will not tax costs of such appeal unless an order had been previously entered making the order and judgment of the Court of Appeals the order and judgment of the Supreme Court. Likewise when an order or judgment of the City Court has been appealed to the Appellate Term or Appellate Division, no costs may be taxed until after an order had been entered making the order and judgment of the Appellate Term or Appellate Division the order and judgment of the City Court. It has been the practice in the City Court not to tax appeal costs unless notice of such taxation has previously been served on the adverse party. CHAPTER XIV ACTIONS RELATING TO REAL PROPERTY 139. Right to costs not limited to amount of recovery. 140. Title to property must be in question. 141. Plaintiff must obtain an affirmative judgment. 139. Right to costs not limited to amount of recovery. Where the demand for costs is made under subdivi- sion i, of section 3228 of the Code in an action "triable by a jury to recover real property or an interest in real property, or in which a claim of title to real property arises upon the pleadings" the plaintiff is entitled to tax costs even if he recovers less than fifty dollars if he succeeds as to any part of the title. Hall v. Hodskins, 30 How. Pr. 15; Locklin v. Casler, 50 How. Pr. 43. The defendant, however, although he obtains judg- ment in his favor must obtain a certificate that title to real property was at issue under section 3235 of the Code. If the pleadings do not disclose that title to real property was raised at the trial, the successful party must obtain a certificate from the judge or referee who tried the case certifying to that fact. Cooley v. Cummings, 4 N. Y. S. 53- 140. Title to property must be in question. Unnecessary allegations as to title to real property does not bring up the question of title. Rathbone v. McConnel, 21 N. Y. 466; Bloomingdale v. Steubing, 72 ACTIONS RELATING TO REAL PROPERTY 73 35 N. Y. S. 1074. Nor is it sufficient that the question relates to real property. The title must be in question. Collins i). Adams, 4 N. Y. S. 217. If the court had no jurisdiction to try the question of title no costs can be imposed or taxed. Wilkins v. Williams, 3 N. Y. S. 897. Where a personal cause of action is united with one relating to real property and the plaintiff recovers less than fifty dollars in the former and is defeated in the latter he cannot tax costs. Alexander v. Hard, 42 How. Pr. 131. 141. Plaintiff must obtain an affirmative judgment. Where the demand for costs is made under this sub- division there must be a final judgment in plaintiff's favor. Where, therefore, the jury does not find any tres- pass has been committed and there is no verdict for plaintiff for damages, costs cannot be taxed by the plaintiff. Hill v. McMahon, 81 A. D. 324. Costs were allowed where the plaintiff succeeded in establishing trespass in Bowen v. Holdredge, 134 A. D. 855. Where the plaintiff recovers possession of property and six cents damages, the defendant, although he suc- ceeded in recovering six cents damages on the counter- claim for an unlawful interference with an easement, is not entitled to tax costs, because plaintiff succeeded in the action. Peck v. Haverstraw Water Supply Co., 81 Misc. 428. CHAPTER XV ACTIONS FOR ASSAULT, SLANDER, ETC, 142. Statutory provisions. 142. Statutory provisions. Subdivision 3 of section 3228 of the Code provides that "in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal con- versation, seduction or malicious prosecution; or a fine or penalty in which the people of the state are a party, the plaintiff recovers less than fifty dollars damages, the amount of his costs cannot exceed the damages." 74 CHAPTER XVI ACTIONS IN REPLEVIN 143. Statutory provisions. 144. Costs dependent on amount of recovery. 145. Allowance of costs. 146. Costs disallowed. 147. When recovery is within 3228, subd. 5, of the Code. 143. Statutory provisions. If the value of a chattel or of all the chattels recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars the amount of his costs cannot exceed the amount of the value and the damages. Section 3228 of the Code of Civ. Pro- cedure, subdivision 2. 144. Costs dependent on amount of recovery. The plaintiff in a replevin action in order to entitle himself to a full bill of costs, must establish in addition to his right to recover possession of the chattel in con- troversy, the fact that its value together with the dam- ages, if any, which shall be awarded to him amounts to the sum of fifty dollars or more. If the amount recov- ered is less than fifty dollars the costs cannot exceed the amount of such value and damages. Rapid Safety Fil- ter Co. v. Wyckoff, 20 Misc. 429. 145. Allowance of costs. Where, therefore, a plaintiff sued in the City Court of 75 76 TAXATION OF COSTS the City of New York in replevin for property alleged in the complaint and writ to be of the value of $850, and shown to be worth more than $250, and was awarded the property together with $150 damages for the detention, he was entitled to tax the usual costs in an action in the City Court. Smith v. Walker, 131 N. Y. S. 676. So also where the plaintiff in an action for the re- covery of a chattel accepts an offer for the return, making no provisions for an amount to be paid in lieu of failure to return the chattels, with two dollars damages for its detention, only two dollars costs which follow the money damages can be imposed. Hausauer v. Macha- wicz et al, 54 A. D. 23. 146. Costs disallowed. Where all claims for damages for the detention of the property in an action in replevin was waived, and there was also no proof offered which tended in any way "to fix" the value of such property, no costs were allowed to be taxed. Herman et al. v. Gervin, 8 A. D. 418. Similarly held in an action in replevin where the plain- tiff succeeded in recovering the chattels without fixing any value of the chattels nor obtaining any damages for the detention thereof, costs were not allowed the plain- tiff. Lockwood v. Waldorf, 36 N. Y. S. 199. The value of the chattels will not be allowed to be shown by affidavit. Rapid Safety Filter Co. v. Wyckoff, 20 Misc. 429. Where the costs allowed cannot exceed the amount recovered, such costs include costs and disbursements. People of the State of New York v. Keller, 35 Misc. 785- ACTIONS IN REPLEVIN 77 147. When recovery is within 3228, subd. 5, of the Code. Where in an action in replevin brought in the City Court, the chattels were returned to the plaintiff with- out having their value fixed on the trial of the action, and the damages allowed were only fifty dollars, the court ruled that the amount recovered being less than two hundred and fifty dollars, section 3228, subdivision 5, applied and no costs were allowable. Hoornbeck v. Baker, L. J. Feb. 7, 1914. CHAPTER XVII ACTIONS TO RECOVER SUM OF MONEY ONLY 148. Recovery of fifty dollars or more. 149. Recovery less than fifty dollars. 148. Recovery of fifty dollars or more. To entitle the plaintiff to costs under subdivision 4, section 3228, of the Code, the judgment demanded must be for money only and the recovery must be fifty dollars or more. It does not matter whether the action is legal or equitable. Murthey v. Curley, 92 N. Y. 359. Where a summons contains a notice that upon de- fault judgment will be taken for a specific amount with costs, it will be assumed that the complaint would have demanded a money judgment only, and in such a case it is immaterial whether the action is a legal or an equi- table one. Murthey v. Burke, 121 A. D. 400. 149. Recovery less than fifty dollars. A plaintiff having sued three defendants for injuries received, settled with two of them for two thousand dollars. He continued the action against the third and obtained a verdict for six cents. The court disallowed wholly the plaintiff's bill of costs on the ground that the recovery was for less than fifty dollars and came within the provisions of section 3228, subdivision 4, of the Code. Gaetjens v. City of New York, 145 A. D. 640. An action was brought in the City Court and plaintiff ACTIONS TO RECOVER SUM OF MONEY ONLY 79 recovered judgment for more than fifty dollars. On appeal judgment was reversed with costs to appellant to abide the event. On the second trial the plaintiff hav- ing recovered less than fifty dollars he was not allowed to tax costs of the first trial nor of the appeal. On the contrary the court allowed defendant the costs of the appeal and of both trials. Lennon v. Chang, 54 Misc. 299. CHAPTER XVIII ALLOWANCE OF COSTS WHEN RECOVERY COMES WITHIN 3228, SUBDIVISION 5, OF THE CODE 160. Statutory provisions. 151. Allowance of costs dependent upon place of service. 162. Meaning of " triable." 163. When amount of recovery brings cause within section. 164. No allowance on voluntary appearance of defendant. 166. When costs allowed on voluntary appearance of de- fendant. 166. Subdivision 6 does not apply to appeal costs. 167. Effect of subds. 4 and 6 of 3228 and 3229. 150. Statutory provisions. The plaintiff is not entitled to costs if he recovers less than one thousand dollars in an action in the Supreme Court where the nature of the action is such that it could have been tried in the City Court but for the amount demanded in the complaint, or where the amount recovered is less than five hundred dollars where the na- ture of the action is such that it could have been brought in the County Court; or where the plaintiff recovers less than two hundred and fifty dollars in an action in the City Court where the nature of the action is such that it could have been tried in the Municipal Court. Streat v. Wolf, 132 A. D. 873. 151. Allowance of costs dependent upon place of service. The question as to whether the provisions of subdivi- 80 SEC. 3228, SUED. 5 OF CODE 81 sion 5 of section 3228 apply is, "where was the service actually made" and not whether any other service could have been made so as to bring the action in a court of lesser jurisdiction. So that although a defendant may have a place of business in New York county but resides in Kings county, nevertheless if he is served in Kings county in an action brought in the New York Supreme Court, the plaintiff is entitled to recover costs although the recovery was less than one thousand dollars. The question is, was the service made in New York county? It is immaterial whether any other service could have been made so as to bring the action within the juris- diction of the City Court. Moraff v. Kohn, 157 A. D. 648. Where therefore, at the time of the commencement of the action the plaintiff resides in Manhattan and de- fendant in Brooklyn, Kings county, where he was served with summons, and the trial of the action results in the recovery of less than one thousand dollars the plaintiff is entitled to recover costs. G. P. Putnam's Sons v. Picket, 152 A. D. 814. 152. Meaning of " triable." The word "triable" as used in the section is intended to mean the place of trial as indicated in the venue. Therefore, although defendant was served in Kings county but was tried in Queens county, plaintiff is en- titled to costs although the amount recovered was only one hundred dollars. Burgdorf v. Brooklyn, Queens County & S. R. Co., 130 A. D. 253. The term is also intended to refer to conditions not as they existed at the time of bringing of the action but to 82 TAXATION OF COSTS conditions existing at time of trial of the action. Sey- mour v. Wheeler, 137 A. D. 52. 153. When amount of recovery brings cause within section. Plaintiff obtained a judgment for less than two hundred and fifty dollars on failure of defendant to appear in an action brought in the Supreme Court that could have been brought in the City Court. On motion the court opened the default on payment of "costs of action." "Under subdivision 5 of section 3228 of the Code there could be no costs of the action because the amount re- covered was less than one thousand dollars, the nature of the action being such that it could have been brought in the City Court. The clerk was justified in refusing to tax a bill of costs and the order directing him to do so was erroneous." Girbekian v. Costikyan, 126 A. D. 813. Where a recovery of less than $250 was had in an ac- tion in the Kings County Court that could have been brought in the Municipal Court, the clerk was not au- thorized to tax costs although the defendant did not assert the prohibition of the statute before the clerk. The plaintiff was deprived of the right to any costs by reason of the express provision of subdivision 5 of sec- tion 3228, and it was not necessary to object to the clerk's taxation. Leyden v. Brooklyn Heights R. R. Co., 122 A. D. 383. In an action in the City Court brought upon two causes of action amounting to $776 where one cause of action was settled and by stipulation eliminated from the suit, and the plaintiff recovered a verdict of $200 on the other cause of action, he was not entitled to costs, SEC. 3228, SUED. 5 OF CODE 83 and a motion to vacate the taxation should be granted. Hill v, Kann, 50 Misc. 360. 164. No allowance on voluntary appearance of de- fendant. The Appellate Division has construed differently the effect of a voluntary appearance of a defendant with reference to subdivision 5 of section 3228 of the Code, making such voluntary appearance in one instance equivalent to a personal service and in other instances refusing to consider it equivalent to personal service within the meaning of that subdivision. Upon a critical reading of the cases, however, it will be observed that the defendant in one instance is a resi- dent of the county where the trial of the action takes place and in the other he is a non-resident. So that when there was a voluntary appearance by a resident of the county of New York in an action in the Supreme Court it was considered equivalent to personal service upon him and the plaintiff having recovered less than one thousand dollars he was not entitled to tax any costs. Hubbard v. Heinze, 145 A. D. 828. 155. When costs allowed on voluntary appearance of defendant. But in an action brought in the Supreme Court against a foreign non-resident defendant upon whom service of summons by publication has been improperly effected and who voluntarily appears in the action, the plaintiff, although he recovered less than one thousand dollars, was allowed to tax a full bill of costs. The court con- strued such voluntary appearance not the equivalent 84 TAXATION OF COSTS of a personal service within the county so as to preclude the plaintiff from taxing costs. "The sole test pre- scribed by the provisions of subdivision 5, with respect to whether the action could have been brought in the City Court is whether service was actually made in New York county." Jacob v. White, 164 A. D. in. Similarly held in an action in the City Court where defendant was a non-resident and before service by pub- lication was commenced he voluntarily appeared in the action and the court directed the taxation of the costs although the recovery was only one hundred dollars, such voluntary appearance not having been considered as personal service within the provisions of the section. Swartout v. Scheideberg, 68 Misc. 133. 156. Subdivision 5 does not apply to appeal costs. Subdivision 5 of section 3228 has no application what- ever to costs given on appeal. La Rosa v. Wilner, 54 Misc. 574. Where, therefore, upon appeal a new trial is granted with costs to abide the event, such costs are taxable notwithstanding section 3228, subdivision 5, limiting taxation of costs in certain cases. Section 3237 of the Code provides that such section shall not affect the recovery of costs on appeal. Seldin v. Block, 153 N. Y. S. 980. 157. Effect of subdivisions 4 and 5 of 3228 and 3229. The defendant is entitled to costs if the plaintiff re- covers less than fifty dollars as provided for in section 3228, subdivision 4, in conjunction with section 3229 of the Code. But neither plaintiff nor defendant is en- SEC. 3228, SUED. 5 OF CODE 85 titled to costs if the plaintiff recovers $50 or more, but less than $1,000 in an action in the Supreme Court where the nature of the action is such that it could have been tried in the City Court but for the amount demanded; or where the plaintiff recovers $50 or more and less than $250 in an action in the City Court where the na- ture of the action is such that it could have been tried in the Municipal Court. The latter part of subdivision 5 stating that "the fact that in any action a plaintiff is not entitled to costs under the provisions of this subdivision shall not entitle the defendant to costs under the next following section" is applicable to cases in which the plaintiff cannot tax costs solely by reason of that subdivision. Streat v. Wolf, 132 A. D. 873. The latter part of subdivision 5 is not intended to deprive defendant of costs merely because the plaintiff is not entitled to costs by reason of his failure to recover the amount specified therein. So that where a plaintiff refused to accept an offer of judgment by defendant and on trial he recovers less than the amount offered, defendant is entitled to costs subsequent to the time of the offer. Patterson v. Woodbury Der- matological Institution, 117 A. D. 600. A reference under the Code is governed in the matter of costs in the same way as all other actions, and it is necessary for plaintiff to recover the amounts specified in section 3228, subdivisions 4 and 5, to entitle him to costs. CHAPTER XIX DEFENDANT ENTITLED TO COSTS 158. Statutory provisions; 3229. 159. When one of several defendants obtains judgment. 160. Where attorney for defendant is public official. 158. Statutory provisions; 3229. Defendant is entitled to costs upon the rendering of a final judgment when the plaintiff is not. "But where in such an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs, of course. In that case costs may be awarded, in the discretion of the court, to any defendant, against whom the plaintiff is not entitled to costs, where he did not unite in an answer, and was not united in interest, with a defendant, against whom the plaintiff is entitled to costs." 159. When one of several defendants obtains judgment. So that, where a complaint has been dismissed as to one defendant who answered separately, costs are in the discretion of the court, and judgment entered in such case including costs where none have been awarded, should be corrected on motion. Ljunquist v. Hartmetz, 54 Misc. 87. In an action against endorsers and maker of a note wherein the maker defaults and the endorsers, as de- 86 DEFENDANT ENTITLED TO COSTS 87 fendants, answer and obtain judgment, they cannot tax costs without an order of the court allowing them to do so. Bruck v. Lambeck, 63 Misc. 185. 160. Where attorney for defendant is public official. The fact that the defendants were represented by the corporation counsel who receives no compensation except an official salary, is of no effect. The defendants having succeeded in the action their right to costs of the action is statutory. Stearns v. Titus, 114 A. D. 197. CHAPTER XX PARTIAL RECOVERY BY BOTH PARTIES IN SUIT OF SEVERAL CAUSES OF ACTION 161. Statutory provisions; 3234. 162. Allowance of costs to both plaintiff and defendant. 163. When defendant not entitled to costs. 164. When counterclaim is interposed by defendant, pre- vailing party entitled to costs. 161. Statutory provisions; 3234. Section 3229 of the Code reads in part, "The defend- ant is entitled to costs, of course, upon the rendition of final judgment in an action specified in the last section (section 3228) unless the plaintiff is entitled to costs as therein specified." Section 3234 of the Code provides that "In an action specified in section 3228 of this act wherein the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more issues and the defendant upon the others, each party is entitled to costs against the ad- verse party, unless it is certified that the substantial cause of action was the same on each issue, in which case the plaintiff only is entitled to costs. Costs to which a party is so entitled must be included in the final judgment by adding them to or offset- ting them against the sum awarded the prevailing party * * *". 