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 Si I
 
 THE 
 
 LAW OF COSTS 
 
 IN NEW YORK 
 
 GEORGE E. MILLIMAN 
 
 OP THE ROCHESTER BAR 
 
 ROCHESTER N.T. 
 THE LAWYEnS' CO-OPEtlATIVB PUDLISHTNO COMPANY 
 
 1901
 
 Entered according- to Act of Congress, in the Year nineteen hundred four, by 
 
 GEORGE E. MILLIMAN, 
 
 In the Office of the Librarian of Congress, at AVashington, D. C. 
 
 M6Zl9c 
 1904-
 
 PREFACE. 
 
 This work has been prepared for the practising attorney iu 
 the state of New York, and presupposes that he is acquainted 
 with the substantive law of costs, the different courts, their ju- 
 risdiction and procedure. The writer has endeavored to show 
 the application of the general rule of costs to specific cases. 
 Therefore the general rule upon the subject under consideration 
 has been stated ; then the specific instances of the application of 
 that rule follow. The procedure for obtaining such costs is then 
 given, stating also how the allowance thereof is reviewed on the 
 ground that they are excessive or unauthorized. 
 
 The subject-matter of each chapter has been subdivided so 
 tliat the reader may readily find where the subject under consid- 
 eration is treated. The index also has been prepared with espe- 
 cial reference to pointing out where specific questions are 
 discussed. 
 
 The statute authorizing the granting of costs in each particu- 
 lar instance is gi^en, and all of the reported cases upon that sub- 
 ject are cited. It has sec/ned best to omit none, although tho 
 point has been definitely decided by the appellate court, because 
 the difference in the facts of the several cases serves to distin- 
 guish them, and it is often of great advantage to have a case in 
 which the facts are identical with the one under consideration. 
 
 Strictly speaking, allowances granted by the courts to pay for 
 I he services of counsel are not costs; yet the distinction is one of 
 words, rather than substance. Therefore they have been treated 
 as though they were denominated costs in the Code of Civil 
 Procedure. 
 
 The forms are intended to show the practitioner just where to 
 find the law authorizing every item of cost or disbursement, and 
 to suggest to him all the items to which the taxing party is 
 entitled. 
 
 lo
 
 IV PREFACE. 
 
 The question of the title to costs is only one branch of the sub- 
 ject of the lien of an attorney. It has seemed best, therefore, to 
 treat the entire subject of attorney's lien, including methods of 
 enforcement. 
 
 Upon disputed and unsettled points the aim has been to pre- 
 sent the position which has been considered the more tenable, 
 noting in the citations the cases which hold contrary to the text. 
 ^"^0 attempt has been made to discuss decisions that are contra- 
 dictory beyond the hope of reconciliation. Where, however, 
 the disagreement is one of words, and not of substance, an effort 
 has been made to show the principles which underlie all the de- 
 cisions, although the courts have not clearly recognized them. 
 
 No book upon this subject would be complete without a warn- 
 ing against relying upon any case for or against any proposition 
 until the statute under which the reported case arose is compared 
 with the existing statute. The assumption that the law has not 
 changed, or reliance upon the statement by the court that the 
 statutes are the same, is always fraught with danger. The care- 
 ful practitioner will always compare the statutes, even at the ex- 
 pense of great labor and time. 
 
 Geokge E. Milliman. 
 RocHESTEE, N. Y., January 1, 1904.
 
 CONTENTS. 
 
 CONTENTS. 
 
 CHAPTEJl I. 
 
 GENERALLY. 
 
 1. Definition of costs 1 
 
 2. Costs at common law 1 
 
 3. Costs in actions at law 2 
 
 4. Costs in actions in equity ' 3 
 
 5. By what statute governed 5 
 
 6. Costs determined by which verdict G 
 
 7. Power of court over costs (} 
 
 o. In actions at law 6 
 
 b. In actions in equity 7 
 
 8. Power of attorneys over costs 8 
 
 CHAPTER II. 
 
 AITOENEY'S ]>1I:K. 
 
 9. Kinds of lions 10 
 
 a. In general 10 
 
 b. Retaining lien 10 
 
 c. Charging lien 11 
 
 1 0. Who entitled to a lien 11 
 
 1 1 . In what courts 12 
 
 12. Loss of lien 13 
 
 13. Necessity of a notice to protect the lien 14 
 
 14. In what actions IG 
 
 15. Lien in special proceedings 17 
 
 16. To what lien attaches 17 
 
 17. Title to costs 18 
 
 18. Transfer of cause of action pending the action 21 
 
 If). Effect of settlement 22 
 
 a. Upon lien 22 
 
 b. As regards the parti«^,3 22 
 
 c. In actions in forma pauperis 2.3 
 
 <l. When the client is irresponsible 2.'? 
 
 e. Intent 23
 
 VI CONTENTS. 
 
 20. Lien of attorney before the adoption of the Code of Civil Pro- 
 
 cedure 24 
 
 21. Relief given by the courl 24 
 
 22. Protection of lien upon substitution of attorneys 25 
 
 a. Eight of client to substitution of attorneys 25 
 
 b. Control of the court upon substitution of attorneys 25 
 
 c. Discontinuance of proceedings for substitution of attorneys. . 26 
 
 d. How the extent of the lien is determined 26 
 
 e. Terms upon substitution of attorneys 27 
 
 23. Substitution of attorneys when lien has been waived 28 
 
 24. Substitution of attorneys when attorney has been guilty of mis- 
 
 conduct 28 
 
 25. Costs of proceedings to ascertain amount of attorney's lien 29 
 
 26. Power of court to protect attorney when he has no lien 29 
 
 27. Lien in supplementaiy proceedings 30 
 
 28. Lien when the action is brought in a representative capacity. ... 31 
 
 29. Effect of statute of limitations upon lien 33 
 
 30. Assignment of lien 34 
 
 31. Right to enforce lien upon securities 34 
 
 32. How lien is enforced 35 
 
 a. Supplementary proceedings 35 
 
 I. After settlement by the parties 35 
 
 c. By summary proceedings 36 
 
 d. Foreclosure of lien 37 
 
 €. Paid out of fund 37 
 
 f. Setting aside collusive and fraudulent settlements 37 
 
 g. By continuing action 38 
 
 { 1 ) Right of attorney to continue action 38 
 
 ( 2 ) Leave to prosecute the action ; when granted 39 
 
 (3) Proof on the trial 39 
 
 33. Right of defendant to set up settlement in his answer 39 
 
 34. Setting aside satisfaction of judgment in courts of record 40 
 
 35. Power of justices' courts over satisfaction of judgment 41 
 
 36. Liability of third parties 41 
 
 37. Lien of counsel 41 
 
 38. Set-off 42 
 
 39. Lien in matrimonial actions 44 
 
 CHAPTEE III. 
 
 LIABILITY OF ATTORNEY. 
 
 40. By summary proceeding instituted by his client 46 
 
 a. In general 46 
 
 6. How exercised 47 
 
 c. Between what parties 48 
 
 d. How instituted 49
 
 COiMTEKTS. Til 
 
 e. In what cases 49 
 
 /. Ell'ect upon this proceeding; of an action brought for the same 
 
 thing 50 
 
 g. Answer of attorney to this proceeding 50 
 
 41. By action in tort brought by client 51 
 
 42. Liability for interest on monej' collected by attorney 51 
 
 43. Rights of attorney to have his lien determined 52 
 
 44. Liability for misconduct 52 
 
 45. Liability of attorney for sheriff's fees 53 
 
 46. Liability for other fees 54 
 
 47. Repayment of costs 55 
 
 CHAPTEE IV. 
 
 MOTIONS AND AMEXD-MKXTS. 
 
 48. Motion costs 58 
 
 o. In general 58 
 
 b. Amount 58 
 
 c. How awarded 58 
 
 d. \\hen awarded 59 
 
 c. W hen refused 59 
 
 (!) In general 55> 
 
 ( 2 ) Both succeed in part 60 
 
 (3) Costs balance 60 
 
 (4) Unnecessary motion 60 
 
 (5) Ex parte motions 61 
 
 /. Same motion in several cases 61 
 
 g. Piolief asked in motion, granted by opposite party before 
 
 argument 61 
 
 h. Order granting favor 62 
 
 49. Costs upon allowing amendment 62 
 
 a. In general 62 
 
 h. Amendment of complaint during trial 63 
 
 c. Amendment of complaint after judgment 64 
 
 d. Amendment of complaint after appeal 64 
 
 c. Amendment of answer 65 
 
 /. Serving supplemental answer 67 
 
 g. Construction of order 68 
 
 h. Retaxing of costs paid as condition of amending 68 
 
 -50. Costs on change of parties 69 
 
 51. Motions on the pleadings 69 
 
 c. Striking out scandalous pleadings 69 
 
 b. Striking out pleadings as.punishment 70 
 
 c. Motion for judgment on frivolous pleading 70 
 
 52. Dismissal for n^lect to prosecute 71 
 
 -53. Motion for bill of particulars 71 
 
 54. Motion for bill of discovery 71
 
 viii CONTENTS. 
 
 55. Change of venue 72 
 
 a. Convenience of witnesses 72 
 
 6. Venue laid in wrong county 72 
 
 56. Opening defaults 72 
 
 a. In general 72 
 
 6. On trial 73 
 
 c. Waiver of costs granted 7G 
 
 d. Costs to abide the event 76 
 
 e. Co?ts to moving party 76 
 
 /. Default on appeal 76 
 
 CHAPTER V. 
 
 COSTS UPON A DISCONTINUANCE. 
 
 57. In general 77 
 
 58. Excuse for discontinuance 79 
 
 59. How order obtained 82 
 
 60. Two bills of costs 82 
 
 61. Rights of defendant 83 
 
 62. When a trial fee is allowed 83 
 
 63. Discontinuance in equity actions 84 
 
 64. Discontinuance when a receiver has b(>en appointed or an injvmc- 
 
 tion granted 85 
 
 65. Discontinuance after appeal 85 
 
 66. Additional allowance upon a discontinuince 85 
 
 67. Discontinuance in special proceedings 86 
 
 68. Refusal of plaintiff to accept terms of discontinuance 86 
 
 69. Protection of attorney upon a discontinuance 87 
 
 70. Order to be entered upon discontinuance 87 
 
 CHAPTER VI. 
 
 DELAYING TRIAL AND MOTION FOR A NEW TRIAL. 
 
 71. Withdrawing a juror 89 
 
 72. Adjourning trial 90 
 
 73. Motion for new trial made without case 91 
 
 74. New trial in ejectment actions 92 
 
 75. New trial on account of error of jury 92 
 
 76. Waiver of right to costs 94 
 
 77. New trial on account of error of court 94 
 
 78. New trial on account of error of referee 95 
 
 79. New trial in justice's court, because the verdict is against the 
 
 weight of evidence 05 
 
 80. New trial on the groimd of newly discovered evidence 95 
 
 81. What is included in "costs of former trial" 9.^
 
 CONTENTS. IX 
 
 82. Additional allowance upon the first trial 96 
 
 83. What items are taxable 98 
 
 8i. Motion for new trial made on two grounds 97 
 
 85. Correction of order 97 
 
 86. What courts have power to exercise discretion as to terms of a 
 
 new trial 97 
 
 87. Motion for a new trial made on a case 98 
 
 88. Appeal from an order granting new trial 99 
 
 CHAPTER VII. 
 
 COSTS UPON THE DECISION OF A DEMURRER. 
 
 89. Absolute right to costs in actions at law 100 
 
 90. In actions which involve questions of law and fact 101 
 
 91. Where both parties are successful 102 
 
 92. Separate bills cf costs, where there are two or more parties on 
 
 the successful side 102 
 
 93. What items are taxable 102 
 
 94. Judgment upon frivolous demurrer 103 
 
 95. When successful party cannot tax costs 104 
 
 90. Amendment of pleading to obviate defect pointed out by demurrer . . 104 
 
 97. Judgment entered upon decision of demurrer 105 
 
 98. Final or interlocutory judgment 105 
 
 99. Costs by whom taxed 103 
 
 CHAPTER VIII. 
 
 COSTS AS REGULATED BY THE RELIEF SOUGHT AND BY THE 
 JUDGJdENT RENDERED. 
 
 ! GO. Generally 108 
 
 101. Action to recover real property 108 
 
 a. When claim of title arises upon the pleadings 109 
 
 ( 1 ) In general 109 
 
 (2) Unnecessary allegations of title . 109 
 
 (3) United with another cause of action 110 
 
 6. Ejectment 110 
 
 c. The question of title to real estate must be involved Ill 
 
 d. Lack of jurisdiction Ill 
 
 e. Action for dower Ill 
 
 A Trespass 112 
 
 g. Plea of license 113 
 
 /^. Plea that the land is a highway 113 
 
 1. Actions in relation to easements 1 14 
 
 ;'. Actions between landlord and tenant 114 
 
 A'. Title to real estate proven as a matter evidence 115
 
 X CONTENTS. 
 
 I. Action commenced in a justice's court 115 
 
 m. Power of the justice's court before removal of the action. . . . 117 
 
 w. Action to abate a nuisance 117 
 
 o. Action for trespass and assault and batU-ry 118 
 
 p. Certificate of judge that question of title arose on the trial. . 118 
 
 102. Action to recover a chattel 119 
 
 a. In general 119 
 
 6. The value of tlie chattels as fixed by the verdict 120 
 
 c. Action by llnder to recover lost property from depositary. . . . 121 
 
 103. Actions of which a justice of the peace has not jurisdiction 121 
 
 a. In general 121 
 
 b. Assault and batteiy 122 
 
 c. Alienation of affections ] 22 
 
 d. Malicious prosecution 123 
 
 e. Action for causing death 123 
 
 104. Other actions where the recovery is less than $50 123 
 
 a. In general , 123 
 
 b. Actions where the sum total of the accoiuits proved exceed 
 
 $400 123 
 
 c. How the amount is computed 125 
 
 d. When the plaintiff is entitled to costs 126 
 
 e. When the defendant is entitled to costs 120 
 
 f. Where the accounts do not exceed $400 127 
 
 g. Recovery reduced below $50 by the interposition of a counter- 
 
 claim by the defendant 127 
 
 h. Recovery reduced below $50 by payments made after the com- 
 mencement of the action 128 
 
 i. Recovery increased above $50 by the addition of interest 
 
 which has accrued since the commencement of the action. . 129 
 
 j. Miscellaneous cases where the recovery was less than $50 .... 129 
 
 CHAPTEE IX. 
 
 ACTIONS IN WHICH COSTS ARE IN THE DISCRETION OF THE 
 
 COURT. 
 
 105. In general 131 
 
 106. In what courts 131 
 
 107. When and how this discretion can be reviewed 132 
 
 108. Costs; how awarded and reviewed when action is tried before 
 
 referee 13;^ 
 
 109. Costs; how awarded when the action is tried by the court 134 
 
 110. Costs; how awarded when part of the issue is tried by a jury and 
 
 part by the court 135 
 
 111. Costs where the cause of action has terminated before the trial. . 135 
 
 112. Costs where the defendant makes an offer in his pleading 136 
 
 113. Where both parties are successful 136
 
 CONTENTS. XI 
 
 114. What pleading determines the fact that costs are in the discretion 
 
 of the court 136 
 
 115. Costs where there has been a multiplicity of actions 137 
 
 116. Contribution of costs among wrongdoers 137 
 
 117. Liability of successor in interest in an action where costs are 
 
 discretionary 137 
 
 118. Costs where the question involved is novel 137 
 
 CHAPTER X. 
 
 COSTS IN REAL ACTIONS. 
 
 119. Foreclosvire of mortgage by advertisement 140 
 
 120. Foreclosure of mortgage by action 140 
 
 a. In general 140 
 
 h. Liability of defendant by appearing in the action 140 
 
 c. Liability of defendant by serving an answer 141 
 
 d. When the wife of the mortgagor is entitled to costs 141 
 
 c. Answer setting up payment since the commencement of the 
 
 action 141 
 
 f. Report of the referee 141 
 
 «/. Costs in an unnecessary action 142 
 
 /(. Offer of judgment 142 
 
 i. Commissions 143 
 
 }. Additional allowance 143 
 
 A. Liability of party who has assumed the mortgage debt 144 
 
 }. Surplus proceedings 144 
 
 m. Allowance to receiver of rents 145 
 
 n. Liability of referee 145 
 
 o. Costs upon redemption from the mortgagee 146 
 
 p. How the discretion of the trial court in awarding costs can 
 
 be reviewed 146 
 
 q. Discretion reviewed by the court of appeals 147 
 
 121. Foreclosure of a land contract 147 
 
 122. Foreclosure of a chattel mortgage; 147 
 
 123. Action to have a deed declared a mortgage 148 
 
 124. Action to set aside fraudulent conveyances 148 
 
 125. Action to remove a cloud on the title 148 
 
 126. Action to compel the specific performance of a land contract 149 
 
 127. Power of court to relieve purchaser from a bid upon a judicial 
 
 sale 151 
 
 128. Liability of purchaser at a judicial sale in protecting his bid 151 
 
 229. Partition action 151 
 
 a. In general 151 
 
 fc. Costs to the defendant 151 
 
 c. By whom costs sliould be paid 152 
 
 d. At what stage in the proceedings costs are allowed 153 
 
 e. Costs to ffuardian ad litem 154
 
 Xll CONTENTS. 
 
 130. Action to construe a will 154 
 
 a. To wliom costs are allowed 154 
 
 6. Upon what principle costs are alloui^cl 154 
 
 c. Amount of additional allowances 155 
 
 d. By what court costs are awarded 156 
 
 e. Payable out of what fund 156 
 
 131. Action to foreclose mechanic'^ liens 156 
 
 a. In general 156 
 
 6. Liability of the owner of the premise? 157 
 
 c. Offer of judgment 158 
 
 d. Costs allowed to a subcontractor 158 
 
 e. Additional allowance 158 
 
 CHAPTEK XI. 
 
 INCREASED COSTS. 
 
 132. Double costs 160 
 
 a. Who are entitled to double costs 160 
 
 h. Waiver of right to double costs 161 
 
 c. How obtained 162 
 
 d. When they are refused 162 
 
 e. Costs on appeal 163 
 
 133. Treble costs 163 
 
 CHAPTER XII. 
 
 COSTS IN ACTIONS AGAINST SCHOOL OFFICERS AND MUNICIPAL 
 
 CORPORATIONS. 
 
 134. Costs in actions against school officers 165 
 
 a. Statute 165 
 
 h. Who is entitled to protection of the statute 168 
 
 c. Certificate 169 
 
 d. How costs awai ded agaiast a school officer are collected 169 
 
 e. Costs awarded to school officers 170 
 
 135. Costs in action against a municipal corporation 170 
 
 a. In general 170 
 
 h. What actions are within the statute 170 
 
 c. To whom the claim must be presented 171 
 
 d. How the claim must be presented 1 72 
 
 e. Effect of the presentation of the claim 172 
 
 CHAPTER XIII. 
 
 MATRIMONIAL ACTIONS. 
 
 136. Action for absolute divorce 173 
 
 a. Costs 173
 
 CONTENTS. XIU 
 
 6. Counsel fees allowed 174 
 
 ( 1 ) In general 174 
 
 (2) Poverty of husband 175 
 
 c. Counsel fees refused 17G 
 
 d. Reviewed by court of appeals 177 
 
 e. Counsel fees upon appeal 177 
 
 f. Rights of the attorney upon a settlement 178 
 
 g. How the payment of counsel fees may be enforced 178 
 
 137. Action for separation 179 
 
 a. In general 179 
 
 &. Counsel fees denied ISO 
 
 c. Counsel fees upon appeal 180 
 
 d. Rights of the attorney upon a settlement 181 
 
 e. How the payment of counsel fees may be enforced 181 
 
 138. Action to arnul a marriage 182 
 
 a. Counsel fees allowed 182 
 
 h. Counsel fees denied 182 
 
 139. Costs in other actions between husband and wife 183 
 
 CHAPTER XIV. 
 
 COSTS AND ALLOWANCES IN CRIMINAL MATTERS, IN ACTIONS 
 FOR PENALTIES, AND IN PROCEEDINGS UNDER THE LIQUOR 
 TAX LAW. 
 
 140. Allowance upon the trial of an indictment, where the offense is 
 
 punishable with death 184 
 
 141. Personal and incidental expenses of counsel in capital cases 186 
 
 142. Allowance for appeal in capital cases 188 
 
 143. Allowance to counsel appointed to aid the district attorney 187 
 
 144. Liability of complainant or of prisoner in criminal cases for the 
 
 costs of the proceedings 187 
 
 145. Costs in actions for violation of the game law 188 
 
 146. Action for other penalties 189 
 
 147. Proceedings under the liquor tax law 189 
 
 CHAPTER XV. 
 
 SPECIAL PROCEEDINGS. 
 
 148. Is TCneral 101 
 
 149. Mandamus 192 
 
 a. In general 192 
 
 &. When costs are not imposed 192 
 
 c. When costs are imposed 1!13 
 
 d. Upon whom costs are imposed 193 
 
 e. Additional allowance 193 
 
 /. Terms imposed upon amendment 193
 
 XIV CONTENTS. 
 
 g. Stay for nonpayment of costs 194 
 
 h. Amount of costs 194 
 
 i. Costs upon appeal 195 
 
 150. Condemnation proceedings 196 
 
 a. In general 196 
 
 h. Additional allowance 198 
 
 c. How the allowance of costs is reviewed 199 
 
 d. Costs upon abandonment of the proceedings 199 
 
 151. Proceedings brought by railroads 199 
 
 a. Proceedings brought by one railroad to cross another 199 
 
 6. Proceedings to condemn a right of way for elevated railroads.. 200 
 0. Proceedings under the general railroad act 200 
 
 d. Additional allowance 200 
 
 e. Trial fee 200 
 
 /. Costs upon appeal by the railroad 200^ 
 
 152. Various proceedings 200^ 
 
 153. Proceedings by taxpayers to investigate the afTairs of a village. . . 202 
 
 154. Costs upon opening a highway 203 
 
 155. Proceedings to investigate the affairs of a county 204 
 
 156. Proceedings to vacate an assessment 205 
 
 157. Proceedings under special acts 205 
 
 CHAPTEK XVI. 
 
 SPECIAL PROCEEDINGS CONTINUED. 
 
 158. Proceedings for appointment of committee of a lunatic, idiot, 
 
 habitual drunkard, or imbecile 208 
 
 a. Petition dismissed 208 
 
 6. Petition granted 208 
 
 c. Attempt by incompetent to have the committee removed. . . . 209 
 
 d. Allowance to and against committee 210 
 
 159. Certiorari 210 
 
 a. In general 210 
 
 6. Proceedings against assessors 211 
 
 c. Amendment of certiorari 213 
 
 d. Additional allowance 213 
 
 1 60. Habea s corpus 213 
 
 161. Proceedings supplementary to execution 215 
 
 a. Statute 215 
 
 6. At wliat stage of the proceedings costs are granted 215 
 
 c. How costs are collected of judgment debtor 216 
 
 d. Costs granted to judgment debtor 216 
 
 e. Costs granted to third parties 217 
 
 f. Costs in proceedings to collect taxes 217 
 
 162. Contempt proceedings 217 
 
 a. In general 217 
 
 6. In proceedings supplementary to execution 218
 
 CONTKJiTS. XV 
 
 163. Summary proceedings 218 
 
 a. Statute 218 
 
 6. Tender 219 
 
 c. Costs on appeal 219 
 
 164. General assignment for the benefit of creditors 219 
 
 o. Allowance for legal services 219 
 
 6. Costs in actions to set aside assignment 220 
 
 0. Costs on contested claims 221 
 
 d. Costs in actions brought by assignee 222 
 
 e. Costs in an action for an accountinof 223 
 
 /. Costs upon the final accounting 224 
 
 g. By whom costs of final accounting are paid 224 
 
 h. How costs against an assignee are collected 225 
 
 165. Assignee or trustee in bankruptcy 225 
 
 166. Writ of prohibition 226 
 
 167. How costs on state writs are collected 226 
 
 168. Removal of excise commissioners 226 
 
 169. Proceedings to mortgage trust property 227 
 
 170. Special proceedings before an officer 227 
 
 171. Proceedings to discharge from imprisonment on execution 227 
 
 171a. Proceedings to discover the death of a tenant tor life 227 
 
 CHAPTEK XVII. 
 
 ACTIONS BY OR AGAINST A PERSON IN A REPRESENTATIVE 
 
 CAPACITY. 
 
 172. Costs in actions by or against a receiver 229 
 
 a. In general 229 
 
 6. When the costs and expenses of an unsuccessful action are 
 
 allowed to a receiver 229 
 
 c. Additional allowance 229 
 
 d. V\ hen the costs are ordered paid out of the fund 230 
 
 e. When the costs are ordered paid by the receiver personally. . 230 
 /. How it is determined whether the receiver shall pay costs 
 
 personally, or in his representative capacity 232 
 
 g. How the payment of costs awarded against a receiver in his 
 
 representative capacity is enforced 232 
 
 173. Costs in actions by or against a trustee 233 
 
 a. In general 233 
 
 6. Allowances to trustee for attorney's services in litigation .... 235 
 
 C. Allowances upon an accoimting 235 
 
 ( 1 ) To whom 235 
 
 { 2 ) By whom paid 236 
 
 174. Costs in actions by or against executors 236 
 
 a. In general . . . . 236 
 
 b. Wliat is mismanagement 238
 
 XVI CONTENTS. 
 
 c. Procodure to charge executor personally with costs 239 
 
 d. When costs are allowed against an executor in his repre- 
 
 sentative capacity 240 
 
 e. Costs upon disputed claims 242 
 
 /. Costs in equity actions against executors 244 
 
 g. Actions brought against the testator, and continued against 
 
 the executor 244 
 
 h. What costs and disbursements are allowed against an ex- 
 ecutor 244 
 
 i. How and when a claim must be presented to an executor... 245 
 
 j. To whom the claim must be presented 247 
 
 1c. Effect of advertising for claims 247 
 
 I. When a claim is reasonably resisted 248 
 
 131. Effect of reduction of amount of claim on the question of 
 
 imreasonable resistance to the claim 249 
 
 n. Eefusal to refer 250 
 
 o. Unreasonably resisted 251 
 
 p. Failure to file consent tliat the claim may be heard on tlie ju- 
 dicial settlement 252 
 
 q. Costs upon a statutory reference 252 
 
 r. Costs upon a statutory reference, where the plaintilT recovers 
 
 less than $50 254 
 
 s. Costs upon appeals 255 
 
 CHAPTER XVIII, 
 
 COSTS IN SURROGATE'S COURT. 
 
 175. Authority to award costs? 256 
 
 176. By whom paid 250 
 
 177. How the discretion of the surrogate is reviewed 257 
 
 17S. Costs on probate of will 258 
 
 179. Costs on probate of lost will 259 
 
 180. Application to revoke the probate of a will 259 
 
 181. Granting and revoking letters of administration 259 
 
 182. Allowances upon an accounting 260 
 
 183. Allowances when the estate is less than $1,000 in amount 263 
 
 184. How costs awarded in the surrogate's court are collected 263 
 
 185. To whom costs are awarded 264 
 
 186. Costs upon the removal of an executor 266 
 
 187. Costs upon an appeal from the surrogate's court 267 
 
 188. Affirmance or reversal "with costs" or "without costs" 209 
 
 189. Amount of costs on appeal 270 
 
 190. Allowances to special guardians 271 
 
 191. Amount of costs allowed 272 
 
 192. What disbursements are allowed 273 
 
 193. Disputed claim heard by the surrogate 274 
 
 194. Proceedings to sell real estate to pay debts of the decedent 275 
 
 195. Allowances upon tax appraisals 276
 
 CONTENTS. XVll 
 
 CHAPTEK XIX. 
 
 OFFER OF JUDGMENT, TENDER AND PAYMENT. 
 
 196. Offer of judgment ; in general 279 
 
 197. How an offer of judgment should be served 279 
 
 198. How affected by the amendment of the complaint 280 
 
 199. When offer is definite 281 
 
 200. How many offers may be made 281 
 
 201. Offers in justice's court 281 
 
 202. Time of service of the offer of judgment 281 
 
 203. Service by mail 282 
 
 204. Power of the defendant to withdraw his oiiei 282 
 
 205. Amendment of offer of judgment 282 
 
 206. Computation of interest in the offer of judgment 282 
 
 207. Offer must allow entry of judgment for costs 283 
 
 208. When the plaintiff is entitled to the costs of the action 284 
 
 209. Offer of judgment by joint debtors 284 
 
 "210. Effect of offer upon counterclaims 285 
 
 211. When the defendant is entitled to costs 286 
 
 212. Judgment entered, where plaintiff obtains a recovery and defend- 
 
 ant is entitled to costs 286 
 
 213. Effect of the appellate court modifying the judgment, so that 
 
 defendant is entitled to costs 287 
 
 214. To what costs plaintiff' is entitled upon accepting au offer of 
 
 judgment 287 
 
 215. Additional allowance 287 
 
 216. Costs upon the acceptanee of an offer of judgment for less than 
 
 $50 288 
 
 217. Offer of judgment in actions upon bonds and mortgages 288 
 
 218. Tender after the commencement of a mortgage foreclosure 289 
 
 219. Offer of judgment in replevin 289 
 
 220. Offer of judgment in an action to foreclose a meclianic's lien 289 
 
 221. Tender before suit brought 290 
 
 a. When action is commenced 290 
 
 b. Tender to whom 290 
 
 c. In what tender must consist 291 
 
 d. Waiver by the creditor of a formal tender 291 
 
 e. Practice of the defendant to avail himself of the tender 291 
 
 /. Waiver of irregularities in pleading tender 292 
 
 g. Restrictions imposed upon the tender 293 
 
 222. Tender after suit brought 294 
 
 a. Statute 294 
 
 6. Waiver of irregularity 295 
 
 c. In mortgage foreclosure 295 
 
 223. Payment after the commencement of an action 296 
 
 224. Offer to liquidate damages conditionally 296 
 
 224a. Judgment by confession 297
 
 XVlil CONTENTS. 
 
 CHAPTEK XX. 
 
 COSTS ON APPEAL FROM A JUSTICE'S COURT. 
 
 225. Costs to perfect the appeal 298' 
 
 220. Where a new trial is not had in the appellate court 299' 
 
 a. Statute 299 
 
 6. Where there is no respondent 301 
 
 c. Where both parties appeal 301 
 
 227. Where a new trial is had in the appellate court 301 
 
 228. Offer to compromise before the return 302 
 
 229. W hat is a more favorable judgment 304 
 
 230. Costs on appeal from county court to the appellate division of 
 
 the supreme court 304 
 
 231. Costs on bastardy proceedings in the county court 305- 
 
 232. Special provisions relating to the municipal court of New York 
 
 city 305 
 
 c. ^Motions 305 
 
 h. Appeals 306 
 
 c. Opening defaults 306 
 
 d. Costs upon the reversal of the judirment 306 
 
 e. Costs upon the affirmance of the judgment 307 
 
 f. Costs when the judgment is modifled or a new trial is or- 
 
 dered 307' 
 
 CHAPTEE XXI. 
 
 SUBMISSION OF CONTROVERSY, ARBITRATION, INSOLVENT COR 
 
 PORATIONS. 
 
 233. Costs on submitted controversy 308 
 
 234. Costs on arbitration 309 
 
 235. Costs in relation to insolvent corporations 309 
 
 a. Allowances to trustees who resist proceedings to have corpo- 
 ration declared insolvent 309 
 
 h. Allowances to creditors 310 
 
 c. Allowances to unsuccessful claimant 310 
 
 d. Allowances to receivers 310f' 
 
 CHAPTER XXII. 
 
 SECURITY FOR COSTS. 
 
 236. In general ". . . 312- 
 
 237. In wliat courts 313 
 
 238. Order, how obtained; etToet of order; by what courts granted.. . . 314 
 
 239. Additional security 316 
 
 240. Form of bond 317
 
 CONTENTS. XIX 
 
 241. Deposit of money 318 
 
 242. Deposit by third person 318 
 
 243. Appeal taken by plaintiff without staying proceedings under the 
 
 judgment 319 
 
 244. Deposit upon obtaining order of arrest 319 
 
 245. Liability of attorney for plaintiff of whom defendant would de- 
 
 mand security 319 
 
 246. Riglit to security for costs lost by laches 321 
 
 247. What is a sufficient excuse for laches 322 
 
 248. What is not a sufficient excuse for laches 322 
 
 249. Rights of the defendant to security when he is in default 324 
 
 250. How nonrcsidence is proved 325 
 
 251. What is nonresidence 326 
 
 252. Special rule for the city court of New York 327 
 
 253. Cases where nonresident need not give security 327 
 
 254. Effect of removal of plaintiif from the state 327 
 
 255. Effect of assignment of cause of action to a resident of the state. . 329 
 
 256. Residence of a domestic corporation 329 
 
 257. Residence of a foreign corporation 329 
 
 258. Security required of an infant 330 
 
 259. Security required of executors 331 
 
 a. In general 331 
 
 b. Insolvent estate 333 
 
 c. Nonresident executors 333 
 
 d. Notice of application 334 
 
 €. Security on appeal 3.34 
 
 260. Security required of receivers 334 
 
 261. Security required of receivers in supplementary proceedings C35 
 
 262. When trustees in bankruptcy are required to give security for 
 
 costs 335 
 
 CHAPTER XXIIX 
 
 COSTS IN ACTIONS IN FORMA PAUPERIS. 
 
 263. Statute 337 
 
 264. Who may apply for leave to sue as a poor person 337 
 
 a. Nonresidents 337 
 
 6. Infants 337 
 
 c. Other persons 338 
 
 265. Who is a pauper 338 
 
 266. When the application should be made 339 
 
 267. What the petition must state 339 
 
 268. Right to be thus allowed to sue, lost by laches 341 
 
 269. Designation and duties of attorney assigned to conduct an action 
 
 for a poor person 342 
 
 270. Stay for nonpayment of costs that have accrued at the time of 
 
 granting the order 343
 
 XX CONTENTS. 
 
 271. EiTect of order allowing a party to sue as a poor person 343 
 
 272. Terms upon opening a default 344 
 
 273. Power of tlie court to impose the payment of costs as condition of 
 
 granting a favor 344 
 
 CHAPTEK XXIV. 
 
 ADDITIONAL ALLOWANCES. 
 
 274. Statute 346 
 
 275. In general 347 
 
 276. When the application for an additional allowance should be made. 348 
 
 277. Defense must be interposed 350 
 
 278. Allowance when the complaint is dismissed 351 
 
 279. — upon the discontinuance of an action 351 
 
 280. — upon offer of judgment 352 
 
 281. — upon overruling a demurrer 353 
 
 282. To whom application must be made 354 
 
 283. Power of referee to grant an additional allowance 355 
 
 284. Upon what papers the application should be made 355 
 
 285. Allowance when both parties succeed 356 
 
 286. — when the court of appeals renders judgment absolute upon a 
 
 stipulation 357 
 
 287. Number of allowances in an action 358 
 
 288. \^'hat determines the fact that an action is difScult and extraor- 
 
 dinary 358 
 
 a. In general 358 
 
 6. Difficult question of law 359 
 
 c. Difficult question of fact 359 
 
 d. Length of time of trial 359 
 
 e. More than one trial 360 
 
 f. Eminence of counsel 360 
 
 g. Other considerations 360 
 
 289. What determines the fact that the action is not difficult and 
 
 extraordinary 361 
 
 o. Simple question of law or fact 361 
 
 6. Length of time of trial 361 
 
 c. Difficult and extraordinary question decided against the pre- 
 
 vailing party 361 
 
 d. Other considerations 362 
 
 290. How the allow^ance can be reviewed 3G3 
 
 291. Discretion in making allowance reviewed by what courts 364 
 
 292. Necessity of general costs 364 
 
 293. By what statute governed 365 
 
 294. Power of the court over the allowance 365 
 
 295. Amount claimed in the pleadings 366 
 
 296. Motive of plaintiff in commencing the action 367
 
 CONTEKTS. XXI 
 
 297. Allowance in taxpayer's action 367 
 
 298. Actions to apportion a tax or assessment 368 
 
 299. Real actions 368 
 
 a. Basis of an allowance in an action on a lease 368 
 
 b. — in injunction actions 368 
 
 c. — in actions for specific performance 369 
 
 d. — in ejectment actions 370 
 
 e. — in actions to restrain nuisances 370 
 
 /. — in actions for trespass 370 
 
 g. — in actions against railroads 371 
 
 h. — in partition actions 372 
 
 i. — in mortgage foreclosures 373 
 
 ;'. — in actions to set aside transfers as fraudulent 373 
 
 300. Allowance in actions against corporations 374 
 
 301. - — in actions relating to a fund 374 
 
 302. — in actions relating to wills 375 
 
 303. — actions upon insurance policies 375 
 
 304. — in action in relation to annuities 375 
 
 305. — in actions relating to the capital stock of corporations 375 
 
 306. — in actions to recover damages for negligently causing death.. 376 
 
 307. — in partnership accountings 376 
 
 308. — in actions to restrain use of trademark 377 
 
 309. — when the defendant sets up a counterclaim 377 
 
 310. Effect of the defendant winning by pleading the statute of limita 
 
 tions 378 
 
 311. Actions in which there is no basis lor an additional allowance. . 378 
 
 a. In general 378 
 
 b. Quo warranto 379 
 
 c. Actions to restrain tlie use of a trademark 379 
 
 d. Real actions 380 
 
 e. Actions for injunctions 381 
 
 f. Actions in relation to wills 381 
 
 g. Actions for an accounting 382 
 
 h. Matrimonial actions 382 
 
 i. Actions in forma pauperis 383 
 
 y. Various cases 383 
 
 312. What is a proper allowance 383 
 
 a. In general 383 
 
 b. Allowances to guardians ad litem 383 
 
 c. — in taxpayer's actions 384 
 
 d. — in actions in relation to wills 384 
 
 e. — various cases 384 
 
 313. Allowances in special proceedings 385 
 
 314. Additional allowances as a matter of right 385 
 
 315. Additional allowances in attachment actions 387
 
 XXU CONTENTS. • 
 
 CHAPTER XXV. 
 
 SEVERAL CAUSES OF ACTION; DIFFERENT PLAINTIFFS OR DE. 
 PENDANTS ENTITLED TO DIFFERENT RELIEF. 
 
 .316. When several causes are united in one action 389 
 
 a. Statute 389 
 
 6. What recovery the defendant must have to entitle him to 
 
 costs 390 
 
 c. Action in conversion to recover several chattels 391 
 
 d. When the action is in equity 392 
 
 317. Where two actions are tried together 392 
 
 318. Where the plaintiff wins against some of the defendants and 
 
 loses as to others 393 
 
 a. In general 393 
 
 6. Where all the defendants have the same attorney 394 
 
 c. Where the defendants appear by different attorneys 395 
 
 d. Costs on appeal 398 
 
 319. When costs are allowed upon the successful plea of infancy 398 
 
 320. When costs are allowed against a codefendant 399 
 
 321. Rights and liability of codefendants when one suflers default and 
 
 the other contests the action 399 
 
 322. Costs where plaintiff recovers judgment against all the defend- 
 
 ants 400 
 
 CHAPTER XXVI. 
 
 VARIOUS PROVISIONS IN RELATION TO COSTS. 
 
 .323. Costs on consolidation of two or more actions 401 
 
 324. Costs on severance of an action 402 
 
 c. Statute 402 
 
 6. In general 402 
 
 0. Severance after answer 403 
 
 325. Costs upon granting an order of interpleader 403 
 
 326. Costs as affected by lack of jurisdiction 404 
 
 327. Costs as governed by stipulation 404 
 
 328. Commencement of an action without authority 405 
 
 329. When the judge informs the jury of the effect of their verdict 
 
 upon the question of costs 406 
 
 330. Costs after entry of judgment 406 
 
 331. Costs upon an accounting 407 
 
 332. When costs are made payable out of a fund 407 
 
 333. Costs payable to a guardian ad litem 408 
 
 a. Costs allowed a guardian ud litem 408 
 
 h. Amount 409 
 
 334. Costs allowed against a general guardian 409 
 
 335. Costs in various cases 409 
 
 335a. Volimtary appearance 410
 
 CONTENTS. XXlll 
 
 CHAPTER XXVII. 
 
 S.IABILITY OF SURETIES AND PERSONS BENEFICIALLY INTER- 
 ESTED. 
 
 ■336. Liability of sureties upon an appeal to the appellate division of 
 
 the supreme court 411 
 
 337. to tlie court of appeals 412 
 
 338. — upon a bond given for the arrest of a party 413 
 
 339. upon an appeal in an ejectment action 414 
 
 -340. in an attachment action 414 
 
 341. in a replevin action 415 
 
 .342. upon the granting of an injunction 415 
 
 343. Right of sureties to be reimbursed 417 
 
 ^44. Right of mimicipalities to enforce liability of sureties 418 
 
 345. Extent of liability of surety 413 
 
 346. — upon an appeal from a justice's court to a county court 418 
 
 347. — on undertakings given in a surrogate's court 419 
 
 348. Statutory liability of persons beneficially interested 419 
 
 349. How this liability is enforced 420 
 
 ■350. Liability of absolute assignee of a cause of action 421 
 
 •351. — of person to whom a cause of action is assigned as collateral 
 
 security 421 
 
 352. — of attorney who is to receive a contingent fee 422 
 
 353. — of assignor 422 
 
 -354. When a receiver in supplementary proceedings is liable for costs. . 423 
 
 4J55. Liability of a general assignee for the benefit of creditors 423 
 
 -356. When a person is benelicially interested 424 
 
 4J57. Liability for commencing an action in the name of a nonexistent 
 
 plaintiff 424 
 
 -358. When a person is not beneficially interested 424 
 
 359. Liability for defending an action in ejectment 425 
 
 360. Liability outside of statute 425 
 
 CHAPTER XXVIII. 
 
 STAY FOR NONPAYMENT OF COSTS. 
 
 361. In general 426 
 
 362. Procedure to obtain stay 4:^6 
 
 303. When the actions are brought in different courts 427 
 
 364. Stay when the cause of action is assigned 428 
 
 365. Party seeking stay must be interested iu collecting the unpaid 
 
 costs 428 
 
 366. Different actions arising from the same cause 429 
 
 367. Party suing in forma pauperis 430 
 
 368. When an infant will be stayed 430 
 
 369. When a party is entitled to a stay 430
 
 XXIV CONTENTS. 
 
 370. When the stay becomes operative 431 
 
 371. What proceedings are stayed 432. 
 
 372. How the stay may be waived 434 
 
 373. How the stay is terniinated 434 
 
 CHAPTER XXIX. 
 
 TAXATION OF COSTS. 
 
 374. In general 43ff 
 
 375. Notice of taxation 437 
 
 376. Retaxation 438 
 
 377. Power of the clerk upon the taxation of costs 43S 
 
 378. Duty of the clerk upon the taxation of costs 440 
 
 c. In general 440 
 
 6. Entering judgment upon a remittitur 440 
 
 0. Upon special proceedings 440 
 
 379. Procedure upon a review of taxation of costs 440 
 
 a. In general 440 
 
 6. Papers used upon appeal from the taxation of the clerk.... 440 
 
 c. How the discretion of the court or roferoe in awarding costs 
 
 is reviewed 441 
 
 d. Right to review the taxation of costs lost by laches 442 
 
 e. Right to review the taxation of costs waived by appeal 442 
 
 f. Procedure upon appeal from the order of the special term . . . 443 
 
 g. Appeal lies to what courts 443 
 
 380. How costs are taxed upon the decision of an appeal 444 
 
 CHAPTER XXX. 
 
 COSTS ON APPEALS. 
 
 381. Statute 440 
 
 382. In general 446* 
 
 383. Costs when appeal is taken from the judgment and order 447 
 
 384. Meaning of the word "argument" 448 
 
 385. Costs as affected by irregularities 448 
 
 386. Several appeals in the same case 449 
 
 387. Appeal to correct an error of computation 449 
 
 388. Right to appeal lost by accepting costs 450 
 
 389. Costs of a reargument 450 
 
 390. Costs in the court of appeals 451 
 
 o. Meaning of the words "with costs'' 451 
 
 b. How the order of the court is interpreted or corrected 452 
 
 c. Meaning of the words "with costs to abide the event" 454 
 
 d. Cleaning of the words "without costs" 454 
 
 e. When the costs are a matter of right 455
 
 CONTENTS. xxr 
 
 f. When the court of appeals has power to review the question 
 
 of costs 456 
 
 g. When the decision of one appeal makes the consideration of 
 
 another appeal useless 457 
 
 h. When the question was not presented to the court below. , . . 457 
 
 i. When there are several parties on the side entitled to costs. . 457 
 
 j. Amount of costs in the court of appeals 458 
 
 k. Punitive costs 459 
 
 I, Costs allowed upon withdrawing appeal 459 
 
 m. Terms imposed upon opening a default 460 
 
 n. Waiver of right to appeal from the interpretation of the 
 
 court below of the order of the court of appeals 460 
 
 0. Allowances to counsel in cases where the offense charged is 
 
 punishable with death 460 
 
 391. Cost in the appellate division 461 
 
 a. In general 461 
 
 h. Meaning of the words "with costs" 461 
 
 0. Costs of an order 462 
 
 d. Meaning of the words "with costs to abide the event" 463 
 
 c. Meaning of the words "with costs to the appellant to abide 
 
 the event" 464 
 
 /. Meaning of the words "without costs" 464 
 
 g. Exceptions ordered heard at the appellate division in the 
 
 first instance 464 
 
 h. Verdict directed, subject to the opinion of the appellate divi- 
 sion 465' 
 
 392. Costs when a judgment is reversed 465 
 
 393. Allowance of sepaiate bills of costs 465 
 
 394. When costs will be denied to the successful party 466 
 
 395. Costs upon appeals from orders 467 
 
 a. Statute 467 
 
 6. In general 467 
 
 396. Costs upon orders overruling or sustaining demurrers 468 
 
 397. Costs upon the dismissal of an appeal 469 
 
 398. Costs upon appeals from order of county court granting a new 
 
 trial 469 
 
 399. Costs upon appeals in bastardy proceedings 469 
 
 CHAPTEK XXXI. 
 
 ITEMS. 
 
 400. Disbursements; in general 471 
 
 401. Disbursements for abstracts of title 472 
 
 402. Disbursements for fees of clerk 473 
 
 403. Disbursements in obtaining witnesses 475 
 
 a. Expense of serving subpoena 475 
 
 6. Not necessary that witness be subpoenaed 476«
 
 XXVI CONTENTS. 
 
 0. Fees of parties 476 
 
 d. Fees of stocklioldcrs and onicers of a corporation and of 
 
 attorneys 478 
 
 e. Fees of witnesses not sworn 477 
 
 f. Traveling fees 478 
 
 ( 1 ) Where witness resides out of tlie state 478 
 
 (2) Where witness resides in the state 478 
 
 g. Fees when witness did not attend the trial 479 
 
 h. Terms for which fees of witnesses may be taxed 480 
 
 i. Days for which fees of witnesses may be taxed 480 
 
 j. When a witness is entitled to fees in two cases 481 
 
 k. Departure of witnesses before the trial 481 
 
 I. Expert witnesses 482 
 
 404. Jurors' fees 482 
 
 405. Proving genuineness of paper 482 
 
 406. Trial fee 483 
 
 a. In general 483 
 
 6. More than one trial 484 
 
 c. Only one trial fee taxable 485 
 
 d. Withdrawal of a juror 486 
 
 e. Inquest or default 486 
 
 f. Now trial had pursuant to .an order 487 
 
 407. When the trial occupies more than two days 488 
 
 408. Terjn fees 488 
 
 a. Statute 488 
 
 h. In the court of appeals 488 
 
 c. Case must bo in a condition to be disposed of 489 
 
 d. Term fees for terms before the amendment of the complnint. 489 
 
 e. EflFect of referring a case 489 
 
 f. Where the successful partj' did not notice the case 4flO 
 
 g. EfTect of consenting that case go over the term 490 
 
 h. Term fees paid for privilege of putting case over 490 
 
 i. Terms when case was on the wrong calendar 491 
 
 /. Stipulation as to term fees 491 
 
 Ic. On appeal from justices' courts to county courts 491 
 
 h T imit fixed by law 492 
 
 m. For what terms taxable upon a discontinuance 492 
 
 409. Tntorrogntories 492 
 
 410. Exnminntion of a party before trial 494 
 
 411. Printing papers on appeals 494 
 
 412. Advertising sales of property 496 
 
 413. Fees of referees 496 
 
 a. Stntute 496 
 
 6. Stipulation that fees may be larger than the statutory rate. . 496 
 
 c. Proof of the number of days occupied upon the reference. . . . 497 
 
 d. Two actions tried before the same referee 499 
 
 e. How the referee's fees can be collected 499 
 
 /. Extension of time to report 501
 
 CONTENTS. XXVll 
 
 g. WTien the court has no power to refer the action 502 
 
 h. Misconduct of referee 502 
 
 i. Reference ordered upon a motion 502 
 
 j. lleference not completed 502 
 
 h. Referee to sell upon a mortgage foreclosure 502 
 
 I. Referee to sell in a partition action 504 
 
 414. Fees of stenographer 504 
 
 a. In general 504 
 
 5. Incurred upon a reference 505 
 
 c. Obtained to prepare case on appeal 506 
 
 d. Minutes of former trial for use upon the trial 507 
 
 e. Minutes obtained in the trial of another action 507 
 
 /. Minutes used on motion for a new trial in the county court. . 507 
 
 g. Minutes ordered by the court for its own use 507 
 
 h. Power of surrogate's court to order minutes 508 
 
 i. Allowance for stenographer's minutes in the municipal court 
 
 of New York 608 
 
 CHAPTER XXXII. 
 
 now COSTS ARE COLLECTED. 
 
 415. In general 509 
 
 416. Motion costs 510 
 
 417. By mandamus 510 
 
 418. By execution against the person 511 
 
 411). By proceediugs to punish for contempt 512
 
 TABLE OF OASES CITED. XXIX 
 
 TAELE OF CASES CITED. 
 
 A. 
 
 Aaron, Re. 5 Dem. 3(52, 25 N. Y. Week. Dii». 324. 7 N. Y. S. R. 735, 
 
 258, 260, 264 
 V.Foster, 11 N. Y. Civ. Proc. Rep. 325, 3 N. Y. S. R. 270.... 110 
 
 Aaron's Estate, 5 Dem. 362, 25 N. Y. Week. Dig. 324. 7 N. Y. S. R. 735 272 
 
 Abbe V. Abbe, 22 App. Div. 483, 43 N. Y. Supp. 25 183 
 
 Abbey v. Wheeler, 57 App. Div. 417, 68 N. Y. Supp. 252 353 
 
 V. Wheeler, 170 N. Y. 122, 62 N. E. 1074 447 
 
 Abbott V. Johnsto^vn, G. & K. Horse R. Co. 24 Hun, 135 402 
 
 V. Smith, 8 How. Pr. 403 325 
 
 Abell V. Bradner, 15 N. Y. Civ. Proc. Rep. 241, 17 N. Y. S. R. 859, 3 
 
 N. Y. Supp. 20 324 
 
 V. Holden, 30 N. Y. S. R. 5, 15 N. Y. Supp. 64 382 
 
 Abendroth v. Durant, 9 N. Y. Civ. Proc. Rep. 446, Affirmed 48 Hun, 
 
 16, 1 N. Y. Supp. 538 464 
 
 Ackerman v. Ackerman, 14 Abb. Pr. 220 27. 40, 47 
 
 v. De Lude, 36 Hun, 44 3r!0, 392 
 
 V. De Lude, 20 N. Y. Week. Dig. 544 Ill 
 
 V. Emott, 4 Barb. 626 238 
 
 V. O'Gorman, 2 Silv. Sup. Ct. 109, 17 K Y. Civ. Proc. Rep. 2:.'-,. 
 
 25 N. Y". S. R. 170, 6 N. Y. Supp. 825 119 
 
 Ackley v. Ackley, 50 N. Y. S. R. 554, 21 N. Y. Supp. 877 237 
 
 V. Tarbox, 19 Abb. Pr. 1 19 3 
 
 Ackroyd v. Newton, 24 Misc. 424, 53 X. Y. Supp. 68J 83, 84 
 
 Adams, Re, 51 App. Div. 619, 64 X. Y. Supp. 591 263 
 
 V. Arkenburgh, 106 X. Y. 615, 27 N. Y. Week. Dig. 132, 11 N. Y. 
 
 S. R. 121, 13 N. E. 594 366, 376 
 
 V. Ft. Plain Bank, 36 X. Y. 255 34 
 
 V. Fox, 40 Barb. 442 11 
 
 V. Hopkins, 5 Johns. 252 53 
 
 v. Kearney, 2 E. D. Smith, 42 305 
 
 v, Moore, 22 Misc. 451, 50 X. Y. Supp. 7 IS 84 
 
 V. Niagara Cycle Fittings Co. 10 X. Y. Anno. ('as. 401, 74 N. Y. 
 
 Supp. 485 20
 
 XXX TABLE OF CASES CITED. 
 
 Adams v. Olin, 78 Hun, 309, 60 N. Y. S. R. 695, 29 N. Y. Supp. 131 ... , 252 
 
 V. Perkins, 25 How. Pr. 36S 459 
 
 V. Stern, 29 Hun, 280 378 
 
 V. Stillnian, 4 Misc. 259, 53 N. Y. S. R. 180, 23 N. Y. Supp. 810 20 
 
 V. Sullivan, 42 Hun, 278 382 
 
 V. Ward, 60 How. Pr. 288 100, 101, 103 105 
 
 Adolph V. De Ceu, 45 Hun, 130 304 
 
 Adsit V. Hall, 3 How. Pr. N. S. 373 38 
 
 Agar V. Tibbets, 56 Hun, 272, 18 N. Y. Civ. Proc. Rep. 338, 30 N. Y. 
 
 S. R. 591 81 
 
 Ager V. Ager, 1 Month. L. Bull. 2 431 
 
 Agricultural Ins. Co. v. Bean, 45 How. Pr. 444 476, 477, 478, 479, 481 
 
 Aikman v. Harsell, 31 Hun, 034, 5 N. Y. Civ. Proc. Rep. 93 Ill 
 
 Ainslie v. New York, 1 Barb. 163 115 
 
 Albany v. Andrews, 29 App. Div. 20, 52 N. Y. Supp. 1129 417 
 
 Albert Palmer Co. v. Van Orden, 17 Jones & S. 89, 4 N. Y. Civ. Proc. 
 
 Rep. 44, 64 How. Pr. 79 15, 25, 40 
 
 Alburtis v. McGready, 2 E. D. Smith, 39 304 
 
 Aldrich v. Reynolds, 1 Barb. Ch. 013 414 
 
 Alexander v. Hard, 42 How. Pr. 131 110, 126 
 
 v. Meyers, 8 Daly, 112 337, 341 
 
 Alexander Lumber Co. v. Abrahams, 20 Misc. 674, 40 N. Y. Supp. 538 66 
 
 Alger V. Conger, 17 Hun, 45, 8 N. Y. Week. Dig. 181 233 
 
 Allaire v. Lee, 4 Duer, 609, 1 Abb. N. C. 125. 351 
 
 Allard v. Mouchon, 1 Johns. Cas. 280 9& 
 
 Allen, Re, 29 Hun, 7 236 
 
 v. Albany R. Co. 22 App. Div. 222, 47 N. Y. Supp. 1017 362 
 
 V. Allen, 11 N. Y. S. R. 470 152 
 
 V. Allen, 59 How. Pr. 27, 8 Abb. N. C. 175 182 
 
 v. Brown, 5 Lans. 511 416 
 
 v. Mahon, 1 Abb. N. C. 468 480, 481 
 
 V. Stevens, 161 N. Y. 123, 55 N. E. 5GS 155, 156 
 
 v. Williamson, 21 Abb. N. C. 391 504 
 
 Allis V. Wheeler, 56 N. Y. 50 394, 399' 
 
 Altman v. Tillson, 10 N. Y. S. R. 235 Ill 
 
 Alward v. Alward, 15 N. Y. Civ. Proc. Rep. 151, 17 N. Y. S. R. 864, 
 
 2 N. Y. Supp. 42 138 
 
 Ambler v. Ambler, 8 Abb. Pr. 340 326 
 
 American L. Ins. Co. v. Van Eps, 14 Abb. Pr. N. S. 253, Reversed 56 
 
 N. Y. 601 233, 234 
 
 Amsdell v. Martin, 20 N. Y. vVeek. Dig. 370 47 
 
 Amsterdam Water Comrs., Re, 104 N. Y. Week. Dig. 393, 5 N. Y. S. R. 
 
 744, 10 N. E. 545 450, 451 456 
 
 Re, 36 Hun, 534 68
 
 TABLE OF CASES CITED. XXXI 
 
 Anderson v. Ed. Braekeler & Co. 25 Misc. 343, 28 N. Y. Civ. Proc. Eep. 
 
 306, 55 N. Y. Supp. 721 11, 505 
 
 V. Johnson, 1 Sandf. 736, 1 N. Y. Code Rep. 94 75 
 
 V. Rome, W. & O. R. Co. 54 N. Y. 334 94 
 
 Andrews v. Cross, 17 Abb. N. C. 92 440, 487 
 
 V. Glenville, Woolen Co. 50 N. Y. 287 416 
 
 V. Miles, 15 N. Y. Week. Dig. 290 406 
 
 V. Moller, 20 N. Y. Week. Dig. 377 134, 398 
 
 V. Schnitzler, 10 Jones & S. 173, 2 N. Y. Civ. Proc. Rep. 18 490 
 
 Angler V. Hager, 45 App. Div. 32, GO N. Y. Supp. 811 82 
 
 V. Hager, 51 App. Div. 171, G4 N. Y. Supp. G92 8G, 87, 352 
 
 Anonymous, 4 Abb. N. C. 11 432 
 
 10 Abb. N. C. 80 377 
 
 11 Abb. Pr. 108 217 
 
 15 Abb. Pr. N. S. 307 ISO 
 
 3 Sandf. 756 103 
 
 4 Sandf. G93 43? 
 
 1 Duer, 651 490 
 
 3 Hill, 457 479 
 
 12 Johns. 340 446 
 
 V. Anonymous, 10 How. Pr, 353 441 
 
 Anthony Street, Re, 20 Wend. 618, 32 Am. Dec. 608 77 
 
 Aplington, Re, 26 Abb. N. C. 69, 33 N. Y. S. R. 657, 11 N. Y. Supp. 5G3 224 
 
 Appleton V. Warner, 51 Barb. 270 182 
 
 Archer v. Cole, 22 How. Pr. 411 289, 292 
 
 Arent v. Eisenmann, No report 485 
 
 Arkenburgh v. Arkenburgh, 27 Misc. 760, 59 N. Y. Supp. 612 32 
 
 v. Little, 64 N. Y. Supp. 742 32 
 
 Armstrong v. Cummings, 22 Hun, 570 101, 100 
 
 v. Union College, 55 App. Div. 302, S N. Y. Anno. Cas. 332, 66 
 
 N. Y. Supp. 942 239 
 
 Arnhout, Re, 1 Paige, 497 ♦ 208 
 
 Arnold v. Clark, 9 Daly, 259 430, 431 
 
 Arnoux v. Steinbrenner, 1 Paige, 82 81 
 
 Arnow v. Ferguson, 50 N. Y. S. R. 509, 21 N. Y. Supp. 195 397, 398 
 
 Arteage v. Lee, 5 Month. L. Bull. 65 58 
 
 Arthur v. Dal ton, 14 App. Div. 108, 43 N. Y. Supp. 583 230, 375 
 
 V. Dalton, 14 App. Div. 115, 43 N. Y. Supp. 581 230, 375 
 
 V. Sehriever, 28 Jones & S. 59, 16 N. Y. Supp. 610, 42 N. Y. S. R. 
 
 12 349, 365 
 
 Astor v. Palache, 49 How. Pr. 231 288 
 
 Astrand v. Brooklyn Heights R. Co. 24 Misc. 92, 53 N. Y. Supp. 294. . 16 
 Atherton v. Atherton, 82 Hun, 179, 64 N. Y. S. R. 798, 31 N. Y. Supp. 
 
 977 173, 382
 
 XXXll TABLE OF CASES CITED. 
 
 Atkin V. Pitcher, 3 1 Hun, 352 5 
 
 Atkinson v. Truesdell, 28 N. Y. S. R. 585, 7 N. Y. Supp. 801. . .92, US, 443 
 
 Atlantic Dock Co. v. Libby, 45 N. Y. 499 369 
 
 Atlantic Sav. Bank v. Hiler, 3 Hun, 209 31 
 
 Attleboro Nat. Bank v. Wendell, 64 Him, 208, 22 N. Y. Civ. Proc. Rep. 
 
 225, 46 N. Y. S. R. 140, 19 N. Y. Supp. 45 320 
 
 Atty. Gen. v. Continental L. Ins. Co. 27 Hun, 195, 63 How. Pr. 129, 
 
 Appeal Dismissed 90 N. Y. 45 8, 310 
 
 V. Continental L. Ins. Co. 38 Hun, 521 434 
 
 V. Continental L. Ins. Co. 88 Him, 571 310 
 
 V. Continental L. Ins. Co. 93 N. Y. 45 500 
 
 V. North American L. Ins. Co. 17 N. Y. Week. Dig. 508 37 
 
 V. North American L. Ins. Co. 91 N. Y. 57, 43 Am. Rep. 648 . . 310 
 
 Atwood, Re, 3 App. Div. 578, 73 N. Y. S. R. 809, 38 N. Y. Supp. 338 . . 222 
 
 Auburn Bd. of Edu. v. Quick, 99 N. Y. 138, 1 N. E. 533 418 
 
 Audenreid v. Wilson, 2 N. Y. Week. Dig. 108 393 
 
 Austin V. Ahearne, 61 N. Y. 6 151 
 
 V. Hartwig, 17 Jones & S. 256 367 
 
 V. Munroe, 47 N. Y. 360 31 
 
 V. Rawdon, 42 N. Y. 155 29, 48 
 
 V. Whitmer, 32 Misc. 388, 66 N. Y. Supp. 721 431 
 
 Averill v. Patterson, 10 N. Y. 500, 10 How. Pr. 85 79 
 
 Avery v. Avery, 5 Misc. 75, 23 N. Y. Civ. Proc. Rep. 204, 24 N. Y. Supp. 
 
 737 23 
 
 Ayers v. Western R. Corp. 49 N. Y. 660 169, 456 
 
 B. 
 
 Babbage v. Webster, 72 Hun, 456, 25 N. Y. Supp. 300 253 
 
 Babcock, Re, 86 App. Div. 563 277 
 
 v. Smith, 47 N. Y. S. R. 118, 19 N. Y. Supp. 817 511 
 
 Badger, Re, 7 Month. L. Bull. 71 260 
 
 v.Appleton, 14 Daly, 192, 12 N. Y. Civ. Proc. Rep. 93, 6 N. Y. S. 
 
 R. 288 319 
 
 Baere v. Armstrong, 26 Him, 19, 62 How. Pr. 515 414 
 
 IBailey, Re, 31 Hun, 608, 5 N. Y. Civ. Proc. Rep. 253 1.5, 20 
 
 Re, 47 Hun, 477 265 
 
 v.Daigler, 50 Hun, 538, 20 N. Y. S. R. 549, 3 N. Y. Supp. 718. . 110 
 
 v. Johnson, 1 Daly, 61 396 
 
 v. Murphy, 136 N. Y. 50, 32 N. E. 627, 49 N. Y. S. 11. 82 24, 41 
 
 V. Park, 5 Hun, 41 93 
 
 v. Schmidt, 19 N. Y. S. R. 50, 5 N. Y. Supp. 405 249 
 
 V. Stone, 41 How. Pr. 346 124, 439
 
 TABLE OF CASES CITED. XXXlll 
 
 Bailie v. Bailie, 30 App. Div. 461, 52 N. Y. Supp. 228 176 
 
 Baine v. Rochester, 85 N. Y. 523, 12 N. Y. Week. Dig. 419 171, 172 
 
 Baker v. Bartlett, 9 Wend. 494, 40 Am. Dec. 387 5 
 
 V. Brown, 150 N. Y. 567, 44 N. E. 1120 49 
 
 V. Codding, 3 Misc. 512, 52 N. Y. S. R. 416, 23 N. Y. Supp. 5. . 348 
 
 V. McMuUen, 28 Misc. 128, 58 N. Y. Supp. 1086 486 
 
 Balcom v. Terwilliger, 42 Hun, 170 5 
 
 Baldwin, Re, 30 Misc. 169, 63 N. Y. Supp. 727 271 
 
 V, Baldwin, 23 N. Y. Civ. Proc. Rep. 287 504 
 
 V. Reardoii, 16 Jones & S. 166 362, 367 
 
 Baldwin's Bank v. Butler, 38 N. Y. S. R. 983, 14 N. Y. Supp. 831 93 
 
 Ball V. Gardner, 21 Wend. 270 412 
 
 V. Miller, 17 How. Pr. 300 276 
 
 Ballon V. Parsons, 55 N. Y. 673 501 
 
 Bamberger v. Oshin-sky, 21 Misc. 716, 48 N. Y. Supp. 139 17 
 
 Banard v. Hall, 143 N. Y. 339, 38 N. E. 301 451 
 
 Bancroft v. Home Benefit Asso. 26 Jones & S. 492, 35 N. Y. S. R. 459, 
 
 12 N. Y. Supp. 718 363 
 
 Bank of Fort Jefferson v. Darling, 91 Hun, 236, 72 N. Y. S. R. 54, 36 
 
 N. Y. Supp. 153 248 
 
 Indianapolis v. Middletown Nat. Bank, 1 N. Y. S. R. 772 231 
 
 Micliigan v. Jessup, 19 Wend. 10 329 
 
 Mobile V. Phoenix Ins. Co. 8 N. Y. Civ. Proc. Rep. 212 358, 485 
 
 Niagara, Re, 6 Paige, 213 229 
 
 Niagara v. Austin, 6 Wend. 548 478 
 
 Plattsburgh v. Piatt, 1 Paige, 464 231 
 
 Syracuse v. Wisconsin, M. & F. Ins. Co. Bank, 36 N. Y. S. R. 
 
 584, 12 N. Y. Supp. 952 449 
 
 United States v. Strong, 9 Wend. 451 402 
 
 Utica v. Wolf, 18 How. Pr. 102 398 
 
 Bannerman v. Quackenbush, 2 N. Y. City Ct. Rep. 172, 2 How. Pr. N. 
 
 S. 82, 7 N. Y. Civ. Proc. Rep. 428 464 
 
 V. Quackenbush, 13 Daly, 460, 17 Abb. N. C. 103, 9 N. Y. Civ. 
 Proc. Rep. 108, Affirming 2 How. Pr. N. S. 82, 2 N. Y. City 
 
 Ct. Rep. 172, 7 N. Y. Civ. Proc. Rep. 428 284 
 
 Banta v. INIarcellus, 2 Barb. 373 84 
 
 V. Naughton, 7 N. Y. S. R. 384 422 
 
 Baptist Soc. V. Loomis, 49 Hun, 414, 22 N. Y. S. R. 485, 3 N. Y. Supp. 
 
 572 424 
 
 Barber v. Crossett, 6 How. Pr. 45, Code Rep. N. S. 401 161, 170 
 
 V. Lane, 60 App. Div. 87, 69 N. Y. Supp. 739 502 
 
 V.Rutherford, 12 Misc. 33, 66 N. Y. S. R. 690, 33 N. Y. Supp. 
 
 89 412
 
 XXXIV TABLE OF CASES CTTED. 
 
 IJarclay v. Culver, 66 How. Pr. 342, 4 N. Y. Civ. Proc. Rep. 30.^ STf 
 
 Barker v. Barton, 67 Barb. 458 141 
 
 V. Laney, 7 App. Div. 352, 40 N. Y. Supp. 60 136, 392 
 
 V. Oswegatchie, 62 Hun, 208, 41 N. Y. S. Pv. 831, 16 N. Y. Supp. 
 
 734 367 
 
 V.White, 3 Keyes, 617, 5 Abb. N. S. 124, 1 Abb. App. Dec. 95, 
 
 41 How. Pr. 504 131, 244 
 
 F.White, 3 Keyes, 495, 5 Abb. Pr. N. S. 127, 1 Abb. App. Dec. 
 
 98 133, 134 
 
 Barkley, Re, 42 App. Div. 597, 59 N. Y. Supp. 742 25. 
 
 V. New York C. & H. R. R. Co. 35 App. Div. 167, 54 N. Y. Supp. 
 
 970 28 
 
 Barhnv v. Barlow, 35 Hun, 50 390 
 
 Barnard v. Hall, 143 N. Y. 339, 38 N. E. 301 196 
 
 V. Heydrick, 49 Barb. 62, 32 How. Pr. 97, 2 Abb. Pr. N. S. 47 . . . 280- 
 
 Barnes, Re, 4 Misc. 136, 53 N. Y. S. R. 119, 23 N. Y. Supp. 600 221 
 
 V. Denslow, 30 N, Y. S. R. 315, 9 N. Y. Supp. 53, Affirmed, 130 
 
 N. Y. 687, 30 N. E. 67 378 
 
 V.Meyer, 25 N. Y. Civ. Proc. Rep. 372, 75 N. Y^ S. R. 649, 41 
 
 N. Y. Supp. 210 373. 
 
 V. Newconib, 89 N. Y. 108 309 
 
 v. Seligman, 55 Hun, 339, 29 N. Y. S. R. 68, 8 N. Y. Supp. 834 . . 101 
 
 V. Seligman, 51 N. Y. S. R. 376, 22 N. Y. Supp. 45 315. 
 
 Baniett, Re, 11 Hun, 4G8, 53 How. Pr. 247 214 
 
 Barney v. Keith, 6 Wend. 555 119 
 
 Barr, Re, 6 Misc. 526, 56 JST. Y. S. R. 742, 27 N. Y. Supp. 416 221, 222 
 
 Barrett v. Sayer, 34 N. Y. S. R. 325, 12 N. Y. Supp. 170 169- 
 
 Barry v. Winkle, 36 Misc. 171, 73 N. Y. Supp. 188 485- 
 
 Bartle v. Oilman, 18 N. Y. 260, 17 How. Pr. 1 160, 163 
 
 Bartlett v. Bartlett, Clark Ch. 460 182 
 
 Bartlett's Estate, 18 N. Y. Week. Dig. 65 264 
 
 Barton V. Speis. 73 N. Y. 133 427, 428 
 
 Bartow v. Cleveland, 16 How. Pr. 364, 7 Abb. Pr. 339 140, 143 
 
 Basso v. Basso, 19 Abb. N. C. 173 103 
 
 Bates v. Dickerson, 35 N. Y. S. R. 928, 12 N. Y. Supp. 773 428 
 
 V. Fish Bros. Wagon Co. 50 App. Div. 38, 63 N. Y. Supp. 649. . 378 
 
 V. Loomis, 5 Wend. 78 60 
 
 V. Norris, 23 Jones & S. 269, 13 N. Y. Civ. Proc. Rep. 395, 28 N. 
 
 Y. Week. Dig. 186, 13 N. Y. S, R. 302 128, 129, 296. 
 
 v. Salt Springs Nat. Bank, 43 App. Div. 321, 60 N. Y. Supp. 313 64 
 
 Bathgate v. Haskin, 63 N. Y. 261 283, 285, 288 
 
 Baur V. Betz, 7 N. Y. Civ. Proc. Rep. 233, 1 How. Pr. N. S. 344 53 
 
 Baxter v. Lancaster, 58 App. Div. 380, 68 N. Y. Supp. 1092 413-
 
 TABLE OF CASF:S CITED. XXXV 
 
 Beadleston v. Alley, 26 N. Y. S. K. S9, 7 N. Y. Supp. 747 81 
 
 V. Beadleston, 103 N. Y. 403, 8 X. E. 735 174, 175 
 
 Reals V. Benjamin, 20 How. Pr. 101 349, 364 
 
 Bear v. American Rapid Teleg. Co. 36 Hun, 400 354 
 
 Beardsley Scythe Co. v. Foster, 36 X. Y. 561, 34 How. Pr. !)7 444 
 
 Beattie v. Qua, 15 Barb. 132 440 
 
 Bechtle v. Manliattan R. Co. 31 Abb. X. C. 483, 02 X. Y. S. R. 120, 
 
 30 X. Y. Supp. 410 338 
 
 Beck V. Kerr, 87 App. Div. 1, S3 X. Y. Supp. 1057 170 
 
 Becker v. Boon, 61 X. Y. 317 291, 292, 293 
 
 V. Metropolitan Elev. R. Co. 30 X. Y. Supp. 400 450, 489 
 
 Beckham v. Hague, 44 App. Div. 146, 60 X. Y. Supp. 767 334 
 
 Beckwith, Re, 3 H\in, 443 209 
 
 Bedell v. Barnes, 29 Hun, 589, 17 X. Y. Week. Dig. 312 225 
 
 V. Hoffman, 2 Paige, 199 403 
 
 V. Powell, 13 Barb. 183 79 
 
 Beebe v. Parker, 16 X. Y. Civ. Proc. Rep. 320, 22 Abb. X. C. 445, 24 
 
 X. Y. S. R. 120, 4 X. Y. Supp. 97 327 
 
 Beecher v. Duel, 14 X. Y. Week. Dig. 109 245, 246 
 
 Beemer v. McCoy, 2 City Ct. Rep. 296 429 
 
 Beers v. Squire, 1 N. Y. Code Rep. 84 361 
 
 Bell V. Supreme Council A. L. of H. 42 App. Div. 168, 29 X. Y. Civ. 
 
 Proc. Rep. 332, 58 X. Y. Supp. 1049 295 
 
 Belden v. Slade, 26 Hun, 635 146 
 
 Belding v. Conklin, 2 X. Y. Code Rep. 112, 4 How. Pr. 196 123, 440, 471 
 
 Bell V. Judson, 2 How. Pr. 42 59. 60 
 
 Beller v. Antisdel, 84 Hun, 252, 65 X. Y. S. R. 719, 32 X. Y. Supp. 575 153 
 
 Belmont v. Ponvert, 6 Jones & S. 425, Reversed in 63 X. Y. 547 3, 135 
 
 Belt v. American Cent. Ins. Co. 33 App. Div. 239, 53 X. Y. Supp. 363, 
 
 6 N. Y. Anno. Cas. 144 454, 464 
 
 Bemus v. Thrall, 35 Misc. 137, 70 X. Y. Supp. 463 145 
 
 Bender, Re, 86 Hun, 570, 67 X. Y. S. R. 682, 33 X\ Y. Supp. 907 274 
 
 Bendernagle \. Cocks, 19 Wend. 151 420 
 
 Bendit v. Annesley, 42 Barb. 192, 27 How. Pr. 184 128, 296 
 
 Benedict v. Caffe, 3 Duer, 669, 12 X. Y. Legal Obs. 262 244 
 
 v. Oilman, 4 Paige, 58 146 
 
 V. Johnson, 2 Lans. 97 93 
 
 V. Sliter, 82 Hun, 190, 64 X. Y. S. R. 1, 31 X. Y'. Supp. 413 251 
 
 Benjamin v. Ver N^ooy, 36 App. Div. 581, 29 X. Y. Civ. Proc. Rep. 120, 
 
 55 X. Y. Supp. 796 241, 452 
 
 V. Ver Xooy, 168 X. Y. 578, 61 X. E. 971 241, 255 
 
 Benner v. Benner, 35 X. Y. S. R. 602, 12 X. Y. Supp. 472 102 
 
 Bennett, Ex parte, 3 Deuio, 175 168, 169
 
 XXXVl TABLE OF CASES CITED. 
 
 Beimett v. American Surety Co. 73 App. Div. 468, 77 N. Y. Supp. 207 . . 413 
 
 V. Cook, 2 Hun, 526, 5 Tliomp. & C. 134 146 
 
 V. Goble, 43 Hun, 354 334 
 
 V. I'ittman, 48 Him, 612, 21 Abb. N. C. 238, 28 N. Y. Week. Dig. 
 
 437, 15 N. Y. S. R. 976, 1 N. Y. Supp. 27 48 
 
 V. Van Syckel, 18 N. Y. 481 450 
 
 Benson, Ex parte, 6 Cow. 592 70 
 
 Bentley v. Bentley, 3 Month. L. Bull. 76 173. 383 
 
 Benton v. Sheldon, 1 N. Y. Code Rep. 134 475 
 
 Bergen v. Carmen, 79 N. Y. 146 457 
 
 Berger v. Mandel, 25 Misc. 766, 54 N. Y. Supp. 987 512 
 
 Berls V. Metropolitan Elev. E. Co. 37 N. Y. S. R. 608, 15 N. Y. Supp. 
 
 155 501 
 
 Bernhard, Re, 14 N. Y. Civ. Froc. Rep. 195, 16 N. Y. S. R. 240, 1 N. Y. 
 
 Supp. 225 214 
 
 V. Rice, 61 Hun, 184, 21 N. Y. Civ. Proc. Rep. 331, 40 N. Y. S. 
 
 R. 570, 15 N. Y. Supp. 936 70 
 
 Bernheimer v. Hartmayer, 34 Misc. 346, 69 N. Y. Supp. 816 106 
 
 Bernstein v. Levy, 34 Misc. 772, 68 N. Y. Supp. 833 295 
 
 Bertschy v. Bertschy, 14 N. Y. Week. Dig. Ill 175, 180 
 
 Bettis V. Goodwill, 32 How. Pr. 137 289 
 
 Betts V. Betts, 4 Abb. X. C. 317, 443 311 
 
 Bevier, Re, 17 Misc. 486, 41 N. Y. Supp. 268 262 
 
 Bevins v. Albro, 86 Hun, 590, 67 N. Y. S. R. 783, 33 N. Y. Supp. 1079 . . 20 
 
 Beyer v. Clark, 29 Abb. N. C. 338, 22 N". Y. Supp. 540 340 
 
 Bick V. Reese, 52 Hun, 125, 17 N. Y. Civ. Proc. Rep. 110, 23 N. Y. 
 