88 PARTIAL RECOVERY BY BOTH PARTIES 89 162. Allowance of costs to both plaintiff and defendant. It is necessary for defendant, in order to be allowed costs within the foregoing provisions of the Code, to obtain an affirmative judgment in his favor as to one or more of the causes of action alleged in the complaint, in the form of a verdict or finding that will have the effect of disposing of the cause of action and be conclusive on the parties. A mere dismissal of complaint, however, or a nonsuit is not sufficient. Where, therefore, causes of action were separately stated, and issues of fact were taken as to each of them, and the jury was instructed to render a verdict for de- fendant as to one cause of action and the plaintiff suc- ceeded as to the other cause of action, all the provisions for two bills of costs contained in section 3234 were present, for in regard to each of such cause of action there was a decision by a proper tribunal of a question of fact which was conclusive on the parties to the action, and the defendant was allowed to tax his bill of costs. Browning v. Lake Erie & W. R. R. Co., 64 Hun, 513. Same ruling obtained where an action was brought on two separate notes and the Statute of Limitations having been pleaded as to them, the. court decided in the de- fendant's favor as to one of them and the plaintiff having obtained judgment as to the other, the court allowed defendant as well as the plaintiff to tax his bill of costs. The fact that the court decided in defendant's favor, instead of the jury by direction of the court is not con- trolling. There was a finding in favor of defendant on that issue. Blashfield v. Blashfield, 41 Hun, 249. Thus also in an action in replevin where the jury found in favor of plaintiff as to part of the property and for 90 TAXATION OF COSTS defendant as to the remainder, assessing the value of defendant's part, it was held that the defendant was en- titled to costs. Johnson v. Fellows, 6 Hill, 353. 163. When defendant not entitled to costs. Where the plaintiff in his complaint sets forth three causes of action as to two of which he is nonsuited and succeeds as to the third, the defendant is not entitled to tax costs. The appellate court in its opinion says that, "In such cases if defendant intends to claim costs, he should ask for an affirmative verdict or finding in his favor that will have the effect of disposing of the cause of action as to which the plaintiff has failed. It is only when he recovers upon one or more of the causes of action that costs follow, and in the absence of an actual verdict, finding, or judgment in his favor this condition is not satisfied." Burns v. D., L. & W. R. R. Co., 63 Hun, 19, aff'd 135 N. Y. 268; Crossley v. Cobb, 42 Hun, 166; Moosbrugge v. Kaufman, 7 A. D. 380; Reilly v. Lee, 33 A. D. 201. In Reilly v. Lee (supra) two causes of action were set up in a complaint. The referee before whom the case was tried nonsuited the plaintiff as to one and rendered a general report in his favor as to the other for a sum of money upon which a judgment was entered, but there was not an affirmative verdict or finding or judg- ment in favor of defendant. The latter was not allowed to tax costs because he had not "recovered" upon any of the issues. Nor was the defendant allowed to tax costs upon the dismissal of the complaint as to one of two causes of action in a suit for libel, the plaintiff having recovered PARTIAL RECOVERY BY BOTH PARTIES 91 on the other. McCarthy v. Innis, 61 Hun, 354; Briggs v. Allen, 4 Hill, 538. 164. When counterclaim is interposed by defendant, prevailing party entitled to costs. The rule, however, applicable to the allowance of costs where defendant interposes a counterclaim is different. Costs in that case follow the allowance of general costs. The prevailing party or the party obtaining an affirma- tive judgment in the action, is entitled to them. A defendant prevails in an action when he defeats the plaintiff's claim either by disproving it or by estab- lishing a counterclaim equal to or greater than the demand in the complaint. Rohrs v. Rohrs, 72 Misc. 108. Therefore, although a plaintiff prevails upon the cause of action alleged in the complaint, nevertheless, if an offset equal to or greater than the amount of the claim is established, the defendant and not the plaintiff is the prevailing party in the action and the former is entitled to tax costs. Rohrs v. Rohrs, 72 Misc. 108. "Costs follow the judgment. The party in whose favor judg- ment is to be entered is the prevailing party. * * * It matters not that the defendant has failed to establish his counterclaim that he has set up, he is still entitled to judgment and to costs if the plaintiff does not get judg- ment." Grain v. Holcomb, 2 Hilton, 269. To the same effect in Thayer v. Holland, 63 How. Pr. 180, and Whitlegge v. DeWitt, 12 Daly, 319, where it was held that although the defendant did not suffi- ciently establish the counterclaim, nevertheless, the plain- tiff having failed to establish his right to recovery, the de- fendant was the prevailing party and entitled to costs. 92 TAXATION OF COSTS Section 3234 of the Code has no application to a case of this kind. In an action on contract defendant denied the con- tract and interposed a counterclaim. On the trial of the action the jury brought in a verdict for defendant on the cause of action and a verdict for plaintiff on the counterclaim. The finding of the jury for plaintiff on the counterclaim had the effect merely of disallowing the counterclaim, and the finding by the jury on the main cause of action for defendant adjudged him the prevail- ing party in the action and entitled him alone to tax costs. Rohrs v. Rohrs, 72 Misc. 108; Ury v. Wilde, 3 N. Y. S. 791. Where, however, a counterclaim is interposed and the jury finds for plaintiff on the cause of action and for de- fendant on the counterclaim, and after deducting the counterclaim the plaintiff is entitled to $150, held that there being an affirmative judgment for the plaintiff the defendant cannot tax costs. The plaintiff, however, cannot tax costs if the action was brought in the City Court and the recovery was less than two hundred fifty dollars (section 3228, subdivision 5). Auerbach v. Ramor, L. J. Feb. 20, 1915. CHAPTER XXI DRAWING INTERROGATORIES AND TAKING DEPOSITIONS 165. Statutory provisions as to drawing interrogatories. 166. Only one fee of ten dollars taxable. 167. Where more than one fee may be charged. 168. Statutory provisions as to taking depositions. 169. Fees are statutory and. follow issuance of commission. 170. Deposition by stipulation. 171. Fee follows general costs. 172. One fee allowable where one order is issued. 173. Where several parties obtain orders. 174. Allowance of costs although examination is waived. 175. Costs allowed although order was obtained by adverse party. 176. No allowance of costs where officer other than com- missioner takes deposition. 165. Statutory provisions as to drawing interrogatories. Sec. 3251, subdivision 3, par. 3. For drawing interrogatories to be annexed to a commission, or to letters rogatory, issued as prescribed in sections 888, 912, 913, and 3171 of this act, ten dollars. Under this section of the Code a party is entitled to ten dollars for drawing interrogatories although they may never have been served. Evans v. Silberman, 7 A. D. 139. 166. Only one fee of ten dollars taxable. But one charge of ten dollars can be made for all in- 93 94 TAXATION OF COSTS terrogatories annexed to a commission although a num- ber of witnesses are named therein and separate inter- rogatories are drawn for each. O'Brien v. Commercial Fire Insurance Co., 38 N. Y. Sup. Ct. Rep. 4; Burns v~ D., L. & W. R. R. Co., 135 N. Y. 268. 167. Where more than one fee may be charged. Where separate commissions must issue for the exam- ination of witnesses in different localities, the party successful in the action is entitled to tax in his bill of costs the sum of ten dollars each for drawing the in- terrogatories attached to each commission. Rose v~ Swarthout, 73 Misc. 583. 168. Statutory provisions as to taking depositions. Sec. 3251, subdivision 3, par. 2. For taking the deposition of a witness or a party as prescribed in section 870, section 871, or section 893 of this act, ten dollars. Section 872 and those following set forth under what conditions the court will order a deposition to be taken. Section 879 allows a deposition to be taken on consent of the parties, upon a stipulation in writing, the same to be either orally or upon interrogatories to be agreed upon in like manner. 169. Fees are statutory and follow issuance of com- mission. Where a commission has been issued the statutory allowance follows, and neither the court nor the taxing officer can institute an inquiry as to the necessity there- INTERROGATORIES AND DEPOSITIONS 95 for. The party entitled to the general costs in the ac- tion is entitled to tax them. Burns v. D., L. & W. R. R. Co., 135 N. Y. 268. 170. Deposition by stipulation. Where the parties to an action, instead of taking the deposition of a party or witness under an order of the court, stipulate in writing under section 879 of the Code, that such deposition be taken, the successful party is entitled to tax costs for the deposition. Smith v. Servis, 59 Hun, 552, disapproving Newman v. Greif, 3 Civ. Pro. Rep. 362. 171. Fee follows general costs. The allowance under the statute belongs to the party entitled to the general costs in the action. So that, although the plaintiff did not succeed as to the cause of action for which he obtained the deposition, he was never- theless allowed to tax ten dollars because he was entitled to the general costs of the action. Burns v. D., L. & W. R. R. Co., 135 N. Y. 268. 172. One fee allowable where one order is issued. Where an order was issued for the examination of several witnesses and three of them were examined, only one fee of ten dollars was allowed. Burns v. D., L. & W. R. R. Co., 135 N. Y. 268. 173. Where several parties obtain orders. Where several plaintiffs obtain orders to examine the same defendant and although the plaintiffs are repre- sented by the same attorney and the defendant is exam- ined only once, nevertheless, if the defendant is successful 96 TAXATION OF COSTS in the action, he is entitled to tax ten dollars for each order so obtained. Steiner v. Ainsworth, 53 How. Pr. 31. 174. Allowance of costs although examination is waived. A party is entitled to the statutory allowance for at- tending an examination of a party before trial pursuant to an order or stipulation where such party attends ready to be examined, although the examination is waived and is never had thereafter. Steiner v. Ainsworth, 53 How. Pr. Rep. 31. 176. Costs allowed although order was obtained by adverse party. The successful party is entitled to tax the costs for the taking of a deposition before trial although the order for the deposition was obtained by the adverse party. So held where the plaintiff obtained the order and the defendant was allowed to tax the costs. Steiner v. Ainsworth, 53 How. Pr. Rep. 31. 176. No allowance when officer other than commis- sioner takes deposition. Where a deposition was ordered to be taken but the court failed to appoint a commissioner, and a notary public did nothing but administer the oaths, it was held improper to tax his fees as a commissioner. Valk v. Erie R. R. Co., 128 A. D. 470. Where there was no proof before the clerk that com- missioner's fees in taking the deposition were paid or any obligation to pay them incurred, they were im- properly taxed. Burns v. D., L. & W. R. R. Co., 135 N. Y. 268. CHAPTER XXII ADDITIONAL ALLOWANCE TO PLAINTIFF ON FORECLOSURE, ETC. 177. Statutory provisions. 178. How value of property is fixed. 179. Limitation of allowance to two thousand dollars de- fined. 177. Statutory provisions. Sec. 3252. Where the action is brought to foreclose a mortgage upon real property; or for the partition of real property; or to procure an adjudication upon a will or other instrument in writing; or to compel a de- termination of a claim to real property; or where in any action, a warrant of attachment against prop- erty has been issued; the plaintiff, if a final judgment is rendered in his favor, and he recovers costs, is en- titled to recover in addition to the costs prescribed in the last section * * *: Upon a sum not exceeding two hundred dollars, ten per centum. Upon an additional sum, not exceeding four hun- dred dollars, five per centum. Upon an additional sum, not exceeding one thou- sand dollars, two per centum * * * Sec. 3253. In an action brought to foreclose a mortgage upon real property, or for the partition of real property, or in a difficult and extraordinary 97 98 TAXATION OF COSTS case, * , the court may also in its discretion, award to any party a further sum as follows: 1 . In an action to foreclose a mortgage, a sum not exceeding two and one-half per centum upon the sum due, or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars. 2. In any action, or special proceeding, *, a sum not exceeding five per centum upon the sum re- covered or claimed, or the value of the subject- matter involved. Sec. 3254. But all the sums awarded to the plain- tiff cannot exceed, in the aggregate, two thousand dollars. 178. How value of property is fixed. For the purpose of fixing the allowance which may be made to the plaintiff, in accordance with the foregoing provisions of the Code, the value of the subject-matter involved is the value of the whole property, and for the purpose of fixing the allowance to any defendant, the value of that particular defendant's interest is the value of the subject-matter involved. Warren v. Warren, 203 N. Y. 250. In an action for partition the " subject-matter " involved is the property partitioned and it is its value, and not upon the plaintiff's share in it that extra allowance should be computed. Doremus v. Crosby, 66 Hun, 125. In an action to restrain the use of a trade name an ex- tra allowance is to be computed not on the mere amount of the damages recovered but on the value of the trade- mark. Such allowance shall be within the limits of sec- tion 3254 of the Code. Perkins v. Heert, 14 Misc. 425. FORECLOSURE, ETC. 99 179. Limitation of allowance to two thousand dollars defined. The limitation that in no event shall the allowance to a plaintiff, or to a party, or two or more parties on the same side exceed two thousand dollars, means that the allowance to a plaintiff cannot exceed two thousand dollars, and the allowance to all defendants considered as a class or a "side" shall not exceed two thousand dol- lars. Warren v. Warren, 203 N. Y. 250; Senter v. Petheram, 64 Misc. 294. Same ruling applies also to an allowance of counsel fees in proceedings for the acquisi- tion of land. Matter of Simmons, 71 Misc. 152; People ex rel. Armstrong v. Quigley, 75 Misc. 151. . CHAPTER XXIII WHEN DEFENDANT ENTITLED TO INCREASED COSTS 180. Statutory provisions. 181. Increased costs allowed in actions against sheriff. 182. Not allowed in actions on bond of officer. 183. Writ of certiorari not within the section. 184. Allowance of increased costs includes costs on appeal. 180. Statutory provisions. Sec. 3258. In either of the following cases a de- fendant, in whose favor a final judgment is rendered, in an action wherein the complaint demands judg- ment for a sum of money only, or to recover a chattel; or a final order is made, in a special pro- ceeding instituted by a State writ, is entitled to re- cover the costs, prescribed in section 3251 of this act, and, in addition thereto, one-half thereof: 1 . Where the defendant is or was a public officer appointed or elected * * * to per- form the duties of such an officer; and the action * * * was brought by reason of an act * * or an alleged omission by him, to do an act, which it was his official duty to perform. 2. Where the action was brought against the defendant, * by command of such of- ficer touching the duties of the office or appointment. 3. Where the action was brought against the de- INCREASED COSTS 101 fendant, for taking a distress, making a sale, or doing any other act, by or under color of authority of a statute of the State. But this section does not apply, where an of- ficer * unites in his answer with a person not entitled to such additional costs. Sec. 3259. The increase specified in the last sec- tion, does not extend to the disbursements; * * *. 181. Increased costs allowed in an action against sheriff. Where an action is brought against a sheriff to re- cover a sum of money or a chattel by reason of some act done by him by virtue of his office and a final judg- ment is rendered in his favor, he has an absolute right to the additional costs given him by the statute. Smith v. Cooper, 30 Hun, 395; also allowed to a policeman, En- right v. Shalvey, i City Ct. Rep. 58. So also in an action where the plaintiff claims that the sheriff collected on an execution more than sufficient to satisfy the same and failed to pay over the surplus to him and sought to recover such surplus, the case is within section 3258 of the Code; the sheriff if successful is entitled to double costs. Van Gelden v. Hallenbeck, 15 Civ. Pro. Rep. 333. 182. Not allowed in action on bond of officer. But an action brought by a sheriff against a deputy and the sureties on the bond to recover for a breach of the conditions, is not an action in which defendants, if suc- cessful, are entitled to increased costs. Hall v. Dusen- bury, 38 Hun, 125. 102 TAXATION OF COSTS 183. Writ of certiorari not within the section. Subdivision i of section 3258 of the Code does not ap- ply to proceedings instituted by writ of certiorari. Such costs are regulated by section 2143 of the Code authoriz- ing the court to allow fifty dollars and disbursements. People ex rel. Hall v. Town Auditors, 42 A. D. 250. 184. Allowance of increased costs includes costs on appeal. The additional allowance given to public officers is not limited to courts of original jurisdiction but extends to costs of appeal. Wood v. Excise Comm., 9 Misc. 507; Burkle v. Luce, i N. Y. 239; Porter v. Cobb, 25 Hun, 184. CHAPTER XXIV OFFER OF JUDGMENT 185. Statutory provisions. 186. Plaintiff's acceptance of offer. 186a. When offer must be made. 186b. Withdrawal of offer. 187. Recovery by plaintiff in excess of offer. 187a. When counterclaim is interposed. 187b. On foreclosure of mechanic's lien. 188. When defendant entitled to costs. 189. When recovery is reduced so as to be less than the offer. 190. Confession of judgment. 185. Statutory provisions. Sec. 732. A tender does not avail the defendant, unless the money is accepted or is paid into court, and notice thereof in writing served upon the plaintiff's attorney before the trial and within ten days after the tender. If the plaintiff takes out the amount paid in, he accepts the tender. Sec. 733. If it appears, upon the trial that the sum so tendered was sufficient to pay the plain- tiff's demand, or to make amends for the injury, and also to pay the costs of the action, to the time of the tender, the plaintiff cannot recover costs or interest, from the time of the tender, but must pay the de- fendant's costs from that time. 737. If the plaintiff does not accept the 104 TAXATION OF COSTS offer, he cannot prove it upon the trial. But if the damages, awarded to him, do not exceed the sum offered, the defendant is entitled to recover the expenses, necessarily incurred by him in prepar- ing for trial of the question of damages. The ex- penses must be ascertained, and the amount thereof determined by the judge, or the referee, by or be- fore whom the cause was tried. Sec. 738. The defendant may before the trial,, serve upon the plaintiff's attorney, a written offer, to allow judgment to be taken against him, for a sum, or property, or to the effect, therein specified, with costs. ***.if the plaintiff, within ten days thereafter, * * * accepts the offer * * * the clerk must enter judgment accordingly * * *. If notice of acceptance is not thus given * * * (and) if the plaintiff fails to obtain a more favor- able judgment, he cannot recover costs from the tune of the offer, but must pay costs from that time. 186. Plaintiff's acceptance of offer. In accordance with the statutory provisions, there- fore, the plaintiff is entitled to costs and disbursements only up to the time of the acceptance of the offer and such disbursements that may be incurred in entering up judgment. Allen v. Glass, 60 Hun, 546; Pomeroy v. Huhlin, 7 How. Pr. 161. See also Hawley v. Davis, 5 Hun, 642. He is also entitled to the costs up to the time of the offer although on the trial of the action he does not obtain a more favorable judgment than the offer. Mangin v. Dinsmore, 47 How. Pr. n; Hirshspring z>. Boe, 20 Abb. N. C. 402. OFFER OF JUDGMENT 105 The offer must be with costs. Ranney v. Russell, 3 Duer, 689; Loring v. Morrison, 25 A. D. 139. Offer must be definite. Post v. N. Y. Central R. R. Co., 12 How. Pr. 552. And without condition. Pinckney v. Childs, 7 Bosw. 660; Hanna v. Dexter, 15 Abb. 135. 186a. When offer must be made. The offer of judgment must be made ten days before the trial, otherwise, defendant cannot take advantage of the provisions of the statute. Pomeroy v. Huhlin, 7 How. Pr. 161 ; Walker z>. Johnson, 8 How. Pr. 240. Plain- tiff cannot, however, accept the offer after he elects to go to trial. Corning v. Radley, 25 Misc. 318; Guttroff D. Wallach, 3 Misc. 136. Notice of withdrawal of answer given less than ten days before trial cannot be construed as an offer of judgment. Ferine v. Wiggins, 18 Civ. Pro. Rep. 172. 186b. Withdrawal of offer. An offer of judgment made by defendant cannot be withdrawn before the expiration of the ten days within which plaintiff may accept same. Hackett v. Edwards, 22 Misc. 659; McVicar v. Keating, 19 A. D. 581. 