 S. R. 404, 5 N. Y. Supp. 121 440, 472 
 
 Bickford v. Searles, 9 App. Div. 158, 41 N. Y. Supp. 148 136 
 
 Bidwell V. Sullivan, 4 N. Y. Anno. Cas. 161, 26 N. Y. Civ. Proc. Rep. 
 
 392, 45 N. Y. Supp. 530 144 
 
 Biershenk v. Stokes, 46 N. Y. S. R. 179, 18 N. Y. Supp. 854 101 
 
 Bigler v. Pinkney, 24 Hun, 224 456 
 
 Billings V. Billings, 73 App. Div. 69, 76 N. Y. Supp. 628 174 
 
 Bindrim v. Ullrich, 64 App. Div. 444, 72 N. Y. Supp. 230 272 
 
 Binney v. Le Gal, 19 Barb. 592, 1 Abb. Pr. 283 285 
 
 Birdsall v. Keyes, 66 Him, 233, 49 N. Y. S. R. 299, 21 N. Y. Supp. 87. . 303 
 
 Birdseye v. Goddard, 17 N. Y. W^eek. Dig. 228, 499 501 
 
 Bishop V. Bishop, 30 Abb. N. C. 296, 24 N. Y. Supp. 888 500 
 
 v. Bishop, 7 Robt. 194 431 
 
 V. Hendrick, 82 Hun, 333, 64 N. Y. S. R. 100, 31 N. Y. Supp. 502 
 
 Affirmed 146 N. Y. 398, 42 N. E. 542 406 
 
 Bissell V. Dayton, 2 How. Pr. 80 437 
 
 V. Kellogg, 60 Barb. 617 136
 
 TABLE OF CASES CITED. XXXV] 1 
 
 Bittiner v. Goldman, 19 Misc. 146, 43 N. Y. Supp. 389, Second Ap- 
 peal, 20 Misc. 330, 45 N. Y. Supp. 953 27 
 
 Black V. Brooklyn Heights R. Co. 32 App. Div. 468, 53 N. Y. Supp. 
 
 312 303, 380 
 
 V. Maitland, 1 App. Div. 6, 71 N. Y. S. R. 669, 36 N. Y. Supp. 
 
 739 298 
 
 V. O'Brien, 23 Hun, 82 131, 148, 153 
 
 Blair, Re, 28 Misc. 611, 59 N. Y. Supp. 1090 265, 269 
 
 Blake v. Michigan S. & N. I. R. Co. 17 How. Pr. 228 401 
 
 Blanchard v. Nessle, 6 Hill, 250 315 
 
 Blanck v. Spies, 31 Misc. 19, 62 N. Y. Supp. 1030 498, 505 
 
 Blank v. Westcott, 7 Abb. Pr. N. S. 225 126 
 
 Blashfield v. Blashtield, 41 Hun, 249 390, 391 
 
 Blazy V. McLean, 146 N. Y. 390, 40 N. E. 733 459 
 
 Bleakley, Re, 5 Paige, 311 50 
 
 Bley V. Hamburg, 84 App. Div. 23, 82 N. Y. Supp. 35 208 
 
 Blinks V. Blinks, 5 Misc. 193, 25 N. Y. Supp. 768 180 
 
 Bliss V. Otis, 1 Denio, 656 423, 424 
 
 V. Wallis, 3 How. Pr. N. S. 325 143 
 
 Bloch V. Linsley, 40 Misc. 184, 81 N. Y. Supp. 661 487 
 
 Block V. Garfield, 30 Misc. 821, 61 N. Y. Supp. 918 291 
 
 Bloodgood V. Bloodgood, 59 How. Pr. 42 182 
 
 Bloomingdale v. Steubing, 14 Misc. 549, 36 N. Y. Supp. 1074 109 
 
 Blossom V. Adams, 7 N. Y. Legal Obs. 314, 2 N. Y. Code Rep. 59.... 327 
 Blumenthal v. Einstein, 81 Hun, 415, 63 N. Y. S. R. 264, 30 N. Y. Supp. 
 
 1126, Affirmed in 146 N. Y. 399, 42 N. E. 542 235 
 
 V. New York Elev. R. Co. 42 N. Y. S. R. 683, 17 N. Y. Supp. 481 380 
 
 Boelger v. Swivel, 1 How. Pr. N. S. 372 216 
 
 Bogardus v. Richtmeyer, 3 Abb. Pr. 179 297 
 
 Bogart, Re, 46 App. Div. 240, 61 N. Y. Supp. 671 266 
 
 Bolger V. Metropolitan Elev. R. Co. 29 Jones & S. 459, 48 N. Y. S. R. 
 
 399, 20 N. Y. Supp. 430 380 
 
 Bollar V. Schoenwirt, 30 Misc. 224, 63 N. Y. Supp. 311 23, 36 
 
 Bolles, Re, 78 App. Div. 180, 79 N. Y. Supp. 530 44 
 
 V. Duff, 17 Abb. Pr. 448 335 
 
 Bolton V. Corse, 15 Jones & S. 493 429 
 
 V. Gardner, 3 Paige, 273 342 
 
 V. Schriever, 135 N. Y. 65, 18 L. R. A. 242, 29 Abb. N. C. 300, 
 
 47 N. Y. S. R. 870, 31 N. E. 1001 358 
 
 V. Taylor, 18 Abb. Pr. 385, 3 Robt. 647 327 
 
 Bonadoa v. Third Ave. R. Co. 62 N. Y. S. R. 120, 30 N. Y. Supp. 410. . 338 
 
 Bonynge v. Field, 81 N. Y. 159 54 
 
 V. Waterbury, 12 Hun, 534 53, 54, 99
 
 XXXVlll TABLE OF CASES CITED. 
 
 Boomer v. Brown, 4 Daly, 22!) 307 
 
 Boon V. McGuckon, 67 Hun, 251, 23 N. Y. Civ. Proc. Rep. 115, 50 N. Y. 
 
 S. R. 901, 22 N. Y. Supp. 424 218 
 
 V. Utica, 5 Misc. 391, 26 N. Y. Supp. 932 409 
 
 Booth V. Baptist Cliurch of Christ, 126 X. Y. 215, 28 N. E. 238, 37 
 
 N. Y. S. R. 79 155 
 
 V. Smith, 5 Wend. 107 479, 481 
 
 Bord V. New York C. & H. R. R. Co. 1 How. Pr. X. S. 1, 14 Abb. N. C. 
 
 496, 6 N. Y. Civ. Proc. Rep. 222 376 
 
 Borkstrom, Re, 63 App. Div. 7, 71 N. Y. Supp. 451 
 
 Borland v. Alleond, 8 Daly, 126 144 
 
 Bom V. Schrenkeisen, 20 Jones & S. 219, Affirmed 110 N. Y. 55, 16 
 
 N. Y. S. R. 412, 17 N. E. 339 406 
 
 Boston Silk & Woolen Mills v. Eull, 6 Abb. Pr. N. S. 319, 37 How. 
 
 Pr. 299, 1 Sweeny, 359 126 
 
 Bostwick V. Brown, 15 Hun, 308 237, 238 
 
 V. Tioga R. Co. 17 How. Pr. 456 388 
 
 Boucher v. Pia, 8 Bosw. 691, 14 Abb. Pr. 1 313, 322 
 
 Boughton V. Seamans, 9 Hun, 392 308 
 
 Bourdon v. Martin, 84 Hun, 179, 65 X. Y. S. R. 716, 32 N. Y. Supp. 441 423 
 
 V. Martin, 74 Hun, 246, 56 N. Y^ S. R. 314, 26 N. Y. Supp. 378, 
 
 Affirmed, 142 N. Y. 069, 37 N. E. 571 231, 232, 420 
 
 Bouton V. Welch, 59 App. Div. 288, 69 X. Y. Supp. 407 444 
 
 Bowe V. Brown 4, X. Y. S. R. 456, 26 X. Y. Week. Dig. 47 502 
 
 V.Campbell, 2 N. Y. Civ. Proc. Rep. 232, 63 How. Pr. 167 54 
 
 Bowen v. First X^at. Bank, 34 How. Pr. 409 429 
 
 V. Smidt, 49 N. Y. S. R. 647, 20 X. Y. Supp. 735 49 
 
 V. Sweeney, 66 Hun. 42, 49 X. Y. S. R. 603, 20 X. Y. Supp. 733, 
 
 64, 69, 489 
 Bowery Sav. Bank v. Mahler, 13 Jones & S. 619, 1 Month. L. Bull. 30. . 403 
 
 Bowlby, Re, 34 Misc. 311, 69 X. Y. Supp. 783 224, 438 
 
 Bowles v. Van Home, 11 Abb. Pr. S4, 19 How. Pr. 346 71 
 
 Bowling Green Sav. Bank v. Todd, 52 X. Y. 489 11, 18, 47, 50 
 
 Bowne v. Anthony, 13 How. Pr. 301 59, 61 
 
 Boyd v. Wilkin, 23 How. Pr. 137 251 
 
 Boylan v. Mathews, 3 X. Y. Civ. Proc. Rep. 38 323 
 
 Boyle v. Bates, 8 How. Pr. 495 320 
 
 V. Boyle, 23 X. Y. Week. Dig. 346 21 
 
 V. Lawton, 3 How. Pr. X. S. 444 115 
 
 Boynton v. Laddy, 32 X. Y. S. R. 578, 10 X. Y. Supp. 622 265 
 
 V. Laddy, 50 Hun. 339, 20 X. Y. S. R. 148, 3 X. Y. Supp. 93 31 
 
 Brace v. Beatty, 5 Abb. Pr. 221 383 
 
 Brackett v. Griswold, 46 Hun, 442, 12 X. Y. S. R. 402 317
 
 TABLE OF CASES CITED. XXXIX 
 
 Braden v. Kakliaiser, 3 Sandf . 760 268 
 
 Briidhurst v. New York, 20 Jones & S. 51 409 
 
 Bradley v. Aldrich, 40 N. Y. 509, 100 Am. Dec. 528 137 
 
 V. Baxter, 8 How. Pr. 18 161 
 
 V. Burwell, 3 Denio, 261 247 
 
 V. Fay, 8 How. Pr. 18 161 
 
 V. V'an Buren, 22 N. Y. Week. Dig. 568 424 
 
 V.Walker, 2S Jones & S. 324, 22 N. Y. Civ. Proc. Rep. 1, 44 
 
 N. Y. S. R. 23, 17 N. Y. Siipp. 383 380 
 
 Bradley's Estate, 17 N. Y. S. R. 836, 1 Connoly, 106, 2 N. Y. Siipp. 751 238 
 
 Bradley Salt Co. v. Meinhold, 23 Misc. 468, 52 N. Y. Supp. 679 299 
 
 Bradner v. Howard, 75 N. Y. 417, Affirming 14 Hun, 420, 7 N. Y. Week. 
 
 Dig. 57 124 
 
 Brady v. Cassidy, 37 N. Y. S. R. 501, 13 N. Y. Supp. 824 64 
 
 V. Donelly, 1 N. Y. 120 243 
 
 V. Durbrow, 2 E. D. Smith, 78 125. 288, 365 
 
 V. McCosker, 1 N. Y. 214 425 
 
 V.Martin, 19 N. Y. Civ. Proc. Rep. 134, 33 N. Y. S. R. 425, 11 
 
 N. Y. Supp. 424 75 
 
 V.Smith, 1 N. Y. City Ct. Rep. 175 126 
 
 Brainard v. Jones, 18 N. Y. 35 412 
 
 Brainerd v. De Graef. 29 Misc. 560, 61 N. Y. Sui>p. 953 253 
 
 Branagan v. Palmer, 5 N. Y. Week. Dig. 521 104 
 
 Branth v. Branth, 20 N. Y. Civ. Proc. Rep. 33. 36 N. Y. S. R. 628, 13 
 
 N. Y. Supp. 3'iO 178 
 
 v. Branth, 19 X. Y. Civ. Proc. Rep. 28, 32 N. Y. S. R. 979, 10 N. 
 
 Y. Supp. 638 44, 45 
 
 Brasier, Re, 13 Daly, 245, 2 How. Pr. N. S. 154 462 
 
 Brassington v. Rohrs, 3 Misc. 258, 23 N. Y. Civ. Proc. Rep. 146, 52 
 
 N. Y. S. R. 171, 22 N. Y. Supp. 761 105 
 
 V. Rohrs, 3 Misc. 262, 52 N. Y. S. R. 252, 22 N. Y. Supp. 1053. . 449 
 Brauer v. Oceanic Steam Nav. Co. 66 App. Div. 605, 73 X. Y. Supp. 291 94 
 Brazee v. Hornby, 27 Misc. 129. 29 N. Y. Civ. Proc. Rep. 296, 58 N. Y. 
 
 Supp. 387 303 
 
 Brennan v. Brennan, 19 X. Y. Week. Dig. 342 175 
 
 Brennen v. Xorth, 7 App. Div. 79, 39 X. Y. Supp. 975 308 
 
 Brett v. Brett, 33 Hun, 547 218 
 
 V. Hood, 1 Cai. 343, Coleman i C. Cas. 259 58 
 
 Brevoort v. Warner, 8 How. Pr. 321 61 
 
 Brewer v. Brewer, 1 1 Hun, 147 373 
 
 V. Penninan, 72 N. Y. 603 373 
 
 Brewi v. Pfeiffer, 10 N. Y. Week. Dig. 203 16, 30
 
 Xl TABLE OF CASES CITED. 
 
 Brewster v. Hornellsville, 35 App. Div. 626, 88 N. Y. S. E. 915, 54 N. 
 
 Y. Supp. 915 172 
 
 V. Wooster, 9 Misc. 690, 24 N. Y. Civ. Proc. Rep. 83, 62 N. Y. 
 
 S. R. 123, 30 N. Y. Supp. 546 317 
 
 Brick V. Fowler, 61 How. Pr. 153 497 
 
 Bridenbecker v. Mason, 16 How. Pr. 203 284, 285- 
 
 Bridgport F. & M. Ins. Co. v. Wilson, 7 Bosw. 699, 12 Abb. Pr. 209, 
 
 20 How. Pr. 511 397 
 
 Briggs V. Allen, 4 Hill, 538 39* 
 
 V, Hilton, 99 N. Y. 517, 52 Am. Rep. 63, 3 N. E. 51 442 
 
 Bright V. Milwaukee & St. P. R. Co. 1 Abb. N. C. 14 86, 352 
 
 Brinckerhoff v. Farias, 52 App. Div. 256, 65 N. Y. Supp. 358 271, 382 
 
 V. Lansing, 4 Johns. Cli. 65, 8 Am. Dec. 538 146 
 
 Brinker v, Loomis, 43 Hun, 247, 26 N. Y. Week. Dig. 35, 5 N. Y. S. R. 
 
 439 24& 
 
 Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 400 174, 182 
 
 Brisbane v. Brisbane, 67 How. Pr. 184, 5 N. Y. Civ. Proc. Rep. 352, 
 
 Affirmed, 34 Hun, 339 179' 
 
 Britten v. Frink, 3 How. Pr. 102 56 
 
 Broadway v, Scott, 31 Hun, 378 115, 119 
 
 Broadway Sav. Inst. v. Pelham, 148 N. Y. 737, 42 N. E. 722 460 
 
 Brock V. Barnes, 40 Barb. 521 95 
 
 Brockes v. Hathoru, 17 Hun, 87 37? 
 
 V. Kilmer, 8 N. Y. Week. Dig. 156 373 
 
 Brockway v. Jewett, 16 Barb. 590 169, 268, 396 
 
 V. Wells, 1 Paige, 617 146 
 
 Brenner Brick Co. v. M. M. Canada Co. 18 Misc. 681, 42 N. y. Supp. 14 296 
 Brooklyn, Re, 10 Misc. 650, 24 N. Y. Civ. Proc. Rep. 182, 65 N. Y. S. 
 
 R. 201, 32 N. Y. Supp. 182 Id^J 
 
 Re, 148 N. Y. 107, 42 N. E. 413 2, 197, 385 
 
 Brooklyn Bank v. Willoughby, 1 Sandf. 669 3 
 
 Brooklyn Bd. of Edu., Re, 19 N. Y. Civ. Proc. Rep. 420, 34 N. Y. S. R. 
 
 493, 11 N. Y. Supp. 780 210 
 
 Brooklyn Union Elev. R. Co. Re, 176 N. Y. 213, 68 N. E. 249 19» 
 
 V, Case, 82 App. Div. 567, 81 N. Y. Supp. 527 197 
 
 Brooklyn ex rel. Stadlmair v, Willard, 16 N. Y. Week. Dig. 315 413 
 
 Brooks V. Mortimer, 10 App. Div. 518, 42 N. Y. Supp. 299 28a 
 
 Brotherson v. Consaulus, 5 N. Y. S. R. 105 443 
 
 Brower v. Fisher, 4 Johns. Ch. 441 208 
 
 Brown, Re, 65 How. Pr. 461 18 
 
 V. Bradshaw, 1 Duer, 199 93 
 
 V. Britton, 41 App. Div. 57, 58 N. Y. Snpp. 353 133 
 
 V. Brockett, 55 How. Pr. 32 611
 
 TABLE OF CASES CITED. xli 
 
 Brovm v. BrowTi, 6 N. Y. lOG, How. Pr. 320 281 
 
 V. Farmers' Loan & T. Co. 24 Abb. N. C. 160, IS N. Y. Civ. Proc. 
 
 Rep. 131, 9 N. Y. Supp. 337 357, 452 
 
 V. Ferguson, 2 Denio, 196 290, 291 
 
 V. Ferguson, 2 How. Pr. 12S 437 
 
 V. Foster, 1 App. Div. 578, 73 N. Y. S. R. 94, 37 N. Y. Supp. 502 95 
 
 V. Gallaudet, 19 Alb. L. J. 97 502 
 
 V. Griswold, 23 Hun, 018 432 
 
 V. Kalm, 17 Hun, 599 434 
 
 V. King, 63 Hun, 158, 45 X. Y. S. R. 24, 17 N. Y. Supp. 678 248 
 
 V. Leigh, 52 N. Y. 78 458 
 
 V. Leigh, 50 N. Y. 427, 13 Abb. Pr. K S. 305 444 
 
 V. Majors, 7 Wond. 495 112 
 
 V. Mappleeson, 2 N. Y. City Ct. Rep. 404 
 
 V. May, 17 Abb. N. C. 208, 23 N. Y. Week. Dig. 480 66 
 
 V. New York, 9 Hun, 587 12, 47 
 
 V. Richardson, 7 Robt. 57 400 
 
 V. Safeguard Ins. Co. 7 Abb. Pr. 3^5 86, 352, 388 
 
 V. Sears, 23 Misc. 559, 27 N. Y. Civ. Proc. Rep. 412, 52 N. Y. 
 
 Supp. 792 497, 499, 505, 506- 
 
 V. Story, 1 Paige, 588 343 
 
 V. Windmuller, 4 Jones & S. 75, 14 Abb. Pr. N. S. 359. .440, 497, 498 
 
 Browne v. Bro'irae, 9 N. Y. Civ. Proc. Rep. 180 175, 180 
 
 V. Murdock, 12 Abb. N. C. 360 408 
 
 Bro\vning v. New York, L. E. & W. R. Co. 64 Hun, 513, 22 N. Y. Civ. 
 
 Proc. Rep. 193, 46 N. Y. S. R. 505, 19 N. Y. Supp. 453 391 
 
 V. Vanderhoven, 55 How. Pr. 97 419 
 
 Broyer v. Ritter, 34 N. Y. S. R. 688, 13 N. Y. Supp. 574 403 
 
 Bruen v. Manhattan R. Co. 20 N. Y. Civ. Proc. Rep. 127, 39 N. Y. 
 
 S. R. 86, 14 N. Y. Supp. 788 112, 114 
 
 Brush V. Kelsey, 47 App. Div. 270, 62 N. Y. Supp. 214 498, 500 
 
 Bruyn v. New York, W. S. & B. R. Co. 17 N. Y. Week. Dig. 471 199 
 
 Bryne v. Brooklyn City & N. R. Co. 6 Misc. 6, 58 N. Y. S. R. 121, 26 
 
 N. Y. Supp. 65 486 
 
 Bryon v. Durrie, 6 Abb. N. C. 135 352, 359 
 
 Buchanan v. Morrell, 6 Duer, 658, 13 How. Pr. 296 387 
 
 Buck V. Webb, 58 Hun, 185, 33 N. Y. S. R. 824, 11 N. Y. Supp. 617, 
 
 93, 95 
 
 Buckhout V. Hunt, 16 How. Pr. 407 248 
 
 Bucki V. Bucki, 70 Hun, 598, 54 N. Y. S. R. 287, 24 N. Y. Supp. 374. . . 175 
 
 Buckingham v. Minor, 18 How. Pr. 287 73, 96 
 
 Buckland v. Gallup, 105 N. Y. 453, 11 N. E. 843 231
 
 xlii TABLE OF CASES CITED. 
 
 Buckley v. Buckley, 45 N. Y. S. R. 827, 18 N. Y. Supp. 607 14 
 
 V. Gutta Percha & Rubber Mfg. Co. 3 N. Y. Civ. Proc. Rep. 428, 
 
 17 N. Y. Week. Dig. 141 322 
 
 Budd V. Allen, 09 Hun, 535, 53 N. Y. S. R. 290, 24 N. Y. Supp. 5. . . . 169 
 
 V. Jackson, 26 How. Pr. 398 283 
 
 V. Monroe, 18 Hun, 316 399 
 
 Budlong, Re, 33 Hun, 235 508 
 
 Re, 100 N. Y. 203, 3 N. E. 334 267, 271 
 
 Bueb V. Geraty, 31 Misc. 22, 62 N. Y. Supp. 1125 464 
 
 Buell V. Gay, 13 How. Pr. 31 102, 398, 400 
 
 Buffalo & A. R. Co. v. Johnson, 42 N. Y. 215 87 
 
 Buffalo Grade Crossing Comrs. Re, 19 Misc. 230, 43 N. Y. Supp. 1073. . 202 
 
 Bulkeley v. Keteltas, 2 Sandf. 735 91 
 
 Bulkley v. Back, 22 Jones & S. 300 43, 287 
 
 Bull V. Ketchum, 2 Denio, 188 390 
 
 Bull's Estate, 1 Connoly, 395, 22 N. Y. S. R. 880, 6 N. Y. Supp. 565. . 275 
 BuUard v. Pearsall, 40 How. Pr. 383, Affirmed Court of Appeals, 46 
 
 How. Pr. 530 447 
 
 Bullock V. Bogardus, 1 Denio, 276 247 
 
 Burank v. Babcock, 3 N. Y. S. R. 458 147 
 
 Burbank Re, 65 How. Pr. 129 220 
 
 Burch V. Newbury, 4 How. Pr. 145 450 
 
 Burdctt V. Lowe, 85 N. M. 241 413 
 
 V. Lowe, 22 Hun, 588 452 
 
 Burdick v. Hale, 13 Abb. N. C. GO, 4 N. Y. Civ. Proc. Rep. 311 125, 127 
 
 Burhans v. Blanchard, 1 Denio, 626 161, 237 
 
 V. Tibbits, 7 How. Pr. 74 110, 116, 119 
 
 Burke v. Burke, 27 Misc. 684, 58 X. Y. Supp. 676 509 
 
 V. Candee, 63 Barb. 552 370 
 
 V. Philipps, 20 Misc. 413, 26 N. Y. Civ. Proc. Rep. 374, 45 N. Y. 
 
 Supp. 1024 296 
 
 Burkhart v. Babcock, 2 How. Pr. N. S. 512 147 
 
 Burkle v. Luce, 1 N. Y. 239, 3 How. Pr. 236 163, 459 
 
 Burnell v. Coles, 26 Misc. 378, 56 N. Y. Supp. 208 462 
 
 Burnett v. Harkness, 4 How. Pr. 158, 2 N. Y. Code Rep. 100 87 
 
 V. Kelly, 10 How. Pr. 400 115 
 
 V. Westfall, 15 How. Pr. 430 281, 284, 286, 367, 476 
 
 Burns v. Delaware, L. & W. R. Co. 135 N. Y. 268. 48 N. Y. S. R. 106, 
 
 31 N. E. 1080 390, 493 
 
 Burpee v. Townsend, 29 Misc. 031, 61 X. Y. Supp. 467 22 
 
 Burroughs v. Reiger, 12 How. Pr. 170 59 
 
 Burrows v. Butler, 22 N. Y. Week. Dig. 489 243 
 
 V. Butler, 38 Hun, 121 442
 
 TABLE OF CASES CITED. xliii 
 
 Burton v. Rockwell. 63 Hun, 163, 44 N. Y. S. R. 487. 17 N. Y. Supp. 
 
 665 290 
 
 V. Tremper, 27 X. Y. Week. Dig. 246, 10 N. Y. S. R. 629 370 
 
 Bush V. Lathrop, 22 X. Y. 535 428 
 
 V. O'Brien, 52 App. Div. 452, 65, N. Y. Supp. 131 354 
 
 Bushnell v. Chautauqua County Xat. Bank, 74 N. Y. 290 308 
 
 Bushwick Sav. Bank v. Traum, 26 App. Div. 532. 50 X. Y. Supp. 542 
 
 144, 145 
 
 Butcher v. Henning, 00 Hun, 565, 35 X. Y. Supp. 1006 55 
 
 Butler, Re, 101 X. Y. 307, 4 X. E. 518 77, 82 
 
 V. Boston & A. R. Co. 24 Hun, 99, 10 X. Y. Week. Dig. 11 234 
 
 V. Morris, 1 Bosw. 329 80 
 
 V. Rochester, 4 Hun, ,321, 6 Thonip. & C. 572 171 
 
 V. Wood, 10 How. Pr. 313 324, 325 
 
 Byne, Re, 1 Edw. Ch. 41 339 
 
 Byrne v, Brooklyn City & X. R. Co. 6 Misc. 6, 58 X. Y. S. R. 121, 26 
 
 N. Y. Supp. 65 89, 90 
 
 V. Groot, 5 Month. L. Bull. 56 499, 505 
 
 Byrnes v. Baer, 13 X. Y. Week. Dig. 128 451 
 
 V. Labagh, 10 X. Y. S. R. 728, 12 X. Y. Civ. Proc. Rep. 417, 495. 154 
 
 Byron, Re, 61 Hun, 278, 40 X. Y. S. R. 845, 16 X. Y. Supp. 760. . .274, 508 
 
 V. Durrie, 6 Abh. X. C. 136 87, 359 
 
 C. 
 
 €accavao v. Rome, W. & O. R. Co. 27 Jones & S. 129, 13 X. Y. Supp. 
 
 884 331. 333 
 
 Cahill V. Cahill, 9 X. Y. Civ. Proc. Rep. 241 17 
 
 V. Manhattan R. Co. 38 App. Div. 314, 57 X. Y. Supp. 10 342, 343 
 
 V. Xew York, 50 App. Div. 270, 7 X. Y. Anno. Cas. 320, 63 X. Y. 
 
 Supp. 1006 68 
 
 •Caldwell v. Cassidy, 8 Cow. 271 294 
 
 V. Leiber, 7 Paige, 483 136 
 
 V. Manning, 15 Abb. Pr. 271, 24 How. Pr. 38 315 
 
 €allahan v. Gilniaii, 23 Joms & S. 511, 18 X. Y. S. R. 397, 28 X. Y. 
 
 Week. Dig. 406, 2 X. Y. Supp. 702 455 
 
 €amp v. Stewart, 2 E. D. Smith, 88 305 
 
 <;ampbell, Re, 48 Hun, 417, 14 X. Y. Civ. Proc. Rep. 400, 28 X. Y. 
 
 Week. Dig. 400, 16 X. Y. S. R. 483, 1 X. Y. Supp. 231 275 
 
 V. Cothran, 56 X. Y. 279 53 
 
 V. Erving, 43 How. Pr. 258 145 
 
 V. Purdy, 5 Redf. 434 265 
 
 Canary v. Russell, 10 Misc. 597, 24 X. Y. Civ. Proc. Rep. 109, 63 X. Y. 
 
 S. R. 740, 31 X. Y. Supp. 291 36, 47
 
 xliv TABLE OF CASES CITED. 
 
 Canavello v. Michael & Co. 31 Misc. 170, 63 N. Y. Supp. 067 431" 
 
 Candee v. Jones, 13 N. Y. Civ. Proc. Rep. 160 486. 
 
 V. Ogilvie, 5 Duer, 658 489' 
 
 Canton Surgical & Dental Co. v. Webb, 42 N. Y. S. E. 187, 16 N. Y. 
 
 Supp. 932 307 
 
 Carleton v. Darcy, 75 N. Y. 375 77, 82 
 
 V. Goldman, 5 N. Y. Civ. Proc. Eep. 153 43 
 
 Carll V. Oakley, 97 N. Y. 633 450 
 
 Carman v. Pultz, 21 K Y. 547 291 
 
 Camahan v. Pond, 15 Abb. Pr. 194 222, 422 
 
 Carney v. Bernheimer, 1 N. Y. Civ. Proc. Eep. 233 333 
 
 V. Eeilly, 18 Misc. 11, 75 N. Y. S. E. 440, 40 N. Y. Supp. 1123, 
 
 158, 159, 364 
 
 Carpenter v. DoAvning, 6 Hill, 234 324 
 
 V. Shook, 43 N. Y. S. R. 226, 17 N. Y. Supp. 257 366- 
 
 V. Willet, 3 Eobt. 700, 28 How. Pr. 376 161, 163, 489 
 
 Carrick, Ee, 13 Daly, 181 220, 224 
 
 Carrigan v. Washburn, 14 N. Y, Civ. Proc. Eep. 350, 17 N. Y. S. R. 850, 
 
 2 N. Y. Supp. 616 611 
 
 V. Washburn, 18 N. Y. Civ, Proc. Rep. 79, 28 N. Y. S. R. 156, 
 
 9 N. Y. Supp. 541 512 
 
 Carter, Re, 3 Paige, 146 210 
 
 T. Barnum, 24 Misc. 220, 53 N. Y. Supp. 539 252 
 
 V. Beckwith, 104 N. Y. 236, 25 N. Y. Week. Dig. 373, 5 N. Y. 
 
 S. R. 617, 10 N. E. 350 246, 250, 253 
 
 V. Beckwith, 128 N. Y. 312, 40 K Y. S. R. 343 209 
 
 Caryl v. Stafford, 69 Hun, 318, 53 N. Y. S. R. 426, 23 N. Y. Supp. 534. . 503 
 
 Case V. Belknap, 5 Cow. 422 80 
 
 v.Mannis, 19 N. Y. Civ. Proc. Rep. 296, 33 N. Y. S. R. 44, 11 
 
 N. Y. Supp. 243 142 
 
 V. Price, 9 Abb. Pr. Ill, 17 How. Pr. 348 472, 47& 
 
 Casey, Re, 2 Silv. Sup. Ct. 585, 25 N. Y. S. R. 88, 6 N. Y. Supp, 608. . . 332 
 
 Cashman v. Martin, 50 How. Pr. 337 291 
 
 Cass V. Higenbotam, 100 N. Y. 248, 3 N. E. 189 292, 294 
 
 Cassidy v. McFarland, 2 Misc. 189, 23 N. Y. Civ. Proc. Rep. 65, 50 N. Y. 
 
 S. R. 199, 21 N. Y. Supp. 585 462 
 
 V. McFarland, 139 N. Y. 201, 54 N. Y. S. R. 605, 34 N. E. 893, 
 
 270, 495 
 
 Castellanos v. Beauville, 2 Saudf. 670 268, 397 
 
 V. Jones, 4 Sandf. 679 318 
 
 Castle, Re, 2 N. Y. S. R. 36? 230, 232 
 
 Castle's Estate, 15 N. Y. Civ. Proc. Rep. 276, 17 N. Y. S. R. 810, 2 N. Y. 
 
 Supp. 638 25a
 
 TABLE OF CASES CITED. xlv 
 
 Castleman v. Simpson, 16 N. Y. Week. Dig. 455 148 
 
 €astro v. White, 52 Hun, 473, 17 N. Y. Civ. Pioc. Rep. 46, 23 N. Y. 
 
 S. R. 535, 5 N. Y. Supp. 718 105, 106 
 
 €asucci V. Allegany & K. R. Co. 65 Him, 452, 21) Abb. N. C. 52. 48 N. Y. 
 
 S. R. 52, 20 N. Y. Supp. 343 39 
 
 "Catlin V. Adirondack Co. 22 Hun, 493 42 
 
 V. Adirondack Co. 20 Hun, 19 511 
 
 V. Billings, 4 Abb. Pr. 248, 13 How. Pr. 511 399 
 
 C E. Sherin Special Agency v. Seaman, 49 App. Div. 33, 63 N. Y. 
 
 Supp. 407 329 
 
 €had\vick v. Brotlier, 4 How. Pr. 283, 3 N. Y. Code Rep. 21, 59 160 
 
 ■Chaffee v. Baptist INIissionary Convention, 10 Paige, 85, 40 Am. Dec. 
 
 225 272 
 
 Chalker v. Chalker, 5 Redf. 480 263 
 
 Chamberlain v. Dempsey, 36 N. Y. 144 142 
 
 Ohamplin v. Pierce, 3 Wend. 445 315 
 
 Chandler v. Bicknell, 5 Cow. 30 89 
 
 V. Duane, 10 Wend. 563, 23 Am. Dec. 578 113 
 
 Channard v. Fuller, 4 Month. L. Bull. 20 2 
 
 Channing v. Moore, 13 N. Y. Civ. Proc. Rep. 349, 13 N. Y. S. R. 715, 
 
 11 N. Y. S. R. 670 43, 419 
 
 Chapin v. Churchill, 12 How. Pr. 367 300 
 
 V. Cole, 38 How. Pr. 481 122 
 
 V. Foster, 101 N. Y. 1, 3 N. E. 786 457 
 
 Charman v. Hibbler, 31 App. Div. 477, 52 N. Y. Supp. 212 418 
 
 v. Tatum, 54 App. Div. 61, 66 N. Y. Supp. 275 148 
 
 Chase v. Chase, G'j How. Pr. 306, 20 Hun, 527 176, 181 
 
 V. Dunham, 1 Paige, 572 82 
 
 V. James. 16 Hun, 14 497 
 
 V. Syracuse, 34 Misc. 144. 69 N. Y. Supp. 469 367 
 
 Cheever v. Pittsburgh, S. & L. E. R. Co. 74 Hun, 539, 57 N. Y. S. R. 
 
 188, 26 N. Y. Supp. 829 477 
 
 Chesebro v. Hicks, 66 How. Pr. 194 245, 247, 248 
 
 Chester v. Broderick, 131 N. Y. 549, 30 X. E. 507 412 
 
 V. Jumel, 2 Silv. Sup. Ct. 179, 24 N. Y. S. R. 230, 5 N. Y. Supp. 
 
 823 377 
 
 Chevers v. Damon, 37 N. Y. S. R. 904, 13 N. Y. Supp. 452 143, 472 
 
 Childs V. Algie, 4 Month. L. Bull. 17 100 
 
 V. Lyons, 3 Robt. 704 416 
 
 v. West Troy, 1 1 N. Y. Week. Dig. 193 171 
 
 Chipman v. Montgomery, 63 N. Y. 221 132, 457 
 
 Chittenden v. Gates, 25 App. Div. 623, 49 N. Y. Supp. 1133 152 
 
 Christ V. Chetwood, 8 Misc. 81, 58 N. Y. S. R. 815, 28 N. Y. Supp. 
 
 1148 95, 98
 
 Xlvi TABLE OF CASES CITED. 
 
 Christian v. Gouge, 58 How. Pr. 445, 10 Abb. N. C. 82 33T 
 
 Christoplier & Tenth St. E. Co. v. Twenty-third St. R. Co. 48 N. Y. S. 
 
 R. 805, 20 X. Y. Supp. 556 38a 
 
 Church V. Kidd, 3 Hun, 254, 5 Tliomp. & C. 454 131 
 
 V. Miller, 40 How. Pr. 525 302 
 
 Churchill v. Wagner, 23 Misc. 595, 52 N. Y. Supp. 252 394 
 
 Churchman v. Merritt, 50 Hun, 270, 19 N. Y. S. R. 171, 2 N. Y. Supp. 
 843, Reversing 15 N. Y. Civ. Proc. Rep. 245, 2 N. Y. Supp. 
 
 843 314, 315, 32T 
 
 Citizens' Sav. Bank v. Bauer, 49 Hun, 238, 14 N. Y. Civ. Proc. Rep. 340, 
 28 N. Y. Week. Dig. 541, 17 N. Y. S. R. 81, 1 N. Y. Supp. 
 
 450 349, 350 
 
 Claflin v. Davidson, 21 Jones & S. 122. 8 N. Y. Civ. Proc. Rep. 46 121 
 
 V.Robertson, 1 Silv. Sup. Ct. 176, 23 N. Y. S. R. 305, 6 N. Y. 
 
 Supp. 430 79 
 
 Clapp, Re, 20 How. Pr. 385 208, 209- 
 
 V. Clapp, 38 Hun, 540 500 
 
 v. Fullerton, 34 N. Y. 190, 90 Am. Dec. (181 268 
 
 Clark, Re, 36 Him, 301 272 
 
 Re, 40 X. Y. S. R. 12, 45 N. Y. Supp. 370 294 
 
 V. Binninger, 1 Abb. N. C. 421 31 
 
 V. Carroll, 1 X. Y. Civ. Proc. Rep. 298 307 
 
 V. Clark, 13 Daly, 497 179 
 
 V. Clark, 7 Robt. 284 175. 
 
 V. Dewey, 5 Johns. 251 3 
 
 V. Geery, 8 Jones. & S. 227 449 
 
 V.Mac Donald, 62 Hun, 149, 41 X'. Y. S. R. 753, 16 X. Y. Supp. 
 
 493 393, 399, 403- 
 
 V. Malzacher, 20 App. Div. 301, 46 X^. Y. Supp. 1081 302 
 
 V. Mosher, 107 X. Y. 118, 1 Am. St. Rep. 798, 14 X. E. 96 403 
 
 V. Rowling, 3 X. Y. 216, 53 Am. Dec. 290 509- 
 
 V.Sullivan, 19 X. Y. Civ. Proc. Rep. 147, 31 X. Y. S. R. 756, 10 
 
 X. Y. Supp. 397 447 
 
 V. Wood, 9 Wend. 435 83 
 
 Clarke, Re, 27 Abb. X. C. 144, 15 X. Y. Supp. SOT 227 
 
 Re, 15 X. Y. Supp. 370 259 
 
 V. Rochester, 29 How. Pr. 97 349, 357 
 
 V. Rochester, 34 X. Y. 355 364, 443 
 
 v. Sheldon, 32 X. Y. S. R. 30, 10 X. Y. Supp. 36, Reversed 134 
 
 X. Y. 333, 19 L. R. A. 138, 48 X. Y. S. R. 279, 32 X\ E. 23. . 227 
 
 V. Tunnicliff, 38 X. Y. 58 168, 169' 
 
 Clarks v. Staring, 4 How. Pr. 243 478 
 
 Clarkson v. Root, 18 Abb. X. C. 462 24T
 
 TABLE OF CASES CITED. xlvii 
 
 Clason V. Kehoe, 87 Hun, 368, 68 N. Y. S. R. 336, 34 N. Y. Supp. 431. . 414 
 Clegg V. Aikens, 17 Abb. N. C. 88, 8 N. Y. Civ. Proc. Rep. 249, 366, 505, 506 
 Cleveland v. Wilder, 78 Hun, 591, 60 X. Y. S. R. 764, 29 N. Y. Supp. 
 
 209 110 
 
 Clinton, Re, 12 App. Div. 132, 42 N. Y. Supp. 674 268 
 
 V. Strong, 9 Johns. 370 56. 
 
 Clossey v. Ayers, 63 Hun, 624, 17 N. Y. Supp. 278 81 
 
 Clumpha v. Whiting, 10 Abb. Pr. 448 243 
 
 Clute, Re, 14 App. Div. 234, 43 N. Y. Supp. 573 220, 221 
 
 v.Emerich, 16 N. Y. Civ. Proc. Rop. 123, 19 N. Y. S. R. 710, 2 
 
 N. Y. Supp. 874 432 
 
 V. Gould, 28 Hun, 348 235 
 
 Coates V. Goddard, 2 Jones & S. 118 352, 368, 377, 379, 381 
 
 Coatsworth v. Ray, 28 N. Y. Civ. Proc. Rep. 0, 52 N. Y. Supp. 498 287 
 
 Cobb v. Robinson, 1 How. Pr. 235 320' 
 
 Cochran v. Gottwald, 9 Jones & S. 317 488 
 
 v. Gottwald, 10 Jones & S. 214 464 
 
 v. Ingersoll, 11 Hun, 342 44a 
 
 (^ockefair v. Cockefair, 23 Abb. N. C. 219, 7 N. Y. Supp. 170 178, 513 
 
 Cockle V. Underwood, 3 Duer, 676 78 
 
 Codding v. Scott, 1 Misc. 485, 49 N. Y. S. R. 884, 21 X. Y. Supp. 473 
 
 397, 398, 400 
 Coddington v. Bowen, 2 Silv. Sup. Ct. 417, 24 X. Y. S. R. 832, 6 N. Y. 
 
 Supp. 355 133 
 
 Coflin v. Coke, 4 Hun, 016 85, 352, 359 
 
 Cohen v. Brooklyn Heights R. Co. 73 N. Y. Supp. 1132 93 
 
 V.Cohen, 11 Misc. 704, 1 X. Y. Anno. Cas. 220, 60 X. Y. S. R. 
 
 336, 32 X. Y. Supp. 1082 175, 176 
 
 V.Cohen, 72 Hun, 393, 65 X. Y. S. R. 463, 25 X. Y. Supp. 387. 484 
 
 487 
 
 V. Krulewitch, 81 App. Div. 147, 80 X. Y. Supp. 689 434 
 
 V. Krulewitch, 77 App. Div. 126, 78 X. Y. Supp. 1044 94 
 
 V. New York, 128 N. Y. 594, 3 Silv. Ct. App. 501, 21 N. Y. Civ. 
 
 Proc. Rep. 124, 38 X. Y. S. R. 846, 27 N. E. 1074 459 
 
 V. Weill, 32 Misc. 198, 65 N. Y. Supp. 695 299 
 
 ^ . Weill, 33 Misc. 764, 67 N. Y. Supp. 917 503 
 
 Cohn V. Anathan, 16 X. Y. Civ. Proc. Rep. 178, 24 N. Y. S. R. 295, 4 
 
 X^. Y. Supp. 97 82 
 
 v. Husson, 13 Daly, 334 69, 441 
 
 Cohu v. Husson, 24 Jones & S. 489, 5 X. Y. Supp. 7 240, 241 
 
 V. Husson, 25 Jones & S. 222, 1 7 X. Y. Civ. Proc. Rep. 434, 25 
 
 N. Y. S. R. 811, 6 X. Y. Supp. 512 434
 
 xlviii TAni.E of cases cited. 
 
 €ole V. Lowiy, 23 N. Y. Civ. Proc. Rep. 113, 23 X. Y. Supp. G74. . . .483, 486 
 
 V. Rose, 65 How. Pr. 520 80 
 
 V. Terpenning, 27 Hun, 111 270 
 
 ■Coleman v. Chauncey, 7 Kobt. 578 350, 382 
 
 Collanier, Re, 5 N. Y. S. R. 197 260 
 
 Collier v. Miinn, 41 N. Y. 143, 7 -\i)b. Pr. N. S. 193 32, 265 
 
 Collins V. Adams, 15 X. Y. Civ. Proc. Rep. 384, 19 X. Y. S. R. 48, 
 
 4 N. Y. Supp. 217 Ill 
 
 V. Collins, 71 N. Y. 2G9, 6 N. Y. Week. Dig. 131, 573 176 
 
 V. Jewell, 3 Misc. 341, 23 N. Y. Civ. Proc. Rep. 153, 51 X. Y. 
 
 S. R. 927, 22 N. Y. Supp. 710 69 
 
 V. Oceanic Steam Xav. Co. 1 N. Y. Week. Dig. 12 408 
 
 V. Reynolds Card Mfg. Co. 2 Montii. L. Bull. 45 377 
 
 V. Standish, 6 How. Pr. 493 140 
 
 Collis, Re, 80 App. Div. 287, 80 K Y. Supp. 307 202 
 
 Collomb V. Caldwell, 5 How. Pr. 336, X. Y. Code Rep. X. S. 41 . 102. 103, 442 
 Collyer v. CoUyer, 17 Abb. N. C. 328, Aflirmed 110 X. Y. 481, Am. St. 
 
 Rep. 425, 18 N. E. 110 259 
 
 V. Collyer, 110 N. Y. 481, 6 Am. St. Rep. 405, 18 X. Y. S. R. 210, 
 
 18 N. E. 110 257 
 
 Colne V. Givard, 19 Abb. X\ C. 288 215 
 
 Colton V. Morrisy, 6 X. Y. Week. Dig. 105 384 
 
 v. Simmons, 14 Hiui, 75. X. Y. Week. Dig. 530 499, 505, 507 
 
 Columbia College v. Thacher, 87 X. Y. 311, 41 Am. Rep. 365, 10 Abb. 
 
 N. C. 235 136 
 
 Columbia Ins. Co. v. Stevens, 37 X. Y. 537, 4 Abb. Pr. X"'. S. 122, 35 
 
 How. Pr. 101 230, 233, 255, 421 
 
 Colvard v. Oliver, 7 Wend. 497 423 
 
 Colwell V. Devlin, 20 Misc. 616, 46 X. Y. Supp. 450 305 
 
 Combs V. Combs, 25 Hun, 279 304, 456, 461 
 
 Comins v. Jefferson County, 3 Thomp. & C. 296, Affirmed, 64 N. Y. 626, 161 
 
 360, 367, 383 
 
 Comly V. Xew York, 1 X. Y. Civ. Proc. Rep. (McCarty) 306 441, 463 
 
 Commercial Xat. Bank v. Hand, 27 App. Div. 145, 50 N. Y. Supp. 515. . 378 
 Commercial Telegram Co. v. Smith, 57 Hun, 176, 19 X. Y. Civ. Proc. 
 
 Rep. 32, 32 X. Y. S. R. 445, 10 X. Y. Supp. 433 23 
 
 Commercial Warehouse Co. v. Graber, 45 X. Y. 393 319 
 
 Commissioners of Pilots v. Spofl'ord, 3 Hun, 55, 5 Thomp. &; C. 353 .... 134 
 
 288, 365 
 
 v. SpofTord, 49 How. Pr. 28 350 
 
 V. SpofTord, 4 Hun, 74 361 
 
 Commonwealth F. Ins. Co. Re, 32 Hun, 78, 19 N. Y. Week. Dig. 57 310 
 
 Compton V. Long Island R. Co. 1 X\ Y. S. R. 554 300, 301
 
 TABLE OF CASES CITED. xlJX 
 
 Comstock V. Drohan, 8 Hun, 373, Affirmed in 71 N. Y. 9 144 
 
 V. Dye, 13 Hun, 113 95, 99 
 
 V. Halleck, 4 Sandf. 671 102, 398, 400 
 
 V. Olmstead, 6 How. Pr. 77 249 
 
 Conaughty v. Saratoga County Bank, 92 N. Y. 401 3()4, 371, 374 
 
 Conboy v. Ayres, 25 Misc. 52, 53 N. Y. Supp. 1004 330 
 
 Congregation Eetheloliim v. Central Presby. Church, 10 Abb. Pr. N. S. 
 
 484 291 
 
 Conner v. Keese, 38 Hun, 124, 23 N. Y. Week. Dig. 478 163 
 
 Conolly V. Hyams, 42 App. Div. 653, 58 X. Y. Supp. 932 290 
 
 Consalus v. Brotherson, 54 How. Pr. 62 495 
 
 Considerant v. Brisbane, 7 Abb. Pr. 345, 1 Bosw. 644 103 
 
 Constantine v. Van Winkle, 2 How. Pr. 273 441 
 
 Cook V. Munn, 33 Hun, 25, 19 N. Y. Week. Dig. 398 156 
 
 V. Nellis, IS N. Y. 126 281 
 
 V. New York Floating Dry Dock Co. 1 Hilt. 556 365 
 
 Cooke V. Beach, 25 How. Pr, 356 78, 82, 84 
 
 V. Metropolitan Street R. Co. 59 App. Div. 154, 69 N. Y. Supp. 4. 321 
 Cooley V. Cummings, 24 Jones & S. 521, 17 N. Y. Civ. Proe. Rep. 145, 
 
 24 N. Y. S. R. 172, 4 N. Y. Supp. 530 118, 119, 439 
 
 Coon V. Diefendorf, 2 How. Pr. N. S. 389, 8 N. Y. Civ. Proe. Rep. 
 
 293 110, 390 
 
 Coonley, Re, 38 Misc. 219, 77 N. Y. Supp. 2G0 275 
 
 Cooper V. Astor, 1 Johns Cas. 32 437 
 
 V. Cooper, 27 Misc. 595, 59 N. Y. Supp. 86 55 
 
 V. Cooper, 51 App. Div. 595, 64 N. Y. Supp. 901 365 
 
 V. Jolly, 30 Hun, 224, Affirmed 96 N. Y. 667 390, 391 
 
 V. Schultz, 33 How. Pr. 5 160, 162 
 
 V. Townsend, 37 N. Y. S. R. 122, 13 N. Y. Supp. 760 425 
 
 Corbett v. Brantingham, 65 App. Div. 335, 72 N. Y. Supp. 763 321 
 
 V. Decomeau, 13 Jones & S. 587 494 
 
 Corbin v. George, 2 Abb. Pr. 465 60 
 
 Corey v. Harte, 21 N. Y. Week. Dig. 247 14 
 
 Corning v. Corning, 6 N. Y. 97 64 
 
 Cornuel v. Heinze, 51 N. Y. S. R. 461, 22 N. Y. Supp. 117 316 
 
 Comwell V. Parke, 52 Htm, 596, 23 N. Y. S. R. 829, 5 N. Y. Supp. 905, 
 
 Affirmed 123 N. Y. 657, 25 N. E. 955 360 
 
 Cortland &. H. Horse R. Co. Re, 98 N. Y. 336 200 
 
 Cortland Mut. L. Ins. Co. v. Latlirop, 2 How. Pr. 146 61 
 
 Corwin v. Freehand, 6 N. Y. 560 511 
 
 Coryell v. Davis, 5 Hill, 559 313 
 
 Coster V. Greenpoint Ferry Co. 5 N. Y. Civ. Proe. Rep. 146, Affirmed 
 
 without opinion in 98 N. Y. 660 15, 22, 25, 38, 47
 
 1 TABLE OF CASES CITED. 
 
 Cotes V. Smith, 29 How. Pr. 331 243 
 
 Couch V. Millard, 3 How. Pr. N. S. 22, 8 N. Y. Civ. Proc. Rep. 431 355 
 
 V. Millard, 41 Hun, 212, 4 N. Y. S. R. 167 136, 150, 364 
 
 Coughlin V. New York C. & 11. R. R. Co. 71 N. Y. 443, 27 Am. Rep. 
 
 75 24, 38. 
 
 Coulter V. American Merchants' ITnion Exp. Co. 5 Lans. G7 64 
 
 V. American Merchants' Union Exp. Co. 56 N. Y. 585 130 
 
 Courtney v. Baker, 3 Denio, 27 480 
 
 Covell V. Hart, 14 Hun, 252 54 
 
 Cowen V. King, 54 App. Div. 331, 66 N. Y. Supp. 621 405 
 
 Cox V. Clift, 3 Barb. 481, Affirmed 2 N. Y. 118 149 
 
 Coyle V. Third Ave. R. Co. 19 Misc. 345, 43 N. Y. Supp. 499 65, 344 
 
 Crafts V. Rockefeller, 6 How. Pr. 9 26* 
 
 Cramer v. Lovejoy, 41 Hun, 581 64 
 
 Crandell v. Bicker, 32 Misc. 258, 66 N. Y. Supp. 352 419 
 
 Crane, Re, 68 App. Div. 355, 74 N. Y. Supp. 88 264 
 
 V. Holcorab, 2 Hilt. 269, Affirmed in 8 Abb. Pr. 35 125 
 
 V. Holcomb, 8 Abb. Pr. 35 127 
 
 V. Miller, 27 App. Div. 630, 50 N. Y. Supp. 675 391 
 
 Crary v. Norwood, 5 Abb. Pr. 219 5, 6, 103 
 
 Craven v. Price, 37 How. Pr. 15, 53 Barb. 442 113^ 
 
 Crawford v. Kelly, 10 Bosw. 697 490 
 
 Cregin v. Brooklyn Cross To\vn R. Co. 19 Hun, 349 485 
 
 Creighton v. Ingersoll, 20 Barb. 541 21, 421 
 
 Crim V. Cronkliite, 15 How. Pr. 250 125 
 
 V. Drain. 64 App. Div. 581, 10 N. Y. Anno. Cas. 227, 72 N. Y. 
 
 Supp. 298 49a 
 
 Crippen v. Heermance, 9 Paige, 211 136 
 
 V. Ingersoll, 10 Wend. 603 59 
 
 Crittenden v. Crittenden, 1 Hill, 359 390, 391 
 
 Crocker v. Lewis, 79 Hun, 400, 61 N. Y. S. R. 503, 29 N. Y. Supp. 798. . 145 
 
 V. Lewis, 144 N Y.. 140, 39 N. E. 1 145 
 
 Crockett v. Smith, 14 Abb. Pr. 62 82 
 
 Crofts V. Rockefeller, 6 How. Pr. 9, N. Y. Code Rep. N. S. 177 396 
 
 Crofut V. Brandt, 58 N. Y. 106, 17 Am. Rep. 213 3 
 
 Crommelin v. Dinsmore, 1 N. Y. City Ct. Rep. 69 2 
 
 Cronin v. Cronin, 3 How. Pr. N. S. 184, 9 N. Y. Civ. Proc. Rep. 137 403 
 
 V. Epstein, 1 N. Y. Supp. 69, Affirmed 15 Daly, 5, 19 N. Y. S. R. 
 
 806, 2 N. Y. Supp. 709 291 
 
 Crosby v. Day, 8 1 N. \^ 242 232 
 
 v. Stephan, 97 N. Y. 606 216 
 
 Crosley v. Cobb, 42 Hun. 1 fiO 390 
 
 V. Cobb, 37 Hun, 271, 9 N. Y. Civ. Proc. Rep. 322 43»
 
 TABLE OF CASES CITED. li 
 
 Cross V. Smith, 85 Hun, 49, 66 N. Y. S. R. 55, 32 N. Y. Supp. 671.. 135 
 
 136, UO 
 
 Grossman v. Wyckoff, 64 App. Div. 554, 72 X. y. Supp. 337 152, 372 
 
 Grotty V. McKenzie, 10 Jones & S. 192 40 
 
 Crouch V. Hoyt, 24 N. Y. Civ. Proc. Rep. 60, 1 N. Y. Anno. Gas. 76, 
 
 02 X. Y. S. R. 12G, 30 N. Y. Supp. 406 17 
 
 Grouse v. New York, P. & O. R. Go. 49 Hun, 576, 18 N. Y. S. R. 711, 
 
 2 N. Y. Supp. 453 409 
 
 Crowell V. Bills, 24 Misc. 411, 53 N. Y. Supp. 647. 328, 333 
 
 V. Smith, 35 Hun, 182 109 
 
 Cruikshank v. Cruikshank, 9 How. Pr. 350 250 
 
 Grummer v. HufF, 1 Wend. 24 480 
 
 Guff V. Borland, 50 Barb. 438 150 
 
 Gulliford v. Walser, 158 N. Y. 65, 70 Am. St. Rep. 437, 52 N. E. 648. . . 412 
 Cumberland Goal & I. Go. v. Hoffman Steam Goal Co. 39 Barb. 16, 15 
 
 Abb. Pr. 78 404 
 
 Cummings v. Egerton, 9 Bosw. 684 231 
 
 Cummins v. Bennett, 8 Paige, 81 77 
 
 Cunningham v. McGregor, 12 How. Pr. 305, 5 Duer, 648 220, 223, 231 
 
 V.Nassau Electric R. Go. 40 App. Div. 211, 58 N. Y. Supp. 22.. 95 
 
 V. Widing, 5 Abb. Pr. 413 13 
 
 Gurrie v. Riley, 14 N. Y. Week. Dig. 407 414 
 
 Gurry, Re, 47 N. Y. S. R. 307, 19 N. Y. Supp. 728 264 
 
 V. Blair, 4 N. Y, Week. Dig. 271 104 
 
 V. New York & Q. C. R. Co. 73 N. Y. Supp. 1132 93 
 
 Curtis V. Curtis, 29 Misc. 257, 61 N. Y. Supp. 59 180 
 
 V. Dutton, 4 Sandf. 719 241, 480 
 
 V. Leavitt, 1 Abb. Pr. 118, 19 Barb. 530 4 
 
 Curtiss, Re, 51 App. Div. 434, 64 N. Y. Supp. 691 49 
 
 V. Lawrence, 17 Johns. Ill 64 
 
 Cusick V. Adams, 47 Hun, 455 469 
 
 Cuthbert v. Hutchins, 7 App. Div. 251, 48 N. Y. Supp. 277 60 
 
 Cutter V. ]\Iorris, 41 Hun, 575, 7 N. Y. S. R. 426, 26 N. Y. \^^eck. Dig. 
 
 245 441, 506 
 
 V. Reilly, 5 Robt. G37, 31 How. Pr. 472 423 
 
 Cuyler v. Goats, 10 How. Pr. 141 80, 398, 441 
 
 V. Vanderwerk, 1 Johns. Gas. 247 427 
 
 Cythe v. La Fontain, 51 Barb. 186 1 37 
 
 D. 
 
 Daggett V. Mead, 11 Abb. N. G. 116 249, 253 
 
 Dailey v. Wellbrock, 05 App. Div. 523, 72 N. Y. Supp. 848 11 
 
 Dakin, Re, 4 Hill, 42 49
 
 lii TAIJLE OF CASES CITED. 
 
 Dambmann v, Butterfield, 2 Hun, 284, 4 Tlioiiip. & C. 542 70 
 
 V. Scliulting, 6 Hun, 29, 51 How. Pr. 357 85 
 
 Dana v. Fiedltr, 1 E. D. Smith, 4G3, Affirmed 12 N. Y. 40, 62 Am. Dec. 
 
 130 291 
 
 Daniels v. Lyon, 9 N. Y. 549 395, 399 
 
 Dann v. Wormser, 38 App. Div. 4(J0, 50 i\. Y. iSupp. 474 384 
 
 Dansville & Mt. M. R. Co. v. Hammond, 77 Hun, 39, 59 N. Y. S. R. 49, 
 
 28 N. Y. Supp. 454 197 
 
 Darby v. Condit, 1 Duer, 599, 11 N. Y. Legal Obs. 154 331 
 
 Darde v. Conklin, 73 App. Div. 590, 77 N. Y. Supp. 39 243 
 
 Dare v. Murphy, 18 Abb. N. C. 466, 12 N. Y. Civ. Proc. Rep. 388 427 
 
 Darling, Re, 39 N. Y. S. R. 43, 14 X. Y. Supp. 445 240 
 
 V. Brewster, 55 N. Y. 667 353 
 
 V. Halsey, 2 Abb. N. C. 105 251 
 
 Dash V. Van Kleeck, 7 Johns. 477, 5 Am. Dee. 291 5 
 
 Daus V. Nussberger, 25 App. Div. 185, 49 N. Y. Supp. 291 340, 342 
 
 Davenport v. Bank for Savings, 36 Hun, 303 408 
 
 David, Re, 2 Month. L. Bull. 96 227 
 
 Davidson v. Alfaro, 80 N. Y. 660 42, 43, 44 
 
 v. Bose, 57 App. Div. 212, 68 N. Y. Supp. 316 326 
 
 Davies v. New York, 93 N. Y. 250 285 
 
 V. Williams, 13 N. Y. Civ. Proc. Rep. 138 118, 119 
 
 Davis, Re, 7 Daly, 1 26, 28 
 
 v. Cooper, 50 Barb. 376 160, 162 
 
 v. Davis, 3 N. Y. S. R. 163 151, 152 
 
 V. Duffie, 18 Abb. Pr. 360 146 
 
 v. Duffie, 3 Abb. Pr. 363, 5 Duer, 688 431 
 
 V. Gallagher, 37 App. Div. 627, 29 N. Y. Civ. Proc. Rep. 149, 55 
 
 N. Y. Supp. 1066 250 
 
 V. Grand Rapids F. Ins. Co. 5 App. Div. 36, 39 N. Y. Supp. 71 .92, 98 
 
 V. Herrig, 65 How. Pr. 290, 8 N. Y. Civ. Proc. Rep. 43 509 
 
 V.Myers, 86 Hun, 236, 67 N. Y. S. R. 37, 33 N. Y. Supp. 352.245, 249 
 
 V. Stone, 16 How. Pr. 538 304 
 
 V. Turner, 4 How. Pr. 190 215 
 
 Davison v. Waring, 9 How. Pr. 254 353 
 
 Dawson v. Burnham, 2 ilonth. L. Bull. 32 68 
 
 Day V. Beacli, 1 How. Pr. 236 438, 442 
 
 V. Roth, 18 N. Y. 448 459 
 
 V. Sun Ins. Office, 40 App. Div. 305, 57 N. Y. Supp. 1033 404 
 
 Dayton v. Parke, 67 Hun, 137, 51 N. Y. S. R. 542, 22 N. Y. Supp. 613. . 286 
 Dean v. Driggs, 82 Hun, 561, 64 N. Y. S. R. 183, 31 N. Y. Supp. 548, 
 Affirmed on this opinion in 145 N. Y. 595. 40 N. E. 163, 65 
 N. Y. S. R. 805 27
 
 TABLE OF CASES CITED. liii 
 
 Dean v. Metropolitan Elev. R. Co. 119 N. Y. 540, 23 N. E. 1054 112 
 
 V. Roseboom, 37 Hun, 310 241 
 
 V. Williams, 6 Hill, 376 477, 482 
 
 De Barante v. Deyermand, 41 N. Y. 355, 40 How. Pr. 180 80 
 
 Debbe v. Debbe, 50 N. Y. G95 31 
 
 Decker, Re, 37 Misc. 527, 70 N. Y. Supp. 315 262, 263 
 
 V. Gardiner, 8 N. Y. 29 396 
 
 Dederick v. Hoysradt, 4 How. Pr. 350, 3 N. Y. Code Rep. 86 426 
 
 Deering v. Schreyer, 58 App. Div. 322, 68 N. Y. Supp. 1015 37 
 
 Deerman v. Smith, 29 N. Y. S. R. 636, 9 N. Y. Supp. 91 70 
 
 Defendorf v. Defendorf, 42 App. Div. 166, 59 N. Y. Supp. 163 373 
 
 De Fino v. Stern, 5 App. Div. 56, 74 N. Y. S. R. 242, 38 N. Y. Supp. 
 
 616 14 
 
 Degener v. Underwood, 31 Abb. N. C. 479, 62 N. Y. S. R. 121, 30 N. Y. 
 
 Supp. 399 459, 489 
 
 Deisler v. Deisler, 65 App. Div. 208, 72 N. Y. Supp. 560 180 
 
 De Kalb Ave. M. E. Church v. Kelk, 30 Misc. 367, 62 N. Y. Supp. 393. . 252 
 
 Delafield v. Westfield, 41 App. Div. 24, 58 N. Y. Supp. 277 447 
 
 De Lamater v. Carman, 2 Daly, 182 465 
 
 v. McCaskie, 4 Dem. 549 31 
 
 Delauey v. Miller, 84 Hun, 244, 1 X. Y. Anno. Cas. 266, 65 N. Y. S. R. 
 
 834, 32 N. Y. Supp. 505 17, 20 
 
 Delatour v. Bricker, 2 N. Y. City Ct. Rep. 22 399 
 
 Delaware L. & W. R. Co. v. Burkard, 40 Hun, 625, 2 N. Y. S. R. 184, 102 
 
 395, 396 
 
 Delcomyn v. Chamberlain, 7 Jones & S. 359 493 
 
 V. Chamberlain, 48 How. Pr. 409 440, 480 
 
 De Llamosas v. De Llamosas, 62 N. Y. 618 177 
 
 Delmar v. Delmar, 65 App. Div. 582, 72 N. Y. Supp. 959 375 
 
 De Long v. De Long Hook & Eye Co. 89 Hun, 399, 70 N. Y. S. R. 161, 
 
 35 N. Y. Supp. 509 379 
 
 Demarest v. Wyncoop, 3 Johns. Ch. 129, 8 Am. Dec. 407 146 
 
 Demehy v. McCloud, 21 Misc. 541, 47 N. Y. Supp. 714 332 
 
 De Meli v. De INIeli, 5 N. Y. Civ. Proc. Rep. 306, 67 How. Pr. 20 174 
 
 Dempsey v. Hall, 3 Jones & S. 201 109, 112, 115 
 
 Denike, Re, 48 Hun, 606, 21 Abb. N. C. 289, 1 N. Y. Supp. 17 256 
 
 Dennison v. Dennison, 9 How. Pr. 246 70 
 
 Denton, Re, 137 >4. Y. 428, 51 N. Y. S. R. 60, 33 N. E. 482 258 
 
 De Oraindi, Re, 31 N. Y. S. R. 744, 9 N. Y. Supp. 873 33 
 
 Depuy v. Wurts, 47 How. Pr. 225 268 
 
 De Rose v. De Rose, Hopk. Ch. 100 173 
 
 Desbrough v. Desbrough, 29 Hun, 592 176 
 
 De Stuckle v. Tehuantepec R. Co. 30 Hun, 34, 65 How. Pr. 288, 3 N. Y. 
 
 Civ. Proc. Rep. 410 353, 358
 
 liv TABLE OF CASES CITED. 
 
 Deuterman v. Gainsborg, 54 App. Div. 577, 66 N. Y. Supp. 1009 369 
 
 Devin v. Patcliin, 26 N. Y. 441, 25 How. Pr. 5 18, 264, 419 
 
 Devlin v. New York, 15 Abb. Pr. N. S. 31 374, 375, 387 
 
 V. New Y'ork, 7 Daly, 466 497 
 
 Dewey \ . Stewart, 6 How. Pr. 465 89, 96, 486 
 
 De Witt V. Swift, 3 How. Pr. 282 494 
 
 Dexter v. Adler, 76 Hun, 439, 27 N. Y. Supp. 1121 221 
 
 V. Alfred, 74 Hun, 259, 56 N. Y. S. R. 264, 26 N. Y. Supp. 592. . 114 
 
 • V. Gardener, 5 Hoav. Pr. 417, N. Y. Code Rep. N. S. 80 360, 361 
 
 Deyo V. Morss, 21 Misc. 497, 48 N. Y. Supp. 171 490 
 
 Diamond Matcli Go. v. Roeber, 35 Hun, 421 381 
 
 Dickenson v. Earle, 63 App. Div. 140, 71 N. Y. Supp. 231 497, 502 
 
 Diefendorf v. Dickenson, 21 How. Pr. 275 229, 233 
 
 V. Diefendorf, 42 App. Div. 167, 59 N. Y. Supp. 163 152 
 
 Dienst v. McCaflrey, 24 N. Y. Civ. Proc. Rep. 238, 66 N. Y. S. R. 200, 
 
 32 N. Y. Supp. 818 17 
 
 Dietlin v. Egan. 22 N. Y. Civ. Proc. Rep. 398, 40 N. Y. S. R. 762, 19 
 
 N. Y. Supp. 392 325 
 
 Dietz V. Farish, 1 1 Jones & S. 87 350 
 
 V. McCallum, 44 How. Pr. 493 24 
 
 Dilts V. Sweet, 49 N. Y. S. R. 275, 21 N. Y. Supp. 57 150, 151 
 
 Dime Sav. Bank v. Petit, 59 N. Y. Supp. 794 503 
 
 Dimick v. Cooley, 3 N. Y. Civ. Proc. Rep. 141, 151 27, 38 
 
 Dinehart v. Wells, 2 Barb. 432, Affirmed by Court of Appeals, July 2, 
 
 1850, no opinion and report 118 
 
 Dingee v. Shears, 29 Hun, 210 43, 287 
 
 Dinkel v. Wehle, 11 Abb. N. C. 124 54 
 
 Dinley v. McCullagh. 92 Hun. 454, 72 N. Y. S. R. 416, 36 N. Y. Supp. 
 
 1007 403 
 
 Disbrow v. Garcia, 52 N. Y. 654 416, 417 
 
 Disosway v. Winant, 3 Keyes, 412, 1 Abb. App. Dec. 508, 33 How. Pr. 
 
 460 499 
 
 D'lvernois v. Leavitt, 8 Abb. Pr. 60 243 
 
 Dix V. Palmer, 5 How. Pr. 233 348 
 
 Dixon, Re, 42 App. Div. 489, 59 N. Y. Supp. 421 268 
 
 Re, 50 N. Y. S. R. 629, 21 N. Y. Supp. 343 262 
 
 Dockstader v. Sammons, 4 Hill, 546 163 
 
 Dr. Jaeger's Sanitary Woolen System Co. v. Le Boutillier, 63 Hun, 297, 
 
 22 N. Y. Civ. Proc. Rep. 6, 43 N. Y. S. R. 381. 17 N. Y. 
 
 Supp. 786 377, 379 
 
 Dodd V. Curry. 4 How. Pr. 123, 2 N. Y. Code Rep. 69 351, 483 
 
 Dode V. Manhattan R. Co. 70 Hun, 374, 23 N. Y. Civ. Proc. Rep. 180, 
 
 54 N. Y. S. R. 286, 24 N. Y. Supp. 422, Affirmed 140 N. Y. 
 
 637, 55 N. Y. S. R. 931, 35 N. E. 892 355, 371
 
 TABLE OF CASES CITED. Iv 
 
 Dodge, Re, 40 Hun, 443 260, 275 
 
 V. Crandall, 30 N. Y. 294 241 
 
 Doelger v. O'Rourke, 18 Abb. N. C. 457, 12 N. Y. Civ. Proc. Rep. 254. . 101 
 
 103 
 
 Dolittle V. Eddy, 7 Barb. 74 113 
 
 Dolliver v. American Swan-Boat Co. 32 Misc. 264, 8 N. Y. Anno. Cas. 
 
 74, 31 N. Y. Civ. Proc. Rep. 94, 65 N. Y. Supp. 978 36, 37 
 
 Donnelly v. Donnelly, 03 How. Pr. 481 177 
 
 V. Libby, 1 Sweeny, 259 404 
 
 Donner v. Ogilvie, 12 N. Y. Civ. Proc. Rep. 399 317 
 
 Donnerstag v. Donnerstag, 4 Month. L. Bull. 53 180 
 
 Donavan v. Vandemark, 22 Hun, 307 456 
 
 Donovan v. Board of Education, 1 N. Y. Civ. Proc. Rep. 311 69, 464 
 
 V. Wheeler, 67 Hun, 68, 51 N. Y. S. R. 411, 22 N. Y. Supp. 54. . . 380 
 Doremus v. Crosby, 66 Hun, 125, 49 N. Y. S. R. 808, 20 N. Y. Supp. 906. 372 
 
 408 
 
 V. Doremus, 66 Hun, 125, 20 N. Y. Supp. 906 156 
 
 Dorney v. Thacher, 76 Hun, 361, 58 N. Y. S. R. 460, 27 N. Y. Supp. 
 
 787 221, 223 
 
 Dorr, Re, 4 N. Y. Supp. 754 222 
 
 Dorsett v. Ormiston, 53 App. Div. 629, 65 N. Y. Supp. 931 359, 360 
 
 Dougherty v. Metropolitan L. Ins. Co. 3 App. Div. 314, 38 N. Y. Supp. 
 
 258 391 
 
 Douglas V. Douglas, 5 Hun, 140, 13 Abb. Pr. N. S. 291 175, 180 
 
 Douglass V. Ferris, 138 N. Y. 192, 34 Am. St. Rep. 435, 52 N. Y. S. R. 
 
 138, 33 N. E. 1041 413, 419 
 
 V. ]\Iacdurmid, 2 How. Pr. N. S. 289 287 
 
 V. Smith, 65 Hun, 11, 47 X. Y. S. R. 54, 19 N. Y. Supp. 630. .499, 500 
 Dcugliss V. Atwell, 3 N. Y. Civ. Proc. Rep. 80, 2 N. Y. Civ. Proc. Rep. 
 
 (McCarty) 390 496 
 
 Dovale v. Ackerman, 24 Abb. N. C. 214, 11 N. Y. Supp. 5 69 
 
 Dowd V. Smith, 8 Misc. 619, 61 N. Y. S. R. 333, 29 N. Y. Supp. 821 . . .3, 285 
 Dowling V. Bucking, 52 N. Y. 658, 15 Abb. Pr. N. S. 190 421 
 
 V. Bush, 6 How. Pr. 410 478, 481, 482 
 
 Downing v. Downing, 23 App. Div. 559, 48 N. Y. Supp. 727 176 
 
 V.Marshall, 37 N. Y. 380 3, 134, 155, 359, 382, 387, 394, 408 
 
 Downs V. Farley, 18 Abb. N. C. 404, 12 N. Y. Civ. Proc. Rep. 119 343 
 
 Dox V. Dey, 3 Wend. 356 64 
 
 Doyle V. Recorder Printing Co. 30 Hun, 645 421 
 
 Drago V. Kavanagh, 56 Ajjp. Div. 179, 67 N. Y. Supp. 622 333 
 
 v. Smith, 92 Hun, 536, 72 N. Y. S. R. 418, 36 N. Y. Supp. 975. . . 12 
 Drake, Re, 45 App. Div. 206, 60 N. Y. Supp. 1020 268 
 
 v. New York Iron Mine, 71 Hun, 211, 54 N. Y. S. R. 211, 54 
 
 N. Y. Supp. 518 427
 
 Ivi TABLE OF CASES CITED. 
 
 Dressel v. Kingston, 32 Hun, 526 171 
 
 Dresser v. Brooks, 2 N. Y. 559, 4 How. Tr. 207, 2 N. Y. Code Rep. 130. . 444 
 
 V. Jennings, 3 Abb. Pr. 240 355, 370 
 
 V. Wicks, 2 Abb. Pr. 460 442 
 
 Drew V. Comstock, 17 How. Pr. 469 482 
 
 Droege v. Baxter, 77. App. Div. 78, 79 N. Y. Supp. 29 423 
 
 Du Bois V. Brown, 1 Dem. 317, 65 How. Pr. 461 260, 264, 266, 273 
 
 Dudgeon v. Smith, 23 N. Y. Week. Dig. 400 145 
 
 Duff V. Warden, 10 Abb. Pr. N. S. 84 464 
 
 Duffy V. Duncan, 32 Barb. 587, Affirmed 35 N. Y. 187 223, 446 
 
 V. O'Donovan, 46 K Y. 223 291 
 
 Duglass V. Howland, 24 Wend. 35 413 
 
 Duhrkop v. White, 13 App. Div. 293, 43 N. Y. Supp. 190 498, 501 
 
 Dukelow V. Searles, 48 N. Y. S. R. 91, 20 N. Y. Supp. 348 252 
 
 Dunaway v. Terry, 37 Misc. 510, 75 N. Y. Supp. 974 324 
 
 Dunbar v. Diem, 9 N. Y. W^eek. Dig. 231 158 
 
 Duncan v. Dewitt, 7 Hun, 184 361 
 
 V. Katen, 6 Plim, 1, Affirmed 64 N. Y. 625 511 
 
 Dunckel v. Farley, 1 How. Pr. 180 109 
 
 Dunham v. Sherman, 19 How. Pr. 572, 11 Abb. Pr. 152 478, 493 
 
 Dunn V. Arkenburgh, 48 App. Div. 518, 62 N. Y. Supp. 861 236 
 
 Dunne v. American Surety Co. 29 Civ. Proc. Rep. 59, 58 N. Y. Supp. 
 
 140 331, 333, 334 
 
 Dunning v. Clarke, 2 E. D. Smith, 535 157 
 
 Dimseith v. Stark, 3 Month. L. Bull. 42 469 
 
 Dunster v. Kelly, 110 N. Y. 558, 18 N. Y. S. R. 548, 18 N. E. 361 ... 112, 113 
 
 Duperey v. Phoenix, 1 Abb. N. C. 133 483 
 
 Dupuy V. Wurts, 1 Hun, 119, 53 Plow. Pr. 48 271 
 
 Durant v. Abendroth, 15 N. Y. Civ. Proc. Rep. 36, 16 N. Y. S. R. 263, 
 
 1 N. Y. Supp. 537 383 
 
 V. Abendroth, 13 N. Y. Civ. Proc. Rep. 434 390 
 
 V. Pierson, 19 N. Y. Civ. Proc. Rep. 203, 33 N. Y. S. R. 207, 
 
 12 N. Y. Supp. 145 221 
 
 Durfee v. McCall, 21 N. Y. Week. Dig. 337 169 
 
 Dwight, Re, 61 App. Div. 357, 70 N. Y. Supp. 563 222 
 
 Dwyer v. Hoffman, 39 Hun, 360, Affirmed, 102 N. Y. 725 501 
 
 V. McLaughlin, 27 Misc. 187, 57 N. Y. Supp. 220 321, 330 
 
 Dyckman v. McDonald, 5 How. Pr. 121 354 
 
 E. 
 