187. Recovery by plaintiff in excess of offer. The plaintiff is entitled to full costs where he recovers any amount in excess of the offer of judgment. There- fore where the plaintiff brings suit on two causes of ac- tion and he recovers judgment on one cause of action the exact amount of the offer of defendant and only six cents damages on the other, he is entitled to costs. Day- ton v. Parke, 67 Hun, 137. io6 TAXATION OF COSTS 187a. When counterclaim is interposed. Plaintiff's recovery was also held to be more favorable than the offer although the amount so recovered was 97 cents less than the offer but it extinguished a counter- claim of $25. Smith v. Sheldon, 94 A. D. 497. When the offer fails to include counterclaims of defendant, the plaintiff is entitled to costs although he recovers a less amount. Kantz v. Vanderburgh, 28 N. Y. S. 1046. But when defendant makes his offer of judgment before he puts in an answer, and the plaintiff recovers less than the offer, defendant is entitled to costs from the time of offer although counterclaims arising out of the transac- tion are extinguished, which, together with the recovery, would exceed the offer. Dowd v. Smith, 8 Misc. 619. Where, however, an action is brought to foreclose a mechanic's lien, and defendant offers a sum of money and costs only, acceptance of such a tender by the plaintiff will not permit him to enter judgment of foreclosure, and consequently when the plaintiff recovers judgment es- tablishing the same amount of lien and interest and also in addition a direction to sell the property and entry of judgment for a deficiency, such recovery is a more fa- vorable one and the plaintiff is allowed full costs. Mc- Nally v. Rowan, 101 A. D. 342, aff'd 181 N. Y. 556. 187b. On foreclosure of mechanic's lien. In an action to foreclose a mechanic's lien, an offer was made to allow judgment "establishing the amount of plaintiff's lien" at a certain sum and costs, defendant was entitled to costs if the offer was not accepted and plaintiff failed to recover a larger sum. Pfister v. Stumm, 7 Misc. 526. OFFER OF JUDGMENT 107 Where plaintiff accepts an offer of judgment for less than fifty dollars the statutory provisions in section 3228 apply. Johnson v. Sager, 10 How. Pr. 552. 188. When defendant entitled to costs. Defendant is entitled to costs subsequent to the offer when the recovery by the plaintiff is not greater than the offer. Smith v. Kerr, i N. Y. S. 454. Similarly held that where the plaintiff proceeds with an action after a tender and deposit of the amount claimed, he is liable for costs if he recovers less than the amount of the tender. Heller .v. Katz, 62 Misc. 266; Beil v. Su- preme Council, 42 A. D. 168. This is so notwithstanding that the court ordered judgment for plaintiff "with costs." Kiernan v. Agri- cultural Ins. Co., 3 A. D. 26. Interest accruing after the offer is made cannot be added so as to make the recovery of plaintiff more favor- able. Johnston v. Catlin, 57 N. Y. 652. Nor can the judgment of plaintiff be regarded "more favorable" al- though the amount is more than the sum offered, if that sum together with interest to date of judgment exceeds the amount recovered. Tillman v. Keane, i Abb. N. S. 23; Hirschspring v. Boe, 13 Civ. Pro. Rep. 125. One partner cannot make an offer of judgment in behalf of the other partner. Garrison v. Garrison, 67 How. Pr. 271. When it is made, however, it does not bar any remedies against the other joint debtors. Kan- trowitz v. Kulle, 13 Civ. Pro. Rep. 74. In a suit against a copartnership, one cannot make an offer without the approval of the other. Rich v. Roberts, 18 Civ. Pro. Rep. 205; Everson v. Gehrman, 10 How. Pr. 301. io8 TAXATION OF COSTS An offer of judgment by one of two defendants sued for a firm debt, is not a sufficient offer, although the re- covery obtained against both defendants on the trial is less than the offer made because a judgment against both defendants is a more favorable one and the plain- tiff was held entitled to full costs. Bannerman v. Quackenbush, 17 Abb. N. C. 103; Rich v. Roberts, 18 N. Y. Civ. Pro. Rep. 205. But where one defendant is in default and the other defendant makes a tender of judgment, such offer is a good one and plaintiff must re- cover a larger sum to entitle him to costs subsequent to the offer. LaFarge v. Chilson, 3 Sandford, 752. 189. When recovery is reduced so as to be less than offer. Where an appellate court reduces a judgment of the court below and modifies it so that it is less than the offer made before trial, defendant is entitled to costs subsequent to the offer same as though judgment had been rendered for that amount. Sturgis v. Spofford, 58 N. Y. 103. The provisions of section 738 of the Code have no application to suits of foreclosure of mechanics' liens. Ball v. Doherty, 144 A. D. 277; Salerno -v. Vogt, 78 Misc. 64. Defendant's costs, when awarded, should be set off on entry of judgment. Warden v. Frost, 35 Hun, 141; Coatsworth v. Ray, 52 N. Y. S. 498. 190. Confession of judgment. On confession of judgment plaintiff is entitled to have fifteen dollars costs taxed and taxable disbursements in accordance with section 1275 of the Code. CHAPTER XXV REFEREE'S FEES 191. Statutory provisions. 192. Without stipulation only legal fees are taxable. 193. Effect of stipulation on fees. 194. Several actions tried together. 195. Entitled to fees for every day of attendance. 196. Fee allowed for preparation of report. 197. Where no fee will be allowed. 198. Attorneys of parties may enter into stipulation. 199. Report of referee must be filed as prescribed. 200. Misconduct of referee. 191. Statutory provisions. Fees allowed to referees are governed by section 3296 of the Code which reads as follows: A referee, in an action or a special proceeding brought in a court of record, or in a special pro- ceeding, taken as prescribed in title twelve of chap- ter 17 of this act, is entitled to ten dollars for each day spent in the business of the reference; unless at or before the commencement of the trial or hear- ing, a different rate of compensation is fixed, by the consent of the parties, other than those in default for failure to appear or plead, manifested by an entry in the minutes of the referee, or other- wise in writing, or a smaller compensation is fixed by the court or judge in the order appointing him. 109 no TAXATION OF COSTS 192. Without stipulation only legal fees are taxable. Therefore where no agreement is made as to any other compensation the referee is entitled to the legal fee of ten dollars a day. He must submit a statement setting forth the time occupied by him in the reference before his fee can be taxed. Gilbert v. Deshon, 16 N. Y. S. 36. 193. Effect of stipulation as to fees. While the parties may upon written stipulation agree to give him a larger amount than provided for in the statute (Mark v. Buffalo, 87 N. Y. 184) the referee cannot fix his own compensation. Smith v. Dunn, 94 A. D. 429. Where, therefore, parties to a reference stipulate that referee's fees " shall be ten dollars an hour for each sitting" the agreement limits his right to compensation, and he is not entitled to the statutory compensation of ten dollars a day in addition when not sitting. Mor- ganthaler v. Carlin, 132 A. D. 361, aff'd in 198 N. Y. 502. When a stipulation is silent as to any matter no force can be given to any alleged agreement or understanding in the face of the statute that it must be in writing. Mead v. Tuckerton, 105 N. Y. 557. Where a stipulation is entered into fixing the referee's fees and stenographer's fees, and providing that they " shall be taxed as disbursements in the action" and the referee finds that the plaintiff is not entitled to tax costs, plaintiff cannot tax such fees as disbursements because the allowance of disbursements depends on recovery of costs. Megrue v. Megrue, 1 60 A. D. 817. An agree- ment that the fees shall be shared by both parties will be enforced. Brick v. Fowler, 61 How. Pr. 153. REFEREE'S FEES in 194. Several actions tried together. Where two actions are tried together only one fee can be charged for each day. Milliman, p. 499. Also when he decides several cases on the same day only one fee is to be charged. Id. 195. Fee for every day of attendance. Referee is entitled to fees for every day's attendance and readiness to take testimony where an adjournment was had at the request of the parties made at that time. Blank v. Spies, 62 N. Y. S. 1039; Brush v. Kelsey, 47 A. D. 270. But such charge cannot be made when the adjournment was made before that day. Mead v. Tuckerton, 105 N. Y. 557. 196. Fee allowed for preparation of report. Referee will be allowed a fee for a reasonable time spent in the consideration of the case after its submission, in reaching a conclusion, and in the preparation of his opinion and report. Finkel v. Kohn, 53 N. Y. S. 694; Brown v. Windmuller, 14 Abb. Pr. N. S. 359. A referee who has made a report and has been paid his fees is entitled to further compensation at the rate of ten dollars a day for services necessarily performed upon a proposed amendment to a proposed case. But- terly v. Deering, 69 Misc. 75. 197. Where no fee will be allowed. Compensation for the time spent in going to and re- turning from the place where the hearings are held can- not be allowed as part of time spent in hearing and de- termining the question. People v. Bank of Staten H2 TAXATION OF COSTS Island, 70 Misc. 637. Nor will any allowance be made to him for expenses such as car fares, hotel bills, etc. Brown v. Sears, 23 Misc. 559. 198. Attorneys of parties may stipulate. The attorneys are authorized to stipulate as to the referee's fees. Such a stipulation comes within the provisions of the section where the "consent of the par- ties * in writing" is required. Mark v. City of Buffalo, 87 N: Y. 184. Where such an agreement has been entered into the courts will not interfere unless fraud, collusion or de- ceit can be shown. Wolff v. Horn, 9 Misc. 100. 199. Report of referee must be filed as prescribed. The report of the referee must be filed as prescribed in section 1019 of the Code which reads: Upon the trial, by a referee, of an issue of fact, or an issue of law, or where a reference is made as prescribed in section 1015 of this act, the referee's written report must be either filed with the clerk, or delivered to the attorney for one of the parties within 60 days from the time when the cause or matter is finally submitted; otherwise either party may before it is filed or delivered, serve a notice upon the attorney for the adverse party, that he elects to end the reference. In such a case the ac- tion must thenceforth proceed as if the reference had not been directed; and the referee is not en- titled to any fees. The report must actually be delivered or filed to pre- vent the reference from being terminated. A mere REFEREE'S FEES " 113 readiness to deliver upon being paid the fees, is not sufficient. Phipps v. Carman, 23 Hun, 150, aff'd 84 N. Y. 650. A delivery "on the assurance that the same should not be filed until the referee's fees should be paid" is equally insufficient. Douglas v. Smith, 19 N. Y. S. 630. However, a failure to file the report within the time does not make such report void. Some steps must be taken to show the intention to end the reference. Parker v. Baxter, 19 Hun, 410. At the end of 60 days any notice is sufficient if it in- forms the other side to that effect. Gregory v. Cryder, 10 Abb. Pr. N. S. 289. 200. Misconduct of referee. Where by reason of the misconduct of the referee his report and judgment thereon are set aside, the costs of the reference cannot be taxed. New York Bank Note Co. v. Hamilton Bank Note Co., 75 N. Y. S. 520. Where a reference is terminated in the manner pointed out in section 1019 of the Code "the referee is not en- titled to any fees. The referee, therefore, having failed to file his report brought himself within that section and the payment of his fees was a voluntary act and not tax- able." Hertzberg v. Elvidge, 80 Misc. 290. CHAPTER XXVI EXECUTORS AND ADMINISTRATORS 201. Statutory provisions. 202. Entitled to a complete trial. 203. Unreasonably resisting claim. 204. Certificate of judge or referee must be furnished. 205. When taxation against an executor or administrator allowed. 206. When executors and administrators are liable for ap- peal costs. 206a. Exemption from payment of costs limited. 201. Statutory provisions. Sections 1835 and 1836 read as follows: 1835. Where a judgment for a sum of money only is rendered against an executor or administra- tor, in an action brought against him in his repre- sentative capacity, costs shall not be awarded against him, except as prescribed in the next sec- tion. 1836. Where it appears in a case specified in the last section that the plaintiff's demand was pre- sented within the time limited by a notice, requiring creditors to present their claims and that the payment thereof was unreasonably resisted or neglected, the court may award costs and disburse- ments or disbursements without costs against the executor or administrator * * *. Where the ac- tion is brought in the supreme court or any county 114 EXECUTORS AND ADMINISTRATORS 115 court, the facts must be certified by the judge or referee before whom the trial took place. 202. Entitled to a complete trial. These sections of the Code entitle executors and ad- ministrators to exemption from costs of one trial which fully determines their liability and stands the test of appeal if any is taken. So that where judgment against executors was with costs to abide the event and a new trial ordered, and upon the second trial judgment was again obtained against the executors, the special term had no power to award costs against the executors be- cause the "event" meant not only the final success in the action but also as to whether costs can be allowed against executors under section 1836 of the Code. Ben- jamin v. VerNooy, 168 N. Y. 578. 203. Unreasonably resisting claim. It must appear that the administrator or executor did not unreasonably resist the claim of the creditor or in laying claim to the fund, otherwise costs and extra allowances may be awarded against him. Von Schuck- man v. Heinrich, 93 A. D. 278-281. 204. Certificate of judge or referee must be furnished. A certificate of the judge or referee before whom the case was tried showing the facts upon which the award was made must be furnished before costs may be awarded in favor of a claimant against an estate. Scheu v. Blum, 119 A. D. 825. An oral direction or verbal statement of the court that the plaintiff is entitled to costs against an executor is not sufficient. The direction must be in writing. Cornwell v. Sheldon, 134 A. D. 58. n6 TAXATION OF COSTS Under 2681 of the Code the executor or adminis- trator must serve notice in writing upon the claimant that he rejects the claim or some part of it, which he specifies. 205. When taxation against an executor or administra- tor allowed. Where an action is brought by an executor or adminis- trator for an act or claim that occurred after the death of the testator such action is, for the purposes of taxa- tion, regarded as an action by him individually, and if he is unsuccessful costs may be taxed against him indi- vidually without application to the court. Dunphy v. Callahan, 126 A. D. n, affirmed in 194 N. Y. 587. 206. When executor or administrator is liable for ap- peal costs. An executor or administrator who appeals and is wholly unsuccessful assumes the risks of an appellant and is liable for the costs. Benjamin v. Ver Nooy, 168 N. Y. 578-582. 206 a. Exemption from payment of costs limited. Sections 1835 and 1836 of the Code apply only with reference to actions and rights existing at the time of the death of the deceased. They have no reference to claims arising out of the personal acts of the representa- tive. In the latter case costs are awarded in accordance with section 3246 of the Code, in the same way as in an action by or against a person prosecuting or defending in his own right. Dunn v. Arkenburgh, 62 N. Y. S. 861. CHAPTER XXVII FORMA PAUPERIS 207. Statutory provisions. 208. Order must be presented on taxation or served on adverse party. 209. When costs may be taxed. 210. Not relieved from payment of costs accrued prior to granting of order. 211. In appellate court. 212. Costs of an unsuccessful appeal taxable. 213. When recovery is less than fifty dollars. 207. Statutory provisions. The provisions as to the liability of a party suing as a poor person is in section 461 of the Code, which reads: A person so admitted, may prosecute his action, without paying fees to any officer; and he shall not be prevented from prosecuting the same, by reason of his being liable for costs of a former action, brought by him against the same defendant. If judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him. 208. Order must be presented on taxation or served on adverse party. The order allowing the party to sue as a poor person must be served on the adverse party or presented to the officer on taxation, otherwise judgment entered for costs 117 n8 TAXATION OF COSTS taxed on a dismissal of a complaint will not be disturbed. Neugrosche v. Manhattan Ry. Co., i State Rep. 302. 209. When costs may be taxed. The entry of an order granting leave to sue as a poor person does not deprive the court of authority to impose costs as a condition of granting an order discontinuing the action. Parkinson v. Scott, 5 Misc. 261. Likewise the court has power to impose costs against such a person as a condition upon which a judgment by default will be opened. Elwin v. Routh, i Civil Pro. Rep. 131. So also notwithstanding the order, the court has the authority to impose costs on the granting of an order amending the complaint. Coyle v. Third Ave. R. R. Co., 19 Misc. 345. 210. Not relieved from payment of costs accrued prior to granting of order. The provisions of the section do not exempt the party from payment of costs which accrued in the action prior to leave granted to prosecute in forma pauper is. Lyons v. Murat, 54 How. Pr. Rep. 368. The party may also be charged with costs incurred in setting aside his proceedings for irregularity, for a con- tempt, or for striking out scandalous matter. Richard- son v. Richardson, 5 Paige. 58. 211. In appellate court. As to costs in appellate courts the Code of Civil Pro- cedure provides: Sec. 466. An order, made as prescribed in this article, does not authorize the petitioner to take or FORMA PAUPERIS 119 maintain an appeal, as a poor person; but where an appeal is taken by the adverse party, the order is applicable, in favor of the petitioner, as respondent in the appeal. Sec. 467. Where costs are awarded in favor of a person, who had been admitted to prosecute or de- fend as a poor person, as prescribed in this article, they must be paid over to his attorney, when col- lected from the adverse party, and distributed among the attorney and counsel assigned to the poor person, as the court directs. 212. Costs of an unsuccessful appeal are taxable. Therefore, in accordance with the above provisions, a party who sues as a poor person has a right to appeal from a judgment, but he is not relieved from paying the costs of an unsuccessful appeal. Hayden v. Hayden, 8 A. D. 547; Morse v. City of Troy, 38 Hun, 301. 213. When recovery is less than fifty dollars. A plaintiff who has been allowed to sue in forma pau- peris cannot be held liable for costs when his recovery in an action for personal injury is less than fifty dollars. Such a case is governed by the provisions of section 461 of the Code. Weltman v. Posenbecker, 19 Misc. 592; this case reverses same case reported in 18 Misc. 599. CHAPTER XXVIII DISBURSEMENTS 214. Statutory provisions. 215. Authority of taxing officer to tax disbursements. 216. Affidavit as to disbursements must accompany bill of costs. 217. An award of costs includes disbursements. 218. Clerk's taxation of disbursements not disturbed. 219. Service of summons. (a) Additional costs for additional defendants. (b) Effect of voluntary appearance. 220. Disbursements for service of subpoena not allowed. 221. Premiums paid on bond or undertaking not taxable. 222. Disbursements for official searches allowed. 223. Stenographer's fees. 224. Stenographer's minutes to prepare amendments. 225. Minutes to be used on another trial. 226. Disbursements for minutes allowed when procured by direction of court. 227. Stipulation as to payment of stenographer's fees. 228. Stenographer's fees on a reference. 229. Excess rate nor transcript of summation allowable. 230. Printing may be allowed on appeal from order. 231. Proof of expense incurred to be submitted. 232. Appeal of several defendants on same papers. 233. Same document used in several actions. 234. No allowance to be made for service of papers on at- torney. 235. Jury fees. 214. Statutory provisions. Section 3256 of the Code provides that: A party to whom costs are awarded in an action DISBURSEMENTS 121 is entitled to include in his bill of costs his neces- sary disbursements as follows: The legal fees of witnesses and of referees and other officers. The reasonable compensation of commissioners taking depositions. The legal fees for publication where publication is directed pursuant to law. The legal fees paid for a certified copy of a deposi- tion, or other paper, recorded or filed in any public office, necessarily used or obtained for use on the trial. Copies of opinions and charges of judges. The reasonable expenses of printing the papers for a hearing, when required by a ruling of the court. Prospective charges for expenses of entering and docketing the judgment. Sheriff's fees for receiving and returning one execution thereon, including the search for prop- erty and such other reasonable and necessary ex- penses, as are taxable, according to the course and practice of the court, or by express provision of law * * *. 215. Authority of taxing officer to tax disbursements. The taxing officer has no authority to tax the disburse- ments of a party unless costs have been awarded to him as the recovery of disbursements follow the recovery of costs. Burns v. D., L. & W. R. R. Co., 135 N. Y. 268; Warren v. Chase, 8 Misc. 520. It follows that where a party to an action succeeds to 122 TAXATION OF COSTS the extent that he is entitled to general costs and dis- bursements, every legal disbursement incurred in good faith in the case follows and cannot be defeated by show- ing that it was incurred in an unsuccessful attempt to establish a separate cause of action as to which the party fails. Burns v. D., L. & W. R. R. Co., 135 N. Y. 268. The only disbursements, however, which a party can tax are those which he has incurred, or will incur, in the entry of judgment, and the issuance of process for its collection. Clegg v. Aiken, n St. Rep. 354, affd in 109 N. Y. 612. 216. Affidavit as to disbursements must accompany bill of costs. The bill of costs must be accompanied by an affidavit as to the necessity and the reasonableness of the items of disbursements. The clerk may disallow items not shown to be "reasonable in amount," but he is not au- thorized to reduce because he believes the charge to be excessive. Raff v. Koster Bial & Co., 27 Misc. 47. 217. An award of costs includes disbursements. A recovery of disbursements cannot stand except upon a recovery of costs. Nichols v. Moloughney, 85 A. D. i. Therefore when a court awards costs it is not necessary to set forth the items allowed, these are to be ascertained upon taxation, nor is it necessary to specify that dis- bursements as well as costs are allowed. Under section 3256 of the Code costs in an action carries with it disbursements. Matter of Babcock, 86 A. D. 564. 218. Clerk's taxation of disbursements not disturbed. Where the affidavit of the successful party as to dis- DISBURSEMENTS 123 bursements stating that the amounts paid are correct, true, and reasonable, and actually and necessarily in- curred, is met by an affidavit of the opposing party that the amount was not necessarily paid or incurred, the ac- tion of the clerk in taxing the amounts will not be dis- turbed. Rose v. Swarthout, 73 Misc. 583. 219. Service of summons. Costs incurred for the service of summons and com- plaint are taxable only on entry of final judgment. Hill v. Muller, 53 Misc. 262. Allowance for mileage is 6 cents for each mile travelled. Brown v. Mapelson, 2 City Ct. Rep. 404. (Section 3307, subdivision i of the Code.) (a) Additional costs for additional defendants. The additional costs of two dollars allowed for each additional defendant served not exceeding ten should only be allowed for defendants necessarily made parties to the suit, and it is not too late to urge this objection on the adjustment of costs. (Section 3251, subdivision i.) Case v. Price, 17 How. Pr. Rep. 348. (b) Effect of voluntary appearance of defendants. A voluntary appearance by a defendant is held to be equivalent to personal service of summons so far as this item of costs is concerned. Schwinger v. Hickox,. 46 How. Pr. Rep. 114. 220. Disbursements for service of subpoena not al- lowed. The expense incurred by a party in serving subpoenas upon witnesses is not taxable by the clerk as necessary i2 4 TAXATION OF COSTS disbursements. Town of Pierrepont v. Loveless, 4 Hun, 681. 221. Premiums paid on bond or undertaking not taxable. The premium paid a surety company which furnished the requisite statutory undertaking given by the plaintiff in order to replevy chattels, is not properly taxable as an item of disbursement in the action. Bick v. Reese, 52 Hun, 125. Likewise the amount paid a surety company for fur- nishing an appeal bond must be disallowed on taxation of costs as there is no authority for allowing them. Lee Injector M'f'g Co. v. Penberthy Injector Co., 109 Fed- eral Rep. 964, cited with approval in Louisville Lumber Co. v. Smith, 154 A. D. 386, p. 387. Same rule applies where a foreign corporation, suing in the courts of this state, was ordered to file an under- taking as security for costs; the amount it paid as a pre- mium to a surety company for furnishing the undertak- ing, cannot be taxed. Louisville Lumber Co. v. Smith, 154 A. D. 386. 222. Disbursements for official searches allowed. Disbursements for searches made by title insurance companies organized under the laws of the State of New York are authorized by section 3256 of the Code, but disbursements for other searches are not authorized and cannot be taxed. Unofficial searches or examinations of titles to property are not taxable. Friedman v. Bor- chard, 161 A. D. 672; Equitable Life Assurance So- ciety v. Hughes, 125 N. Y. 106. DISBURSEMENTS 125 An official search by a proper officer in a sister state is taxable. Rose v. Swarthout, 73 Misc. 583. 223. Stenographer's fees. There is no statutory authority taxation of stenog- rapher's fees, and moneys paid therefor cannot be taxed except by consent. Seasongood v. Elevated R. R. Co., 46 N. Y. St. Rep. 832. This rule has, however, been relaxed so as to permit the costs of stenographer's minutes to be taxed when they are procured for the preparation of a case on appeal or amendments thereto, or by order of the court. Hertz- berg v. Elvidge, 80 Misc. 290. The authority therefor may be found in section 3256 of the Code which recites that "the reasonable expenses of printing the papers for a hearing, when required by a ruling of the court" may be taxed, as well as the additional provision that "such other and reasonable and necessary expenses, as are tax- able, according to the course and practice of the court, or by express provision of law." Equitable Life Assur- ance Society v. Hughes, 125 N. Y. 106. A necessary disbursement is such as a party is com- pelled to make or incur in the course of an action up to entry of final judgment. Delcomyn v. Chamberlain, 48 How. Pr. 409. 224. Stenographer's minutes to prepare amendments. Disbursements of a respondent in procuring stenog- rapher's minutes in order to prepare amendments to a proposed case are properly taxed on an affirmance of the judgment, although he did not first request the loan of the appellant's copy. If the appellant would save him- 126 TAXATION OF COSTS self from liability from such disbursements he must ten- der the minutes to the respondents. Starkweather v. Sundstorm, 113 A. D. 401; Ridabock v. Metropolitan Elevated R. R. Co., 8 A. D. 309. When, therefore, the minutes having been printed by the appellants and offered to respondent, and the latter having refused to accept them, the respondent will not be permitted to tax such disbursements. Park v. N. Y. Central & H. R. R. R. Co., 33 Misc. 320. But where respondent asked the appellants for the stenographer's minutes to prepare amendments to a proposed case and was refused, the disbursements in- curred in procuring such minutes were allowed to be taxed. Park v. N. Y. C. & H. R. R. R. Co., 57 A. D. 569. Although such minutes were ordered and used during the progress of the trial, nevertheless if they were or- dered for the purpose and with a view of preparing amendments to the case on appeal such disbursements may be taxed. Pratt v. Clark, 124 A. D. 248. A party will not, however, be allowed to tax the costs of minutes when it appears by the uncontroverted affi- davit of his opponent that the party ordered and re- ceived a copy of the minutes from day to day during the trial, even though the affidavit states that the minutes were necessarily obtained and actually used in prepar- ing amendments to the proposed case on appeal. "Of course it may be made to appear that, although the minutes are ordered during the trial, they were so ordered and received with an eye to the preparation of amend- ments to a case on appeal (Pratt v. Clark, supra) if that shall be the event, but we think that the affidavit in this case was not sufficient to so satisfy the court." DISBURSEMENTS 127 L. I. Contracting & Supply Co. v. The City of New York, 142 A. D. i. 225. Minutes to be used on another trial. The expense of procuring the stenographer's min- utes of the first trial for use on the second trial is not a taxable disbursement. Gilmour v. Stettler, 58 Misc. 361. Nor is the plaintiff entitled to tax the stenog- rapher's fees for furnishing the minutes of one trial for use on a subsequent trial. Hudson v. Erie R. R. Co., 57 A. D. 98. Likewise the minutes of a trial which re- sulted in the disagreement of the jury cannot be taxed. Herrmann v. Herrmann, 88 A. D. 77. 226. Disbursements allowed when procured by di- rection of court. Stenographer's minutes procured by order or direc- tion of the court for the purpose of being used either on a motion or a trial may be taxed. So that where, on a motion for a new trial, there is a dispute as to the testi- mony of one of the witnesses, and the court directs one of the counsel to furnish the testimony, the stenogra- pher's fees for transcribing such evidence is part of the taxable costs. Vibbard v. Kruser Construction Co., 145 A. D. 673; Johnson v. N. Y. Elevated R. R. Co., 10 Misc. 136. 227. Stipulation as to payment of fees. A stipulation that a referee's fees and stenographer's fees shall "be taxed as a disbursement in the action" should be construed to mean that the party ultimately liable for costs shall also be liable for these disburse- 128 TAXATION OF COSTS ments. Megrue v. Megrue, 160 A. D. 817. The amount paid by a party for stenographer's fees on a reference is taxable where it was stipulated that the successful party might include the item in his bill. Wolf v. Horn, 9 Misc. 100; Brown v. Sears, 23 Misc. 550. After a motion for a new trial on the judge's minutes it was stipulated that a copy of the case made and settled for such motion might be used on a motion for a new trial on the ground of newly discovered evidence, a copy of the stenographer's minutes was unnecessary for the latter motion and the charge therefor should not be taxed as a disbursement. Brennan v. Joline, 70 Misc. 537- 228. Stenographer's fees on a reference. Stenographer's fees in a reference under section 1015 of the Code, cannot be imposed on either party because sec- tion 3251 of the Code makes no provision for same. An- derson v. E. DeBraekeleer & Co., 25 Misc. 343. The cost of printing the copies of the referee's report and opinion and judgment can only be taxed by virtue of a written agreement signed by the attorneys for all the parties. Veeder v. Mudgett, 27 Hun, 519. Stenographer's fees on a reference may be taxed where a stipulation has been entered into that the successful party may include the item in his bill. Brown v. Sears, 23 Misc. 559. 229. Excess rate nor transcript of summation allow- able. The costs of a transcript of a summation is not tax- able as it is not a proper part of a case on appeal. Nor DISBURSEMENTS 129 are the sums paid in excess of the statutory rate of ten cents a folio, to procure expedition in order that the min- utes might be used during the trial, taxable as a dis- bursement on appeal. Pratt v. Clark, 124 A. D. 248. 230. Printing may be allowed on appeal from order. Upon an appeal from an order the court may allow printing disbursements but it must be expressly allowed and direct the taxation thereof, otherwise none can be taxed. Cassidy v. McFarland, 139 N. Y. 201; Brennan i). Joline, 70 Misc. 537. 231. Proof of expense to be submitted. Where several defendants unite in an appeal and some are successful and some are not, the successful parties will not be allowed to charge for printing unless they submit proof that they incurred the expense. Kane v. Met El. R. R. Co., 7 N. Y. S. 653. 232. Appeal of several defendants on same papers. Where two defendants appeal on the same set of pa- pers and the judgment is affirmed as to one and re- versed as to the other, the expense of printing should be divided equally between them, so that one-half of the expense might be taxed by the party who succeeded to obtain the reversal. It should be shown that the ex- pense was paid and incurred by both appellants. Kane v. Metropolitan EL R. R. Co., 28 N. Y. State Rep. 399. 233. Same document used in several actions. Where documents upon trial of each of several actions brought by different plaintiffs against the same de- 130 TAXATION OF COSTS fendant and the cost for procuring them was $160, held in the absence of proof that the sum was paid in each case, the amount should have been taxed once only. Jermain v. Lake Shore & M. S. R. R. Co., 31 Hun, 558. 234. No allowance to be made for service of papers on attorney. No allowance should be made for the service of an answer or order upon the defendant's attorney person- ally, and the disbursements incurred cannot be taxed un- less there is a peculiar necessity for personal service. Fuller Buggy Co. v. Waldron, 49 Misc. 278. 235. Jury fees. The item of jury fees is an actual disbursement and should be allowed whenever it is incurred, and the fact that the jury disagreed for which the fee is charged is immaterial. Hudson v. Erie R. R. Co., 57 A. D. 98. The successful party is entitled to tax as many jury fees as he paid although the verdict is set aside by reason of the misconduct of the jury. Hudson v. Erie R. R. Co., supra. CHAPTER XXEX DISBURSEMENTS FOR ATTENDANCE OF WITNESSES 236. Statutory provisions. 237. Affidavit must accompany the bill of costs for atten- dance of witnesses. 238. Stipulation by parties as to fees. 239. Witness subpoenaed but not called to testify. 240. Witness fees allowed for (a) Adverse party. (b) Stockholder of corporation. (c) Officer of corporation. 241. Witness fees disallowed for (a) Party in the action. (b) Co-defendant. (c) Attorney of record. 242. Expert testimony. 243. Allowance of mileage ; affidavit of mileage necessary. 244. Mileage allowed one way once only. 245. Mileage computed from place of actual residence. 246. Mileage allowed for foreign witness. 247. Fees must appear to have been paid or will be paid. 248. Testimony taken at residence of witness. 249. Disbursements not included in motion costs. 236. Statutory provisions. Sec. 3267. A charge for the attendance of a witness, cannot be allowed without an affidavit, stating the number of days of his actual attendance; and, if travel fees are charged, the distance for which they are allowed. A charge for a copy of a document or paper, cannot be allowed, without an 132 TAXATION OF COSTS affidavit, stating that it was actually and necessarily used or was necessarily obtained for use. An item of disbursement in a bill cannot be allowed in any case, unless it is verified. Sec. 3318. A witness in an action or special proceeding, attending before a court of record, or a judge thereof is entitled, except where another fee is specially prescribed by law, to fifty cents for each day's attendance; and if he resides more than three miles from the place of attendance, to eight cents for each mile going to the place of attendance. 237. Affidavit must accompany the bill of costs for attendance of witnesses. Following the provisions of the section of the Code, a charge for the attendance of a witness cannot be allowed without an affidavit stating the number of days of his actual attendance, and if travelling fees are charged, the distance for which they are allowed. In- derlied v. Whaley, 17 Civ. Pro. Rep. 377, and cases cited therein; Taaks v. Schmidt, 25 How. Pr. 340. An affidavit which fails to state that the witnesses are material, is insufficient to authorize the taxation of the fees. Wheeler v. Lozee, 12 How. Pr. 446; O'Loughlin v. Hammond & Co. (No. 2), 12 Civ. Pro. Rep. 171. The affidavit should also disclose that the party paid witness fees or was liable therefor. Inderlied v. Whaley (supra). When conflicting affidavits are submitted it is the duty of the clerk to decide whether the witnesses were necessarily subpoenaed or whether they were procured with a view to increase the costs. Crosley v. Cobb, 37 Hun, 271. DISBURSEMENTS FOR WITNESSES 133 The payment of fees to witnesses by a party, after the case is disposed of in his favor, when he is not legally liable to pay for them, does not entitle him to have such fees allowed him as part of his disbursements. Agri- cultural Insurance Co. v. Bean, 45 How. Pr. 444. 238. Stipulation by parties as to fees. Where the parties to the action have entered into a stipulation as to fees to be paid to witnesses, the taxing officer may allow the charges in accordance therewith although they provide for the payment of larger fees than the law fixes. Wolff v. Horn, 9 Misc. 100; Mark v. City of Buffalo, 87 N. Y. 184; Burt v. Oneida Commu- nity, 59 Hun, 234. 239. Witness subpoenaed but not called to testify. The fact that the witnesses were not sworn and called to testify on the trial is presumptive evidence that they were not necessary and the fees paid to them are not tax- able unless their materiality is shown and sufficient reason shown why they were not called upon to testify. Kohn v. Manhattan R. Co., 8 Misc. 421. 240. Witness fees allowed. (a) Adverse party. Witness fees may be allowed for subpoenaing an ad- verse party. Howlet v. Brown, 7 Abb. Pr. 74. (b) Stockholder of corporation. Fees will also be allowed for subpcenaing stockholders of a corporation. Midbury v. Butternuts & S. T. Co., i How. Pr. 231. 134 TAXATION OF COSTS (c) Officers of a corporation. Fees for officers of a corporation will be allowed where the affidavit shows that their fees have been paid or will be paid. Cheever v. Pittsburgh S. & L. E. R. Co., 26 N. Y. S. 829. 241. Witness fees disallowed. (a) Party in the action. A party to the action cannot tax as a disbursement a witness fee for himself. (Section 3288.) Alexander v. Henry, L. J. Feb. 24, 1915. (b) Co-defendants. Witness fees for the attendance at a trial of co-de- fendants who were not subpoenaed should not be al- lowed where it does not appear that they attended as witnesses and not as parties. Fuller Buggy Co., 49 Misc. 279. (c) Attorneys of record. Section 3288 of the Code provides that a party is not entitled to tax witness fees for his own attendance, nor is an attorney of record entitled to fees for attending as a witness in behalf of his client. But where the attorney has rendered services of such a nature that they might have been performed by one not an attorney, witness fees therefor may be taxed. Kennedy v. Jarvis, 126 A. D. 551. 242. Expert testimony. Sums paid for plans and measurements, and for com- pensation of experts beyond their fees as witnesses are DISBURSEMENTS FOR WITNESSES 135 not properly taxable as a "necessary disbursement." Mark v. City of Buffalo, 87 N. Y. 184. Nor payments made to engineers and surveyors for surveys made for the purpose of trial. Rothery v. N. Y. Rubber Co., 90 N. Y. 30. Nor the cost of a sketch of a scene of acci- dent which was introduced at the trial in evidence. Sinne v. City of New York, 8 Civ. Pro. Rep. 25 2n. 243. Allowance of mileage ; affidavit of mileage neces- sary. Section 3267 of the Code precludes the taxation for mileage paid to a witness unless an affidavit is filed stat- ing the distance for which mileage has been allowed in the bill of costs, and the practice requires that the affidavit shall state the distance from the place of residence of each witness to the courthouse. Smith v. Hutton, 134 A. D. 445; Taaks v. Schmidt, 25 How. Pr. 340. 244. Mileage allowed one way once only. Section 3318 of the Code providing for fees and mile- age to be paid to witnesses authorizes the taxation of mileage of one day's attendance only, even though the witness travelled daily to and from the place of trial. The per diem fee of fifty cents is the only allowance to the witness while in attendance at court. O'Rourke v. Degnon R. & T. Improvement Co., 139 A. D. 695. Under section 3318 providing for witness fees a party is not entitled to tax mileage for trips to and from their homes during the adjournment from Friday afternoon to the following Monday. Booth v. H. S. Kerbaugh, 143 N. Y. S. 624. The mileage of a witness residing more than three 136 TAXATION OF COSTS miles from the place of attendance is to be computed from the place of residence irrespective of the place of service of the subpoena. Ahrens v. Coleman, 66 Misc. 569; Pike v. Nash, 16 How. Pr. 53. 