 Eagan v. Moore, 2 N. Y. Civ. Proc. Rep. (Browne) 300, 11 Daly, 199, 
 
 2 N. Y. Civ. Proc. Rep. (McCarthy) 336 282:
 
 TABLE OF CASES CITED. IVll 
 
 Eagleson v. Clark, 2 E. D. Smith, 644, 2 Abb. Pr. 364 15S 
 
 Eastburn v. Kirk, 2 Johns. Ch. 317 3, 135 
 
 Eastman, Re, 25 N. Y. Week. Dig. 397 267 
 
 V. Gray, 81 Hun, 3G2, 1 N. Y. Anno. Cas. 18, 63 X. Y. S. R. 149, 
 
 30 N. Y. Supp. 895 399' 
 
 East River Bank v. Hoyt, 22 How. Rr. 478 93 
 
 Eaton V. Wells, 22 Hun, 123 295 
 
 V. Wells, 82 N. Y. 576 296 
 
 V. \\'yckofi, 4 Wend. 203 431 
 
 Eberhardt v. Schuster, 10 Abb. N. C. 374 38 
 
 Eddy V. O'Hara, 14 Wend. 221 292 
 
 Edlefson v. Duryele, 21 Hun, 607, 59 How. Pr. 326 61 
 
 Edson V. Dillaye, 8 How. Pr. 273 102 
 
 Edwards, Re, 10 Daly, 68 224 
 
 V. Bodine, 11 Paige, 223 414 
 
 V. Ninth Ave. R. Co. 22 How. Pr. 444 427 
 
 Edward Thompson Co. v. Lobenthal, 24 N. Y. Civ. Proc. Rep. 247, 67 
 
 N. Y. S. R. 419, 33 N. Y. Supp. 417 329, 330- 
 
 Effray v. Mason, 22 N. Y. Civ. Proc. Rep. 59, 42 N. Y. S. R. 657, 18 N. 
 
 Y. Supp. 350 243 
 
 Eggert V. Bonnett, 4 Month. L. Bull. 5 62 
 
 Ehle V. Bingham, 4 Hill, 595 479, 480, 482 
 
 V. Quackenboss, 6 Hill, 537 371 
 
 Ehlers v. Willis, 63 How. Pr. 341 84, 483 
 
 Ehrenreich v. Lichtenberg, 29 Misc. 305, 60 N. Y. Supp. 513, Aflirm- 
 
 ing 28 Misc. 789, 59 N. Y. Supp. 383 248 
 
 Eighmie v. Taylor, 23 N. Y. Week. Dig. 429 64 
 
 Eisenlord v. Clum, 52 Hun, 461, 17 N. Y. Civ. Proc. Rep. 147, 24 N. Y. 
 
 S. R. 102, 5 N. Y. Supp. 512 433, 434 
 
 Eisler v. Union Transfer & Storage Co. 16 Daly, 456, 12 N. Y. Supp. 
 
 732 300 
 
 Eisner v. Avery, 2 Dem. 466 33, 264 
 
 v. Hamel, 6 Hun, 234, Affirmed, 66 N. Y. 646 422 
 
 Eldred v. Eames, 115 N. Y. 403, 22 N. E. 216, 26 N. Y. S. R. 277 242 
 
 Eldridge v. Strenz, 7 Jones & S. 295 348, 357, 452 
 
 Eleventh Ave., Re, 14 N. Y. Week. Dig. 466 205 
 
 Ellensohn v. Haselbach, 17 ]\Iisc. 92, 25 N. Y. Civ. Proc. Rep. 345, 39 
 
 N. Y. Supp. 332 317 
 
 Ellenstcin v. Klee, 12 Misc. 112, 66 N. Y. S. R. 695, 33 N. Y. Supp. 94. . 294 
 
 Elliot V. Lewicky, 19 Jones & S. 51, 7 N. Y. Civ. Proc. Rep. 82 424 
 
 Elliott V. BrowTi, 2 Wend. 497, 20 Am. Dec. 644 406 
 
 V. Luengene, 19 Misc. 428, 43 N. Y. Supp. 1140 464 
 
 V. Vermilyea, 27 Misc. 189, 57 N. Y. Supp. 218 86 
 
 V. Vermilyea, 28 Misc. 790, 59 N. Y. Supp. 181 86-
 
 Iviii TABLE OF casb:s cited. 
 
 Ellis V. Filon, 85 Hun. 485. (10 N. Y. S. R. 764, 33 X. Y. Siipp. 138 251 
 
 252 
 
 Ellsworth V. Gooding, 8 How. Pr. 1 96 
 
 V. Parkes, 13 X. Y. C"iv. Proc. Rep. 208 490 
 
 Elmore, Re, 10 Daly, 48 224 
 
 Elson V. New York Equitable ln.s. Co. 2 Sandf. (J54, 2 X. Y. Code Rep. 
 
 30 438 
 
 Elwell V. Robbins, 43 How. Pr. 108 144 
 
 Elwin V. Routh, 1 N. Y. Civ. Proc. Rop. 131 344 
 
 Ely V. Cooke, 28 N. Y. 305, 2 Abb. App. Deo. 14 17, 43 
 
 V. Taylor, 42 Hun, 205 242 
 
 Emerson v. Emerson, 26 N. Y. Supp. 2i)2 175, 177 
 
 Emery v. Emery, 9 How. Pr. 130 284, 285 
 
 Emmons v. New York & E. R. Co. 17 How. Pr. 400 491 
 
 Empire City Subway Co. v. Broadway & S. A. R. Co. 87 Hun, 279, 67 
 
 N. Y. S. R. 741, 33 N. Y. Supp. 1055 369 
 
 Engel V. Fischer, 15 Abb. N^. C. 72 5 
 
 Engelbrecht, at?, 15 App. Div. 541, 44 N. Y. Supp. 551 266, 274 
 
 Engle V. Bonneau, 2 Sandf. 679 216 
 
 English Bank v. Barr, 31 Abb. X. ( '. 7 222 
 
 Ennis v. Curry, 22 Hun, 581 17 
 
 V. Wilder, 14 N. Y. Week. Dig. 211 492 
 
 Enright v. Shalvey, 1 N. Y. City Ct. Rep. 5S 160 
 
 Eppig V. New York, 57 App. Div. 114, 68 N. Y. Supp. 41 203 
 
 Equitable Life Assur. Soc. v. Hughes, 125 X. Y. 106, 19 N. Y. Civ. 
 Proc. Rep. 326, 11 L. R. A. 280, 34 N. Y. S. R. 591, 26 N. E. 
 
 1, 3 473 
 
 v.Olyphant, 57 Hun, 414, 19 N. Y. Civ. Proc. Rep. 20, 32 X. Y. 
 
 S. R. 704, 10 N. Y. Supp. 659 472 
 
 Erickson v. Poey, 5 X. Y. Civ. Proc. Rep. 379 338 
 
 Erie R. Co. v. Ramsey, 10 Abb. Pr. N. S. 109 495 
 
 Ernst, Re, 54 App. Div. 363, 66 N. Y. Supp. 620 48, 51 
 
 Estus v. Baldwin, How. Pr. 80 163, 469 
 
 Esty v. Trowbridge, 1 Month. L. Bull. 55 320 
 
 Eustace v. Tuthill, 2 Johns. 185 112 
 
 Evans, Re, 34 Misc. 37, 69 N. Y. Supp. 487 39 
 
 Re, 65 App. Div. 100, 72 N. Y. Supp. 495 33 
 
 Re, 58 App. Div. 502, 69 N. Y. Supp. 482 33 
 
 V. Ferguson, 10 N. Y. Civ. Proc. Rep. 57 480, 484, 485, 488 
 
 V. Silberniann, 7 App. Div. 139, 40 N. Y. Supp. 298 440 
 
 441, 492, 493 
 
 Everall v. Lassen, 13 Daly, 10, 7 N. Y. Civ. Proc. Rep. 112 219 
 
 Everingham v. Vanderbilt, 12 Hun, 75 363
 
 TABLE OF CASES CITED. lix 
 
 Everson v, Gelirman, 2 Abb. Pr. 413 397, 465 
 
 V. Gehrman, 1 Abb. Pr. 167 285 
 
 V. McMulIen, 45 Hun, 578, 10 N. Y. S. E. 627, Reversed on other 
 grounds in 113 N. Y. 293, 22 X. Y. S. R. 787, 4 L. R. A. 118, 
 
 10 Am. St. Rep. 445, 21 N. E. 52 Ill 
 
 :EwfiII V. Hubbard, 46 App. Div. 383, 61 N. Y. Supp. 790 147, 408 
 
 Exstein v. Robertson, 1 Silv. Sup, Ct. Rep. 169, 17 X. Y. Civ. Proc. Rep. 
 
 23, 23 X. Y. S. R. 1, 6 X. Y. Supp. 429 83 
 
 F. 
 
 Faber v. Van Tassel, 4 ^lontli. L. Bull. 30 484, 487, 488 
 
 Pagan v. Strong, 19 X. Y. Civ. Proc. Rep. 88, 11 X. Y. Supp. 766. .323, 331 
 
 Fairbanks v. Sargent. 104 X. Y. 108, 58 Am. Rep. 490, 9 X. E. 870 38 
 
 Fairchild, Re, 10 Daly, 74 222 
 
 F. A, Kennedy Co. v. McCormaok, 15 X. Y. Civ. Proc. Rep. 239, 18 
 
 X. Y, S, R. 287, 3 X. Y, Supp. 214 327, 330 
 
 Tales V. Lawson, 4 X. Y, Supp. 284 101 
 
 Falkel v, Moore, 32 Hun, 293 116 
 
 Falkenberg v. Bash, 33 Misc. 007, 9 X, Y, Anno. Cas. 132, 07 X. Y. 
 
 Supp. 1111 292 
 
 Fargo V. Helmer, 43 Hun, 17. 25 X. Y. Wook. Dig. 405, G X. Y. S. R. 
 
 584 3, 290 
 
 V. Paul, 35 Mi.sc. 568, 72 X. Y. Supp. 21 13, 14 
 
 Farmers' Loan &. T. Co., Re, 49 App. Div. 1, 63 X. Y. Supp. 227 271 
 
 V. Bankers' & M. Teleg. Co. 109 X. Y. 342, 16 X. E. 539.... 62, 450 
 
 V. Kursch, 5 X. Y. 558 425 
 
 V. Millard, 9 Paige, 620 145 
 
 Farrell v. Hill, 69 Him, 455, 52 X. Y. S. R. 620, 23 N. Y. Supp. 402. . 115 
 V. Xew York Juvenile Asylum, 2 App. Div. 496, 3 X. Y. Anno. 
 
 Cas. 13, 74 N. Y. S. R. 414, 37 X, Y. Supp. 1118 427 
 
 Farrelly v. Hubbard, 148 X. Y. 592, 43 X. E. 65 511 
 
 Farrington v. Farmers' Loan & T, Co. 50 X. Y. S. R. 264, 21 X. Y. 
 
 Supp. 194 234 
 
 Faulkner v. Cody, 28 ]Misc. 66, 59 X. Y. Supp. 807 427 
 
 Fawdrey v. Brooklyn Heiglits R. Co. 64 App. Div. 418, 72 X. Y. Supp. 
 
 283 93 
 
 Faxon v. Mason, 76 Hun, 408, 59 X. Y. S. R. 328, 27 X. Y. Supp. 1025 220 
 V. Mason, 90 Hun, 426, 70 X. Y. S. R. 624, 35 X. Y. Supp. 
 
 9.50 221, 223 
 
 Fay V. Muhlker, 13 Daly, 314 353, 498 
 
 Tearn v. Gelpcke, 13 Abb, Pr, 473 323 
 
 Teehan, Re, 36 Misc. 614, 73 X, Y, Supp. 1126 264
 
 Ix TABLE OF CASES CITED. 
 
 Feiber v. Lester, 36 N. Y. S. R. 98G, 13 N. Y. Supp. 339. .. c 9& 
 
 Feid V. Wray, 64 How. Pr. 391, 2 N. Y. Civ. Proc. Pvep. (jNIcCarty) 386, 
 
 3 N. Y. Civ. Proc. Rep. 159 237, 23S 
 
 Feier v. Third Ave. R. Co. 9 App. Div. 607, 75 N. Y. S. R. 1222, 41 
 
 N. Y. Supp. 821 338 
 
 Feist V. New York, 15 App. Div. 495, 44 N. Y. Supp. 497 432 
 
 Fellows v. Sheridan, 6 How. Pr. 419 465 
 
 Felt v. Dorr, 16 N. Y. Week. Dig. 587 225 
 
 Fenlon v. Dempsey, 50 Hun, 131, 15 N. Y. Civ. Proc. Rep. 393, 22 
 
 Abb. N. C. 114, 19 N. Y. S. R. 231, 2 N. Y. Supp. 763 218 
 
 Fenno v. Dickinson, 4 Denio, 84 16& 
 
 Ferdon v. Harrigan, 71 N. Y. S. R. G71, 36 N. Y. Supp. 741 48 
 
 Ferguson v. Arnoux, 142 N. Y. 5S0, 60 N. Y. S. R. 301, 37 N. E. 626. . 1 
 
 V. Wooley, 9 N. Y. Civ. Proc. Rep. 236 140 
 
 Fernald v. Providence Washington Ins. Co. 27 App. Div. 137, 50 N. Y. 
 
 Supp. 838 413 
 
 Fernbacher, Re, 18 Abb. N. C. 1 33 
 
 Fernbacher's Estate, 4 Dem. 227, 17 Abb. N. C. 339, 8 N. Y. Civ. Proc. 
 
 Rep. 349 260, 266 
 
 Ferree v. Ellsworth, 47 N. Y. S. R. 119, 19 N. Y. Supp. 659 295 
 
 Ferrin v. Myrick, 41 N. Y. 315 31 
 
 Ferris v. Hard, 15 N. Y. Civ. Proc. Rep. 171, 17 N. Y. S. R. 364, 4 N. 
 
 Y. Supp. 9 143, 373 
 
 Fessenden v. Blanchard, 48 Hun, 350, 14 N. Y. Civ. Proc. Rep. 277, 51 
 
 N. Y. S. R. 871, 1 N. Y. Supp. 105 315 
 
 Fetchman v. Davenport, 8 N. Y. Civ. Proc. Rep. 220 388 
 
 Fetridge v. Wells, 4 Abb. Pr. 144, 13 How. Pr. 385 417 
 
 Field V. Field, 77 N. Y. 294 246 
 
 v. New York, 38 Hun, 590 385 
 
 Fielding v. Mills, 2 Bosw. 489 285 
 
 Fifield V. Browai, 2 Cow. 503 427 
 
 Filer v. Korn, 3 Misc. 624, 52 N. Y. S. R. 266, 23 N. Y. Supp. 115. . . 87 
 
 Finch V. Calvert, 13 How. Pr. 13 493 
 
 Fincke, Re, 6 Daly, 111 47 
 
 Fink V. Berg, 50 Hun, 211, 19 N. Y. S. R. 322, 2 N. Y. Supp. 851 414 
 
 Finkel v. Kohn, 24 Misc. 367, 53 N. Y. Supp. 694 498 
 
 Finkmaur v. Dempsey, 8 N. Y. Civ. Proc. Rep. 418 511 
 
 Finley v. Jones, 6 Barb. 229 240 
 
 Finton v. Egelston, 61 Hun, 246, 40 N. Y. S. R. 936, 16 N. Y. Supp. 
 
 721 148 
 
 Firmenich v. Bovee, 1 Hun, 532, 4 Thomp. & C. 98 43 
 
 First Nat. Bank v. Bush, 47 How. Pr. 78 353 
 
 V. Fourth Nat. Bank, 84 N. Y. 469, 60 How. Pr. 436 454, 463
 
 TABLE OF CASES CITED. Ixi 
 
 First Nat. Bank v. Hall, 19 Misc. 278, 44 N. Y. Supp. 255 318 
 
 V. Levy, 41 Hun, 461 134 
 
 V. Tamajo, 77 N. Y. 47G 497, 498 
 
 V. Washburn, 20 App. Div. 518, 47 N. Y. Supp. 117 231, 232 
 
 V. Yates, 21 Misc. 373, 47 N. Y. Supp. 484 313 
 
 Fischer v. Burns, 61 N. Y. S. R. 476, 30 X. Y. Supp. 437 55 
 
 .... V. Langbein, 31 Hun, 272 398, 465, 466 
 
 Tischer-Hansen v. Brooklyn Heights 11. Co. 173 X. Y. 492, 66 N. E. 395 87 
 
 iFish V. Crane, 9 Abb. Pr. N. S. 252 241 
 
 V. Forrance, 5 How. Pr. 317 362 
 
 V. Wing, 1 JSr. Y'. Civ. Proc. Eep. 231 329, 333, 335 
 
 li'isher v. Be-nnctt, 21 Misc. 178, 47 N. Y. Supp. 114, 252, 253, 254 
 
 V. Cortland, 42 Hun, 173 171 
 
 V. English, 4 Montli. L. Bull. 37 387 
 
 V. Hepburn, 48 X. Y. 41 355 
 
 V. Hunter, 15 How. Pr. 150 5, 490 
 
 Fitzhugh V. Wiman, 9 N. Y. 559 488 
 
 Fitzpatrick v. Borland, 27 Hun, 291 150 
 
 Fitzsimmons v. Curley, 18 Jones & S. 429, 6 X. Y. Civ. Proc. Rep. 156 324 
 
 V. Ryan, 64 App. Div. 404, 72 X. Y. Supp. 65 218 
 
 Flaherty v. Cary, 25 App. Div. 195, 49 N. Y. Supp. 303 325, 326 
 
 Fleishman v. Yagel, 16 Misc. 511, 38 N. Y. Supp. 523 93, 96, 97, 98 
 
 Flint V. Richardson, 2 X. Y. Code Rep. 80 354 
 
 V. Van Deusen, 24 Hun, 440, 12 X. Y". Week. Dig. 126 317, 329 
 
 V. Van Dusen, 26 Hun, 606 12, 41 
 
 Flood V. Moore, 2 Abb. X. C. 91 507 
 
 Flor V. Flor, 73 App. Div. 262, 76 N. Y. Supp. 813 179, 513 
 
 Florence v. Bulkley, 1 Duer, 705, 12 X. Y. Legal Obs. 28 322, 342 
 
 Floyd V. Clark, 16 Daly, 528, 17 X. Y". Supp. 848 144 
 
 Flynn v. Equitable Life Assur. Soc. 18 Hun, 212 358 
 
 V. Kennedy, 62 Hun, 26, 41 X. Y. S. R. 359, 16 X. Y. Supp. 361 . . 153 
 
 V. Tinney, 60 X. Y. Supp. 791 331, 332, 333 
 
 V. Westmayer, 14 X. Y. Civ. Proc. Rep. 130, 4 X. Y. Supp. 188. . 63 
 
 Fogg v. Edwards, 57 How. Pr. 290, 6 X. Y. Week. Dig. 493 317 
 
 Foley, Re, 39 App. Div. 248, 57 X. Y. Supp. 131 332 
 
 V. Foley, 15 App. Div. 276, 44 X. Y. Supp. 588 135, 148 
 
 V. Rathbone, 4 X. Y. Week. Dig. 55 426, 432 
 
 V. Scharmann, 29 Misc. 521, 61 X. Y'. Supp. 909 20 
 
 Folger, Re, 4 Johns. Ch. 169 209 
 
 Folsom V. Van Wagner, 7 Lans. 309, 14 Abb. Pr. X. S. 44 86, 352 
 
 Ford V. Knapp, 102 X. Y. 135, 55 Am. Rep. 782, 6 X. E. 283 .... 153 
 
 V. Monroe, 6 How. Pr. 204, 10 X. Y. Legal Obs. 155 479 
 
 Foreman v. Edwards, 14 X. Y. Week. Dig. 408 40
 
 l>:ii TABLE OF OASES CITED. 
 
 Forrest v. Thompson, 8 N. Y. S. R. 345 395, 396; 
 
 Forster v. Kane, 1 Dem. 67 259 
 
 Forstman v. Schulting, 35 Hun, 505 39 
 
 V. Scluilting, 38 Hun, 482 98^ 
 
 V. Schulting, 42 Hun, 643, 25 N. Y. Week. Dig. 293, 4 N. Y. S. R. 
 
 463 512. 
 
 V. Schulting, 108 N. Y. 110, 15 N. E. 366 55 
 
 Fort V. Gooding, 9 Barb. 371 245, 252, 360, 388 
 
 Forty-Second Street & G. Street Ferry R. Co. v. Guntzer, 4 Jones & S. 
 
 567 330 
 
 Foster v. Romer, 15 N. Y. Week. Dig. 487 115 
 
 V. Bowen, 1 Code Rep. N. S. 236 427 
 
 V. Bryan, 26 How. Pr. 164, 16 Abb. Pr. 396 501 
 
 V. Cleveland, 6 How. Pr. 253 163 
 
 Fourth Ave., Re, 11 Abb. Pr. 189 440 
 
 Fowler v. Dearing, 6 App. Div. 221, 39 N. Y. Supp. 1034 303 
 
 V. Fowler, 147 N. Y. 673, 42 N. E. 343 154 
 
 Fox, Re, 92 N. Y. 93 238 
 
 V. Davidson, 40 App. Div. 620, 58 N. Y. Supp. 147 64 
 
 v. Fox, 22 How. Pr. 453 237 
 
 v. Fox, 24 How. Pr. 385 41, 359, 360 
 
 V. Gould, 5 How. Pr. 278, 3 X. Y. Code Rep. 209 359 
 
 V. Muller, 31 Misc. 470, 64 N. Y. Supp. 388 437 
 
 Franey v. Smith, 126 N. Y. 658, 37 N. Y. S. R. 480, 27 N. E. 559. .454, 463 
 
 Frank v. Musliner, 29 Misc. 237, 60 N. Y. Supp. 332 336 
 
 Fraser v. Hunt, 18 N. Y. Week. Dig. 390 394 
 
 V. MeXaughton, 58 Hun, 30, 33 N. Y. S. R. 347, 11 N. Y. Supp. 
 
 384 385 
 
 V.Ward, 13 Daly, 431, 9 N. Y. Civ. Proc. Rep. 11, Affirming, 2 
 
 How. Pr. N. S. 47 319 
 
 Freeman v. Brooks, 33 Misc. 450, 68 X. Y. Supp. 437 367 
 
 Frickel v. Frickel, 4 Misc. 382, 24 X. Y. Supp. 483 175, 176 
 
 Friedheim v. Metropolitan Street R. Co. 35 Misc. 199, 71 N. Y. Supp. 
 
 485 484 
 
 Friedman v. Eisenberg, 24 X. Y. S. R. 298, 4 X. Y. Supp. 551 126 
 
 Friend, Re, 23 Misc. 300, 50 X. Y. Supp. 954 220, 224 
 
 Frisbie v. Averell, 87 Hun, 217, 33 X. Y. Supp. 1021 64 
 
 Fritchie v. Hoi den. 32 X". Y. S. R. 276, 79 X. Y. Civ. Proc. Rep. 84, 11 
 
 X. Y. Supp. 171 395 
 
 Frith V. Campbell, 53 Barb. 325 382 
 
 Fromme v. Gray, 17 Misc. 77, 39 X. Y. Supp. 856 42 
 
 Frost V. Yonkers Sav. Bank, 70 X'. Y. 553, 26 Am. Rep. 627 294 
 
 Fuchs v. Wm. H. Sweeney Mfg. Co. 34 N. Y. S. R. 925, 12 N. Y. Supp. 
 
 870 .• 448
 
 TABLE OF CASES CITED. Ixill 
 
 Fuller, Re, 16 N. Y. Civ. Pioc. Rep. 412, 22 X. Y. S. Px. Srrl, 5 N. Y. 
 
 Supp. 460 2.58 
 
 V. Conde, 47 N. Y. 8U 124, 126. 
 
 Fujik V. Evening Post Pub. Co. 75 Hun, 497, 59 N. Y. S. R. 333, 27 
 
 N. Y. Supp. 10S9 97 
 
 G. 
 
 Gabriel, Re, 60 N. Y. Supp. 87 262 
 
 V. Schillinger Fire Proof & Asphalt Co. 24 Misc. 313, 6 N. Y. 
 
 Anno. Cas. 1, 52 N. Y. Supp. 1127 50 
 
 Gage V. Hornellsville, 106 N. Y. 667, 8 N. Y. S. R. 885, 27 N. Y. Week. 
 
 Dig. 8, 12 N. E. 817, Alfirming 41 Hun, 87, 2 N. Y. S. R. 
 
 345 170, 171 
 
 V. Peetsch, 12 Misc. 548, 67 N. Y. S. R. 875, 34 N. Y. Supp. 20 . . 327 
 
 Gale V. Wells, 7 How. Pr. 191 , 80 
 
 Galinger v. Engelhardt, 26 Misc. 49, 55 X. Y. Supp. 334 412 
 
 Gall, Re, 40 App. Div. 114, 29 N. Y. Civ. Proe. Rep. 178, 57 N. Y. Supp. 
 
 835 246 
 
 Gallagher v. Baird, 60 App. Div. 29, 10 N. Y. Anno. Cas. 58, 69 N. Y. 
 
 Supp. 676 505 
 
 V. Egan, 2 Sandf . 742 85 
 
 V.Geneva, W. S. F. & C. Lake Traction Co. 39 Misc. 637, 80 
 
 N. Y. Supp. 606 338 
 
 Gallation v. Smith, 48 How. Pr. 477 423 
 
 Gallersteiu v. Manhattan R. Co. 26 INIisc. 853, 55 N. Y. Supp. 444 339 
 
 Gallison v. Rawak, 24 N. Y. S. R. 318, 3 N. Y. Supp. 802 73 
 
 Gallup V. Bell, 20 Hun, 172 160 
 
 Gamble v. Taylor, 43 How. Pr. 375 91 
 
 Gansz v, Gansz, 59 X. Y. Supp. 955 177 
 
 Gardenier v. Eldred, 21 X. Y. Civ. Proc. Rep. 221, 40 X. Y. S. R. 225, 
 
 15 X. Y. Supp. 819 428 
 
 V.Oswego Mut. Sav. & Aid Asso. 41 X. Y. S. R. 30, 17 X. Y. 
 
 Supp. 394 428. 
 
 Gardiner v, Tyler, 36 How. Pr. 63, Affirmed in 5 Abb. Pr. X, S. 33 26 
 
 Gardner v. Gardner, 6 Paige, 455 255 
 
 V. Kelly, 2 Sandf. 632, 1 X. Y. Code Rep. 120 325, 327, 328 
 
 V. Walker, 22 How. Pr. 405 395 
 
 Garfield v. Kirk, 65 Barb. 464 311 
 
 Garling v. Ladd, 27 Him, 112, 15 X. Y. Week. Dig. 5 5 
 
 Garlock v. Vandevort, 128 X. Y. 374, 28 X. E. 599 156 
 
 Gamer v. Gladwin, 12 X. Y. Week. Dig. 9 42, 43 
 
 Garrabrant v. Sullivan, 13 X. Y. Civ. Proc. Rep. 196 130 
 
 Garrett v. Wood, 61 App. Div. 293, 70 X. Y. Supp. 358 102, 44&
 
 Isiv TABLE OF CASES CITED. 
 
 Garrison v. Garrison, 67 How. Pr. 271 284 
 
 V.Marie, 7 N. Y. Civ. Proc. Rep. 113, 1 How. Pr. N. S. 348. ... 219 
 
 •Garvey v. Owens, 35 N. Y. S. R. 133, 12 N. Y. Supp. 349 407 
 
 V. United States Horse & Cattle Show Soc. 1 N. Y. Anno. Cas. 
 
 400, 73 N. Y. S. R. 3G0, 38 N. Y. Supp. 171 98 
 
 Gates, Re, 51 App. Div. 350, 64 N. Y. Supp. 1050 22 
 
 V. Canfield, 28 Hun, 12, 64 How. Pr. 81, 2 N. Y. Civ. Proc. Rep. 
 
 (McCarty) 255 116 
 
 V. McDonald, 39 N. Y. S. R. 128, 14 N. Y. Supp. 907 316, 317 
 
 Gaul V. Miller, 3 Paige, 192 59 
 
 Gedney v. Purdy, 47 N. Y. 676 315, 325 
 
 Geib V. Topping, 83 N. Y. 46 600 
 
 Gelch V. Barnaby, 7 Abb. Pr. 19, 1 Bosw. 657 328 
 
 Gelpeck v. Leather Cloth Co. 12 Abb. Pr. 361 388 
 
 Genet v. Binsse, 3 Daly, 239 246, 247, 250 
 
 v. Davenport, 58 N. Y. 607 421 
 
 V. Delaware & H. Canal Co. 57 Hun, 174, 19 N. Y. Civ. Proc. Rep. 
 
 82, 32 N. Y. S. R. 209, 10 N. Y. Supp. 467 354 
 
 V.Delaware & H. Canal Co. 49 App. Div. 645, 63 N. Y. Supp. 
 
 230 384 
 
 V. Delaware & H. Canal Co. 136 N. Y. 217, 49 N. Y. S. R. 201, 
 
 32 K E. 851 391 
 
 Geoghegan v. Luchow, 75 App. Div. 581, 78 N. Y". Supp. 278 71 
 
 German American Bank v. INIilliman, 31 Misc. 87, 65 N. Y. Supp. 242. . 300 
 German American Provision Co. v. Garrone, 73 App. Div. 409, 77 N. Y. 
 
 Supp. 134 254 
 
 German Exch. Bank v. Kroder, 14 Misc. 179, 35 JST. Y. Supp. 380 401 
 
 German Sav. Bank v. Sharer, 25 Hun, 400 144 
 
 Gerry v. Liddle, 82 Hun, 85, 63 N. Y. S. R. 358, 31 N. Y. Supp. 58. . 188, 189 
 
 Gibbs, Re, 58 How. Pr. 502 144 
 
 V. Prindle.. 11 App. Div. 470, 76 N. Y. S. R. 329, 42 N. Y. Supp. 
 
 320 20, 42 
 
 Gidney v. Livingston, 25 How. Pr. 1 373 
 
 Gifford V. Rising, 48 Hun, 128, 14 N. Y. Civ. Proc. Rep. 172, 28 N. Y. 
 
 Week. Dig. 327, 15 N. Y. S. R. 596 315, 321, 322, 335 
 
 Gilbert v. Deshon, 40 N. Y. S. R. 799, 16 N. Y. Supp. 36 498, 506 
 
 Giles, Re, 11 Paige, 638 208 
 
 V. Halbert, 12 N. Y. 32 423, 424 
 
 Gill V. Clark, 31 Misc. 337, 65 N. Y. Supp. 406 501 
 
 Gillespie v. Mulholland, 12 Misc. 40, 33 N. Y. Supp. 33 47, 49 
 
 V. Pfisler, Coleman & Cai. Cas. 120, 3 Johns. Cas. 470 327 
 
 v. Satterlee, 18 Misc. 606, 42 X. Y. Supp. 463 75 
 
 V. Stanless, 1 How. Pr. 101 320
 
 TABLE OF CASES CITED. llxV 
 
 Cillcspy V, Bilbrongh, 15 App. Div. 212, 44 N. Y. Supp. 2G0 349, 361 
 
 Gillies V. Kreuder, 1 Dcm. 349 241 
 
 €illiland v. Campbell, 18 How. Pr. 177 124, 126 
 
 Gilman v. Gilman, 6 Thonip. & C. 211, Affirmed, 6 N. Y. 41 2G5 
 
 Gilmartin v. Smith, 4 Sandf. 084 70, 438 
 
 Gilroy v. Badger, 28 Misc. 143, 58 N. Y. ISupp. 1100 434, 485 
 
 V. Stampfer, 30 Misc. 830, 61 N. Y. Supp. 924 71 
 
 Glackin v. Zeller, 52 Barb. 147 124, 126 
 
 Gladke, Re, GO N. Y. Supp. 869 203 
 
 Glasburg v. Dry Dock, E. B. & B. E,. Co. 12 N. Y. Civ. Proc. Bep. 50. . 339 
 
 342 
 
 Glass V. Place, 5 Daly, 110 327 
 
 Glassford v, Lewis, 82 Hun, 40, 31 N. Y. Supp. 102 97 
 
 G. Maehle v. Rosenberg, 80 App. Div. 541, 80 N. Y. Supp. 703 332 
 
 Godding v. Porter, 17 Abb. Pr. 374 502 
 
 Godfrey v. Pell, 5 Month. L. Bull. 09 433 
 
 Godley v. Kerr Salt Co. 3 App. Div. 17, 73 N. Y. S. 11. 530, 37 N. Y. 
 
 Supp. 988 381 
 
 Goetschius, Re, 3 Misc. 155, 23 N. Y. Supp. 975 261, 264 
 
 Goldschmidt v. Goldschmidt, 1 Month. L. Bull. 74 175 
 
 Gomez; v. Gomez, 49 N. Y. S. R. 646, 20 N. Y. Supp. 901 234, 235, 233 
 
 Good V. Rumsey, 50 App. Div. 280, 03 N. Y. Supp. 981 54 
 
 Goodenough v. Billing, 21 N. Y. Week. Dig. 405 302 
 
 Goodenow v. Livingston, 1 How. Pr. 232 4 
 
 Gooding v. Bro\vn, 35 Hun, 153 300, 364 
 
 Goodman v. Guthman, 2 N. Y. Week. Dig. 333 510 
 
 Goodness v. Metropolitan Street R. Co. 49 App. Div. 76, 63 N. Y. 
 
 Supp. 476 7''4 
 
 Goodrich v. McDonald, 112 N. Y. 157, 19 N. E. 649, 16 N. Y. Civ. Proc. 
 
 Rep. 222, 20 N. Y. S. R. 509 13 
 
 Goodridge v. Connor, 66 How. Pr. 143 449 
 
 Goodyear v. Baird, 11 How. Pr. 377 482 
 
 V. Ogden, 4 Hill, 104 93 
 
 Gooseberry, Re, 52 How, Pr. 310 274 
 
 Gordon v. Strong, 15 App. Div. 519, 44 N. Y. Supp. 481 337, 384 
 
 Gorham v. Innis, 115 N. Y. 87, 21 N. E. 722 159. 364 
 
 Gori v. Smith, 6 Robt. 503, 3 Abb. Pr. N. S. 51 356, 364 
 
 Gormly v. Mcintosh, 22 Barb. 271 404 
 
 Gorton v. United States & B. Mail S. S. Co. 20 N. Y. Civ. Proc. Rep. 
 
 202, 37 N. Y. S. R. 556, 13 N. Y. Supp. 653 123, 130 
 
 Goss V. Hays, 40 App. Div. 557, 58 N, Y. Supp. 35 298, 299 
 
 Gott V. Cook, 7 Paige, 521 154, 408
 
 Ixvi TABLE OF CASES CITED. 
 
 Gould V. Chapin, 4 How. Pr. 185, 2 N. Y. Code Rep. 107 355, 361, 362- 
 
 V. Patterson, 03 Hun, 575, 28 Abb. N. C. 385, 22 N. Y. Civ. Proc. 
 
 Hep. 230, 45 N. Y. S. R. 85, 18 N. Y. Supp. 332 117 
 
 Qowing V. Levy, 22 N. Y. Civ. Proc. Rep. 10, 43 N. Y. S. R. 767, 17 
 
 N. Y. Supp. 771 62, 492 
 
 Grade Crossing Comrs., Re, 19 Misc. 230, 43 N. Y. Supp. 1073 482 
 
 Re, 17 App. Div. 54, 44 N. Y. Supp. 844 205 
 
 Re, 20 App. Div. 271, 46 N. Y. Supp. 1070 2, 197, 385 
 
 Graham v. New York Life Ins. & T. Co. 46 Hun, 261 385 
 
 Grangier v. Hughes, 24 Jones & S. 346, 3 N. Y. Supp. 828 51 
 
 Grant v. Crittenton, 13 N. Y. Civ. Proc. Rep. 123 329 
 
 Grantman v. Tlirall, 31 How. Pr. 464 331 
 
 Grauer v. Grauer, 2 Misc. 98, 20 N. Y. Supp. 854, 49 N. Y. S. R. 354. . . 55 
 
 Graves v. Blanchard, 4 How. Pr. 300, 3 N. Y. Code Rep. 25 133 
 
 Gray v. Daniels, 18 App. Div. 465, 45 N. Y. Supp. 1106 30K 
 
 V. Hannah, 3 Abb. Pr. N. S. 183 447 
 
 V. Journal of Finance Pub. Co. 2 Misc. 260, 50 N. Y. S. R. 764, 
 
 21 N. Y. Supp. 967 54 
 
 V. Manhattan R. Co. 3 Misc. 239, 51 N. Y. S. R. 905, 22 N. Y. 
 
 Supp. 771 381 
 
 Green v. Lee, 8 N. Y. Week. Dig. 131 422 
 
 V. Reynolds, 72 Hun, 565, 54 N. Y. S. R. 846, 25 N. Y. Supp. 625 149 
 
 Greene v. Canandaigua, 30 Hun, 306 113 
 
 Greenfield v. New York, 28 Hun, 320 29, 48 
 
 Greenhalgh, Re, 64 Hun, 20, 45 N. Y. S. R. 924, 18 N. Y. Supp. 743. . . 271 
 
 Greenwood v. Marvin, 11 N. Y. S. R. 235 424 
 
 Gregory v. Cyder, 10 Abb. Pr. N. S. 289 499 
 
 V. McArdle, 1 How. Pr. N. S. 187 127 
 
 Grening v. Malcolm, 83 Hun, 9, 31 N. Y. Supp. 612 97 
 
 Grier v. Lockport, 21 N. Y. Week. Dig. 444 , 171 
 
 Griffin v. Brown, 35 How. Pr. 372, 53 Barb. 428 126 
 
 V. Griffin, 47 N. Y. 134 174, 182 
 
 V. Round Lake Camp Meeting Asso. 26 Hun, 314 427, 428 
 
 Griflith v. Beecher, 10 Barb. 432 261 
 
 Grigg v. IMcNutty, 5 Misc. 334, 55 N. Y. S. R. 210, 25 N. Y. Supp. 
 
 504 41 
 
 Griggs v. Brooks, 79 Hun, 394, 61 N. Y. S. R. 499, 29 N. Y. Supp. 
 
 794 29, 47, 48 
 
 V. Day. 135 N. Y. 469, 32 N. E. 238 497 
 
 V. Guinn, 29 Abb. N. C. 144, 23 N. Y. Civ. Proc. Rep. 46, 21 
 
 N. Y. Supp. 451 -^i)?, 505 
 
 Grinnell v. Sherman, 19 Civ. Proc. Rep. 139, 33 N. Y. S. R. 27, 11 
 
 N. Y. Supp. 682 215
 
 TABLE OF CASES CITED. Ixvii 
 
 Grissler v. Stuyvesant, 67 Barb. 81 380 
 
 Griswold, Re, 15 Abb. Pr. 299 259 
 
 V. Metropolitan Elev. R. Co. 122 N. Y. 640, 3 Silv. Ct. App. 126, 
 
 33 N. Y. S. R. 642, 25 N. E. 381 457 
 
 V. Van Dusen, 2 E. D. Smith, 178 298 
 
 Grosfent v. Tallman, 2 How. Pr. 147 422 
 
 Gross V. Moore, 14 App. Div. 353, 43 N. Y. Supp. 945 239 
 
 Grout V. Carver, 15 Hun, 361 237, 238 
 
 Grussy v. Schneider, 50 How. Pr. 134 290, 291 
 
 Guckenheimor v. Angevine, 16 Hun, 453 98, 442, 451 
 
 Guernsey v. Davidson, 7 Alb. L. J. 204 114 
 
 Guilford v. Jacobie, 69 Hiin, 420, 52 N. Y. S. R. 837, 23 N. Y. Supp. 
 
 462 142 
 
 Guliano v. Whitenack, 3 Misc. 54, 51 N. Y. S. R. 768, 22 N. Y. Supp. 
 
 560 65 
 
 V. Whitenack, 9 Misc. 562, 30 N, Y. Supp. 415 23 
 
 Gunning v. Quinn, 81 Hun, 522, 63 N. Y. S. R. 209, 30 N. Y. Supp. 1015, 
 
 32, 51 
 Gurney v. Union Transfer & Storage Co. 25 Jones & S. 444, 29 N. Y. 
 
 S. R. 274, 8 N. Y. Supp. 549 350, 355, 369 
 
 Guttroff V. VVallach, 3 Misc. 136, 51 N. Y. S. R. 495, 22 N. Y. Supp. 
 
 745 282 
 
 H. 
 
 H., Re, 93 N. Y. 381 13, 28 
 
 Re, 87 N. Y. 521, 63 How. Pr. 152, 14 N. Y. Week. Dig. 259. .. . 11 
 
 48, 49, 52 
 
 Hackett v. Edwards, 22 Misc. 659, 49 N. Y. Supp. 609 282 
 
 V. Equitable Life Assur. Soc. 30 Misc. 530, 63 N. Y. Supp. 853 353 
 
 Haddock v. Haddock, 75 App. Div. 565, 78 N. Y. Supp. 304 180 
 
 Hadley v. Pethcal, 23 N. Y. Civ. Proc. Rep. 216, 24 N. Y. Supp. 
 
 803 92, 97 
 
 Haffey v. Lynch, 46 App. Div. 160, 61 N. Y. Supp. 736 67 
 
 Hafner v. Hafner, 34 Misc. 99, 69 N. Y. Supp. 460 155, 156 
 
 Hagan v. American Baptist Home Missionary Soc. 14 Daly, 131, 6 N. Y. 
 
 S. R. 212 158 
 
 Hagenbuchle v. Schultz, 69 Hun, 183, 53 N. Y. S. R. 598, 23 N. Y. 
 
 Supp. 611 376 
 
 Hager v. Danforth, 8 How. Pr. 448 491 
 
 Halin, Re, 16 N. Y. Week. Dig. 357, Affirmed in 93 N. Y. 38 J 17 
 
 Re, 14 N. Y. Week. Dig. 259 10 
 
 V. Van Doren, 1 E. D. Smith, 411 300, 465
 
 Lxviii TABLE OF CASES CITED. 
 
 Haines v. Patterson, 87 Huu, 109, 67 N. Y. S. R. 459, 33 N. Y. Supp. 
 
 814 509 
 
 Hakonson v. Metropolitan Street R. Co. 40 Misc. 182, 81 N. Y. Supp. 
 
 6G2 485 
 
 Halbert v. Cibbs, 16 App. Div. 126, 4 N. Y. Anno. Cas. 232, 45 N. Y. 
 
 Supp. 113 13, 28 
 
 Hale V. Mason, 86 Hun, 499, 67 N. Y. S. R. 535, 33 N. Y. Supp. 789. . 323 
 
 334 
 
 V. Prentice, 1 N. Y. Code Rep. 81 361 
 
 Hall V. Brennan, 64 Hun, 394, 46 N. Y. S. R. 777, 19 N. Y. Supp. 623. . 243 
 
 V. Dennerlein, 39 N. Y. S. R. 67, 14 N. Y. Supp. 796 289, 
 
 V. Edmunds, 67 How. Pr. 202 245, 253 
 
 V. Emmons, 40 How. Pr. 137, 9 Abb. Pr. N. S. 453 458 
 
 V. Hodskins, 30 How. Pr. 15 116 
 
 V. Huntley, N. Y. Code Rep. N. S. 21, note 61 
 
 V, Lindo, 8 Abb. Pr. 341 85 
 
 V. Templeton, 3 N. Y. Week. Dig. 550 324 
 
 V. United States Reflector Co. 5 INIonth. L. Bull. 1 362 
 
 V. VVaterbury, 5 Abb. N. C. 356 333, 335 
 
 Hallett V. Hallett, 10 Misc. 304, 24 N. Y. Civ. Proc. Rep. 102, 63 N. Y. 
 
 S. R. 175, 30 N. Y. Supp. 948 79 
 
 Halliman v. Ft. Edward, 26 Misc. 422, 57 N. Y. Supp. Iti2 172 
 
 Hallock V. Bacon, 64 Hun, 90, 19 N. Y. Supp. 91 242, 245 
 
 V. Hallock, 4 How. Pr. 160 175 
 
 Halpin v. Phoenix Ins. Co. 118 N. Y. 165, 23 N. E. 482 291 
 
 Halsey v. McCallum, 2 N. Y. City Ct. Rep. 338 401 
 
 Halstead v. Halstead, 11 Misc. 592, 1 N. Y. Anno. Cas. 230, 66 N. Y. 
 
 S. R. 335, 32 N. Y. Supp. 1080 177 
 
 V. Halstead, 2 Thomp. & C. 673 458 
 
 Hamersley v. Hamersley, 7 N. Y. Legal Obs. 127 152 
 
 Hames v. Judd, 16 Daly, 110, 18 N. Y. Civ. Proc. Rep. 324, 30 N. Y. 
 
 S. R. 666, 9 N. Y. Supp. 743 313 
 
 Hamilton v. Butler, 19 Abb. Pr. 446, 30 How. Pr. 36, 4 Robt. 654 484 
 
 487, 492, 507 
 V.Manhattan R. Co. 25 Jones & S. 491, 24 Abb. N. C. 156, 18 
 N. Y. Civ. Proc. Rep. 164, 29 N. Y. S. R. 28, 8 N. Y. Supp. 
 
 546 363 
 
 Hammann v. Jordan, 27 Jones & S. 95, 36 N. Y. S. R. 434, 13 N. Y. 
 
 Supp. 803 
 
 Hammond v. Dean, 4 Hun, 131, Thomp. & C. 337 52 
 
 V. Slccum, 50 How. Pr. 415 132 
 
 Hand v. Shaw, 13 Misc. 143, C8 N. Y. S. R. 99, 34 N. Y. Supp. 115 325 
 
 Hanel v. Baare, 9 Bosw. 682 494
 
 TABJ.E OF CASES CITED. IxJX 
 
 Haiina v. Dexter, 15 Abb. Pr. 135 89 
 
 Hannahs v. Hannahs, 5 Hun, 044 498 
 
 Hannover National Bank v. Linneworth, 7 Hun, 235 387 
 
 Hanover F. Ins. Co. v. Germania F. Ins. Co. 63 Hun, 275, 43 N. Y. 
 
 S. R. 454, 18 N. Y. Supp. 50 381 
 
 V. Germania F. Ins. Co. 138 N. Y. 252, 52 X. Y. S. R. 334, 33 
 
 N. E. 1065 159, 359, 303, 366 
 
 Harding v. Elision, 19 N. Y. Civ. Proc. Rep. 252, 13 N. \". Supp. 549,. . 116 
 
 300 
 
 V. Field, 84 Hun, 540, 65 N. Y. S. R. 875, 32 N. Y. Supp. 1143. . 334 
 
 Hardt v. Schulting, 12 N. Y. Week. Dig. 27 43 
 
 Hardy, Re, 20 App. Div. 104, 49 N. Y. Supp. 953 208 
 
 Hare v. White, 3 How. Pr. 296, 1 N. Y. Code Rep. 70 63 
 
 Hargous v. Lahens, 3 Sandf. 213 290 
 
 Harlem, M. & F. R. Co. v. Westchester, 143 N. Y. 59, 00 N. Y. S. R. 
 
 349, 37 N. E. 034 352 
 
 Harper v. Chamberlain, 14 Abb. Pr. 408 397 
 
 Harrigan v. Hoosick Falls, 16 N. Y. S. R. 352, 1 N. Y. Supp. 57 92 
 
 Harrington v. Brooklyn Heights R. Co. 73 N. Y". Supp. 1136 93 
 
 V. Libby, 6 Daly, 259, 201 82 
 
 V. Strong, 49 App. Div. 39, 63 N. Y. Supp. 257 240 
 
 Harriott v. New Jersey R. & Transp. Co. 1 Daly, 377 404 
 
 Harris v. Elliott, 19 App. Div. 00, 45 N. Y. Supp. 910 50 
 
 V. Mutual L. Ins. Co. 18 N. Y. Civ. Proc. Rep. 195, 10 N. Y. 
 
 Supp. 473 337, 430 
 
 V. Mutual L. Ins. Co. 20 N. Y. Civ. Proc. Rop. 192, 37 N. Y. 
 
 S. R. 599, 13 N. Y. Supp. 718 337, 342 
 
 v. Panama R. Co. 5 Bosw. 312 93 
 
 Harrison v. Ayers, 18 Hun, 330 248 
 
 V.Harrison, 75 Hun, 191, 58 N. Y. S. R. 100, 26 N. Y. Supp. 
 
 965 416 
 
 V. Newman, 14 Jones & S. 575 326 
 
 V. Swart, 34 Hun, 259 219, 301 
 
 Hart V. Brooklyn, 36 Barb. 226 171 
 
 V. Hart, 45 App. Div. 280, 61 N. Y. Supp. 131 252 
 
 V. New York, 16 App. Div. 227, 44 N. Y. Supp. 767 367 
 
 V. Ogdensbury & L. C. R. Co. 89 Hun, 316, 70 N. Y. S. R. 226, 35 
 
 N. Y. Supp. 500 366 
 
 V. Storey, 1 Johns. 143 80 
 
 Harwood, Re, 50 N. Y. S. R. 114, 21 N. Y. Supp. 572 425 
 
 v. La Grange, 137 N. Y. 538, 32 N. E. 1000. 50 N. Y. S. R. 30. . 32 
 
 42, 51 
 
 Hasbrouck v. Marks, 58 App. Div. 33, 68 N. Y. Supp. 510 376
 
 l\X TABLE OP CASES CITED. 
 
 Hascall v. King, 64 App. Div. 441, 31 N. Y. Civ. Proc. Rep. 207, 66 
 
 N. Y. Siipp. 1112 132, 134 
 
 V.King, 165 N. Y. 288, 59 N. E. 132 451 
 
 Haskin, Re, 18 Hun, 42 50 
 
 Easier v. Johnston, 59 How. Pr. 432 328 
 
 Hatch V. Stewart, 42 Hun, 164, 25 N. Y. Week. Dig. 371, 5 N. Y. S. 
 
 R. 180 245 
 
 Hatten-s Estate, 6 Dem. 444, 15 N. Y. Civ. Proc. Rep. 293, 17 N. Y. 
 
 S. R. 774, 2 N. Y. Supp. 493 275 
 
 Hausauer v. Machawicz, 54 App. Div. 23, 66 N. Y. Supp. 340 120, 289 
 
 Hauselt v. Bonner, 17 N. Y. Civ. Proc. Rep. 320, 25 N. Y. S. R. 30, 6 
 
 N. Y. Supp. 473, Affirmed, 117 N. Y. 634, 22 N. E. 1129 438 
 
 V. Godfrey, 11 Daly, 276 453 
 
 v. Godfrey, 3 N. Y. Civ. Proc. Rep. 116 392, 449 
 
 v. Taussig, 3 N. Y. Code Rep. 236 353 
 
 V. Vilmar, 76 N. Y. 630 259, 394 
 
 Havana City R. Co. v. Ceballos, 25 Misc. 600, 56 N. Y. Supp. 360 326 
 
 Havemeyer, Re, 27 App. Div. 123, 50 N. Y. Supp. 126 43 
 
 v. Havemeyer, 12 Jones & S. 172 68 
 
 V. Havemeyer, 16 Jones & S. 104 69 
 
 Hawley v. Davis, 5 Hun, 642 281, 287, 486 
 
 V. Donnelly, 8 Paige, 415 268 
 
 Hayden v. Hayden, 8 App. Div. 547, 40 N. Y. Supp. 865 342 
 
 V. McDermott, 9 Abb. Pr. 14 44 
 
 V. Mathews, 4 App. Div. 338, 74 N. Y. S. R. 589, 38 N. Y. Supp. 
 
 905, Affirmed, 158 N. Y. 735, 53 N. E. 1126 356, 371 
 
 Hayes v. Carr, 44 Hun, 372, 26 N. Y. Week. Dig. 442, 8 N. Y. S. R. 824 42 
 
 v. Carr, 28 N. Y. Week. Dig. 104, 12 N. Y. S. R. 584 43 
 
 V. O'Reilly, 8 N. Y. Civ. Proc. Rep. 347 126 
 
 V. Second Ave. R. Co. 5 Month. L. Bull. 92 322 
 
 Haynes v. Mosher, 15 How, Pr. 216 473, 477, 478, 494 
 
 Hays V. Knickerbocker Ice Co. 20 N. Y. Week. Dig. 61 341 
 
 v. Ledman, 28 Misc. 575, 59 N. Y. Supp. 687 181 
 
 Hayward v. ]\Ianhattan R. Co. 52 Hun, 383, 17 N. Y. Civ. Proc. Rep. 
 
 155, 24 N. Y. S. R. 357, 5 N. Y. Supp. 473 89 
 
 Hazard v. Wilson, 3 Abb. N. C. 50 426, 431 
 
 Healy v. Malcolm, 75 App. Div. 422, 78 N. Y. Supp. 315 249 
 
 V. Murphy, 21 N. Y. Civ. Proc. Rep. 13, 16 N. Y. Supp. 541... 250 
 V. Twenty-Third Street R. Co. 1 N. Y. Civ. Proc. Rep. 15... 330, 333 
 
 Heam v. Sullivan, 13 Abb. N. C. 371 430 
 
 Heath v. Barmour, 35 How. Pr. 1, 50 Barb. 444, Affirmed in 50 N. Y. 
 
 302 114, 116 
 
 V. Forbes, 18 N. Y. Civ. Proc. Rep. 207, 11 N. Y. Supp. 87. . . . 390
 
 TABLE OF CASES CITED. IxXl 
 
 Heather v. Neil, 14 N. Y. Week. Dig. 46 225, 423 
 
 Heather's Estate, 15 Abb. N. C. 194 255, 265 
 
 Heaton v. Ferris, 1 Johns. 146 112 
 
 Hebbard v. United States L. Ins. Co. 8 N. Y. Week. Dig. 272 428 
 
 Heckemann v. Young, 55 Hun, 406, 29 N. Y. S. R. 55, 8 N. Y. Supp. 
 
 Ill 285 
 
 Heckman v. Mackey, 19 Abb. N. C. 394, 13 N. Y. Civ. Proc. Rep. 11 337 
 
 Hecla Consol. Min. Co. v. O'Neill, 23 N. Y. Civ. Proc. Rep. 143, 51 N. 
 
 Y. S. R. 436, 22 N. Y. Supp. 130 105, 438 
 
 Hecox V. Ellis, 19 Wend. 157 192 
 
 Heebner v. Townsend, 8 Abb. Pr. 234 419 
 
 Heert v. Cruger, 14 Misc. 508, 70 N. Y. S. R. 688, 35 N. Y. Supp. 1063. . 383 
 
 Hees V. Nellis, 65 Barb. 440, 1 Thomp. & C. 118 243 
 
 Heilman v. Lazarus, 90 N. Y. 672, 65 How. Pr. 95, 12 Abb. N. C. 19 368 
 
 Heimors v. Davidson, 2 N. Y. City Ct. Rep. 308 163 
 
 Heintz v. Dellinger, 28 How. Pr. 39 112 
 
 Helck V. Rciiiheimer, 28 N. Y. Week Dig. 347, 14 N. Y. S. R. 465 452 
 
 Helgers v. Staten Island Midland R. Co. 69 App. Div. 570, 75 N. Y. 
 
 Supp. 34 93 
 
 Helmprecht v, Bowen, 87 Hun, 362, 34 N. Y. Supp. 1141 342 
 
 Hempstead, Re, 36 App. Div. 321, 55 N. Y. Supp. 345 203 
 
 Henderson v. Bannister, 1 N. Y. City Ct. Rep. 125 283, 287 
 
 V. Henderson, 2 Abb. N. C. 102 94, 97 
 
 V. Scott, 43 Hun, 22 151, 153 
 
 Henderson, H. & Co. v. McNally, 33 App. Div. 132, 28 N. Y. Civ. Proc. 
 
 Rep. 178. 6 N. Y. Anno. Cas. 166, 53 N. Y. Supp. 351. . .321, 329 
 
 Hendricks v. Bouck, 4 E. D. Smith, 461, 2 Abb. Pr. 360 103 
 
 Henning v. Miller, 83 Hun, 403, 64 N. Y. S. R. 667, 31 N. Y. Supp. 878 242 
 
 253 
 
 Henricus v. Englert, 43 N. Y. S. R. 598, 17 N. Y. Supp. 237 420 
 
 Henry, Re, 7 N. Y. S. R. 713, 25 N. Y. Week. Dig. 156 274 
 
 V. Derby, 21 Jones & S. 125, 11 N. Y. Civ. Proc. Rep. 100 421 
 
 Henry's Estate, 5 Dem. 272, 5 N. Y. S. R. 344 259 
 
 Henry Huber Co. v. Warren, 29 Misc. 588, 61 N. Y. Supp. 247 330 
 
 Hepburn v. Hepburn, 54 How. Pr. 466, 2 Month. L. Bull. 90 428 
 
 Hequembourg v. Bookstaver, 54 Hun, 88, 26 N. Y. S. R. 479, 7 N. Y. 
 
 Supp. 217 83, 396 
 
 Herbert v. Drake, 2 N. Y. City Ct. Rep. 175 430 
 
 Herbst v. Vacuum Oil Co. 50 N. Y. S. R. 555, 22 N. Y. Supp. 42 463 
 
 Herkimer County Light & P. Co. v. Johnson, 37 App. Div. 257, 55 N. Y. 
 
 Supp. 924 -lOS 
 
 Herman v. Aaronson, 8 Abb. Pr. N. S. 155 319 
 
 V. Girvin, 8 App. Div. 418, 40 N. Y. Supp. 845 120, 121 
 
 v. Lyons, 10 Hun. Ill, 2 Abb. N. C. 90 -281, 287, 486
 
 Ixxii TABLE OF CASES CITED. 
 
 Herrington v. Robertson, 71 N. Y. 280 131, 132, 244, 458 
 
 Herron v. Herron, 28 Misc. 323, 59 N. Y. Supp. 861 182 
 
 Herzfeld v. Rcinacli, 26 Misc. 489, 57 N. Y. Supp. 609 48» 
 
 Herzog v. Tamsen, 22 Misc. 7(ifi. 27 N. Y. Civ. Proc. Rep. 105, 49 N. Y. 
 
 Supp. 1015 31$ 
 
 Hess, Re, 48 Hun, 586, 16 N. Y. S. R. 255, 1 N. Y. Supp. 811 514 
 
 V. Joseph, 7 Robt. 609 4» 
 
 Hesse v. Briggs, 13 Jones &, S. 417 467 
 
 Hewitt V. City Mills, 136 N. Y. 211, 49 N. Y. S. R. 335, 32 N. E. 703. . 43* 
 
 V. Cook, 75 App. Div. 239, 78 N. Y. Supp. 2 91 
 
 Hewlett V. Brown, 1 Bosw. 655, 7 Abb. Pr. 74 476 
 
 Hexter v. Pennsylvania R. Co. 43 App. Div. 113, 59 N. Y. Supp. 453. . . 4^ 
 Heywood Boot & Shoe Co. v. Ralph, 82 Hun, 418, 63 N. Y. S. R. 580, 
 
 31 N. Y. Supp. 263 291, 292 
 
 Hibbard v. Randolph, 72 Hun, 626. 56 N. Y. S. R. 431, 25 N. Y. Supp. 
 
 854 281 
 
 Hicks V. Brennan, 10 Abb. Pr. 304 87, 478, 481 
 
 v. Payson, 7 Abb. Pr. 326 327 
 
 V. Waltermire, 7 How. Pr. 370 90, 358 
 
 Higgins V. Sharp, 164 N. Y. 4, 8 N. Y. Anno. Cas. 139, 58 N. E. 9. . .174, 182 
 
 Hilborne v. Kolle, 2 N. Y. Week. Dig. 182 81 
 
 Hildebrant v. Crawford, Lans. 502 392 
 
 Hilderbrandt v. Ogden, 1 Month. L. Bull. 74 427 
 
 Hill v. Edie, 24 N. Y. Week. Dig. 124 110 
 
 V. Grant, 2 Thomp. & C. 407 428, 429 
 
 V.Lee, 4 App. Div. 154, 74 N. Y. S. R. 506, 38 N. Y. Supp. 641. . 408 
 
 Hillebrandt, Re, 33 App. Div. 191, 53 N. Y. Supp. 352 49, 50 
 
 Himberg v. Rogers, 40 IMisc. 190, 81 N. Y. Supp. 627 7^ 
 
 Hinckley v. Boardman, 3 Cai. 134 437 
 
 v. Kreitz, 58 N. Y. 583 412 
 
 Hinds V. Myers, 4 How. Pr. 356, 3 N. Y. Code Rep. 48 244, 395, 399 
 
 V. Schenectady County Mut. Ins. Co. 7 How. Pr. 142 478 
 
 Hinman v. Devlin, 40 App. Div. 234, 57 N. Y. Supp. 1037 25, 26, 27 
 
 V.Pierce, 50 Hun, 209, 16 N. Y. Civ. Proc. Rep. 138, 19 N. Y. 
 
 S. R. 390, 2 N. Y. Supp. 801 316 
 
 V.Ryder, 12 Jones & S. 330 361, 302, 382 
 
 Hirschspring v. Boe, 20 Abb. N. C. 402, 13 N. Y. Civ. Proc. Rep. 125. . 283 
 
 284. 288, 365 
 Hirshbach. Re, 72 App. Div. 79, 76 N. Y. Supp. 117 12 
 
 v. Ketchum, 5 App. Div. 324, 39 N. Y. Supp. 291 12 
 
 Hirshfield v. Bopp, 5 App. Div. 202, 39 N. Y. Supp. 24 78 
 
 Hiscox V. New Yorker Staats-Zeuting, 3 Misc. 110, 30 Abb. N. C. 131, 
 23 N. Y. Civ. Proc. Ren. 87. r>2 N. Y. S. R. 212, 23 N. Y. 
 Supp. r;<52 402
 
 TABLE OF CASES CITED. 
 
 Ixxiii 
 
 Hitchler, Re, 25 Misc. 369, 55 N. Y. Supp. 640 2G4, 273 
 
 Hoag V. Greenwich, 133 N. Y. 152, 44 N. Y. S. R. 519, 30 N. E. 842. . . . 368 
 
 Hodges V. Porter, 10 Hun, 244 314 
 
 Hodgkins v. Mead, 17 N. Y. Civ. Proc. Rep. 16, 25 N. Y. S. R. 937, 5 
 
 N. Y. Supp. 435 .394 
 
 Hoe V. Sanborn, 36 N. Y. 93, 3 Abb. Pr. N. S. 189, 35 How. Pr. 197. . 128 
 
 284, 443 
 Hoffman, Re, 76 Hun, 399, 58 N. Y. S. R. 699, 27 N. Y. Supp. 1086. ... 277 
 
 V. Barry, 2 Hun, 52, 4 Thomp. & C. 253 105, 469 
 
 V. De Graaf, 39 Hun, 648 
 
 V. HolTman, 7 Robt. 474 176 
 
 V. Lowell, 4 N. Y. Civ. Proc. Rep. 103 318 
 
 V. New York, L. E. & W. R. Co. 18 Jones & S. 51 2 479 
 
 V. Ridley, 4 N. Y. Civ. Proc. Rep. 41 80 
 
 V. Van Nostrand, 14 Abb. Pr. 336 28 
 
 Hogan V. Cavanaugh, 139 N. Y. 620, 34 N. E. 1046 455 
 
 Holden, Re, 126 N. Y. 589, 26 N. Y. S. R. 507, 27 N. E. 1063. . .197, 385, 403 
 
 V. New York & E. Bank, 72 N. Y\ 286 137 
 
 Holdridge v. Scott, 1 Lans. 303 237, 238 
 
 Holland Trust Co. Re, 76 Hun, 325, 59 N. Y. S. R. 85, 27 N. Y. Supp. 
 
 687 52 
 
 Hollenbeck v. Knapp, 42 Hun, 207 304 
 
 Holler V. Apa, 47 N. Y. S. R. 485, IS N. Y. Supp. 588 158 
 
 Hollingslied v, WoodAvard, 35 Hun, 410 102 
 
 Holmes v. Evans, 129 N. Y. 140, 29 N. E. 233, 41 N. Y. S. R. 365 13 
 
 V. St. John, 4 How. Pr. 66, 2 N. Y. Code Rep. 46 4 
 
 Holmes & G. Mfg. Co. v. Morse, 28 Abb. N. C. 133, 19 N. Y. Supp. 190. . 499 
 
 Holton V. Robinson, 59 App. Div. 45, 69 N. Y. Supp. 33 216, 514 
 
 Holy Trinity Church v. St. Stephen's Church. 38 N. Y. S. R. 120, 15 
 
 N. Y. Supp. 117 70 
 
 Hommeyer v. Beere, 13 N. Y. Civ. Proc. Rep. 169 23, 36 
 
 Honduras v. Soto, 112 N. Y. 310, 2 L. R. A. 642, 16 N. Y. Civ. Proc. 
 Rep. 270, 8 Am. St. Rep. 744, 20 N. Y. S. R. 749, 19 N. E. 
 
 845 317, 330 
 
 Hone v. De Peyster, 106 N. Y. 645, 13 N. E. 778 240, 242, 269, 424 
 
 Honeywell v. Burns, 8 Cow. 121 80 
 
 Hood, Re, 17 N. Y. S. R. 705, 1 N. Y. Supp. S."„S 451, 452 
 
 Re, 30 Hun, 472 269, 451 
 
 v. Hood, 12 Daly, 113 84 
 
 Hoodless V. Brundage, 8 How. Pr. 263 126 
 
 Hoos V. Person, 15 N. Y. Week. Dig. 530 374 
 
 HopfT V. United States Baking Co. 48 N. Y. S. R. 729, 21 N. Y. Supp. 
 
 589 65
 
 Ixxiv TABLE OF CASES CITED. 
 
 Hopkins v. Hopkins, 21 N. Y. Week. Dig. 174 179 
 
 V. Lott, 111 N. Y. 577, 19 N. E. 273 236, 249 
 
 Hopper V. Ersler, 1 N. Y. Anno. Cas. 192, 72 N. Y. S. R. 804, 38 N. Y. 
 
 Supp. 176 42 
 
 . V. Hopper, 92 Hun, 415, 71 N. Y. S. R. 664, 36 N. Y. Supp. 610. . 182 
 
 183 
 
 Horgan v. McKenzie, 43 N. Y. S. R. 131, 17 N. Y. Supp. 174 158 
 
 V. Ricker, 15 N. Y. S. R. 330 405 
 
 Hornby v. Cramer, 12 How. Pr. 490 140 
 
 Hornellsville Electric R. Co. v. New York, L. E. & W. R. Co. 83 Hun, 
 
 407, 64 N. Y. S. R. 416, 31 N. Y. Supp. 745 197, 200 
 
 Horning v. Smith, 19 N. Y. Civ. Proc. Rep. 142, 11 N. Y. Supp. 790.304, 492 
 
 Horton, Re, 18 Misc. 406, 42 N. Y. Supp. 775 210 
 
 V. Brown, 29 Hun, 654 247 
 
 V. Jordan, 32 N. Y. S. R. 920, 11 N". Y. Supp. 2 112, 118 
 
 V. Shepherd, 1 N. Y. Civ. Proc. Rep. 178, 6 N. Y. Anno. Cas. 166, 
 
 53 N. Y. Supp. 351 329 
 
 Hosmer v. Gano, 14 Misc. 229, 25 N. Y. Civ. Proc, Rep. 100, 70 N. Y. 
 
 S. R. 169, 35 N. Y. Supp. 471 503 
 
 Hossley v. Colerick, 3 How. Pr. N. S. 169, 9 N. Y. Civ. Proc. Rep. 43. . . 99 
 
 Hotaling v. McKenzie, 7 N. Y. Civ, Proc. Rep. 320 338 
 
 V. Marsh, 14 Abb. Pr. 161, Reversing 13 Abb. Pr. 297 355, 387 
 
 House V. Eisenlord, 30 Hun, 90, Affirmed 102 N. Y. 713, 7 N. E. 428. . 142 
 
 V. Lockwood, 48 Hun, 550, 1 N. Y. Supp. 540 464 
 
 V. Raymond, 3 Hun, 45, 5 Thomp. & C. 248 308 
 
 Hover v. Heath, 3 Hun, 283, 5 Thomp. & C. 488 52 
 
 Hovey v. Rubber Tip Pencil Co. 14 Abb. Pr. N. S. 66 42 
 
 V. Rubber Tip Pencil Co. 3 Jones & S. 81, 12 Abb. Pr. N. S. 3G0, 
 
 Affirmed 50 N. Y. 335 415 
 
 V. Rubber Tip Pencil Co. 50 N. Y. 336 417 
 
 Howard v. Farley, 3 Robt. 599 289 
 
 V. Riker, ] 1 Abb. N. C. 113 87 
 
 V.Rome & T. PI. Road Co. 4 How. Pr. 416, 3 N. Y. Code Rep. 
 
 41 359, 360 
 
 Howe V. Howe, 5 N. Y, Week. Dig. 460 178 
 
 V. Lloyd, 9 Abb. Pr. N. S. 257, 2 Lans. 335 241, 243 
 
 V. Muir, 4 How. Pr. 252, 3 N, Y, Code Rep. 21 349, 355 
 
 Howell V. Buffalo, 15 N. Y. 512 171 
 
 V. Kinney, 1 How. Pr. 105 500 
 
 V, Miller, 12 Daly, 277 352 
 
 V, Van Siclen, 8 Hun, 524, Affirmed 70 N. Y. 595, 4 Abb. N. C. 1.. 360 
 
 454, 464 
 V. Van Sicklen, 70 N. Y. 595, 4 Abb. N. C. 1 358, 360
 
 TABLE OF CASES CITED. IxXV 
 
 Ho\v«.ll V. Veith, 2 N. Y. City Ct. Rep. 405 397 
 
 V. Wright Dairy Co. 31 Misc. 755, 64 N. Y. Supp. 55 307 
 
 Howitt V. Merrill, 17 X. Y. S. R. 1007, 1 N. Y. Supp. 894 14 
 
 v.Merrell, 113 N. Y. G30, 2 Silv. Ct. App. 158, 20 N. E. 868, 16 
 
 N. Y. Civ. Proc. Rep. 374, 22 N. Y. S. R. 619 41 
 
 Howk V. Bishop, 10 Hun, 509 400 
 
 Howland v. Lenox, 4 Johns. 311 478, 481 
 
 V. Taylor, 6 Hun, 237 28 
 
 Hoye V. Flynn, 30 Misc. 636, 64 N. Y. Supp. 252 252 
 
 Hoyt V. Godfrey, 11 Daly, 278, 3 N. Y. Civ. Proc. Rep. 118, 16 N. Y. 
 
 Week. Dig. 91 42 
 
 Hoyt's Estate, 5 Dem. 432, 12 X. Y. Civ. Proc. Rep. 208, 26 N. Y. 
 
 Week. Dig. 373, 8 N. Y. S. R. 786 256 
 
 Hubbard v. Gicquel, 14 N. Y. Civ. Proc. Rep. 15, 15 X. Y. S. R. 397. .. . 321 
 
 v. National Protection Ins. Co. 11 How. Pr. 149 72 
 
 Hubbell V. Rochester, 8 Cow. 115 109, 112 
 
 Hudson V. Erie R. Co. 57 App. Div. 98, 68 X. Y. Supp. 28 480, 482, 484 
 
 485, 487, 507 
 
 V. Guttenberg, 9 Abb. N. C. 415 391, 392 
 
 Hudson River Teleph. Co. v. Watervliet Turnp. & R. Co. 135 X. Y. 393, 
 17 L. R. A. 674, 31 Am. St. Rep. 838, 48 N. Y. S. R. 417, 32 
 
 N. E. 148 369 
 
 Huff V. Jewett, 20 Misc. 35, 44 N. Y. Supp. 311 123 
 
 Hughes V. Cummings, 63 App. Div. 363, 71 X. Y. Supp. 699 234 
 
 Hulbert, Re, 10 Abb. X. C. 284 222 
 
 Hulbert Bros. & Co. Re, 29 Misc. 484, 61 X\ Y. Supp. 959 408 
 
 Hulburt V. Xewell, 4 How. Pr. 93, 2 N. Y. Code Rep. 54 320 
 
 Hull V. Peters, 7 Barb. 331 290, 291 
 
 Hulsaver v. Wiles, 1 1 How. Pr. 446 215 
 
 Humfreville, Re, 154 N. Y. 115, 47 X. E. 1086 264, 513 
 
 Humiston v. Ballard, 40 How. Pr. 40, 63 Barb. 9 304, 404 
 
 Hun V. Salter, 92 X. Y. 651 354 
 
 Hunt V. Chapman, 62 X. Y. 333, 1 N. Y. W^eek. Dig. 15 143, 373 
 
 V. Connor, 14 Abb. Pr. 466 241 
 
 V. Genet, 14 Daly, 225, 6 X. Y. S. R. 275 404 
 
 V. ]\Iiddlebrook, 14 How. Pr. 300 4, 387 
 
 V. Oswego, 45 Hun, 305 171 
 
 V. Oswego, 107 X. Y. 629, 1 Silv. Ct. App. 520, 27 X. Y. Week. 
 
 Dig. 237, 11 N. Y. S. R. 762, 14 N. E. 97 171 
 
 V. Sullivan, 79 App. Div. 119, 79 X. Y. Supp. 708 434 
 
 Huntington v. Moore. 59 Hun, 351, 20 X. Y. Civ. Proc. Rep. 160, 36 
 
 N. Y. S. R. 541, 13 X. Y. Supp. 97 144, 373
 
 Ixxvi TABLE OF CASES CITED. 
 
 Hurd, Re, 6 Misc. 171, 31 Abb. N. C. 109, 56 N. Y. S. R. 694, 26 N. Y. 
 
 Supp. 893 497, 500 
 
 V. Callahan, 5 Redf. 393, 9 Abb. N. C. 374 276 
 
 V. Farmers' Loan & T. Co. 16 N. Y. Week. Dig. 480 348, 359 
 
 Hurley v. Brown, 55 App. Div. 8, 67 N. Y. Supp. 279 451, 462 
 
 Hurry v. Coffin, 11 Daly, 180, 2 N. Y. Civ. Proc. Rep. 319 304 
 
 Hussey v. Culver, 30 N. Y. S. R. 836, 9 N. Y. Supp. 193, Affirmed 130 
 
 N. Y. 681, 29 N. E. 1035 62 
 
 Husson, Re, 26 Hun, 130, 62 How. Pr. 358 49 
 
 Husted V. Thomson, 26 Misc. 548, 91 N. Y. S. R. 558, 57 N. Y. Supp. 
 
 558 20, 43 
 
 V. Thompson, 38 App. Div. 315, 57 N. y. Supp. 9 378, 383 
 
 V. Van Ness, 1 App. Div. 120, 72 N. Y. S. R. 28, 36 N. Y. Supp. 
 
 1043 132, 394 
 
 V. Van Ness, 158 N. Y. 104, 52 N. E. 645 132 
 
 Hutchinson, Re, 84 Hun, 563, 66 N. Y. S. R. 149, 32 N. Y. Supp. 869. . 265 
 
 266, 269 
 
 Hutson V. Weld, 38 Hun, 142, 22 N. Y. Week. Dig. 572 215, 216, 217 
 
 Hyland v. Carpenter, 20 N. Y. Week. Dig. 261 251 
 
 Hyman v. Hauff, 138 N. Y. 48, 51 N. Y. S. R. 731, 33 N. E. 735 145 
 
 HjTies V. Campbell, 60 Hun, 391, 39 N. Y. S. R. 874, 15 N. Y. Supp. 506, 224 
 V. ilcDermott, 14 Daly, 104, 3 N. Y. S. R. 582 230, 38& 
 
 I. 
 
 Imhoff V. Wurtz, 9 N. Y, Civ. Proc. Rep. 48 71 
 
 Importers' & Grocers' Exchange, Re, 15 Daly, 419, 8 N. Y. Supp. 322. . . 309 
 Inderlied v. Whaley, 4 Silv. Sup. Ct. 29, 17 N. Y. Civ. Proc. Rep. 377, 
 
 26 N. Y. S. R, 7, 7 N. Y. Supp. 74 90 
 
 Ingersoll v. Bostmck, 22 N. Y. 425 488 
 
 Ingraham, Re, 35 Misc. 577, 72 N. Y. Supp. 62 274 
 
 Innes v. Purcell, 1 Hun, 318, 2 Tliomp. & C. 538, 541 504 
 
 Interior Conduit & Insulation Co. v. Alexander, 27 Misc. 598, 59 N. Y. 
 
 Supp. 126 423 
 
 Ireland v. Metropolitan Elev. R. Co. 8 N. Y. S. R. 127 64, 66 
 
 Irving V. De Kay, 9 Paige, 521 266 
 
 V. Garrity, 13 Abb. N. C. 182, 4 N. Y. Civ. Proc. Rep. 105. . .330, 3.38 
 Irwin V. Curie, 56 App. Div. 514, 67 N. \^ Supp. 380 12 
 
 V. Deyo, 2 Wend. 285 477, 478 
 
 V. O'Connor, 15 N. Y. Week. Dig. 124 399 
 
 Isaacs V. Cohen, 86 Hun, 119, 2 N. Y. Anno. Cas. 98, 67 N. Y. S. R. 22, 
 
 33 N. Y. Supp. 1 88 161 
 
 V. Now York Pla.stor Works, 11 Jones & S. 397, 4 Abb. N. G. 4. . 454
 
 TABLE OF CASES CITED. Ixxvii 
 
 Isaacsohn v. Isaacsohn, 3 Month. L. Bull. 73 182 
 
 Iselin V. Graydon, 26 How. Pr. 95 387 
 
 V. Smith, 62 Hun, 221, 16 N. Y. Supp. 683 78 
 
 Isola V. Weber, 12 App. Div. 267, 42 N. Y. Supp. tiiS 453 
 
 Israel v. Israel, 28 Misc. 57, 59 N. Y. Supp. 800 175 
 
 V, Metropolitan R. Co. 10 Misc. 722, 64 N. Y. S. R. 638, 31 N. Y. 
 
 Supp. 816 366, 372 
 
 J. 
 