245. Mileage computed from place of actual residence. A witness having no temporary residence at his place of business is entitled to mileage from his place of actual residence. But if he has a temporary residence at his place of business from which he may be subpoenaed and to which he must return, that is his residence for the purpose of figuring mileage. Smith v. Hutton, 134 A. D. 445- 246. Mileage for foreign witness. In case of a foreign witness the mileage to be allowed is the distance from the point where a person coming from his place of residence usually enters the state, to the court-house by the usual route. Taaks v. Schmidt, 25 How. Pr. 340. 247. Fees must appear to have been paid or will be paid. A defendant railroad which transported its witnesses to the places of trial on free passes is not entitled to tax their mileage because of the mere possibility that it may thereafter be called upon to pay. Valk v. Erie R. R. Co., 128 A. D. 470. Where there is no evidence whatever on the taxation of costs to warrant a conclusion as to the mileage of the sheriff, the taxation of such mileage is erroneous. Hak- onson v. Met. St. Ry. Co., 40 Misc. 182. DISBURSEMENTS FOR WITNESSES 137 248. Testimony taken at residence of witness. Where a referee is appointed to take testimony at the residence of a witness, the travelling expenses in- curred in conveying the referee to and from the resi- dence of the witness may be taxed. Reichel v. N. Y. Cent. & H. R. R. R. Co., 18 Civ. Pro. Rep. 256. 249. Disbursements not included in motion costs. Section 3256 of the Code does not apply to motions. Cassidy v. McFarland, 139 N. Y. 201; Ward v. Ward, 23 Civ. Pro. Rep. 61. Where disbursements are awarded on a motion they must be specifically directed to be taxed by the clerk. Ward v. Ward, supra. Where, therefore, an order of a referee was affirmed "with costs" only, the respondent was entitled to tax ten dollars and printing disburse- ments only (section 3251, subdivision 3, paragraph 9.) and while the court might have directed in the order that disbursements should be taxed by the clerk, without such direction, however, he had no authority to fix the amount. Cassidy v. McFarland, 139 N. Y. 201. Likewise where an order of an appellate court dis- misses an appeal with ten dollars costs of motion and affirms the order appealed from "with costs of the appeal to be taxed by the clerk of this court," the clerk may tax ten dollars motion costs of appeal, but he has no au- thority to tax disbursements for his fees on entering judgment, affidavits, satisfaction piece, sheriff's fees, etc. Zinsser v. Herrman, 24 Misc. 689. The allowance of disbursements in the Surrogate's Court is governed by section 2743 of the Code which recites that costs when awarded by a decree, "shall 138 TAXATION OF COSTS include all the disbursements of the party to whom they are awarded, which might be taxed in the supreme court." So that the surrogate has no authority to allow any disbursements except such as are taxable in the Su- preme Court. Matter of Bender, 86 Hun, 570. CHAPTER XXX COLLECTION OF COSTS 250. Execution against property. 251. Supplementary proceedings. 252. Motion costs. 253. Contempt proceedings. 254. Matrimonial actions. 255. Attorney's lien for costs. 256. Execution against the person. 257. Mandamus. 250. Execution against property. Costs obtained in an action form part of, and become merged in the judgment, and are collected by execution in the same way and at the same time with the judg- ment. Execution may be issued against both the real and personal property of the judgment debtor. Section 3262 provides in part that "Costs must be taxed by the clerk, upon the application of the party en- titled thereto;" and the "clerk must insert, in the judg- ment or final order, the amount of the costs as taxed." Section 1240 provides, In either of the following cases, a final judgment may be enforced by execution: 1. Where it is for a sum of money in favor of either party; or directs the payment of a sum of money. 2. Where it is in favor of the plaintiff, in an action of ejectment, or for dower. 139 140 TAXATION OF COSTS 3. In an action to recover a chattel, where it awards a chattel to either party. 261. Supplementary proceedings. Supplementary proceedings may be maintained to collect costs under section 2432 of the Code of Civil Pro., on entry of a money judgment as well as on entry of a final order. Matter of Stoddard, 128 A. D. 759. No such proceedings, however, can be maintained for costs awarded on an interlocutory order in an action, nor upon the return of an execution against personal property under section 779 of the Code of Civil Pro., relating to the enforcement of costs of a motion. Matter of Stod- dard (supra). 252. Motion costs. No judgment can properly be entered for the costs of a motion. Hyde v. Anderson, 112 A. D. 76. An allow- ance of costs on a motion is not a judgment and is there- fore not a lien on real property. Clinton v. South Shore M. G. & F. Co., 61 Misc. 339, p. 341. The costs of a motion, therefore, which makes no final disposition of the merits of a cause of action, are not collectible by execution against real property nor by supplementary proceedings. Execution for such costs is governed by section 779 of the Code of Civil Pro. Bernard v. Cowen, 82 Misc. 384. Section 779 reads as follows: Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within ten days after COLLECTION OF COSTS 141 the service of a copy of the order, an execution against the personal property only of the party re- quired to pay the same, may be issued by any party or person to whom the said costs or sum of money is made payable by said order, * * * , which execution shall be in the same form, as nearly as may be, as an execution upon a judgment, omitting the recitals and directions as to real property; and all the proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed without further direction of the court, until the payment thereof * * * Under section 3233, Code of Civil Pro., interlocutory costs awarded under section 3232, Code of Civil Pro., is governed by section 779 as if they were costs of a motion. Costs on the determination of a demurrer may be granted absolutely but may not be collected until the trial of the other issue not yet disposed of. Cassavoy v. Pattison, 101 A. D. 128. Section 779, Code of Civil Pro., applies to costs and disbursements of an appeal from an order of Special Term. Wasserman v. Benjamin, 91 A. D. 547; also to costs granted upon the denial of a motion for a new trial on newly discovered evidence. Bankers Money Order Ass. v. Nachod et al., 125 A. D. 373; Muller v. Brooklyn Heights R. Co., 139 A. D. 727. But a direction by the court to pay a wife certain sums of money per week for her support during the pendency of the action as prescribed in sections 1772 and 1773, Code of Civil Pro., is not an order directing the payment of a "sum of money" within the meaning of section 779, 142 TAXATION OF COSTS and an execution may not issue to enforce such order. Weber v. Weber, 93 A. D. 149. 253. Contempt proceedings. An attorney cannot be punished for contempt of court for failure to pay costs of a motion although he was so directed personally to pay the same; because section 779 provides how such costs may be collected. It must be done by execution except where special provision is other- wise made. Obermeyer & L. v. Adinsky, 123 A. D. 272. Subdivision 3, of section 14 of Code of Civil Pro. limits the power of the court to punish as for a contempt for the "non-payment of a sum of money ordered or adjudged to be paid in a case where by law execution cannot be awarded for the collection of such sum." Kane v. Rose, 87 A. D. 101. Nor can an attorney be punished for contempt of court for failure to repay motion costs when so ordered by the court. The method of collecting the same is provided for by the issuance of an execution therefor under section 779, Code of Civil Pro. Forstman v. Schulting, 42 Hun, 643. 264. Matrimonial actions. An attorney may maintain an action and obtain judgment for allowances made him by the court in an action for divorce, where there has been a collusive agree- ment by husband and wife whereby the alimony was released. He is not restricted for redress to section 779, Code of Civil Pro. Turner v. Woolworth, 153 A. D. 293. Such costs, however, cannot be collected by contempt proceedings. Weill v. Weill, 18 N. Y. Civ. Pro. Rep. 241. COLLECTION OF COSTS 143 But an attachment may issue for failure to pay alimony together with costs. Lansing v. Lansing, 41 How. Pr. 248; Flor v. Flor, 73 A. D. 262. 255. Attorney's lien for costs. An attorney has a lien for his costs upon the judgment recovered by him, and he is to be considered as an "equi- table assignee of the judgment" to the extent of such lien. A payment to any one but the attorney will not act as a discharge of such lien. Marshall v. Meech, 51 N. Y. 140. Therefore the lien of an attorney for services rendered and disbursements incurred in an action, are superior to that of the parties' right to set off judgments rendered against each other although between the same parties and the same attorneys. Smith v. Cayuga Lake Cement Co., 107 A. D. 524. 256. Execution against the person. Section 1*87 of the Code of Civil Procedure, provides that, Where a judgment can be enforced by execution, as prescribed in section 1240 of this act, an execu- tion, against the person of the judgment debtor may be issued thereupon * * * in either of the following cases: 1. Where the plaintiff's right to arrest the defend- ant depends upon the nature of the action. 2. In any other case, where an order of arrest has been granted and executed in the action, and if it was executed against the judgment debtor, where it has not been vacated. 144 TAXATION OF COSTS The plaintiff may, therefore, issue execution against the person of the defendant although an order of arrest was not granted in the action. Finkenmaur v. Dempsey, 8 N. Y. Civ. Pro. Rep. 418; Smith v. Duffy, 8 id. 191. Where a defendant is liable to arrest and imprison- ment on a judgment against him by the plaintiff, a judgment in favor of the defendant for costs may be en- forced by an execution against the person of the plaintiff. Saffier v. Haft, 86 A. D. 284. The defendant may, therefore, issue execution against the plaintiff for costs in an action in tort (Miller v. Woodhead, 5 N. Y. S. 88; Davids v. Brooklyn Heights R. Co., 92 N. Y. S. 220; Brown v. Brockett, 55 How. Pr. Rep. 32), for personal injuries (Saffier v. Haft, supra; Davids v. Brooklyn Heights R. Co., 104 A. D. 23). De- fendant is entitled to the relief notwithstanding the fact that plaintiff has recovered a verdict in his favor where the amount of such recovery will entitle defendant to costs of the action. Philbrook v. Kellogg, 21 Hun, 238. In an action for assault resulting in defendant's favor, execution may issue although the assault was not com- mitted by defendant personally but by his agents or employees. The right depends on the nature of the ac- tion. Davids v. Brooklyn Heights R. Co., 104 A. D. 23, aff'd 182 N. Y. 526; Losaw v. Smith, 109 A. D. 754. Execution will also be allowed for injury to personal property (Catlin v. Adirondack Co., 20 Hun, 19), for conversion (Knapp v. Murphy, 20 A. D. 83; Babcock v. Smith, 19 N. Y. S. 817). Where the plaintiff is an infant and is suing by a guard- ian at litem, the latter is liable to an execution for costs in favor of defendant in the same manner as though he COLLECTION OF COSTS 145 was the plaintiff in the action. Miller v. Woodhead, 5 N. Y. S. 88. 257. Mandamus. A municipality may be compelled by mandamus to make requisition on the comptroller required by Chap- ter 728 of the Laws of 1896, for the payment of a bill of costs in condemnation proceedings. People ex rel. Allison v. Board of Education, 26 A. D. 208. The provisions of section 2268 of the Code of Civil Pro., allowing the issuance of a warrant of commitment against a person "where the offense consists of a neglect or refusal to obey an order of the court, requiring the pay- ment of costs, or of a specified sum of money, and the court is satisfied, by proof, by affidavit, that a per- sonal demand thereof has been made, and that payment thereof has been refused or neglected," are limited by section 14, subdivision 3, of the Code of Civil Pro. to cases where no execution can be issued either under sec- tions 1240 or 779 of the Code of Civil Procedure, for the collection of the sum ordered to be paid. Re Hess, 48 Hun 586. ADDENDA SHERIFF'S FEES The following are some of the provisions with reference to sheriff's fees most frequently met with. They are contained in section 3307 of the Code in the following paragraphs: Par. i. For serving a summons with or without a copy of the complaint, or a notice, one dollar. But in the counties of New York, Kings, Bronx, Queens and Richmond, one dollar and a half. For serving or executing an order of arrest, or any other mandate for the service or execution of which no other fee is specially pre- scribed by law, except a subpoena, one dollar. But in the counties of New York, Kings, Bronx, and Queens and Richmond, four dollars for each person served or as to whom it is executed. For necessary travelling to serve or execute the processes six cents for each mile travelled, going and returning. Par. 2. For levying a warrant of attachment, against the prop- erty of a defendant, or for executing a requisition to replevy one or more chattels, one dollar. But in the counties of New York, Kings, Bronx, Queens and Richmond, five dollars. Par. 5. For notifying jurors drawn to attend upon a writ of in- quiry, or to try the validity of a claim to personal property, seized by virtue of a warrant of attachment or an execution, for each juror notified twenty-five cents. For attending a jury, two dollars. But in the counties of New York, Kings, Bronx, Queens and Richmond, fifty cents for each juror notified. For attending a jury five dollars. Par. 6. For receiving an execution against property, etc., fifty cents. 146 SHERIFF'S FEES 147 In the counties of New York, Kings, Bronx, Queens and Rich- mond, one dollar and fifty cents. For mileage upon an execution for each mile, going only, ten cents. Par. 10. For returning any mandate, which he is required by law to return, twelve cents; in the counties of New York, Kings, Bronx, Queens and Richmond, twenty- five cents. For a certified copy of an execution and of the return of satisfac- tion thereupon, twenty-five cents; except in the counties of New York, Kings, Bronx, Queens and Richmond, fifty cents. Chapter 418, L. 1892, subd. 2, sec. 17, provides that "where a warrant of attachment is vacated, set aside, or discharged by order of the court, poundage upon the value of the property at- tached not exceeding the amount specified in the warrant" may be taxed, and the court may make an order requiring the payment of the same. In all other cases where there is a liability for sheriff's fees and poundage, actions at law should be brought for the re- covery of same. Keiser v. Schrier, L. J. Nov. 3, 1916. Chapter 353, Laws of 1915, County Clerk's Fees, Bronx County. Following are some of the more important fees that the Clerk of the County of the Bronx is entitled to charge in accordance with Chap. 353, Laws of 1915. Filing transcript of judgment $ . 05 For docketing, for each name against which it is docketed . .05 Certified transcript of judgment 25 Filing instrument which cancels or amends a record 10 For entering such cancellation, etc., for each name 10 Certificate of discharge of lien 25 Recording of papers, for each folio 10 Certifying copies of records, etc., for each folio 10 Certificate of notice of appearance 50 Docketing deficiency on judgment of foreclosure 25 Adjusting bill of costs 25 Filing mechanic's lien 10 Docketing same, for each name 10 Entering judgment . . . . 50 For certifying printed papers on appeal 3^ a folio. 148 TAXATION OF COSTS Chapter 446, Laws of 1906, Fees of the Clerk of the County of Kings. Following are some of the more important fees that the Clerk of Kings County is entitled to charge and receive. For filing transcript of judgment $ . 05 For docketing, for each name against which it shall be docketed 05 For transcript of judgment 10 For filing instrument of cancellation, etc 05 For entering such discharge, for each name 10 Certificate of discharge of lien 15 For recording papers, for each folio 10 For copies of records on file, for each folio 10 Docketing deficiency on judgment of foreclosure, etc 25 Certificate of appearance in an action 50 Adjusting bill of costs 25 Docketing mechanic's lien 5 COSTS ITEMIZED Sections refer to the Code of Civil Procedure. I. Costs before notice of trial. a. To plaintiff, if action comes within 420 of the Code $i 5 . oo In every other action $25 . oo (Code, 3251, subd. i., par. i) b. To defendant $10.00 (Code, 3251, subd. 2.) i. Costs after notice of trial. To either party $15 . oo (Code, 3251, subd. 3, par. i.) 3. Additional defendants served, for each defendant Up to ten $ 2. oo Above ten $ i.oo To be taxed by plaintiff only. (Code, 3251, subd. i, par. 2.) 4. Trial fee for an issue of fact to either party $30 . oo (Code, 3251, subd. 3, par. 5.) 5. Trial fee for the trial of an issue of law to either party $20.00 (Code, 3251, subd. 3, par. 4.) 6. Allowance by statute; to the plaintiff in foreclosure proceedings, partition or adjudication upon a will or other instrument in writing, a determi- nation of a claim to real property, or where there has been a warrant of attachment 10% if amount is not over $200. 5% on next $400. 2% on the next $1000. (Code, 3252, 3254.) 7. Allowance by court to either party (Code, 3253, 3254.) 8. Motion costs, usually to either party $10.00 (Code, 3251, subd. 3, par. 9.) 149 150 TAXATION OF COSTS 9. Order of publication of summons, to the plaintiff. . . . $10.00 (Code, 3251, subd. i, par. 4.) 10. Trial occupying more than two days, to either party. $10.00 (Code, 3251, subd. 3, par. 5.) 11. Procuring injunction order or order of arrest, to plain- tiff $10.00 (Code, 3251, subd. i, par. 5.) 12. Appointment of guardian of infant defendant, to plaintiff $10.00 (Code, 3251, subd. i, par. 3.) 13. Examination of witness or party before trial, to either party $10.00 (Code, 3251, subd. 3, par. 2.) 14. Attending and taking deposition, to either party fio.oo (Code, 3251, subd. 3, par. 2.) 15. Drawing interrogatories to annex to a commission, to either party $10 . oo (Code, 3251, subd. 3, par. 3.) 16. Making and serving a case, to either party appellant $20.00 (Code, 3251, subd. 3, par. 6.) 17. Making and serving amendments to case, to either party respondent $20 . oo (Code, 3251, subd. 3, par. 7.) 18. Making and serving a case of more than fifty folios, to either party appellant $30. oo (Code, 3251, subd. 3, par. 6.) 19. Term fees, to either party. a. In the Supreme Court ten dollars for each term not exceeding five at which the case is tried. b. In the City Court only one term is allowed ex- cluding the term at which it is tried. (Code, 3251, subd. 3, par. n.) c. In the Appellate Division ten dollars for each term not exceeding five, excluding the term at which the case is argued. (Code, 3251, subd. 4.) ITEMS OF DISBURSEMENTS 151 d. In the Court of Appeals ten dollars for each term not exceeding ten, excluding the term at which the case is argued. (Code, 3251, subd. 5, par. 3.) 20. Motion for new trial, to either party at special term Upon a case before argument $20 . oo Upon a case for argument $40 . oo (Code, 3251, subd. 3, par. 8, subd. 4.) 21. Proceedings before and after granting of a new trial to either party $25 . oo (Code, 3251, subd. 3, par. 10.) 22. Application for judgment on special verdict to either party Before argument $20 . oo For argument $40 . oo (Code, 3251, subd. 3, par. 8, subd. 4.) 23. Appeal to Appellate Term or Appellate Division, to either party Before argument $20. oo For argument $40 . oo (Code, 3251, subd. 4.) 24. Appeal to Court of Appeals, to either party Before argument $30 . oo For argument $60 . oo (Code, 3251, subd. 5, par. i.) 25. Damages in Court of Appeals for delay, to either party, not exceeding 10% of the amount of the judgment. (Code, 3251, subd. 5, par. 4.) ITEMS OF DISBURSEMENTS 26. Paid for official searches $ (Code, 3256, 3304.) 27. Paid referee's report, to either party $ (Code, 3256, 3296.) 28. Paid referee's fees, to either party $ (Code, 3256, 3296.) 152 TAXATION OF COSTS 29. Commissioner's fees, to either party $ (Code, 3256.) 30. Clerk's fees on trial $ i.oo No such fee in the City Court. (Code, 3301, par. 2.) 31. Clerk's fees on filing notice of pendency of action to plaintiff, ice a folio $ (Code, 3304.) 32. Clerk's fees for entering judgment, to either party. . . $ .50 (Code, 3301, par. 3, S 1 ^.) 33. Affidavits and acknowledgments, to either party For affidavits, 1 2C each $ For acknowledgments, 25C each ' $ (Code, 3298.) 34. Serving copies summons and complaint, to plaintiff, In the counties of New York, Kings, Bronx, Queens and Richmond $ i . 