 Jack T. Central Cross Town R. Co. 28 N. Y. Week. Dig. 98 324 
 
 V. Rohie, 4S Hun, 181, 15 N. Y. S. R. 605 223, 239 
 
 Jackett V. Judd, 18 How. Pr. 385 6, 492 
 
 Jacks V. Darrin, I Abb. Pr. 232 299 
 
 Jackson v. Figaniere, 15 How. Pr. 224 387 
 
 V. Lynch, 32 How. Pr. 93 160 
 
 V.Rochester, 124 N. Y. 624, 3 Silv. Ct. App. 341, 35 N. Y. S. R. 
 
 73, 26 N. E. 326 459 
 
 Jackson ex deni. Allen v. Carpenter, 3 Cow. 22 428 
 
 Clark V. Clark, 1 Cow. 140 429 
 
 Livingston v. Edwards, 1 Cow. 138 429 
 
 Livingston v. Thurston, 3 Cow. 342 93 
 
 Pinkney v. Pell, 19 Johns. 270 91 
 
 Williamson v. Miller, 3 Cow. 57 427 
 
 Jacob V. Haefelien, 54 App. Uiv. 570, 66 N. Y. Supp. 1007 95 
 
 Jacob Hoffman Brewing Co. v. Volpe, 4 Misc. 261, 23 N. Y. Supp. 812. . 486 
 
 Jacobs V. Hooker, 1 Barb. 71 59 
 
 Jocobsohn v. Belmont, 7 Bosw. 14 94 
 
 Jacques v. Elmore, 7 Hun, 675 268 
 
 Jacquin v. Jacquin, 36 Hun, 378, 2 How. Pr. N. S. 206, 7 N. Y. Civ. 
 
 Proc. Rep. 327 179, 181, 513 
 
 Jaffray v. Goldstone, 62 Hun, 52, 41 N. Y. S. R. 901, 16 N. Y. Supp. 
 
 430 85, 86 
 
 James, Re, 78 Hun, 121, 60 N. Y. S. R. 184, 28 N. Y. Supp. 992 272 
 
 Janos V. Snmstag, 31 Misc. 790, 65 N. Y. Supp. 223 307 
 
 Jeffards v. Brooklyn Heights R. Co. 49 App. Div. 45, 63 N. Y. Supp. 
 
 530 27 
 
 Jenkins v. Adams, 22 Hun, 600 15 
 
 Jenkinson v. Harris, 27 Misc. 714, 59 N. Y. Supp. 548 252, 253 
 
 Jermain v. Booth, 1 Denio, 639 114 
 
 V. Lake Sliore & M. S. R. Co. 5 Month. L. Bull. 58 438 
 
 V. Lake Shore & M. S. R. Co. 31 Hun, 558 357, 451 
 
 Jetter, Re, 78 N. Y. 601 171
 
 Ixxviii TABLE OF CASES CITED. 
 
 Jewett V. Woodward, 1 Edw. Ch. 200 220 
 
 Jobbitt V. Giles, 10 N. Y. Week. Dig. 523 424 
 
 Johanson v. New York, 71 App. Div. 561, 76 N. Y. Supp. 119 13 
 
 John Church Co. v. Dorsey, 38 Misc. 542, 77 N. Y. Supp. 1005 415- 
 
 Johnson, Re, 18 Misc. 498, 42 N. Y. Supp. 1074 190 
 
 Re, 10 Daly, 123 220, 222, 224 
 
 V. Brannan, 5 Johns. 268 296 
 
 V. Carnlcy, 10 N. Y. 570, 61 Am. Dec. 762 488 
 
 V. Chappell, 7 Daly, 43 493 
 
 V. Farrell, 10 Abb. Pr. 384 287, 437 
 
 V. Lord, 35 App. Div. 325, 54 N. Y. Supp. 922 467 
 
 V. Metropolitan Street R. Co. 56 App. Div. 286, 9 N. Y. Anno. 
 
 Cas. 70, 67 N. Y. Supp. 855 321 
 
 V. Myers, 103 N. Y. 666, 1 Silv. Ct. App. 209, 25 N. Y. Week. 
 
 Dig. 75, 3 N. Y. S. R. 655, 9 N. E. 55 245, 250 
 
 V. Sagar, 10 How. Pr. 552 129, 288 
 
 V. Shelter Island Grove & Camp Meeting Asso. 122 N. Y. 330, 33 
 
 N. Y. S. R. 514, 25 N. E. 484 371, 372 
 
 V. Shelter Island Grove & Camp Meeting Asso. 47 Hun, 374, 28 
 
 N. Y. Week. Dig. 59, 14 N. Y. S. R. 576 380 
 
 V. Weir, 36 Misc. 737, 74 N, Y. Supp. 358 153 
 
 \. Yeomans, 8 How. Pr. 140 169 
 
 Johnston v. Catlin, 57 N. Y. 652 283 
 
 V. Green, 3 Abb. Pr. N. S. 342 342 
 
 v.New York Elev. R. Co. 10 Miso. 136. 62 N. Y. S. R. 491, 30 
 
 N. Y. Supp. 920 508 
 
 Johnstone v. Conner, 13 N. Y. Civ. Proc. Rep. 19, 10 N. Y. S. R. 702. . . 395 
 
 Johnstown v. Frederick, 35 App. Div. 44, 54 N. Y. Supp. 412 197 
 
 Jones, Re, 4 Sandf. Ch. 015 262 
 
 v. Butler, 83 Hun, 91, 1 N. Y. Anno. Cas. 278, 63 N. Y. S. R. 814, 
 31 N. Y. Supp. 401, Reversed on other groimds, 146 N. Y. 
 
 55, 65 N. Y. S. R. 772, 41 N. E. 633 102 
 
 V. Case, 38 How. Pr. 349 84, 483 
 
 V. Cook, 11 Hun, 230 59 
 
 v. Eastman, 11 Abb. N. C. 1 14 44 
 
 V. Emery, 1 N. Y. Civ. Proc. Rep. 33S 6, 111 
 
 V. Gray, 13 Wend. 280 161 
 
 v. Jones, 71 Hun, 519, 54 N. Y. S. R. 885, 24 N. Y. Supp. 103. . . 442 
 V. Metropolitan Elev. R. Co. 27 Jones & S. 437, 14 N. Y. Supp. 
 
 632 94, 114 
 
 V. Xewton, 47 K Y. S. R. 217, 19 N. Y. Supp. 780 407 
 
 V. Newton, 33 N. Y. S. R. 823, 11 N. Y. Supp. 510 498 
 
 V. Savage, 10 Wend. 621 320
 
 TABLE OF OASES CITED. IxxJS 
 
 Jones V. Sherman, 18 Abb. N. C. 4G1, 11 N. Y. Civ. Proc. Rep. 416, 
 
 8 N. Y. S. R. 344 216, 217, 218 
 
 V. Sherman, 8 N. Y. S. R. 344 462 
 
 V. Tienken, 10 N. Y. Week. Dig. 219 74 
 
 V. Underwood, 18 How. Pr, 532 6 
 
 V. Wakefield, 21 N. Y. Week. Dig. 287 350 
 
 Jordan v. Hess, 54 N. Y. S. R. 326, 24 N. Y. Supp. 489 364 
 
 Jordon v. National Shoe & Leather Bark, 13 Jones & S. 423 62 
 
 V. Sherwood, 10 Wend. 622 421 
 
 Joseph V. Raflf, 75 App. Div. 447, 78 N. Y. Supp. 310 336 
 
 V. Makley, 73 App. Div. 157, 76 N. Y. Supp. 663 336 
 
 Joyce V. Cooper, 17 Jones & S. 115 343 
 
 Juda V. Stagg, 22 Wend. 641 241 
 
 Judd V. Ensign, 6 Barb. 258 290 
 
 Judson V. Gray, 11 N. Y. 403 53, 500 
 
 V. Olean, 40 Hun, 158 171 
 
 Julio V. Ingalls, 15 Abb. Pr. 429 428 
 
 K. 
 
 Kahn v. Coen, 31 Abb. N. C. 478, 62 N. Y. S. R. 107, 30 N. Y. Supp. 
 
 347 489, 492- 
 
 V.Schmidt, 83 llun, 541, 65 N, Y. S. R. 190, 32 N. Y. Supp. 
 
 33 131, 355, 364 
 
 V. Singer Mfg. Co. 18 Misc. 568, 42 N. Y. Supp. 461 339, 34a 
 
 Kaliski v. Pelham Park R. Co. 20 N. Y. Civ. Proc. Rep. 315, 15 N. Y. 
 
 Supp. 519 130 
 
 Kalt V. Lignot, 3 Abb. Pr. 33, Affirmed in 3 Abb. Pr. 190 125 
 
 Kamermann v. Eisner & M. Co. 23 Misc. 330, 51 N. Y. Supp. 210. . .314, 315 
 Kane v. Metropolitan Elev. R. Co. 15 Daly, 366. 28 N. Y. S. R. 399, 7 
 
 N. Y. Supp. 653 466, 495 
 
 V. Van Vranken, 5 Paige, 62 59 
 
 Kanna v. Kester, 15 N. Y. Week. Dig. 119 406 
 
 Katz V. Diamond, 16 Misc. 577, 74 N. Y. S. R. 174, 38 N, Y. Supp. 
 
 7C6 301, 405 
 
 Kaufman v. Keeman, 13 N. Y. Civ. Proc. Rep. 225 42 
 
 Kautz V. Vandenburgh, 77 Hun, 591, 60 N. Y. S. R. 496, 28 N. Y. Supp. 
 
 1046 280, 281, 285 
 
 Kayser v. Arnold, 16 N. Y. S. R. 105, 1 N. Y. Supp. 412 149 
 
 Keane v. Kcane, 86 Hun, 159, 66 N. Y. S. R. 800, 33 N. Y. Supp. 250. . 24 
 
 Kearney v. McKeon, 85 N. Y. 136 498 
 
 Kearney's Case, 13 Abb. Pr. 459, 22 How. Pr. 309 215 
 
 Keating v, Anthony, N. Y. Code Rep. N. S. 233 472
 
 IXXX TABLE OF CASES CITED. 
 
 Keeler, Re, 2 Connoly, 45, 23 Abb. N. C, 376, 18 N. Y. Civ. Proc. Rep. 
 
 30, 26 N. Y. S. R. 90, 7 N. Y. Supp. 199 257, 258 
 
 V. Barrett's P. & H. Dyeing Establishment, 22 Jones & S. 550, 18 
 
 Abb. N. C. 459, 12 N. Y. Civ. Proc. Rep. 121 448 
 
 V. Koelcr, 51 Hun, 505, 21 N. Y. S. R. 666, 4 N. Y. Supp. 5S0. . 15 
 
 38, 39 
 
 V. Keeler, 102 N. Y. 30, 1 N. Y. S. R. 673, 6 N. E. 678 438 
 
 V. Van Wie, 49 How. Pr. 97 296 
 
 Keely v. West, 4 Jones & S. 304 293 
 
 Keeney v. Treadwell, 71 App. Div. 521, 75 N. Y. Supp. 1097 46 
 
 Keese v, Wyman, 8 How. Pr. 88 281 
 
 Kehoe v. Miller, 10 Abb. N. C. 393, note 15 
 
 Keil v. Rice, 24 How. Pr. 228 96 
 
 Keim v. Keira, 43 App. Div. 88, 59 N. Y. Supp. 366 503 
 
 Keiny v. Infrraliam, 66 Barb. 250 114 
 
 Keller v. Shrady, 30 Misc. 833, 61 N. Y. Supp. 112;J 100 
 
 V. TowTistnd, 2 Abb. N. C. 432 313 
 
 V. Van Wie, 49 How. Pr. 97 128 
 
 Kelley v. Kremer, 74 App. Div. 456, 77 N. Y. Supp. 515 336 
 
 V. McMahon, 37 Hun, 212 135 
 
 Kellingger v. Roe, 7 Paige, 362 272 
 
 Kellogg V. Baker, 15 Abb. Pr. 283 243 
 
 V. Og.len, 27 App. Div. 214, 50 N. Y. Supp. 650 251 
 
 V. Stoddard, 40 Misc. 92, 81 N. Y. Supp. 271 179 
 
 Kelly, Re, J2 Daly, 110 343 
 
 Re, 59 N. Y. 595 62 
 
 V. Bonesteel, 29 Hun, 546 283 
 
 V. Chenango Valley Sav. Bank, 45 N. Y. Supp. 658 348, 362, 367 
 
 V. Fraxier, 27 Hun, 314, 2 N. Y. Civ. Proc. Rep. 322 92 
 
 V. Kelly, 77 App. Div. 519, 78 N. Y. Supp. 918 313 
 
 V. Manhattan Beach R. Co. 81 N. Y. 233 112 
 
 V. New York & M. B. R. Co. 1 Month. L. Bull. 43, Affirmed in 
 
 19 Hun, 363 119 
 
 v. Plum, 50 How. Pr. 236 440 
 
 V. West, 4 Jones & S. 304 290 
 
 Kelsey v. Sargent, 40 Hun, 150, 2 N. Y. S. R. 669 405 
 
 Kemp, Re, 7 App. Div. 609, 40 N. Y. Supp. 1144 276 
 
 Kemp V. Union Gas & Oil Stove Co. 22 N. Y. Civ. Proc. Rep. 190, 46 
 
 N. Y. S. R. 67, 19 N. Y. Supp. 959 124, 126, 127 
 
 Kemple v. Darrow, 7 Jones & S. 447 449 
 
 Kenna v. Atlas S. S. Co. 19 Abb. N. C. 265 79, 82 
 
 Kennedy v. Carrick, 18 Misc. 38, 40 N. Y. Supp. 1127 11 
 
 v. Harlem R. Co, 3 Duer, 659 93
 
 TABLE OF CASKS CITED. Ixxxi 
 
 Kennedy v. McKone, 10 App. Div. 97, 41 N. Y. Supp, 577 133, 290 
 
 V. Steele, 35 Misc. 105, 71 N. Y. Supp. 237 32, 37 
 
 V.Wood, 54 Hun, 14, 17 N. Y. Civ. Proc. Rep. 375, 26 N. Y. 
 
 S. R. 34, 7 N. Y. Supp. 90 90, 91 
 
 Keeney v. Tredwell, 71 App. Div. 521, 75 N. Y. Supp. 1097 40 
 
 V. First Nat. Bank, 8 N. Y. Civ. Proc. Rep. 398 53 
 
 V. Livery Stable Keepers' Asso. 89 Hun, 190, 69 N. Y. S. R. 237, 
 
 35 N. Y. Supp. 8 298, 299 
 
 Kent V. Crouse, 5 N. Y. S. R. 141 309 
 
 V. Rockwell, 89 Hun, 88, G9 N. Y. S. R. 13, 34 N. Y. Supp. 1041 . . 51 
 
 Kentish v. Tathani, 6 Hill, 372 429 
 
 Ketchmn v. Ketchum, 4 Cow. 87 237 
 
 Keyser v. Kelly, 11 Jones & S. 22 245, 246 
 
 Kiah V. Grenier, 1 Thomp. & C. 388 447 
 
 Kiefor v. Grand Trunk R. Co. 37 N. Y. S. R. 306, 13 N. Y. Supp. 
 
 860 76, 4.34 
 
 Kiernan v. Agricultural Ins. Co. 3 App. Div. 26, 74 N. Y. S. R. 417, 
 
 37 N. Y. Supp. 1070 279, 442 
 
 Kilburn v. Lowe, 37 Hun, 237 3, 119, 392 
 
 Killan, Re, 66 App. Div, 312, 72 N. Y. Supp, 714 257 
 
 Killick, Re, 4 Silv. Sup, Ct. 89, 26 N. Y. S. R. 763, 7 N. Y, Supp. 360. . 209 
 
 210 
 
 Kilmer v. Evening Herald Co. 70 App. Div. 291, 75 N, Y. Supp. 243. . . 86 
 
 Kilts V, Seeber, 10 How, Pr, 270 280 
 
 Kimberly v. Goodrich, 22 How, Pr, 424 231, 334 
 
 V, Stewart, 22 How. Pr. 281 231, 331, 333, 334 
 
 King, Re, 168 N. Y. 53, 60 N. E. 1054 13, 32 
 
 V. Brush, 5 Alb, L. J, 137 449 
 
 V, Duntz, 11 Barb. 191 146 
 
 V, Poole, 36 Barb, 242 404 
 
 V. Randolph, 28 App. Div, 25, 50 N, Y, Supp. 902 172 
 
 V. Todd, 21 N. Y. Civ. Proc. Rep. 114, 27 Abb. N. C. 149, 15 N. Y. 
 
 Supp, 156 242, 247 
 
 Kingslaud v. New York, 52 Hun, 98, 16 N, Y, Civ, Proc. Rep. 323, 22 
 
 N. Y. S, R, 497, 4 N. Y. Supp. 685 353, 358 
 
 Kinne v, Kinne, 2 Thomp. & C. 393 Ill 
 
 Kinsey v, Kinsey, 7 Daly, 460 183 
 
 Kipp V, Rapp, 7 N, Y. Civ, Proc. Rep, 385, 2 How, Pr. N. S. 169. .20, 35, 38 
 
 Kirby v. Kirby, 1 Paige, 565 44 
 
 V. Sisson, 1 Wend. 83 91 
 
 Kirk V, Blashfield, 6 Thomp. & C. 509 124 
 
 Kirsch v. Kirsch, 45 N. Y, S. R. 287, 18 N. Y. Supp. 447 ISO 
 
 Kittle V. Kittle, 8 Daly, 72 1 SO
 
 Ixxxii TABLE OF CASES CITED. 
 
 Kleinpeter v. Kleinpeter, 2 N. Y. Civ. Proc. Rep. 21 S30 
 
 Kley V. Healy, 18 N. Y. S. R. 174, 2 N. Y. Supp. 231 477, 485 
 
 Klinck V. Kelly, 15 Abb. Pr. N. S. 135 16a 
 
 Kloppenberg v. Neefus, 4 Sandf. U55 511 
 
 Knupp. Re, 85 N. Y. 284 1 1, 32, 47, 48, 52 
 
 V. Brown, 45 N. Y. 207 450 
 
 V. Curtiss, 9 Wend. 60 94 
 
 V. Hammersley, 13 N. Y. Civ. Proc. Rep. 258 382. 
 
 V. Murphy, 20 App. Div. 83, 40 N. Y. Supp. 1047 511 
 
 v.New York Elev. R. Co. 4 Misc. 408, 53 N. Y. S. R. 571, 24 
 
 N. Y. Supp. 324 466 
 
 Knauth v. Weatlieim, 2G Abb. N. C. 369, 14 N. Y. Supp. 391 361 
 
 Kneering v. Lennon, 3 Misc. 247, 51 N. Y. S. R. 907, 22 N. Y. Supp. 
 
 775 103 
 
 Knight V. Beach, 7 Abb. Pr. N. S. 241 290, 292 
 
 Knoch V. Funke, 28 Abb. N. C. 240, 22 N. Y. Civ. Proc. Rep. 161, 47 
 
 N. Y. S. R. 503, 19 N. Y. Supp. 242 31ft 
 
 Knoflf V. Ellsworth, 8 N. Y. S. R. 5G8 432 
 
 Knothe v. Kaiser, 2 Hun, 515, 5 Thomp. & C. 4 409 
 
 Knowlton v. Pierce, 41 How. Pr. 301 393- 
 
 Koch v. Keller, 2 Month. L. Bull. 97 33a 
 
 v. Koch, 1 City Ct. Rep. 255 392 
 
 V. Purcell, 13 Jones & S. 102 146 
 
 Keck V. Kock, 42 Barb. 575 176 
 
 Koehler v. Brady, 22 App. Div. 624, 47 N. Y. Supp. 984 36S 
 
 Kohn V. Manhattan R. Co. 8 Misc. 421, 59 N. Y. S. R. 34, 28 N. Y. 
 
 Supp. 663 477, 478, 480^ 
 
 Kokomo Straw Board Co. v. Sachs, 4 Silv. Sup. Ct. Rep. 150, 17 N. Y. 
 
 Civ. Proc. Rep. 432, 26 N. Y. S. R. 589, 7 N. Y. Supp. 179. . 318 
 
 Koon V. Thurman, 2 Hill, 357 46^ 
 
 Kopp, Re, 15 N. Y. Civ. Proc. Rep. 282, 17 N. Y. S. R. 832, 2 N. Y. 
 
 Supp. 405 265 
 
 Kopper v. Willis, 9 Daly, 460 2 
 
 Kortright v. Cady, 21 N. Y. 343 . 2'JJ. 
 
 Krafft v. Wilson, 8 N. Y. Civ. Proc. Rep. 359, 3 How. Pr. X. S. 18 2, 394 
 
 Krakauer, Re, 33 Misc. 674, 68 N. Y. Supp. 93.'i 35 
 
 Kraushaar v. Meyer, 72 N. Y. 602 364 
 
 Kreitz v. Frost, 55 Barb. 474 134 
 
 Krekeler v. Ritter, 62 N. Y. 375 364 
 
 Kress v. Morehead, 26 N. Y. Week. Dig. 410, 8 N. Y. S. 11. 858 216 
 
 Krill v. Brownell, 40 Hun, 72 245, 253 
 
 Krom v. Kurshecdt, 19 Jones & S. 119. 6 N. Y. Civ. Proc. Rep. 371, 
 
 1 How. Pr. N. S. 38 320
 
 TABLE OF CASES CITED. Ixxxiii 
 
 Krone v. Klotz, 3 App. Div. 587, 38 N. Y. Supp. 225 11 
 
 Kronsberg v. Mayer, 20 N. Y. Civ. Proe. R»^p. 80, 15 N. Y. Supp. 328. . . 483 
 
 Krum V. Steele, 7 N. Y. Week. Dig. 472 350, 361 
 
 Kummer v. Christopher & T. Street R. Co, 12 Misc. 387, 24 N. Y. Civ. 
 
 Proc. Rep. 404, 67 N. Y. S. R. 404, 33 N. Y. Supp. 581. .99, 484 
 
 487, 507 
 V. Christopher & E. T. Street R. Co. 3 Misc. 100, 51 N. Y. S. R. 
 
 770, 22 N. Y. Supp. 693 93 
 
 lAblache v. Kirkpatrick, 8 N. Y. Civ. Proc. Rep. 340, 3 How. Pr. N. S. 
 
 61 38, 126 
 
 Lachenmeyer v. Lachenmeyer, 65 How. Pr. 422 21, 182 
 
 La Farge v. Chilson, 3 Sandf. 752, 1 N. Y. Code Rep. N. S. 159 285 
 
 V. Kneeland, 7 Cow. 461 94 
 
 Lafond v. Jetzkowitz, 17 Abb. N. C. 87 484 
 
 Lafrentz v. Mass, 23 N. Y. Civ. Proc. Rep. 238, 26 N. Y. Supp. 739 330 
 
 Lafron v. Woram, 5 Hill, 373 80 
 
 hahey v. Kortright, 26 Jones & S. 576, 19 N. Y. Civ. Proc. Hop. 80, 
 
 .32 N. Y. S. R. 112, 11 N. Y. Supp. 47 360, 370 
 
 T.aird V. Arnold, 42 Hun, 136 276 
 
 V. Littlelield, 34 App. Div. 43, 53 N. Y. Supp. 1US2 375 
 
 Lake Shore & M. S. R, Co. Re, 65 Hun, 538, 48 N. Y. S. R. 360, 20 
 
 N, Y. Supp. 573 199 
 
 V. Roach, 80 N. Y. 339 5 
 
 Lamb, Re, 22 N. Y. S. R. 351, 5 N. Y. Supp. 505 264 
 
 Re, 50 N. Y. S. R. 343, 21 N. Y. Supp. 343 262 
 
 Lamoreux v. Morris, 4 How. Pr. 245 54 
 
 Lamphere v. Lamphere, 54 App. Div. 17, 66 N. Y. Supp. 270 254 
 
 Landon v. Van Etten, 57 Hun, 122, 19 N. Y. Civ. Proc. Rep. 78, 32 
 
 N. Y. S. R. 439, 10 N. Y. Supp. 802 288, 365 
 
 V. Walmuth, 76 Hun, 271, 59 N. Y. S. R. 87, 27 N. Y. Supp. 717.. 308 
 Jjandrigan v. Brookljni Heights R. Co. 23 App. Div. 43, 48 N. Y. Supp. 
 
 454 93 
 
 Landsbergcr v. Magnetic Teleg. Co. 8 Abb. Pr. 35 127 
 
 Lane v. Van Orden, 11 Abb. N. C. 228, 63 How. Pr. 237 102, 359, 395 
 
 Langdon v. Guy, 91 N. Y. 6C0 110 
 
 Langley v. Sixth Ave. R. Co. 16 Jones & S. 542 93 
 
 v. Warner, 3 N. Y. 327 55 
 
 Lansing v. Lansing, 41 How. Pr. 248, 4 Lans. 377 178, 181, 513 
 
 J^nz v. Trout, 46 How. Pr. 136 
 
 Lara^mie, Re. 2 Silv. Sup. Ct. 539, 24 N. Y. S. R. 702, 6 N. Y. Supp. 175, 261
 
 Ixxxiv TABLE OF CASES CITKI). 
 
 Larkin v. Steele, 25 Hun, 254 439 
 
 J.arkins v. Maxon, 103 N. Y. 680, 1 Silv. Ct. App. 215, 11 N. Y. Civ. 
 Proc. Rep. 298, 25 N. Y, Week. Dig. 39, 3 N. Y. S. R. 642, 9 
 
 N. E. 56 245, 253 
 
 Lamer, Re, 170 N. Y. 7, 62 N. E. 761 214 
 
 Re, 68 App. Div. 321, 74 N. Y. Supp. 70 209 
 
 Re, 20 N. Y. Week. Dig. 73 11 
 
 Lashway v. Young, 76 App. Div. 177, 78 N. Y. Supp. 366 94 
 
 Latham v. Bliss, 13 How. Pr. 416, 6 Duer, 661. 397, 492 
 
 Lattimer v. Hill, 8 Hun, 171 406 
 
 V, Livermore, 72 N. Y, 174 372 
 
 LauflFer v. Bast, 34 Misc. 408, 69 N. Y. Supp. 874 304 
 
 Launitz v. Barnum, 4 Sandf. 637 113 
 
 l.auria v. Capobianco, 39 Misc. 441, 80 N. Y. Supp. 203 219 
 
 Law V. Jackson ex dem. Lansing, 2 Wend. 209 392 
 
 V. McDonald, 9 Hun, 23, 3 N. Y. Week. Dig. 544 109, 136, 392 
 
 Lawrence v. Davis, 7 How. Pr. 354 351 
 
 V. Lindsel, 70 N. Y. oCG 2(iS 
 
 V. Miller, 13 N. Y. Week. Dig. 124 291 
 
 V. Townsend, 88 N. Y. 24 32 
 
 V. Wilson, 86 App. Div. 472 92 
 
 Lawson v. Hill, 66 Hun, 288, 49 N. Y. S. R. 251, 20 N. Y. Supp. 904. . 90 
 
 V. Reilly, 13 N. Y. Civ. Proc. Rep. 290 158 
 
 Lawton v. Sager, 11 Barb. 349 145 
 
 Layman v. New York Bank Note Co. 20 N. Y, Supp. 431 82 
 
 Lazelle, Re, 16 Misc. 515, 40 N. Y. Supp. 343 10 
 
 Learn v. Currier, 15 Hun, 184, Affirmed in 76 N. Y. 625 109 
 
 Leary, Re, 30 Hun, 394 164 
 
 Lee V. Lee, 4 N. Y. Civ. Proc. Rep. 321, 66 How. Pr. 207 182 
 
 V. Homer, 37 Him, 634 414 
 
 v. VanVoorhis, 78 Hun, 575, 61 N. Y. S. R. 220, 29 N. Y. Supp. 
 
 571 32 
 
 Leftwich v. Clinton, 4 Lans. 176 447 
 
 Leftwick v. Clinton, 26 How. Pr. 26 316, 317 
 
 Lemen v. Wood, 16 How. Pr. 285 244 
 
 Lennon v. Macintosh, 19 Abb. N. C. 175 486, 487 
 
 Leonard v. Davenport, 58 How. Pr. 384 154 
 
 V. Manard, 1 Hall, 200 50 
 
 Leopold V. Epstein, 54 App. Div. 133, 66 N. Y. Supp. 414 418 
 
 Leprell v. Kleinschmidt, 112 N. Y. 364, 21 N. Y. S. R. 30, 19 N. E. 812, 110 
 
 Le Roy, Re, 35 App. Div. 177, 55 N. Y. Supp. 149 199 
 
 V. BroAvne, 54 Hun, 584, 18 N. Y. Civ. Proc. Rep. 125, 28 N. Y. 
 
 S. R. 210, 8 N. Y. Supp. 82 117, 442 
 
 V. Browne. 10 N. Y. Supp. 328 134
 
 TABJ.E OF CASES CITED. IxXXV 
 
 Leslie v. Walrath, 46 Hun, 18, 26 N. Y. Week. Dig. 4o0,, 9 N. Y. S. R. 
 
 652 279 
 
 Lesster v. Lawyers' Surety Co. 29 Misc. 779, 02 N. Y. Supp. 430 458 
 
 Lester v. Lawyers' Surety Co. 50 App. Div. 181, 30 N. Y. Civ. Proc. 
 
 Rep. 388, 63 N. Y. Supp. 804 444 
 
 Levene v. Hahner, 62 App. Div. 195, 70 N. Y. Supp. 913 2, 307 
 
 Leventritt, Re, 40 App. Div. 429, 58 N. Y. Supp. 256 220 
 
 Levin v. Haas, 25 Hun, 260 402 
 
 Levis V. Burke, 51 Hun, 71, 20 N. Y. S. R. 78!J, 3 x\\ Y. Supp. 386. .12, 16 
 
 Levy, Re, 1 Abb. N. C. 177 220, 222, 224 
 
 Re, 10 Daly, 391, 2 N. Y. Civ. Proc. Rep. 108 320 
 
 V. Mcirowitz, 16 Misc. 284, 38 N. Y. Supp. 123 328 
 
 Levy's Accounting, 1 Abb. N. C. 182 220 
 
 Lewis V, Davis, 8 Daly, 185 428 
 
 V. Day, 10 N. Y. Week. Dig. 49 15 
 
 V. Farrell, 14 Jones & S. 358 322, 324 
 
 v. Germond, 1 Paige, 300 82 
 
 v. Hake, 42 Hun. 542, 4 N. Y. S. R. 676 223 
 
 V. Hoffman, 5 N. Y. Civ. Proc. Rep. 141 219 
 
 V. Hosey, 26 Misc. 789, 56 N. Y. Supp. 200 307 
 
 V. Irving F. Ins. Co. 15 Abb. 140 450 
 
 Lexington Ave., Re, 30 App. Div. 602, 52 N. Y. Supp. 203 37, 47 
 
 Lillis V. O'Connor, 49 How. Pr. 497, Affirmed in 8 Hun, 280 118 
 
 v. O'Connor, 8 Hun, 280 162 
 
 Lima & H. F. R. Co., Re, 68 Hun, 252, 52 N. Y. S. R. 186, 22 N. Y. 
 
 Supp. 967 200 
 
 Lindblad v. Lynde, 81 App. Div. 603, 81 N. Y. Supp. 351 63 
 
 Linderman v. Foote, 5 N. Y. Civ. Proc. Rep. 154, note 43 
 
 Lindslay v. Deafendorf, 43 How. Pr. 90 82, 240, 241, 395, 396 
 
 Link V. Mack, 25 Misc. 615, 56 N. Y. Supp. 115 291 
 
 Linner v. Crouse, 61 Barb. 289 331 
 
 Lintner v. Long Island Mut. F. Ins. Co. 22 Misc. 305, 5 N. Y. Anno. 
 
 Cas. 281, 49 N. Y. Supp. 1105 335 
 
 Lippman v. Joelson, 1 N. Y. Code Rep. N. S. 161 284 
 
 Lissberger v. Schoenberg Metal Co. 2 N. Y. City Ct. Rep. 158 378 
 
 Little, Re, 47 App. Div. 22, 62 N. Y. Supp. 27 310, 311 
 
 v. Lynch, 99 N. Y. 112, 1 N. E. 312 500 
 
 Livingston v, Gidney, 25 How. Pr. 1 300, 501 
 
 V. Vieille Montagne Zinc Min. Co. 4 Duer, 681, 2 Abb. Pr. 255. . 489 
 Livingston-Middleditch Co. v. New York College of Dentistry, 31 Misc. 
 
 259, 64 N. Y. Supp. 140 54 
 
 Ijoaners' Bank v. Nostrand, 21 Jones & S. 525 30 
 
 Local Pub. Co. v. Post, N. Y. Daily Reg., April 16, 1884 327
 
 IxXXvi TABLE OF CASES CITED. 
 
 Lochlin v. Casler, 52 How. Pr. 228 80, 84 
 
 Locke V. Covert, 42 Hun, 484, 6 N. Y. S. R. 55, 25 N. Y. Week. Dig. 288, 
 
 12 N. Y. Civ. Proc. Rep. 31 230, 311 
 
 Locklin v. Casler, 50 How. Pr. 43 116 
 
 V. Moore, 5 Lans. 307 293 
 
 Lockman v. Ellis, 58 How. Pr. 100 352 
 
 Lockport v. Fitts, 39 Hun, 221 12 
 
 Lockwood V. Salmon River Paper Co. 49 N. Y. S. R. 302, 20 N. Y. 
 
 Supp. 967 83, 84, 352 
 
 V. Waldorf, 91 Hun, 281, 70 N. Y. S. R. 855, 36 N. Y. Supp. 199, 120 
 Lofthouse, Re, 3 App. Div. 139, 74 N. Y. S. R. 468, 38 N. Y. Supp. 39. . 208 
 
 Loftus, Re, 41 N. Y. S. R. 357, 16 N. Y. Supp. 327 194, 434 
 
 Lo<?elininr v. New York Elev. R. Co. 5 x\pp. Div. 198, 38 N. Y. Supp. 1112, 450 
 
 Logue V. GJllick, 1 E. D. Smith, 398 292, 301 
 
 Long, Re, 39 N. Y. S. R. 892, 15 N. Y. Supp. 657 201 
 
 V. Hall, 3 Sandf. 729, N. Y. Code Rep. N. S. 114 320, 321 
 
 V. Olmstead, 3 Dem. 581 275 
 
 Longstreet v. Sa^yJeT, 219 N. Y. Civ. Proc. Rep. 16, 39 N. Y. S. R. 693, 
 
 15 N. Y. Supp. 608 315 
 
 Longyear v. Carter, 88 Hun, 513, 2 N. Y. Anno. Cas. 192, 68 N. Y. S. R. 
 
 533, 34 N. Y. Supp. 785 16 
 
 Lonsdale v. Lonsdale, 41 App. Div. 224, 58 N. Y. Supp. 532 173 
 
 Loper, Re, 32 Misc. 534, 67 N. Y. Supp. 329 189 
 
 Lorillard, Re, 25 N. Y. Week. Dig. 460 11 
 
 V. Barnard, 42 Hun, 545 11 
 
 Loring v. Morrison, 25 App. Div. 139, 5 N. Y. Anno. Cas. 151, 48 N. Y. 
 
 • Supp. 975 129, 463 
 
 Losee v. Bullard, 54 How. Pr. 319 491, 492 
 
 Lott V. Swezey, 29 Barb. 87 319 
 
 Lotti V. Krakauer, 1 N. Y. City Ct. Rep. 60, 1 N. Y. Civ. Proc. Rep. 
 
 312 441, 463 
 
 Lottimer v. Livermore, 6 Daly, 501 355 
 
 Loudon V. Loudon, 17 N. Y. Week. Dig. 477 178 
 
 Lough V. Romaine, 4 Jones & S. 332 94 
 
 Loughrill v. Downey, 27 N. Y. S. R. 51, 7 N. Y. Supp. 503 313 
 
 Louis V. Empire State Ins. Co. 75 Hun, 364, 23 N. Y. Civ. Proc. Rep. 
 
 295, 56 N. Y. S. R. 766, 27 N. Y. Supp. S3 102, 103 
 
 Lounsbury v. Sherwood, 53 App. Div. 318. 65 N. Y. Supp. 676. .L43, 245, 253 
 
 Lowerre v. Vail, 5 Abb. Pr. 227 82, 477 
 
 Lowman, Re, 1 Misc. 43, 22 Ivi. Y. Supp. 1055 259 
 
 Lownsbury v. Rathbone, 1 Wend. 283 58 
 
 Lowry v. Inman, 37 How. Pr. 286, Abb. Pr. N. S. 304 353
 
 TABLE OF CASES CITED, IxXXvii 
 
 Lozier v. Saratoga Gas & E. L. & P. Co. 59 App. Div. 390, G9 N. Y. 
 
 Supp. 247 361 
 
 Lucas V. Johnson, 6 How. Pr. 121 510 
 
 Ludeke, Re, 22 Misc. 67fi, 50 N. Y. Supp. 952 220, 224 
 
 Ludington v. Bell, 13 Jones & S. 513 80 
 
 V. Taft, 10 Barb. 447 133 
 
 Ludlow V. Hackett, 18 Johns. 252 80 
 
 Lultgor V. Walters, 64 Barb. 419 126 
 
 ■Lumbard v. Syracuse, B. & N. Y. R. Co. G2 N. Y. 200, 1 N. Y. Week. 
 
 Dig. 38 287, 288 
 
 Lund V. Broadhead, 41 How. Pr. 146 125, 126 
 
 Lupton V. Jewett, 1 Robt. 639, 19 Abb. Pr. 320 450 
 
 Lydd V. Kenny, 1 N. Y. Civ. Proc. Rep. (McCarty) 310 464 
 
 Lyman, Re, 48 App. Div. 275, 62 N. Y. Supp. 846 190 
 
 Re, 28 Misc. 408, 59 N. Y. Supp. 968 190 
 
 V. Murphy, 33 Misc. 349, 68 N. Y. Supp. 490 190 
 
 V. Young Men's Cosmopolitan Club, 38 App. Div. 220, 50 N. Y. 
 
 Supp. 712 439, 441, 481 
 
 Lynch v. Meyers, 3 Daly, 256 439 
 
 Lynk v. Weaver, 128 N. Y. 171, 28 N. E. 503 109, 114, 283 
 
 Lyon V. Belchford, 8 N. Y. Civ. Proc. Rep. 229 3G9 
 
 v. Clark, 8 N. Y. 148 412 
 
 V. Marshall, 1 1 Barb. 241 237, 238 
 
 V. Wilder, 24 Jones & S. 67, 28 N. Y. Week. Dig. 509, 16 N. Y. 
 
 S. R. 875, I N. Y. Supp. 421 319 
 
 liyon ex dem. Eden v. Wilkes, 1 Cow. 591 441 
 
 Ciyons V. Cahill, 12 N. Y. Civ. Proc. Rep. 72 333, 339 
 
 V. Connor, 53 App. Div. 475, 65 N. Y. Supp. 1085 93 
 
 V. Murat, 54 How. Pr. 23, 4 Abb. N. C. 13 342, 343, 426, 430 
 
 433, 434 
 
 M. 
 
 McAdams, Re, 1 9 Hun, 293 208 
 
 McAllen's Petition, 1 Month. L. Bull. 60 338 
 
 McBratney v. Rome, W. & O. R. Co. 17 Hun, 385, Affirmed in 13 N. Y. 
 
 Week. Dig. 535 24 
 
 V. Rome, W. & O. R. Co. 87 N. Y. 467 23 
 
 McBride v. Chamberlain, 56 N. Y. S. R. 431, 26 N. Y. Supp. 94 131, 133 
 
 242, 244 
 
 V. McBride, 55 Hun, 401, 8 N. Y. Supp. 448 181 
 
 V. McBride, 119 N. Y. 519, 30 N. Y. S. R. 78, 23 N. E. 10G5 177 
 
 McCall v. Frith, 2 N. Y. Civ. Proc. Rep. (Browne) 9 314 
 
 v. Frith, 4 N. Y. Civ. Proc. Rep. 102 319
 
 LxXXviii TABLE OF CASES ClTKl). 
 
 McCann v. Bradley, 15 How. Pr. 79 4, 24* 
 
 McCarter, Re, 94 N. Y. 558 26S. 
 
 McCarthy v. Innis, 61 Hun, 354, 21 N. Y. Civ. Proc. Rep. .S.'?.^. 40 N. Y. 
 
 S. R. 682, 15 N. Y. Supp. 855 390 
 
 V. McCartliy, 137 N. Y. 500, 33 N. E. 550, 51 N. Y. S. R. 276 174 
 
 175, 177, 383- 
 V. Wright, 56 Hun, 387, 31 N. Y. S. R. 371, 10 N. Y. Supp. 824. . 423- 
 
 McCarthy's Estate, 5 ^Niisc. 276, 25 N. Y. Supp. 9S7 277 
 
 McChesney v. Syracuse, 75 Hun, 503, 57 N, Y. S. R. 676, 27 N. Y. Supp. 
 
 508 157 
 
 McClare v. Lockard, 121 N. Y. 308, 24 N. E. 463, 31 N. Y. S. R. 69. . . . 14 
 McClure v. Niagara County, 3 Abb. App. Dec. 83, 4 Abb. Pr. N. S. 202, 
 
 4 Trans. App, 275 171 
 
 McComb V. Kellogg, 13 N. Y. Civ. Proc. Rep. 150, 28 N. Y, Week. Dig. 
 
 154 85, 483 
 
 McConnell v, Manhattan Constr, Co. 16 N. Y, Civ. Proc. Rep. 310, 21 
 
 N. Y. S. R. 870, 4 N. Y. Supp. 226 367, 374 
 
 McCorraick, Re, 40 App. Div. 73, 57 N. Y. Supp. 548 273 
 
 McCulloch V. Dobson, 39 N, Y. S. R. 908, 15 N. Y. Supp. 602 359 
 
 v. Dobson, 133 N. Y. 114, 44 N. Y. S. R. 19, 30 N. E. 641 364 
 
 V. Vibbard, 14 N. Y. Civ. Proc. Rep. 388. 16 N. Y. S. R. 1012, 
 
 1 N. Y. Supp. 610 137 
 
 McCullough, Re, 18 Misc. 721, 43 N. Y. Supp. nCS 242 
 
 McDermott v. Hennesy, 9 Hun, 59 144 
 
 McDonald v. Bank for Savings, 2 How. Pr. 35 342 
 
 V. Brass Goods Mfg. Co. 2 Abb. N. C. 431 317, 330 
 
 V. Mallory, 14 Jones & S. 58 105, 353 
 
 V. Peet, 7 N. Y. Civ. Proc. Rep. 200 314, 323 
 
 McDougal V. Gray, 15 N. Y, Civ. Proc. Rep. 237, 4 N. Y. Supp. 74 333 
 
 McEchron, Re, 55 App. Div. 147, 67 N. Y. Supp. IS 269 
 
 McEntyre v. Tucker, 40 App. Div. 444, 29 N. Y. Civ. Proc. Rep. 185, 
 
 58 N. Y. Supp. 146 64 
 
 M'Farland v. Crary, 6 Wend. 297 161 
 
 McFarren v. St. John, 14 Hun, 387 279 
 
 McGalBn v. Cohoes, 74 N. Y. 387, 30 Am. Rep. 307 171 
 
 McGillicuddy v. Kings County Elev. R. Co. 10 Misc. 21, 62 N. Y. S. R. 
 
 648, 30 N. Y. Supp. 833 341 
 
 McGillivray v. Standard Oil Co. 26 N. Y. Week. Dig. 108, 6 N. Y. S. R. 
 
 868 76 
 
 McGovern v. ilcGovern, 18 Jones & S. 390 239 
 
 McGowan v. IMorrow, 3 N. Y. Code Rep. 9 153 
 
 McGrane v. New York, 19 How. Pr. 144 64 
 
 McGrath v. Alger, 40 App. Div. 610, 57 N. Y. Supp. 519 71
 
 TABLE OF CASES CITED. Ixxxix 
 
 McGredy v. Woodcock, 41 App. Div. 526, 58 N. Y. Supp. 656 75 
 
 McGregor v. Buell, 1 Keyes, 153, 3 Abb. App. Dec. 86, 33 How. Pr. 
 
 450 270, 357, 452, 454, 455 
 
 V. Conistock, 28 N. Y. 237 21 
 
 V. Comstock, 19 N. Y. 581 24 
 
 V. McGregor, 32 N. Y. 479 443 
 
 McHarg v. Donnelly, 27 Barb. 100 423, 424 
 
 M'Heuch V. M'Hench, 7 Hill, 204 423 
 
 McHugh V. Astrophe, 2 Misc. 478, 51 N. Y. S. R. 142, 22 N. Y. Supp. 
 
 79 433, 434 
 
 Mclntyre v. German Sav. Bank, 59 Hun, 536, 20 N. Y. Civ. Proc. Rep. 
 
 209, 37 N. Y. S. R. 545, 13 N. Y. Supp. 674 434, 456, 468 
 
 V, Wynne, 21 N. Y. Civ. Proc. Rep. 208, 16 N. Y. Supp. 540. .398, 400 
 
 Mack V, Cohn, 15 N. Y. Week. Dig. 136 512 
 
 McKee v. Weeden, 1 App. Div. 583, 73 N. Y. S. R. 188, 37 N. Y. Supp. 
 
 465 234 
 
 McKeen v. Fish, 33 Hun, 28 362, 385 
 
 McKenzie v. Hackstaff, 2 E. D. Smith, 75 60 
 
 McKibbin v. Nafis, 76 Hun, 344, 59 N. Y. S. R. 101, 27 N. Y. Supp. 
 
 723 28, 52 
 
 McKuskie v. Hendrickson, 128 N. Y. 555, 40 N. Y. S. R. 619, 28 N. E. 
 
 650 3, 303 
 
 McLain v. Mathushek Piano ]\Ifg. Co. 54 App. Div. 126, 8 N. Y. Anno. 
 
 Cas. 237, 66 N. Y. Supp. 397 121 
 
 McLaughlin v. Kipp, 82 App. Div. 413, 81 N. Y. Supp. 896 164 
 
 V. Smith, 3 Hun, 250, 5 Thomp. & C. 522 304 
 
 McLean, Re, 62 Hun, 1, 41 N. Y. S. R. 897, 16 N. Y. Supp. 417 205 
 
 Re, 6 Johns. Ch. 440 209 
 
 V. Forward, 1 Cow. 49 442 
 
 V. Freeman, 70 N. Y. 81 155 
 
 T. Pephson, 26 Abb. N. C. 40, 13 N. Y. Supp. 834 217 
 
 v. Stewart, 14 Hun, 472 407 
 
 McMahon v. Mutual Ben. L. Ins. Co. 3 Bosw. 644, 8 Abb. Pr. 20? 404 
 
 V. Mutual P^en. L. Ins. Co. 12 Abb. Pr. 28 427 
 
 V. Smith, 20 Misc. 305, 45 N. Y. Supp. 66 J 256, 264, 41^ 
 
 McManus, Re, 35 Misc. 678, 72 N. Y. Supp. 678 274 
 
 McMasters v. Vernon, 1 Abb. Pr. 179, 4 Duer, 62.3 3 
 
 McMaster's Estate, 14 N. Y. Civ. Proc. Rep. 195, 16 N. Y. S. R. 240, 1 
 
 N. Y. Supp. 225 214 
 
 McMurry v, Hutcheson, 59 How. Pr. 210 158 
 
 McNaraara v. Harris, 4 N. Y. Civ. Proc. Rep. 76 329 
 
 V. Nolan, 13 Misc. 76, 25 N. Y. Civ. Proc. Rep. 35, 68 N. Y. S. R. 
 
 229, 34 N. Y. Supp. 178 339, 310
 
 XC TABLE OF CASES CITED. 
 
 McNeeley v. Welz, 20 App. Div. 5G6, 47 N. Y. Supp. 310 147 
 
 McNeil V. Merriinan, J7 App. Div. 1G4.. 9 N. Y. Anno. Cas. 382, 08 N. Y. 
 
 Supp. 1G5 315, 326, 333, 334 
 
 MacnifTe v. Ludington, 13 Abb, N. C. 407 54 
 
 McPIiail V. Ridout, 83 Hun, 446, 64 N. Y. S. R. G61, 31 N. Y. Supp. 934, 72 
 
 M'Quade v. New York & E. R. Co. 5 Duer, 613, 11 How. Pr. 434 96, »51 
 
 358, 364 
 
 McRoberts v. Pooley, 12 N. Y. S. R. 107 141 
 
 McVicar v. Keating, 19 App. Div. 581, 46 N. Y. Supp. 298 282 
 
 MacWhinnie v. Cameron, 57 Hun, 4G3, 19 N. Y. Civ. Proc. Rep. 1G8, 32 
 
 N. Y. S. R. 985, 11 N. Y. Supp. 20 44, 428 
 
 McWilliam v. Dayton, 27 Misc. 828, 57 N. Y. Supp. 819 103 
 
 Macy V. Nelson, 49 How. Pr. 204 489 
 
 V. \\ illiams, 55 Hun, 489, 30 N. Y. S. R. 345, 8 N. Y. Supp. 658. . 248 
 Magnin v. Dinsmore, 47 How. Pr. 11, 15 Abb. Pr. N. S. 331. . .284, 286, 365 
 
 Mahar v. Simmons, 47 Hun, 479, 14 N. Y. S. R. 443 93 
 
 Maher v. O'Conner, 1 N. Y. Civ. Proc. Rep. 158, 61 How. Pr. 103. .503, 50 i 
 
 Mahon v. Malion, 18 Jones & S. 92, 5 N. Y. Civ. Proc. Rep. 58 179, 513 
 
 V. Mahon, G4 App. Div. 262, 72 N. Y. Supp. 102 469 
 
 Main v. Eagle, 1 E. D. Smith, 619 300 
 
 V. Pope, 16 How. Pr. 271 355 
 
 Malam v. Simpson, 12 Abb. Pr. 225, 20 How. Pr. 488 492 
 
 Malcolm v. Hamill, 65 How. Pr. 506, 4 N. Y. Civ. Proc. Rep. 221 448 
 
 Malone v. Clark, 2 Hill, 657 404 
 
 Maloy V. Associated Lace Makers' Co. 28 N. Y. S. R. 735, 7 N. Y. Supp. 
 
 958 376 
 
 Manahan, Re, 10 Daly, 39 225 
 
 Mander v. Cell, 4 N. Y. Week. Dig. 519 125, 127 
 
 Mandevillo v. Avery, 44 N. Y. S. R. 1, 17 N. Y. Supp. 429 134, 454, 459 
 
 Manliarat, Re, 17 App. Div. 1, 44 N. Y. Supp. 836 262 
 
 Manhattan R. Co. v. Kent, 80 Hun, 559, 62 N. Y. S. R. 569, 30 N. Y. 
 
 Supp. 959, Affirmed in 145 N. Y. 595, 40 N. E. 164 197, 198 
 
 V. Klipstein, 84 Hun, 579, 65 N. Y. S. R. 850, 32 N. Y. Supp. 729, 3G4 
 V. Mcis:ee, 1 App. Div. 488, 72 ^" Y. S. R. 595, 37 N. Y. Supp. 269, 188 
 V. Taber, 78 Hun, 434, 60 N. - . S. R. 781, 29 N. Y. Supp. 220. . . 197 
 V. Youmans, 81 Hun, 82, 62 N. Y. S. R. 562, 30 N. Y. Supp. 566. . 199 
 
 439 
 
 Mann v. Tyler, 6 How. Pr. 235, N. Y. Code Rep. N. S. 382 349, 354 
 
 Mansfield, Re, 10 Misc. 29G, 64 N. Y. S. R. 309, 31 N. Y. Supp. 84 261 
 
 Mantle v. Myle, 26 How. Pr. 409 501 
 
 Maresi. Re, 74 App. Div. 76, 77 N. Y. Supp. 76 156 
 
 Margulies v. Damrosch, 23 Misc. 77, 51 N. Y. Supp. 833 431, 444 
 
 Mark v. Buffalo, 87 N. Y. 184, 13 N. Y. Week. Dig. 415. . . .478, 482, 497, 505
 
 TABLE OF CASES CITED. XCl 
 
 Maxkes v. Epstein, 13 N. Y. Civ. Proc. Rep. 293 279, 280 
 
 Market Street, Re, 80 Hun, 246, 61 N. Y. S. R. 626, 29 N. Y. Supp. 1030, 200 
 
 Marks v. Bard, 1 Abb. Pr. 63 394 
 
 V. King, 66 How. Pr. 453, 13 Abb. N. C. 374 431, 434 
 
 Marsh v. Avery, 81 N. Y. 29 265, 419 
 
 V. Graham, 19 Misc. 263, 44 N. Y. Supp. 253 100, 102, 100 
 
 V. Hussey, 4 Bosw. 614 232, 233 
 
 V. Lansingburgh, 31 Hun, 514 171 
 
 V. Woolsey, 14 Hun, 1 432 
 
 Marshall, Re, 19 N. Y. S. R. 152, 2 N. Y. Supp. 838 272 
 
 V. Boyer, 52 Hun, 181, 23 N. Y. S. R. 302, 5 N. Y. Supp. 150 442 
 
 V. Meech, 51 N. Y. 140, 10 Am. Rep. 572 11, 43 
 
 Marston v. Hebert, 60 How. Pr. 490 493 
 
 Marsullo v. Billotto, 55 How. Pr. 375 123 
 
 Martin, Re, 98 N. Y. 193 267 
 
 Re, 128 N. Y. 605, 38 N. Y. S. R. 885, 27 N. E. 1017 195 
 
 V. Hawks, 15 Johns. 405 17, 38 
 
 V. Hodges, 45 Hun, 38 72 
 
 V. McCormack, 3 Sandf. 755, N. Y. Code Rep. N. S. 214 349, 364 
 
 V. Martin, 3 How. Pr. 203 Ill, 391 
 
 V. Tarbox, 23 Misc. 761, 51 N. Y. Supp. 319 301 
 
 Marvin v, Brewster Iron Min. Co. 50 N. Y. 671 319 
 
 V.Marvin, 22 N. Y. Civ. Proc. Rep. 274, 46 N. Y. S. R. 259, 19 
 
 N. Y. Supp. 371 30 
 
 v. Marvin, 11 Abb. Pr. N. S. 97 257 
 
 V. Marvin, 78 N. Y. 541 420 
 
 Marx v. Gross, 2 Misc. 500, 23 N. Y. Civ. Proc. Rep. 97, 51 N. Y. S. R. 
 
 92, 22 N. Y. Supp. 387 08, TO 
 
 V. McCloud, 21 N. Y. S. R. 957, 3 N. Y. Supp. 74 464 
 
 v. Manhattan R. Co. 3 N. Y. Supp. 113 383 
 
 Mason v, Corbin, 29 App. Div. 602, 51 N. Y. Supp. 178 133 
 
 Mathews v. Matson, 3 N. Y. Civ. Proc. Rep. 157 350, 441 
 
 Matson v. Abbey, 141 N. Y. 179, 56 N. Y. S. R. 690, 36 N. E. 11 242, 244 
 
 Mattcson v. Bloomfield, 10 Wend. 556 126 
 
 Matthews v. Matthews, 14 N. Y. Civ. Proc. Rep. 399, 17 N. Y. S. R. 994, 
 
 1 N. Y. Supp. 222 443 
 
 Matthewson, Re, 8 App. Div. 8, 40 N. Y. Supp. 140 201 
 
 Re, 1 Connoly, 157, 19 N. Y. S. R. 208, 3 N. Y. Supp. 600 275, 276 
 
 V. Thompson, 9 How. Pr. 231 348, 302 
 
 Mautner v. Pike, 32 Misc. 500, 66 N. Y. Supp. 387 S50 
 
 Maxwell, Re, 66 Hun, 151, 49 N. Y. S. R. 154, 21 N. Y. Supp. 209 220 
 
 V. Cottle, 72 Hun, 529, 55 N. Y. S. R. 127, 25 N. Y. Supp. 635..34, 52 
 V. Maxwell, 28 Hun, 566 180
 
 XCll TABLE or OASES CITED, 
 
 May V. Strauss, 8 Abb. N. C. 274 99 
 
 Mayer v. Friedman, 30 Misc. 364, 30 N. Y. Civ. Proc. Rep. 221, 62 N. Y. 
 
 Supp. 452 30& 
 
 V. Hazard, 49 Hun, 222, 17 N. Y. S. E. 26, 1 N. Y. Supp. 680. . 221 
 
 224 
 Mayham v. Allen, 50 Hun, 343, 19 N. Y. S. R. 811, 3 N. Y. Supp. 100. . 46^ 
 Mazet V. Crow, 18 N. Y. Civ. Proc. Rep. 178, 24 Abb. N. C. 372, 31 
 
 N. Y. S. R. 972, 10 N. Y. Supp. 743 82, 394 
 
 Mead v. Mallory, 27 How. Pr. 32 477, 478, 431 
 
 V. Tuckerman, 105 N. Y. 557, 8 N. Y. S. R. 182, 12 N. E. 64. .497, 498 
 Mechanics' & T. Nat. Bank v. Winant, 16 N. Y. S. R. 904, 1 N. Y. Supp. 
 
 659 397, 400 
 
 Mechl V. Schwieckart, 67 Barb. 599, 3 N. Y. Week. Dig. 405 113 
 
 Medbury v. Butternuts & S. Turnp. Co. 1 How. Pr. 231 477 
 
 Meeker, Re, 9 Daly, 556 261, 271 
 
 V. C. R. Remington & Son Co. 62 App. Div. 476, 70 N. Y. Supp. 
 
 1072 35» 
 
 Meekin v. Brooklyn Heights R. Co. 51 App. Div. 1, 64 N, Y. Supp. 291 . . 69 
 
 Mela V. Geis, 3 N. Y. Civ. Proc. Rep. 152 292, 293 
 
 Mellen v. Hutchins, 58 How. Pr. 349 313 
 
 Mendel v. Mendel, 25 N. Y. Week. Dig. 314, 4 N. Y. S. R. 556 n» 
 
 Meo V. Meo, 22 Abb. N. C. 58, 15 N. Y. Civ. Proc. Rep. 308, 18 N. Y. 
 
 S. R. 270, 2 N. Y. Supp. 569 182 
 
 Mercantile Safe Deposit Co. v. Dimon, 55 App. Div. 538, 67 N. Y. Supp. 
 
 430 244 
 
 Mercer v. Mercer, 73 Hun, 192, 56 N. Y. S. R. 117. 25 N. Y. Supp. 
 
 867 178, 179, 513 
 
 Merceron v. Fowler, 14 Jones & S. 351 421, 424 
 
 Merchant v. Sessions, 5 N. Y. Civ. Proc. Rep. 24 35 
 
 Merchants & T. Nat. Bank v. New York, 97 N. Y. 355 457 
 
 Merchants' Bank v. Mills, 3 E. D. Smith. 210 325, 329 
 
 v. Moore, 2 Johns. 294 80 
 
 Merchants' Exch. Nat. Bank v. Commercial Wareliouse Co. 3 Jones & 
 
 S. 214 353 
 
 Merchants Ins. Co. v. Marvin, 1 Paige, 557 85 
 
 Mercdeth v. Forty-Second Street & G. Street R. Co. 1 N. Y. Civ. Proc. 
 
 Rep. 15 330 
 
 Merrill v. Bischoflf, 3 App. Div. 361, 73 N. Y. S. R. 085, 38 N. Y. Supp. 
 
 194 141 
 
 V. Near, 5 Wend. 237 161 
 
 Merritt v. Arden, 1 Wend. 91 80 
 
 V. Seaman, 6 N. Y. 168 237 
 
 V. Thompson, 27 N. Y. 225 .344. 832
 
 TABLE OF CASES CITED. XClll 
 
 :Merry, Re, 11 App. Div. 597, 42 N. Y. Supp. 617 229, 500 
 
 Iklersereau v. Ryerss, 12 How. Pr. 300 242, 244 
 
 Mertens v. Fitzwater, 53 Hun, 597, 17 N. Y. Civ. Proc. Rep. 277, 25 N. 
 
 Y. S. R. 305, 6 N. Y. Supp. 797 119 
 
 Mertian, Re, 16 N. Y. Week. Dig. 554, 29 Hun, 459 48 
 
 Metropolitan Addressing & Mailing Co. v. Good enough, 21 N. Y. Civ. 
 
 Proc. Rep. 268, 18 N. Y. Supp. 212 424 
 
 Metropolitan Concert Co. v. Speeiy, 58 Hun, 470, 35 N. Y. S. R. 611, 
 
 12 N. Y. Supp. 494, Affirmed in 125 N. Y. 750, 27 N. E. 408, 414 
 Metropolitan Elev. R. Co., Re, 46 N. Y. S. R. 138, 18 N. Y. Supp. 899. . 507 
 
 V. Duggin, 33 N. Y. S. R. 992, 11 N. Y. Supp. 819 458, 466 
 
 \ . Duggin, 58 Hun, 156, 19 N. Y. Civ. Proc. Rep. 255, 33 N. Y. 
 
 S. R. 836, 11 N. Y. Supp. 353 306 
 
 Metropolitan L. Ins. Co. v. Bendheim, 59 N. Y. Supp. 793 503 
 
 Mexico V. Arrangois, 3 Abb. Pr. 470 330 
 
 Meyer v. Briel, 2 Month. L. Bull. 72 425 
 
 V. Rasquin, 20 N. Y. Week. Dig. 98 382 
 
 Meyer Rubber Co. v. Lester Shoe Co. 92 Hun, 52, 71 N. Y. S. R. 740, 
 
 36 N. Y. Supp. 729 359 
 
 Michael v. Wenning, 1 N. Y. City Ct. Rep. 479 87 
 
 Micklethwaite v. Rhodes, 4 Sandf. Ch. 434 317 
 
 Middletown v. Rondout, & O. R. Co. 43 How. Pr. 481 61 
 
 JVIiers v. Miers, 35 Misc. 476, 71 N. Y. Supp. 1058 180 
 
 Miles, Re. f) Redf. 1 10, 3 Month. L. Bull. 39 260 
 
 Millady v. f<tein, 19 Misc. 652, 44 N. Y. Supp. 408 179 
 
 Miller, Re, 9 App. Div. 260, 41 N. Y. Supp. 581 203 
 
 V. Adsit, 18 Wend. 672 420, 421 
 
 V. Bush, 29 App. Div. 117, 51 N. Y. Supp. 486 Hi, 99 
 
 V. Coates, 2 Hun, 668, 5 Thomp. & C. 690 102 
 
 v. De Peyster, 1 Abb. Pr. 234 403 
 
 V. Franklin, 20 Wend. 630 421, 423 
 
 v. Huntington, 1 How. Pr. 218 479 
 
 V. King, 32 App. Div. 349, 52 N. Y. Supp. 1041 AM, 463 
 
 V. Miller, 43 How. Pr. 125 175 
 
 V. Miller, 7 Hun, 208 178 
 
 V. Miller, 32 Hun, 481 253 
 
 V. Miller, 27 Misc. 758, 59 N. Y. Supp. 473 176 
 
 V. Scherder, 2 N. Y, 262 511 
 
 V. Von Schwarzenstein, 51 App. Div. 18, 64 N. Y. Supp. 475. ... 154 
 V. Whoodhead, 52 Hun, 127, 17 N. Y. Civ. Proc. Rep. 102, 23 
 
 N. Y. S. R. 412, 5 N. Y. Supp. 88 511 
 
 Milligan v. Robinson, 58 How. Pr. 380 397 
 
 Millis V. Pentelow, 92 Hun, 284, 72 N. Y. S. R. 333, 36 N. Y. Supp. 906, 16
 
 XeiV TABLE OF CASES CITKD. 
 
 Mills V. Mills, 50 App. Div. 221, 63 N. Y. Supp. 771 15& 
 
 V. Ross, 39 App. Div. 5G3, 57 N. Y. Supp. fiSd 374 
 
 V. Watson, 13 Jones & S. 591 .'.SI, 360, 364 
 
 Mingay v. Holly Mfg. Co. 99 N. Y. 270, 1 N. E. 783 367 
 
 Minick v. Troy, 19 Hun, 253, Affirmed in 83 N. Y. 514 172 
 
 Minto V. Bauer, 3 Silv. Sup. Ct. 332, 17 N. Y. Civ. Proc. Rep. 314, 25 
 N. Y. S. R. 559, 6 N. Y. Supp. 444, Modified in 29 N. Y. 
 
 S. R. 366, 8 N. Y. Supp. 933 39 
 
 Minton v. Home Benefit Soc. 16 N. Y. S. R. 1001, 1 N. Y. Supp. 838. . . 6a 
 IMitcliell, Re, 57 App. Div. 22, 9 N. Y. Anno. Cas. 224, 67 N. Y. Supp. 
 
 961 2& 
 
 v. Dick, 8 Misc. 98, CO N. Y. S. R. IGl, 28 N. Y. Supp. 1003 314 
 
 315, 325 
 
 v. Hall, 7 How. Pr. 490 349, 35(i 
 
 v. Mount, 17 Abb. Pr. 213 244 
 
 V. Piqua Club Asso. 15 Misc. 366, 25 N. Y. Civ. Proc. Rep. 139, 
 
 72 N. Y. S. R. 470, 37 N. Y. Supp. 406 23, 36 
 
 V. Vermont Copper Min. Co. 47 How. Pr. 218 291 
 
 V. Westervelt, 6 How. Pr. 265, Affirmed in 6 How Pr. 311, note. . 96 
 
 478 
 
 Mix V. Brisban, 2 Wend. 286 91 
 
 Mock V. Saile, 52 Hun, 198, 17 N. Y. Civ. Proc. Rep. 121, 23 N. Y. S. R. 
 
 307, 5 N. Y. Supp. 149 281 
 
 Moffatt V. Henderson, 16 Jones & S. 449 29& 
 
 Moffett V. Deom, 8 N. Y. Civ. Proc. Rep. 85 129, 288 
 
 Moir V. Brown, 9 How. Pr. 270 320, 321 
 
 Moloughney v. Kavanaugh, 3 N. Y. Civ. Proc. Rep. 253, 16 N. Y. Week. 
 
 Dig. 253 43 
 
 Mondorf, Re, 110 N. Y. 450, 18 N. E. 256 266 
 
 Monk V. Monk, 7 Robt. 153 176 
 
 Monnet v. Merz, 30 Abb. N. C. 281, 54 N. Y. S. R. 322, 24 N. Y. Supp. 
 
 485 348, 358 
 
 Monroe v. Smith, 23 Abb. N. C. 275, 17 N. Y. Civ. Proc. Rep. 158, 25 
 
 IT. Y. S. R. 624, 6 N. Y. Supp. 426 377 
 
 v. White, 25 App. Div. 292, 49 N. Y. Supp. 517 300 
 
 Montague v. Bassett, 18 Abb. Pr. 13 318 
 
 Montecarbole v. Mundel, 16 How. Pr. 141 73 
 
 Montgomery County Bank v. Albany City Bank, 7 N. Y. 459 458 
 
 Moody V. Steele, 11 N. Y. Civ. Proc. Rep. 205, 3 N. Y. S. R. 2G9 109 
 
 Mooers v. Saunders, 6 Ch. Sent. 75 442 
 
 Mooney v. Moonoy, 29 Misc. 707, 7 N. Y. Anno. Cas. 257, 62 N. Y. 
 
 Supp. 769 18, 44 
 
 v, Ryerson, 8 N. Y. Civ. Proc. Rep. 435 432
 
 TABLE Ol" CASES CITED. XCV 
 
 Moore v. Appleby, 108 N. Y. 237, 15 N. E, 377 3G0, 385 
 
 V. Cockroft, 9 How. Pr. 479 492 
 
 V. Cooley, 2 Hill, 412 337, 342 
 
 V. Jenkins, 5 Month. L. Bull. 70 225 
 
 V. Moore, 44 App. Div. 253, 60 N. Y. Supp. 653 434, 435 
 
 V. Moore, 51 N. Y. S. R. 911, 22 N. Y. Supp. 451, Appeal Dis- 
 missed in 138 N. Y. 679, 53 N. Y. S. R. 301, 34 N. E. 373. . 175 
 
 V. Taylor, 2 How. Pr. N. S. 343 35 
 
 V. Westervelt, 14 How. Pr. 279, 6 Duer, 684 5, 6, 7 
 
 Moosbrugger v. Kaufman, 7 App. Div. 380, 40 N. Y. Supp. 213.. 391, 393 
 
 441 
 
 Mora V. Great Western Ins. Co. 10 Bosw. 622 351, 484 
 
 V. Sun Mut. Ins. Co. 22 How. Pr. 60, 13 Abb. Pr. 304 106 
 
 More V. Durr, 13 Jones & S. 154 33d 
 
 Morell V. Gould, 5 Hill, 553 91 
 
 Morgan v. Hannas, 13 Abb. Pr. N. S. 361 265 
 
 V. Skidmore, 3 Abb. N. C. 92, Affirmed in 55 Barb. 203 243 
 
 V. Stevens, 6 Abb. N. C. 356 158 
 
 V.Westchester County, 39 N. Y. S. R. 798, 15 N. Y. Supp. 580.. 383 
 
 Morgenstern v. Zink, 6 Misc. 418, 27 N. Y. Supp. 299 427 
 
 Moriarty v. Moriarty, 26 Jones & S. 279, 10 N. Y. Supp. 228 176 
 
 Morrell v. Morrell, 2 Barb. 480 176 
 
 Morris, Re, 45 Hun, 167, 13 N. Y. Civ. Proc. Rep. 56, 10 N. Y. S. R. 50, 
 
 27 N. Y. Week. Dig. 161 512 
 
 v. Mullett, 1 Johns. Ch. 44 442 
 
 V. Wheeler, 45 N. Y. 708 140, 147, 458 
 
 Morrison v. Agate, 20 Hun, 23 360, 368 
 
 V. Ide, 4 How. Pr. 304, 3 N. Y. Code Rep. 27 59, 87 
 
 V. Lester, 11 Hun, 618, Further Appeal in 15 Hun, 538 420 
 
 Morse v. McCoy, 4 Cow. 551 81 
 
 V. Troy, 38 Hun, 301 342 
 
 Moras v. Hasbrouck, 13 N. Y. Week. Dig. 393 359 
 
 V. Salisbury, 48 N. Y. 636 116 
 
 Morten v. Domestic Teleg. Co. 1 Abb. N. C. 290 326, 328 
 
 Moses v. McDivitt, 2 Abb. N. C. 47 404 
 
 Moskowitz V. Hornberger, 20 Misc. 558, 46 N. Y. Supp. 462 358 
 
 Moss, Re, 6 How. Pr. 263 140 
 
 Moss's Estate, 24 N. Y. Civ. Proc. Rep. 438, 68 N. Y. S. R. 720, 34 N. Y. 
 
 Supp. 798 275 
 
 Mott, Re, 36 Hun, 560 50 
 
 v. Consumers' Ice Co. 8 Daly, 244 454, 486, 483 
 
 Moulton v. Beeclier, 11 Hun, 192, 53 How. Pr. 86, Affirming 52 How. 
 
 Pr. 230, 10 Abb. N. C. 193 352 
 
 V. Townsend, 16 How. Pr. 306 478, 479, 481
 
 XCVl TABLE OF CASES CITED. 
 
 Mowry v. Peet. 13 N. Y. Week. Dig. 16 253 
 
 Mull, Re, 1 6 N. Y. S. R. 981. 2 N. Y. Supp. 23 262 
 
 V. Jones, 45 N. Y. S. R. 643, 18 N. Y. Supp. 359 157 
 
 Mullen V. Guinn, 88 Hun, 128, 68 N. Y. S. R. 680, 34 N. Y. Supp. 
 
 G25 237, 238 
 
 Muller V. Bayard, 15 Abb. Pr. 449 109, 113 
 
 V. Bowe, 4 Month. L. Bull. 10 214 
 
 V. Higgins, 13 Abb. Pr. N. S. 297 92 
 
 V. New Y'ork, 23 N. Y. Civ. Proc. Rep. 261, 29 N. Y. Supp. 1096, 34 
 
 V. Post, 33 N. Y. S. R. 992, 11 N. Y. Supp. 615 74 
 
 Munifcrd v. Withey, 1 Wend. 279 Ill, 119 
 
 Mundorff v. W angler, 57 How. Pr. 372, 12 Jones & S. 495 245 
 
 Munro v. Smith, 36 N. Y. S. R. 841, 13 N. Y. Supp. 708 377 
 
 Y. Tousey, 36 N. Y. S. R. 522, 13 N. Y. Supp. 81, Reversed on 
 
 other grounds in 129 N. Y. 38, 41 N. Y. S. R. 127 137 
 
 V. Tousey, 129 N. Y. 38, 14 L. R. A. 245, 41 N. Y. S. R. 127, 29 
 
 N. E. 9 132 
 
 Munson v. Curtis, 15 N. Y. Civ. Proe. Rep. 131, 17 N. Y. S. R. 349, 1 
 
 N. Y. Supp. 828 406 
 
 V. Curtis, 43 Hun, 214, 26 N. Y. Week. Dig. 236, 6 N. Y. S. R. 
 
 189 2, 5, 302 
 
 Munter, Re, 19 Misc. 201, 44 N. Y. Supp. 605 266 
 
 Murdock v. Adams, 10 Hun. 566 439 
 
 Murphy v. Gold & Stock Teleg. Co. 18 N. Y. Civ. Proc. Rep. 43, 27 
 
 N. Y. S. R. 39, 9 N. Y. Supp. 28 104 
 
 V. Haswell, 65 Barb. 380 93 
 
 V. Manhattan Brass Co. 28 Jones & S. 423, 44 N. Y. S. R. 834, 18 
 
 N. Y. Supp. 207 330 
 
 V. Travers, 60 How. Pr. 301 333 
 
 Murray v. Cameron, 38 N. Y. S. R. 793, 15 N. Y. Supp. 13 428 
 
 V. Church, 1 Hun, 49, 3 Thomp. & C. 145 373 
 
 v. Henderickson, 1 Bosw. 635, 6 Abb. Pr. 96 222, 421 
 
 V. Jibson, 22 Hun, 386 23, 38 
 
 V. Robinson, 9 Hun, 137 365 
 
 Murtha v. Curley, 92 N. Y. 359, 05 How. Pr. 68, 3 N. Y. Civ. Proc. 
 
 Rep. 266 7, 127, 132, 456 
 
 Muscott V. Runge, 27 How. Pr. 85 479, 481 
 
 Musgrave v. Sherwood, 29 Hun, 475 380 
 
 Mutual L. Ins. Co. v. Cranwell, 32 N. Y. S. R. 376, 10 N. Y. Supp. 
 
 404 359 
 
 v. Kroehle, 29 Misc. 481, 61 N. Y. Supp. 944 407 
 
 Myer v. Abbett, 20 App. Div. 390, 46 N. Y. Supp. 822 29, 48 
 
 Mygatt V. Wilcox, 1 Lans. 55, Affirmed in 45 N. Y. 306, 6 Am. Rep. 90 31 
 V. Wilco.v. 35 How. Pr. 410 483
 
 TABLE OF CASES CITED. XCVll 
 
 N. 
 
 TSTanetty v. Naylor, 2 Month. L. Bull. 65, 66 64 
 
 Nassau Bank v. National Bank, 32 App. Div. 2G8, 52 N. Y. Supp. 1118, 133 
 National Bank v. Bush, 47 How. Pr. 78 359 
 
 V. Gun&t, 1 Abb. N. C. 292 329 
 
 V. Jlansee, 15 Abb. N. C. 488, 2 How. Pr. N. S. 200, 7 N. Y. Civ. 
 
 Proc. Rep. 350 432 
 
 lSi"ational Exch. Bank v. Silliman, 4 Abb. N. C. 224. 329 
 
 National Exhibition Co. v. Crane, 167 N. Y. 505, 60 N. E. 768 30 
 
 JSTational I>ead Co. v. Uauchy, 22 Misc. 372, 49 N. Y. Supp. 379 359 
 
 National Tradesmen's Bank v. Wetmore, 10 N. Y. S. R. 640, Reversed, 
 
 124 N. Y. 241, 35 N. Y. S. R. 316, 26 N. E. 548 359, 374 
 
 National Wall Paper Co. v. Szcrlip, 9 App. Div. 206, 41 Supp. 376. . . 80 
 
 Naugatuck Cutlery Co. v. Rowe, 5 Abb. N. C. 142 92 
 
 Nauman v. Braun, 20 N. Y'. Civ. Proc. Rep. 77, 14 N. Y. Supp. 139 125 
 
 Nauraer v. Gray, 41 App. Div. 361, 58 N. Y. Supp. 476 181 
 
 Naylor v. Colville, 20 App. Div. 581, 47 N. Y. Supp. 267 146 
 
 V. Lane, 5 N. Y. Civ. Proc. Rep. 149, 18 Jones & S. 97, 66 How. 
 
 Pr. 400 43 
 
 Nealis v. Meyer, 21 Misc. 344, 47 N. Y. Supp. 156 501, 502 
 
 Neary v. Robinson, 98 N. Y. 81 305, 469 
 
 Neill V. Van Wagenen, 22 Jones & S. 477 14 
 
 Neilson v. Commercial Mut. Ins. Co. 3 Duer, 455 308 
 
 V. Mutual L. Ins. Co. 3 Duer, 683 358 
 
 Nellis V. De Forrest, 6 How. Pr. 413 103, 447 
 
 V. Duesler, 44 N. Y. S. R. 228, 18 N. Y. Supp. 315 250 
 
 Nelson, Ex parte, 1 Cow. 417 80 
 
 V. McDonald, 61 Hun, 400, 41 N. Y. S. R. 1, 16 N. Y. Supp. 273 138 
 
 Neugrosehe v. Manhattan R. Co. 1 N. Y. S. R. 302 342, 344 
 
 Nevell, Re, 71 App. Div. 102, 75 N. Y. Supp. 588 50 
 
 New v. Anthony, 4 Hun, 52, 6 Thomp. & C. 243 76, 113 
 
 v. Nicoll, 73 N. Y. 127, 29 Am. Rep. Ill 32 
 
 Newell V. Wheeler, 48 N. Y. 486 151 
 
 Newell Universal Mill Co. v. Muxlow, 115 N. Y. 170, 17 N. Y. Civ. 
 
 Proc. Rep. 238, 24 N. Y. S. R. 545, 21 N. E. 1048 119, 120 
 
 390, 392 
 Newhall v. Appleton, 4 JMonth. L. Bull. 6 505 
 
 V. Appleton, 25 Jones & S. 154, 23 Abb. N. C. 62. 25 X. Y. S. R. 
 
 810, 6 N. Y. Supp. 4 316 
 
 liTewman v. French, 45 Hun, 65, 27 N. Y. Week. Dig. 33, 9 X. Y. S. R. 
 
 492 92, 94 
 
 V. GreiflF, 3 N, Y. Civ. Proc. Rep. 362 439, 494 
 
 V. Ogden, 6 Ch. Sent. 40 137
 
 XCVlll TABLE OF CASES CITED. 
 
 Newton v. Newton, 8 N. Y. Civ. Proc. Rep. 224 383 
 
 V. Reid, 24 N. Y. Week. Dig. 472 356, 371 
 
 V. Russell, 87 N. Y. 531 416, 417, 447 
 
 V. Sweet, 4 How. Pr. 134, 2 N. Y. Code Rep. 61 471 
 
 New York, Re, 77 App. Div. 433, 79 N. Y. Supp. 192 202 
 
 Re, 72 App. Div. 1 13, 76 N. Y. Supp. 137 202 
 
 Re, 69 N. Y. Supp. 178 202 
 
 V. Bannan, 42 App. Div. 191, 58 N. Y. Supp. 1031 418. 
 
 V. Best, 19 App. Div. 68, 45 N. Y. Supp. 970 441 
 
 V. Brady, 25 Jones & S. 14, 25 N. Y. S. R. 106, 5 N. Y. Supp. 
 179, Affirmed, 115 N. Y. 599, 26 N. Y. S. R. 340, 22 N. E. 
 
 237 102; 
 
 V. Cornell, 9 Hun, 215 440 
 
 V. Eisler, 2 N. Y. Civ. Proc. Rep. 125 280 
 
 V. Hillsburgh, 2 N. Y. Code Rep. 152 IIS 
 
 V. Lyons, 1 Daly, 300 243 
 
 V. Ryan, 9 Daly, 316 413 
 
 V. Sibberns, 10 N. Y. Week. Dig. 294 413 
 
 New York & H. R. Co. v. Haws, 56 N. Y. 175 121 
 
 New York & N. H. R. Co. v. Schuyler, 29 How. Pr. 89 396, 466- 
 
 New York Bank Note Co. v. Hamilton Bank Note Engraving & Print- 
 ing Co. 71 App. Div. 611, 75 N. Y. Supp. 520 502 
 
 V. Hamilton Bank Note Engraving & Printing Co. 56 App. Div. 
 
 488, 67 N. Y. Supp. 827 502^ 
 
 New York Breweries Co. v. Nichols, 55 N. Y. S. R. 179, 25 N. Y. Supp. 
 
 425 385 
 
 New York Elev. R. Co. v. Harold, 30 Hun, 466 353, 358 
 
 V.Philadelphia Architectural Iron Co. 18 N. Y. Week. Dig. 325. 394 
 New York F. & M. Ins. Co. v. Burrell, 9 How. Pr. 398, 12 N. Y. Legal 
 
 Obs. 252 142 
 
 New York Health Department v. O'Reilly, 17 Jones & S. 524, 18 N. Y. 
 
 Week. Dig. 255 317 
 
 New York Hospital Soc. v. Coe, 15 Hun, 440 352 
 
 New York L. & W. R. Co. Re, 26 Hun, 592 200 
 
 New York, L. E. & W. R. Co. v. Carhart, 39 Hun, 363 62, 377, 378 
 
 New York Life Ins. & T. Co. v. Baker, 38 App. Div. 417, 56 N. Y. 
 
 Supp. 618 363 
 
 V. Sands, 26 Misc. 252, 56 N. Y. Supp. 741 154, 408 
 
 v. Vanderbilt, 12 Abb. Pr. 458 144 
 
 New York Mut. Ins. Co. Re, 17 App. Div. 633, 45 N .Y. Supp. 263 235 
 
 New York, W. S. & B. R. Co. Re, 28 Hun, 505 452, 466 
 
 Re, 94 N. Y. 287 200 
 
 V. Thorn, 1 How. Pr. N. S. 190 200
 
 TABLE OF CASES CITED. XCIX 
 
 Niagara Falls Suspension Bridge Co. v. Bacliman, 4 Lans. 523 281 
 
 Niblo V. Binsse, 47 Barb. 435, 32 How. Pr. 92 245 
 
 Nichols V. Cammann, 2 N. Y. Civ. Proc. Rep. 375 330 
 
 V. Molouglmey, 85 App. Div. 1, 82 N. Y. Supp. 940 246 
 
 V. Nichols, IS Jones & S. 251 428 
 
 Nichtauser v. Lehmann, 15 Misc. 447, 72 N. Y. S. R. 788, 37 N. Y. 
 
 Supp. 208 502 
 
 Nicoll V. Burke, 13 Jones & S. 52G 453 
 
 V. Lloyd, 33 Misc. 775, 67 N. Y. Supp. 947 64 
 
 Niles, Re, 34 N. Y. S. R. 720, 12 N. Y. Supp. 157 257 
 
 V.Crocker, 88 Hun, 312, 68 N. Y. S. R. 579, 34 N. Y. Supp. 
 
 761 242, 243, 245, 246, 247, 252 
 
 V. Lindsley, 8 How. Pr. 131, 1 Duer, 610 109, 119 
 
 V. Majnard, 28 How. Pr. 390 499 
 
 Niver v. Rossman, 5 How. Pr. 153, 3 N. Y. Code Rep. 192 349 
 
 Nobis V. Pollock, 18 N. Y. Civ. Proc. Rep. 1, 13 N. Y. Supp. 837 489 
 
 Noe V. Gregory, 8 N. Y. Week. Dig. 21 427 
 
 Nolton V. Moses, 3 Barb. 31 406 
 
 Noonan v. New York, L. E. & W. R. Co. 68 Hun, 387, 52 N. Y. S. R. 
 
 203, 22 N. Y. Supp. 860 431 
 
 V. Smith, 12 Abb. N. C. 337, Affirmed, 84 N. Y. 672 279 
 
 North V. North, 1 Barb. Ch. 241 174, 182 
 
 V. Sergeant, 33 Barb. 350, 14 Abb. Pr. 223, 20 How. Pr. 519 93 
 
 Northrop v. Van Dusen, 5 How. Pr. 134, 3 N. Y. Code Rep. 140 59 
 
 Northrup v. Garrett, 17 Hun, 497 416 
 
 Norton v. Fanclier, 92 Hun, 463, 72 N. Y. S. R. 434, 36 N. Y. Supp. 
 
 1032 6, 127 
 
 V. Mackie, 8 Hun, 520 326 
 
 N^oxon V. Gregory, 5 How. Pr. 339 60 
 
 NToyes v. Blakeman, 3 Sandf. 531 223, 266 
 
 V. Blakeman, 6 N. Y. 567 32, 223 
 
 V. Children's Aid Soc. 70 N. Y. 481 364 
 
 V. Wyckoff, 114 N. Y. 204, 23 N. Y. S. R. 105, 21 N. E. 158. .. . 294 
 Nugent V. Keenan, 21 Jones & S. 530 317, 505 
 
 O. 
 
 Oakes v. High, 11 Misc. 313, 65 N. Y. S. R. 497, 32 N. Y. Supp. 289 342 
 
 Oaksmith v. Sutherland, 4 Abb. Pr. 15, 1 Hilt. 265 82 
 
 Ober V. Ober, 5 Silv. Sup. Ct. 37, 7 N. Y. Supp. 843 176 
 
 O'Brien, Re, 5 Misc. 136, 25 N. Y. Supp. 704 265 
 
 Re, 45 N. Y. S. R. 180, 19 N. Y. Supp. 541 266 
 
 V. Commercial F. Ins. Co. 38 Super. Ct. 4 493
 
 C TABLE Ol" CASES CITED. 
 
 O'Brien v. Garniss, 25 Hun, 446, 13 N. Y. Week. Dig. 422 233 
 
 V. Jackson, 42 App. Div. 171, 58 N. Y. Supp. 1044 237 
 
 V. Long, 49 Hun, SO, 17 N. Y. S. R. 510, 1 N. Y. Supp. 695. .. . 93 
 
 95, 9V 
 V. Metiopoliliin Street K. Co. 27 App. Div. 1, 50 N. Y. Supp. 
 
 159 40 
 
 O'Callihan v. Carroll, 16 How. Pr. 327 304 
 
 Ocean Nat. Bank v. Carll, 7 Hun, 237 230 
 
 O'Conner v. Merchants' Bank, 64 Hun, 624, 22 N. Y. Civ. Proc. Rep. 
 
 393, 19 N. Y. Supp. 319 423 
 
 O'Connor v. New York & Y. Land Improv. Co. 8 Misc. 243, 59 N. Y. 
 
 S. R. 218, 28 N. Y. Supp. 544 415 
 
 V. Union R. Co. 33 Misc. 728, 68 N. Y. Supp. 1056 123 
 
 O'Dea V. O'Dea, 31 Hun, 441, Affirmed, 101 N. Y. 23, 4 N. E. 110. . .174, 182 
 Oelberman v. Rosenbaum. 15 N. Y. Civ. Proc. Rep. 389, 4 N. Y. Supp. 
 
 210 83 
 
 Oesterriches v. Jones, 45 Hun. 240, 13 N. Y. Civ. Proc. Rep. 98, 10 
 
 N. Y. S. R. 350 101 
 
 Ogden v. Devlin, 13 Jones & S. 631 26, 47 
 
 Ogdensburgh & L. C. R. Co. v. Vermont & C. R. Co. 63 N. Y. 176. .364, 368 
 
 O'Hara v. Bropliy, 24 How. Pr. 379 140 
 
 O'Keefe, Re, 80 App. Div. 513, 81 N. Y. Supp. 118 271 
 
 V. Shipherd,- 23 Him, 171 8, 405 
 
 Olcott V. Maclean, 11 Hun, 394, Appeal dismissed, 73 N. Y. 603 226 
 
 439, 467 
 Olifers v. Belmont, 24 N. Y. Civ. Proc. Rep. 408, 67 N. Y. S. R. 329, 33 
 
 N. Y. Supp. 623 100, 102 
 
 V.Belmont, 15 Mi.sc. 120, 71 N. Y. S. R. 836, 36 N. Y. Supp. 813 396 
 Oliwell V. Verdenbalven, 17 N. Y. Civ. Proc. Rep. 362, 26 N. Y. S. R. 
 
 115, 7 N. Y. Supp. 99 38 
 
 Olmstead v. Keyes, 2 How. Pr. N. S. 1 421 
 
 O'Loughlin v. Hammond, 12 N. Y. Civ. Proc. Rep. 171 437 
 
 O'Neill V. Gray, 39 Hun, 566 143, 373 
 
 V. Howe, 16 Daly, 181, 9 N. Y. Supp. 746 501 
 
 Onondaga v. Briggs, 3 Denio, 173 2, 3 
 
 Onondaga County v. White, 38 Misc. 587, 77 N. Y. Supp. 1074 199 
 
 Opitz V. Hammen, 41 App. Div. 468, 58 N. Y. Supp. 987 381 
 
 Oppenheimer v. Walker, 3 Hun, 30, 5 Thomp. & C. 325 145 
 
 O'Reilly v. Davies, 4 Sandf. 722 113 
 
 Osborne v. Betts, 8 How. Pr. 31 354 
 
 v. Parker, 66 App. Div. 277, 72 N. Y. Supp. 894 254 
 
 O.sgood v. Osgood, 2 Paige, 621 176 
 
 O'Shea v. McLear, 15 N. Y. Civ. Proc. Rep. 69, 16 N. Y. S. R. 482, 1 
 
 N. Y. Supp. 407 93
 
 TABLE OF CASES CITED. CI 
 
 Ostrander v. Harper, 14 How. Pr. 16 338, 339, 342 
 
 Otis V. Hall, 3 Johns. 450 113 
 
 Ousterhout v. Day, 9 Jones, 114 53 
 
 Overheiser v. Morehouse, 16 Abb. N. C. 208, 2 How. Pr. N. S. 257, 8 
 
 N. Y. Civ. Proc. Rep. 11 245, 249, 253 
 
 Overing v. Russell, 28 How. Pr. 151 93 
 
 Overton v. National Bank, 3 N. Y. S. R. 169 5 
 
 Owen V. Mason, 18 How. Pr. 156 24 
 
 Owens, Re, 31 Abb. N. C. 480, 62 N. Y. S. R. 107, 30 N. Y. Supp. 348. . 58 
 
 P. 
 
 Pach V. Gilbert, 29 N. Y. S. R. 833, 9 N. Y. Supp. 546 486 
 
 Page, Re, 107 N. Y, 266, 14 N. E. 193 259 
 
 Palmer v. Dewitt, 42 How. Pr. 466 489 
 
 V. Palmer, 24 Misc. 217, 53 N. Y. Supp. 538 43 
 
 V. Smedley, 13 Abb. Pr. 185 106 
 
 Pangburn v. Miles, 10 Abb. N. C. 42 150 
 
 Pardee v. Schenck, 11 How. Pr. 500 484 
 
 Parish, Re, 29 Barb. 627 200 
 
 V. New York Produce Exchange, 54 App. Div. 323, 66 N. Y. Supp. 
 
 613 374 
 
 Park V. Moore, 4 Hill, 592 80 
 
 V. Musgrave, 6 Hun, 223 417 
 
 V. New York C. & H. R. R. Co. 57 App. Div. 569, 68 N. Y. Supp. 
 
 400, 1145 506 
 
 v. Peck, 1 Paige,. 477 231 
 
 v. Spaulding, 10 Hun, 128 394 
 
 Parker v. Austin, 15 N. Y. Week. Dig. 474 146 
 
 V. Baxter, 19 Hun, 410 501 
 
 V. Day, 12 Misc. 510, 67 N. Y. S. R. 378, 33 N. Y. Supp. 676 32 
 
 v. Murray, 57 N. Y. S. R. 949, 14 N. Y. Supp. 79 135 
 
 V. Spear, 62 How. Pr. 394 35 
 
 v. Speer, 17 Jones & S. 1, 16 N. Y. Week. Dig. 417, Affirming 4 
 
 Month. L. Bull. 29, 62 How. Pr. 394 511, 512 
 
 Parkhill v. Hillman, 12 How. Pr. 353 239 
 
 Parkinson v. Scott, 5 Misc. 261, 25 N. Y. Supp. 102, 31 Abb. N. C. 44 81 
 
 344 
 
 Parrott v. Sawyer, 26 Hun, 466 348, 357, 452 
 
 Parsons v. Bowdoin, 17 Wend. 14 54 
 
 Patchen v. Delaware & H. Canal Co. 62 App. Div. 543, 71 N. Y. Supp. 
 
 122 427 
 
 Paterson Bros. v. Goorley, 14 Misc. 56, 69 N. Y. S. R. 651, 35 N. Y. 
 
 Supp. 297 215
 
 Cll TABLE OF CASES CITED. 
 
 Patten v. Stitt, 50 N. Y. 591, Affirming 2 Jones & S. 346 444, 455 
 
 Patterson, Re, 12 App. Div. 123, 42 N. Y. Supp. 495 30 
 
 V.Buchanan, 40 App. Div. 493, 29 N. Y. Civ. Proc. Rep. 238, 
 
 58 N. Y. Supp. 179 251 
 
 V.Burnett, 1 Silv. Sup. Ct. 166, 17 N. Y. Civ. Proc. Rep. 116, 
 
 4 N. Y. Supp. 921, 23 N. Y. S. R. 363 2, 382 
 
 V. Knapp, 83 Hun, 492, 24 N. Y. Civ. Proc. Rep. 251, 65 N. Y, 
 
 S. R. 188, 32 N. Y. Supp. 32 501 
 
 V. Patterson, 4 App. Div. 146, 74 X. Y. S. R. 502, 38 N. Y. Supp. 
 
 637 177 
 
 V. Patterson, 59 N. Y. 574, 17 Am. Rep. 384 237 
 
 Patton v. Miller, 28 App. Div. 517, 51 K Y. Supp. 202 203 
 
 V. Patton, 13 Misc. 726, 69 N. Y. S. R. 567, 35 N. Y. Supp. 250.. 180 
 Peck V. Fonda, J. & G. R. Co. 3 Silv. Sup. Ct. 10, 25 N. Y. S. R. 95, 
 
 3 N. Y. Supp. 379 93 
 
 V. Cohen, 8 Jones & S. 142 99 
 
 V. Plwenix Ins. Co. 2 Silv. Sup. Ct. 342, 24 N. Y. S. R. 646, 18 
 
 N. Y. Week. Dig. 505, 5 N. Y. Supp. 543 317 
 
 V. Yorks, 75 N. Y. 421 421 
 
 Peet V. Kent, 5 N. Y. S. R. 134 417 
 
 V. Kimball, 58 App. Div. 329, 68 N. Y. Supp. 1010 85 
 
 V. Warth, 1 Bosw. 653 123, 127, 471 
 
 Peetch V. Quinn, 12 Misc. 61, 1 N. Y. Anno. Cas. 282, 24 N. Y. Civ. 
 
 Proc. Rep. 394, 66 N. Y. S. R. 689, 33 N. Y. Supp. 87 420 
 
 Peetsch v. Quinn, 6 Misc. 52, 56 N. Y. S. R. 607, 26 N.Y. Supp. 729. .. 21 
 
 Pelkey v. Saranac, 67 App. Div. 337, 73 N. Y. Supp. 493 333 
 
 Peltz v. Schultz, 48 N. Y. S. R. 2, 20 N. Y. Supp. 336 239 
 
 Pendleton v. Johnson, 21 N. Y. Civ. Proc. Rep. 272, 18 X. Y. Supp. 
 
 211 422, 424 
 
 Penfleld v. James, 4 Hun, 69 442 
 
 V. James, 56 X. Y. 659 288 
 
 V. White, 8 How. Pr. 88 60 
 
 Pennell v. Wilson, 5 Robt. 674, 2 Robt. 505, 2 Abb. Pr. X. S. 466 447 
 
 People V. Alden, 112 X. Y. 117, 19 X. E. 516, 20 X. Y. S. R. 496. .188, 189 
 
 V. Albany & S. R. Co. 5 Lans. 25 399 
 
 V. Albany & V. R. Co. 16 Abb. Pr. 465 371 
 
 V. Banker, 8 How. Pr. 258 297 
 
 V. Barone, 101 X. Y. 475, 55 X. E. 1091 187, 461 
 
 V. Bond Street Sav. Bank, 10 Abb. X. C. 15 311 
 
 V. Brookl^^l, 6 App. Div. 202, 39 X. Y. Supp. 809 69 
 
 V. Carr, 54 Hun, 443, 28 X'. Y. S. R. 287, 7 X. Y. Supp. 724 183 
 
 V. Clarke, 9 X. Y. 349 378 
 
 V. City Bank, 96 X. Y. 32 311
 
 TABLE OF CASES CITED. Clll 
 
 People V. Commercial Alliance Ins. Co. 91 Hun, 389. 70 X. Y. S. R. 823, 
 
 36 N. Y. Supp. 248 309 
 
 V. Continental L. Ins. Co. 15 N. Y. Week. Dig. 569 497, 499 
 
 V. Di Medicis, 39 Misc. 438, 81 N. Y. Supp. 212 185 
 
 V. Feeter, 12 Wend. 480 390 
 
 V. Ferraro, 162 N. Y. 545, 57 X. E. 167 187, 461 
 
 v.Fitchburg R. Co. 133 N. Y. 239, 44 N. Y. S. R. 907, 30 N. E. 
 
 1011 308, 358 
 
 V. Fuller, 35 Misc. 189, 71 N. Y. Supp. 487 185 
 
 V. Genesee Valley Canal R. Co. 95 N. Y. 660 381 
 
 V. Giroux, 29 Hun, 248 379 
 
 V. Glasgow, 30 App. Div. 94, 52 N. Y. Supp. 24 94 
 
 V. Globe Mut. L. Ins. Co. 65 How. Pr. 239, 11 Abb. N. C. 145 231 
 
 V. Heiselbetz, 30 App. Div. 199, 51 N. Y. Supp. 085 185 
 
 v.Hodnett, 81 Hun, 137, 02 N. Y. S. R. 699, 30 N. Y. Supp. 735. 189 
 
 V. John D. Locke Co. 12 N. Y. Civ. Proc. Rep. 31 230 
 
 T. McElvaney, 36 Misc. 316, 10 Anno. Cas. 316, 73 N. Y. Supp. 
 
 639 185 
 
 V. Mercantile Credit Guaranty Co. 35 Misc. 755, 72 N. Y. Supp. 
 
 373 451, 452 
 
 T. New York & S. I. Ferry Co. 7 Hun, 105 363 
 
 V. Xew York &. S. I. Ferry Co. 68 N. Y. 71 371 
 
 V. New York C. R. Co. 30 How. Pr. 148 356, 364 
 
 V. New York C. R. Co. 29 N. Y. 418, Further Appeal, 30 How 
 
 Pr. 14S 348, 349, 364 
 
 V. New York, L. E. & W. R. Co. 47 Hun, 44, 28 N. Y. Week. Dig. 
 
 16, 14 N. Y. S. R. 168 194 
 
 V. Oakes, 1 How. Pr. 195 441 
 
 T.Page, 39 App. Div. 110, 56 N. Y. Supp. 834, 58 N. Y. Supp. 
 
 239 381 
 
 V. Rochester Dime Sav. & L. Asso. 7 App. Div. 350, 39 N. Y. 
 
 Supp. 939 374 
 
 ■V. Rockaway Beach Improv. Co. 28 Hun, 356 374 
 
 V. Security L. Ins. & Annuity Co. 23 Hun, 596 310 
 
 v. Smith, 47 N. Y. S. R. 170, 20 N. Y. Supp. 332 188, 189 
 
 V. Strauss, 48 App. Div. 198, 62 N. Y. Supp. 812 189 
 
 T. Tanner, 38 N. Y. S. R. 349, 14 N. Y. Supp. 334, Affirmed, 128 
 
 N. Y. 416, 28 N. E. 364 188 
 
 T. Tilton, 18 Wend. 514 448 
 
 V. Tweed, 5 Hun, 832, Affirmed in 63 N. Y. 202 87, 432 
 
 T.Ulster & D. R Co. 58 Hun 266, 34 N. Y. S. R. 983, 12 X. Y. 
 
 Supp. 303, Affirmed, 128 N. Y. 240, 40 X. Y. S. R. 280, 28 
 
 N. E. 635 374
 
 CIV TABLF OF CASES CITED. 
 
 People ex rel. Wallace, v. Abbott, 107 N. Y. 225, 13 N. E. 779, 13 N. Y. 
 
 Civ. Proc. Rep. 163, 27 N. Y. Week. Dig. 276, 11 N. Y. S. 
 
 R. 387 170 
 
 Winans, v. Adams, 128 N. Y. 129, 21 N. Y. Civ. Proc. Rep. 159. 
 
 38 N. Y. S. R. S80, 27 N. E. 1075 378, 37^ 
 
 Hadley, v. Albany County, 28 How. Pr. 22 184 
 
 Bailey, v. Albany Mayor's Court Judges, 9 Wend. 486 237, 421 
 
 Martin, v. Albright, 23 How. Pr. 306, 14 Abb. Pr. 195, 305 192 
 
 Law^-er's Surety Co. v. Anthony, 7 App. Div. 132, 40 N. Y. 
 
 Supp. 279 218 
 
 Smith, V. Asten, 1 N. Y. S. R. 37 212 
 
 Bleecker Street & F. F. R. Co. v. Barker, 90 Hun, 253, 70 N. Y. 
 
 S. R. 204, 35 N. Y. Supp. 803 213, 468 
 
 Lorillard, v. Barker, 55 N. Y. S. R. 207, 25 N. Y. Supp. 393, 
 
 Affirmed, 141 N. Y. 118, 23 L. R. A. 95, 56 X. Y. S. R. 586, 
 
 35 N. E. 1073 212 
 
 Clute, V. Boardman, 41 N. Y. 362 443 
 
 Cook, V, Board of Police, 17 Abb. Pr. 324, 26 How. Pr. 450 213 
 
 Watson, V. Boffett, 75 App. Div. 365, 78 N. Y. Supp. 175 215 
 
 Burroughs, v. Brinkerhoff, 68 N. Y. 259 192 
 
 Pteynolds, v. Buffalo, 9 Misc. 403, 61 N. Y. S. R. 692, 29 N. Y. 
 
 Supp. 1071 19 
 
 Warren, v. Carter, 46 Hun, 444 212 
 
 Warren, v. Carter, 119 N. Y. 654, 30 N. Y. S. R. 116, 23 N. E. 
 
 927 212 
 
 Kilner, v. Cheritree, 5 N. Y. Week. Dig. 65 213 
 
 Eckerson, v. Christie, 14 N. Y. S. R. 525 212 
 
 Oprandy, v. Ciarcia, 49 App. Div. 90, 63 N. Y. Supp. 497 214 
 
 McDonald, v. Clausen, 61 App. Div. 184, 70 N. Y. Supp. 417 194 
 
 Sanders, v. Colborne, 20 How. Pr. 378 162, 193, 195, 440 
 
 Fairfield Chemical Co. v. Coleman, 18 Abb. N. C. 246 211 
 
 Cantwell, v. Coler, 61 App. Div. 598, 70 N. Y. Supp. 755 186, 482 
 
 Mullen, V. Coler, 61 App. Div. 538, 70 N. Y. Supp. 639 186 
 
 Rolf, v. Coler, 58 App. Div. 347, 68 K Y. Supp. 1101 193 
 
 Lee, V. College Point, 89 Him, 194, 68 N. Y. S. R. 878, 34 N. Y. 
 
 Supp. 11, 45 211 
 
 Scudder, v. Cooper, 10 N. Y'. Week. Dig. 77 217 
 
 V. Cooper, 20 Hun, 486 217 
 
 Mann, v. Covert, 18 N. Y. Week. Dig. 458 211 
 
 Western U. Teleg. Co. v. Dolan, 126 N. Y. 166, 12 L. R. A. 251, 
 
 27 N. E. 269 213 
 
 Coler, v. Dutchess County, 3 How. Pr. 380 192 
 
 Weeks v. Ewen, 8 Abb. Pr. 359 195
 
 TABLE OF CASES CITED. CV 
 
 People ex rel. New York C. & H. R. R. Co. v. Fcitner, 5S App. Div. 343, 
 
 68 X. Y. Supp. 1058 213: 
 
 Roth. V. Fiteh, 51 N. Y. Supp. 683 185 
 
 JalTe, V. Fitzpatrick, 35 Misc. 456, 71 N. Y. Supp. 191 12, 41 
 
 Giles V. Flagg, 25 Barb. 652, 15 How. Pr. 36 319 
 
 Smith, V. Flagg, 5 Abb. Pr. 232 192 
 
 Dowd, V. Fonda, 22 X. Y. Week. Dig. 477 212 
 
 Acritelli v. Foster, 40 Misc. 19, 81 N. Y. Supp. 212 185 
 
 Anibal, v. Fulton County, 53 Eun, 254, 6 N. Y. Supp. 591 205- 
 
 Crouse, v. Fulton County, 70 Hun, 500, 53 N. Y. S. R. 796, 24 
 
 N. Y. Supp. 397, Affirmed, 139 N. Y. 656, 54 N. Y. S. R. 934, 
 
 35 N. E. 208 511 
 
 Peck, V. Genesee County, 61 App. Div. 545, 70 N. Y. Supp. 578. . 187 
 New York Soc. for Prevention of Cruelty to Children v. Gilmore, 
 
 88 N. Y. 626, 15 N. Y. Week. Dig. 206 187, 218 
 
 Shelton, v. Gower, 44 How. Pr. 26 213 
 
 Cole, v. Greene County, 15 Abb. N. C. 447 192 
 
 Levy, V. Grout, 37 Misc. 430, 75 N. Y. Supp. 290 180 
 
 Kipp, V. Harris, 6 Abb. Pr. 30 192 
 
 Smith, V. Hasbrouck, 54 How. Pr. 418 19* 
 
 Hall, V. Hempstead Town Auditors, 42 App. Div. 250, 59 N. Y. 
 
 Supp. 10 162, 195, 210 
 
 Barry, v. Herkimer Common Pleas, 4 Wend. 210 4 
 
 Boyd, V. Hertle, 46 App. Div. 505, 61 N. Y. Supp. 965 193 
 
 Woolf, v. Jacobs, 5 Hun, 428, Affirmed, 66 N. Y. 8 181, 512 
 
 v. Jacobs, 66 N. Y. 8 2ia 
 
 Holbrook, v. Jefferson County Common Pleas Judges, 2 Wend. 
 
 301 193 
 
 Rome, W. & O. R. Co. v. Jones, 43 Hun, 131, N. Y. S. R. 112, 
 
 25 N. Y. Week. Dig. 487 2ia 
 
 Wallkill Valley R. Co. v. Kealor, 67 How. Pr. 277, Affirmed, 36 
 
 Hun, 592, 17 Abb. N. C. 369 211 
 
 Wallkill Valley R. Co. v. Keator, 101 N. Y. 612, 3 N. E. 903. . . 212 
 
 Ryder, v. Kings County, 76 Hun, 71, 27 N. Y. Supp. 857 44ft 
 
 Ulster County v. Kingston, 101 N. Y. 82, 3 How. Pr. N. S. 452, 
 
 4 N. E. 348 204r 
 
 Delta Kappa Epsilon Soc. v. Lawlor, 36 Misc. 594, 73 N. Y. 
 
 Supp. 1082 212 
 
 Lumlay, v. Lewis, 28 How. Pr. 159 195- 
 
 Olin, V. Loclcsvood, 9 Daly, 68 221 
 
 Mallard, v. Madison County Judges, 7 Cow. 423 70 
 
 Meyer, v. Masonic Guild & Mut. Ben. Asso. 22 N. Y. Civ. Proc. 
 
 Rep. 74, 18 N. Y. Supp. 806 196, 513-
 
 <Cvi TABLE OF CASES CITED. 
 
 People ex rel. Barry, v. Mercein, 3 Hill, 399, 38 Am. Dec. 644 328 
 
 Allen, V. Murray, 23 N. Y. Civ. Proc. Rep. 53, 22 N. Y. Supp. 
 
 1051 70 
 
 Lockport, V. Niagara County, 50 How. Pr. 353 161 
 
 Ransom, v. Niagara County, 78 N. Y. 622 184 
 
 Smith, V. Nelliston, 79 N. Y. 638, 9 N. Y. Week. Dig. 298. .210, 213 
 Allison, V. New York Bd. of Edu. 26 App. Div. 208, 49 N. Y. 
 
 Supp. 915 202, 511 
 
 Van Riper, v. New York Catholic Protectory, 106 N. Y. 604, 27 
 
 N. Y. Week. Dig. 260, 5 N. Y. Crim. Rep. 499, 11 N. Y. 
 
 S. R. 155, 13 N. E. 435 213 
 
 Fishers, v. New York Common Pleas, 18 Wend. 534 193 
 
 Fryer, v. New York Common Pleas, 18 Wend. 579 113 
 
 Donovan, v. New York Fire Comrs. 5 Abb. N. C. 144 210 
 
 Stilwell, V. New Y'ork Produce Exchange, 64 How. Pr. 523 195 
 
 Twenty-Third Street R. Co. v. New York Tax Comrs. 95 N. Y. 
 
 559 5 
 
 Smith, v. New York T. & A. Comrs. of Taxes, 101 N. Y. 651. . . 212 
 
 Hale, v. Onondaga Common Pleas, 3 Wend. 304 193 
 
 Brown, v. Onondaga County, 3 How. Pr. N. S. 1, 4 N. Y. Crim. 
 
 Rep. 102, Affirmed, 102 N. Y. 691 184 
 
 Scribner, v. Peekskill Water Comrs. 58 App. Div. 554, 69 N. Y. 
 
 Supp. 93 194 
 
 Maun, v. Peterson, 31 Hun, 412 212 
 
 Ogdensburgh & L. C. R. Co. v. Pond, 13 Abb. N. C. 1 212 
 
 Oak Hill Cemetery Asso. v. Pratt, 66 Hun, 578, 50 N. Y. S. R. 
 
 355, 21 N. Y. Supp. 853, Affirmed, 138 N. Y. 655, 53 N. Y. 
 
 S. R. 931, 34 N. E. 513 212, 213 
 
 Keene, v. Queens County, 83 Hun, 237, 64 N. Y. S. R. 159, 31 
 
 N. Y. Supp. 569, Affirmed, 145 N. Y. 597, 40 N. E. 164. .195. 196 
 
 Morris, v. Randall, 8 Daly, 81 451 
 
 Raplee v. Reddy, 43 Barb. 539 211 
 
 Smither, v. Richmond, 5 Misc. 26, 25 N. Y. Supp. 144 193 
 
 Garbutt, v. Rochester & S. L. R. Co. 76 N. Y. 294 196 
 
 Fargo, v. Rosendale, 76 Hun, 112, 57 N. Y. S. R. 377, 27 N. Y. 
 
 Supp. 825, Affirmed, 142 N. Y. 670, 37 N. E. 571 188 
 
 Niagara Falls Hydraulic Power & Mfg. Co. v. Russell, 57 Hun, 
 
 53, 32 N. Y. S. R. 20, 10 N. Y. Supp. 391 211, 212 
 
 Thurman v. Ryan, 88 N. Y. 142, 42 Am. Rep. 238 211 
 
 Muller, V. Schodack Highway Comrs. 27 How. Pr. 158 213 
 
 Cagger, v. Schuyler County, 2 Abb. Pr. N. S. 78 195 
 
 Atty. Gen. v. Security L. Ins. Co. 71 N. Y. 222 310 
 
 Green, v. Smith, 13 Hun, 227 210
 
 TABLE OF CASES CITKD. CVU 
 
 People ex rel. James, v. Soci(?ty for Prevention of Cruelty to Children, 
 
 19 Misc. 677, 44 N. Y. Supp. 1100 328 
 
 Bates, V. Speed, 73 Hun, 302, 57 N. Y. S. K. 295, 26 N. Y. Supp. 
 
 254 161, 194 
 
 White, V. Steuben Common Picas, 12 Wend. 200 2 
 
 Young, V. Stout, 10 Misc. 247, 31 N. Y. Supp. 421 328 
 
 Sinkler, v. Terry, 42 Hun, 273, 5 N. Y. S. R. 121, 25 N. Y. Week. 
 
 Dig. 307 214 
 
 Bray, v. Ulster County, 65 How. Pr. 327 195, 196 
 
 Smart, v. Washington County, 66 App. Div. 66, 72 N. Y. Supp. 
 
 568 204 
 
 Staudacher v. Webb, 16 Hun, 42 188 
 
 Morgan v. Westchester County, 39 N. Y. S. R. 798, 15 N. Y. 
 
 Supp. 580 367 
 
 Boston, H. T. & W. R. Co. v. Wilder, 3 N. Y. S. R. 159 211 
 
 Canady, v. Williams, 90 Hun, 501, 71 N. Y. S. R. 401, 36 N. Y. 
 
 Supp. 65 211 
 
 People's Bank v. Thompson, 24 N. Y. Civ. Proc. Rep. 62, 63 N. Y. 
 
 S. R. 165, 30 N. Y. Supp. 858 28 
 
 Percival v. Percival, 28 N. Y. Week. Dig. 155, 14 N. Y. S. R. 255 179 
 
 Peri v. New York C. & H. R. R. Co. 152 N. Y. 521, 46 N. E. 849 15 
 
 16, 17, 22, 23, 24, 25, 40 
 Perine v. Wiggins, 18 X. Y. Civ. Proc. Rep. 172, 10 N. Y. Supp. 939. . 279 
 
 281 
 Perkins v. Brainard Quarry Co. 11 ilisc. 337, 65 N. Y. S. R. 417, 32 
 
 N. Y. Supp. 236 92, 98 
 
 v.Heert, 14 Misc. 425, 71 N. Y. S. R. 485, 36 N. Y. Supp. 434. . . 377 
 
 V. Hinman, 19 Johns, 237 428 
 
 v. Taylor, 19 Abb. Pr. 146 500 
 
 V. Whitney, 34 N. Y. S. R. 951, 12 X. Y. Supp. 184. . : 382 
 
 Perrigo v. Dowdall, 25 Hun, 234 424, 425 
 
 Perrine v. Hotchkiss, 2 Thomp. & C. 370 449 
 
 Perry v. Chester, 53 N. Y. 240 17, 43 
 
 v. Griffin, 7 How. Pr. 263 494 
 
 V. Livingston, 6 How. Pr. 404 397, 4S9, 491 
 
 Persoe & B. Paper Works v. Willett, 14 Abb. Pr. 119 329 
 
 Peterson, Re, 74 Hun, 93, 26 N. Y. Supp. 405 48 
 
 v. Dickel, 8 Abb. Pr. 259 459 
 
 V. Felt, 61 App. Div. 176, 70 X. Y. Supp. 440 67 
 
 Petrakion v. Arbeely, 23 N. Y. Civ. Proc. Rep. 183, 26 X. Y. Supp. 731 102 
 
 Pettee v. Pettee, 45 N. Y. S. R. 549, 19 X. Y. Supp. 311 176 
 
 Pettibone v. Drakeford, 1 How. Pr. X. S. 141 431 
 
 Petty V. Metropolitan Street R. Co. 33 :\Ii.«c. 738, 68 X. Y. Supp. 
 
 730 79, 81
 
 CVlll TA]{J-1'; Of CASES CITED. 
 
 Pfaudler Barm Extracting Ikinging Apparatus Co. v. Pfaiuller, 39 Hun, 
 
 191, 3 How. Pr. N. S. 253 478. 
 
 V. Sargent, 43 Hun, 154, 25 N. Y. Week. Dig. 483, 5 N. Y. S. R. 
 
 413 442, 506. 
 
 Pfeifer v. Supreme Lodge of B. S. Benev. Soc. 54 App. Div. 200, 66 
 
 N. Y. Supp. 604 331, 333- 
 
 Pfister V. Stumni, 7 Misc. 526, 27 N. Y. Supp. 1000 279, 28»- 
 
 Pharis v. Gere, 31 Hun, 443 64 
 
 Phelps V. Cole, 3 N. Y. Code Pvep. 157 230- 
 
 V. Wasson, 2 How. Pr. 120 72. 
 
 V. Wood, 46 How. Pr. 1 133- 
 
 Phenix v. Townsbend, 2 N. Y. Code Rep. 2 327 
 
 Philadelphia v. Postal Tcleg. Co. 1 App. Div. 387, 72 N. Y. S. R. 617, 
 
 37 N. Y. Supp. 291 27, 28, 47 
 
 Philbiu V. Patrick, 22 How. Pr. 1 497 
 
 Philbrook v. Kellogj;, 21 Hun, 238 511 
 
 Phillips V. Liebmann, 10 App. Div. 128, 41 N. Y. Supp. 1020 419< 
 
 V. Simmons, 20 How. Pr. 342, 11 Abb. Pr. 287 178 
 
 V. Stagg, 2 Edw. Ch. 108 11 
 
 Phipps V. Carman, 23 Hun, 150, Affirmed 84 N. Y. 650 500 
 
 V. Carman, 26 Hun, 518 434, 462: 
 
 V. Van Cott, 15 How. Pr, 110 102, 397 
 
 Phoenix v. Hill, 3 Johns. 249 81, 231 
 
 Phoenix Bridge Co. v. Keystone Bridge Co. 10 App. Div. 176, 41 N. Y. 
 
 Supp. 891 417 
 
 Piatti, Re, 26 Misc. 434, 56 N. Y. Supp. 132 498 
 
 Pickard v. Yencer, 21 Hun, 403, 10 N. Y. Week. Dig. 271 38 
 
 Pickert v. Windecker, 73 Hun, 476, 56 N. Y. S. R. 12, 26 N. Y. 
 
 Supp. 437 396- 
 
 Pickett V. Barron, 29 Barb. 505 446 
 
 Pierano v. Merritt, 148 N. Y. 293, 42 N. E. 718 302, 30^ 
 
 Pierce v. Brown, 8 Jones & S. 398 394, 395 
 
 V. Lees, 17 App. Div. 346, 45 N. Y. Supp. 294 425 
 
 V. Waters, 10 N. Y. Week. Dig. 432 28 
 
 Pieris, Re, 82 App. Div. 446, 81 N. Y. Supp. 927 36 
 
 Pierrepont v. Lovelass, 4 Hun, 681 476 
 
 Pierret v. Moller, 3 E. D. Smith, 574 110 
 
 Pierson v. Drexel, 1 1 Abb. jS'. C. 150 308 
 
 V. Lydecker, 1 Law Rec. 177 429 
 
 V. Sallord, 30 Hun, .-)21 18, 22 
 
 Pike V. Johnson, 47 N. Y. 1 283 
 
 V. Nash, 1 6 How. Pr. 53 480- 
 
 Pilger V. Gore, 12 Abb. Pr. 244, 21 How. Pr. 155 84
 
 TABLE OF CASES CITED. CIX 
 
 Pilgrim v. Donelly, 1 How. Pr. N. S. 291, 15 Abb. N. C. 240 98 
 
 Pilkington v. Brookljai Heights R. Co. 49 App. Div. 22, 30 N. Y. Civ. 
 
 Proc. Rep. 276, 63 N. Y. Supp. 211 37 
 
 Finder v. Morris, 3 Cai. 165 17 
 
 V. Stoothoff, 7 Abb. Pr. X. S. 433 126, 365 
 
 Pinkernelli v. Bischoff, 2 Abb. N. C. 107 249 
 
 Pinsker v. Pinsker, 44 App. Div. 501, 60 N. Y. Supp. 902 355 
 
 Pitchell, Re, 10 Daly, 102 220 
 
 Pitcher v. Hoopla, 49 N. Y. S. R. 356, 21 N. Y. Supp. 66 22 
 
 Pitman v. Johnson, 35 Hun, 38, 15 Abb. N. C. 472 233 
 
 Pitt V. .Davison, 37 N. Y. 235 513 
 
 Pixley V. Rockwell, Sheldon, 267 394 
 
 Place V. Hayward, 19 Jones & S. 509, Affirmed 100 N. Y. 626, 3 N. E. 
 
 199 240 
 
 v. Hayward, 8 N. Y. Civ. Proc. Rep. 352, 3 How. Pr. N. S. 59. . . 43 
 
 Plainer v. Lehman, 26 Hun, 374 291, 292 
 
 Piatt V. Sherry, 7 Wend. 238 161 
 
 Plattsburgh, Re, 27 App. Div. 353, 50 N. Y. Supp. 356 203, 438 
 
 Platz v. Cohoes, 8 Abb. N. C. 392 450 
 
 Podmore v. Seamen's Bank for Savings, 30 Misc. 416, 62 N. Y. Supp. 
 
 526 333 
 
 v. South Brooklyn Sav. Inst. 27 Misc. 120, 57 N. Y. Supp. 406. . . 333 
 
 Poillon V. Cudlipp, 50 How. Pr. 366 361 
 
 V. Poillon, 75 App. Div. 536, 78 N. Y. Supp. 323 175 
 
 Pomares v. Duncan, 25 Abb. N. C. 58, 11 N. Y. Supp. 380 73 
 
 Pomeranz v. Marcus, 40 Misc. 442, 82 N. Y. Supp. 707 16 
 
 Pomeroy v. Hulin, 7 How. Pr. 161 281, 287, 486 
 
 Pool, Re, 8 Misc. 284, 59 N. Y. S. R. 214, 28 N. Y. Supp. 707 224 
 
 V. Osborn, 8 N. Y. Civ. Proc. Rep. 232 288, 353 
 
 Poole V. Belcha, 131 N. Y. 200, 30 N. E. 53, 22 N. Y. Civ. Proc. Rep. 
 
 67, 42 N. Y. S. R. 856 20, 22 
 
 Porter v. Cobb, 25 Hun, 184 163, 303 
 
 V. Jones, 7 How. Pr. 192 80 
 
 V. Parmly, 7 Jones & S. 219 47, 48 
 
 Post, Re, 5 App. Div. 113, 38 N. Y. Supp. 977 276 
 
 Re, 30 Misc. 551, 64 N. Y. Supp. 369 262 
 
 V. Charlesworth, 66 Hun, 256, 21 N. Y. Supp. 168 405 
 
 V. Doremus. 60 N. Y"". 371 413 
 
 V. Jenkins, 2 How. Pr. 33 61 
 
 Potter V. Carpenter, 56 How. Pr. 89 495 
 
 V. Farrington, 24 Hun, 551, 12 N. Y. Week. Dig. 283 374 
 
 Pountney v. Pountney, 32 N. Y. S. R. 334, 10 N. Y. Supp. 192 174, 383 
 
 Powell V. New York C. & H. R. R. Co. 14 N. Y. Civ. Proc. Rep. 125, 3 
 
 N. Y. Supp. 763 489
 
 ex TABLE OF CASES CITED. 
 
 Powell V. Rust, 8 Barb. 567, N. Y. Code Rep. N. S. 172 113, 114 
 
 V. Schenck, 6 App. Div. 130, 39 N. Y. Supp. 877 43a 
 
 Powell's Estate, 5 Dem. 281, 5 N. Y. S. R. 348 257 
 
 Power V. Athens, 19 Hun, 165 217, 512- 
 
 Powers V. Barr, 24 Barb. 142 368. 
 
 V. Conroy, 47 How. Pr. 84 112, 115, 371 
 
 V. Gross, 6 Hun, 234 113 
 
 V. Gross, 66 N. Y. 5 646, 130' 
 
 V.Manhattan R. Co. 20 N. Y. Civ. Proc. Rep. 78, 14 N. Y. Supp. 
 
 130 114, 454 
 
 V. Wolcott, 12 How. Pr. 565 361 
 
 Pratt V. Allen, 19 How. Pr. 450 400, 402. 
 
 V. Conkey, 15 How. Pr. 27 387, 388 
 
 V. Ramsdell, 7 Abb. Pr. 340 143 
 
 V. Ramsdell, 16 How. Pr. 59, 7 Abb. Pr. 340 140, 289 
 
 V. Stiles, 9 Abb. Pr. 150, 17 How. Pr. 211 14S 
 
 Prentiss v. Bowden, 14 Misc. 185, 2 N. Y. Anno. Cas. 163, 25 N. Y. 
 
 Civ. Proc. Rep. 144, 70 N. Y. S. R. 517, 35 N. Y. Supp. 653. . 460 
 
 v. Livingston, 60 How. Pr. 380 26 
 
 Preservaline Mfg. Co. v. Selling, 75 App. Div. 474, 78 N. Y. Supp. 299. . 67 
 
 Press Pub. Co. v. Baker, 36 N. Y. S. R. 879, 13 N. Y. Supp. 822 54 
 
 Price V. Mapes, 28 N. Y. S. R. 88, 7 N. Y. Supp. 747, Affirmed 132 
 
 N. Y. 552 223 
 
 V. Price, 61 Hun, 604, 16 N. Y. Supp. 359 45& 
 
 Pritchard v. Pritchard, 4 Abb. N. C. 298 178 
 
 Proctor v. Soulier, 8 App. Div. 69, 40 N. Y. Supp. 459 132, 355, 367 
 
 Prospect Ave. Re, 85 Hun, 257, 1 X. Y. Anno. Cas. 347, 66 N. Y. S. R. 
 
 497, 32 N. Y. Supp. 1013 25- 
 
 Prospect Park & C. I. R. Co. Re, 67 N. Y. 371 198 
 
 Protestant Episcopal Public School, Re, 86 N. Y. 396 205, 451, 456 
 
 Proude v. Whiton, 15 How. Pr. 304 249 
 
 Provost V. Farrell, 13 Hun, 303 68, 507 
 
 V. Provost, 70 N. Y. 141 156 
 
 Prudden v. Loekport, 40 How. Pr. 46 61 
 
 Prj'or, Re, 67 App. Div. 316, 73 N. Y. Supp. 961 212, 217, 46» 
 
 Publishers' Printing Co. a. Gillin Printing Co. 16 Misc. 558, 74 N. Y. 
 
 S. R. 132, 25 N. Y. Civ. Proc. Rep. 327, 38 N. Y. Supp. 784. . 36 
 V. Gillen Printing Co. 15 Misc. 464, 74 N. Y. S. R. 669, 37 N. 
 
 Y. Supp. 198 22 
 
 Pugsley V. Kisselburgh, 10 N. Y. 420, 7 How. Pr. 402 281 
 
 Pulver V. Harris, 52 N. Y. 73 38 
 
 Purcell V. Purcell, 3 E.lw. Ch. 194 175 
 
 Purdy V. Morgan, 2 How. Pr. 149 482
 
 TABLE OF CASES CITED. CXI 
 
 Purdy V. Peters, 23 How. Pr. 328, 15 Abb. Pr. 100 475. 
 
 V. Purdy, 5 Cow. 14 81, 231 
 
 V. Stewart, 1 6 N. Y. Week. Dig. 284 48 
 
 Pursley v. Rodgers, 44 App. Div. 139, 01 y. Y. Supp. 1015.314, 315, 333, 334 
 
 Pustet V. Flannelly, 60 How. Pr. 67 404 
 
 Putney v. Tyng, 1 N. Y. S. R. 700 491 
 
 Pyne v. National S. S. Co. 44 N. Y. S. R. 71)1, 18 N. Y. Supp. 166 49a 
 
 Q. 
 
 Query v. Cooney, 34 Misc. 161, 68 N. Y". Supp. 800 505 
 
 Quick V. Wixon, 27 Hun, 592 303 
 
 Quin V. Bowe, 11 Abb. N. C. 115, 10 Daly, 505 393, 402 
 
 Quinby v. Claflin, 39 N. Y. S. R. 793, 15 N. Y. Supp. 508 39a 
 
 Quinlan v. Birge, 43 Hun. 483. 26 N. Y. Week. Dig. 161, 7 N. Y. S. R. 
 
 147 15, 22, 38, 39 
 
 V. Utica, 11 Hun, 217, Affirmed 74 N. Y^ 603 171 
 
 (,)uinn V. Quinn, 69 App. Div. 598, 75 N. Y. Supp. 83 370' 
 
 V. Winter, 22 Abb. X. C. 462. 25 X. Y. S. R. 85.1, 4 N. Y. Supp. 
 
 865 112, 118 
 
 Quinnan v. Clapp, 10 Abb. N. C. 394, note 2.S 
 
 R. 
 
 Raab, Re, 47 App. Div. 33, 62 N. Y. Supp. 332 25? 
 
 Raby, Re, 25 Misc. 240, 55 N. Y. Supp. 87 51 
 
 Race V. Gilbert, 102 N. Y\ 298, 10 N. Y. Civ. Proc. Rep. 1, 1 N. Y. 
 
 S. R. 661, 6 N. E. 592 503, 504 
 
 Raet v. Duviard-Dime, 21 X. Y'. S. R. 736, 4 X. Y. Supp. 156 365 
 
 Radley v. Brice, 6 Wend. 539 112 
 
 V. Fisher, 24 How. Pr. 404 253 
 
 Radway v. Graham, 4 Abb. Pr. 468 450 
 
 Railway Advertising Co. v. Posner, 31 Misc. 783, 65 X. Y^. Supp. 226. . . 293 
 Ramsden v. Ramsden, 28 Hun, 285, 2 X. Y''. Civ. Proe. Rep. (Browne) 
 416, 2 X. Y'. Civ. Proc. Rep. (McCarty) 408, 15 X. Y. Week. 
 
 Dig. 481 183 
 
 Randall v. Albany City Xat. Bank, 1 X. Y. S. R. 592 94 
 
 V. Carpenter, 88 X. Y. 294 415- 
 
 V. Dusenbury, 7 Jones & S. 174, Affirmed in 63 X. Y. 645 32 
 
 V. Morning Journal Asso. 22 Misc. 715, 49 X. Y. Supp. 1064 482 
 
 V. Van Wagenen, 22 Jones & S. 483, Affirmed in 115 X. Y. 527, 
 22 X. E. 361, 12 Am. St. Rep. 828, 22 X. E. 366, 17 N. Y. 
 Civ. Proc. Rep. 403, 20 X. Y. S. R. 43 14, 24
 
 CXll TABI-E OF CASES CITED. 
 
 Kandals v. Thonton, 4 Alb. L. J. 76 116 
 
 Kandell v. Abrisqueta, 20 Abb. N. C. 292, 2 N. Y. City Ct. Rep. 303 433 
 
 li<indoir V. Foster, 3 E. D. Smith, 648, 4 Abb. Pr. 262 159 
 
 Randolph v. Foster, 3 E. D. Smith, 648, 4 Abb. i'r. 262 351. 387 
 
 Rank v. Grotc, 18 Jones & S. 275, Aliirmed 110 X. Y. 12, 17 N. E. 665. . 370 
 
 Ranney v. Peyser, 20 Hun, 11,5 Abb. N. C. 246 145 
 
 V. Russell, 3 Duer, 689 283 
 
 V. Stringer, 4 Bosw. 663 322, 335 
 
 Rapid Safety Filter Co. v. WyekolV, 20 Misc. 429, 45 N, Y. Supp. 1028. . 121 
 Rasch, Re, 26 Misc. 459, 28 N. Y. Civ. Proc. Rep. 98, 55 N. Y. Supp. 
 
 434 313, 320 
 
 Rasquin v. Knickerbocker Stage Co. 21 How. Pr. 293, 12 Abb. Pr. 324. , 38 
 
 liathbone v. McConnell, 20 Barb. 311, Affirmed in 21 N. Y. 466 109 
 
 V. MeConnell, 21 N. Y. 466 113 
 
 V, Warren, 10 Johns. 580 412 
 
 Eauth, Re, 10 Daly, 52 224 
 
 Rawlinson v. Brainerd & A. Co. 53 App. Div. 147, 65 N. Y. Supp. 762. . 365 
 
 Rawson v. Van Riper, 1 Thomp. & C. 370 168 
 
 Ray V. Van Hook, 9 How. Pr. 427 238 
 
 Reade v. Waterhouse, 52 N. Y. 587 225, 335 
 
 Real Estate Corporation v. Harper, 174 N. Y. 123, 60 N. E. 660 308 
 
 Reavy v, Clark, 18 N. Y, Civ. Proc. Rep. 272, 30 N. Y. S. R. 535, 
 
 9 N. Y. Supp. 216 14, 34 
 
 Redmond, Re, 54 App. Div. 454, 8 N. Y. Anno. Cas. 309. 66 N. Y. Supp. 
 
 782 49, 60 
 
 Reed, lie, 12 N. Y. S. R. 139 265 
 
 V. Batten, 22 Abb. N. C. 69, 17 N. Y. Civ. Proc. Rep. 272, 6 N. Y. 
 
 Supp. 708 390, 392 
 
 V. Reed, 52 N. Y. G51 269 
 
 Keeder v. Lockwood, 30 Misc. 531, 62 N. Y. Supp. 713 431, 434 
 
 V. Seely, 4 Cow. 548 231 
 
 Reeves, Re, 3 Silv. Sup. Ct. 291 273 
 
 Regan, Re, 167 N. Y. 338, 10 N. Y. Anno. Cas. 125, 60 N. E. 658 33 
 
 Re, 29 Misc. 527, 7 N. Y. Anno. Cas. 165, 61 N. Y. Supp. 1074, 
 
 Affirmed in 167 N. Y. 338, 60 N. E. 658 13 
 
 Reichel v. New York C. & H. R. R. Co. 18 N. Y. Civ. Proc. Rep. 240, 
 
 29 N. Y. S. R. 841, 9 N. Y. Supp. 414 130, 465, 496 
 
 Reid V. Gaedeke, 38 App. Div. 107, 29 N. Y. Civ. Proc. Rep. 212, 57 
 
 N. Y. Supp. 414 95, 98 
 
 Reilly v. Flynn, 10 Daly, 462 54 
 
 V. Lee, 85 Hun, 315, 66 N. Y. S. R. 460, 32 N. Y. Supp. 976 437 
 
 V. Lee, 33 App. Div. 201, 28 N. Y. Civ. Proc. Rep. 170, 6 N. Y. 
 
 Anno. Cas. 136, 53 X. Y. Supp. 336 390 
 
 V. Tullis, 10 Daly, 283 54
 
 TABLE OF CASES CITED. CXIH 
 
 Keimer v. Diedrick, 4 N. Y. Week. Dig. 230 289, 294 
 
 Remington v. Westermann, 21 Hun, 441, 10 N. Y. Week. Dig. 251 316 
 
 Remington Paper Co. v. O'Dougherty, 18 X. Y. Week. Dig. 190 374, 440 
 
 V. O'Doughterty, 6 N. Y. Civ. Pioc. Rep. 70 420 
 
 Rensselaer & S. R. Co. v. Davis, Re, 55 N. Y. 145 144, 200 
 
 Renwick v. New York Central Coal Co. 23 Jones & S. 444, 14 N. Y. 
 
 Civ. Proc. Rep. 114, 14 N. Y. S. R. 758 320 
 
 Requard v. Theiss, 18 Misc. 563, 42 N. Y. Supp. 460, Affirmed, 19 Misc. 
 
 480, 43 N. Y. Supp. 1060 216 
 
 Revere Copper Co. v. Dimmock, 29 Hun, 299 456 
 
 Rewey v. Riley, 17 N. Y. Week. Dig. 573 406 
 
 Reynolds, Re, 30 Misc. 397, 62 X. Y. Supp. 515 220 
 
 V. ^tna L. Ins. Co. 6 App. Div. 254, 39 N. Y. Supp. 885 133 
 
 v. Etna L. Ins. Co. 30 Misc. 152, 61 N. Y. Supp. 901 458 
 
 V. Hamil, N. Y. Code Rep. N. S. 230 157 
 
 V. Kaplan, 3 App. Div. 420, 38 N. Y. Supp. 764 28 
 
 V. Moore, 9 Wend. 35, 24 Am. Dec. 116 161, 170 
 
 Rhodes v. Linderman, 17 N. Y. Supp. 028 218 
 
 Rice V. Childs, 28 Hun, 303 128, 296 
 
 V. Whitlock, 16 Abb. Pr. 225 419 
 
 V. Wright, 3 How. Pr. 405 362 
 
 Rich V. Husson, 1 Duer, 617, 11 N. Y. Legal Obs. 119 3-5 
 
 V. Roberts, 18 X. Y. Civ. Proc. Rep. 205, 10 ^. Y. Supp. 915 284 
 
 Richards v. Salter, 6 Johns. Ch. 448 403 
 
 V. Sandford, 2 E. D. Smith, 349, 12 X. Y. Legal Obs. 94 93 
 
 Richardson v. Brookljni City & X. R. Co. 7 Hvm, 09 14, 34 
 
 V. Richardson, 5 Paige, 58 344 
 
 V. Sun Printing & Pub. Asso. 20 App. Div. 329, 46 X. Y. Supp. 
 
 814 72 
 
 V. TJiedford, 5 App. Div. 404, 39 X. Y. Supp. 307 79, 88 
 
 V. White, 27 How. Pr. 155 428, 429 
 
 Richmond v. Russell, 1 N. Y. Code Rep. 85 75 
 
 Richter v. Xew York, 24 Misc. 613, 54 X. Y. Supp. 150 137 
 
 Ridabock v. Metropolitan Elev. R. Co. 8 App. Div. 309, 75 X. Y. S. R. 
 
 336, 40 X. Y. Supp. 938 506 
 
 Rider v. Bates, 60 How. Pr. 129 61 
 
 Ridgway v. Symons, 14 Misc. 78, 25 X. Y. Civ. Proc. Rep. 23, 69 X. Y. 
 
 S. R. 552, 35 X. Y. Supp. 197 334 
 
 Riegelman v. Brunnings, 36 App. Div. 351, 56 X. Y. Supp. 755 93 
 
 Rieger v. S^van, 2 Misc. 407, 51 X. Y. S. R. 140, 21 X. Y. Supp. 1037. . . 443 
 
 Rielly v. Rosenberg, 57 App. Div. 408, 68 X. Y. Supp. 265 336 
 
 Riggs V. Waydel], 17 Hjin, 515, Affirmed 78 X. Y. 586 279 
 
 Riley v. Hulbert, 13 X. Y. Week. Dig. 101 374
 
 CXIV TABLE OF CASES CITED. 
 
 Ripley v. Gelston, 9 Johns. 201, 6 Ain. Dec. 271 5ft 
 
 Risley, Re, 10 Daly, 44 221 
 
 Ritch, Re, 76 Hun, 36, 59 N. Y. S. R. 023, 27 N. Y. Supp. 016 267, 269 
 
 Ritter v. Greason, 28 jVIise. 656, 59 N. Y. Supp. 1053 215 
 
 Rivenburgh v. Henness, 4 Lans. 208 305, 469 
 
 Robbins v. Hudson River R. Co. 7 Bosw. 1 94 
 
 Roberson v. Rochester Folding Box Co. 68 App. Div. 528, 73 N, Y. 
 
 Supp. 898 450 
 
 Roberti v. Carlton, 18 How. Pr. 466 34* 
 
 V. Methodist Book Concern, 1 Daly, 3 327 
 
 Roberts v. Aden, 2 N. Y. City Ct. Rep. 302 71 
 
 V. Clark, 10 How. Pr. 451 103 
 
 V. Doty, 31 Hun, 128 24 
 
 V. New York Elev. R. Co. 12 Misc. 345, 67 N. Y. S. R. 386, 33 
 
 N. Y. Supp. 685 372, 384, 408 
 
 V. New York Elev. R. Co. 155 N. Y. 31, 49 N. E. 262 399 
 
 V. Union Elev. R. Co. 84 Hun, 437, 65 N. Y. S. R. 592, 32 N. Y. 
 
 Supp. 387 2a 
 
 V. Warren, 3 How. Pr. N. S. 524 67 
 
 Robertson v. Barnum, 29 Hun, 657 314, 321 
 
 V. Robertson, 3 Paige, 387 338 
 
 V. Robertson, 1 Month. L. Bull. 85 44 
 
 Robins v. Gould, 1 Abb. N. C. 133 85, 352 
 
 Robinson, Re, 40 App. Div. 30, 57 N. Y. Supp. 523, Affirmed 160 N. Y. 
 
 448, 55 N. E. 11 271, 40a 
 
 v. Hall, 35 Hun, 214 101 
 
 V.Klein, 31 Abb. N. C. 481, 62 N. Y. S. R. 73, 30 N. Y. Supp. 
 
 262 431, 433, 434 
 
 V. Plimpton, 25 N. Y. 484 412 
 
 v. Wood, 39 N. Y. S. R. 466, 15 N. Y. Supp. 169 232 
 
 Robitzek v. Hect, 3 N. Y. Civ. Proc. Rep. 156 47S 
 
 Rochester & H. Valley R. Co. v. Rochester, 17 App. Div. 257, 45 N. Y. 
 
 Supp. 687 368 
 
 Rochester City Bank v. Rapelje, 12 How. Pr. 26 10* 
 
 Rochester Distilling Co. v. O'Brien, 72 Hun, 462, 55 N. Y. S. R. 149, 
 
 25 N. Y. Supp. 281 51 
 
 Rockfort V. Metropolitan Street R. Co. 50 App. Div. 261, 30 N. Y. 
 
 Civ. Proc. Rep. 285, 63 N. Y. Supp. 1036 37 
 
 Rockwell V. Carpenter, 25 Hun, 529 407 
 
 Rodgers v. Clement, 58 App. Div. 54, 68 N. Y. Supp. 594 65 
 
 Roe V. Boyle, 81 N. Y. 305 242 
 
 Roeber v. Dawson, 14 N. Y. Civ. Proc. Rep. 354 511 
 
 Rogers v. Degen, 4 Bosw. 669, 19 How. Pr. 119, 10 Abb. Pr. 313 351
 
 TABLE OF CASES CITED. CXV 
 
 Rogers v. Hitchcock, 9 Wend. 4G2 328 
 
 V. Tvers, 23 Hun, 424 407 
 
 V. Rogers, 2 Paige, 458 440, 476, 482 
 
 Rollins V. Barnes, 23 App. Div. 240, 5 N. Y. Anno. Cas. 153, 48 N. Y. 
 
 Supp. 779 143, 289 
 
 Roome v. Jennings, 3 Misc. 413, 52 N. Y. S. R. 507, 23 N. Y. Supp. 666. . 104 
 
 Rooney v. Second Ave. R. Co. 18 N. Y. 368 11, 38 
 
 Roosevelt v. Bulls Head Bank, 45 Barb. 579 294 
 
 V. New York & H. R. Co. 45 Barb. 554, 30 How. Pr. 226 292, 293 
 
 v. Schermerhorn, 32 Misc. 287, 66 N. Y. Supp. 366. 409 
 
 Root V. Van Duzen, 32 Hun, 63 24 
 
 Rosa V. Jenkins, 31 Hun, 384 133, 143, 244, 373, 442 
 
 V. Second Ave. R. Co. 20 App. Div. 334, 46 N. Y. Supp. 807. .341, 343 
 
 Rosche V. Kosmowski, 61 App. Div. 23, 70 N. Y. Supp. 216 142 
 
 Rose V. Post, 56 N. Y. 603 416 
 
 Rosso V. Second Ave. R. Co. 13 App. Div. 375, 43 N. Y. Supp. 216 338 
 
 Roth V. Meads, 20 How. Pr. 287 479 
 
 Rothchild v. Werner, 4 Month. L. Bull. 28 499 
 
 Rothery v. New York Rubber Co. 90 N. Y. 30 370 
 
 Rothschild v. Wilson, 24 Abb. N. C. 123, 19 N. Y. Civ. Proc. Rep. 76, 
 
 10 N. Y. Supp. 61 317 
 
 Rousso V. Vontrin, 41 How. Pr. 8 92, 98 
 
 Row V. Sherwood, 6 Johns. 109 161 
 
 Rowland, Re, 55 App. Div. 66, 8 N. Y. Anno. Cas. 397, 66 N. Y. Supp. 
 
 1121 13, 33 
 
 Royee v. Jones, 23 Hun, 452 395, 396, 399 
 
 Rudd V. Robinson, 54 Hun, 339, 27 N. Y. S. R. 98, 7 N. Y. Supp. 535, 
 Reversed, 126 N. Y. 113, 12 L. R. A. 473, 22 Am. St. Rep. 
 
 816, 36 N. Y. S. R. 500, 26 N. E. 1046 407 
 
 V. Rudd, 28 N. Y. W^eek. Dig. 229, 13 N. Y. S. R. 904 178 
 
 Ruger V. Fahy's Watch Case Co. 20 N. Y. Civ. Proc. Rep. 204, 37 N. Y. 
 
 S. R. 400, 13 N. Y. Supp. 788 130 
 
 Ruggles v. Fogg, 7 How. Pr. 324 ' 281, 285, 286 
 
 Rumsey v. New York & N. E. R. Co. 50 N. Y. S. R. 253, 21 N. Y. Supp. 
 
 193 
 
 Rimnell v. Griffin, 8 Abb. Pr. 39 287, 437 
 
 Ruppaner, Re, 7 App. Div. 11, 39 N. Y. Supp. 763 271 
 
 Russell, Re, 1 How. Pr. 149 18 
 
 V. Bardes, 39 N. Y. S. R. 41, 14 N. Y. Supp. 473 127 
 
 V. Lyth, 66 App. Div. 290, 10 N. Y. Anno. Cas. 287, 72 N. Y. 
 
 Supp. 615 500 
 
 V. Somerville, 10 Abb. N. C. 395, note 35 
 
 Rust v. Hausclt, 14 Jones & S. 38, 8 Abb. N. C. 148 453, 471
 
 CXVl TABLE OF CASES CITED. 
 
 Ruth V. Davenport, 22 N. Y. Civ. Proc. Rep. 121, 45 N. Y. S. R. 926, 
 
 18 N. Y. Supp. 721 250 
 
 V. Jones, 1 Month. L. Bull. 61 159 
 
 Rutherford v. Madrid, 77 Hun, 545, GO N. Y. S. R. 391, 28 N. Y. Supp. 
 
 923 331, 333, 334 
 
 Rutkowsky v. Cohen, 74 App. Div. 415, 77 N. Y. Supp. 546 342 
 
 Rutty V. Person, 20 Jones & S. 329 136 
 
 V. Person, 6 N. Y. Civ. Proc. Rep. 25 366 
 
 Ryan, Re, 6 Misc. 478, 56 N. Y. S. R. 794, 27 N. Y. Supp. 169 227 
 
 Re, 70 Hun, 149, 53 N. Y. S. R. 926, 24 N. Y. Supp. 277, Affirmed 
 
 in 141 N. Y. 550, 57 N. Y. S. R. 865, 36 N. E. 343 95 
 
 V. Doyle, 40 How. Pr. 215 130 
 
 V. Farley, 3 Month. L. Bull. 78 3 
 
 V. McEIroy, 15 App. Div. 216, 44 N. Y. Supp. 196 249 
 
 V.Potter, 4 N. Y. Civ. Pro. Rep. 80, 2 N. Y. Civ. Proc. Rep. 
 
 (McCarty) 33 315, 333 
 
 Ryers v. Hedges, 1 Hill, 646 420 
 
 Rylance, Re, 25 Misc. 283, 55 N. Y. Supp. 433 273 
 
 S. 
 
 Sabater v. Sabater, 7 App. Div. 70, 39 N. Y. Supp. 958 133, 174, 442 
 
 Sacket v. Ball, 4 How. Pr. 71, 2 N. Y. Code Rep. 47 354, 359, 360, 362 
 
 Safety Steam Generator Co. v. Dickson Mfg. Co. 61 Hun, 335, 21 N. Y. 
 Civ. Proc. Rep. 329, 40 N, Y. S. R. 681, 16 N. Y. Supp. 
 
 32 288, 352 
 
 Saffron v. Saffron, 11 N. Y. S. R. 471 153, 349 
 
 St. John V. Denison, 9 How. Pr. 343 231 
 
 V. Diefendorf, 12 Wend. 261 11 
 
 V. Hart, 16 How. Pr. 192 80 
 
 V. West, 4 How. Pr. 329, 3 N. Y. Code Rep. 85 443 
 
 St. Johnsville v. Cronk, 55 App. Div. 633, 67 N. Y. Supp. 419, Over- 
 ruled in Brooklyn Union Elev. R. Co. 176 N. Y. 213, 68 
 
 N. E. 249 197 
 
 St. Lawrence & A. R. Co. v. De Camp, 52 N. Y. S. R. 10, 23 N. Y. 
 
 Supp. 544 198, 199 
 
 Sails V. Sails, 28 Abb. N. C. 117, 19 N. Y. Supp. 246 152, 154 
 
 Salter v. Utica & B. River R. Co. 86 N. Y. 401 447, 494 
 
 V. Weiner, 6 Abb. Pr. 191 319 
 
 Salters v. Genin, 8 Abb. Pr. 253, 3 Bosw. 639 64 
 
 V. Ralph, 15 Abb. Pr. 273 427 
 
 Saltzman v. Northrop, 18 Misc. 353, 41 N". Y. Supp. 547 340 
 
 Sand A . Church, 32 App. Div. 139, 27 N. Y. Civ. Proc. Rep. 405, 52 
 
 N. Y. Supp. 854 425
 
 TABLE OF CASES CITED. CXVU 
 
 Sander v. New York & H. E. Co. 42 App. Div. 618, 59 N. Y. Supp. 127. . 447 
 V. New York & H. R. Co. 56 App. Div. 273, 67 N. Y. Supp. 809. . 464 
 
 Sanders v. Failing, 3 Thomp. & C. 64 481 
 
 V. Gillett, 8 Daly, 183 42 
 
 V. TowTisliend, 11 Abb. N. C. 217, 63 How. Pr. 343 463 
 
 Sandford, Re, 61 Hun, 33, 15 N. Y. Supp. 291 210 
 
 V. Granger, 12 Barb. 392 276. 332 
 
 V. Sandford, 40 Hun, 540, 44 Hun, 563 179 
 
 Sandowitz v. Duane, 30 Misc. 630, 62 N. Y. Supp. 744 305 
 
 Sands v. Sands, 6 How. Pr. 453 360, 361, 377 
 
 V. Sands, 30 Misc. 338, 63 N. Y. Supp. 481 408 
 
 Saratoga & W. R. Co. v. McCoy, 7 How. Pr. 190 64 
 
 V. McCoy, 8 How. Pr. 526 161, 170 
 
 V. McCoy, 9 How. Pr. 339 349, 354 
 
 Sares v. Matthews, 39 N. Y. S. R. 920, 15 N. Y. Supp. 510. . . .279, 281, 282 
 Sargent v. Sargent Granite Co. 3 Misc. 325, 52 N. Y. S. R. 517, 23 
 
 N. Y. Supp. 886 102 
 
 V. Warren, 41 Hun, 103, 11 N. Y. Civ. Proc. Rep. 160 478 
 
 Satterlee v. Clermont, N. Y. Daily Reg. May 26, 1883 64 
 
 Saunders v. Goldthrite, 41 Hun, 242 116 
 
 Savage v. Allen, 2 Thomp. & C. 474 364, 452 
 
 v. Darrow, 4 How. Pr. 74, 2 N. Y. Code Rep. 57 447 
 
 V. Gould, 60 How. Pr. 255 268 
 
 V. Sherman, 87 N. Y. 277 235 
 
 Sawyer v. Thurber, 14 N. Y. Civ. Proc. Rep. 204 394 
 
 Scandinavian American Bank v. Lanty, 30 App. Div. 485, 52 N. Y. 
 
 Supp. 350 321 
 
 Schaller, Re, 62 How. Pr. 40 222, 224 
 
 Re, 10 Daly, 57 220 
 
 Schell, Re, 58 Hun, 440, 34 N. Y. S. R. 928, 12 N. Y. Supp. 790, Appeal 
 
 dismissed in 128 N. Y. 67, 38 N. Y. S. R. 442, 27 N. E. 957. . 49 
 V. Hewitt, 1 Dem. 249, 4 N. Y. Civ. Proc. Rep. 57, 65 How. Pr. 
 
 187 272, 275 
 
 V. Lowe, 75 Hun, 43, 26 N. Y. Supp. 991 404 
 
 v. New York, 128 N. Y. 67, 27 N. E. 957 49 
 
 Schenck v. Fancher, 14 How. Pr. 95 79 
 
 V. Rowell, 2 Month. L. Bull. 18 101 
 
 Schenke v. Howell, 1 Abb. N. C. 295 318 
 
 Schermerhorn v. Van Voast, 5 How. Pr. 458 442 
 
 Schierloh v. Schierloh, 22 Misc. 637, 49 N. Y. Supp. 1062 603 
 
 V. Schierloh, 14 Hun, 572 112 
 
 Schildwachter v. Nxjw York, 12 Misc. 52, 24 N. Y. Civ. Proc. Rep. 390, 
 
 66 N. Y. S. R. 672, 33 N. Y. Supp. 41 79
 
 CXVlll TABLE OF CASES CITED. 
 
 Schiller v. Maltbie, 11 N. Y. Civ. Proc. Rep. 304 61 
 
 Schloemer v. Schloemer, 49 N. Y. 82 177 
 
 Schmidt v. Brown, 80 Hun, 183, 61 N. Y. S. R. 831, 30 N. Y. Supp. 68. . 94 
 
 V. Eiseman, 6 Misc. 264, 58 N. Y. S. R. 133, 26 N. Y. Supp. 766. . 331 
 
 333 
 
 V. Mackie, 9 N. Y. Week. Dig. 288 68, 90 
 
 Schneider v. Jacobi, 1 Duer, 694, 11 N. Y. Legal Obs. 220 281, 285, 286 
 
 V. Rochester, 50 App. Div. 22, 63 N. Y. Supp. 360 378, 379 
 
 Schnitzler v. Andrews, 16 N. Y. Week. Dig. 74 21 
 
 Schoen v. Schlessinger, 7 Abb. N. C. 399, 57 How. Pr. 490 331 
 
 Scholle, Re, 14 Hun, 14 447 
 
 Schoolcraft v. Lathrop, 5 Cow. 17 421 
 
 Schoonmaker v. Bonnie, 51 Hun, 34, 16 N. Y. Civ. Proc. Rep. 64, 20 N. 
 
 Y. S. R. 428, 3 N. Y. Supp. 492 462, 495 
 
 Schreier v. Hogan, 70 App. Div. 2, 74 N. Y. Supp. 1051 336 
 
 Schriever v. Brooklyn Heights R. Co. 30 Misc. 145, 30 N. Y. Civ. Proc. 
 
 Rep. 67, 61 N. Y. Supp. 644, 890 39 
 
 Schulte V. Lestershire Boot & Shoe Co. 88 Hun, 226, 68 N. Y. S. R. 
 
 258, 34 N. Y. Supp. 663 158, 289 
 
 Schultheis v. Mclnerny, 27 Abb. N. C. 193, 24 N. Y. Civ. Proc. Rep. 
 