50 In the other counties $ i.oo 6c. a mile allowed for each mile travelled, going and returning. (Code, 3307,subd. i.) 35. Satisfaction piece, to either party For filing, 250, for certificate, i2C $ .37 (Code, 3304, par. 9, 3301, par. 7, 3i64a.) 36. Transcript of judgment and filing thereof, to either party For transcript, i2c; for filing, 6c $ .18 (Code, 3301, pars. 7, 8, 3304, 3i64a.) 37. Certified copy of judgment, to either party, 3C a folio, least charge 25C. (Code, 33053.) 38. Certified copy orders, to either party, 3C a folio, least charge 25C. (Code, 335a.) 39. Postage, to either party $ None allowed in the City Court. (Code, 3256.) ITEMS OF DISBURSEMENTS 153 40. Jury fee (250 for each juror) $3.00 (Code, 3313, allowed to party who pays fee.) 41. Stenographer's fees, to either party when ordered un- der stipulation of parties or by order of court, in 3rd, 4th, 5th, 6th, 7th, and 8th judicial dis- tricts, 6^ a folio, in all the others iod a folio. (Code, 33n, 3256.) 42. Sheriff's fees on execution, to either party in counties of New York, Kings, Bronx, Queens and Rich- mond For receiving the execution $ i . 50 For return .25 Mileage 10^ for each mile one way only .10 $ 1.85 In other counties. For receiving execution .50 For return .12 Mileage 10^ for each mile one way only .10 72 (Code, 3307, subds. 6, 10.) 43. Sheriff's fees on attachment or replevin. (Code, 3307, subds. i and 2.) In New York, Kings, Queens, Bronx and Richmond counties Attachment or replevin. For levying warrant without summons $ 5.00 For levying warrant with summons 6 . 50 For services of each additional warrant i . 50 Mileage 6^ a mile each way. For filing inventory or description of property . SQC folio In other counties For levying without summons $ i.oo For levying with summons 2 . oo Mileage 6fi each way. For filing inventory or description of property . 25^ a folio 154 TAXATION OF COSTS 44. Sheriff's fees on inquest before Sheriff's jury For notifying jurors to attend in New York, Kings, Queens, Bronx and Richmond coun- ties, 50^. each $6. oo In other counties, 25^. each. For attending a jury in New York, Kings, Queens, Bronx and Richmond counties ... $ 5 oo In other counties $2 . oo. (Code 3307, subd. 5.) 45. Sheriff's term fee .50 (Code, 3307, subd. 4.) In New York County this is included in fee paid on filing note of issue placing the case on the cal- endar. Where the sheriff receives an annual salary, this fee should not be charged. 46. Coroner's fees on execution, same as sheriff's $ (Code, 3310.) 47. Extract from the minutes .10 (Code, 3301, 3i64a, par. 5.) 48. Paid for printing cases $ (Code, 3256.) 49. Paid for printing points $ (Code, 3256.) 50. Paid for copy of stenographer's minutes $ (Code, 3256.) 5 1 . Paid for copies of following papers $ Where there are more than ten defendants, the ex- pense for printing the summons and complaint may be taxed. 52. Filing return to Court of Appeals $ (Code, 3300.) 53. Paid for filing note of issue, to either party who paid fee, in New York and Bronx Supreme Courts and City Court $3.00 Kings County, no charge Bronx County Court .75 (Code, 3i64a for City Court.) ADDITIONAL ITEMS NOT TO BE OVERLOOKED 155 54. Attendance of witnesses, to either party Fees 50^ a day and 8d a mile one way only if wit- ness resides three miles or more from place of attendance. (Code, 3318.) ADDITIONAL ITEMS NOT TO BE OVERLOOKED 55. Paid for publication of summons, etc $ (Code, 3256.) 56. Exceptions ordered heard at Appellate Division Before argument $20 . oo For argument 40 . oo (Code, 3251, subd. 4.) 57. Appeal from an order of the City Court 10. oo (Code, 3251, subd. 4, and 3189.) 58. Increased costs, one-half additional $ (Code, 3258, 3259.) 59. Recording mortgage in foreclosure $ (Code, 3291.) 60. Filing notice of appeal in Court of Appeals .50 (Code, 3300.) 61. Paid for remittitur Court of Appeals, ice a folio $ (Code, 3300.) 62. Paid for certifying printed record on appeal $ (3^ a folio, Code, 3305a.) 63. Clerk's fee for taxing costs, Kings and Bronx Counties $ . 25 (Kings County, Chap. 446, Laws of 1906; Bronx County Court, Chap. 353, Laws 1915.) Disbursements incurred in the City Court are governed by sec- tion 31640 of the Code; in Kings County, by Chap. 446, Laws 1906; and those in Bronx County, Chap. 353, Laws 1915. FORMS Code provisions and statutory enactments relating to each of the items will be found under "Itemized Costs" and "Itemized Dis- bursements" under the corresponding numbers. FORM I Bill of Costs Taxed by Plaintiff in an Action Within Sec. 420 of the Code, on Default of Defendant to Appear or Answer Court against Plaintiff Defendant Costs of Costs la. Costs by statute $i 5 . oo 3. Costs for additional defendants served ($2 each). . . Disbursements 32. Clerk's fee on entry of judgment .50 33. Affidavits and acknowledgments (126 for affidavit, 25( for acknowledgment) $ 34. Service of summons and complaint (In New York, Kings, Bronx, Queens, and Richmond coun- ties) 1 i . 50 1 In other counties, $1.00. 156 FORMS 157 35. Satisfaction piece (25^), certificate (12^) .37 36. Transcript of judgment and filing thereof .18 42. Sheriff's fees on execution (New York, Kings, Bronx, Queens, and Richmond counties, $1.75 and 10^ a mile) 1 STATE OF NEW YORK 1 r ss: COUNTY OF J the attorney for the in the above entitled action, being duly sworn, says that the foregoing disbursements have been made in said action or may be neces- sarily made or incurred therein and that they are reasonable in amount. Sworn to before me this day of 19 . Notice of Adjustment Take notice, that the within is a copy of the items of the Costs and Disbursements in the within action, and that the same will be adjusted by the Clerk of the Court, at his office, in on the day of 19 . . . , at o'clock in the noon of that day and the amount inserted in the Judgment Roll. Yours, etc. Att'y for To Att'y for FORM H Bill of Costs Taxed by Plaintiff on Confession of Judgment by Defendant The bill to be submitted is the same as Form I, except that there are no fees to be charged for the service of summons and complaint, nor any allowance for additional defendants served. 1 In other counties, 620 and IDC a mile. 158 TAXATION OF COSTS FORM III Bill of Costs Taxed by Plaintiff in an Action not within Sec. 420 of the Code, Where an Inquest is Taken Before a Sheriff's Jury. Court against Plaintiff Defendant Costs of Costs la. Costs before notice of trial $25 .00 3. Additional defendants served ($2 each) $ Disbursements 32. Clerk's fee on entering judgment .50 33. Affidavits and acknowledgments (12^ for affidavit, 25^ for acknowledgment) $ 34. Service of summons and complaint (In New York, Kings, Bronx, Queens, and Richmond coun- ties) 1 i .50 35. Satisfaction piece (25^) and certificate (12^) .37 36. Transcript of judgment (12^) and filing (6^) .18 39. Postage (not allowed in City Court) $ 40. Sheriff's jury 3 .00 42. Sheriff's fees on execution (New York, Kings, Bronx, Queens, and Richmond counties, $1.75 and 10^ a mile) 2 1 In other counties, Si.oo. * In other counties, 6ac and IDC a mile. FORMS 159 44. Sheriff's fees ($6 for notifying Jurors, $5 for Sheriff's attendance, in New York, Kings, Bronx, Queens, and Richmond counties) $ 11.00 STATE OF NEW YORK COUNTY OF . . . : the attorney for the in the above en- titled action, being duly sworn, says that the foregoing disburse- ments have been made in said action or may be necessarily made or incurred therein and that they are reasonable in amount. Sworn to before me this . day of. ...... 19 . (Note. "Notice of Adjustment to be found in Form I). FORM IV Bill of Costs for Plaintiff on a Trial before Court and Jury in an Action either Under Sec. 420 or Otherwise Court against Plaintiff Defendant Costs of Costs la. Costs before notice of trial ($15 in an action under 420) $25.00 2. Costs after notice of trial 15 . oo 3. Additional defendants served ($2 for each defendant) 4. Trial of an issue of fact 30 . oo 8. Motion costs (if any, $10) i6o TAXATION OF COSTS 9. Order of publication (if any, $10) $ 10. Trial occupied more than two days ($10) 11. Procuring order of arrest (if any, $10) 12. Appointment of guardian of infant defendant (if any, $10) 13. Examination of witness or party before trial (if any, $10) ' 14. Attending and taking deposition (if any, $10) * 15. Drawing interrogatories to annex to commission (if any, $10) 3 19. Term fees (only one term allowed in City Court) ... 10.00 20. Motion for a new trial (on newly discovered evidence, $60) * 21. Proceedings after granting of and before new trial (if any, $25) 5 Disbursements 26. Paid for official searches (if any) 27. Referee's report (if any) 28. Referee's fees (if any, $10 a day) 30. Clerk's fee (not in City Court) i . oo 32. Clerk's fee on entering judgment .50 33. Affidavits (12^) and acknowledgments (25^) 34. Serving copy summons and complaint (New York, Kings, Queens, Bronx and Richmond coun- ties) 8 i . 50 1 Taxable by the successful party although the order was obtained by the adverse party. Only one fee of $10 allowed although several witnesses may have been examined. 2 Party or witness is entitled to the fee when he attends ready to be examined, although the examination is waived and is never had. 3 But one charge can be made although separate interrogatories have been drawn for several witnesses. 4 Costs allowed are the same as those allowed on appeal, $20 before argument and $40 for argument. 8 This item may be taxed as many times as a new trial is had pursuant to an order of the court. 6 In other counties, $1.00. FORMS 161 35. Satisfaction piece (25^) and certificate of satisfaction $ (i2/) .37 36. Transcript of judgment (12^) and filing (6fi .18 38. Certified copies of orders (if any, 3^ a folio, not less than 25^) 39. Postage (not in City Court) 40. Jury fees 3 . oo 42. Sheriff's fees on execution (New York, Kings, Queens, Bronx, and Richmond counties $1.75 and 10^ a mile) x 47. Extract from the minutes .10 53. Filing note of issue 3 .00 54. Witness fees, (50^ a day and 8( a mile going one way) 2 ( ) days ( ) miles STATE OF NEW YORK ) COUNTY OF the Attorney for the in the above- entitled action, being duly sworn, says that the foregoing disburse- ments have been made or may be necessarily made or incurred in said action and are reasonable in amount, and that the persons named as witnesses, attended as such witnesses on the Trial of said action the number of days set opposite their names; that said persons resided the number of miles set opposite their names, from the place of said trial; and each of said persons, as such witness as aforesaid, necessarily travelled the number of miles so set opposite his name, in traveling to, and the same distance in returning from the said place of trial; and that the copies of document or papers as charged herein were actually and neces- sarily obtained for use. Sworn to before me, this day of 191 (Note. " Notice of Adjustment " to be found in Form I.) 1 In other counties, 620 and loc a mile. 2 Mileage allowed is 8c a mile going one way and only once, provided witness resides 3 miles or more from place of attendance. Witness fee is 500 a day for each day's attendance. 162 TAXATION OF COSTS FORM V Bill of Costs to Be Taxed by Defendant in an Action Tried before a Court and Jury Court against Plainti/ Defendant Costs of Costs ib. Costs before notice of trial $10.00 2. Costs after notice of trial 15 . oo 4. Trial fee issue of fact 30 . oo 8. Motion costs (if any, $10) 10. Trial occupied more than two days (if any, $10) 13. Examination of witnesses before trial (if any, f 10) 1 . . 14. Attending and taking deposition (if any, $10) 2 . . . . 15. Drawing interrogatories to be annexed to commission ($io) 3 19. Term fees (only one term fee allowed in the City Court) 10 . oo 1 Taxable by the successful party although the order was obtained by the adverse party. Only one fee of $10 allowed although several wit- nesses may have been examined. 2 Party or witness is entitled to the fee when he attends ready to be examined, although the examination is waived and is never had. 3 But one charge can be made although separate interrogatories have been drawn for several witnesses. FORMS 163 20. Motion for a new trial on newly discovered evi- dence ($60) l 2 1 . Proceedings after granting of and before new trial ($2 5) 2 Disbursements 26. Paid for official searches 27. Referee's report (if any) 28. Referee's fees ($10 a day) 29. Commissioner's fees (if any) 30. Clerk's fees (not allowable in the City Court) $ i . oo 32. Clerk's fees on entry of judgment .50 35. Satisfaction piece (25^), certificate of satisfaction (12^) .37 36. Transcript of judgment (12$ and filing (6t() .18 37. Certified copy of judgment (if any, 3^ a folio) 38. Certified copies of orders (if any, 3^ a folio) 39. Postage (not in City Court) 42. Sheriff's fees on execution (New York, Kings, Bronx, Queens, and Richmond counties $1.75 and io a mile) 3 47. Extract from the minutes .10 54. Witness fees (50^ a day and 8<2 a mile going one way) 4 ( ) days ( ) miles ( ) days ( ) miles STATE OF NEW YORK] t SS COUNTY OF J " the Attorney for the in the above- entitled action, being duly sworn, says that the foregoing disburse- ments have been made or may be necessarily made or incurred in said action and are reasonable in amount, and that the persons 1 Costs allowed are the same as those allowed on appeal, $20 before argument and $40 for argument. 2 This item may be taxed as many times as a new trial is granted pur- suant to an order of the court. 3 In other counties, 620 and zoc a mile. 4 Mileage allowed is 8c a mile going one way and only once, provided witness resides 3 miles or more from place of attendance. Witness fee is 500 a day for each day's attendance. 164 TAXATION OF COSTS named as witnesses, attended as such witnesses on the Trial of said action the number of days set opposite their names; that said persons resided the number of miles set opposite their names, from the place of said trial; and each of said persons, as such witness as aforesaid, necessarily traveled the number of miles so set opposite his name, in traveling to, and the same distance in returning from the said place of trial; and that the copies of document or papers as charged herein were actually and necessarily obtained for use. Sworn to before me, this day of 191 . (Note. "Notice of Adjustment" to be found in Form I). FORM VI Bill of Costs to be Taxed by the Plaintiff on an Inquest Be- fore the Court and a Jury The bill to be submitted is the same as Form IV. If the Inquest is before a court without a jury, the trial fee of $30 should be taxed, but not a jury fee of $3. FORM VII Bill of Costs to be Taxed by Either Side on Entry of an Inter- locutory Judgment Court against Plaintiff Defendant Costs of Costs 2. Costs after notice of trial $i 5 . oo 5. Costs for trial of an issue of law 20 . oo FORMS 165 FORM VIII Bill of Costs to be Taxed by Appellant on Reversal of Judg- ment by the Appellate Term or Appellate Division Court against Plainti/ Defendant Costs of Costs 16. Making and serving a case $ 20.00 18. Case more than fifty folios ($10 additional) 23. Costs before argument (in Appellate Term or Appellate Division) 20 . oo 23. Costs for argument (in Appellate Term or Appellate Division) 40 . oo Disbursements 32. Clerk's fee on entry of judgment .50 33. Affidavits (12^) and acknowledgments (25*!) 35. Satisfaction Piece (25^) and Certificate of Satisfac- tion (12^) .37 36. Transcript of judgment (12^) and filing (6fi .18 42. Sheriff's fees on execution (New York, Kings, Bronx, Queens, and Richmond counties, $1.75 and jo^f a mile) J 1 In other counties, 620 and xoc a mile. i66 TAXATION OF COSTS 48. Paid printing cases l 49. Paid printing points ' 50. Paid for copy of stenographer's minutes 2 . STATE OF NEW YORK COUNTY OF the attorney for the in the above en- titled action, being duly sworn, says that the foregoing disburse- ments have been made in said action or may be necessarily made or incurred therein and that they are reasonable in amount. Sworn to before me this . day of 19 . (Note. "Notice of Adjustment" to be found in Form I.) FORM IX Costs to be Taxed by Respondent on an Affirmance of Judg- ment either by the Appellate Term or Appellate Division Court against Plaintiff Defendant Costs of Costs 17. Preparing and serving amendments to the case $20.00 1 The printer's receipted bill should be submitted to the taxing officer on taxation. 2 No taxation of costs for moneys paid for the summation of attorneys nor for excess of legal rate because of special work, or hurry work. FORMS 167 23. Costs before argument (in Appellate Term or Ap- pellate Division) $ 20.02 23. Costs for argument (in Appellate Term or Appellate Division) 40 . oo Disbursements 32. Clerk's fee on entry of judgment .50 33. Affidavits (12^) and acknowledgments (25$ 35. Satisfaction piece (25^) and certificate of satisfac- tion (i2f) 37 36. Transcript of judgment (12 f) and filing (6/1) .18 42. Sheriff's fees on execution (New York, Kings, Bronx, Queens, and Richmond counties, $1.75 and 106 a mile) 1 49. Paid printing points 2 50. Paid for copy of stenographer's minutes 3 STATE OF NEW YORK COUNTY OF the attorney for the in the above en- titled action, being duly sworn, says that the foregoing disburse- ments have been made in said action or may be necessarily made or incurred therein and that they are reasonable in amount. Sworn to before me this . day of. ..'..... 19 . (Note. "Notice of Adjustment" to be found in Form I.) 1 In other counties, 620 and zoc a mile. 2 The printer's receipted bill should be presented to the taxing officer on taxation. 3 Neither attorney's summation nor excess rate is taxable. This item cannot be taxed when the appellant offered a copy of his minutes to the respondent with which to prepare his amendments and the latter refused to accept them. 168 TAXATION OF COSTS FORM X Bill of Costs to be Taxed by Defendant on Dismissal of Complaint Granted on Motion, for Failure to Prosecute the Action Court against Plaintijff Defendant Costs of Costs ib. Costs before notice of trial $10 . oo 8. Motion costs 10.00 (If issue has been joined and notices of trial served and cause placed on the calendar, the following items of costs are taxable.) 2. Costs after notice of trial 15. oo 19. Term fees (only one term in the City Court) Disbursements 23. Clerk's fee on entering judgment .50 33. 'Affidavits (12$ and acknowledgments (25^) 35. Satisfaction piece (25^) and certificate of satisfac- tion (12^) .37 36. Transcript of judgment (12^) and filing (6/0 .18 42. Sheriff's fees on execution (New York, Kings, Bronx, Queens, and Richmond counties, $1.75 and 10^ a mile) l 1 In other counties, 620 and toe a mile. FORMS 169 STATE OF NEW YORK 1 COUNTY OF the attorney for the in the above en- titled action, being duly sworn, says that the foregoing disburse- ments have been made in said action or may be necessarily made or incurred therein and that they are reasonable in amount. Sworn to before me this day of 19 . (Note. "Notice of Adjustment " to be found in Form I.) FORM XI Bill of Costs to be Taxed by the Defendant upon Dismissal of Complaint Either on Call of the Calendar or After a Trial of the Issues Court against Plaintiff Defendant Costs of Costs ib. Before notice of trial , $10.00 2. After notice of trial 15.00 4. Trial of an issue of fact 30 . oo 19. Term fee (only one term in City Court) 10 . oo Disbursements 30. Clerk's fee (not in the City Court) i .00 32. Clerk's fee on entering judgment .50 1 7 o TAXATION OF COSTS 33. Affidavits (12^), acknowledgment (25^) $ 35. Satisfaction piece (25^) and certificate of satisfac- tion (12^) -37 36. Transcript of judgment (12^!) and filing (6^) 18 39. Postage (not in the City Court) 42. Sheriff's fees on execution (New York, Kings, Bronx, Queens, and Richmond counties, $1.75 and io a mile) l 47. Extract from minutes 10 STATE OF NEW YORK ) ' SS' COUNTY OF the attorney for the in the above en- titled action, being duly sworn, says that the foregoing disburse- ments have been made in said action or may be necessarily made or incurred therein and that they are reasonable in amount. Sworn to before me this ] day of 19 . (NOTE. " Notice of Adjustment " to be found in Form I.) FORM XII Bill of Costs to be Taxed by the Defendant on the Discon- tinuance of an Action by the Plaintiff Court against Plainti/ Defendant Costs of 1 In other counties, 620 and ice a mile. FORMS 171 Costs ib. Before notice of trial $10 . oo 2. After notice of trial 15 .00 4. Trial fee (sometimes allowed) 1 19. Term fee 2 10 . oo A judgment for costs on the discontinuance of an action cannot be entered, nor can any disbursements be taxed. FORM XIII Bill to be Taxed by the Plaintiff on the Withdrawal of a Juror to Permit the Defendant to Amend His Answer Court against Plaintiff Defendant Costs of Costs la. Before notice of trial (when within 420 of Code, $15) $25 .00 2. After notice of trial 15 . oo 4. Trial of an issue of fact 30 . oo 19. Term fees (only one term in the City Court) 10.00 1 A trial fee may be allowed where the case appears on the day calendar and is marked ready for trial and thereafter an order of discontinuance is entered. * No term fee will be taxed when the order of discontinuance is entered the same term it appears on the calendar. 