 157, 37 N. Y. S. R. 537, 13 N. Y. Supp. 685 448 
 
 Schultze v. New York, 1 1 N. Y. Civ. Proc. Rep. 54 362 
 
 Schum V. Rochester, 16 N. Y. Civ. Proc. Rep. 218, 20 N. Y. S. R. 547, 
 
 3 N. Y. Supp. 512 439 
 
 Schwager, Re, 36 N. Y. S. R. 534, 13 N. Y. Supp. 384 195 
 
 Schwartz v. Jenney, 10 N. Y. Week. Dig. 67 21 
 
 V. Poughkeepsie Mut. F. Ins. Co. 10 How. Pr. 93 348, 360 
 
 V. Schendel, 23 Misc. 473, 51 N. Y. Supp. 395 306 
 
 V. Scott, 25 N. Y. Civ. Proc. Rep. 53, 70 N. Y. S. R. 380, 35 
 
 N. Y. Supp. 607 314, 321 
 
 Schwemmer v. Stratton, 49 N. Y. S. R. 537, 22 N. Y. Supp. 523 299 
 
 Schwinger v. Hickox, 40 How. Pr. 1 14 410 
 
 Scofielu v. Adriance, 2 Dem. 486 264 
 
 Scott, Re, 53 How. Pr, 441 220 
 
 V. Farley, 3 Month. L. Bull. 29 163 
 
 Scoville V. Kent, 8 Abb. Pr. N. S. 17 286 
 
 Scrantou v. Baxter, 4 Sandf. 8 95 
 
 Scudder v. Cori, 28 How^ Pr. 155, 18 Abb. Pr. 207, 3 Robt. 629 6 
 
 Seaboard & R. R. Co. v. Ward, 18 Barb. 595, 1 Abb. Pr. 46 78, 82 
 
 Seagrist, Re, 8 App. Div. 298, 40 N. Y. Supp. 940 269 
 
 Re, 1 App. Div. 615, 73 N. Y. S. R. 88, 37 N. Y. Supp. 496 
 
 V. Seagrist, 20 App. Div. 336, 46 N. Y. Supp. 949 384
 
 TABLE OF CASES CITED. CXIX 
 
 Seaman v. Glegner, 3 Hun, 119, 5 Thomp. & C. 273 113, 126 
 
 V. McReynolds, 50 How. Pr. 421 412 
 
 V. Whitehead, 78 N. Y. 306 264, 265 
 
 ■Seasongood v. New York Elev. R. Co. 22 N. Y. Civ. Proc. Rep. 100, 46 
 
 N. Y. S. R. 832, 18 N. Y. Supp. 775 505 
 
 Sebley v. Nichols, 32 How. Pr. 182 505, 506 
 
 Segal V. Cauldwell, 22 App. Div. 95, 47 N. Y. Supp. 839 321, 322 
 
 Seggerman v. Metropolitan Street R. Co. 38 Misc. 374, 77 N. Y. Supp. 
 
 905 95 
 
 Seguine v. Seguine, 3 Abb. Pr. N. S. 442 268, 271 
 
 Seidenbach v. Riley, 6 N. Y. S. R. 104 467 
 
 Seifter v. Brooklyn Heights R. Co. 53 App. Div. 443, 65 N. Y. Supp. 
 
 1123 485 
 
 Seitz V. Berg, 2 N. Y. City Ct. Rep. 294 130 
 
 ^eligman v. Real Estate Trust Co. 20 Abb. N. C. 210 71 
 
 Selleck, Re, 111 N. Y. 284, 19 N. Y. S. R. 601, 19 N. E. 66 257 
 
 •Selling, Re, 6 Dem. 428, 15 N. Y. Civ. Proc. Rep. 279, 17 N. Y. S. R. 
 
 801, 2 N. Y. Supp. 637 262 
 
 Seneca Nation of Indians v. Hawley, 32 Hun, 288 68 
 
 Sentenis v. Ladew, 140 N. Y. 463, 37 Am. St. Rep. 569, 55 N. Y. S. R. 
 
 831, 35 N. E. 650 368, 371 
 
 Servan v. Lowerre, 3 Misc. 113, 22 N. Y. Supp. 1052 215 
 
 Sewell V. Lathrop, 67 Hun, 651, 23 N. Y. Supp. 1154 93 
 
 Seymour, Re, 47 App. Div. 320, 62 N. Y. Supp. 25 189 
 
 V. Ashenden, 13 N. Y. Civ. Proc. Rep. 255 68, 69 
 
 v. Billings, 12 Wend. 285 Ill 
 
 Shackleton v. Hart, 20 How. Pr. 39, 12 Abb. Pr. 325, note 17, 35 
 
 Shaffer v. Bacon, 35 App. Div. 248, 54 N. Y. Supp. 796 55 
 
 Shakespeare v. Markham, 72 N. Y. 400 268 
 
 Shank v. Shoemaker, 18 N. Y. 489 24 
 
 Shanks v. Rae, 19 How. Pr. 540 90 
 
 Shannon v. Brower, 2 Abb. Pr. 377 351, 472, 484 
 
 Sharkey v. Morgan, 14 N. Y. S. R. 940 61 
 
 Sharpiro v. Burns, 7 Misc. 418, 31 Abb. N. C. 144, 23 N. Y. Civ. Proc. 
 
 Rep. 365, 58 N. Y. S. R. 479, 27 N. Y. Supp. 980 338, 339, 341 
 
 Shaunessy v. Traphagen, 13 N. Y. S. R. 754 35-40 
 
 Shaver v. Eldred, 80 Hun, 51, 66 N. Y. S. R. 783, 33 N. Y. Supp. 158. . 163 
 
 507 
 
 Shaw V. Republic L. Ins. Co. 69 N. Y. 286 291 
 
 V. Shaw, 5 Misc. 497, 26 N. Y. Supp. 715 175 
 
 V. Wellman, 13 N. Y. Supp. 527, 373 
 
 Shearer v. Field, 6 Misc. 189, 27 N. Y. Supp. 29 146 
 
 ;Shearman v. Pope, 106 N. Y. 664, 12 N. Y. Civ. Proc. Rep. 329, 27 
 
 N. Y. Week. Dig. 1, 8 N. Y. S. R. 710, 12 N. E. 713 330
 
 CXX TAULE OF CASES CITED. 
 
 Slieehan v. Biiller, 24 N. Y. Week. Dig. 16S 4 
 
 V. Huerstel, 1 4 Jones & S. 04 137 
 
 Sheehy v. Kelly, 33 Hun, 543 380 
 
 Sheldon v. Albro, 8 How. Pr. 305 304 
 
 V. Mirick, 70 Hun, 41, 53 N. Y. S. R. 500, 23 N. Y. Supp. 1081 . . 239 
 V. Mott, 91 Hun, 637, 70 N. Y. S. R. 894, 35 N. Y. Supp. 1117. . . 25 
 
 V, Williams, 52 Barb. 183 269 
 
 Shepard v. Hoit, 7 Hill, 198 160 
 
 Sheridan v. Andrews, SO N. Y. 648, 10 N. Y". Week. Dig. 117 209, 453- 
 
 V. Genet, 1 N. Y. Civ. Proc. Rep. 309 464 
 
 V. Genet, 12 Hun, 660 54 
 
 V. Smith, 2 Hill, 538 291, 292, 29^ 
 
 Sherman v. Shisler, 6 Misc. 203, 27 N. Y. Supp. 215 302, 30a 
 
 Sherry v. Gary, 111 N. Y. 517, 19 N. E. 87 124, 125, 126 
 
 Sherwood v. Travelers Ins. Co. 12 Daly, 137 299 
 
 Shields v. Sullivan, 3 Dem. 296, 16 Abb. N. C. 194 230, 265 
 
 Shiels v. Wortmann, 30 N. Y. S. R. 173, 8 N. Y. Supp. 199 351, 377 
 
 V. Wortmann, 126 N. Y. 650, 37 N. Y. S. R. 134, 27 N. E. 379 364 
 
 Shitelegge v. De Witt, 12 Daly, 319 127 
 
 Shook V. Shook, 19 Barb. 653 263 
 
 Shorke v. Charles, 18 Wend. 616 122 
 
 Shufelt V. Powers, 13 How. Pr. 89 489 
 
 v. Sweet, 15 N. Y. Week. Dig. 1 110- 
 
 Shull V. Green, 49 Barb. 311 110 
 
 Shultz V. Whitney, 9 Abb. Pr. 71, 17 How. Pr. 471 441, 497, 499- 
 
 Sibell V. Remsen, 30 Barb. 441, Afiirmed 29 How. Pr. 574 223 
 
 Sibley v. Equitable Life Assur. Soc. 24 Jones & S. 274, 15 N. Y. Civ. 
 
 Proc. Rep. 316, 18 N. Y. S. R. 834, 3 N. Y. Supp. 8 403 
 
 V. Sibley, 66 App. Div. 552, 73 N. Y. Supp. 244 181 
 
 Sickles v. Richardson, 14 Hun, 110 368 
 
 Siefter v. Brooklyn Heights R. Co. 53 App. Div. 443, 65 N. Y. Supp. 
 
 1123 376 
 
 Siegrist v. Holloway, 7 N. Y. Civ. Proc. Rep. 58 97 
 
 Sigourney v. Waddle, 9 Paige, 381 320 
 
 Silberstein v. Wm. Wicke Co. 29 Abb. N. C. 291, 22 N. Y. Supp. 171 .. . 123 
 Silverman v. Dry Dock, E. B. & B. R. Co. 69 App. Div. 22, 74 N. Y. 
 
 Supp. 481 94 
 
 Simmons v. Fay, 1 E. D. Smith, 107 95, 99 
 
 v. Simmons, 32 Hun, 551 183, 404 
 
 Simms v. Frier, 2 Month. L. Bull. 97 216- 
 
 Simon v. O'Brien, 87 Hun, 160, 67 N. Y". S. R. 460, 33 N. Y. Supp. 815. . 404 
 Simpson, Re, 36 App. Div. 562, 55 N. Y'. Supp. 697, Affirmed without " 
 
 opinion in 158 N. Y. 720, 53 N. E. 1132 32
 
 TABLE OF CASES CITED. CXXl 
 
 Simpson, Re, 26 Hun, 459 38& 
 
 V. Brewster, 9 Paige, 245 429 
 
 V. French, 25 How. Pr. 404 291, 292, 293 
 
 V. Hornbeck, 3 Lans. 53 5 
 
 V. Rowan, 13 N. Y. Civ. Proc. Rep. 20U 489, 492, 493 
 
 Sims V. Bonner, 21 N. Y. Civ. Proc. Rep. 355, 42 N. Y. S. R. 10, 16 
 
 N. Y. Supp. 800 823, 326, 327 
 
 Singleton v. Home Ins. Co. 121 N. Y. 644, 31 N. Y. S. R. 900, 24 N. E. 
 
 1021 279, 286, 288. 
 
 Sinn V. Sinn, 3 Misc. 598, 52 N. Y. S. R. 855, 23 N. Y. Supp. 339 182 
 
 Sinne v. New York, 8 N. Y. Civ. Proc. Rep. 252, 3 Month. L. Bull. 51. . 376 
 
 Sipperly v. Warner, 9 How. Pr. 332 490, 491, 492 
 
 Sirrett, Re, 25 Misc. 89, 54 N. Y. Supp. 006 509, 510- 
 
 Sisters of Charity v. Kelly, 68 N. Y. 628 451 
 
 Ske«ls V. Bodine, 68 App. Div. 217, 73 N. Y. Supp. 1093 431 
 
 Skinner v. Busse, 38 Misc. 205, 74 N. Y. Supp. 500 22: 
 
 V. White, 69 Hun, 127, 52 N. Y. S. R. 737, 23 N. Y. Supp. 384. .68, 102 
 
 Slade v. Warren, 1 N. Y. 431 460^ 
 
 Slater Bank v. Sturdy, 15 Abb. Pr. 75 396, 397 
 
 Slauson v. Watkins, 95 N. Y. 309 424, 425- 
 
 V. Watkins, 14 Jones & S. 172 421 
 
 Slee V. Manhattan Co. 1 Paige, 48 146 
 
 Sleeman v. Hotchkiss, 45 N. Y. S. R. 749, 18 N. Y. Supp. 533 442 
 
 Sleight V. Hancox, 4 Abb. Pr. 245 122, 358 
 
 Slingerland v. International Contracting Co. 43 App. Div. 215, GO N. Y. 
 
 Supp. 12 114 
 
 Sloane v. Higgins, 2 Month. L. Bull. 11 217 
 
 V. McCawley, 33 Misc. 652, 68 N. Y. Supp. 187 93- 
 
 Slocum V. Barry, 38 N. Y. 46, 4 Abb. Pr. N. S. 390 233, 239, 241 
 
 V. Watkins, 1 Denio, 631 91 
 
 Small V. Ludlow, 1 Hilt. 307 103, 353 
 
 Smalhvood v. Schweitering, 10 Misc. 103, 63 N. Y. S. R. 504, 31 N. Y. 
 
 Supp. 149 375' 
 
 Smith V. A. D. Fanner Type Founding Co. IS Misc. 434, 41 N. Y. Supp. 
 
 788 239 
 
 V. Baker, 42 Hun, 504 375 
 
 V. Baum, C7 How. Pr. 267 38- 
 
 V. Bowers, 3 N. Y. Civ. Proc. Rep. 72, 15 N. Y. Week. Dig. 485. . 283 
 
 v. Britt, 8 N. Y. Week. Dig. 76 81 
 
 V. Bryant, 29 Misc. 564, 61 N. Y. Supp. 943 126 
 
 v. Central Trust Co. 154 N. Y. 333, 48 N. E. 553 235 
 
 V. Chenoweth, 14 Daly, 166, 18 Abb. N. C. 349, 12 N. Y. Civ. 
 
 Proc. Rep. 89, 6 N. Y. S. R. 232 42:
 
 <;XX11 TABLE OF CASES CITED. 
 
 Smith V. Coe, 7 Robt. 477 356 
 
 V. Cooper, 30 Hun, 395, 17 N. Y. Week. Dig. 490 160 
 
 V. Grouse, 24 Barb. 433 412 
 
 V. Dederiek, 18 Misc. 507, 42 N. Y. Supp. 1119 304 
 
 V. Duffy, 37 Hun, 506, 8 N. Y. Civ. Proc. Rep. 191 511 
 
 V. Ferris, 2 N. Y. Week. Dig. 163 
 
 V. Fleischman, 17 App. Div. 532, 45 N. Y. Supp. 553 59 
 
 V. Frankfield, 13 Hun, 489, Affirmed in 77 N. Y. 414 93, 96 
 
 V. Green, 8 N. Y. Civ. Proc. Rep. 163 376 
 
 \. Kerr, 49 Hun, 29, 15 N. Y. Civ. Proc. Rep. 126, 28 N. Y. Week. 
 
 Dig. 516, 17 N. Y. S. R. 351, 1 N. Y. Supp. 454. . .279, 280, 441 
 
 V. Lansing, 24 Misc. 566, 53 K Y. Supp. 633 156 
 
 V. Lehigh Valley R. Co. 77 App. Div. 47, 80 N. Y. Supp. 390. .. . 362 
 V. New York, 55 App. Div. 90, 8 N. Y. Anno. Cas. 389, 66 N. Y. 
 
 Supp. 1046 94 
 
 V. Norval, 2 Sandf. 653, 2 N. Y. Code Rep. 14 318 
 
 V. Patten, 9 Abb. Pr. N. S. 205 236, 238 
 
 T. Randall, 67 Barb. 377 242 
 
 v. Rockefeller, 5 Thonip. & C. 562, 3 Hun, 295 156 
 
 v. St. Philips's Church, 107 N. Y. 610, 14 N. E. 825 380 
 
 v. Savin, 69 Hun, 311, 30 Abb. N. C. 192, 53 N. Y. S. R. 378, 
 
 23 N. Y. Supp. 568 62, 447, 450 
 
 V. Schanck, 18 Barb. 344 95 
 
 v. Servis, 59 Hun, 552, 36 N. Y. S. R. 917, 13 N. Y. Supp. 941. . . 494 
 
 V. Skinner, 1 How. Pr. 122 80 
 
 V. Smith, 2 Hill, 351, 25 Wend. 405 290 
 
 V. Smith, 35 Hun, 378, 15 N. Y. S. R. 804 181 
 
 V. Smith, 22 App. Div. 319, 5 N. Y. Anno. Cas. 47, 47 N. Y. Supp. 
 
 987 463 
 
 V. Syracuse & G. R. Co. 4 Month. L. Bull. 75 417 
 
 v. AVhite, 7 Hill. 520 79 
 
 v. White, 27 N. Y. S. R. 227, 7 N. Y. Supp. 373 221, 224 
 
 V.Weston, 81 Hun, 87, 24 N. Y. Civ. Proc. Rep. 141, 62 N. Y. 
 
 S. R. 623, 30 N. Y. Supp. 649 75 
 
 V. Woodruff, 6 Abb. Pr. 65 230 
 
 Smith & B. Brass Works v. Kahn, 18 Misc. 597, 42 N. Y. Supp. 478 323 
 
 Snyder v. Beyer, 3 E. D. Smith, 235 162 
 
 V. Collins, 12 Hun, 383 122, 463 
 
 V. Goodrich, 2 E. D. Smitli, 84 300 
 
 V. Young, 4 How. Pr. 217 243, 247 
 
 Society of New York Hospital v. Coe, 15 Hun, 440 85, 86 
 
 Solomon v. Solomon, 3 Robt. 669, 28 How. Pr. 218 180 
 
 Southard v. Becker, 15 Misc. 430, 37 N. Y. Supp. 927 287
 
 TABLE OF CASES CITED. CXXlll 
 
 Soiitherland v. Tyler, 1 1 How. Pr. 251 468 
 
 South Market Street, Re, 80 Hun, 24C, Gl N. Y. S. R. 626, 29 N. Y. 
 
 Supp. 1030 201 
 
 -Southwick V. Southwick, 49 N. Y. 510 364 
 
 Sparmann v. Keim, 6 Abb. N. C. 353 331 
 
 Sparrowhawk v. Sparrowhawk, 11 Hun. 528 174 
 
 *5paulding v. American Wood Board Co. 58 App. Div. 314, 68 N. Y. 
 
 Supp. 945 428, 430 
 
 V. Waverly, 12 App. Div. 594, 44 N. Y. Supp. 112 172 
 
 Spelman v. Terry, 74 N. Y. 448 409 
 
 Spencer v. Strait, 40 Hun, 463, 23 N. Y. Week. Dig. 458 238 
 
 V. Tooker, 12 Abb. Pr. 353, 21 How. Pr. 333 76 
 
 Sperry v. Hellnian, 20 N. Y. Civ. Proc. Rep. 218, 37 N. Y. S. R. 258, 
 
 13 N. Y. Supp. 899 314, 414 
 
 Spitz V. Tousey, 22 N. Y. Week. Dig. 446 376 
 
 Spofford V. Texas Land Co. 9 Jones & S. 228 380, 381 
 
 Spors V. Shultheis, 28 N. Y. S. R. 50, 8 N. Y. Supp. 175 25 
 
 Sprague v. Bartholdi Hotel Co. 3 N. Y. Supp. 828 363 
 
 V. Bartholdi Hotel Co. 68 Hun, 555, 52 N. Y. S. R. 663, 22 N. Y. 
 
 Supp. 1090 427, 430 
 
 V. Engelbrecht, 29 Misc. 464, 61 N. Y. Supp. 952 152 
 
 V. Richards, 30 Hun, 246 469 
 
 Spring V. Day, 44 How. Pr. 390 484, 485, 488, 507 
 
 Spring Valley Shot & Lead Co. v. Jackson, 2 Sandf. 622 125 
 
 Sprong v. Snyder, 6 How. Pr. 11, N. Y. Code Rep. N. S. 178 380, 387 
 
 Sproull v. Star Co. 27 Misc. 27, 56 N. Y. Supp. 1001 315 
 
 V. Star Co. 45 App. Div. 575, 61 N. Y. Supp. 404 501 
 
 Squires v. Seward, 16 How. Pr. 478 116 
 
 Staats, E.x parte, 4 Cow. 76 47 
 
 Stafford v. Azbell, 8 Misc. 316, 59 N. Y. S. R. 287, 28 N. Y. Supp. 733. . 36 
 
 v. Mott, 3 Paige, 100 136, 446 
 
 Stahl V. Wadsworth, 13 N. Y. Civ. Proc. Rep. 32, 10 N. Y. S. R. 228 38 
 
 Staiger v. Schultz, 3 Keyes, 614, 3 Abb. Pr. N. S. 377 79, 80, 132 
 
 Stallman v. Kimberly, 33 N. Y. S. R. 813, 11 N. Y. Supp. 518 83, 85, 352 
 
 Stanswood v. Benson Chemung Co. 2 Month. L. Bull. 39 491 
 
 Stanton v. King, 76 N. Y. 585 61, 449 
 
 V. Swan, 23 N. Y. Week. Dig. 382 63 
 
 V. Taylor, 64 Hun, 633, 45 N. Y. S. R. 906, 19 N. Y. Supp. 43 172 
 
 Stanton's Estate, 1 Connoly, 108, 18 N. Y. S. R. 807, 2 N. Y. Supp. 
 
 342 262, 266 
 
 Starin v. New York, 106 N. Y. 82, 12 N. E. 643 19 
 
 Starkweather v. Starkweather, 29 Him, 488 175
 
 CXXIV TABLE OF CASES CITED. 
 
 Starr Cash Car Co. v. Reinhart, 3 Misc. 625, 23 N. Y. Supp. 733 485 
 
 V. Keinhardt, 6 ]Misc. 3G5, 50 N. Y. S. R. 404, 26 N. Y. Sunp. 746, 464 
 State Bank v. Smith, 85 Hun, 200, 66 N. Y. S. R. 483, 32 N. Y. Supp. 
 
 999 356 
 
 Steam Navigation Co. v. Weed, 8 How. Pr. 50 , . 60> 
 
 Steele v. McDonald, 4 N. Y. Civ. Proc. Rep. 227 125 
 
 Steeuburgli v. Miller, 11 App. Div. 286, 42 N. Y. Snpp. 333 27 
 
 St«encken, Re, 58 App. Div. 85, 9 N. Y. Anno. Cas. 413, 68 N. Y. Supp. 
 
 444 270, 49& 
 
 Steinberg v. Rosenthal, 17 Misc. 53, 39 N. Y. Supp. 1132 339 
 
 Steinbnrg v. Manhattan R. Co. 14 Jones & S. 216 330 
 
 Steiner v. Ainsworth, 53 How. Pr. 31 494 
 
 Steinhart v. Doellner, 2 Jones & S. 218 
 
 Stephenson v. Clark, 12 How. Pr. 282 24» 
 
 V. Hanson, 4 N. Y. Civ. Proc. Rep. 104 325, 327 
 
 Stern v. Talbott, 89 Hun, 368, 35 N. Y. Supp. 412 418 
 
 Sternbach v. Friedman, 75 App. Div. 418, 78 N. Y. Supp. 318 136, 186 
 
 Stevens v. Central Nat. Bank, 168 N. Y. 560, 61 N. E. 904 455 
 
 V. New York Elev. R. Co. 26 Jones & S. 569, 18 N. Y. Civ. Proc. 
 
 Rep. 350, 31 N. Y. S. R. 404, 9 N. Y. Supp. 707 442, 506 
 
 V. Veriane, 2 Lans. 90 279 
 
 v. Weiss, 25 Misc. 457, 55 N. Y. Supp. 562 133 
 
 Stevenson v. New York, L. E. & W. R. Co. 49 Hun, 109, 16 N. Y. S. R. 
 
 787, 1 N. Y. Supp. 670 321, 322 
 
 v. Pusch, 40 How. Pr. 91 462 
 
 Steward v. Lamoreaux, 5 Abb. Pr. 14 & 
 
 Stewart v. Elice, 2 Paige, 604 296 
 
 v. Hilton, 27 Misc. 239, 58 N. Y. Supp. 415 430 
 
 V. J. Harper Bonnell Co. 20 Misc. 174, 45 N. Y. Supp. 735 92, 98 
 
 v. New York Common Pleas, 10 Wend. 597 2 
 
 V. Paton, 23 N. Y. Civ. Proc. Rep. 286, 29 N. Y. Supp. 770 504 
 
 V. Schultz, 33 How. Pr. 3, Affirmed 34 How. Pr. 31, 50 Barb. 
 
 192, 3 Abb. Pr. N. S. 383 160, 162 
 
 V. Steck, 6 N. Y. S. R. 524 27 
 
 Btiles V. Fisher, 3 How. Pr. 52 59, 61, 62 
 
 Stilwell V. Armstrong, 28 Misc. 546, 59 N. Y. Supp. 671 25 
 
 V. Staples, 5 Duer, 691, 3 Abb. Pr. 305 125, 126 
 
 Stimson v. Huggins, 16 Barb. 658, 9 How. Pr. 86 440 
 
 Stivers v. Wise, 18 App. Div. 316, 46 N. Y. Supp. 9 183 
 
 Stoddard v. Clarke, 9 Abb. Pr. N. S. 310 119, 391 
 
 V. Whiting, 46 N. Y. 627 146 
 
 Stokes V. Stokes, 38 App. Div. 215, 56 N. Y. Supp. 637 94 
 
 Stone, Ex parte, 3 Cow. 380 427, 42S
 
 TABLE OF CASES CITED. CKXV 
 
 Stone V. Duffy, 3 Sandf. 761. N. Y. Code Rep. N. S. 129 122, 395 
 
 Stover V. Chasse, 9 Misc. 45, 59 K Y. S. R. G71, 29 N. Y. Supp. 291 . .219, 295 
 Stowell, Re, 15 Misc. 533, 25 N. Y. Civ. Proc. Rep. 316, 74 N. Y. S. R. 
 
 296, 37 N. Y. Supp. 1127 276, 332 
 
 Stransky v. Weichman, 24 Misc. 767, 53 N. Y. Supp. 549 74 
 
 Strassner v. Thompson, 40 App. Div. 28, 57 N. Y. Supp. 546 305, 300 
 
 Straus V. Straus, 67 Hun, 491, 50 N. Y. S. R. 845, 22 N. Y. Supp. 
 
 567 179, 180 
 
 Strauss v. Hellman, 58 How. Pr. 377 504 
 
 V. Union Cent. L. Ins. Co. 33 Misc. 571, 67 N. Y. Supp. 931 375 
 
 Streep v. McLoughlin, 36 Misc. 165, 72 N. Y. Supp. 1061 448 
 
 Street Opening, Re, 33 App. Div. 137, 53 N. Y, Supp. 354 363 
 
 Re, 34 App. Div. 500, 54 N. Y. Supp. 516 462 
 
 Strong V. Sproul, 53 N. Y. 497 314 
 
 V. Strong, 1 Abb. Pr. N. S. 358, 3 Robt. 675 175 
 
 Struffman v. Muller, 74 N. Y. 594 321 
 
 Struppmann v. Muller, 55 How. Pr. 427, 11 Jones & S. 38 53 
 
 Struthers v. Christal, 3 Daly, 327 3, 376 
 
 V. Pearce, 51 N. Y. 365 368 
 
 Stubbs V. Ripley, 7 N. Y. S. R. 478, 28 N. Y. Week. Dij?. 508 495 
 
 Studwell V. Baxter, 33 Hun, 331 483 
 
 Sturdevant v, Riley, 28 N. Y. S. R. 896, 8 N. Y. Supp. 281 417 
 
 Sturgis V. Spofford, 58 N. Y. 103 287, 443 
 
 Sturtevant v. Fairman, 4 Sandf. 674 68 
 
 Sudlow V. Knox, 7 Abb. Pr. N. S. 419 218, 512 
 
 Sullivan v. New York, 68 Hun, 544, 52 N. Y. S. R. 557, 22 N. Y. Supp. 
 
 1041 34 
 
 v. Remington Sewing Macli. Co. 27 Hun, 270, 2 N. Y. Civ. Proc. 
 
 Rep. 58 332 
 
 Superintendents of Poor v. Moore, 12 Wend. 273 305, 469 
 
 Supplee V. Sayre, 51 Hun, 30, 20 N. Y. S. R. 554, 3 N. Y. Supp. 627. .246, 247 
 
 Sutherland v. Carr, 85 N. Y. 105 418 
 
 Sutphen v. Lash, 10 Hun, 120 83, 483 
 
 Sutorius V. Dunstan, 27 Jones & S. 166, 13 N. Y. Supp. 601 414 
 
 V. North, 20 N. Y. Civ. Proc. Rep. 162, 36 N. Y. S. R. 873, 13 
 
 N. Y. Supp. 557, Further Appeal, 1 Misc. 298, 48 N. Y. 
 
 S. R. 694, 20 N. Y. Supp. 726 314, 414 
 
 Sutton v. Newton, 15 Abb. N. C. 452, 2 How. Pr. N. S. 56, 7 N. Y. Civ. 
 
 Proc. Rep. 333 245, 253 
 
 Swan V. Mathews, 3 Duer, 613 322 
 
 Swart, Re, 2 Silv. Sup. Ct. 585, 25 N. Y. S. R. 88. 6 N. Y. Supp. 608. . . 261 
 
 Swartwout v. Burr, 1 Barb. 495 149 
 
 Sweeney v. White, 10 Misc. 29, 03 N. Y. S. R. 242, 30 N. Y. Supp. 
 
 1051 339, 341
 
 CXXVl TABLE OF CASES CITED. 
 
 Sweet V. Bartlett, 4 Sandf. 6G1 4a 
 
 X. Chapman, 53 How. Pr. 243 451 
 
 V. Mowry, 49 N, Y. S. R. 262, 20 N. Y. Supp. 2U4, AlKimed 138 
 
 N. Y. 650, 53 N. Y. S. R. 87, 34 N. E. 388 398, 465 
 
 V. Mowry, 71 Hun, 381, 25 N. Y. Supp. 32 416 
 
 Sweetzer v. Smith, 27 N. Y. S. R. 628, 8 N. Y. Supp. 150 85 
 
 Swift V. Prouty, 6 Hun, 94 43- 
 
 V. Wheeler, 46 Him, 580, 13 N. Y. Civ. Pioc. Rep. 343, 27 N. Y, 
 
 Week. Dig. 512, 12 N. Y. S. R. 737 314, 315, 334 
 
 Syms V. New York, 105 N. Y. 153, 6 N. Y. S. R. 830, 26 N. Y. Week. 
 
 Dig. 135, 11 N. E. 369 448 
 
 Syracuse v. Benedict, 86 Hun, 343, 67 N. Y. S. R. 614, 33 N. Y. Supp, 
 
 944 197 
 
 V. Stacy, 45 App. Div. 260, 60 N. Y. Supp. 1106 191 
 
 Syracuse, B. & N. Y. R. Co. Re, 4 Him, 311 200 
 
 Szerlip v. Baier, 22 Misc. 351, 49 N. Y. Supp. 300 74 
 
 V. Baier, 21 Misc. 692, 47 N. Y. Supp. 1081 305, 306. 
 
 T. 
 
 Taaks v. Schmidt, 25 How. Pr. 341 162, 478, 481 
 
 Tacke, Re, 17 N. Y. S. R. 805, 3 N. Y. Supp. 198 258 
 
 Talcott, Re, 3 App. Div. 578, 73 N. Y. S. R. 809, 38 N. Y. Supp. 338 221 
 
 Tallmadge v. Wallis, 1 How. Pr. 100 318 
 
 Tallman v. Bernhard. 75 Hun, 30, 31 Abb. N. C. 84, 23 X. Y. Civ. Proc. 
 
 Rep. 284, 58 N. Y. S. R. 597, 27 N. Y. Supp. 6 100 
 
 V. Hinman, 10 How. Pr. 89 443 
 
 Tanner v. Niles, 1 Barb. 560 152, 153 
 
 Taussig V. Hart, 1 Jones & S. 157 450 
 
 Tauton v. Groh, 9 Abb. Pr. N. S. 453 458 
 
 Taylor v. Bolmer, 2 Denio, 193 425 
 
 V. Brooklyn Elev. R. Co. 18 N. Y. Civ. Proc. Rep. 72, 27 N. Y. 
 
 S. R. 447, 7 N. Y. Supp. 625 29& 
 
 V. Cohoes, 105 N. Y. 54, 26 N. Y. Week. Dig. 60, 6 X. Y. S. R. 
 
 461, 11 N. E. 282 171 
 
 V. Gardner, 4 How. Pr. 67, 2 X. Y. Code Rep. 47 4, 471 
 
 V. Long Island R. Co. 25 Misc. 11, 53 X. Y. Supp. 830 1* 
 
 V. Long Island R. Co. 38 App. Div. 595, 56 X. Y. Supp. 665 50 
 
 V. Root, 48 X. Y. 687 134, 458 
 
 V. Seeley, 4 How. Pr. 314, 3 N. Y. Code Rep. 84 304 
 
 V. Wright, 36 App. Div. 568, 55 X. Y. Supp. 761 116 
 
 Taylor's Estate, 8 X. Y. Civ. Proc. Rep. 453 273 
 
 Taylor Iron & Steel Co. v. Higgins, 66 Hun, 626, 49 X. Y. S. R. 645, 20 
 
 N. Y. Supp. 746 52.
 
 TABI-E OF CASES CITED. CXXVll 
 
 Teator v. New York Mut. Sav. & Loan Asso. 32 Misc. 542, 67 N. Y. 
 
 Supp. 15 392 
 
 Teese, Re, 32 App. Div. 46, 6 X. Y. Anno. Cas. 149, 52 N. Y. Supp. 517. . 214 
 
 Ten Broeck v. De Witt, 10 Wend. 617 17 
 
 V. Paige, 6 Hill, 267 268, 39& 
 
 V. Reynolds, 13 How. Pr. 462 327, 328, 429 
 
 Ten Eyck v. Holmes, 3 Sandf. Ch. 428 136 
 
 V. Warwick, 24 X. Y. Civ. Proc. Rep. 6, 63 X. Y. S. R. 165, 
 
 30 N. Y. Supp. 859 432 
 
 Termansen v. Matthews, 49 App. Div. 163, 63 X. Y. Supp. 115 504 
 
 Terry v. Moore, 12 App. Div. 396, 42 X. Y. Supp. 51 105 
 
 Thalceimer v. Hays, 6 X. Y. S. R. 125, 26 X. Y. Week. Dig. 209 432 
 
 Thames Loan & T. Co. v. Hagemeyer, 38 App. Div. 449, 56 X. Y. Supp. 
 
 689 34» 
 
 Thaule v. Frost, 1 Abb. X. C. 298 426, 433 
 
 Thayer v. Holland, 63 How. Pr. 179 127 
 
 Thiem v. Madden, 27 Hun, 371 404 
 
 Thilemann v. Xew York, 71 App. Div. 595, 76 X. Y. Supp. 132 64 
 
 Third Xat. Bank v. McKinsiry, 2 Hun, 443, 5 Thomp. & C. 52 484 
 
 Thomas v. Evans, 50 Hun, 441, 20 X. Y. S. R. 884, 3 X. Y. Supp. 297. . 451 
 
 452, 454 
 
 v. Thomas, 18 Him, 481 298 
 
 Thomasson v. Latourette, 63 App. Div. 408, 71 X. Y. Supp. 559 47 
 
 Thompkins v. Greene, 21 Hun, 257, Affirmed in 82 X. Y. 619. .124, 125, 12ft 
 
 Thompson v. Burchell, 16 Jones & S. 537 427, 430 
 
 V. Crippen, 1 How. Pr. 233, 234, note 6 
 
 V. McCloskey, 5 Month. L. Bull. 19 42a 
 
 V. St. Xicholas Xat. Bank, 54 Hun, 393, 27 X. Y. S. R. 186, 7 
 
 X. Y. Supp. 491 350 
 
 V. Stanley, 22 X. Y. Civ. Proc. Rep. 348, 22 X. Y. Supp. 897 103 
 
 Thomson v. American Surety Co. 170 X. Y. 109, 63 X. E. 1073 413 
 
 V. Bank of British X. A. 13 Jones & S. 1, Affirmed in 82 X. Y. 1, 44^ 
 
 Thorn, Re, 10 Daly, 71 224 
 
 V. Beard, 139 X. Y. 482, 54 X. Y. S. R. 807, 34 X. E. 1100 421 
 
 Thornall v. Crawford, 34 Misc. 714, 70 X. Y. Supp. 61 280, 283 
 
 V. Turner, 23 Misc. 363, 51 X. Y. Supp. 214 305 
 
 Thornton v. Thornton, 66 How. Pr. 119 50O 
 
 Thurman v. Fiske, 30 How. Pr. 397 497 
 
 Tibbits V. Tibbits, 7 Paige, 204 152 
 
 Tibbies v. O'Connor, 28 Barb. 538 415 
 
 Tillman v. Powell, 13 How. Pr. 117 348, 362 
 
 Tilman v. Keane, 1 Abb. Pr. X. S. 23 283 
 
 Tindall v. Jones, 19 How. Pr. 469, 11 Abb. Pr. 258 244, 247, 332
 
 <>XXV111 TABLE OF CASES CITED. 
 
 Tisdale v. Delaware & H. Canal Co. 116 N. Y. 416, 26 N. Y. S. R. 857, 
 
 22 N. E. 700 459 
 
 T. New Mfg. Co. v. Galway, 23 N. Y. Civ. Proc. Rep. 239, 26 N. Y. 
 
 Supp. 950 374 
 
 Tobias v. Broadway & S. Ave. R. Co. 39 N. Y. S. R. 183, 14 N. Y. Supp. 
 
 641 338 
 
 Toch V. Toch, 9 App. Div. 501, 41 N. Y. Supp. 353 135, 351, 354 
 
 Todd V. Marsily, 15 N. Y. Civ. Proc. Rep. 247, 7 N. Y. S. R. 872, 26 
 
 N. Y. Week. Dig. 244 323, 335 
 
 Tolan V. Carr, 12 Daly, 520, 19 N. Y. Week. Dig. 484 378 
 
 Tolman v. Syracuse, B. & N. Y. R. Co. 92 N. Y. 353, 17 N. Y. Week. 
 
 Dig. 32 331, 333, 456 
 
 Tompkins v. Ives, 36 N. Y. 75, 3 Abb. Pr. N. S. 207, Affirming 30 How. 
 
 Pr. 13 280, 281, 285 
 
 v. Manner, 18 Jones & S. 511 17 
 
 Tompkins Coimty v. Bristol, 58 How. Pr. 3 447, 456 
 
 Tooker v. Arnoux, 10 N. Y. Week. Dig. 132, 1 Month. L. Bull. 54 65 
 
 Topliff V. Freeman, 25 N. Y. S. R. 102, 5 N. Y. Supp. 304 405 
 
 Torry v. Hadley, 14 How. Pr. 357 5 
 
 Townsend v. Peyser, 14 Abb. Pr. N. S. 324, 45 How. Pr. 211 497 
 
 Tracy, Re, 1 Paige, 580 209 
 
 Re, 18 Abb. N. C. 242 259, 271 
 
 Re, 1 App. Div. 113, 72 K Y. S. R. 219, 37 N. Y. Supp. 65, 
 
 Affirmed v/ithout opinion in 149 N. Y. 608, 44 N. E. 1129. . 47 
 
 V. Dolan, 31 App. Div. 24, 52 N. Y. Supp. 351 317, 333 
 
 V. Stone, 5 How. Pr. 104 208 
 
 Tradesmen's Nat. Bank v. Curtis, 63 App. Div. 14, 71 N, Y. Supp. 414. . 65 
 
 Train v. Davidson, 11 App. Div. 627, 42 N. Y. Supp. 1133 401 
 
 Traver v. Nichols, 7 Wend, 434 169, 412 
 
 Tredv/ell v. Brooklyn, 11 App. Div. 224, 43 N. Y. Supp. 458 137 
 
 Tribune Asso. v. Smith, 8 Jones & S. 99 67 
 
 Trimble v. Kilgannon, 12 Misc. 459, 24 N. Y. Civ. Proc. Rep. 400, 68 
 
 N. Y. S. R. 134, 34 N. Y. Supp. 250 338 
 
 Trimm v. Marsli, 2 Hun, 383, 4 Thomp. & C. 577 350 
 
 Troy & B. R. Co. v. Tibbits, 11 How. Pr. 168 64 
 
 Truscutt V. King, 4 How. Pr. 173 5 
 
 Trust V. Pirson, 1 Hilt. 292, Affirmed in 3 Abb. Pr. 84 128 
 
 Tubbs V. Hall, 12 Abb. Pr. N. S. 237 85 
 
 Tuck V. Manning, 53 Hun, 455, 17 N. Y. Civ. Proc. Rep. 175, 25 N. Y. 
 
 S. R. 130, 6 N. Y. Supp. 140 13, 28 
 
 Tucker v. Ely, 37 Hun, 565, 20 N. Y. Week. Dig. 380 406 
 
 V. Gilman, 58 Hun, 167, 33 N. Y. S. R. 962, 11 N. Y. Supp. 555, 
 
 Affirmed in 125 N. Y. 714, 26 N. E. 756 421, 422
 
 TABLE OF CASES CITED. CXXIX 
 
 Tucker V. Gilman, 20 N. Y. Civ. Proc. Rep. 397, 37 N. Y. S. R. 958, 14 
 
 N. Y. Supp. 392 420 
 
 V. Utica, 35 App. Div. 173, 54 N. Y. Supp. 855 392 
 
 Tullis V. Buslmell, 12 Daly, 217, 65 ^low. Pr. 466 15, 36, 38 
 
 Tully V. Eastburn, 1 Month. L. Bull. 74 141 
 
 Tunnicliir v. Lawj'er, 3 Cow. 382 112 
 
 Timstall V. Winton, 31 Hun, 219, Affirmed without opinion in 96 N. Y. 
 
 660, 5 Month. L. Bull. 42 20, 43, 319 
 
 Turell V. Erie R. Co. 40 App. Div. 296, 61 N. Y. Supp. 308 321, 322 
 
 Turner v. Van Riper, 43 How. Pr. 33 113 
 
 Turno v. Parks, 2 How. Pr. N. S. 35 43 
 
 Tyng, Re, 17 N. Y. Week. Dig. 234 421, 422 
 
 V. American Surety Co. 69 App. Div. 137, 74 N. Y. Supp. 502. . . 415 
 Tyroler v. Giunmersbach, 28 Misc. 151, 59 N. Y, Supp. 266, 319 307 
 
 U. 
 
 Uhlfelder v. Tamsen, 17 Misc. 296, 40 N. Y. Supp. 372 313 
 
 Uhlman v. Uhlman, 19 Jones & S. 361 176 
 
 Ulster Coimty v. Brodhead, 44 How. Pr. 411 26 
 
 Underhil) v. Dennis, 9 Paige, 202 272 
 
 v. Rushmore, 51 App. Div. 204, 64 N. Y. Supp. 1015 125 
 
 Union Bank v. Mott, 1 9 How. Pr. 267, 1 1 Abb. Pr. 42 63 
 
 Union Elev. R. Co., Re, 55 Hun, 163, 28 N. Y. S. R. 386, 7 N. Y. Supp. 
 
 853 200 
 
 Union Ins. Co. v. Central Trust Co. 36 N. Y. S. R. 435, 13 N. Y. Supp. 
 17, Further Appeal, 87 Hun. 140, 06 N. Y. S. R. 876, 13 
 
 N. Supp. 1135 309 
 
 v. Van Rennesselaer, 4 Paige, 85 154, 384, 408 
 
 Union Trust Co. v. Whiton, 17 Hun, 594 358 
 
 V. Whiton, 78 N. Y. 491 463 
 
 United Press v. New York Press Co. 164 N. Y. 406, 53 L. R. A. 288, 
 
 58 N. E. 527 364 
 
 United States v. Engeman, 27 Abb. N. C. 141 198, 199 
 
 Upson v. Hesselson, 60 App. Div. 615, 69 N. Y. Supp. 684 334 
 
 Ury v. Wilde, 15 N. Y. Civ. Proc. Rep. 451, 19 N. Y. S. R. 674, 3 N. Y. 
 
 Supp. 791 126, 391 
 
 Utica Waterworks Co. v. Utica, 31 Hun, 426 171 
 
 Utter v. Gifford, 25 How. Pr. 289 108, 113, 119 
 
 V. 
 
 Vadney v. Thompson, 44 Hun, 1, 6 N. Y. S .R. 395 Ill 
 
 Vail V. Remsen, 7 Paige, 206 243
 
 CXXX TABLE OF CASES CITED. 
 
 Valentine, Re, 100 N. Y. 607, 22 N. Y. Week. Dig. 175, 2 N. E. 451 257 
 
 V. Jackson, 9 \\'cnd. 302 237 
 
 Valentine's Estate, 9 Abb. N. C. 313 26& 
 
 Valiente v. Bryan, 3 N. Y. Civ. Proc. Rep. 358, 6G How. Pr. 302. .215, 21& 
 
 510 
 
 Valk V. McKeige, 43 N. Y. S. R. 26, 16 N. Y. Supp. 741 157 
 
 Van Alen v. American Nat, Bank, 10 Abb. Pr. N. S. 331 447 
 
 Van Allan v. Gordon. 02 Hun. 500, 72 N. Y. S. R. 91, 36 N. Y. Supp. 
 
 987 66- 
 
 Van Allen v. Glass, 60 Hun, 546, 21 N. Y. Civ. Proc. Rep. 127, 39 N. Y. 
 
 S. R. 676, 15 N. Y. Supp. 261 282, 287 
 
 V. Scbernierhorn, 14 How. Pr. 287 78 
 
 Van Bergen v. Ackless, 21 How. Pr. 314 161 
 
 Van Broeklin v. Van Broeklin, 17 App. Div. 226, 45 N. Y. Supp. 541. . 33^ 
 
 Van Brunt v. Van Brunt, 14 N. Y. S. R. 887 348 
 
 Van Buren v. Fort, 4 Wend. 209 80 
 
 V. Olmsted, 5 Paige, 9 146 
 
 Van Biissura v. Metropolitan L. Ins. Co. 16 Misc. 40, 73 N. Y". S. R. 285, 
 
 37 N. Y. Supp. 665 463 
 
 Van Camp v. Ross, 9 Abb. N. C. 390 318 
 
 Van Cott. Re, 1 Paige, 489 210 
 
 Vandc. .oort. Re, 19 K Y. Civ. Proc. Rep.. 355. 35 N. Y. S. R. 644, 
 
 11 N. Y. Supp. 764 262 
 
 Vanderwerken v. Brown, 38 Hun, 234 302 
 
 Vanderveer v. Vanderveer, 17 N. Y. S. R. 648, 1 N. Y. Supp. 897 359 
 
 V. Warren, 11 N. Y. Civ. Proc. Rep. 319 490 
 
 Van Engen v. Hilton, 91 Hun, 373, 71 N. Y. S. R. 682, 36 N. Y. Supp. 
 
 752 74 
 
 Van Gelder v. Hallenbeck, 15 N. Y. Civ. Proc. Rep. 333, 18 N. Y. S. R. 
 
 19, 2 N. Y. Supp. 252 160, 162, 439, 487, 489, 495 
 
 V. Van Gelder, 13 Hun, 118 468 
 
 V. Van Gelder, 26 Hun, 350 496 
 
 V. Van Gelder, 84 N. Y. 65S 394, 458, 466 
 
 Van Gieson v. Van Gieson, 26 App. Div. 347, 49 N. Y. Supp. 781 181 
 
 Van Horn. Re, 10 Daly, 131 220, 222 
 
 Van Houten, Re, 11 App. Div. 208, 42 N. Y. Supp. 919 268 
 
 Van Kirk v. Sedgwick, 87 N. Y. 265 53 
 
 Van Loan v. Squires, 51 Hun. 360, 21 N. Y. S. R. 526, 4 N. Y. Supp. 
 
 371 7a 
 
 Van Xostrand, Re, 3 Misc. 396, 24 N. Y. Supp. 850 265 
 
 Van Rensselaer v. Dole, 1 Johns. Cas. 279, and note 94 
 
 v. Kidd, 5 How. Pr. 242, 3 N. Y. Code Rep. 294 349, 354, 364 
 
 Van Riper v. Popenhausen, 43 N. Y. 68 131, 244
 
 TABLE OF CASES CITED. CXXXl 
 
 Van IScliaick v. Winne, 8 How. Pr. 5 468 
 
 Van Slyck v. Bush, 24 Jones & S. 478, 4 N. Y. Supp. 710 41!) 
 
 Van Valkcnbtrx-gh v. Doolittle, 4 Abb. N. C. 72 512 
 
 V. Van Alen, 1 How. Pr. 86 4 
 
 V. Van Schaick, 8 How. Pr. 271 62, 103 
 
 Van Vleck v. Clark, 38 Barb. 316, 24 How. Pr. 190 328 
 
 V. Van Vleck, 21 App. Div. 272, 47 N. Y. Supp. 470 44, 181, 382 
 
 V. Van Vleck, 21 App. Div. 631, 47 N. Y. Supp. 472 472 
 
 Van Wert, Re, 3 Misc. 563, 24 N. Y. Supp. 719 265 
 
 Van Woert v. Ackley, 56 Hun, 375, 10 N. Y. Supp. 673 434 
 
 Van Wormer v. Van Wormer, 57 Hun, 496, 11 N. Y. Supp. 247 17(i 
 
 Van Wyck v. Baker, 11 Hun, 309 85, 152 
 
 V. Reid, 10 How. Pr. 366 437 
 
 Varnum v. Wheeler, 9 N. Y. Civ. Proc. Rep. 421 441, 497-499, 506 
 
 Vaughn v. Strong, 66 Hun, 278, 49 N. Y. S. R. 319, 21 N. Y. Supp. 154, 248 
 
 Vaupell V. Woodward, 2 Sandf. Ch. 143 291 
 
 Veeder v. Judson, 91 N. Y. 374 495 
 
 V. Mudgett, 27 Hun, 519, Modified, 95 N. Y. 295 473 
 
 Venanzio v. Weir, 64 App. Div. 483, 72 N. Y. Supp. 234 313 
 
 Vence v. Speir, 18 How. Pr. 168 476, 480, 481 
 
 Verplank v. Kendall, 15 Jones & S. 513 431, 434 
 
 v. Mercantile Ins. Co. 1 Edw. Ch. 46 2 
 
 Vetterlein v. Barnes, 43 Hun, 437 429 
 
 Vietor v. Halstead, 38 N. Y. S. R. 407, 14 N. Y. Supp. 516 353 
 
 Vieu, Re, 29 Misc. 161, 60 N. Y. Supp. 175 224 
 
 Vilas V. Butler, 9 L. R. A. 844, 20 Am. St. Rep. 771, 25 N. E. 941 405 
 
 V. Plattsburgh & M. R. Co. 123 N. Y. 450 405 
 
 Vilmar v. Scliall, 61 N. Y. 564 377 
 
 Vogt Mfg. & Coach Lace Co. v. Oettinger, 88 Hun, 52, 68 N. Y. S. R. 
 
 549, 34 N. Y. Supp. 731 101 
 
 Volger V. Force, 63 App. Div. 122, 71 N. Y. Supp. 209 379 
 
 Von Keller v. Schulting, 45 How. Pr. 139 398, 452, 458, 462, 466 
 
 Voorhees v. McCartney, 51 N. Y. 387 424 
 
 Voorhees v. National Citizens' Bank, 15 Abb. Pr. N. S. 13 93 
 
 Vooris V. French, 15 Jones & S. 364, 61 How. Pr. 161 379 
 
 Voullaire v. Wise, 19 Misc. 659, 44 N. Y. Supp. 510 427 
 
 Vowles V. Murray, 50 How. Pr. 159 119 
 
 Vroom v. Ditmas, 4 Paige, 526 146 
 
 Vrooman v. Pickering, 25 Misc. 277, 28 N. Y. Civ. Proc. Rep. 302, 54 
 
 N. Y. Supp. 389 23 
 
 W. 
 
 Waberson v. Waberson, 27 Misc. 125, 57 N. Y. Supp. 405 182
 
 CXXXll TABLE OF CASES CITED. 
 
 Wadley v. Davis, 38 Hun, 186 444 
 
 Waffle V, Dillenback, 38 N. Y. 53, 4 Abb. Pr. N. S. 457 406 
 
 Wagner v. Adams, 1 How. Pr. 191 317 
 
 Waite V. F. J. Kaldeuberg Co. 68 Hun, 528, 52 N. Y. S. R. 595, 22 N. Y. 
 
 Supp. 1006 403 
 
 Walbridge v. James, 16 Hun, 8 504 
 
 Waldheimer, Re, 84 App. Div. 336, 82 N. Y. Supp. 916 186 
 
 Wales V. Hart, 2 Cow. 426 161 
 
 Walker v. Burnham, 7 How. Pr, 55 164 
 
 V. Chilson, 65 Hun, 529, 20 N. Y. Supp. 527 279 
 
 V. Gardener, 8 Misc. 468, 60 N. Y. S. Pv. 599, 29 N. Y. Supp. 669, 253 
 
 V. Johnson, 8 How. Pr. 240 281, 282, 287 
 
 V. Porter, 49 N. Y. S. R. 849, 21 N. Y. Supp. 723 152 
 
 V. Russell, 7 Abb. Pr. 452, note, 16 How. Pr. 91 82, 394 
 
 V. Walker, 82 N. Y. 260 179 
 
 Walkinshaw v. Perzel, 7 Robt. 606, 32 How. Pr. 310 58 
 
 Wallace v. American Linen Thread Co. 16 Hun, 404 135 
 
 Wallis V. Markhara, 1 Denio, 671 246 
 
 Walp V. Boyd, 19 N. Y. S. R. Ill, 2 N. Y. Supp. 735 125 
 
 Walsh V. Van Allen, 36 Hun, 629 270 
 
 V. Bowery Sav. Bank, 9 N. Y. Civ. Proc. Rep. 177 58 
 
 V. Walsh, 33 App. Div. 579, 53 N. Y. Supp. 881 82 
 
 V. Weidenfeld, 3 Daly, 334 349 
 
 Walter v. F. E. McAlister Co. 21 Misc. 747, 27 N. Y. Civ. Proc. Rep. 33, 
 
 48 K Y. Supp. 26 136 
 
 Walton V. Collins, 38 App. Div. 439, 57 N. Y. Supp. 244 234 
 
 V. Howard, 1 Dem. 103 260, 264, 266 
 
 V. Mather, 10 Misc. 216, 31 N. Y. Supp. Ill 64, 66 
 
 V. Meeks, 41 Hun, 311 150 
 
 Ward V. Craig, 14 N. Y. Week. Dig. 55 10 
 
 V. Craig, 87 N. Y. 550 11, 21 
 
 V. James, 8 Hun, 526 3, 496, 504 
 
 V. Roy, 69 N. Y. 96 423 
 
 V. Sands, 10 Abb. N. C. 60 60 
 
 V. Syme, 9 How. Pr. 16, 1 E. D. Smith, 598 10 
 
 V. Ward, 67 App. Div. 121, 73 N. Y. Supp. 450 29, 48 
 
 V. Woodburn, 27 Barb. 354 93 
 
 V. Wordsworth, 1 E. D. Smith, 598, 9 How. Pr. 16 10 
 
 Warden v. Frost, 35 Hun, 141 287 
 
 Wardlaw v. New York, 30 Abb. N. C. 129, 23 N. Y. Supp. 669 66 
 
 Warfield v. Watkins, 30 Barb. 395 296 
 
 Waring v. Barret, 2 Cow. 400 320, 424 
 
 Warner v. Babcock, 9 App. Div. 398, 75 N. Y. S. R. 885, 41 N. Y. 
 
 Supp. 493 279, 282
 
 TABLE OF CASES CITED. CXXXlll 
 
 Warner v. Ford, 17 How. Pr, 54 399 
 
 V. Lessler, 33 N. Y. 296 459 
 
 V. Ross, 9 Abb. N. C. 385 318 
 
 Warren v. Buckley, 2 Abb. N. C. 323 371 
 
 V. Chase, 8 Misc. 520, 59 N. Y. S. R. 416, 28 N. Y. Supp. 765. . 472 
 \Va8hburn v. Mott, 19 N. Y. Civ. Proc. Rep. 439. 34 N. Y. S. R. 145, 
 
 12 N. Y. Supp. Ill 38 
 
 Washburne v. Oliver, 62 How. Pr. 482 488 
 
 Wassinger v. Fennell, 13 N. Y. Civ. Proc. Rep. 286 333 
 
 Waterman v. Shipman, 47 N. Y. S. R. 418, 19 N. Y. Supp. 976 377 
 
 V. Van Benschotten, 13 Johns. 425 3 
 
 Waterbury v. Tucker & C. Cordage Co. 152 N. Y. 610, 46 N. E. 959. . . 143 
 
 144 
 Waterbury Leather Mfg. Co. v. Krause, I Hilt. 560, 9 Abb. Pr. 175, 
 
 note 81 
 
 Waters v. Shepherd, 14 Hun, 223 500 
 
 Watson v. Depeyster, 1 Cai. 66 296 
 
 v. Gardiner, 50 N. Y. 671 : 391, 440 
 
 ^Vatt, Re, 10 Daly, 11 224 
 
 Waverly Water Works Co., Re, 85 N. Y. 478 86 
 
 Wead V, Cantwell, 36 Hun, 528 156 
 
 Weaver v. Ely, 83 N. Y. 89 382 
 
 Webb V. Bulger, 4 Hill, 588. 396 
 
 V. Crosby, 11 Paige, 193 441 
 
 V. Daggett, 2 Barb. 9 221 
 
 V. Norton, 10 How. Pr. 1 17 458, 4G0 
 
 Webber v. Hobbie, 13 How. Pr. 382 215 
 
 Weber v. Moog, 12 Abb. N. C. 108 323 
 
 Webster v. Nichols, 21 N. Y. Week. Dig. 566 249 
 
 Weed V. Bergstresser, 2 Month. L. Bull. 55 284 
 
 v. Paine, 31 Hun, 10, 13 Abb. N. C. 200 152, 154, 372, 384 
 
 Weehawken Wharf Co. v. I^ickerbocker Coal Co. 25 Misc. 309, 54 
 
 N. Y. Supp. 566 432 
 
 Weeks v. Comwell, 38 Hun, 577 472 
 
 V. Garvey, 24 Jones & S. 562, 4 N. Y, Supp. 891 240 
 
 V. Silver Islet Consol. Min. & Lands Co. 26 Jones & S. 247, 32 
 
 N. Y. S. R. 417, 11 N. Y. Supp. 48 376 
 
 V. Southwick, 12 How. Pr. 170 60, 370, 387 
 
 Wehle V. Bowery Sav. Bank, 8 Jones & S. 161 69 
 
 V. Conner, 83 N. Y. 231 12, 20 
 
 Weigan v. Held, 3 Abb. Pr. 462 79 
 
 Weil V. Kempf, 12 N. Y. Civ. Proc. Rep. 379 412
 
 CXXXIV TAliI.E OF CASES CITED. 
 
 Weill V. Metropolitan R. Co. 10 Misc. 72, 24 N. Y. Civ. Proc. Rep. 85, 
 1 N. Y. Anno. Cas. 40, 63 N. Y. S. R. 170, 30 N. Y. Supp. 
 
 833 63 
 
 V. Weill, 18 N. Y. Civ. Proc. Rep. 241, 10 N. Y. Supp. 627. . .44, 45 
 
 513 
 Weinberger v. Metropolitan Traction Co. 63 App. Div. 240, 71 N. Y. 
 
 Supp. 280 75 
 
 Weinstein v. Frank, 56 App. Div. 275, 67 N. Y. Supp. 746 339 
 
 Weiss v. Morrell, 7 Misc. 541, 58 N. Y. S. R. 319, 28 N. Y. Supp. 61 . . . 486 
 
 Welch v. Bogert, 3 N. Y. Week. Dig. 402 335 
 
 V. Fallihee, 75 Hun, 308, 56 N. Y. S. R. 777, 27 N. Y. Supp. 81. .110 
 
 118 
 
 V. Gaflfney, 1 How. Pr. N. S. 146 335, 336 
 
 V. Preston, 58 How. Pr. 52 61 
 
 Welling, Re, 51 App. Div. 355, 64 N. Y. Supp. 1025 256, 261, 264 
 
 V. Ivoroyd Mfg. Co. 15 App. Div. 116, 4 N. Y. Anno. Cas. 145, 44 
 
 N. Y. Supp. 374 390 
 
 Wellington v. Classon, 9 Abb. Pr. 175, 18 How. Pr. 10 80 
 
 v. Ulster County Ice Co. 5 N. Y. Week. Dig. 104 144 
 
 Wellman v. Frost, 38 Hun, 389 431, 510 
 
 Wells V. Tolman, 88 Hun, 438, 68 N. Y. S. R. 777, 34 N. Y. Supp. 840. . 148 
 V. Vanderwerker, 45 App. Div. 155, 7 N. Y'. Anno. Cas. 73, 60 
 
 N. Y. Supp. 1089 151, 152, 153 
 
 Wells Ave. Sewer, Re, 46 Hun, 534, 28 N. Y. Week. Dig. 125 86 
 
 Weltman v. Posenecker, 19 Misc. 592, 44 N. Y. Supp. 406 343 
 
 Wendell v. Wendell, 3 Paige, 509 137 
 
 Wenstrom Electric Co. v. Bloomer, 85 Hun, 389, 32 N. Y. Supp. 903 ... 404 
 
 Wentworth v. Candee, 17 How. Pr. 405 95 
 
 Werner v. Franklin Nat. Bank, 49 App. Div. 423, 63 N. Y. Supp. 383, 
 
 29 N. Y. Civ. Proc. Rep. 272, 58 N. Y. Supp. 107 381 
 
 Wesley v. Bannett, 6 Abb. Pr. 12 70 
 
 Wessels v. Boettcher, 142 N. Y. 212, 36 N. E. 883 427 
 
 V. Carr, 22 Abb. N. C. 464, 6 N. Y. Supp. 535 486, 487 
 
 West V. Bacon, 164 N. Y. 425, 58 N, E. 522 13 
 
 V. Lynch, 1 N. Y. City Ct. Rep. 174 447 
 
 V. Place, 4 Misc. 19, 23 N. Y. Supp. 1089 382 
 
 V. Utica, 71 Hun, 540, 51 N. Y. S. R. 911, 24 N. Y. Supp. 1075. . 136 
 
 392 
 
 Westervelt v. Nelson, 8 N. Y. Legal Obs. 173 161 
 
 Weston V. Stoddard, 22 N. Y. Civ. Proc. Rep. 51, 42 N. Y. S. R. 76, 16 
 
 N. Y. Supp. 1089 151, 152 
 
 Wetmore v. Gale, 2 N. Y. Week. Dig. 408 141 
 
 V. Parker, 52 N. Y. 466 155, 266, 382
 
 TABLE OF CASES CITED. CXXXV 
 
 Wheatland v. Taylor, 20 N. Y. Week. Dig. 33 39G 
 
 Wheaton v. Newcombe, 21 Jones & S. 178, 11 N. V. Civ. Proc. Rep. 90. . 3 
 
 Wheeler v. Heermans, 3 Sandf. Ch. 597 394 
 
 V. Lozee, 12 How. Pr. 446 476, 478 
 
 V. Mowers, 16 Misc. 331, 39 N. Y. Supp. 731 302, 305 
 
 V. Ruckman, 5 Robt. 702 476, 479, 480, 481 
 
 V. Westgate, 4 How. Pr. 269 3, 4, 471 
 
 V. Wright, 23 How. Pr. 228, 14 Abb. Pr. 3o3 423, 424 
 
 Wheelock v. Hotchkiss, 18 How. Pr. 468 161, 163 
 
 V. Tanner, 39 N. Y. 481 294 
 
 Whelan, Re, 6 Dem. 425, 15 N. Y'. Civ. Proc. Rep. 273, 17 N. Y. S. R. 
 
 772, 2 N. Y. Supp. 635 258 
 
 V. Whelan, 3 Cow. 537 342 
 
 Whipple V. Williams, 4 How. Pr. 28 (K), 441 
 
 Whitbeck v. Billings, 3 Thomp. & C. 764, 1 Hun, 494 168 
 
 V. Patterson, 22 Barb. 83 275 
 
 Whitcomb v. Whitcomb, 92 Hun, 443, 71 N. Y. S. R. 661, 36 N. Y. Supp. 
 
 607 253 
 
 White, Re, 82 App. Div. 553, 81 N. V. Supp. 858 55 
 
 V. Anthony, 23 N. Y. 164 458. 460 
 
 V. Brady, 4 Month. L. Bull. 39 15 
 
 V. Rankin, 18 App. Div. 293, 46 X. Y. Supp. 228 235 
 
 V. Sumner, 16 App. Div. 70, 44 N. Y. Supp. 692 18 
 
 Whitehead v. O'Sullivau, 12 Misc. 577, 67 N. Y. S. R. 801, 33 N. Y. 
 
 Supp. 1098 21 
 
 Whiteman v. Leslie, 1 Month. L. Bull. 50 489 
 
 White Plains, Re, 65 App. Div. 417, 72 N. Y. Supp. 1026 86 
 
 Whitesell v. New Jersey & H. River & Ferry Co. 68 App. Div. 82, 74 
 
 N. Y. Supp. 217 12 
 
 Whiteside v. Noyac Cottage Asso. 84 Hun, 555, 32 N. Y. Supp. 724. .415, 416 
 
 Whitman v. Xicol, 49 How. Pr. 88, 16 Abb. Pr. N. S. 329 468 
 
 Whitney v. Cooper, 1 Hill, 629 421, 423, 424 
 
 V. Daggett, 6 Abb. N. C. 434 130 
 
 V. Roe, 75 Hun, 508, 57 N. Y. S. R. 683, 27 N. Y. Supp. 511 507 
 
 V. Saxe, 15 N. Y'. Civ. Proc. Rep. 450, 18 N. Y. S. R. 1020, 2 N. Y. 
 
 Supp. 653 95, 93 
 
 V. Whitney, 26 Jones & S. 335, 19 N. Y. Civ. Proc. Rep. 265, 33 
 
 N. Y. S. R. 704, 11 N. Y. Supp. 582 179 
 
 Whittaker v. New York & H. R. Co. 18 Abb. N. C. 11, 22 Jones & S. 8, 
 
 11 N. Y. Civ. Proc. Rep. 189 23, 24 
 
 Wice V. Commercial F. Ins. Co. 8 Daly, 70 330 
 
 v. Commercial Ins. Co. 7 Daly, 258, 2 Abb. N. C. 325 430 
 
 Wicker v. Elmira Heights, 42 App. Div. 426, 59 N. Y. Supp. 130 314 
 
 .S21. .'?26
 
 CXXXVl TABLE OF CASES CITED. 
 
 Wiekham v. Seely, 18 Wend. 649 $ 
 
 Wiggins V. Arkenburg, 4 Sandf. 688 48» 
 
 V. Tallmadge, 7 How. Pr. 404 281 
 
 Wilber v. Baker, 24 Hun, 24 35, 39 
 
 V. Williams, 4 App. Div. 444, 38 N. Y. Supp. 803 355 
 
 Wilbur V. White, 56 How. Pr. 321 335 
 
 V. Wiltsey, 13 How. Pr. 506 396, 466 
 
 Wilcox V. Daggett, 15 N. Y. Week. Dig. 208 92, 98 
 
 V. Quimby, 47 N. Y. S. R. 423, 20 N. Y. Supp. 5 235 
 
 V. Smith, 26 Barb. 316 18, 31, 261, 264, 419 
 
 Wilcox's Estate, 11 N. Y. Civ. Proc. Rep. 115 276 
 
 Wilder v. Seelyc, 8 Barb. 408 293 
 
 V. Wheeler, 1 How. Pr. 130 441, 481 
 
 Wilderraings v. Fowler, 14 Abb. Pr. N. S. 249, Reargued in 15 Abb. Pr. 
 
 N. S. 86, AtKrmed in 55 N. Y. 641 55 
 
 Wildey v. Robinson, 85 Hun, 362, 66 N. Y. S. R. 423, 32 N. Y. Supp. 
 
 1018 133 
 
 Wilds, Re, 6 Abb. N. C. 307 30 
 
 Wiloy V. Arnoux, 60 How. Pr. 137 326 
 
 V. Long Island R. Co. 88 Hun, 177, G8 N. Y, S. R. 425, 34 N. Y. 
 
 Supp. 415 354 
 
 Wilkins v. Batterman, 4 Barb. 47 IT 
 
 V. Williams, 15 N. Y. Civ. Proc. Rep. 168, 17 N. Y. S. R. 238, 
 
 3 N. Y. Supp. 897 Ill, 120 
 
 Wilkinson v. Tiffany, 4 Abb. Pr. 98 366, 379 
 
 Wilklow V. Bell, 18 How. Pr. 397 398 
 
 Willett V. Scovil, 4 Abb. Pr. 405 416 
 
 Willett's Estate, 15 N. Y. Civ. Proc. Rep. 284, 2 N. Y. Supp. 665. .261, 262 
 
 Willey V. Shaver, 1 Thomp. & C. 324 169' 
 
 Wm. H. Frank Brewing Co. v. New York, 19 App. Div. 628, 46 N. Y. 
 
 Supp. 24 401 
 
 Williams v. Barkley, 165 N. Y. 48, 58 N. E. 765 12, 29, 34 
 
 V. Blumer, 49 How. Pr. 12 394 
 
 V. Buffalo, 25 Hun, 301, 13 N. Y. Week. Dig. 142 171 
 
 V. Cassidy, 22 Hun, 180, 59 How. Pr. 490 397, 439- 
 
 V. Fitch, 15 Barb. 654 460 
 
 V. Fitzhugh, 44 Barb. 321, Modified in 37 N. Y. 444 446 
 
 V. Folsoni, 37 N. Y. S. R. 635, 13 N. Y. Supp. 712 71 
 
 V. Hernon, 13 Abb. Pr. 297 387 
 
 V. Horgan, 13 How. Pr. 138 394 
 
 V. Ingersoll, 89 N. Y. 508 11 
 
 V. Kiernan, 4 Month. L. Bull. 41 353 
 
 V. Montgomery, 148 N. Y. 51 9, 43 N. E. 57 133
 
 TABLE OF CASES CITED. CXXXVll 
 
 Williams v. Western U. Teleg. Co. 61 How. Pr. 30o 349, 361, 370, 378 
 
 V. Wilkinson, 5 How. Pr. 357 61 
 
 V. Williams, 17 N. Y. Civ. Proc. Rep. 297, 25 N. Y. S. R. 186, 
 
 6 N. Y. Supp. 645 179 
 
 V. Williams, 130 N. Y. 193, 14 L. R. A. 220, 41 N. Y. S. R. 280, 
 
 27 Am. St. Rep. 517, 29 N. E. 98 180 
 
 V. Wilson, 18 Misc. 42, 40 N. Y. Supp. 1132 38 
 
 Williams Estate, 1 Connoly, 99, 15 N. Y. Civ. Proc. Rep. 270, 17 N. Y. 
 
 S. R. 839, 2 N. Y. Supp. 669 262, 263 
 
 Williamson v. Hendricks, 10 Abb. Pr. 98 157 
 
 V. Newhall, 15 N. Y. Week. Dig. 352 361 
 
 Williard v. Strachan, 3 N. Y. Civ. Proc. Rep. 452 390 
 
 Willink V. Reekie, 19 Wend. 82 476, 481 
 
 Willis V. Parker, 30 Misc. 750, 62 N. Y. Supp. 1078 307 
 
 Willmont v. Meserole, 48 How. Pr. 430, 16 Abb. Pr, N. S. 308 320, 321 
 
 Willover v. First Nat. Bank, 40 Hun, 184, 10 N. Y. Civ. Proc. Rep. 80. . 101 
 
 Willson V. Eveline, 39 App. Div. 129, 56 N. Y. Supp. 632 322 
 
 Wilson, Re, 2 N. Y. Civ. Proc. Rep. (Browne) 343 11, 23 
 
 Re, 103 N. Y. 374, 8 N. E. 731 267 
 
 v. Abbott, 68 N. Y. Supp. 867 98 
 
 V. Doran, 110 N. Y. 101, 17 N. E. 688 291, 292, 295 
 
 v. Lester, 64 Barb. 431 93, 467 
 
 V. McGregor, 20 N. Y. Civ. Proc. Rep. 36. 207, 34 N. Y. S. R. 
 
 775, 12 N. Y. Supp. 39 123 
 
 Winans v. Mason, 33 Barb. 522, 21 How. Pr. 153 14 
 
 V. Winans, 124 N, Y. 140, 26 N. E. 293 78, 82 
 
 Winants v. Blanchard, 12 N. Y. S. R. 384 422, 424 
 
 Winchester v. Brown, 51 Hun. 284, 21 X. Y. 8. R. 864, 4 N. Y. Supp. 
 
 155 316 
 
 V. Brownie, 72 N. Y. S. R. 361, 8 X. Y. Supp. 82 318 
 
 Windecker v. Mutual L. Ins. Co. 12 App. Div. 73, 43 N. Y. Supp. 358.. 403 
 
 404 
 
 Wing V. De La Rionda, 39 N. Y. S. R. 119, 15 N. Y. Supp. 533 353 
 
 v. De La Rionda, 20 N. Y. Civ. Proc. Rep. 183, 37 N. Y. S. R. 
 
 404, 13 N. Y. Supp. 793 92 
 
 V. De La Rionda, 126 N. Y. 680, 28 N. E. 223 352 
 
 V. New York & E. R. Co. 1 Hilt. 235 405 
 
 Winkemeier v. Winkemeier, No. 1, 11 App. Div. 199, 42 N. Y. Supp. 
 
 586 175 
 
 V. Winkemeier, No. 2, 11 App. Div. 201, 42 N. Y. Supp. 583. ... 177 
 
 Winn V. Crosby, 52 How. Pr. 174 220 
 
 Winne v. l^anning, 19 Misc. 410, 44 N. Y. Supp. 262 349, 353 
 
 V. Hills, 91 Hun, 89, 71 N. Y. S. R. 702, .30 N. Y. Supp. 683. .252, 253
 
 CXXXVIll TABLE OF CASES CITED. 
 
 Winterson v. Hitchings, 1 X. Y. Anno. Cas. 193, 73 N. Y. S. R. 360, 
 
 38 N. Y. Siipp. 171 42 
 
 Winton v, Winton, 31 llun, 290 180, 181 
 
 V. Winton, 18 N. Y. Civ. Proc. Rep. 67, 13 N. Y. Supp. 759 45 
 
 Wisconsin M. & F. Ins. Co. Bank v. Hobbs, 22 How. Pr. 494 415 
 
 Wisner v. Bulkley, 15 Wend. 321 56 
 
 Wither's Estate, 2 N. Y. Civ. Ro'^ ( Browne) 162 iGO, 264 
 
 Witowski V. Maisner, 21 Misc. 487, 47 N. Y. Supp. 599 306 
 
 W^oelfle V. Schmenger, 12 N. Y. Civ. Proc. Rep. 312, 9 N. Y. S. R. 516. . 280 
 
 Woennan v. Baas, 39 N. Y. S. R. 922, 15 N. Y. Supp. 469 85 
 
 Wohltman v. GofT, 15 N. Y. Civ. Proc. Rep. 39, 4 N. Y. Supp. 210 83 
 
 Wolcott V. Holcomb, 31 N. Y. 125 420, 421 
 
 Wolf, Re, 51 Hun, 407, 21 N. Y. S. R. 224, 4 N. Y. Supp. 239 49, 52 
 
 Re, 1 N. Y. S. R. 273 224 
 
 V. Di Lorenzo, 22 Misc. 323, 49 N. Y. Supp. 191 396 
 
 Wolfe V. Van Nostrand, 2 N. Y. 570 348, 364 
 
 Wolff V. Horn, 9 Misc. 100, 59 N. Y. S. R. 719, 29 N. Y. Supp. 75 443 
 
 497, 505, 506 
 V. Houston, W. Street & P. R. Co. 16 N. Y. Civ. Proc. Rep. 107, 
 
 19 N. Y. S. R. 762, 2 N. Y. Supp. 787 321, 324 
 
 V. Moses, 26 Misc. 500, 6 N. Y. Anno. Cas, 163, 57 N. Y. Supp. 
 
 696 120 
 
 Wollf, Re, 13 Daly, 481, AfTirmed in 102 N. Y. 741 224 
 
 Wood V. Blodgett, 49 Hun, 64, 15 N. Y. Civ. Proc. Rep. 114, 17 N. Y. 
 
 S. R. 295, 2 N. Y. Supp. 304 314, 315, 321, 334 
 
 V. BrookljTi F. Ins. Co. 10 How. Pr. 154 102 
 
 V. BroAvn, 6 Daly, 428 300 
 
 V. Byington, 2 Barb. Ch. 387 276, 332 
 
 V. Hitchcock, 20 Wend. 47 294 
 
 V. Illinois C. R. Co. 20 How. Pr. 285 351 
 
 V. Lary, 47 Hun, 550, 15 N. Y. S. R. 209 374 
 
 v.RandoIf, 9 Misc. 507, 61 N. Y. S. R. 80, 30 N. Y. Supp. 344.. 162 
 
 163, 189, 213 
 v. Richardson, 91 Hun, 332, 72 N. Y. S. R. 103, 36 N. Y. Supp. 
 
 1001 450 
 
 Woodbridge v. First Nat. Bank, 45 App. Div. 166, 61 N. Y. Supp. 258. . 366 
 
 v. First Nat. Bank, 166 N. Y. 238, 59 N. E. 836 364 
 
 Woodford v. Bucklin, 14 Hun, 444 133, 244 
 
 Woodruff V. Cook, 14 How. Pr. 481 239, 241 
 
 V. New York, L. E. & W. R. Co. 31 N. Y. S. R. 7, 10 N. Y. Supp. 
 
 305 349 
 
 V. New York, L. E. & W. R. Co. 129 N. Y. 27, 29 N. E. 251, 41 
 
 N. Y. S. R. 193 235
 
 TABLE OF CASES CITKD. CXXXIX 
 
 Woodnide v. Pender, 2 E. D. Smith, 390 301 
 
 Woodward v. Grier, 2 E. D. Smith, 51, 2 N. Y. Code fJep. 13 387 
 
 V. Stearnes, 11 Abb. Pr. N. S. 445 314 
 
 VVoodworth v. Brooklyn Elev. R. Co. 22 App. Div. 501, 48 N. Y, Supp. 
 
 80 393 
 
 Woolf V. Jacobs, 13 Jones & S. oS'6 18 
 
 Woolsey v. Ellenville, 84 Hun, 236. 65 N. Y. S. R. 746, 32 N. Y. Supp. 
 
 546 68 
 
 Woonsocket Rubber Co. v. Rubber Clothing Co. 62 How. Pr. 180, 1 
 
 N. Y. Civ. Proc. Rep. 350, 4 Month. L. Bull. 3 377 
 
 Worden v. Bro^vn, 14 How. Pr. 327 130 
 
 Worman v. Frankish, 32 N. Y. S. R. 235, 11 N. Y. Supp. S-l 315 
 
 Wormer v. Canovan, 7 Lans. 36 30 
 
 Wray v. Halliday, 3 Month. L. Bull. 98 242 
 
 Wright V. Fleming, 10 N. Y. Week. Dig. 450 23 
 
 V. Flemming, 18 Hun, 360 468 
 
 V. Nostrand, 21 Jones «& S. 381 55, 56 
 
 V. Reusens, 39 N. Y. S. R. 802, 15 N. Y. Supp. 504 159, 387, 492 
 
 Wickham v. Seely, 18 Wend. 649 113 
 
 Wyckoff V. Devlin, 8 N. Y. Civ. Proc. Rep. 138, 2 How. Pr. N. S. 333. . 327 
 
 Y. 
 
 Yamato Trading Co. v. Hoexter, 44 Hun, 491 399 
 
 Yellow Pine Co. v. Lehigh Valley Creosoting Co. 32 App. Div. 51, 52 
 
 N. Y. Supp. 281 78 
 
 Yorks V. Peck, 9 How. Pr. 201 246 
 
 Youker v. Johnson, 62 App. Div. 584, 71 N. Y. Supp. 178 124 
 
 Youle V. Botherton, 10 Johns. 363 428 
 
 Young V. Guy, 12 Hun, 325 428 
 
 V. Howell, 64 App. Div. 246, 72 N. Y. Supp. 5 39 
 
 V. Nassau Electric R. Co. 34 App. Div. 126, 54 N. Y. Supp, 600. . 340 
 
 341 
 V. Stone, 77 Hun, 395, 60 N. Y. R. S. 419, 28 N. Y. Supp. 881 . .93, 97 
 V. Syracuse, B. & N. Y. R. Co. 35 Misc. 114, 71 N. Y. Supp. 221. . 485 
 Youngs V. McDonald, 56 App. Div. 14, 8 N. Y. Anno. Cas. 461, 67 N. Y. 
 
 Supp. 375, Affirmed in 166 N. Y. 639, 60 N. E. 1123 415, 416 
 
 Yuengling v. Betz, 58 App. Div. 8, 68 N'. Y. Supp. 574 27 
 
 -Zabriskie v. Central Vermont R. Co. 13 N. Y. Supp. 735 383
 
 exl TAIJLB OF CASES CITED. 
 
 Zaitz V. Metroiwlitan Street R. Co. 52 App. Div. iiJii, 65 N. Y. Supp. 
 
 395 4a 
 
 Zeisler v. Steinraan, 21 Jones & S. 184 394 
 
 Zelmanovitz v, Manhattan R. Co. 24 N. Y. Civ. Proc. Rep. 402, 07 N. Y. 
 
 S. R. 405, 33 N. Y. Supp. 583 484, 507 
 
 Zimmer v. Metropolitan Street R. Co. 32 Misc. 262, 65 N. Y. Supp. 
 
 977 36, 38 
 
 Zimmerman v. Long Island R, Co. 14 App. Div. 562, 43 N. Y. Supp. 883, 449 
 
 Zink V. Attenburg, 18 How. Pr. 108 398 
 
 Zinsser v. Herrman, 24 Misc. 689, 53 N. Y. Supp. 778 307 
 
 Zogbaum v. Parker, 55 N. Y. 120 43 
 
 Zoller V. Smith, 45 Hun, 310, 12 N. Y. S. R. 438 303
 
 STATUTES CITED. Cxli 
 
 TABLE OF STATUTES CITED. 
 
 (References are to sections.) 
 
 Session taws. 18, § 204 143 
 
 19, §§ 83-88, 92, 117, 
 
 ^^^- 120 154 
 
 1854, chap. 270 159, b 21 157 
 
 1855, chap. 327 298 21 §157 152 
 
 1857, chap. 723, § 14 277 23^ art. l', 'title' 15, 
 
 1865, chap. 615 277 » 3_8 j34 
 
 1876, chap. 431 299, i 24 159, b 
 
 1877, chap. 407 38 29, § 28, subd. 2. . . . 147 
 
 1877, chap. 445, § 17 152 29 § 29 147 
 
 1880, chap. 2C9 395,b;313 31,' §§ 186,'l89.' ! " ! ! 145 
 
 1880, chap. 2C9, §§ 6, 7 159. b 
 
 1882, chap. 410, § 861 155 General Rules of Practice. 
 
 1884, chap. 181 371 
 
 1885, chap. 342 131. a Sec. 
 
 1888, chap. 345 152 ^^^^ ^0 22. b 
 
 1892, chap. 399 195 27 25 
 
 1892, chap. 608, 8 2 335 32 414, c 
 
 1892, chap. 685, § 3 153 45 276; 231 ; 282; 285 
 
 1893, chap. 531 140 77 27 
 
 1895, chap. 185 414, a _ . „„ 
 
 lonr T, rnrr A^A Cottc OX Procedure. 
 
 1895, chap. 595 414, a 
 
 1896, chap. 908, § 259 161, f Sec. 
 
 1896, chap. 908, § 254, art. Sec. 172 48, <? 
 
 11 161, f 307, subd. G 409 
 
 1897, chap. 378 152 309 130, c; 277 
 
 1897, chap. 427 140 311 414, d 
 
 1897, chap. 713 1^2 317 174, h',q 
 
 1898, chap. 110 146 313 189 
 
 1899, chap. 299 129, b 321 [,,[ 348 
 
 1900, chap. 191 7,b 371 228 
 
 1900, chap. 181 149, h 
 
 General Iiaws. 
 
 Code of Crizainal Procedure. 
 
 Sec. 
 
 Sec. Sec. 308 140; 403, 1 
 
 diap. 5. § 55 335 719 144 
 
 11, § 17 419 8r)0-873 399 
 
 16, § 14 133 873 23]
 
 Cxlii STATUTES CITED. 
 
 (References are to sectlous.) 
 
 Miscellaneous Statutes. 73li 196;222, a, b 
 
 733 196; 222, a 
 
 ^^^- 734 196; 222, a 
 
 73.-. 196; 405 
 
 73ii 196; 224 
 
 737 196; 224 
 
 738 196; 209; 120, h 
 
 739 196 
 
 740 196 
 
 768 235, d 
 
 769 282 
 
 779.. 25; 38; 56, b; 97; 164, f; 
 184; 259, a; 361; 370; 
 Civil damage act 318, c; 322 371. 395^ b; 416; 419 
 
 Statute 
 
 of Gloucester 
 
 (6 
 
 
 Edw. 
 
 I., chap. 1 ) 
 
 
 2 
 
 Statute 
 
 of Marlbridge, chap. 
 
 
 6, 23 
 
 (Henry VIII., ch 
 
 ap. 
 
 
 15) . 
 
 
 
 2 
 
 17 Richard II., chap. R . . 
 
 
 4 
 
 2 Rev. 
 
 Stat. 174, § 40... 
 
 
 38 
 
 
 352, § 18... 
 
 
 38 
 
 
 617, § 20... 
 
 
 316, b 
 
 
 619, § 44... 
 
 
 348 
 
 Greater Nemr York Charter. 
 
 Sec. 
 
 Sec. 400 152 
 
 1367 232, c 
 
 1370 403, f 
 
 817 323 
 
 820 325 
 
 822 52 
 
 829 40, b 
 
 872 409 
 
 87(1 409 
 
 87.S 409; 413, a 
 
 Code of Civil Procedure. 968 101, e 
 
 99r' 73 
 
 Sec. lOOr, 395, b 
 
 Articles 1, 2, tit. 8. chap. 19. 232, c 1016 38 
 
 Sec 15 184 1019 40, b; 413, e 
 
 66 9, c; 11; 13; 14; 15 1022 108; 174, f 
 
 19, c; 22, b; 32, c; 35; 40, a 1207 49, d 
 
 281) 414, g 1240 137,6 
 
 423 61; 131, b 1275 224, a 
 
 452 237 1270 233, 288 
 
 454 324 1280 233 
 
 458 263 ; 264, b 1281 233 
 
 459 258 ; 263 1309 336 
 
 460 263; 269 131G 391, g 
 
 461 263; 270; 271; 367 1323 47 
 
 462 263 1380 191 
 
 463 263 1381 191 
 
 464 263; 267 1421 132, b 
 
 405 263 1422 132, b 
 
 466 263 ; 268 U2il 132, b 
 
 467 203; 269 1424 132, b 
 
 469 358; 267 1425 132, b 
 
 477 258 142e; 132, b 
 
 500 38 1501 348 
 
 501 38 1525 74 ; 287 
 
 511 324, c 1531 16 
 
 537 51,c; 94 1540 129, a 
 
 559 338 1559 129, a 
 
 577 238 1503 413,1 
 
 723 49, a 1568 413,1 
 
 731 196; 222, a 1570 413,1
 
 STATUTES CITED. 
 
 cxliii 
 
 (References are to sections.) 
 
 1570 129, a 
 
 1580 129, a 
 
 1612 101, e 
 
 1634 222, c 
 
 1635 222, c 
 
 1640 101 
 
 1645 101 
 
 174* 13S,b 
 
 1757 136, a 
 
 1773 136, g 
 
 1822 174, e,p; 193 
 
 1835. . .174, a, d, e,g, p, q, r; 193 
 1836 . . . .174, a, d, e, g, n, p, q, r 
 
 193 
 
 1839 339 
 
 1902 28; 103, e 
 
 1903 23 
 
 1904 306 
 
 1985 145 
 
 2007 149, i; 167; 419 
 
 2059 160 
 
 2086 132, b; 149, a, h 
 
 2090 149, i 
 
 2100 ICi 
 
 2143 159, a, b 
 
 2163 171 
 
 2193 171 
 
 2250 163, a 
 
 2260 103, c; 226 
 
 2268 419 
 
 2284 162, a 
 
 2289 102, a 
 
 2290 162, a 
 
 2309 171, a 
 
 2311 171, a 
 
 2316 171, a 
 
 2323, b 158, b 
 
 2333 158, d 
 
 2330 158, a, b 
 
 2377 234 
 
 2378 234 
 
 2384 234 
 
 2401 119 
 
 2402 119 
 
 2403 119 
 
 2455 161,a,b, c, e 
 
 2450 161, a,b, d, e 
 
 2546 191 
 
 2547 194 
 
 2555 184; 419 
 
 2556 176 
 
 2557 176; 183 
 
 2558.176; 178; 192; 193; 414, h 
 
 2558, subd. 3 178; 185 
 
 2559 193 
 
 2560 187; 189; 193 
 
 2561 178; 182; 186; 190 
 
 191; 193; 194 
 
 2562 182; 191 
 
 2503 , 194 
 
 2589 187; 189 
 
 2672 182 
 
 2686 188 
 
 2718 174, e,q 
 
 2749 259 
 
 2756 259, a 
 
 2757 259, a 
 
 2793 194 
 
 2803 104, c 
 
 2863, subd. 4 104, b 
 
 2863, subd. 5 174, r 
 
 2951 101, 1 
 
 2952 101, 1 
 
 2958 101, m 
 
 3047 225 
 
 3049 22^ 
 
 3060 225; 228 
 
 3063 79 
 
 3066 17, 226 
 
 3006, subd. 1 226 
 
 3066, subd. 2 226 
 
 3066, subd. 3 226 
 
 3066, subd. 4 103, c; 226 
 
 3066, subd. 5 225 
 
 3067 226; 232, d, e 
 
 3070 17; 228 
 
 3072 17; 227; 228 
 
 3073 . . ..132, d; 227; 228; 231 
 408, k 
 
 3074 237 
 
 3076, .subd. 2 163, b 
 
 3129 225 
 
 3160 252; 257 
 
 3177 252 
 
 3178 252 
 
 3222 97 
 
 3223 17; 100; 228; 321; 38^ 
 
 391, a; 392; 406 
 
 3228, subd. 1 101, a, b 
 
 3228, subd. 2 101, a, b 
 
 3228, subd. 3 103, a; 146
 
 cxliv 
 
 STATUTES CITED. 
 
 (References are to sections.) 
 
 3228, subd. 4 7, b; 104 a 
 
 3229.. 7, b; 17; 100; 104, a, f 
 
 105; 145; 228; 318, a; 321 
 
 3230... 7, b; 105; 149, h; 130, a 
 
 3231 324, b 
 
 3232 89; 97; 98 
 
 3233 90 ; 98 
 
 3234.. 101, b; 102, a; 316,a,b, d 
 
 3235 101, 1 
 
 3236 48, c; 72 
 
 3238 381; 391, a; 392 
 
 3238, subd. 2 390, i 
 
 3239.. 159, b; 383; 391, a, g; 
 
 385, a 
 
 3239, subd. 2 383 
 
 3240 25; 129, e; 132, b; 147 
 
 148; 149, i; 150, a; 
 151, a, e, d; 153; 15G 
 157; 159, a, b; 160; 162 
 163, c; 189; 235, d; 313 
 395, b 
 
 3241 145 
 
 3213 145; 146 
 
 3244 134, a, b 
 
 3245 135. a, b 
 
 3246.. 104, b, d; 172, a; 174, a 
 259, a 
 
 3247 338; 348; 349; 352 
 
 3243 132, c; 159, b; 174, q 
 
 3249 258 
 
 3251.. 72; 90; 132, b; 149, h 
 
 159, h; 188; 232, d; 384 
 
 390, j, k; 398; 408, k 
 
 409; 413, i 
 
 3251, subd. 3.87; 406, f; 408, a, f 
 
 3251, subd. 4.. 48, b; 87; 391, g 
 
 408, a 
 
 3251, subd. 5 87; 408, a 
 
 3252.. 120, i; 121; 130, c; 131, e 
 
 299, i; 314; 315 
 
 3252, subd. 4 7, a 
 
 3253 120, j; 129, b; 130, c 
 
 131, e; 159, d; 274; 277 
 282; 299, h, i; 312, b 
 
 3254 130, c; 150, b; 274 
 
 3255 72 
 
 3256.. 178; 188; 190; 400; 401 
 
 400, c; 413, a; 414 
 
 3258.. 132, a, b; 134, e; 149, h 
 
 159, b 
 
 3258, subd. 1 159, a 
 
 3269 132, a 
 
 3262 99; 374 
 
 3203 374 
 
 3204 374; 376 
 
 3205 374 
 
 3266 374; 378 
 
 3267 374; 403, a 
 
 3208.. 236; 238; 245; 252; 200 
 
 262 
 
 3209 236; 238; 252 
 
 3270 236; 238 
 
 3271.. .236; 238; 259, a, d; 260 
 
 3272 236 
 
 3273 236 
 
 3274 236 
 
 3275 236 
 
 3276 236; 239 
 
 3277 230; 238 
 
 3278 230; ?45 
 
 3279 230; 253 
 
 3288 403, c, d 
 
 3296 413, a, b 
 
 3297 413, k 
 
 3298 402 
 
 3299 40,401 
 
 3300 402 
 
 3301 402 
 
 3302 402 
 
 3304 402 
 
 3307, subd. 1 403, a 
 
 3307, subd. 7 413, k 
 
 3307, subd. 11 413, k 
 
 3313 158, d 
 
 3314 158, d 
 
 3316 158, d 
 
 3317 412 
 
 3322 402 
 
 3334 235, d 
 
 3347, subd. 4 135, d; 222, a 
 
 237; 245 
 
 3347, subd. 6 222, a 
 
 3347, subd. 13 . . 135, b ; 228 ; 237 
 
 245 
 
 3357-3384 150, a 
 
 3369 150, a 
 
 3372 150, a, b; 152; 313 
 
 3374 150, d 
 
 3411 131, a 
 
 3432 131, a 
 
 3439 131, a
 
 The Law of Costs iist New Yokk. 
 
 CHAPTEE I. 
 
 GENEEALLY. 
 
 1. Definition of costs. 
 
 2. Costs at common law. 
 
 3. Costs in actions at law. 
 
 4. Costs in actions in equity. 
 
 5. By what statute governed. 
 
 6. Costs determined by which verdict. 
 
 7. Power of the court over costs. 
 
 a. In actions at law. 
 6. In actions in equity. 
 
 8. Power of attorney's over costs. 
 
 1. Definition of costs. — Costs are compensation for tlie ex- 
 pense incurred or paid out by a party in tlie prosecution of an 
 action or special proceeding.^ They are not a punisliment of the 
 party who has to pay them, nor a bonus to the party who re- 
 covers them. They were formerly given to a party for the ex- 
 pense he was put to in paying fees of officers of the court, among 
 which were those of his attorney. These fees had to be taxed 
 and settled by the proper officer of the court before the attorney 
 could recover them of his client. 
 
 2. Costs at common law. — At common law there were no costs 
 to either party, but a practice grew up in the courts of allowing 
 the plaintiff compensation for the expense he had been put to in 
 carrying on his suit, and of assessing it as a part of the damages, 
 so as to include it in the recovery. When the judges went upon 
 circuits and had not the necessary time to assess costs, the statute 
 of Gloucester (G Edw. I. chap. 1) was passed, which allowed the 
 plaintiff to recover costs where he recovered damages. By sub- 
 
 ^Fergvson v. Arnoic, 142 N. Y. 580j 
 60 N. Y. S. R. 301, 37 N. E. 626. 
 
 COSTS 1. 1
 
 Z THE LAW OF COSTS IN NEW YOKK. 
 
 sequent statutes (Marlbridge, chap. 6 ; 23 Hen. VIII., chap. 15) 
 the defendant, if the plaintiff was defeated, was allowed to re- 
 cover costs, to be assessed in the discretion of the judge or judges 
 of the court 
 
 3. Costs in actions at law.— The Code abolished the fee bill 
 leaving the attorney's compensation to the agreement of the par- 
 ties, express or implied, and allowed the prevailing party to re- 
 cover fixed sums as costs. Where a party, not an attorney, con- 
 ducted a suit or defense in person, he was not entitled to costs 
 under the old fee bill, which made provision only for the services 
 enumerated therein when rendered by officers of the court ;" nor 
 \vi\] he be allowed costs under the Code of Civil Procedure,^ but 
 he will be allowed his necessary disbursement?."* 
 
 An attorney must appear formally or in point of fact in a 
 cause, or he will not be recognized as an attorney for the pur- 
 pose of obtaining costs. He must subject himself to the respon- 
 sibilities of that character, or he cannot claim its advantages. It 
 is not sufficient that the work has been wholly or partly done by 
 an attorney.^ 
 
 AVhere an attorney is a party to a suit, and conducts the case 
 in person, he is entitled to costs the same as though he had em- 
 ployed another attorney to conduct the case for him.® 
 
 The right to costs is not an inherent right, but is created by 
 statute, and can only be obtained by bringing one's self clearly 
 Avithin the operation of existing statutory provisions.'^ 
 
 -Steicart v. Neio York Common ~Re Grade Cro.tsing, 20 App. Div. 
 
 fleas, 10 Wend. 597; Verplank v. 271, 46 N. Y. Siipp. 1070; J/wxson v. 
 
 Mercantile Ins. Co. 1 Edw. Ch. 40. Curtis, 43 Hun, 214, 26 N. Y. Week. 
 
 ^Channard v. Fuller, 4 :Month. L. Dig. 236. 6 N. Y. S. R. 189; Patter- 
 
 Bnll. 20. son v. Burnett. 1 Silv. Sup. Ct. 166, 
 
 *People ex rel. White v. Steuben 17 N. Y. Civ. Proc. Eep. 116, 4 N. Y. 
 
 Common Picas, 12 Wend. 200. Supp. 921, 23 X. Y. S. R. 363; Re 
 
 'People ex rel. White v. Steuben Brooklyn, 148 X. Y. 107, 42 X. E. 
 
 Common Pleas, 12 Wend. 200. 413; Levene v. Hahner, 62 App. Div. 
 
 'Kopprr V. Willis, 9 Daly, 460; 195. 70 N. Y. Supp. 913; Kraftt v. 
 
 Cromnieliu v. Diiismore, 1 X. Y. City Wilson. 8 X. Y. Civ. Proc. Rep. 3.j9, 
 
 a. Rep. 60. 3 How. Pr. X. S. 18; Onondaga v
 
 GENERALLY. d 
 
 When the amount of costs is limited by law, this includes 
 costs and disbursements. A party cannot tax costs to the limit 
 allowed by law, and then add disbursements.^ 
 
 4. Costs in actions in equity. — There are two distinct lines of 
 opinions on the question whether the right to costs in equity 
 actions depends upon the inherent powers of an equity court, or 
 depends upon statutory authority, as in actions at law. In the 
 first class it has been decided that costs in equity actions do not 
 depend upon any statute, but are allowed by reason of the inher- 
 ent powers of the court.® 
 
 In the other class of cases it has been held that a court of 
 equity has no inherent power to award costs independent of 
 statutory authority. ^^ In this class of cases the courts hold that 
 as the common-law courts first derived their authority from the 
 Statute of Gloucester, so the equity courts first derived their 
 authority to allow damages (costs) from 17 Rich. II., chap. 6, 
 which authorized the chancellor to allow damages (costs) ac- 
 cording to his discretion to him who was troubled unduly. 
 
 5. By what statute governed. — The right to costs, and the rate 
 of compensation, are governed by the law in force at the 
 time the right to costs is asserted by taxation, or, where taxation 
 is suspended by order of the court, by the law in force at the 
 lime of such order. ^^ 
 
 Briggs, 3 Denio, 173; Clark v. Dewey, 'Easthurn v. KirJc, 2 Johns. Ch. 
 
 5 Johns. 251: Waterman v. Van Ben- 317; Belmont v. Ponvert, 6 Jones & 
 
 schotten, 13 Johns. 425; Wickham S. 425, Reversed in 63 N_ y. 547. 
 
 V. Seelif, 18 Wend. 649; Crofut v. without passing on the question of 
 
 Brandt, 58 N. Y. 106, 17 Am. Rep. costs. 
 
 213; Equitable Life Assur. Soc. v. ^"Struthers v. Ghristal, 3 Daly, 
 
 Hughes, 125 N. Y. 106, 11 L. R. A. 327; Downing v. Marshall, 37 N. Y. 
 
 280, 26 N. E. 1; McKuskie v. Hen- 380. 
 
 drickson, 128 N. Y. 555, 40 N. Y. "^Ackley v. Tarhox, 19 Abb. Pr. 
 
 S. R. 619, 28 N. E. 650; Kilburn v. 119; Fargo v. Helmer, 43 Hun, 17; 
 
 Lowe, 37 Hun, 237; Ward v. James, McMasters v. Vernon, 1 Abb. Pr. 
 
 8 Hun, 526; Dowd v. Smith, 8 Misc. 179, 4 Duer, 625: Wheaton v. New- 
 
 619, 29 K Y. Supp. 821. combe, 21 Jones & S. 178, 11 K Y. 
 
 ^Wheeler v. Westgate, 4 How. Pr. Civ. Proc. Rep. 90; Brooklyn Bank 
 
 269; Ryan v. Farley, 3 Month. L. v. WiUoughby, 1 Sandf. 669; Rich 
 
 Bull. 78. V. Eusson, 1 Duer, 617, 11 N. Y.
 
 4 THE LAW OF COSTS IIs^ NEW YOKK. 
 
 The legislature may, during the progress of an action, create 
 an allowance for service not hefore provided for, or wholly 
 abolish such allowance as existed at the time of the commence- 
 ment of the action.^^ There is no vested right in costs during 
 the pendency of an action.^ ^ Where a defendant appealed from 
 a judgment, and, six months after the appeal was taken, the law 
 in relation to costs was amended by requiring the appellant to 
 serve an offer within fifteen days after the appeal should betaken, 
 and on default thereof the plaintiff would be entitled to costs if 
 he recovered a verdict, it was held that the plaintiff was entitled 
 to costs, although if the law had remained unchanged after the 
 appeal had been taken the defendant would have been entitled 
 to costs.^^ The right of the legislature thus to change the rights 
 of the parties to the costs of a pending action is undoubted. 
 Such a law does not violate the prohibition of the United States 
 Constitution forbidding the passage by the several states of ex 
 post facto laws, or laws that impair the obligation of contracts, 
 because ex post facto laws are retrospective laws in relation to 
 criminal matters, and there is certainly no contract relation be- 
 tween the parties to an action in relation to costs that may there- 
 after be awarded in that action. It is true that the injury 
 caused by the passage of a law granting or withholding costs in 
 a pending action is the same as that caused by an ex post facto 
 law, the difference being one of degree merely. But the same is 
 true of the changes made in the amount of costs in a pending 
 action, by a law passed before the right to costs become fixed. 
 Yet nothine; is more firmlv established than that the leo-islaturo 
 
 Legal Obs. 119; Onondaga v. Briggs, Van Alen, 1 How. Pr. 86; Goodenoio 
 
 3 Denio, 173; Hunt v. Middlehrook, v. Livingston, 1 How. Pr. 232; Cur 
 
 MB-OW-Pi. 300; People ex rcl. Barry tis v. Leavitt, 1 Abb. Pr. 118, 19 
 
 V. Herkimer Common Pleas, 4 Wend. Barb. 530; McCann v. Bradley, 15 
 
 210; Holmes v. ^t. John, 4 How. Pr. How. Pr. 79. 
 
 66, 2 N. Y. Code Rep. 46; Taylor v. ^-Onondaga v. Briggs, 3 Denio, 173. 
 
 Gardner, 4 How. Pr. 67, 2 N. Y. Code ^^Pich v. Husson, 1 Duer, 617. 
 
 Rep. 47; Wheeler v. Westgate, 4 "-S7iee/ian v. iJuZZcr, 24 N. Y. Week. 
 
 How. Pr. 2G9; Van Valkenburgh v. Dig. 168.
 
 GENERALLY. O 
 
 may, pending an action, change the amount of costs to be 
 awarded the successful party. 
 
 The courts, however, take cognizance of the fact that retro- 
 active laws are oppressive, and they will construe all laws as 
 ])rospective rather than as retroactive, unless the plain wording 
 of the statute forbids such a construction ;^^ and the courts will, 
 wherever possible, construe the law so that the right to costs will 
 be governed by the law as it was at the commencement of the 
 action, rather than by the law as changed pending the action.^® 
 
 The rendition of a general verdict for a party does not alone 
 entitle him to a judgment for costs. He is entitled to costs only 
 upon the rendering of a final judgment in the action. -^^ 
 
 Costs are taxable according to the law in force at the time of 
 the recovery of the judgment i^*^ and where the judgment is en- 
 tered upon the report of a referee, the costs are taxable by the 
 law in force at the time of the report. ^^ 
 
 The report does not become a judgment of the court upon its 
 delivery to the successful party, but only when it is filed with the 
 clerk, and formal judgment entered thereon.-'^ 
 
 Where judgment is entered upon failure of the defendant to 
 answer, costs are governed by the law at the time of the tax- 
 ation and entry of the judgment, and not by the law at the time 
 
 '""Dash V. Van Kleeck, 7 Johns. M. S. R. Co. v. Roach, 80 N. Y. 339; 
 
 477, 5 Am. Dec. 291. Engel v. Fischer, 15 Abb. N. C. 72; 
 
 ^«2?fc7i V. Eiisson, 1 Duer. G17; People ex rel. Twenty-Third Street 
 
 Baker v. Bartlett, 9 Wend. 494, 40 R. Co. v. New York Tax Comrs. 95 
 
 Am. Dec. 387. N. Y. 559; Atkin v. Pitcher, 31 Hun, 
 
 "Overton v. National Bank, 3 N. 352; Munson v. Curtis, 43 Hun, 214. 
 Y. S. R. 1G9. '"Torry v. Hadley, 14 How. Pr. 
 
 "il/oore V. Westervelt, 14 How. Pr. 357; Bulcom v. Terwilliger, 42 Hun, 
 
 279, 6 Duer, 684; Fisher v. Hunter, 170: Garling v. Ladd, 27 Hun, 112^ 
 
 15 How. Pr. 15G: Rich v. Husson, 15 N. Y. Week. Dig. 5; Lake Shore 
 
 1 Duer, 617, 11 N. Y. Legal Obs. d M. 8. R. Co. v. Roach, 80 N. Y. 
 
 119; Crary v. Nonvood, 5 Abb. Pr. 339; Engel v. Fischer, 15 Abb. N. C. 
 
 219; Truscutt v. King, 4 How. Pr. 72; People ex rel. Twenty - Third 
 
 l'^3- Street R. Co. v. New York Tax 
 
 '"Torry v. Hadley, 14 How. Pr. Comrs. 95 N. Y. 559; Atkin v. 
 
 357; Balcom v. TertoiUiger, 42 Hun, Pitcher, 31 Hun, 352; Munson v. 
 
 170; Garling v. Ladd, 27 Hun, 112, Curtis, 43 Hun, 214, 26 N. Y. Week. 
 
 15 N. Y. Week. Dig. 5; Lake Shore & Dig. 236, 6 N. Y. S. R. 189.
 
 6 TIIH LAW OF COSTS IN NEW YORK, 
 
 of the default.^^ Where an action is determined before a chango 
 in the law, but costs are not taxed till after the new law goes into 
 effect, costs are taxable under the new law.^^ 
 
 6. Costs determined by which verdict. — ^Vhere there have been 
 several verdicts, costs of the entire action are taxed according to 
 the law in force at the time of tlie final verdict.^^ And this is so 
 notwithstanding proceedings are stayed thereon until a case can 
 be made and settled, and a motion made for a new trial, and be- 
 fore the motion is decided the law relating to costs is changed.^* 
 It has, however, been held that costs up to and including the ver- 
 dict should be taxed under the new law.-^ Where a demurrer is 
 interposed, and after argument and before decision of the de- 
 murrer the law is changed, costs are governed by the law at the 
 time of the decision, and not by the law at the time of the argu- 
 ments^ 
 
 7. Power of court over costs, a. In actions at laiv. — In actions 
 at law, the court has no power to grant or withhold general costs, 
 where the party brings himself clearly within the provision of 
 some statute; and the addition of the words "with costs" or 
 "without costs" does not change the party's right to costs.^''^ 
 
 Motion costs, however, in actions at law and in equity, are in 
 the discretion of the court, and they may be given or withheld 
 as to the court shall seem best. They may be of any amount not 
 exceeding $10, besides necessary disbursements for printing, 
 and referee's fees.^^ Courts have discretion in awarding costs 
 
 ^^Steward v. Larnoreaux, 5 Abb. -^Moore v. Westervelt, 14 How. Pr. 
 
 Pr. 14. 279, 6 Duer, 684. 
 
 "Thompson v. Crippen, 1 How. Pr. -"Crary v. Norwood, 5 Abb. Pr. 219. 
 
 233, 234, note. "'Jones v. Emery, 1 N. Y. Civ. 
 
 '^^Jones V. Underwood, 18 How. Pr. Proc. Rep. 338 ; Norton v. Fancher, 
 
 532; Jackett v. Judd, 18 How. Pr. 92 Hun, 463. 72 N. Y. S. R. 434, 36 
 
 385. N. Y. Supp. 1032. 
 
 ''*8cudder v. Gori, 28 How. Pr. 155, ^ Code Civ. Proc. § 3252, subdiv. 4. 
 18 Abb. Pr. 207, 3 Robt. 629.
 
 GENEEALLY. i 
 
 upon appeals in actions at law in certain cases, and also in grant- 
 ing additional allowances. ^^ 
 
 Costs, as a general rule, upon motions and appeals and in 
 trials of equity actions, are refused to both parties when neither 
 party succeeds fully, or where the question is novel, or the law 
 unsettled. 
 
 The court has no power to order a judgment to be entered 
 nunc pro tunc as of a date prior to the actual judgment, to 
 change the amount of costs.^^ 
 
 b. In actions in equity. — All costs in equity actions, except an 
 action in which the complaint demands judgment for a sum of 
 money only, are in the discretion of the court.^^ Under sub- 
 division 4 of § 3228 of the Code of Civil Procedure, costs are 
 granted as a matter of right to the plaintiff if he succeeds in an 
 action wherein the complaint demands judgment for a sum of 
 money only. Section 3229 gives costs as a matter of right to the 
 defendant in such an action in case he succeeds. It makes 
 no difference whether the action be legal or equitable.^^ 
 
 \\niether this discretion extended to the amount of costs al- 
 lowed was a disputed question until the amendment of § 3230 
 of the Code of Civil Procedure (chap. 181, Laws 1900). The 
 section now reads : ''Except as prescribed in the last two sections, 
 the court may, upon the rendering of a final judgment, in its 
 discretion, award costs to any party, in such sum, not exceeding 
 the total amount authorized by statute, as to the court shall seem 
 just." This seems to be decisive of the question. 
 
 Courts possess no general and arbitrary power to give to any 
 party such an amount as they may think will compensate him 
 for his trouble and expense in prosecuting or defending the 
 litigation. They must be governed by the law in force on that 
 
 ^' See chapters xxiv. and xxx. " Code Civ. Proc. § .3228. subdiv. 4. 
 post. ^Hlurtha v. Curleij, 92 N. Y. 359. 
 
 ■'"Moore v. Westervelt, 14 How. Pr. 
 270. 6 Duer, 684.
 
 8 THE LAW OF COSTS IN NEW YORK. 
 
 subject at tlie time of tlK^ decision, with power to grant an extra 
 allowance in certain cases."^ 
 
 8. Power of attorneys over costs. — The attorneys in an action 
 cannot by stipulation increase the amount of costs to be taxed 
 by the successful party.^^ 
 
 The Code of Civil Procedure, hoAvever, allows them to stipu- 
 late in writing as to the amount to be paid a referee. Code Civ. 
 Proc. § 3296. 
 
 ^^Atty. Gen. v. Continental L. Tns. ^^O'Keefe v. Shipherd, 23 Hiin, 171. 
 Co. 27 Him, 195, 63 How. Pr. 129, 
 Appeal Dismissed in 90 N. Y. 45.
 
 CHAPTER II. 
 
 ATTORNEY'S LIEN. 
 
 9. Kinds of liens. 
 a. In general. 
 6. Retaining lien. 
 c. Charging lien. 
 
 10. Who entitled to a lien. 
 
 11. In what courts. 
 
 12. Loss of lien. 
 
 13. Necessity of a notice to protect the lien. 
 
 14. In what actions. 
 
 15. Lien in special proceedings. 
 
 16. To what lien attaches. 
 
 17. Title to costs. 
 
 18. Transfer of cause of action pending the action. 
 
 19. Effect of settlement. 
 
 a. Upon lien. 
 
 6. As regards the parties. 
 
 c. In actions in forma pauperis. 
 
 d. When the client is irresponsible. 
 
 e. Intent. 
 
 20. Lien of attorney before the adoption of the Code of Civil Procedure. 
 
 21. Relief given by the court. 
 
 22. Protection of lien upon substitution of attorneys. 
 
 a. Right of client to substitution of attorneys. 
 
 ft. Control of the court upon substitution of attorneys. 
 
 c. Discontinuance of proceedings for substitution of attorneys. 
 
 d. How the extent of the lien is determined. 
 
 e. Terms upon substitution of attorneys. 
 
 23. Substitution of attorneys when lien has been waived. 
 
 24. Sulastitution of attorneys when attorney has been guilty of misconduct. 
 
 25. Costs of proceedings to ascertain amount of attorney's lien. 
 
 26. Power of court to protect attorney when he has no lien. 
 
 27. Lien in supplementary proceedings. 
 
 28. Lien when the action is brought in a representative capacity. 
 
 29. Effect of statute of limitations upon lien. 
 
 30. Assignment of lien. 
 
 31. Right to enforce lien upon securities.
 
 10 THE LAW OF COSTS IN NEW YORK. 
 
 32. How lien is enforced. 
 
 a. Supplementary proceedings. 
 
 b. After settlement by the parties. 
 
 c. By summary proceedings. 
 
 d. Foreclosure of lien. 
 
 e. Paid out of fund. 
 
 f. Setting aside collusive and fraudulent settlements. 
 
 g. By continuing action. 
 
 (1) Right of attorney to continue action. 
 
 (2) Leave to prosecute the action; when granted. 
 
 (3) Proof on the trial. 
 
 33. Right of defendant to set up settlement in his answer. 
 
 34. Setting aside satisfaction of judgment in courts of record. 
 
 35. Power of justices' courts over satisfaction of judgment. 
 
 36. Liability of third party. 
 
 37. Lien of counsel. 
 
 38. Set-off. 
 
 39. Lien in matrimonial actions. 
 
 9. Kinds of liens, a. In general. — An attorney lias two dif- 
 ferent kinds of liens upon his client's property to secure the 
 payment of his services rendered to his client, — a retaining lien 
 and a charging lien. They both existed at common law,^ and 
 still exist except as modified by statute.^ 
 
 The lien is based on the same principle that all other liens 
 are based upon, viz., that the party who has by his skill and in- 
 dustry increased in value the property of his employer, shall be 
 protected by a lien on that property for the payment of his serv- 
 ices. 
 
 b. Retaining lien. — A retaining lien is the right that an at- 
 torney has of retaining all the property of his client, which has 
 come into his hands as the attorney for his client, until he is 
 paid for all of his services.^ But where the attorney receives 
 any property or money for a specific purpose, he must can*y out 
 the agreement made with his client when he received it. He 
 
 ^Ward V. Sywe, 9 How. Pr. IG, 1 'ffe Eahn, 14 N. Y. Week. Dig. 
 E. D. Smith, 598. 259 : ^yard v. Craig, 14 N. Y. Week. 
 
 -Re Laselle, 16 Misc. 515, 40 X. Y. Dig. 55. 
 Supp. 343; Ward v. Wordsivortli, 1 
 E. D. Smith, 598, 9 How. Pr. 16.
 
 attorney's lien. 11 
 
 cannot claim a Hen thereon, as he has waived his right to a lien 
 in receiving it for a specific purpose.^ 
 
 c. Charging lien. — A charging lien is the right that an at- 
 torney has upon his client's cause of action, claim, or counter- 
 claim for security for the payment for his services in that action 
 or proceeding. This lien existed at common law,^ but is now 
 governed by § 06 of the Code of Ci^nl Procedure. The lien ex- 
 ists not only to the extent of the costs entered in the judgment, 
 but also for any sum which the client has agreed that his attor- 
 ney should have as a compensation for his ser\dces.® 
 
 Until a judgment is collected, the attorney has only a charg- 
 ing lien tliereon, that is, for his services in that action or pro- 
 ceeding f but if the attorney collects the judgment, he has a re- 
 taining lien upon the proceeds, the same as upon any other of 
 his client's property that may come into his possession as his at- 
 torney, and the attorney may retain the proceeds of the judg- 
 ment until all his claims are paid.® Money paid to a receiver of 
 the client is not constructively in the hands of the attorney, and 
 therefore cannot be made subject to a general lien.^ A firm of 
 attorneys cannot retain any money upon a judgment collected by 
 them to satisfy the claim of a member of the firm for sei-vices 
 rendered by him before the formation of the firm.-^^ 
 
 10. Who entitled to a lien.— Only the attorney of record is en- 
 titled to a lien. Counsel employed to assist the attorney have no 
 lien.^^ Where counsel are employed by the attorney of record, 
 
 *Re Lamer, 20 N. Y. Week. Dig. 545; Re Knapp, 85 N. Y. 284; Krotie 
 
 73. V. Klotz, 3 App. Div. 587, 38 N. Y. 
 
 'Rooney v. Second Ave. R. Co. 18 Supp. 225; Re H. A. 87 K Y. 521; 
 
 N. Y. 368. Ward v. Craig, 87 N. Y. 550; Re 
 
 "Marshall v. Meech, 51 N. Y. 140. Lorillard, 25 K Y. Week. Dig. 469. 
 
 10 Am. Rep. 572. "Anderson v. E. de Braekeleer & Co. 
 
 'Williams v. Ingersoll, 89 N. Y. 25 Misc. 343. 28 N. Y. Civ. Proc. Rep. 
 
 508: Phillips v. Stagg, 2 Edw. Ch. 306, 55 N. Y. Supp. 721. 
 
 108; 8t. John v. Diefendorf, 12 ^"Bowling Green Sav. Bank v. 
 
 Wend. 261 ; Adams v. Fox, 40 Barb. Todd, 52 N. Y. 489. 
 
 442: Re Wilsoii, 2 N. Y. Civ. Proc. ^^Eennedy v. Carrick, 18 Misc. 38, 
 
 Rep. (Browne) 343. 40 N. Y. Supp. 1127; Dailey v. Well- 
 
 ^8t. John V. Diefendorf, 12 Wend, hrock, 65 App. Div. 523, 72 N. Y. 
 201 ; Lorillard v. Barnard, 42 Hun,
 
 12 THE LAW OF COSTS IN NEW YORK. 
 
 under an agreement witli the attorney and his client that they 
 are to share witli the attorney in his contingent fee, and the at- 
 torney' loses his lien through negligence, the right of counsel to 
 a lien on the judgment falls with that of the attorney.^ ^ Where 
 several attorneys have been employed in a case by a municipal 
 corporation, and the charter provides that the costs shall belong 
 to the city attorney, each attorney will be entitled to the costs that 
 were earned while he was the attorney of record.^ ^ An attorney 
 who brings an action without authority is not entitled to any 
 compensation, and therefore has no lien which the court can pro- 
 tect. ^^ A person who has made an agreement with an attorney 
 to procure claims for the attorney to collect cannot compel the 
 attorney to pay his share of the compensation received by the 
 attorney either by action,'^ or by summary proceedings.^^ Where 
 judgments are attached, the client cannot raise the question that 
 his attorney has a lien thereon for his services, though the judg- 
 ments are for costs. Such judgments are the property of the 
 client till the attorney asserts his lien.''" 
 
 11. In what courts. — A lien can be acquired only in courts of 
 record. Section 66 of the Code of Civil Procedure does not 
 apply to justices' courts,^ ^ or a court that takes its place, such 
 as the municipal court of the city of Buffalo.-'^ It is a question 
 whether there is such a thing as an attorney's lien in the munici- 
 pal court of the city of New York.^*^ Formerly a lien could not 
 be acquired in the surrogate's courts,^^ but since they have be- 
 
 Supp. 848; Broun v. ^^ew York, 9 '"/Pe Hirshbach, 72 App. Div. 79, 
 
 Hun. 587. 76 N. Y. Supp. 117. 
 
 '-Williams v. Bnrkley, 105 N. Y. ^'Wehle v. Conner, 83 N. Y. 231. 
 
 48, 58 N. E. 765. '^Levis v. Burke, 51 Hun, 71, 20 
 
 'Hjockport V. Fitts, 39 Hun, 221. N. Y. S. R. 789, 3 N. Y. Supp. 386. 
 
 ^^Whiiesell v. l(ew Jersei/ tC- Jf. ">Drago v. Smith, 92 Hun, 536, 72 
 
 IHver R. d- Ferry Co. 68 App. Div. 82, N. Y. S. R. 418. 36 N. Y. Supp. 975. 
 
 74 N. Y. Supp. 217. ^"People ex rel. Jaffe v. Fitzpatrick, 
 
 '"Birshhaeh v. Ketchum, 5 App. 35 Misc. 456. 71 N. Y. Supp. 191. 
 
 Div. 324, 39 N. Y. Supp. 291 ; Irwin "'Flint v. Van Dusen, 26 Hun, 606. 
 V. Curie, 56 App. Div. 514, 67 N. Y. 
 Supp. 380.
 
 ATTOKNEY^S LIEN. 13 
 
 come courts of record they can enforce the lien of the attorneys 
 npon their decrees,^- or upon any property over which the court 
 ha^ jurisdiction.^" 
 
 12. Loss of lien. — If before tlie recovery of a final judgment 
 the attorney refuses to proceed with the action, his inchoate 
 right of lien is lost.^^ It makes no difference what his reasons 
 are, whether he does not wish to proceed with the action, or has 
 not been paid for his services, or his disbursements.^^ Where 
 the attorney refuses to proceed with the action until he is paid 
 for his services, he loses his lien upon the papers, and may be 
 compelled to give them up.^^ Where proceedings are brought 
 to compel the attorney to give up the papers, the proceedings 
 should be entitled in the matter of the attorney.^^ He may also 
 lose his lien by a failure to carry out a contract by which he was 
 to have a part of the recovery.-** The rule, that the release of 
 one joint tort feasor will release all other joint tort feasors, ap- 
 plies to attorneys' liens. If tlie attorney releases one joint tort 
 feasor, he cannot retain any lien upon the claim against the 
 other joint tort feasor. The claim is gone and his lien falls with 
 the claim."^ 
 
 An attorney can waive his lien. He does this when he does 
 any act inconsistent with the maintenance of his lien.^*^ He 
 waives his lien upon specific chattels when he consents that they 
 be delivered to the owner, making no claim for his lien.^^ He 
 
 -■Re Regan, 29 Misc. 527, 7 N. Y. Pr. 413; Fargo v. Paul, 35 Misc. 568, 
 
 Anno. Cas. 165, 61 N. Y. Supp. 1074, 72 N. Y. Supp. 21. 
 Affiraied in 167 N. Y. 338, 60 N. E. ^'Cunningham v. Widing, 5 Abb. 
 
 658. Pr. 413. 
 
 ■'Re Rowland, 55 App. Div. 66, 8 -^Holmes v. Evans, 129 N. Y. 140, 
 
 N. Y. Anno. Cas. 397, 66 N. Y. Supp. 29 N. E. 233, 41 N. Y. S. R. 365. 
 1121. -^Johanson v. New York, 71 App. 
 
 "T«c/>; V. Manning, 53 Hun, 455, Div. 561, 76 N. Y. Supp. 119. 
 6 K Y. Supp. 140: Halbert v. Gihbs, ^"West v. Bacon, 164 N. Y. 425, 58 
 
 16 App. Div. 126, 4 N. Y. Anno. Cas. N. E. 522. 
 232, 45 N. Y. Supp. 113. "/?e King, 168 N. Y. 53, 60 N. E. 
 
 '^Fargo v. Paul, 35 Misc. 568, 72 1054; Goodrich v. McDonald, 112 N. 
 
 N. Y. Supp. 21; Re H. 93 N. Y. 381. Y. 157, 19 N. E. 649, 16 N. Y. Civ. 
 
 "^Cunningham v. Widing, 5 Abb. Proc. Rep. 222, 20 N. Y. S. R. 509.
 
 14 THE LAW OF COSTS IN NEW YORK. 
 
 can waive it by keeping silence when he should speak,"^ or In 
 allowing the court to make an order based upon the assumption 
 that the client is the absolute owner of the judgment,^^ or he 
 may waive it by refusing to pay his client the money which he 
 has received without claiming a lien, and in a suit for conver- 
 sion does not set up his lien/'^^ or by not moving promptly to set 
 aside a settlement fraudulent as to him.^^ He does not waive 
 his lien when he delivers up property with a notice of his 
 lien.2^ 
 
 When an attorney of record refuses in the middle of an action 
 to i^roceed either to judgment, or to argue an appeal taken, and 
 another attorney appears in the matter, although not formally 
 substituted, the attorney who is the cause of procuring the final 
 adjudication in favor of his client has a lien upon the judgment 
 for his sendees, and the courts will order a substitution of at- 
 torneys without condition, so that the attorney who is entitled to 
 the lien may be in a position to receive the amount of his lien 
 upon the settlement.^^ 
 
 The attorney must act with diligence in seeking to enforce his 
 lien. Though the statute of limitations does not apply to his 
 lien, yet the court will be governed by analogy to it whenever 
 the attorney applies to it for aid in enforcing his lien."'' 
 
 13. Necessity of a notice to protect the lien. — The lien of an 
 attorney, given by § 6G of the Code of Civil Procedure as 
 amended in 1879, is a statutory lien of which all the world must 
 take notice ; and anyone settling \vith a party without the knowl- 
 
 "-Hoicitt V. Merrill, 17 N. Y. S. R. ^Corey v. Hat-te, 21 N. Y. Week. 
 
 1007, 1 N. Y. Supp. 894. Dig. 247. 
 
 ^^McClare v. Lockard, 121 N. Y. ^"Fargo v. Paul, 35 ilisc. .5G8, 72 
 
 308, 24 N. E. 463, 31 N. Y. S. R. 69. X. Y. Supp. 21. 
 
 "^De Fino v. Stern, 5 App. Div. 56, ^^Bucldey v. Buckley, 45 N. Y. S. 
 
 74 N. Y. S. R. 242. 38 N. Y. Supp. R. 827, 18 X. Y. Supp. 607; Richard- 
 
 616. son V. Brooklyn City & N. R. Co. 7 
 
 ^^Randall v. Van Wagenen, 22 Hun, 69; Winans v. Mason, 33 Barb. 
 
 Jones & S. 483, Affirmed in 115 N. Y. 522, 21 How. Pr. 156; Reavy v. 
 
 527, 22 N. E. 361 ; Neill v. Van Wag- Clark, 18 N. Y. Civ. Proc. Rep. 272, 
 
 enen, 22 Jones & S. 477; Winans v. 30 N. Y. S. R. 535, 9 X. Y. Supp. 216. 
 Mason, 33 Barb. 522, 21 How. Pr. 
 153.
 
 attorney's ijex. 15 
 
 edge of the attorney does so at his own risk. The attorney is 
 not bound at his peril to serve a notice of lien.'*'^ The lien is 
 thus protected not only as to the taxable costs, but also to such 
 additional amount as he may be able to establish by agreement 
 expressed or implied.*^ Before the amendment to § 66 of the 
 Code of Civil Procedure, made in 1879, there were numerous 
 cases which held that the attorney must protect his lien by notice 
 in order to save it from a settlement made by his client witli 
 the opposite party. This amendment so enlarged the scope of 
 the section that cases which arose before 1879 are now inappli- 
 cable upon this point. For several years after the passage of 
 this amendment there was a lack of harmony upon this point. 
 The majority of the cases held that the attorney was not bound 
 at his peril to serve a notice of lien.^^ A few cases held other- 
 wise.*^ The case of Coster v. Greenpoint Ferry Co. 5 N. Y. 
 Civ. Proc. Rep. 146, settled that question, holding that the serv- 
 ice of a notice was not necessary. In that case the attorney for 
 the plaintiff entered up judgment by default against the defend- 
 ant, in ignorance of the fact that his client had settled the action 
 with the defendant three days after the service of the summons 
 and complaint in the action, and before any notice of lien had 
 been served. The attorney for the plaintifF applied to the court 
 for a reference to determine the amount of his lien. The de- 
 fendant asserted that the attorney for the plaintiff had no lien, 
 because the action had been settled before any notice of lien had 
 
 ^''Coster V. Greenpoint Ferry Co. 49; Tullis v. Buslinell, 12 Daly, 217, 
 
 5 N. Y. Civ. Proc. Rep. 146, Affirmed 65 How. Pr. 466; Kehoe v. Miller, 
 
 without opinion in 98 N. Y. 660; 10 Abb. N. C. 393, note; Quinlan v. 
 
 Peri V. 'New York C. d H. R. R. Co. Birge, 43 Hun, 483, 7 N. Y. S. R. 
 
 152 N. Y. 521, 46 N. E. 849. 147^; Re Bailey, 31 Hun, 608, 4 N. Y. 
 
 "Coster V. Greenpoint Ferry Co. Civ. Proc. Rep. 140; Albert Palmer 
 
 5 N. Y. Civ. Proc. Rep. 146; Peri v. Co. v. Van Orden, 17 Jones & S. 89, 
 
 New York C. & H. R. R. Co. 152 4 N. Y. Civ. Proc. Rep. 44, 64 How. 
 
 N. Y. 521, 46 K E. 849. Pr. 79. 
 
 *^Keeler v. Eeeler, 51 Hun, 505, 21 ^^Jenkim v. Adams, 22 Hun, 600 ; 
 
 N. Y. S. R. 666, 4 N. Y. Supp. 580; White v. Brady, 4 Month. L. Bull. 
 
 Lercis v. Day, 10 N. Y. Week. Dig. 39.
 
 16 THE LAW OF COSTS IN NEW YOEK. 
 
 been served. The plaintiff's attorney was allowed to establish 
 liis lien not only for the amount of the taxable costs, but also for 
 the ainount of his contingent fee. No opinion was written 
 either at general term or in the court of appeals. But there was 
 no other question before the court and the affirmance by the 
 court of appeals of the order of the court below settled the ques- 
 tion as above stated. In Peri v. Neiu York C. & II. R. B. Co. 
 152 Is^. Y. 521, 46 I^. E. 840, the court distinctly affirms that 
 an attorney's lien is a statutory lien of which all the world must 
 take notice, and cites the case of Coster v. Greenpoint Ferry Co. 
 as authority for that doctrine. This remark was ohiter, as the 
 court decided the question upon another point, yet the remark 
 shows that the court of appeals considers the law to have been 
 settled by it in the former case. 
 
 14. In what actions. — Since the amendment of § 66 of the 
 Code of Civil Procedure, an attorney's lien attaches to actions 
 in courts of record on contract and tort alike, not only for tax- 
 able costs, but for any sum in addition thereto, that the client 
 and the attorney have agreed upon.^* 
 
 The attorney for a defendant has no lien where the answer 
 does not set up a counterclaim. His client may settle the action 
 without his knowledge, as he has only a common-law lien, which 
 attaches only to a judgment.^^ An attorney has no lien under 
 § 66 of the Code of Civil Procedure, until an action has been 
 comnienced. If the client refuses to proceed with a contem- 
 plated action, the attorney has no lien which the courts can en- 
 force.'^° 
 
 The cases which hold that an attorney can have no lien in ac- 
 
 **Peri V. New York C. & H. R. R. 789, 3 N. Y. Supp. 386; Brewi v. 
 
 Co. 152 N. Y. 521, 46 N. E. 849; Pfeiffcr, 10 N. Y. Week. Dig. 203; 
 
 Asfrand v. Brooklyn Heights R. Co. Pomeranz v. Marcus, 40 Misc. 442, 
 
 24 Misc. 92, 53 N.Y. Supp. 294. 82 N. Y. Supp. 707. 
 
 *^Lovgifcar v. Carter, 88 Hun, 513, *^MUlis v. Pcntelow, 92 Hun, 284, 
 
 2 N. Y. Anno. Cas. 192, 68 N. Y. S. 72 N. Y. S. R. 333, 36 N. Y. Supp. 
 
 R. 583, 34 N. Y. Supp. 785; Levis v. 906. 
 Burke, 51 Hun, 71, 20 X. Y. S. R.
 
 attoeney's lien. 17 
 
 tions upon a nonassignable cause of action have been superseded 
 bj the amendment in 1879 to § 66 of the Code of Civil 
 Procedure.^" 
 
 Tliere are a few cases decided since the amendment above 
 nottxl which hold that the attorney does not have a lien on a non- 
 assignable cause of action till judgment, but these decisions must 
 lia\'e been made without the court's attention having been called 
 to the change made in 1879. In such a case it was held that 
 the attorney for the plaintiff did not have a lien upon his client's 
 cause of action brought to recover damages for assault and 
 battery.^^ 
 
 15. Lien in special proceedings.-Prior to September 1, 1899, 
 § 66 of the Code of Civil Procedure did not apply to special pro- 
 ceedings, but, by an amendment which went into effect on that 
 date, provisions were added, so that now it does apply to all those 
 proceedings. The lien attaches in a proceeding to disbar an at- 
 torney which has been dismissed with costs.'*^ 
 
 16. To what lien attaches. — Where a party recovers a judg- 
 ment for costs which entitled him to a body execution against 
 his adversary, the attorney is entitled to issue a body execution 
 against the party for the collection of the costs, and his client 
 cannot discharge the judgment debtor from arrest, without the 
 coil sent of the attorney.^** 
 
 An attorney is entitled to a lien upon an undertaking given 
 to his client upon the issuing of an attachment against him,^^ 
 and upon an undertaking given on bail.°^ 
 
 *'Pefi V. Xew York C. & H. R. R. Tompkins v. Manner, 18 Jones & S. 
 
 Co. 152 N. Y. 521, 46 ]S\ E. 840. 511. 
 
 ^H'ahill V. Cahill, 9 N. Y. Civ. '^Bamhcrrjer v. Oshinski/, 21 Mise. 
 
 Proc. Rep. 241. 716, 48 X. Y. Supp. 139; Delaney v. 
 
 *'i?e Ealiy\, 16 N. Y. Week. Dig. Miller, 84 Hun, 244, 32 X. Y. Supp. 
 
 357, Affirmed in 93 X. Y^ 381. 505; Perry v. Chester, 53 X. Y. 240; 
 
 "■^Crouch \. Hoyt, 24 X. Y. Civ. Dierist v. McCaffrey, 24 X. Y. Civ. 
 
 Proc. Eep. 60, 1 X. Y. Anno. Cas. 76, Proc. Rep. 238, 66 X. Y. S. R. 200, 
 
 62 X. Y. S. R. 126, 30 X. Y. Supp. 32 X. Y. Supp. 818: Ely v. Coolce, 28 
 
 400; Vrnicins v. Batterman, 4 Barb. X. Y. 365, 373; Ennis v. Curry, 22 
 
 47; Finder v. Morris, 3 Cai. 105; Hun, 584. 
 
 Martin v. Hawks, 15 Johns. 405; Ten ^-^hackleton v. Hart, 20 How. Pr. 
 
 Broeck v. De Witt, 10 Wend. 617; 39, 12 Abb. Pr. 325. note. 
 COSTS 2.
 
 18 THE LAW OF COSTS IN NEW YOKK. 
 
 He has a lien for liis costs and allowances in supplementary 
 proceedings upon a warrant of attachment issued to punish the 
 judgment debtor for contempt.^^ 
 
 An attorney has a lien upon the papers of his client in his 
 hands where he has appeared in a criminal prosecution,^^ and 
 upon a bond and mortgage in his hands for foreclosure, not only 
 for costs in that action, but also for a general balance due him.^^ 
 
 An attorney's lien does not attach to a wife's inchoate right 
 of dower because she has no vested interest in the property ; nor 
 does it attach to alimony directed to be paid to her because ali- 
 m<3ny is awarded for the support of the wife and its amount is 
 fixed with reference to her necessities and the courts will not 
 countenance its appropriation to any other purpose.^^ He has 
 no lien upon a mere defense which is not a counterclaim, and his 
 client can settle the action, without his knowledge. ^"^ jN^or has 
 he a lien in an action for ejectment upon a claim for permanent 
 improvements under § 1531 of the Code of Civil Procedure be- 
 cause such a claim cannot be made the subject of affirmative re- 
 lief, and hence is not a counterclaim.^^ 
 
 17. Title to costs. — The law governing the title to costs is 
 found in the Code of Civil Procedure, and states explicitly that 
 the costs are granted to the party.^^ It has been held in many 
 cases where the court has had a discretion in the allowance of 
 costs, as upon an accounting by an executor, or administrator, or 
 by an assignee for the benefit of creditors, etc., that costs cannot 
 ho. awarded to the attorney personally, but must be awarded to 
 the party.^** ISTevertheless there are many statements in the re- 
 
 ^^Woolf V. Jacobs, 13 Jones & S. ^Pierson v. Safford, 30 Hun, 521. 
 
 583. ^'Code Civ. Proc. §§ 3228, 3229, 
 
 ^Re Russell, 1 How. Pr. 149. 3066, 3070, 3072, etc. 
 
 ''■Bovling Green Sav. Bank v. ""Devin v. Patchin, 26 N. Y. 441; 
 
 Todd, 52 N. Y. 489. Wilcox v. Smith, 26 Barb. 316; Re 
 
 ^Mooney v. Mooney, 29 Misc. 707, Broicn, 65 How. Pr. 461 ; People ex 
 
 7 N. Y. Anno. Cas. 257, 62 N. Y. rel. Reynolds v. Buffalo, 9 Misc. 403, 
 Supp. 769. 
 
 '•''White V. Sumner, 16 App. Div. 
 70, 44 N. Y. Supp. 692.
 
 attoeney's lien. 19 
 
 port? which sav that the costs belong to the attorney, and not to 
 the client. These statements are often obiter, and have been 
 made without keeping in mind the distinction between a lien 
 which can be, and often has been, foreclosed, and the title to the 
 property itself. It is obvious that a man cannot have a lien 
 upon his own property. If a judgment for costs belong to the 
 attorney, and not to the client, without anything being done, 
 then in that case costs are awarded to the attorney, and not to 
 the I>arty. 
 
 The incongruity between the statutory provision that the costs 
 are granted to the party and never to the attorney, and the re- 
 marks scattered through the books, that the costs belong to the 
 attorney, is one of words, and not of substance. Costs always 
 belong to the party. The attorney has a lien upon them till he 
 has been paid for his services in the proceedings in which the 
 costs were granted.^^ He never has title to them until his lien 
 has ripened, either by his own act or the action of some court, 
 into an absolute title. 
 
 In questions arising between the party and his attorney the 
 courts have uniformly held this. Difficulty arises only when 
 the rights of the attorney and a third party conflict. In protect- 
 ing tlie rights of the attorney the courts have done substantial 
 justice, although they have not always had a clear perception 
 of the principles underlying their decisions. 
 
 The court has power to settle the amount of an attorney's com- 
 pensation whenever the question is properly brought before it 
 either in an action or upon a motion. After such a decision the 
 lien upon the costs is gone. The court either holds that the at- 
 torney has been paid and he therefore has no lien, or else that the 
 attorney had a lien and by virtue of its decision this has ripened 
 into an absolute title. 
 
 61 N. Y. S. R. 692, 29 X. Y. Supp. Misc. 11. .53 X. Y. Snpp. 8.30; Starin 
 10"1- V. Xew York, 106 N. Y. 82, 12 N. E. 
 
 '"Taylor v. Long Islciid R. Co. 25 643.
 
 20 THE LAW OF COSTS IN NEW YORK. 
 
 The courts also recognize tlie riglit of an attorney to reduce a 
 judgjnent for costs to possession and 0A\aiersliip, either by re- 
 ceiving the money thereon, or by assuming dominion over the 
 judgment as such. In either case he has received the amount 
 of the costs to be applied upon the indebtedness of his client to 
 him. Until the attorney has assumed dominion over a judg- 
 ment for costs it belongs to his client,^^ and an action thereon 
 must be maintained in the client's name.^^ If the attorney 
 seeks to enforce sucli a judgment to protect his own lien, he 
 must commence the action in his own name, and thus become 
 liable for costs if he is defeated.^'* The courts call an attorney 
 who has assumed to treat a judgment for costs as belonging to 
 him "an equitable assignee" thereof. He then has the legal title 
 to such a judgment and may counterclaim it in an action 
 brought against him by the judgniient debtor, *^^ or he may assert 
 his rights in opposition to a motion to compel an offset of the 
 costs awarded upon an order against the general costs in the 
 same action,'''' or upon a motion to compel an offset of the costs 
 in one action against the costs in another action between the 
 same parties,^^ or at any time that anyone lays claim to the 
 costs.®^'* 
 
 The attorney has a right as such equitable assignee to enter up 
 
 '^Wehle V. Conner, 83 N. Y. 231; "Gihhs v. Prindle, 11 App. Div. 
 
 Foley V. Scharmann, 29 Misc. 521, 470, 76 N. Y. S. R. 329, 42 N. Y. 
 
 61 N. Y. Supp. 969; Poole v. Belcha, Supp. 329; Husted v. Thomson, 26 
 
 131 N. Y. 200, 30 N. E. 53. Misc. 548, 91 N. Y. S. R. 558, 57 
 
 ^Woley V. Scharmann, 29 Misc. 521, N. Y. Supp. 558; Delaney v. Miller, 
 
 61 N. Y. Supp. 969. 84 Hun, 244, 1 N. Y. Anno. Cas. 
 
 ^'Kipp V. Rapp, 7 N. Y. Civ. Proc. 266, 65 N. Y. S. R. 834, 32 N. Y. 
 
 Rep. 385, 2 How. Pr. N. S. 169. Supp. 505; Bevins v. Alhro, 86 Hun, 
 
 '^Adams v. Stillman, 4 Misc. 259, 590, 67 N. Y. S. R. 783, 33 N. Y. 
 
 53 N. Y. S. R. 180, 23 N. Y. Supp. Supp. 1079. 
 
 810. '^Re Bailey, 31 Hun, 608, 5 N. Y. 
 
 '■■'Tunstall v. ^Yinton, 31 Hun, 219, Civ. Proc. Rep. 253; Adams v. 'Niag- 
 
 Affirmed without opinion in 96 N. Y. ara Cycle FUtinys Co. 10 N. Y. Anno. 
 
 660. Cas. 401, 74 N. Y. Supp. 485.
 
 ATTORNEY'S LIEN. 21 
 
 a judgment or an order for costs only, after the death of his 
 client, and to enforce payment thereof by issuing an execution.®* 
 
 In Re Barnes, 1-10 IST. Y. 468, 35 N. E. 653, the court, in con- 
 struing an allo^vance made to an assignee for the benefit of cred- 
 itors for the services of his attorney in an action, held that the 
 allowance was to be considered as in addition to the taxable cost? 
 tliat the attorney had already collected. The court says : "These 
 (•osts belong to the attorney, and not to the estate. Wherever 
 the legal title to costs may be as between attorney and client be- 
 fore collection, after they have been collected by the attorney his 
 lien upon them has been reduced to possession, and the client 
 cannot insist upon their payment to him in the absence of a spe- 
 cial agreement entitling him to receive them." This remark is 
 ohitcr. The court, in effect, says that the collection by the at- 
 torney of these costs was a payment pro tanto upon liis bill, and 
 could not be recovered back, in the absence of an agreement to 
 that effect, any more than any other payment could be recovered 
 back. If the court below had considered that the value of the 
 attorney's services was only the amount of the allowance made, 
 it would have reduced the allowance by the amount of the costs 
 that the attorney had already collected and applied upon his bill 
 for services. 
 
 18. Transfer of cause of action pending the action. — Where, 
 pending an action, the cause of action is assigned, the assignee 
 takes it subject to the attorney's lien not only for taxable costs, 
 but for such further sum as tlie attorney and his client have 
 agreed upon.^*^ 
 
 Where a client makes a general assignment, which includes a 
 judgment, the assignee takes the title to the judgment subject to 
 the lien of the attorney.'^^ 
 
 '^Peetsch v. Quinn, 6 Misc. 52, 5G O'Siillivan, 12 Misc. 577, 07 N. Y, 
 
 N. Y. S. R. 607, 26 N. Y. Supp. 729; S. R. 801, 33 N. Y. Supp. 1098 
 
 Lachenmeyer v. Lachentneyer, G5 Creigliton v. Ingersoll, 20 Barb. 541 
 How. Pr. A2.2. ''^Ward v. Craig, 87 N. Y. 550 
 
 '"'Boyle V. Boyle, 23 N. Y. Week. Bchnitzler v. Andrews, 16 N. Y 
 
 Dig. 346: Schwartz v. Jenney, 10 N. Week. Dig. 74; McGregor v. Com 
 
 Y. Week. Dig. 67: Whitehead v. f^toclc, 28 N. Y. 237.
 
 22 THE LAW or COSTS IN NEW YORK. 
 
 All attorney for tlie original plaintiff lias a lien upon the prop- 
 erty purchased by the executor of the original plaintiff who has 
 been substituted as plaintiff' in a mortgage foreclosure action, 
 and has employed another attorney. The fact that the attorney 
 could have asserted his lien upon the substitution of attorneys 
 is no bar to his claim asserted after the sale.'^^ x\nd where the 
 client sells the judgment subject to the lien of the attorney, the 
 attc)mey has a lien on the proceeds received by the assignee.''^^ 
 
 19. Effect of settlement, a. Upon lien. — Parties may settle 
 their differences without the knowledge or consent of their at- 
 torneys, but no settlement will defeat the attorney's lien.'^'* And 
 ^i'here the attorney has no notice of the settlement, he may enter 
 up judgment which the courts will allow him to retain to pro- 
 tect his lien,'^^ and where he has issued execution on the judg- 
 ment, the execution and the judgment will not be set aside until 
 the costs, disbursements, and sheriff's fees are paid.'^^ 
 
 6. As regards tlie parties. — The settlement as between the 
 parties is good, and the attorney will not be allowed to enforce 
 his lien, until it appears that his client is insolvent."^ 
 
 Where an administrator has settled an action brought by him 
 and he has not been discharged as such administrator, the attor- 
 ney must pursue the fund before he will be allowed to enforce 
 his lien.'^ And where the plaintiff has stipulated to discon- 
 tinue an action and afterwards moves to be relieved from the 
 stipulation as it cuts off his attorney's claim for costs, the motion 
 
 ''-Skinner v. Busse, 38 IMisc. 265, ''^Publishers' Printing Co. v. Gillen 
 
 74 N. Y. Supp. 560. Printing Co. 15 Misc. 464, 74 N. Y. 
 
 "Ke Gates, 51 App. Div. 350, 64 S. E. 669, 37 N. Y. Supp. 198. 
 
 N. Y. Supp. 1050. ''^Pierson v. Safford, 30 Hun, 521 ; 
 
 ''^Peri V. New York G. d H. R. R. Burpee v. Townsend, 29 Misc. 681, 
 
 Co. 152 N. Y. 521, 46 X. E. 849; Cos- 61 N. Y. Supp. 467; Poole v. Belcha, 
 
 ter V. Greenpoint Ferry Co. 5 N. Y. 131 N. Y. 200, 30 N. E. 53, 22 N. Y. 
 
 Civ. Proc. Eep. 146, Affirmed in 98 Civ. Proc. Rep. 67, 42 N. Y. S. R. 
 
 IST. Y. 660. See also Necessity of a 856; Pitcher v. Hoople, 49 N. Y. S. 
 
 Notice to Protect the Lien, § 13, R. 356, 21 N. Y. Supp. 66. 
 
 .tupra. 'Hjuinlan v. Birge, 43 Hun, 483, 26 
 
 '^Coster V. Greenpoint Ferry Co. 5 N. Y. Week. Dig. 161, 7 N. Y. S. R. 
 
 N. Y. Civ. Proc. Rep. 146. 147.
 
 attorney's lien. 23 
 
 will be denied/^ The attorney might set aside the settlement, 
 but he must be the moving party.^" 
 
 c. In actions in forma pauperis. — Where an action in forma 
 pauperis has been brought for assault and battei-y, the attorney 
 has no lien that can be protected upon settlement. Section 66 
 of the Code of Civil Procedure was intended to give a lien for 
 the amount of an agreement, either express or implied. Here 
 there can be no agreement. The attorney for the plaintiff is not 
 entitled to costs until they are allowed by the court.^^ 
 
 d. When the client is irresponsible. — Where an action has 
 been settled fraudulently and collusively for the purpose of de- 
 priving the attorney of his costs, and the client is financially ir- 
 responsible, the settlement will be set aside, not only to the ex- 
 tent of the taxable costs,^^ but also to the extent of any addi- 
 tional sum that the client and attorney have agreed upon.^^ In 
 some cases it does not appear that the client was insolvent,®'* — es- 
 pecially where the judgment was for costs and disbursements.®^ 
 
 W^ere a judgment is for costs only, or costs and an extra al- 
 lowance, and the judgment is settled with the client, who is in- 
 solvent, the courts almost invariably set aside the settlement 
 upon the application of the attx)niey, upon proof that he has not 
 been compensated for his services.®® 
 
 ^Avery v. Avery, 5 Misc. 75, 23 N. nack, 9 Misc. 562, 30 N. Y. Supp. 
 
 Y. Civ. Proc. Rep. 204, 24 N. Y. 415; BoJlar v. Schoemvirt, 30 Misc. 
 
 Supp. 737. 224, 63 N. Y. Supp. 311; Vrooman 
 
 ^"Murray v. Jibson, 22 Hun, 386; v. Pickering, 25 Misc. 277, 28 N. Y. 
 
 McBratney v. Rome, W. d- 0. R. Co. civ. Proc. Rep. 302, 54 N. Y. Supp. 
 
 87 N. Y. 467. 389; Whittaker v. New York & H. R. 
 
 ^'Quinnan v. Clapp, 10 Abb. N. C. (j^ jg j^^^ j^_ q U^ 22 Jones & S. 
 
 394, note. 8^ U jg^ Y. Civ. Proc. Rep. 189. 
 
 ^mitchell V. Piqua Club Asso^ 15 s.^^berfs v. Union Elev. R. Co. 84 
 Misc. 366, 25 N. Y. Civ. Proc. Rep 
 
 139, 72 N. Y. S. R. 470, 37 N. Y. 
 
 Hun, 437, 65 N. Y. S. R. 592, 32 N. 
 Y. Supp. 387. 
 
 Supp. 406. ^ ,^ 
 
 ''Peri V. -New York C. & H. R. R. ''"^Vright v. Fleming, 10 N. Y. 
 
 Co. 152 N. Y. 521, 46 N. E. 849; Week. Dig. 450. 
 
 Hommeyer v. Beere, 13 N. Y. Civ. ^''Commercial Telegram Co. v. 
 
 Proc. Rep. 169; Guliano v. White- Smith, 57 Hun, 176, 19 N. Y. Civ.
 
 24 THE LAW OF COSTS IN NEW YORK, 
 
 c. Intent. — There is another class of cases Avhich hold that 
 the question of the good faith, or the lack of it on the part of the 
 opposite party, is an important item npon the motion to set aside 
 the settlement,®^ but under the later decisions, which have 
 practically overruled the former cascs,®^ the intent of the parties 
 makes no difference. 
 
 20. Lien of attorney before the adoption of the Code of Civil 
 Procedure. — Under the common law and the Code of Procedure, 
 an attorney's lien did not attach till judgment,^^ and the court 
 could only insist upon the payment of taxable costs, if the settle- 
 ment was made for the purpose of defrauding the attorney, when 
 the opposite party moved for an order of discontinuance or for 
 leave to set up a settlement in a supplemental answer.^*^ 
 
 By the amendment in 1879 the attorney was given a lien from 
 the commencement of the action. Before that amendment a re- 
 spondent could settle with the appellant without notice to the 
 appellant's attorney, as there was no judgment to which a lien 
 could attach.^^ 
 
 21. Relief given by the court. — Where the court sets aside a 
 satisfaction of judgment made in fraud of the attorney's rights, 
 it will be set aside only to the extent of taxable costs, until the 
 amount due the attorney in excess of the taxable costs has been 
 liquidated in some proper action. ^^ 
 
 The lien of an attorney attaches not only to the original judg- 
 
 Proc. Rep. 32, 32 N. Y. S. R. 445, 10 York C. d E. R. It. Co. 71 N. Y. 443. 
 
 N. Y. Supp. 433; McGregor v. Com- 27 Am. Rep. 75. 
 
 stock, 19 N. Y. 581. ""Dietz v. McCallum, 44 How. Pr. 
 
 "'Roberts v. Doty, 31 Hun, 128; 493; Oicoi v. Mason, 18 How. Pr. 
 
 Root V. Vaji Duzen, 32 Hun, 63. 150: McBratneii v. Rome, W. & 0. R. 
 
 ^Peri V. lYew York C. & H. R. R. Co. 17 Hun, 385, Affirmed in 13 X. Y. 
 
 Co. 152 N. Y. 521, 46 N. E. 849. Week. Dig. 535; Keaite v. Keatw, 86 
 
 ^"Whif taker v. Ye!o York d- H. R. Hun, 159, 60 N. Y. S. R. 806. 33 N. 
 
 Co. 22 .Tones & S. 8, 18 Abb. N. C. Y. Supp. 250. 
 
 11. n X. Y. Civ. Proc. Rep. 189; ^'Shank v. Shoemaker, 18 N. Y. 
 
 Randall v. Van Warjcnen. 115 N. Y. 489. 
 
 .527, 12 Am. St. Rep. 828, 22 X. E. ^-Bailey v. Murphy, 136 N. Y. 50, 
 
 361, 17 N. Y. Civ. Proc. Rep. 403, 26 32 N. E. 627, 49 N. Y. S. R. 82. 
 N. Y. S. R. 438: Coughlin v. New
 
 ATTORNEY'S LIEN. 25 
 
 merit, but also to a judgment obtained upon notes given in set- 
 tleinent of the original judgment.^^ The lien is upon the actual 
 cause of action, and not the one set out in the complaint; and 
 where the client settles the action before answer, nothing being 
 said about the costs, the plaintiff's attorney cannot enter a judg- 
 ment for the amount claimed in the complaint with costs, but 
 must enter judgment for the amount of settlement and costs. '^^ 
 
 Although a client may settle an action, where the attorney has 
 a contingent interest, the opposite party settles at his peril, and 
 will be obliged to respond to the attorney for his full claim. ^^ 
 
 Where an attorney for the plaintiff is to have a contingent fee, 
 and has recovered judgment, an appeal from that judgment vnW 
 not be dismissed upon consent of the parties, until the attorney 
 has been paid the amount due him on his retainer.^^ 
 
 22. Protection of lien upon substitution of attorneys, a. Rigid 
 of client to substitution of attorneys.-^A client has a right 
 to change his attorney at any time without assigning any cause,^'^ 
 but the court will make it conditional upon the payment or se- 
 curiiig of his attorney's fees.®^ 
 
 h. Control of the court upon suhstitution of attorneys. — The 
 supreme court, at special term or in the appellate division, has 
 pow^er to determine upon what terms an attorney may be 
 changed, either upon motion or in summary proceedings insti- 
 tuted under § 66 of the Code of Civil Procedure.^® 
 
 »'»Sf?)ors V. Shidtheis, 28 N. Y. S. R. ''7?e Prospect Ave. 85 Hun, 257, 1 
 
 50. 8 N. Y. Supp. 175. N. Y. Anno. Cas. 347, 66 N. Y. S. R. 
 