172 TAXATION OF COSTS Disbursements 33. Affidavits (12^) and acknowledgments (256) $ 34. Service of summons and complaint (New York, Kings, Bronx, Queens, and Richmond counties) "... i . 50 38. Certified copy of order (if any) 40. Jury fee 3 oo 53. Note of issue 3 - oo 54. Witness fees (if any) 2 ( ) days ( ) miles STATE OF NEW YORK COUNTY OF the attorney for the in the above- entitled action, being duly sworn, says that the foregoing disburse- ments have been made or may be necessarily made or incurred in said action and are reasonable in amount, and that the persons named as witnesses, attended as such witnesses on the Trial of said action the number of days set opposite their names; that said persons resided the number of miles set opposite their names, from the place of said trial; and each of said persons, as such witness as aforesaid, necessarily traveled the number of miles so set opposite his name, in traveling to, and the same distance in returning from the said place of trial; and that the copies of documents or papers as charged herein were actually and nec- essarily obtained for use. Sworn to before me, this day of 191 . (Note. "Notice of Adjustment" to be found in Form I.) 1 In other counties, $1.00. 2 Mileage allowed is 8c. a mile going one way and only once, pro- vided witness resides 3 miles or more from place of attendance. Wit- ness fee is SQC a day for each day's attendance. FORMS 173 FORM XIV If after defendant pays the costs as terms for permission to amend his answer, the plaintiff finally succeeds in the action, he is entitled to tax -a full bill as set forth in Form IV, except such disbursements which he has already charged on the previous taxation. If the defendant is finally successful in the action, he is entitled to tax a full bill of costs as set forth in Form V. FORM XV Bill to be Taxed by Defendant on the Withdrawal of a Juror to Permit Plaintiff to Amend His Complaint Court against Plaintiff Defendant Costs of Costs ib. Before notice of trial $10 . oo 2. After notice of trial 15 .00 4. Trial of an issue of fact 30 . oo 19. Term fee (only one in the City Court) 10 . oo Disbursements 33. Affidavits (i2f) and acknowledgments (25^) 38. Certified copy of order (if any) i 7 4 TAXATION OF COSTS 54. Witness fees (if any) ' ( ) days ( ) miles. STATE OF NEW YORK COUNTY OF the Attorney for the in the above- entitled action, being duly sworn, says that the foregoing disburse- ments have been made or may be necessarily made or incurred in said action and are reasonable in amount, and that the persons named as witnesses, attended as such witnesses on the Trial of said action the number of days set opposite their names; that said persons resided the number of miles set opposite their names, from the place of 'said trial; and each of said persons, as such witness as aforesaid, necessarily traveled the number of miles so set opposite his name, in traveling to, and the same distance in returning from the said place of trial; and that the copies of documents or papers as charged herein were actually and nec- essarily obtained for use. Sworn to before me, this day of 191 . (Note. "Notice of Adjustment" to be found in Form I.) FORM XVI If after plaintiff pays the costs as terms for permission to amend his complaint, the defendant finally succeeds in the action, he is entitled to tax a full bill of costs as set forth in Form V, except such disbursements which have already been charged on the previous taxation. If the plaintiff is finally successful in the action, he is entitled to tax a full bill of costs as set forth in Form IV. 1 Mileage allowed is 8c a mile going one way and only once, pro- vided witness resides 3 miles or more from place of attendance. Wit- ness fee is soc a day for each day's attendance. FORMS 175 FORM XVII Bill of Costs to be Taxed by the Successful Party upon a Re- trial of an Action had Pursuant to an Order of the Court granted upon Setting Aside a Verdict Rendered by a Jury Court against Plaintiff Defendant Costs of Costs ia. Before notice of trial * (when within 420 of Code, $15) $25.00 2. After notice of trial 15. oo 4. Trial of an issue of fact (two trials) 60 . oo 19. Term fees (only one fee in the City Court) 10.00 2 1 . Costs after the granting of and before a new trial ..... 25 . oo Disbursements 30. Clerk's fee (not in the City Court) i . oo 32. Clerk's fee on entering judgment .50 33. Affidavits (12^) and acknowledgments (25^) 34. Serving summons and complaint (New York, Kings, Bronx, Queens, and Richmond counties) *. . . 1-50 35. Satisfaction piece (25^) and certificate (izfi .37 36. Transcript of judgment (i2f5) and filing (64) .18 38. Certified copy of order (if any) 1 Defendant is entitled to $10 only. 2 Defendant is not entitled to this item. 176 TAXATION OF COSTS 40. Jury fees l $ 3.00 42. Sheriff's fees on execution ($1.75 and ioj a mile) 2 . . 47. Extract from the minutes .10 53. Note of issue l 3 . oo 54. Witness fees.* ( ) days ( ) miles STATE OF NEW YORK 1 l SS' COUNTY OF J the attorney for the in the above- entitled action, being duly sworn, says that the foregoing disburse- ments have been made or may be necessarily made or incurred in said action and are reasonable in amount, and that the persons named as witnesses, attended as such witnesses on the Trial of said action the number of days set opposite their names; that said persons resided the number of miles set opposite their names, from the place of said trial; and each of said persons, as such witness as aforesaid, necessarily traveled the number of miles so set opposite his name, in traveling to, and the same distance in returning from the said place of trial; and that the copies of document or papers as charged herein were actually and necessarily obtained for use. Sworn to before me, this day of 191 (Note. "Notice of Adjustment" to be found in Form I.) 1 Defendant is not entitled to these items. 2 In the counties of New York, Kings, Bronx, Queens, and Richmond only; in all the other counties only 62C and zoc. a mile. 3 Fees allowed are SDC for each day's attendance, and 8c a mile one way only, provided the witness has to travel three miles or more. FORMS 177 FORM XVHI Bill of Costs to be Taxed by the Successful Party upon the Re-trial of an Action Pursuant to an Order of Reversal by the Appellate Court, Ordering a New Trial with Costs to Abide the Event Court against Plaintiff Defendant Costs of Costs IE. Before notice of trial 1 (when within 420 of Code, $15) $25.00 2. After notice of trial 15 . oo 4. Trial of an issue of fact (two trials) 60 . oo 16. Making artd serving a case on appeal z 20 . oo 17. Preparing and serving amendments to a case 3 20.00 18. Case more than fifty folios 2 (10 additional) 10.00 19. Term fees in trial court (only one in the City Court) . 10 . oo 19. Term fees in appellate court 4 21. Costs after granting of and before new trial 25. oo 23. Before argument (in Appellate Term or Appellate Di- vision) 20 . oo 23. For argument (in Appellate Term and Appellate Di- vision) 40 . oo 1 Defendant to tax $10 only. 2 Not to be taxed by respondent. 3 Not to be taxed by appellant. 4 No term fees in Appellate Term. 178 TAXATION OF COSTS Disbursements 30. Clerk's fees (not in the City Court) 1 $i . oo 32. Clerk's fee on entering judgment .50 33. Affidavits (12^) and acknowledgments (256) 34. Service of copy summons and complaint (New York, Kings, Bronx, Queens, and Richmond coun- ties) l i . 50 35. Satisfaction piece (25*!), certificate (12$ .37 36. Transcript of judgment (12^) and filing (6 ' ' granting new trial on newly discovered evidence 1 20 When appeal costs are same as motion costs 122 Appeal from order only 121 No term fee on appeal from order 54 When term fees are taxable 54 Successful party entitled to appeal costs 95 Several appeals argued as one 21 On reargument of appeal 1 24 Case on appeal to be taxed by appellant only 132 Appeal costs not dependent on amount of recovery 156 Costs of appeal in pauper actions 211 Cost on appeal against executors, etc 206 Effect of appeal by several defendants on same papers. . 232 Appeal Costs: Objection how taken 113 When demurrer heard as a contested motion 117 Only one bill against several respondents 118 See "Appeals." Appellant: Case on appeal to be taxed by appellant only 132 See "Appeals." Appellate Term: No term fees allowed 53 Order of Appellate Term to be made order of court below . i38a INDEX 189 References are to sections Argument : Costs on argument 101 Submission of papers same as argument 125 Several appeals argued as one 21 See "Appeals." Arrest and Imprisonment: Issuance of execution against person for collection of costs 256 Execution may be issued against either party 256 In tort actions 256 Personal injuries 256 Assault 256 Against guardian ad litem 256 Assault, Slander, etc.: Allowance of costs 142 Attachment warrant of Poundage and fee, how collected, when writ is vacated . page 146 Attendance : Referee's fees for every day's attendance 195 Of witness. See "Witness," "Referee's Fees." Attorney : No allowance for service of papers on attorney 234 Witness fee for. See "Witness." Attorney's Lien for Costs: See "Collection of Costs." B Battery. See " Assault." Before Notice of Trial: Costs allowed 26 When action comes with 420, C. C. P 27 Not taxable on entry of interlocutory judgment 28, 74 Effect of discontinuance of action . . 60 1 90 INDEX References are to sections BUI of Costs: Bill of costs must be served together with notice of taxation 4 Must be examined by clerk 7 Items must be legal 7 Not necessary that adversary be present on taxation ... 7 Bond and Undertaking: Premiums paid not taxable 221 On replevying chattels 221 Bond on appeal 221 For security of costs 221 Bronx County County clerk's fees page 148 C Case on Appeal : Effect of failure to perfect 102 What a case consists of 93 Not taxable in Court of Appeals 131 Taxable by appellant only 132 Effect of failure to make and serve a case 108 Certiorari Proceedings : How awarded 134 As to allowance of increased costs 183 Certificate: In actions involving an interest in real property 139 Charges : Transcript of judge's charge is taxable 214 City Court of the City of New York: Notice of taxation of costs 4 Term fee 45-49 Costs on appeal from interlocutory judgment 114 When appeal costs may be taxed i38a Order of appellate court to be made order of City Court. . i38a INDEX 191 References are to sections Clerk to Tax Costs : Upon application of party 4 Direction of court 4 There must be a verdict, report of referee, etc 5 Clerk must examine bill carefully 7 Adversary need not be present at taxation 7 Clerk may adjourn taxation 8 Clerk not to dismiss taxation 1 1 " " " retax in absence of both parties u Clerk must tax bill of costs of several defendants on pres- entation 17 When clerk's taxation not disturbed 218 Code. See "Section." Co-defendant. See " Witness." Collection of Costs : Execution against property 250 Supplementary proceedings 251 Motion cost not collectible either by execution against real property or supplementary proceeding 252 Interlocutory costs 252 Costs on demurrer 252 " on appeal from order of Special Term 252 Alimony and counsel fee 252 Contempt 253 Matrimonial actions 254 Attorney's lien for costs 255 Execution against the person 256 Mandamus 257 Commissioners : Fees of Commissioner taxable 214 Confession of Judgment: Allowances 190 I 9 2 INDEX References are to sections Consolidation of Actions : Effect of consolidation of actions 65 Contempt : On failure to pay costs by attorney 253 Power to punish on failure to pay costs 253 Contested Motion. See "Appeal Costs," "Demurrer," "Motion Costs." Co-partner : Ability of one partner to offer judgment against a co- partnership 188 Costs are Statutory in Law Actions : Court has no power to grant or withhold 2 When "without costs" ineffective 2 When discretionary. See "Demurrer," "Actions in Equity," "Motion Costs." Costs belong to Party: Costs awarded belong to party 9 Costs Previously Paid as Terms : Effect of payment of costs imposed as terms 96 When costs paid as terms cannot be taxed again 96 When items of costs allowed to be taxed again 97 When terms allowed is amount equal to costs 98 Costs on Appeal : Objection to, how taken 1 13 From interlocutory judgment in City Court 1 14 See "appeal" Counterclaim: Effect of counterclaim interposed by defendant 164 See "Offer of Judgment." INDEX 193 References are to sections Court of Appeals : Costs as awarded in Court of Appeals 129 Costs as used in undertakings on appeal 130 Costs for making and serving a case 131 What costs are taxable 131 Criminal Conversation: See " Assault." D Default: Payment of costs on opening default 99 Defendant: When defendant is entitled to costs 157, 158, 161 Statutory provisions 158 When one of several defendants obtains judgment 159 When attorney for defendant is a public official 160 Allowances to plaintiff and defendant 162 When defendant not entitled to costs 163 Effect of counterclaim by defendant 164 Entitled to costs on offer of judgment 188 When defendant entitled to increased costs. See " In- creased Costs to Defendant." Additional costs for additional defendants served 2iga Effect of voluntary appearance as to additional costs . . . 2igb Demurrer and Interlocutory Judgment: Allowance for trial of issue of law 67 When discretionary with court 67 When entitled to costs 68 Motion to overrule demurrer 68 When nominal damages demanded in complaint 69 When demurrer brought on as a contested motion . . .70, 117 When demurrer tried as issue of law 71 On entry of interlocutory judgment 71 194 INDEX References are to sections Demurrer and Interlocutory Judgment Continued When demurrer sustained or overruled in whole 72 When there are several defendants not united in interest 72 What fees and disbursements not taxable 72 Effect of demurrer as to one of several defenses or counter- claims 73 When full costs are taxable 73, 76 Items taxable on entry of interlocutory judgment 74 On affirmance of interlocutory judgment 74 Disbursements allowed 75 Costs to be included in final judgment 77 Interlocutory judgment overruling demurrer, reversed . . 115 on demurrer, affirmed 116 Collection of demurrer costs. See "Collection of Costs." Depositions and Interrogatories: Drawing interrogatories, statutory provisions 165 Interrogatories not served 165 Only one fee taxable 166 When more than one fee taxable 167 Depositions, statutory provisions 168 Fee follows on issuance of Commission 169 Deposition by stipulation 170 Allowance to party entitled to general costs 171 Only one fee where one order is issued 172 Where several parties obtain orders 173 Where examination is waived 174 Where order is obtained by adverse party 175 When no allowance is made 176 Direction of Court. See " Minutes." Disagreement of Jury : Effect on trial fee 38 Effect as to statutory allowance when new trial is ordered 88 INDEX 195 References are to sections Disbursements : Statutory provisions 214 Item included 214 Authority to tax disbursements 215 When disbursement may be taxed 215 Affidavit of disbursements must accompany bill 216 Disbursements must be reasonable 216 An award of costs includes disbursements 217 When clerk's taxation thereof not disturbed 218 Fees for service of subpoena not taxable 220 Fees for official searches 222 Stenographer's fees 223 minutes 224 Allowance not included in motion costs 249 Effect of discontinuance of action 61 What disbursement not allowed or entry of interlocutory judgment 72,75 When disbursement must be expressly awarded 79 Where there is more than one appeal in same case 103 Costs include disbursement 123, 146, 217 What is a necessary disbursement 223 Discontinuance of Action : Allowance of costs not discretionary 59 Entitled to costs before and after notice of trial 60 No trial fee nor disbursements 35, 61 When trial fee may be allowed 62 When no term fee allowed 50, 63 When no costs imposed 64 No judgment for costs to be entered 66 Discretion of Court. See "Actions in Equity;" "Actions at Law." Dismissal of Action: Trial fee allowed 34 See "Dismissal of Complaint." 196 INDEX References are to sections Dismissal of Appeal : For failure to make and serve a case 108 Costs on dismissal of appeal 133 Dismissal of Complaint: Costs are statutory 55 Trial fee allowed 56 When several defendants move to dismiss 57 Effect of dismissal as to one of several defendants. . . 58, 159 Dismissal of Taxation: Authority of clerk to dismiss taxation 1 1 When dismissed, proper course is to review 12 Disqualification of Judge : Reargument because of 126 Docketing : Fees for docketing and entry of judgment 214 , Document: Same document used in several actions *,. 233 Entry of Judgment: Fees for entry of judgment proper item of disbursements 214 Right to review taxation waived 14 Equity. See "Actions in Equity." Equitable Actions: Costs discretionary 3 Costs limited by 3230, C. C. P 3 When judgment demands sum of money only 3 Event. See "With Costs to Abide the Event." INDEX 197 References are to sections Excess Rate : For minutes not taxable 229 Execution : Execution against property 250 " the person 256 Executors and Administrators : Statutory provisions 201 When not liable for costs 201 Entitled to complete trial before liability for costs at- taches 202 Effect of unreasonably resisting a claim 203 When certificate of judge necessary 204 When liable for costs 203, 205 Liability for appeal costs 206 Exemption from costs limited 2o6a Exemption from Costs. See " Executors and Administrators." Expense : Proof must be submitted 231 Expert Testimony: What allowance therefor may be made 242 F False Imprisonment. See Assault. Fees: Of referee 191, 192 Effect of stipulation as to referee 193 When several actions tried together 194 Days of attendance 195 Preparation of report 196 When no fee allowed 197 Stipulation of attorneys as to 198 198 INDEX References are to sections Fees Continued Stipulation as to stenographer's fees 227 Also see "Stenographer's Fees," "Commissioners," " Dep- ositions and Interrogatories," "Sheriff," "Dis- bursements." Final Judgment: Costs accruing before amendment not taxable 100 See "Appeal," "Demurrer and Interlocutor)' Judgment." Finally Successful: Party finally successful entitled to costs 106, 138 Fine or Penalty : When people of state are a party '. 142 Foreclosure : Allowances on, upon offer of judgment iSyb, 189 Fifty Dollars. See "Less than $50." Forma Pauperis : Statutory provisions 207 Liability of party suing as a poor person 207 Order to be presented on taxation or served on adverse party 208 When costs may be imposed 209, 210 Costs accruing prior to granting of order 210 Appellate court costs 211 Effect of unsuccessful appeal 212 When recovery is less than $50 213 G General Costs: Prevailing party entitled to 164 Who is the prevailing party 164 Allowance for issuance of commission follows general costs 171 INDEX 199 References are to sections Guardian ad Litem: Liability to execution against the person 256 I Increased Costs to Defendant: Statutory provisions . . 180 Allowance when action is against sheriff 181 Allowance when action is against policeman 181 No allowance when action is on bond of officer 182 Writ of certiorari not within section 183 Allowance includes cost on appeal 184 Inquest: Trial fee allowed on inquest 40 Effect of opening inquest 87 Interest : Interest to be computed by clerk 24 Amount to be inserted in judgment 24 Interest is not properly included as an item in bill of costs 24 Interlocutory Costs. See " Collection of Costs," "Interlocutory Judgment." Interlocutory Judgment: Costs before notice of trial not taxable 28 Costs on appeal from, in City Court 114 Costs overruling demurrer, reversed 115 " on demurrer, affirmed 1 16 See "Demurrer and Interlocutory Judgment." Interrogatories. See " Depositions and Interrogatories." 200 INDEX References are to sections Issuance of Commission. See "Depositions and Interrog- atories." Items of Disbursements. See "Disbursements," "Bill of Costs," "Demurrer and Interlocutory Judgment." J Judgment: Judgment incomplete without costs 19 Judgment for costs on discontinuance not to be entered . 66 Effect of appeal from judgment and order at same time 104 Costs in all courts on entry of final judgment 106 What costs are proper in judgment of affirmance no Plaintiff to obtain affirmative judgment in action involv- ing real property 141 Fee for entering judgment 214 On affirmance of interlocutory judgment 74 See "Offer of Judgment," "Confession of Judgment," "Affirmative Judgment." Judge: Reargument on disqualification of judge 1 26 Jurisdiction: Jurisdiction of court to try title to real property 140 Jury Fees: Proper item of disbursements 214 K Kings County Fees of Kings County clerk page 149 L Laches. See "Motion to Review Taxation." Law. See "Actions at Law." INDEX 201 References are to sections Less than $60. Effect when recovery is less than $50 149, 157, 213 When right to costs is not dependent on amount of re- covery 138 In replevin actions 144 Costs allowed 145 " disallowed 146 Effect on appeal costs when recovery is less than $50 .... 107 Acceptance of offer of judgment for less than $50 187 See also "Recovery." Less than $250. See "Recovery;" "Defendant;" "Sec. 3228, sub. 4 and 5." Less than $600. See "Recovery;" "Defendant;" "Sec. 3228, sub. 4 and 5." Less than $1,000. See "Recovery;" "Defendant;" "Sec. 3228, sub. 4 and 5." Libel. See "Assault." Lien: Attorney's lien for costs 255 Superior to right of set-off by parties ......;.... 255 Limitation of Allowance : When allowance limited to $2,000 179 Limitation of Recovery. See "Recovery." * M Making and Serving a Case : Not taxable in Court of Appeals 131 Taxable by appellant only 132 Malicious Prosecution. See "Assault," etc. 202 INDEX References are to sections Mandamus : Municipality may be compelled by mandamus to pay costs 257 When mandamus cannot be invoked 257 Matrimonial Actions : Method of collecting allowance 254 Measurements. See "Expert Testimony." Mechanics' Liens. See "Foreclosure." Mileage : Affidavit of mileage necessary 243 For witnesses, once and only one way 244 Witness must travel three miles or more 244 Computed from place of actual residence 245 Foreign witness 246 Fees must appear to have been paid 247 When testimony taken at residence of witness 248 Allowance on service of summons 219 Allowances made to sheriff. See "Sheriff." Minutes : Stenographer's minutes 224 Effect of offer of copy of minutes by appellant to respon- dent 224 Effect of refusal to accept 224 Ordered in course of trial 224 When used on another trial 225 When procured by direction of court 226 Excess rate or for summation not taxable 229 Misconduct of Jury. See "After Granting of and before New Trial." Mistrial: Effect on trial fee when caused by withdrawal of juror. .36, 37 INDEX 203 References are to sections Money only. See "Recovery." More Favorable* Recovery. "See Offer of Judgment." More than Two Days. See "Trial Lasting more than Two Days." Motion Costs: May be allowed or disallowed in discretion of court. . . .2, 78 May be allowed to abide the event 78 Cannot exceed $10 and disbursements 2, 78 When costs may exceed that amount 78 Meaning of "with costs" when granted on motion 79 Disbursements must be expressly allowed 79 Effect of motion for new trial made at close of trial .... 119 Disbursements not included in motion costs 249 Motion costs of appeal not to be taxed 109, 127 When costs on appeal same as motion costs 122 On appeal from motion for new trial on newly discovered evidence 104 Demurrer heard as a contested motion 117 Motion to overrule demurrer 68, 70 How collectible 252 Motion to Review Taxation : To be made on papers before clerk on taxation 14 Statement of counsel not made before clerk on taxation cannot be considered 14 When question of law is raised 14 Laches 14 Entry of judgment waives right to review 14 N Necessary Disbursements. See "Disbursements." Newly Discovered Evidence. See "New Trial upon Newly Discovered Evidence." 204 INDEX References are to sections New Trial upon Newly Discovered Evidence: Costs allowed same as on appeal _ 91 Motion is based upon a case 91, 92 What a case consists of 93 Costs allowed, same as on appeal 91 Also entitled to costs on appeal from judgment 94 New Trial: On appeal from order granting or denying motion for a new trial 119 Appeal from order granting a new trial on newly discov- ered evidence 120 See "After the Granting of and before a New Trial." Nominal Damages : On demurrer 69 Note of Issue : Effect on term fee when filed by adversary 48 Effect of failure to file 32 Notice : Notice of taxation to be given to adverse party 4 Number of days' notice 4 Number of days' notice in City Court 4 Notice of relaxation to be given immediately 13 Effect of failure to give notice of relaxation 13 Bill of costs to accompany service of notice of taxation 4 Notice of Trial. See "Before Notice of Trial," "After Notice of Trial." Costs before notice of trial 26 Action included in 420, C. C. P 27 Costs after notice of trial 29 When one charge is allowed 29 When more than one is allowed 30 INDEX 205 References are to sections Effect of return of notice of trial 31 Effect of failure to file note of issue 32 Effect on term fee when filed by adversary 48 O Offer of Judgment : Statutory provisions 185 Effect of plaintiff's acceptance of offer i36 Offer must be unqualified 186 When offer must be made i86a Withdrawal of offer i86b Effect of recovery by plaintiff in excess of offer 187 What is meant by "in excess of offer" 187 What is a "more favorable" recovery i87a, 188 When counterclaim is interposed . I ^7 a - Effect of acceptance of offer less than $50 187 When defendant entitled to costs 188 When offer of defendant is insufficient 188 When recovery is reduced to less than offer 189 Actions in foreclosure proceedings i87b, 189 When offer of judgment is not binding on other parties . 188 Officers of Corporation. Witness fees. See " Witness." Official: When attorney is a public official 160 Disbursements for official searches allowed 222 See "Increased Costs to Defendant." Opinions : Fees for copies of opinions 214 206 INDEX References are to sections Order: Appeal from order at close of trial 119 On appeal from order granting a new trial on newly dis- covered evidence 120, 121 Appeal from order only 121 Costs on appeal from order same as motion costs 122 Final order in an action or proceeding 80, 81, 82 Order of appellate court must be made order of lower court before costs may be taxed i38a Order for deposition. See "Deposition." No term fee on appeal from order 54 P Partner. See "Co-partner." Partial Recovery. See "Recovery." Party: Costs belong to party 9- Witness fee for party in tfe action. See "Witness," "Appearance of Party." Pauper. See "Forma Pauperis." Payment of Costs as Terms. See "Costs Previously Paid as Terms." Penalty. See "Fine." Perfect Case on Appeal. See "Appeal." Period of Trial. See "Trial Lasting more than Two Days." Plans. See "Expert Testimony." Pleadings. See "Amendment of Pleadings." INDEX 207 References are to sections Policemen. See "Increased Costs to Defendant." Poor Person. See "Forma Pauperis." Premiums on Bond or Undertaking. See "Bond." Prevailing Party in an Action : Meaning thereof 164 When general costs follow 164 Printing: ' Reasonable expenses for printing taxable 214 Referee's report 228 Allowance on an appeal from order 230 When there are several defendants 231 Proceedings before and after Granting a New Trial. See "After the Granting of and Before New Trial." Proof of Expense. See "Expense." Public Official. See "Official," "Increased Cost of Defend- ant," "Defendant." Publication: Legal fee for publication is taxable 214 R Real Property: Right to costs not limited to amount of recovery 139 Title of property must be in question 140 Unnecessary allegation as to real property insufficient . . 140 Jurisdiction of court to try questions of title 140 Where action is united with a tort action 140 Plaintiff must obtain affirmative judgment 141 When no execution against real property can be had ... 252 208 INDEX References are to sections Reargument: On reargument of appeal 1 24 On disqualification of judge 126 Motion costs for reargument of appeal not to be taxed. . 127 Reargument when referred 128 Recovery : Effect on appeal costs when recovery less than $50 107 Party finally recovering judgment entitled to costs 138 When right to costs does not depend on amount of recov- ery 139 In replevin actions 144 Recovery must be $50 or more to entitle plaintiff to costs in actions for a sum of money only 148 When presumed to be for a sum of money only 148 When recovery is less than $50 149 When recovery is within 3228, sub. 5, C. C. P 150 Allowance dependent on place of service and trial . . 151, 152 Effect of recovery of less than $250 153 Has no application to appeal costs 1 56 Partial recovery by both parties in suit of several causes of action 161 Referees : Must file report as prescribed 199 Report must be delivered or filed 199 Misconduct of 200 Referee's Fees: Statutory provisions 191 Fees may be stipulated in writing 191, 193 Fees allowed by law 191, 192 Effect of stipulation as to fees 193 When several actions tried together 194 Fee for every day of attendance 195 Allowance for preparation of report 196 When no fee will be allowed 197 Attorneys may stipulate as to fees 198 INDEX 209 References are to sections Reference : Effect as to the allowance of a trial fee 41 When reference is cancelled : 4ib Allowance same as in any other action 157 Stenographer's fees 228 Replevin: Statutory provisions 143 Plaintiff must be entitled to chattel 143, 144 Allowance dependent on amount of recovery . . 144, 145, 147 Costs allowed 145 Costs disallowed 146 Costs includes disbursements 146 Report of Referee : Fee for preparation of report of referee 196 Must be filed by referee as prescribed 199 Effect of failure to file report 199 Printing of report 214, 228 Residence : Testimony taken at residence of witness 248 Resisting Claim. See "Executors and Administrators." Respondents. When only one bill allowed to several respondents 118 Restoring Case. See "After Granting of and Before New Trial" Relaxation: Notice of relaxation to be immediately given 13 Failure to give notice of relaxation 13 Parties appearing are entitled to notice 13 Where no answer was interposed 13 Amount of costs reduced to be credited on execution . . . i3a When relaxation not required 15, 105 Relaxation allowed although judgment is appealed 16 In absence of parties 1 1 210 INDEX References are to sections Review of Taxation : Review of taxation to be made by court on motion 14 Only items objected to may be reviewed 14, 18 Only papers submitted on taxation may be considered on review 14 When question of law is raised 14 Laches 14 Waiver of right to review 14 When objection is to entire bill, individual items are not to be considered 18 See "Motion to Review Taxation." S Same Papers. See "Appeal." Sealed Verdict: Effect on " additional " trial fee ; 44 Sections of Code of Civil Procedure: 14, sub. 3 253, 257 420 26, 27 421 i 461 .: 207, 213 466 211 467 211 547 70 732 185 733 185 737 185 738 185, 189 779 77, 251, 252, 253, 254, 257 870 168 871 168 872 168 879 168, 170 976 70, 117 INDEX 211 References are to sections Sections of Code of Civil Procedure Continued 893 168 997 92 1015 199, 228 1019 199, 200 1235- 24 1240. 250, 256, 257 1275 190 1326 130 1346 114 1347- 114 1348 114 1349 114 1487 ' 256 1772 252 1773 252 1835 201 , 2o6a 1836 201, 202, 2o6a 2143 183 2268 257 2348 82 2432 251 2681 204 2743 - -249 3161, sub. 6 4 3188 114 3189 H4 3228, sub. i , 139 3228, sub. 2 143 3228, sub. 3 142 3228, sub. 4 2, 69, 148, 149, 157, 187 3228, sub. 5 .69, 147, 150, 151, 153, 154, 155, 156, 157, 164 3229 58, 69, 157, 158, 161 323 3 3232 67, 68, 71, 77 3233 252 3234 161, l62 , 164 212 INDEX References are to sections Sections of Code of Civil Procedure Continued 3235 .... i39 3236 79, 121 3237 156 3239- -104, 134 3240 79, 80, 82 3246 2o6a 3251. . . .33, 43, 71, 78, 82, 102, 125, 2iga, 228 3251, sub. i 26, 2iga 3251, sub. 3. .2,45, 67, 78, 79, 83, 84, 120, 121, 165, 168, 249 3251, sub. 4. . 91, 114, 119 3251, subs. 4 and 5 101, 117, 131 3252 177 3253 177 3254 -.177, 178 3256 6, 81, 214, 217, 222, 223, 249 3258 180, 181, 183 3259 l8 o 3262 4, 250 3263.. 4 3264 12, 13 3265 .12, 14 3266 7,11 3267 . .236, 243 3288 24ia, 2410 3296 '20, 191 3307 219 3318. . .236, 244 3372 82 Seduction. See "Assault." Service : Of summons. See "Summons." Of paper on attorney 234 INDEX 213 References are to sections Set-Off: What appeal costs may be set off in See "Appeal." Several Actions : When tried together 21, 194 When same document used in each of them 233 See "Stipulation." Several Appeals. See "Appeals." Several Defendants : Clerk must tax bill when presented 17 Only one bill taxable by plaintiff 22 Effect on expense of printing case on appeal 23 1 Effect of dismissal as to one of several defendants ... 58, 159 Appeal on same papers 232 See "Clerk to Tax Costs," "Appeal," "Defendant." Several Plaintiffs : When one defendant recovers against 23 Several Respondents: When one bill only will be allowed 1 18 Sheriff's Fees: Proper item of disbursements 214. Fees allowed page 146 Fees and poundage, how collected page 146 Sheriff. See "Increased Costs to Defendant." Slander. See "Assault." Special Proceedings: Allowance of costs in discretion of court 80 What items allowable 80 Carries disbursements 81 Must be a final order in the proceedings 81 When 3240, C. C. P., applies 82 214 INDEX References are to sections Special Appearance. See "Appearance." Special Term Costs, Collection of 252 Statutory Costs: In law action 2 Court has no power to withhold 2 "Without costs" ineffective 2 Statutory Provisions. See "Section." Stay of Proceedings : Effect on term fee 47 Stenographer's Fees: When taxable 223 Disbursement for minutes when taxable 224 Effect of offer of copy of minutes by appellant to re- spondent 224 Effect of refusal to accept 224 When minutes ordered by court 224 Stipulation as to payment : 227 Fees on a reference 228 Stipulation : As to costs 20, 42 As to trial of several actions 21 Several actions tried as one 21 Several appeals argued as one 21 Deposition by stipulation 170 As to witness fees 238 See "Referee's Fees." Stockholder : Witness fees. See "Witness." INDEX 215 References are to sections Submission: Of papers same as argument 125 See "Argument." Sum of Money. See "Recovery," "Actions in Equity." Summation : Stenographer's transcript 229 Summons : Disbursements for service thereof 219 Additional costs for additional defendants 2iga Effect of voluntary appearance of defendant aigb Mileage on service of summons 219 Supplementary Proceedings : Maintainable for collection of costs 251 When not maintainable 252 Surrogate's Court: Allowance of disbursements 249 Surveys. See "Expert Testimony." T Taxation. See "Clerk to Tax Costs." Taxation of Costs by Clerk: Upon application of party 4 Clerk to insert amount in judgment 4 When taxed under wrong section of Code 15 When clerk's taxation not disturbed 6 Taxation may be adjourned by clerk 8 See "Clerk to Tax Costs." Fees in Bronx and Kings Counties pages 148, 149 Taxation of Costs by Judge : Interlocutory costs . . t 4 Costs in special proceedings 4, 80 216 INDEX References are to sections Taxation of Costs on Notice : Each party appearing entitled to notice 4 Time of notice 4 When less than 5 days 4 Copy of bill to accompany notice 4 In City Court only 2 days 4 When one day is sufficient 4 When presence of adverse party not necessary 7 Taxation of Appeal Costs : Order of Appellate Court must be made the order of court below i38a Practice in City Court i38a Taxation of Costs Previously Paid as Terms : See "Costs Previously Paid as Terms." Term Fees: In City Court 45, 49 In Supreme Court 45 In Appellate Division 45 In Court of Appeals 45 In Appellate Term 53 Cause must be necessarily on the calendar 46 When considered necessarily on calendar 46 Effect of stay of proceedings 47 Effect of postponement of cause without consent 47 Effect of adversary filing notice of trial 48 When demurrer noticed on general calendar and heard at Special Term 48 When no term fee allowed 50, 54 Effect of amendment of pleading 51 Effect of adjournment on consent 52 When taxable in appellate courts 54 Successful party entitled to tax them 53 Terms. See "Costs Previously Paid as Terms," "Default." INDEX 217 References are to sections Testimony : See "Witness," "Expert Testimony." Time: Notice of taxation of costs 4 When less than 5 days 4 In City Court 4 Title to Property. See "Real Property." To Abide the Event. See "With Costs to Abide the Event." Tort or Contract: When doubtful whether action is in tort or contract .... 10 Transcripts of Minutes. See "Minutes." Triable: Meaning of term 152 Trial: Meaning of term 114 Period of trial 44 Trial Lasting more than Two Days: Additional allowance 43 What constitutes period of trial 44 Effect of waiting to become actually engaged 44 Adjournment after examination of jury 44 Time given to prepare briefs 44 Sealed verdict on following day 44 Trial Fee: When allowed 33 What is a trial 33, 34, 114 On dismissal of action 34, 56 On discontinuance of action 35, 61, 62 Removing case from short cause to general calendar .... 36 2i8 INDEX References are to sections Trial Fee Continued Mistrial due to withdrawal of juror 37 Disagreement of jury 38 Withdrawal of juror 39 On taking an inquest 40 Effect of cause being sent to referee 41 On cancellation of reference 4ib Effect of stipulation 42 U Undertaking on Appeal : " Costs " as used therein 130 Premiums paid on undertakings. See "Bond," "Court of Appeals." Unreasonably Resisting Claim. See "Executors and Ad- ministrators." V Verdict: On motion to set verdict aside 119 When set aside and new trial ordered 84 When set aside because of misconduct of jury 85 See also "Clerk to Tax Costs." See also "Sealed Verdict." Voluntary Appearance by Defendant: When equivalent to personal service 154 When defendant entitled to costs 155 Effect as to allowance of additional costs W Waiver of Examination. See "Depositions and Interroga- tories." Warrant of Attachment: Poundage, how collected page 146 INDEX 219 References are to sections Withdrawal of Juror: Effect on trial fee 39 "With Costs." When disbursements not included 79, 249 When "with costs" carries disbursements 80, 81, 249 When allowance "with costs" carries only one bill against several respondents 118 "With costs" to abide the event 135 With Costs to Abide the Event: Meaning 135 When construed to include all costs in the action 136 When construed as costs of appellate court only 137 Effect of Court of Appeals allowing or disallowing same. 137 Party finally successful entitled to tax them 138 Without Costs. See "Actions at Law." Witness : Witness fee proper item of disbursement 214 Fees for service of subpoenas 220 Statutory provisions 236 Affidavit of attendance of witness, etc., necessary 237 Affidavit must state witness to be material 237 When fees cannot be taxed 237 Stipulation by parties as to fees 238 When not called to testify 239 Adverse party 24oa Stockholder 24ob Officer of corporation 24oc Party in the action 24ia Codefendant 24ib Attorney of record 24ic Allowance for expert testimony 242 Testimony taken at residence of witness 248 See "Mileage." 220 INDEX Form I : PAGE Bill of costs taxed by plaintiff in an action within sec. 420, Code of Civil Procedure, on default of defendant to appear or answer 156 Form II: Bill of costs taxed by plaintiff on confession of judgment by defendant 157 Form III: Bill of costs taxed by plaintiff in an action not within sec. 420, Code of Civil Procedure, where an inquest is taken before a sheriff's jury 158 Form IV: Bill of costs for plaintiff on a trial before a court and jury 1 59 Form V: Bill of costs to be taxed by defendant in an action tried before a court and jury 161 Form VI: Bill of costs to be taxed by plaintiff on an inquest before a court and jury 164 Form VII: Bill of costs to be taxed by either side on entry of an interlocutory judgment 165 Form VIII: Bill of costs to be taxed by appellant on reversal of judg- ment by the Appellate Term or Appellate Division 165 Form IX: Costs to be taxed by respondent on an affirmance of judg- ment either by the Appellate Term or Appellate Division. . .166 INDEX 221 Form X: PAGE Bill of costs to be taxed by defendant on dismissal of complaint granted on motion for failure to prosecute the action 168 Form XI: Bill of costs to be taxed by defendant upon dismissal of complaint either on the call of the calendar or after a trial of the issues 169 Form XII: Bill of costs to be taxed by defendant on the discontin- uance of an action 170 Form XIII: Bill to be taxed by the plaintiff on the withdrawal of a juror to permit defendant to amend his answer. ... 171 Form XIV: Bill to be taxed by plaintiff after defendant had paid costs as terms to permit him to amend 173 Bill to be taxed by defendant under same conditions. ... 173 Form XV: Bill to be taxed by defendant on the withdrawal of a juror to permit plaintiff to amend his complaint 173 Form XVI: Bill to be taxed by defendant after plaintiff had paid costs as terms for leave to amend 174 Bill to be taxed by plaintiff under same conditions 174 Form XVII: Bill of costs to be taxed by successful party upon a retrial of an action had pursuant to an order of the court granted upon setting aside a verdict rendered by a jury 175 222 INDEX Form XVIII: PAGE Bill of costs to be taxed by the successful party upon the retrial of an action pursuant to an order of reversal by the appellate court ordering a new trial with costs to abide the event 177 Form XIX: Bill of costs to be taxed on the rendition of judgment absolute by the Appellate Division in an action brought in the City Court which was reversed and a new trial ordered by Appellate Term 179 Form XX: Bill of costs to be taxed by successful party on entry of final judgment upon an interlocutory judgment overruling or sustaining a demurrer to a pleading. . 182 \ LAW LIBRARY * UNIVERSITY OF CALIFORNIA LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 680 098 1