 ^Wlhert Palmer Co. v. Van Orclen, 497, 32 N. Y. Supp. 1013. 
 
 17 Jones & S. 89, 4 N. Y. Civ. Proc. "'Pe Miteiiell, 57 App. Div. 22, 9 
 
 Rep. 44. N. Y. Anno. Cas. 224, 67 N. Y. Supp. 
 
 «'Peri V. Xeiv York C. <€ H. R. R. 96 1. 
 
 Co. 152 N. Y. 521, 46 N. E. 849; Cos- "'Re Barldexj, 42 App. Div. 597. 59 
 
 ter V. Greenpoint Ferry Co. 5 N. Y. N. Y. Supp. 742; Rule 10 General 
 
 Civ. Proc. Rep. 146. Affirmed with- Rules of Practice; Sheldon v. Mott, 
 
 out opinion in 98 N. Y. 660. See 91 Hun, 637, 70 N. Y. S. R. 894, 35 
 
 also Necessity of a Notice to Protect N. Y. Supp. 1117; Ilinman v. Devlin, 
 
 the Lien, § 13, snpra. 40 App. Div. 234, 57 N. Y. Supp. 
 
 ^^'?tihrcll V. Armstrong, 28 Misc. 1037. 
 546, 59 N. Y. Supp. 671.
 
 26 THE LAW OF COSTS IN NEW YORK. 
 
 If the attorney and his client cannot agree upon what terms 
 a substitution of attorneys shall be made, the matter will be de- 
 termined by the court or will be sent to a referee to ascertain the 
 amount due the attorney, and upon the coming in and confirma- 
 tion of his report, and the payment of the amount found due, 
 iind the expenses of the reference, a substitution will be 
 ordered. ^'^'^ 
 
 The attorney of course is entitled to hold the papers in the 
 action, and upon which he has a lien, until the amount due him 
 is fixed either by the parties or by the court upon a reference 
 and this amount is paid him.^*^^ 
 
 The attorney's lien upon a substitution of attorneys will be 
 confined to tlie jDapers in that action, and mil not include all the 
 property of his client involved in that action. ^"^ 
 
 c. Discontinuance of •proceedings for substitution of attor- 
 neys. — A client may be allowed to abandon his application for a 
 change of attorneys upon the coming in of the referee's report, 
 and may be ordered to pay the expenses of the reference, but he 
 cannot be ordered to pay the attorney the amount reported to be 
 due by the referee. ^^^ 
 
 But the right of a client to discontinue a reference is a matter 
 of favor resting with the court, and the decision of the court 
 upon the confirmation of the referee's report cannot be attacked 
 coUaterally.^*^^ 
 
 d. How the extent of the lien is determined. — A client is not 
 entitled to a substitution of attorneys upon his giving a bond to 
 pay the attorneys such a sum as they may be able to recover upon 
 a trial before a jury. ^Vhere a client makes such a motion, the 
 court may order a reference to ascertain the amount due the 
 
 ^'^Ogden v. Devlin, 13 Jones & S. ^'"Einman v. Devlin, 40 App. Div. 
 
 631; Vlster County v. Brodhead, 44 234, 57 N. Y. Supp. 1037. 
 
 How. Pr. 411. "^"Gardiner v. Tj/Jor, 36 How. Pr. 
 
 "''Ulster County v. Brodhead, 44 63. Affirmed in 5 Abb. Pr. N. S. 33. 
 How. Pr. 411; Prentiss v. Livingston, ''"Re Davis, 7 Daly, 1. 
 CO How. Pr. 380.
 
 ATTORNEY'S LIEN. 27 
 
 attorneys. The client, having submitted himself to the juris- 
 diction of the court, must be deemed to have waived his right to 
 a jury trial, and the court may send it to a referee to fix his com- 
 pensation. ^^^ If a client would be embarrassed because the ac- 
 tion would be brought to trial before the amount due the attor- 
 ney could be ascertained, the court can order an immediate sub- 
 stitution, upon the client's executing a bond to pay w^hatever 
 sum may be found due the attorney upon a reference.^ °® 
 
 Upon an appeal from the order of the court fixing the amount 
 of the lien, the appellate court is at liberty to examine the rec- 
 ord to see what would be fair and reasonable compensation for 
 the attorney. •^'^'^ 
 
 A substitution of attorneys wall not be ordet*ed where the cli- 
 ent's interest has been taken by a receiver in supplementary pro- 
 ceedings, and the attorney's interest in the cause of action by 
 reason of a contingent fee is greater than that of the assignee. ^*^'^ 
 
 e. Terms upon substitution of attorneys. — A substituted at- 
 torney is liable personally for the amount of fees, mentioned in 
 an order of substitution, which he is to collect and pay to the 
 former attorney, if they come into his hands. It is no defense 
 to an action thereon that he has paid this money to his client. ^'^■' 
 
 An order retaining an attorney's lien upon the fund is proper, 
 where he agreed to take his pay out of the recovery, and the 
 client changes attorneys without alleging any misconduct on the 
 part of his former attorney.^ ^^ The court will order a substi- 
 
 ^'"^Philadelphia v. Postal Tcleg. Co. Hinman v. Devlin, 40 App. Div. 234, 
 
 1 App. Div. 387, 72 N. Y. S. R. 617, 57 N. Y. Supp. 1037. 
 
 37 N. Y. Supp. 291; AcJcerman v. ^"^Steenhurgh v. Miller, 11 App. 
 
 Aclcerman, 14 Abb. Pr. 229; Dimick Div. 286, 42 N. Y. Supp. 333. 
 
 ■V. Cooley, 3 N. Y. Civ. Proc. Rep. ''^Bittincr v. Goldman, 19 Misc. 
 
 141, 151. 146, 43 N. Y. Supp. 389, Second Ap- 
 
 ^'^Yuengling v. Betz, 58 App. Div. peal 20 Misc. 330, 45 N. Y. Supp. 
 
 •8, 68 N. Y. Supp. 574. 953. 
 
 ''"''Dean v. Driggs, 82 Hun, 561, 64 ^^"Stewart v. Steck, 6 N. Y. S. R. 
 
 N. Y. S. R. 183, 31 N. Y. Supp. 548, 524; Jeffards v. BrooJclijn Heights R. 
 
 Affirmed on this opinion in 145 N. Y. Co. 49 App. Div. 45, 63 N. Y. Sui)p. 
 
 595. 40 N. E. 163. 65 N. Y. S. R. 865; 530.
 
 28 THE LAW OF COSTS IN NEW YORK. 
 
 tution of attoriioys upon payment being made to the attorney for 
 se^rvices in that action, and vnW not order the client to pay for 
 other services before a substitution is made.-'^^ A client will 
 not be allowed to change attorneys until his attorney is paid, al- 
 though the attorney was employed by a third person in whose 
 interest the action was brought.^ ^^ A new attorney will not be 
 substituted in place of the original attorney, until the client has 
 repaid money advanced by the attorney upon faith of the cause 
 of action, or until he has assigned enough of the claim to repay 
 the attorney.^ ^^ 
 
 23. Substitution of attorneys when lien has been waived. — 
 The court will order a substitution where the attorney refuses to 
 proceed till paid for his services, in which case he is held to have 
 discharged himself, and therefore has destroyed his lien,^^'* but 
 when the court goes further and orders the attorney to dissolve 
 all his relations with his client and give up papers in other 
 actions upon which he has a lien, it should provide for a settle- 
 ment of all matters between the attorney and his client.^ ^^ 
 
 24. Substitution of attorneys when attorney has been guilty of 
 misconduct. — "Where an attorney has been guilty of miscon- 
 duct, ^^^ or his services have been valueless,^^" the court may or- 
 der a substitution of attorneys unconditionally, and leave the at- 
 torney to his remedy by action. The fact that an attorney has 
 been negligent, and therefore has lost his lien, may be deter- 
 
 "^Peoplc's Bank v. Thompson, 24 27 N. Y. Siipp. 72.3; Philadelphia v. 
 
 N. Y. Civ. Proc. Rep. 62, 63 N. Y. Postal Teleg. Cable Co. 1 App. Div. 
 
 S. R. 165, 30 N. Y. Supp. 858; Re 387, 72 N. Y. S. R. 617, 37 N. Y. 
 
 Wilson, 2 N. Y. Civ. Pioc. Rep. Siipp. 291. 
 
 (Browne) 343; Re Davis, 7 Daly, 1. "-^ Rule 10; Barldey v. 'Sew York 
 
 ^^moffmnn v. Van Nostrand, 14 (7. d H. R. R. Co. 35 App. Div. 167, 
 
 Abb. Pr. 336. 54 N. Y. Supp. 970; Halbert v. 
 
 ^^Boivland v. Taylor. 6 Hun, 237. C.ihhs, 16 App. Div. 126, 2 N. Y. 
 
 "^TwcA: V. Manning, 54 Hun, 455, Anno. Ca.s. 232. 45 N. Y. Supp. 113; 
 
 17 N. Y. Civ. Proc. Rep. 175, 25 N. Pierce v. ^^atcrs, 10 N. Y. Week. 
 
 Y. S. R. 130, 6 N. Y. Supp. 140; Re Dig. ^32. 
 
 //. 93 X. Y. 381. "'Rrunolds v. Kaplan, 3 App. Div- 
 
 '^'McKihbin v. Nafis, 76 Hun, 344, 420, 38 N. Y. Supp. 764.
 
 attoeney's lien. 29 
 
 mined by a reference upon a motion to substitute attorneys, and 
 such adjudication is conclusive upon him and all claiming un- 
 der him,^^^ 
 
 25. Costs of proceeding's to ascertain amount of attorney's lien. — 
 A proceeding brought to ascertain the amount of the attorney's 
 lien in order that a substitution of attorneys may be made is a 
 special proceeding/ ^^ and the costs are governed by § 3240 of 
 the Code of Civil Procedure.^ ^° 
 
 The attorney is the prevailing party where there is found to 
 be a substantial sum due him, although he claimed a much 
 larger sum. The client, to put the attorney in default for re- 
 fusing to deliver up his client's papers, should, before instituting 
 the proceedings, have offered to pay the amount of the lien or the 
 sum to which the attorney was fairly entitled.^^^ 
 
 A judgment may be entered ujDon the confirmation of the ref- 
 eree's report.^ ^^ The court may make provisions in the order 
 for the payment of the amount of the attorney's lien, and the 
 costs, and disbursements of the proceedings as provided by 
 law,^^^ without the entry of a formal judg-ment. 
 
 The court has power to j)rovide in the order for an execution 
 to issue in favor of the person to whom costs are awarded.^ ^^ 
 
 26. Power of court to protect attorney when he has no lien. — 
 The court has inherent power to protect its own officers against 
 collusion and fraud, practised by the parties after they have 
 come before it for trial. It may, under such circumstances, re- 
 fuse to enter an order of discontinuance based upon a stipulation 
 
 ^^VilUa7ns v. BarkJei/, 165 N. Y. 155; General Rule 27; Greenfield v. 
 
 48, 58 N. E. 765. New York, 28 Hun, 320. Cojitra, 
 
 "'ITard V. Ward, 67 App. Div. 121, Ward y. Ward, 67 App. Div. 121, 73 
 
 73 K Y. Supp. 450. N. Y. Supp. 450; Myer v. Abbett, 20 
 
 ^-"Ward V. Ward, 67 App. Div. 121, App. Div. 390, 46 X. Y. Supp. 822. 
 
 73 N. Y. Supp. 450. ^-'Ward v. Ward, 67 App. Div. 121. 
 
 ''-'Ward V. Ward, 67 App. Div. 121, 73 ]Sr. Y. Supp. 450. 
 
 73 K Y. Supp. 450. "^ Code Civ. Proc. § 779; Ward v. 
 
 '--Griggs v. Brooks, 79 Hun, 394, Ward, 67 App. Div. 121, 73 N. Y 
 
 61 N. Y. S. R. 499, 29 N. Y. Supp. Supp. 450. 
 794; Austin v. Raicdon, 42 N. Y.
 
 30 THE LAW OF COSTS IN NEW YORK. 
 
 of the parties till the costs of the defendant are paid, although 
 the answer did not set np a connterclaini, and therefore the at- 
 torney has no lien.-'^^ 
 
 In an equity action where both parties are willing to settle, 
 l)iit the attorney for the defendant objects upon the ground that 
 be would have a lien upon the money coming into the hands of 
 the court, although the answer does not term the defense a coun- 
 terclaim, the action will be discontinued on the ground that the 
 attomey is bound by his answer, and the further ground that 
 neither party would be entitled to costs in an equity action till 
 they were allowed by the court.^^® 
 
 27. Lien in supplementary proceedings. — The court will not 
 order a sale by the receiver in supplementary proceedings of a 
 cause of action belonging to the judgment debtor, then in litiga- 
 tion, upon which an attorney has a lien prior to and larger than 
 that of the receiver.^ ^^ The receiver may be substituted as 
 plaintiff therein, ^^^ and the order should provide that the re- 
 ceiver should have the same attorney, or, if he desires a change 
 of attorneys, he must apply to the court upon notice to the pres- 
 ent attorney.^ ^^ 
 
 The court has power to decide to whom money in the hands- 
 of the sheriff, received upon execution, should be paid, where 
 the attorney claims a lien for more than the taxable costs, and 
 the client has assigned his interest therein ;^^*^ and it will do this 
 although it involves the attorney's lien in another related 
 action.^^^ 
 
 ^^Uational Exhibition Co. v. Crane, ^lie Wilds, 6 Abb. N. C. 307. 
 
 167 N. Y. 505, 60 N. E. 768; ^^"Marvin v. Marvin, 22 N. Y. Civ. 
 
 Wormer v. Canovan, 7 Lans. 36. Proc. Eep. 274, 46 N. Y. S. R. 259, 
 
 ^Brewi v. Pfeiffer, 10 N. Y. Week. 19 N. Y. Supp. 371 ; Loaners' Bank v. 
 
 Dig. 203. yosfrand, 21 Jones & S. 525. 
 
 *"i?e Patterson, 12 App. Div. 123. ^""Loaners' Bnuk v. Nostrand, 21 
 
 42 N. Y. Supp. 495. Jones & S. 525. 
 
 ^Re Patterson, 12 App. Div. 123, 
 42 N. Y. Supp. 495; Re Wilds, 6 
 Abb. N. C. 307.
 
 attorney's lien. si 
 
 The court under rule 77 will not allow money to be taken out 
 from under its control, until the claims of its officers are paid, 
 even though they have no lien upon it.-*^^ The state court will 
 retain control of the fund in an action brought by a receiver ap- 
 pointed by the state court until the liens acquired in the state 
 court are paid, altbough an assignee in bankruptcy takes control 
 of the action.^ ^^ 
 
 Upon a motion to dismiss an appeal to the court of appeals 
 on the ground that the parties had settled their differences, the 
 motion was granted witb costs to respondent to the time of the 
 motion, and the costs of opposing the motion with permission to 
 test the validity of the settlement in the court below.^^* 
 
 28. Lien when the action is brought in a representative capacity. 
 — An executor, administrator, or a trustee who employs an at- 
 torney in the settlement of an estate is liable personally for the 
 services thus rendered. He cannot be made liable in his repre- 
 sentative capacity,^^^ unless the testator made the expenses of 
 administration a charge on the estate.^ ^^ 
 
 The allowance made to an executor upon an accounting is not 
 conclusive between the attorney and client. It is simply an al- 
 lowance of so much to the executor in exoneration of his liability 
 to his attorney.^ ^' 
 
 An attorney has no lien upon any property coming into his 
 hands belonging to the estate, for payment of his services ren- 
 dered to the executor or trustee in the matter of the estate,^ ^^ un- 
 less the property is the result of his services; in which case he 
 
 ^^^Atlantic Sav. Bank v. Eiler. 3 ^^^Boynton v. Laddy, 50 Hun, 339, 
 
 Hun, 209. 20 N. Y. S. R. 148, 3 N. Y. Supp. 93. 
 
 ^^Clark V. Binmnger, 1 Abb. N. C. "''Mygatt v. Wilcox, 1 Lans. 55, 
 
 421. Affirmed in 45 N. Y. 306. 6 Am. Rep. 
 
 "^Debhe v. Debbe, 50 N. Y. 695. 90. 
 
 ^^Wilcox V. Smith, 26 Barb. 316; ^^Dc TAmiater v. McCaskie, 4 Dem. 
 
 Mygatt v. ^yilcox, 1 Lans. 55, Af- 549. 
 firmed in 45 N. Y. 306, 6 Am. Rep. 
 90; .Uistin v. Munro, 47 N. Y. 360; 
 Ferrin v. Hfyrick, 41 N. Y. 315.
 
 32 THE LAW OF COSTS IN NEW YOKK. 
 
 lias tliG samn Hen as he would had he performed the services for 
 his client in his personal capacity.^^^ This is true although his 
 client is a foreign executor.^ '^'^ 
 
 An execut/Or or administrator is aulhori/od in bringing an ac- 
 tion under §§ 1902 and 1903 of the Code of Civil Procedure,^^^ 
 or other^ase, to employ an attorney, who will have a lien upon 
 the judgment for his services to the amount of their expressed or 
 implied agreement.^ '^^ But where the attorney was retained by 
 the executor for his own individual benefit, the attorney can ac- 
 quire no lien upon the estate.^^^ The attorney can recover the 
 amount of his lien without waiting to have the question of rea- 
 sonableness of the amount passed upon by the surrogate upon a 
 final accounting.^ ^■^ But where the executor or administrator is 
 an attorney, neither he nor the firm of which he is a member can 
 recover for legal services rendered to the estate.' ^^ Conse- 
 quently no lien can be acquired for such services. 
 
 The rule is different where one partner of a firm of attorneys, 
 as an executor, employs his partner to perform legal seiwices for 
 him, and the executor does not share in the amount thus re- 
 ceived. Such an agreement must be clearly proved and is al- 
 ways open to suspicion. ■'■^^ A client can make an agreement 
 that his attorney shall have a certain percentage of his share in 
 the estate, just as he can employ an attorney in any other nn- 
 
 ^^Arkcnhiirgli v. Little, 64 N. Y. 127. 29 Am. Rep. Ill; Uarwood v. 
 
 Supp. 742; Arkenlnircih v. Arken- La Granfje, 137 N. Y. 538, 32 N. E. 
 
 hurgh, 27 IMisc. 760, 59 N. Y. Supp. 1000; Re Knapp, 85 N. Y. 284. 
 
 612; Gunning v. Quinn, 81 Hun. 522, ^^Lawrence v. Toicnsend, 88 X. Y. 
 
 30 N. Y. Supp. 1015; Re Knapp, 85 24. 
 
 X. Y. 284. ^**Kcnnedy v. Steele, 35 Misc. 105, 
 
 '">Re King, 108 N. Y. 53, 60 X. E. 71 N. Y. Supp. 237. 
 
 1054. ^*'^Parker v. Day, 12 Misc. 510, 67 
 
 ^"^Lee V. Van Voorhin, 78 Hun, X. Y. S. R. 378, 33 N. Y. Supp. 676: 
 
 575, 61 X. Y. S. R. 220, 29 X. Y. Collier v. Mnnn, 41 X. Y. 143, 7 
 
 Supp. 571. Abb. Pr. X. S. 193. 
 
 "-Kennedy v. Steele, 35 :\Iisc. 105, "«A'e Simpson, 36 App. Div. 562.5.", 
 
 71 N. Y. Supp. 237; Randall v. Dti- X. Y. Supp. 697, Anrnmed without 
 
 senhury, 7 Jonos & S. 174, Affirmed opinion in 158 X. Y. 720, 53 X. E. 
 
 in 63 X. Y. 645; Noyes v. Blakeman, 1132. 
 6 X. Y. 567 : ^^ew v. Nicoll, 73 X. Y.
 
 attorney's lien. 33 
 
 dertaking upon a contingent retainer. The rights of the parties 
 will he adjusted according to their contract. If the attorney is 
 to receive his fee from the amount that his client chooses to take, 
 and the client reserves the right to settle upon such terms as he 
 chooses, the attorney cannot prosecute the proceedings to protect 
 his lien.^^'' The result would be different if the client had 
 agreed that the attorney should be consulted upon any settle- 
 raent.^^^ Since the surrogate's court has been made a court of 
 record, it has the same power to protect an attorney's lien that 
 the supreme court has. It can set aside the satisfaction of its 
 decree in order to protect such a lien, independent of any ques- 
 tion of actual fraud or collusion. Where the value of the at- 
 torney's services has been liquidated by a judgment in an action 
 brought by the attorney against the client, the surrogate will not 
 be required to determine their value. 
 
 The return of an execution unsatisfied, issued upon such a 
 judgment, is prima facie evidence that the client is financially 
 irresponsible.-^ ^^ 
 
 The surrogate has power to make an order for the safe keep- 
 ing of the money upon which an attorney claims a lien, until the 
 rights of the parties are determined ;^^^ but he has no general 
 power over attorneys, and cannot decide a question of lien upon 
 papers in the hands of an attorney when there is no cause before 
 him, although both |>arties request him to do so.^^^ 
 
 29. Effect of statute of limitations upon lien. — The statute of 
 limitations does not pay an indebtedness, but may be invoked by 
 the defendant in any action as an affirmative defense. The en- 
 forcing of a lien is not an action, and the statute is not a bar to 
 
 ^"Re Evans, 58 App. Div. 502, 69 ^^^TJe Rowland, 55 App. Div. 66, 66 
 N. Y. Supp. 482; Re Evans, 65 App. K Y. Snpp. 1121; Re De Oraindi, 31 
 Div. 100, 72 K Y. Siipp. 495. X. Y. S. R. 744, 9 N. Y. Supp. 873. 
 
 "■'i?e Fernlaclier, 18 Abb. N. C. 1; ^'^Rc Krakauer, 33 Misc. 674, 68 
 Eisner v. Avery, 2 Dem. 466. N. Y. Supp. 935. 
 
 "'/?e Regan, 167 N. Y. 338, 10 N. 
 Y. Anno. Cas. 125, 60 N. E. 658. 
 COSTS 3.
 
 34 Tin: T.AW Of costs in new yokk. 
 
 f^iieli procoodin2:s, but it rests in the discretion of the court 
 \vhethcr or not it -will ])o governed by the analooy of the statute- 
 of limitations/''^ l)ut the lien cannot be enforced bv an action 
 after the statute has run aiiaiust tlic claim, if I ho statute be 
 pleaded. 
 
 The attorney, however, may retain money that has come into- 
 his hands in satisfaction of a claim for services against which 
 the statute of limitations has run.'^^ 
 
 The statute commences to run from the time that the attor- 
 ney could have maintained an action against his client.^^'* 
 
 30. Assignment of lien. — An attorney may assign his claim, 
 but he cannot deliver to the assignee his client's papers upon 
 ^^■hic]l he has a lien, as the relation is strictly personal. -"^^ 
 
 The courts will recognize such an assignment eitiicr in an ac- 
 tion brought by the assignee/^*' or in the distributimi of a fimd 
 in court. ^"" 
 
 An assignee or any other person who derives a right from the 
 attorney, as counsel or otherwise, to share in the compensation to 
 be paid by the client, will lose his right to compensation or his 
 lien therefor when the attorney, by his act, loses his right to 
 compensation or lien. The right of the attorney to a lien may 
 be adjudicated upon a motion to substitute attorneys, and such 
 determination is binding on those claiming under the attorney 
 though they were not ]);n'ti(>s to the proceed ings.^''"* 
 
 31. Right to enforce lien upon securities. — An attorney has 
 authority under his original retainer to issue an execution upon 
 the judgment obtained either against the pr(^j)erty or the per- 
 
 "'Richardson v. Brooklyn City & 544, 52 N. Y. S. R. 557, 22 N. Y, 
 
 A'. R. Co. 7 Hun, 69; Reavy v. Clark, Supp. 1041. 
 
 18 N. Y. Civ. Proc. Rep. 272, 30 N. '"^Sullivan v. \eiP York, 68 Hun, 
 
 Y. S. R. .535, 9 X. Y. Supp. 216. 544, 52 N. Y. S. R. .557, 22 N. Y. 
 
 "M/rtj-ttfH V. Cottle, 72 Hun. 529, Supp. 1041. 
 
 55 X. Y. S. R. 127, 25 N. Y. Supp. '"Muller v. Xeic York, 23 N. Y. 
 
 635. Civ. Proc. Rep. 261, 29 N. Y. Supp. 
 
 "^Adanis V. Ft. Plain Bank. 36 N. 1096. 
 
 Y. 255. "^Mn/haws v. Barkley, 165 N. Y> 
 
 ^'^,SulUvan v. Xeic York, 68 Hun, 48, 58 N. E. 765.
 
 ATTORNEY S T^IEN. 
 
 35 
 
 soii.^'^'^ The. client cannot discharge the jndgment dehtor from 
 ai-rest and thus destroy the attorney's lien. Nor where the at- 
 lorjjey has sued the sheriff for the amount of an execution, can 
 the client settle with the sheriff and defeat the attorney's lien.^*^** 
 
 The attorney may, with the consent of the court, maintain an 
 aelion in the name of his client upon the securities given to his 
 client pending the action, such as undertakings,^ ^^ or upon an 
 undertaking given upon an appeal.^ ^^ 
 
 32. How lien is enforced, a. ISuppIementary proceedings. — • 
 An attorney may enforce his lien on a judgment by instituting 
 supplementary proceedings thereon although the client has exe- 
 cuted a satisfaction of judgment.^ ^^ He may do this, although 
 his client has transferred the judgment to a third person,'^* who 
 doch not wish to have these proceedings instituted.^ ^^ 
 
 The affidavit upon which the order of examination is based 
 should, in addition to the usual allegations, show that the pro- 
 ceedings are instituted by the attorney for the purpose of enforc- 
 ing his lien.^*''^ An omission in the affidavit of such an allega- 
 tion is sufficient ground for vacating the order.^*'" 
 
 It has been held that the attorney must procure the consent of 
 the court before instituting such proceedings.^ ^^ 
 
 h. After settlement by the parties. — -Parties have a right to 
 ■settle their differences in spite of the attorney's lien, and when 
 rhis settlement is honestly made, and not fraudulently or col- 
 hisively for the purpose of cheating the attorney out of the pay 
 for his services, the lien attaches to the settlement, the same as 
 
 ^'^Parlcer v. Fipcar, 62 How. Pr. riUe. 10 Abb. N. C. 39,5, note: Moore 
 
 .304. V. Taylor. 2 How. Pr. X. s. 343. 
 
 '""Wilher v. Balcer, 24 Hun, 24. "''■RusseU v. Sowrrrille, 10 Abb. N. 
 
 '"^Shackeltov v. Hart, 20 How. Pr. C. .31)5. note. 
 
 .39. 12 Abb. Pr. .32.5. note. ""'Aler chant v. ^^essions, 5 N. Y. 
 
 ^'^'-Kipp V. Rapp, 2 How. Pr. N. S. Civ. Proo. Rep. 24 ; Russell v. Soiii- 
 
 1R9, 7 N. Y. Civ. Proc. Rep. 385. vrrille, 10 Abb. N. C. 395, note. 
 
 ^"^Shannessi/ v. Traphagen, 13 N. ^^''Russell v. Somerrillc. 10 Abb. X. 
 
 Y. S. R. 754.' C. 395, note. 
 
 ^"Merchant v. Sessiofis. 5 N. Y. ^'^Moore v. Taylor, 2 How. Pr. N. 
 
 Civ. Proc. Rep. 24: Russell v. Somer- S. ?>AZ.
 
 36 THE LAW OF COSTS IN NEW YORK. 
 
 it would to a judgment. If the settlement is for nothing, the 
 lien is extinct. The client is the principal debtor and the op- 
 posing party is the surety. The surety cannot be made liable 
 as long as the amount can be recovered of the principal. If the 
 surety pays the money to the principal who is insolvent, and al- 
 lows him to dissipate it, then the settlement will be set aside. -^^^ 
 The attorney need not show that the settlement was fraudulent; 
 it it: sufficient to show that he is injured thereby.^ ^^ 
 
 If the client receives money in the settlement of an action, of 
 which the attorney was to receive a certain share, the attorney 
 cannot bring an action against his client for the money, because 
 the attorney and his client are tenants in common of the fund.-^"^^ 
 
 c. By summary proceedings. — Since the amendment to§ 66 of 
 the Code of Civil Procedure in 1899, the court upon the petition 
 of the client or the attorney may determine and enforce the lien 
 of the attorney. This summary method can only be used when 
 it is a question between the attorney and his client, or if other 
 parties are concerned, where they submit themselves to that 
 method of procedure. ^'^^ Neither the client nor the attorney is 
 entitled to a jury trial.^^^ These proceedings may be enter- 
 tained by the supreme court where the services for which the 
 lien is claimed were performed in the surrogate's court.^^^* It 
 is probable that the surrogate's court would also have jurisdic- 
 tion to determine the lien. 
 
 ^"Zimmer v. Metropolitan Street 63 N. Y. Supp. 311: Eommeyer v. 
 
 R. Co. 32 ]\risc. 262, 65 N. Y. Supp. Beere, 13 N. Y. Civ. Proc. Rep. 169. 
 
 977; Dolliver v. American Sioan- ""Tullis v. BushneU, 12 Daly, 217. 
 
 Boat Co. 32 Misc. 264, 8 N. ^'"Stafford v. Azhell, 8 Misc. 316, 
 
 Y. Anno. Cas. 74, 31 N. Y. Civ. 59 X. Y. S. R. 287, 28 N. Y. Supp. 
 
 Proc. Pep. 94, 65 N. Y. Supp. 978; 733. 
 
 Mitchell V. Piqua Club Asso. 15 "-Zimmer v. Metropolitan Street 
 
 Misc. 366, 72 N. Y. S. R. 470, 25 N. R. Co. 32 :\Iisc. 262, 65 X. Y. Supp. 
 
 Y. Civ. Proc. Rep. 139, 37 X. Y. 977. 
 
 Supp. 406: Pithlishers' Printing Co. "^Canary v. Russell, 10 Misc. 597, 
 
 V. Gillin Printing Co. 16 IMisc. 558, 24 N. Y. Civ. Proc. Rep. 109, 63 N. 
 
 74 X. Y. S. R. 132, 25 X. Y. Civ. Y. S. R. 740, 31 X. Y. Supp. 291. 
 
 Proc. Rep. 327, 38 X. Y. Supp. 784; "'a J?e Pieris, 82 App. Div. 466, 81 
 
 Bollar V. Schoenirirt, 30 Misc. 224, X. Y. Supp. 927.
 
 ATTORNEY S LIEN. 37 
 
 d. Foreclosing, of lien. — Wliere the parties to an action have 
 settled it before judgment the attorney may bring an equitable 
 action to enforce his lien, making both parties to the action par- 
 ties defendant.^ ^^ In such a case if the attorney succeeds, he 
 will obtain a judgment against his client for the amount of his 
 lien, and an alternative judgment against the opposing party, 
 that he pay the amount of the lien if the attorney cannot collect 
 it from his client.^ "^ The attorney cannot by motion compel 
 his client's adversary to pay him the value of his services, even 
 though such adversary has settled vith his client and agreed to 
 pay the attorney, because the party agreeing to pay is entitled to 
 have the question of the amount settled in an action.^ '^^ 
 
 e. Paid out of fund. — The court will not determine the 
 amount of an attorney's lien upon a fund in court without a 
 notice to the client of the application.^"''' Neither can the lien 
 of an attorney upon an award for land taken in opening a street 
 be enforced by a petition or motion,^''^^ but it must be enforced 
 in an equitable action.^ '^^ 
 
 /. Setting aside collusive and fraudident settlements. — A set- 
 tlement of an action is collusive and fraudulent, when it is made 
 to depri^'e the attorney for the successful party, or the party who 
 wull ultimately be successful, of the fruits of his labors. 
 
 The courts will set aside such a settlement whether made be- 
 fore or after judgment, whenever it is necessary to protect the 
 attorney's lien. The attorneys for the parties should be notified 
 
 "'Fischer-H a n s e n v. BrooUjin Civ. Proc. Rep. 285, 63 N". Y. Supp. 
 
 neifihts R. Co. 173 N. Y. 492, 66 N. 1036; Pilkingion v. Brooklyn 
 
 E. 395. Heights R. Co. 49 App. Div. 22, 30 
 
 "^Kennedy v. Steele, 35 Misc. 105, N. Y. Civ. Proc. Rep. 276, 63 N. Y. 
 
 71 N. Y. Supp. 237; Dolliver v. Supp. 211. 
 
 American Swan-Bant Co. 32 Misc. '"''Atty. Gen. v. North America L. 
 
 264, 8 N. Y. Anno. Cas. 74, 31 N. Y. Ins. Co. 17 K Y. Week. Dig. 508. 
 
 Civ. Proc. Rep. 94, 65 N. Y. Supp. ^''^Deering v. Schreyer, 58 App. 
 
 978. Div. 322, 68 N. Y. Supp. 1015. 
 
 ^""^Rochfort V. Metropolitan Street "^Re Lexington Ave. 30 App. Div. 
 
 R. Co. 50 App. Div. 261, 30 N. Y. 602, 52 N. Y.' Supp. 203.
 
 38 THE LAW OF COSTS IN NEW YOIJK. 
 
 of the intended settlomont.^^'^ The settlement is good as be- 
 tween the parties, and will stand until the attorney shows to the 
 court that he cannot collect the value of his services from his 
 client. This he must show affirmatively. When this is done 
 the settlement will be set aside to the extent of his lien.^^^ 
 
 The court will in such cases set aside a settlement made before 
 judgment, and allow the attorney to proceed with the action to 
 judgment to protect his lien,^^^ 
 
 An attorney may maintain an action in his own name to re- 
 cover specific property, the proceeds of an action, Avhich he, by 
 agreement with his client, was to have for his services in that ac- 
 tion, and which have come into the hands of a third party.^*^ 
 
 g. By continuing action. (1) Rigid of attorney to continue 
 action. — There is a conflict of decisions whether an attorney 
 after the settlement of the action hv the parties before judgment 
 can proceed in that action for the purpose of enforcing his lien. 
 The weight of authority is undoubtedly that in case of such a 
 settlement he must apply to the court upon notice to all inter- 
 ested parties for leave to continue the action to protect his lien, 
 and become himself responsible for costs therein.^ ^* 
 
 There are some cases, however, which hold that the attorney 
 
 "^"Eherhardl v. Schuster, 10 Abb. 26 N. Y. S. R. 115, 7 N. Y. Supp. 99; 
 
 N. C. 374. Smith v. Baum, 67 How. Pr. 267: 
 
 ^''Pickard v. Yeticer. 21 Hun, 403, Tnllift v. Bushncll, 65 How. Pr. 465; 
 
 10 N. Y. Week. Dig. 271: Zimmer v. Murray v. Jibson, 22 Hun, 380; 
 
 Metropolitan mrrct R. Co. 32 Misc. Stahl v. Wadsirorth, 13 N. Y. Civ. 
 
 262. 65 N. Y. Sui)p. 977. Proc. Rep. 32, 10 N. Y. S. R. 228; 
 
 ^'-Rasquin v. Knickerbocker Stage Coster v. Greenpoint Ferry Co. 5 N. 
 
 Co. 21 How. Pr. 293, 12 Abb. Pr. 324. Y. Civ. Proc. Rep. 146, Affirmed in 
 
 '^^Fairbanks v. Sargent, 104 N. Y. 98 N. Y. 660; Lablache v. Kirkpat 
 
 108. 58 Am. Rep. 490, 9 N. E. 870. riek, 8 N. Y. Civ. Proc. Rep. 256: 
 
 "^^Quinlan v. Birge, 43 Hun, 483; Kipp v. Rapp, 2 How. Pr. N. S. 169, 
 
 Martin v. Hax-ks, 15 Jolms. 405; 7 N. Y. Civ. Proc. Rep. 385; Wash- 
 
 Coughlin v. New York C. & E. R. R. burn v. Mott, 19 N. Y. Civ. Proc. 
 
 Co. 71 N. Y. 443, 27 Am. Rep. 75; Rep. 439, 34 N. Y. S. R. 145. 12 N. 
 
 Rnoney v. Second Ave. R. Co. 18 N. Y. Supp. Ill; Williams v. Wilson. 
 
 Y. 368; Pulver v. Harris, 52 N. Y. 18 Mi.sc. 42, 40 N. Y. Supp. 1132: 
 
 73; Dimick v. Cooley, 3 N. Y. Civ. Eeeler v. Keeler, 51 Hun, 505, 21 N. 
 
 Proc. Rep. 141; Oliwell v. Verden- Y. S. R. 666, 4 N. Y. Supp. 580; Ad- 
 
 halve)}. 17 X. Y. Civ. Proc. Rep. 362, sit v. Hall. 3 How. Pr. N. S. 373.
 
 ATTORNEY S LIEN. 
 
 lias a riglit, wltliont an application to the court, to proceed with 
 ilif action where it lias been settled by the parties before judg- 
 niont.i'^^ 
 
 (2) Leave to prosecute the action; when granted. — Leave to 
 prosecute an action will be refused unless the attorney can show 
 the court that he cannot collect of his client the value of hig 
 services.-'*^ Leave to prosecute an action is always in the dis- 
 cretion of the court. The courts will not allow an attorney to 
 •continue an action for the purpose of protecting his lien, when 
 the action is brought for a divorce or a sejDaration. See Lien in 
 Matrimonial xVctions, § 39, infra. 
 
 In one case the court refused to allow the plaintiff's attorney 
 to proceed with the action, but upon proof upon the motion that 
 the plaintiff was irresjjonsible, and that his agreement with hi3 
 attorney was that he should have a certain percentage of the re- 
 •covery, directed the defendant to pay to the plaintiff's attorney 
 the amount which he was to receive from his client.^^" 
 
 AVhere, upon a contest to the probate of a will, the contestants 
 assigned to their attorney a certain portion of the recovery, but 
 retained the right to compromise and settle the contest, the at- 
 torney was not allowed to continue the contest to protect his lien. 
 His remedy was confined to his lien upon the sum received by 
 his clients in settlement.^ ^^ 
 
 (3) Proof on the trial. — An attorney, when he is allowed to 
 proceed w4th the action, must prove his client's case.^^^ 
 
 33. Right of defendant to set up settlement in his answer. — 
 
 ^^'^Minfo V. Bauer, 3 Silv. Sup. Ct. ^"Schriever v. Brooklyn Heights R. 
 
 332, 17 X. Y. Civ. Proe. Rep. 314, 25 Co. 30 Misc. 145, 30 N. Y. Civ. Proc. 
 
 N. Y. S. R. 559, 6 N. Y. Supp. 444, Rep. 67, 61 N. Y. Supp. 644, 890. 
 
 Modified in 29 N. Y. S. R. 366, 8 N. ^*i?e Evans, 34 Misc. 37, 69 N. Y. 
 
 Y. Siipp. 933; Forslman v. Schult- Supp. 487. 
 
 mg, 35 Hun, 505; WUber v. Baker, ^^^Casucci v. Allegany d- K. R. Co. 
 
 24 Hun, 24. 65 Hun, 452, 29 Abb. N. C. 252, 4S 
 
 """Quinlan v. Birge, 43 Hun, 483, X. Y. S. R. 52, 20 N. Y. Supp. 343. 
 
 20 N. Y. Week. Dig. 161, 7 N. Y. S. Contra, Keeler v. Keeler, 51 Hun, 
 
 R. 147; Young v. Honell, 64 App. 505, 21 N. Y. S. R. 666, 4 N. Y. 
 
 Div. 246, 72 N. Y. Supp. 5. Supp. 580.
 
 40 THE I.A.W OF COSTS IN NEW YORK. 
 
 The defendant Avill ho allowed in the discrftion of the court to 
 set up in a supplemental answer a settlement made with the 
 plaintiff, and it is no answer to such an application that the at- 
 torney for the plaintiff has a lien upon the cause of action.^ '^'^ 
 
 34. Setting aside satisfaction of judgment in courts of record. — 
 Where the settlement is made after judgment, and the judgment 
 has been satisfied of record, the attorney cannot issue an execu- 
 tion to collect the amount of the alleged lien. He must move to 
 set aside the satisfaction piece ;-^^^ or he may maintain an action 
 for that purjDose.^^^ 
 
 The motion to set aside the satisfaction of the judgment is 
 not a motion in the action, hut is a special proceeding instituted 
 b}' third parties upon other issues than those framed in the ac- 
 tion and relating to a lien arising out of a state of facts wholly 
 distinct from those passed upon at the trial. An appeal, there- 
 fore, lies from the order entered therein to the court of ap- 
 peals,^^^ which will review the merits of the proceedings, but 
 not the discretion of the court below. 
 
 The court, however, will upon such a motion set aside the sat- 
 isfaction of judgment to the extent of the taxable costs, as they 
 are presumptively the measure of the attorney's rights. If the 
 attorney claims that he has a lien upon the judgment in excess 
 of the taxable costs, the amount must be liquidated in some 
 proper action between the attorney and his client. It cannot be 
 arbitrarily determined upon a motion to vacate the satisfaction 
 entered. The client has the same right to defend against such 
 
 ^^"Znitz V. Metropoman Street K. 13 N. Y. S. R. 754; Peri v. New York 
 
 Co. 52 App. Div. 626, 65 N. Y. Siipp. C. d E. R. R. Co. 152 N. Y. 521, 40 
 
 395; O'Brien v. Metropolitan Street X. E. 849; Foreman v. I-yiicards, 14 
 
 R. Co. 27 App. Div. 1. 50 N. Y. Supp. N. Y. Week. Dijr. 408; Aclcerman v. 
 
 159. Aclcerman, 14 Abb. Pr. 229. 
 
 ^''Croltji V. McKenzie, 10 .Tones & ^"-Peri v. Yeio York C. d H. R. R. 
 
 S. 192; Albert Palmer Co. v. Van Or- Co. 152 N. Y. 521, 46 X. E. 849. 
 
 den, 17 Jones & S. 89. 4 N. Y. Civ. '"'Peri v. Neto York C. rf H. R. R. 
 
 Proc. Eep. 44; x^weet v. Bartlctt. 4 Co. 152 N. Y. 521, 40 N. E. 849. 
 Sandf. 601 ; Shaunessy v. Traphagen,
 
 ATTORNEY'S LIEN. 41 
 
 ail asserted liability as belongs to liim when any other claim is 
 alleged, the amount of which he disputes.^ ^^ 
 
 It is within the discretion of the court where the lien is ob- 
 tained, to grant or deny the application of the attorney to set 
 aside a fraudulent satisfaction, or to compel the attorney to 
 bring an action for that purpose. This discretion is subject to 
 no interference by an appellate tribunal. ^'■'•^ 
 
 35. Power of justices' courts over satisfaction of judgment. — 
 Section 66 of the Code of Civil Procedure does not apply to jus- 
 tices' courts.-'^'^ Courts of inferior jurisdiction being in many 
 respects enlarged justices' courts, not proceeding according to the 
 C(!urse of the common law, but of statutory creation, taking noth- 
 ing by implication, even if a lien attaches to the judgment, have 
 not the power to set aside a satisfaction of judgment to protect 
 the lien.^^'^ 
 
 36. Liability of third party. — A purchaser of real estate is not 
 liable for the amount of an attorney's lien in a condemnation 
 proceeding alfecting the land, although as betw^een the attorney 
 and client it had been agreed that the attorney should have a 
 lien on the land for his services.^^^ 
 
 It has been held that an attorney cannot by motion compel the 
 opposite party against whom a verdict has been obtained to pay 
 the amount of his taxed costs and the value of his services, but 
 should bring an action against him, and obtain a decree declar- 
 ing the judgment subject to the amount found duo the 
 attomey.^^^ 
 
 37. Lien of counsel. — Counsel employed by an attorney in the 
 action with the consent of the clients, upon an agreement that 
 
 ^"'Baileij v. Mtirphy, 136 N. Y. 50, '"'People ex rel. Jaffe v. Fitzpaf- 
 
 32 N. E. 627, 49 N. Y. S. R. 82. rick, 35 Misc. 456, 71 N. Y. Supp. 
 
 ^"'Hoioitt V. Merrill, 113 N. Y. 630, Ifll. 
 2 Silv. Ct. App. 158, 20 N. E. 868, '"'Grir/fi v. McNtilty, .t :\ri c. 334, 
 
 16 N. Y. Civ. Proc. Rep. 374, 22 N. 55 N. Y. S. R. 210, 25 N. Y. Siipp. 
 
 Y. S. R. 619. 504. 
 ^'x'Flint V. Van Dusen, 26 Hun, 606. '^'>Fox v. Fox, 24 How. Pr. 409.
 
 -12 THE LAW OV COSTS IN NEW YORK. 
 
 tliev sliall ])(■ ));ii(l out of the ])i-()('oods, have an equitable lien 
 upon the j)rocee(ls. Where no rate is fixed, tlie counsel must 
 prove the value of his services by evidence, competent not only 
 against the attorney, but also against the client.^"" 
 
 38. Set-off. — The right of one party to have a judgment set-off 
 aga,iiist the costs awarded against him was regulated by 2 Rev. 
 Stat. 352, § 18, and Id. 174, § 40. These statutes were re- 
 pealed by chapter 407 of the Laws of 1877, and the right of 
 counterclaim given by §5^ ^OO and 501 of the Code of Civil Pro- 
 cedure took their place. Under the Revised Statutes it was 
 held that the lien of the attorney was inferior to the rights of the 
 parties when these rights were asserted in an action, but if it 
 were sought to enforce a set-off by motion, the court could pro- 
 tect the attorney's lien. Since the adoption of the Code of Civil 
 Procedure the decisions are not in hannony, but it may be stated 
 as a general rule that the courts will hold that the lien of the at- 
 torney is superior to the right of one party to set off a judgment 
 in one action against costs in another action ; but where costs are 
 awarded to both parties in the same action, the equities of the 
 parties are superior to the lien of the attorney, and the costs ^vill 
 be set off one against the other.^*^^ 
 
 This is especially true of interlocutory costs,^^'^ but not costs 
 of special proceedings which originated out of the former ac- 
 tions.""^ One judgment should not be set off against another 
 
 ■'^TJarvood v. La Grange, 137 N. 824; Hmith v. Chowweth, 14 Daly. 
 
 Y. .538. 32 N. E. 1000. .50 N. Y. S. R. 166, 18 Abb. N. C. 349, 12 N. Y. CiV. 
 
 30. Proc. Rep. 89, 6 N. Y. S. R. 232: 
 
 -"^Winterson v. Tlitchings, 1 N. Y. Garner v. Ghidwin, 12 N. Y. Week. 
 
 Anno. Cas. 193, 73 N. Y. S. R. 300, Dip;. 9; .^atulcrs v. Gillett, 8 Daly. 
 
 38 X. Y. Supp. 171; Fromrne v. 183; Kaufman v. Keenan, 13 N. Y'. 
 
 Gray, 17 IMisc. 77, 39 N. Y. Supp. Civ. Proc. Rop. 225; Hoveij v. Rub- 
 
 8.50; Hopper v. Ersler, 1 N. Y. Anno, hrr Tip Pencil Co. 14 Abb. Pr. N. S. 
 
 Cas. 192, 72 N. Y. S. R. 804, 38 N. 60. 
 
 Y. Supp. 170; TJoyt v. Godfrej/. 11 -"'Hoi/t v. Godfrey, 11 Daly, 278. 
 
 Daly. 278; Davidson v. Alfaro. 80 N. 3 N. Y. Civ. Proc. Rep. 118, 16 N. 
 
 Y. 060; Warden v. Frost, 3.5 Hun, Y. Week. Die. 91; Catlin v. Adiron- 
 
 141 ; Hayes v. Curr, 44 Hun, 372, 20 daeh Co. 22 Hun, 493. 
 
 X. Y. Week. Dig. 442, 8 N. Y. S. R. -"'Gibbs v. Frindle. 11 App. Div.
 
 attorney's lien, 43 
 
 judgment between the same parties where one is for costs 
 only.-'^'* The court will not entertain such a motion where the 
 costs in one action have not been taxed.^*^^ The courts will not 
 set off against a judgment, a claim not reduced to judgment.^*^^ 
 Pending an appeal a judgment is suspended and cannot be made 
 subject of a set-off.^''" 
 
 It has been held that where the defendant obtained costs upon 
 an appeal from an order they would not be set off against 
 a judgment for damages and costs recovered by plaintiff in the 
 same action.^^^ 
 
 The same court composed of the same judges, however, de- 
 cided that the defendant's costs after an offer of judgment were 
 properly set off against the general verdict for the plaintiff.^^'^ 
 
 A party can assig-n to his attorney costs to accrue, and the 
 equities of the attorney will be superior to those of the opposite 
 party to have these costs set off against a claim not arising out 
 of the same transaction.^^ ^ 
 
 The right of the attorney thus acquired is not only superior to 
 those of the opposite party, but also to those of his surety.^^^ 
 
 470, 42 N. Y. Supp. 329; Ee Have- in 31 Hun) ; Place v. Hayicard, 8 N. 
 meyer, 27 App. Div. 123. 50 N. Y. Y. Civ. Proc. Rep. 352, 3 How. Pr. 
 Supp. 126. N. S. 59; Marshall v. Meech, 51 N. 
 
 "^Carletoii v. Goldman, 5 N. Y. Y. 140, 10 Am. Rep. 572; Naylor v. 
 Civ. Proc. Rep. 153; Livderman v. Lane, 5 N. Y. Civ. Proc. Rep. 149. 
 Foote, 5 N. Y. Civ. Proc. Rep. 154, '^^Garner v. Gladwin, 12 N. Y. 
 note; Turno v. Parks, 2 How. Pr. X. Week. Dig. 9; Bulkley v. Back, 22 
 S. 35: Xaylor v. Lane, 5 N. Y. Civ. Jones & S. 300. 
 
 Proc. Rep. 149, 18 Jones & S. 97, 66 -'"Zoffhaum v. Parker, 55 N. Y. 
 How. Pr. 400. 120; Perry v. Chester, 53 X. Y. 240; 
 
 '^Moloiighney v. Kavanagh, 3 N. Ely v. Cooke, 28 N. Y. 365, 2 Abb. 
 Y. Civ. Proc. Rep. 253. 16 X. Y. App. Dec. 14: Firmenich v. Bovee, 1 
 Week. Dig. 253. Hun, 532, 4 Thomp. & C. 98; Hayes 
 
 "^Husted V. Thomson, 26 Misc. v. Carr, 28 X. Y. Week. Dig. 104. 12 
 .j48, 57 X. Y. Supp. 558. X. Y. S. R. 584: Davidson v. Alfaro. 
 
 '^Hardt v. Schultinp, 12 X. Y. 80 X. Y. 660; Palmer v. Palmer, 24 
 Week. Dig. 27. Misc. 217, 53 X. Y. Supp. 538; Swiff 
 
 '-'"^Tunstall v. Winton, 31 Hun. v. Protity, 6 Hun, 94. Contra, Din- 
 219, 5 Month. L. Bull. 42 (this case <jee v. Shears, 29 Hun, 210. 
 has been erroneously said to have "^Channiny v. Moore, 13 X. Y. Civ. 
 been affirmed by tlie court of appeals. Proc. Rep. 349, 13 X. Y. S. R. 715, 
 That court affirmed a case with the 11 X. Y. S. R. 670. 
 same title reported at another place
 
 44 THE LAW OF COSTS IN NEW YORK. 
 
 If the attorney takes an assignment of the judgment, he takes 
 it subject to all the equities that existed against his assignor.^^^ 
 
 Motion costs which are not collected at the time of the entry of 
 final judgment may be set off against costs awarded to an ad- 
 verse party.^^^ This provision relates to references arising un- 
 der § 1015 of the Code of Civil Procedure.^^* 
 
 39. Lien in matrimonial actions. — The attorney's lien will be 
 protected in these actions as well as in any other action.^^^ But 
 the courts will not allow the lien of the attorney to stand in the 
 v^ay of a settlement of the action by the parties. They will not 
 allow the attorney to proceed with the action for the purpose of 
 protecting his lien. He will be remitted to the ordinary meth- 
 ods of collecting whatever costs or allowances for counsel fees 
 have been made in the action. ^^^ 
 
 ISTo lien will attach to alimony as such, but only to costs as 
 such, and allowances made by the court. An agreement by the 
 wife to pay her attorney a certain portion of the allowance to her 
 of alimony is void as against public policy, and an order author- 
 izing a partial compliance therewith will be set aside.^^" 
 
 An attorney has not a lien upon the money of the husband 
 held by the court as security for the payment of future alimony, 
 although it represents real estate, and the wife has an inchoate 
 right of dower therein.^^^ Where a wife has settled with the 
 husband, and has consented to a decree vacating a warrant of 
 
 -'-Davidson v. Alfaro, 80 N. Y. Proc. Eep. 28, 32 X. Y. S. R. 979, 10 
 
 660; Eayden v. McDermott, 9 Abb. N. Y. Supp. 6,38; Weill v. Weill, 18 
 
 Pr. 14; MacWhinnie v. Cameron, 57 N. Y. Civ. Proc. Eop. 241, 10 N. Y. 
 
 Hiin, 46.3, 19 N. Y. Civ. Proc. Rep. Rupp. 627. Contra, Robertson v. 
 
 168, 32 N. Y. S. R. 985, 11 X. Y. Robertson, 1 Month. L. Bull. 85. 
 Supp. 20. ^'Va7i Vleck v. Van VlecJc, 21 App. 
 
 "^Code Civ. Proc. § 770. Div. 272, 47 N . Y. Supp. 470, 21 
 
 '^Vones v. Easton, 11 Abb. N. C. App. Div. 631, 47 X. Y. Supp. 472; 
 
 114. Re BoUes, 78 App. Div. 180, 79 X. 
 
 ^'^Branth v. Brnnth, 19 X. Y. Civ. Y. Supp. 530. 
 Proc. Rep. 28, 32 X. Y. S. R. 979, 10 =^^}fooney v. Mooney, 29 Misc. 707, 
 
 X. Y. Supp. 638. 7 X. Y. Anno. Cas. 257, 62 N. Y. 
 
 "^Kirby v. Kirby, 1 Paipo. 565; Supp. 769. 
 Branth v. Branlh, 19 X. Y. Civ.
 
 attokxey's lien. 45 
 
 commitment to enforce the collection of alimony and counsel fees 
 allowed by the court, the attorney cannot maintain the commit- 
 ment proceedings, to collect costs and counsel fees exclusively.^ ^^ 
 
 It has been held at special term that the attoi'ney cannot collect 
 costs and allowances by contempt proceedings, but that he is 
 confined to issuing an execution to collect them.^^'^ 
 
 The wife cannot deprive the attorney of the husband of costs 
 that have been awarded against the wife upon her unsuccessful 
 attempt to collect alimony, by offsetting the costs against the 
 alimony unpaid.^^^ 
 
 "^^Branth v. Brantli, 19 N. Y. Civ. Proc. Rep. 241, 10 N. Y. Supp. 627. 
 Proc. Eep. 28, 32 N. Y. S. R. 979, 10 ""^Winton v. Winton, 18 N. Y. Civ. 
 N. Y. Supp. 638. Proc. Rep. 67, 13 N. Y. Supp. 759. 
 
 "^^Yeill V. ^ycm, is n. y. civ.
 
 CHAPTEK III. 
 
 LIABILITY OF ATTORNEY. 
 
 40. By summary proceeding instituted by his client, 
 
 a. In general. 
 
 b. How exercised. 
 
 c. Between what parties. 
 
 d. How instituted. 
 
 e. In what cases. 
 
 f. EfTeet upon this procecdinfj of an action brou^^ht for the sam<' 
 
 thing. 
 
 g. Answer of attorney to this proceeding. 
 
 41. By action in tort brought by client. 
 
 42. Liability for interest on money collected by attorney. 
 
 43. Eights of attorney to have his lien determined. 
 
 44. Liability for misconduct. 
 
 45. Liability of attorney for sheriff's fees. 
 40. Liability for other fees. 
 
 47. Repayment of costs. 
 
 40. By summary proceeding^ instituted by his client. — a. In 
 general. — Where the attorney and his client cannot agree upon 
 the amount of the lien of the attorney, the client may sue his at- 
 torney if he claims to retain money collected as a compensation 
 for his services, or he may have the court decide in a summary 
 proceeding the rights of the parties to the fund. This latter 
 proceeding can also be instituted to determine the amount of tlu? 
 attorney's lien at any time. The client has no absolute legal 
 right to institute this proceeding. It rests in the discretion of 
 the court to decide when it will entertain it.^ 
 
 The courts have power over the conduct of attorneys as officers 
 of the court to regulate the manner in which the attorneys shall 
 exercise their calling. 
 
 ^Keeney v. Tredwell, 71 A pp. Div. 
 .521, 75 N. Y. Supp. 1097. 
 
 46
 
 Liability of Attorney. 47 
 
 In 1895 it wns held that the Xow York city court, fonnei-ly 
 the marine court, had such power.- This power it can use in a 
 summary manner.^ AVhoro an attorney has received money of 
 his client and refuses to pay it over, the court will exercise this 
 power and ord(M- him to pay it over, allowiug hiui to retain the 
 amount due from the clieut to him. The parties are not en- 
 titled to a jury trial to detennine the amount of his claim.'* 
 
 Before the amendment of § 66 of the Code of Civil Procedure 
 by chapter 61, Laws of 1809, it had been uniformly held that 
 the amount of an attorney's lien oc^uld only be determined upon 
 aa application to the court upon the part of the client, and that 
 an attorney could not enforce his lien in this summary manner.^ 
 
 Since the amendment, however, the court can determine the 
 amount of the lion ujxm the application of the attorney or of the 
 client.^ 
 
 The client is entitled to settlements from time to time as pay- 
 ments are made, where the attorney is receiving money in instal- 
 ments, and may invoke summary proceedings to compel the at- 
 torney to turn over the money then due the client.^ 
 
 h. How exercised. — The court may institute inquiries itself 
 upon affidavits or upon examination of witnesses, or may order 
 a reference to ascertain the amount due the attorney, if there is 
 any dispute as to the amount, or a dispute as to any other mate- 
 rial faet.^ Such a reference cannot be teimiinated by notice un- 
 
 -Oillespie v. Mnlholland, 12 Misc. 387. 72 N. Y. S. R. G17, 37 N. Y. 
 
 40, 33 K Y. Supp. 33. Supp. 201; Ogden v. Devlin, 13 
 
 '/?e Knapp, 85 X. V. 284; Ex parte Jones & S. 631. 
 
 Sfaats, 4 Cow. 70. ^Re Lexington Ai-ie. 30 App. Div. 
 
 *Re Fincke, 6 Daly. HI; Brown v. 602, 52 N. Y. Supp. 203; Grigf/s v. 
 
 \eic York, 9 Hun, 587: Ackcrman v. Brooks, 79 Hun, 394, 61 N. Y. S. R. 
 
 Ackerman, 14 Abb. Pr. 229; Coster 499, 29 N. Y. Supp. 794. 
 
 V. Greenpoint Ferry Co. 5 N. Y. Civ. '^Thomasson v. Lafourette, 63 App. 
 
 Proc. Rep. 146; Porter v. ParmJy, 7 Div. 408, 71 N. Y. Supp. 559. 
 
 Jones & S. 219; Canary v. Russell, 'Re Tracy, 1 App. Div. 113, 72 N. 
 
 10 Misc. 597, 24 N. Y. Civ. Proc. Rep. Y. S. R. 219, 37 N. Y. Supp. 65. Af- 
 
 109, 63 N. Y. S. R. 740, 31 N. Y. firmed without opinion in 149 N. Y. 
 
 * Supp. 291; Amsdell v. Martin, 20 N. 608, 44 N. E. 1129. 
 
 Y. Week. Dig. 370; Philadelphia, v. "Re Fineke, 6 Daly, 111; Bowling 
 
 Postal Teleg. Cable Co. 1 App. Div. Green Sav. Bank v. Todd, 52 N. Y.
 
 48 THE LAW OF COSTS IN NEW YORK. 
 
 der § 1019 of the Code of Civil Procedure.* Wliere it appears 
 just what tlie attorney has done and what he has retained there 
 is no need of a reference.^ ^ "Where all the facts are before the 
 court and it passes upon the questions involved at the invitation 
 of the parties, neither can claim that the court should have as- 
 certained the facts by a reference or otherwise.^ ^ But where 
 there is a dispute as to material facts, or where the attorney al- 
 leges that he has a lien upon the matter in dispute, or denies a 
 material allegation, that the petitioner has alleged, the court 
 cannot make an order on the papers, but must make inquiry it- 
 self, or send it to a referee.-*^ 
 
 Upon the determination of the amount due, a judgment may 
 be awarded to the successful party. -^"^ 
 
 In such a proceeding the court should aim to do justice, and 
 should not be bound by technical rules. The attorney should be 
 allowed to give evidence which in an action would be prohibited 
 by § 829 of the Code of Civil Procedure; also either party 
 should be permitted to contradict written instruments by parol 
 evidence.-^* 
 
 c. Between ivhat parties. — The court will never exercise this 
 power where the client has assigned his cause of action, or judg- 
 ment, because the relation of attorney and client does not exist, 
 and only a contract relation exists between the attorney and the 
 
 489; Re E. 87 N. Y. 521, 63 How. "i2e Borkstrom, 63 App. Div. 7,71 
 
 Pr. 152, 14 N. Y. Week. Dig. 259; N. Y. Supp. 451. 
 
 Re Ernst, 54 App. Div. 363, 66 N. Y. '^Re U. 87 K Y. 521, 63 How. Pr 
 
 Supp. 620; Porter v. Parmly, 7 Jones 152, 14 N. Y. Week. Dig. 259. 
 
 & S. 219; Re Peterson, 74 Hun, 93, "Griggs v. Brooks, 79 Hun, 394, 61 
 
 26 N. Y. Supp. 405. N. Y. S. R. 499, 29 N. Y. Supp. 794; 
 
 'Bennett v. Pittman, 48 Hun, 612, Atistin v. Rawdon, 42 N. Y. 155; 
 
 21 Abb. N. C. 238, 28 N. Y. Week. Greenfield v. ^'elv York, 28 Hun. 
 
 Dig. 437, 15 N. Y. S. R. 976, 1 N. Y. 320; General Rule 27. Contra, Ward 
 
 Supp. 27. V- Ward, 67 App. Div. 121, 73 N. Y. 
 
 ^"Ferdon v. Harrigan, 71 N. Y. S. Supp. 450; Mpcr v. Abbctt, 20 App. 
 
 R. 671, 36 N. Y. Supp. 741; Re Mer- Div. 390, 46 N. Y. Supp. 822. 
 
 tian, 16 N. Y. Week. Dig. 554, 29 '*Pnrdy v. Stewart, 16 N. Y. Week. 
 
 Hun, 459; Re Knapp, 85 N. Y. 284, Dig. 284. 
 12 N. Y. Week. Dig. 391.
 
 LIABILITY OF ATTORNEY. 49 
 
 An attorney has been ordered to pay into court a 
 Slim of money which he had received for a deceased client, upon 
 an application by the personal representatives of such client.-^® 
 
 The client need not proceed against all the members of a firm 
 of attorneys, when one of the members took a check in the firm's 
 name and misappropriated the funds, but he may proceed 
 against the member guilty of the wrong.^''^ 
 
 d. IIoic instituted. — This proceeding is instituted by a peti- 
 tion which should be verified by the petitioner, and the fact that 
 the petitioner is a resident of a neighboring state and is absent 
 from the state of '^ew York does not relieve him from the neces- 
 sity of verifying the petition, nor authorize its verification by 
 an attorney.^ ^ 
 
 e. In what cases. — The court will not entertain this proceed- 
 ing unless the money or property has come into the hands of 
 the attorney as an attorney at law. Where it has come into his 
 hands under an agreement for services which a lavman mio-ht 
 have performed, this proceeding will not be entertained, ^^ or 
 where the client has loaned money to the attorney, and the attor- 
 ney has obtained a discharge of a mortgage given as security by 
 promises which he did not fulfil,-^ or where an insurance policy 
 has been received by an attorney, not in his professional capac- 
 ity', but as mere agent,^^ or where an attorney not in active prac- 
 
 ^^Re Schell, 58 Hun, 440. 34 N. Y. ^'Baker v. Broum, 150 N. Y. 567, 
 
 S. R. 928, 12 N. Y. Supp. 790, Ap- 44 N. E. 1120. 
 
 pfeal dismissed in 128 N. Y. 67. 38 ^'Re Wolf, 51 Hun, 407. 21 N. Y. 
 
 X. Y. S. R. 442, 27 N. E. 957 ; Hex- S. R. 224, 4 N. Y. Supp. 239. 
 
 ter V. Pennsylvania R. Co. 43 App. ^^Re Curtis, 51 App. Div. 434, 64 
 
 Div. 113, 59 N. Y. Supp. 453; Hess N. Y. Supp. 691. 
 
 V. Joseph, 7 Robt. 609; Boweyi v. "/("e Curtis, 51 App. Div. 434, 64 
 
 Smidt, 49 N. Y. S. R. 647, 20 N. Y. N. Y. Supp. 691 ; Re Dalcin, 4 Hill, 
 
 Supp. 735. Contra, Gillespie v. Mul- 42 ; Re HiUehrandt, 33 App. Div. 
 
 holland, 12 Misc. 40, 33 N. Y. Supp. 191, 53 N. Y. Supp. 352. 
 
 33, citing tichell v. Neiv York, 128 -"Re Husson, 26 Hun, 130, 62 How. 
 
 N. Y. 67, 27 N. E. 957; Re Redmond, Pr. 358. 
 
 54 App. Div. 454, 66 N. Y. Supp. 782. "^Re H. 87 N. Y. 521, 63 How. Pr. 
 
 Obiter, same court that decided Hex- 152, 14 N. Y. Week. Dig. 259. 
 icr V. Pennsylvania R. Co. 43 App. 
 Div. 113, 59 N. Y. Supp. 453. 
 COSTS 4.
 
 50 Tin; i-A\v oi' costs in nf.w yoi;k. 
 
 tiee colloetofl (ni n iifc iii>nv;iiico jxilifv iiioncv wliicli lio did not 
 turn ovcr,"^ or wlici'c iiii jittoriicv has collected troiu liis cliont 
 the compensation for himself juul counsel, and refuses to pay the- 
 counsel his share.^'^ 
 
 Where an attdi-iiev has ])aid ])art of the ciists ovei" to counsel, 
 and the court has sul)se(|ueutly •M'd(M'e(l tliat rlie attorney return 
 !he costs to his client, the attMniey cannot coiiijxd the counsel to- 
 refund tlie money by sunuiiary procecdiiiiis.-^ 
 
 /. Effect upon tltis procccdiiuj of (in ochon hroiKjhl for the 
 same tiling. — The attorney -will not he ordered to |)ay over money 
 received in his official capacity from his client where there is an 
 action pending between them in relation thereto, and the client 
 has treated with the atlorney as an adverse party.-'' If the- 
 brine:inff of an action is nol an absolute bar it is a matter that, 
 the court should take into consideration in exercising its discre- 
 tion f^ but the fact that the client has reduced his claim against 
 his attorney to judgment is not a bar to a summary proceeding 
 to com})el th(> attorn(\v to pay.-' But the client's accepting the 
 attorney's note for the amount of uKUiey belonging to the client, 
 which the attorney cannot pay, is a bar to summary ]>roceedings 
 instituted by the client u])*)n the nonpayment of the note at its 
 maturity."'^ 
 
 g. Ansicer of attoincii lo tJiis proceeding. — An attorney who 
 has received money from the committee of a lunatic for saft> 
 keeping will nol be orderecl to |)ay the money over to the admin- 
 istrator of tlie lunatic, where the accounts of the committee, who 
 is dead, have not been settled.-" It is no answei" to these pro- 
 ceedings that the attorney made his (daim in good faith. '^"^ 
 
 --Ue Il\ll<ln<niil1. .33 Aj.).. Div. I'.M. U X. Y. Anno. (as. 1, Tyl X. Y. Supp. 
 
 .53 X. Y. Siipi.. 3.V2. 1 127. 
 
 "Vi'c Hd.shin, IS Hull. 42. -""lie .\cji7?c. 71 Apj). Div. 102, 7^V 
 
 ■'Tiiiflor V. Lfmff Ixlmid /.'. Co. 3S X". Y. Snpp. 588. 
 
 App. Div. .")!)■"), 56 N. Y\ Supp. ()(i5. "'l.'e Red w and, 54 App. Div. 454, 
 
 -^Harr'iH v. EUwtA. 19 A]*)). Div. S X. V. Anno. Cas. 309, 66 X\ Y- 
 
 60, 45 X. Y. Supp. fll6. Snpp- "'''-: '<"'' Bleakley, 5 Paige^ 
 
 '"lie Moil, 36 Hun, .")01). -^W. 
 
 -^(j'abricl v. SchilHiifier Fire Proof "noulinft (Ireen Sav. Bank v. 
 
 Cemevt rf Asjdxilt Vo. 24 :Mi>c. 313, Todd, 52 X. Y. 48!).
 
 LIABILITY OF ATTOKA^EY. 51 
 
 The court \Yill not allow an attorney to retain his client's 
 money for what seeni8 to it excessive charges where there is no 
 evidence of their legal value, nor necessity thereof except the 
 attorney's testimony. The attorney should produce experts 
 upon these questions.*^^ Where the rate of compensation is not 
 fixed, the attorney must establish the value of his services by evi- 
 dence that would be competent in an action brought by tbe attor- 
 ney against his client to recover the value of such services.^^ He 
 must show in detail his services and disbursements.^^ 
 
 Attorneys in such a proceeding cannot set up the fact that they 
 never actually- i-eceived the money of their client, when they 
 have assumed control of it, and directed the custodian to pay it 
 to a credit(»r of the attorneys.^* 
 
 The client should take })roceedings in the actions in which the 
 attorney i-eceived the money sought to be recovered, and not in 
 an action in which judgment has been taken against tlie 
 attorneys.'' ■' 
 
 41. By action in tort brought by client. — To maintain an ac- 
 tion for conversion against an attorney for money that has right- 
 fully come into his possession and upon wliich he has a lien for 
 liis services, the client must prove that the amount due the at- 
 torney has been actually paid or tendered to him before the 
 action was commenced.^*' 
 
 In such an action the allegation that the attorney claims a lien 
 upon the money received is not a counterclaim, requiring a 
 i-eply, but is a defense which must be proved. His defense is 
 his claim for services, but his lien is something different. '^^ 
 
 42. Liability for interest on money collected by attorney. — 
 
 "Re Raby, 25 Misc. 240, .55 N. ^^ 'Hlrangier v. Hughes, 24 Jonos & 
 
 Supp. 87. S. 34G, 3 N. Y. Supp. 828. 
 
 ^-flarwood v. I.(t Grange, 137 N. Y. '^(iunniiig v. Qiiinn, 81 Hun, 522, 
 
 538, 32 N. E. 1000. "^ 63 N. Y. S. R. 200, 30 N. Y. Snpp. 
 
 ''Re Ernst, 54 App. Div. 363, 66 N. 1015. 
 
 Y. Supp. 620. '"'Rochester Distilling Co. v. 
 
 ''*Kent V. Rockwell 89 Hun, 88, 69 O'Brien, 72 Hun. 462. 25 N. Y. S. R. 
 
 V. Y. S. R. 13. 34 X. Y. Supp. 1041. 149, 25 N. Y. Supp. 281.
 
 52 THE LAW OF COSTS IN NEW YORK. 
 
 In an action brought against an attorney to recover the arnoTint 
 of a judgment received by him, and which he claimed to hold as 
 payment for his services in the action, it was held that the attor- 
 ney was entitled to his compensation when he collected the 
 money updn the judgment, and interest should be charged against 
 the attorney from the date of the receipt of the money, less his 
 charges, and that the attoi-ney could not be allowed interest upon 
 the taxable costs and disbursements until his employment closed, 
 /. e., the date that he collected the money on the judgment.^* 
 
 Interest cannot be allowed u})on the amount that an attorney 
 has received after deducting the amount of his services, where 
 the amount due the attorney was not liquidated, as it is as much 
 the client's business to settle the matter as the attorney's.^^ 
 
 43. Eights of attorney to have his lien determined. — Whenever 
 the client or any person claiming under him seeks to obtain the 
 property upon which the attorney claims a lien, the attorney is 
 entitled to have his lien ascertained and paid before surrender- 
 ing the property. It makes no difference in what form of pro- 
 ceeding the client asserts his riglits.'*^ 
 
 44. Liability for misconduct. — The court will proceed to pun- 
 ish an attorney for contempt where he has paid to his client the 
 money received upon a settlement of an action, in violation of 
 the order of the court made upon substituting the present attor- 
 ney for tlie original attorney, which order contained a provision 
 that the original attorney should have a lien on the cause of ac- 
 tion for his compensation.*^ An attorney will be compelled to pay 
 the costs of a reference ordered to ascertain the residence of his 
 
 ^^Hover v. Heath, 3 Hun, 283, 5 A'c Holland Trust Co. 76 Hun, 325, 
 
 Thomp. & C. 488. 59 N. Y. S. R. 85, 27 N. Y. Supp. 
 
 '■'Maxwell v. Cottle, 72 Hun, 529, 687. 
 55 N. Y. S. R. 127, 25 N. Y. Supp. *''Re Wolf, 51 Hun, 407. 21 N. Y. 
 
 635; Re Knapp, 85 X. Y. 284; Re H. S. R. 224, 4 N. Y. Supp. 239; Hussey 
 
 87 K Y. 521 ; McKihbiu v. yafis, 76 v. Ctilvcr, 30 N. Y. S. R. 830, 9 N. Y. 
 
 Hun, 344, 59 N. Y. S. 11. 101, 27 X. Supp. 103, AnTinned in 1.30 X. Y. 681, 
 
 Y. Supp. 723; Taylor Iron d Steel 20 X. E. 103.j. 
 
 Co. V. Hipgins, 66 Hun, 626, 49 X. "Hammond v. Dean, 4 Hun, 131, 
 
 Y. S. R. 645, 20 X. Y. Supp. 746; 6 Thomp. & C. 337.
 
 LIABILITY OF ATTORNEY. 5o 
 
 client, where the attomey has not dealt with the court wnthoui 
 reserve, but has suppressed important facts for the purpose of 
 screening his client.^^ An attorney will be compelled to pay 
 costs of appeals, which he takes without authority. '^'^ 
 
 45. Liability of attorney for sheriff's fees. — The liability of an 
 attomey for disbursements (with the exception of official fees) is 
 the same as that of any other agent in regard to disbursements 
 made in his principal's business. An attorney is liable to clerks, 
 sheriffs, and other similar officers for services rendered in an 
 action at the request of the attorney.'*^ 
 
 An attorney is also liable for the fees of the sheriff upon an 
 execution issued by him for his client. This was decided nearly 
 a century ago.'*'^ The courts have long doubted whether this rule 
 could be maintained upon principle or is consistent with the 
 general current of judicial authority elsewhere, and refuse to 
 extend the rule by analogy to other matters, such as referee's 
 fees.**' It is still upheld upon the groimd that it has been the 
 law of the state for a long time and no practical injustice results 
 from enforcing it. But an attorney is not liable to the sheriff 
 for his fees upon an execution unless he or his client has hin- 
 dered the sheriff in the collection of the full amount. The re- 
 duction of the amount of the judgment by the court is no fault 
 of the attorney and he is not liable for the fees of the sheriff 
 upon the whole amount of the judgment.*'^ i^or is the assign- 
 ment of the jtidgment, where no directions are given not to col- 
 lect the judgment, such an interference with the execution that 
 the attorney will be liable for sheriff's fees. It is only when 
 the judgment itself is satisfied or discharged, or the attorney 
 has countermanded the execution, that the sheriff may look to 
 the attorney for his fees.''^ 
 
 '-Baur V. Betz, 7 N. Y. Civ. Proc. "^Judson v. Gray, UN. Y. 408. 
 Rep. 23.3, 1 How. Pr. N. S. 344. "Campbell v. Cothratu 56 N. Y. 
 
 "Struppmaun v. Muller, 55 How. 279. 
 Pr. 427, 11 Jones & S. 38. *^Van Kirk v. Sedgwick, 87 N. Y. 
 
 **Bonynge v. Waterhury, 12 Hun, 265. 
 534. 
 
 "Adams v. Hopkins. 5 Johns. 252; 
 Ousterhout v. Day, 9 Johns. 114.
 
 54 THE T,A\V or COSTS l.N XKW VOK'K. 
 
 Il is no dctViise in <m action l)n)u<>lit by a shci-iif for his fees 
 against the attorney, who has directed him not to sell nnder an 
 execution, to show that the ])roj)erty would not have brought as 
 much as the execution called for. I'lie attorney is liable for the 
 sheriff's fees upon the whole aniounf*'* 
 
 An attorney is not liable to the sheriff for his fees on a body 
 execution while the debtor is still in custody. It is doubtful 
 whether he is liable until the money is collected.''" 
 
 An attorney who ])laccs a cause on the calendar is liable to 
 the sheriff for his calendar fees."*^ But it 7nust be shown by 
 some evidence other than the calendar that the attorney filed the 
 note of issue. ■"'- 
 
 46. Liability for other fees. — An attorney has been held not 
 liable for the fees of a stenographer employed by him to take 
 tlie testimony in an action,"^ nor for the bill for a copy of the 
 testimony,^'* nor for the fees of a commissioner in partition as 
 fixed in § 3299 of the Code of Civil Procedure/'"' nor for the 
 fees of an expert accountant employed to examine the books of 
 account in preparation for tnal,^*"' nor for ])rinting a brief. ■^' 
 But where he does not disclose the name of his client he is per- 
 sonally liable. ^'^ 
 
 The attorney can, of course, make himself liable for any oi- 
 all of these charges when he contracts them in his own name."''* 
 lie is not liable for referee's fees, ^^' nor for the fees of counsel."^ 
 
 ^Tarsons! v. Boicdoi)i, 17 Wend. 14. '•''Good v. Rutnsci/, 50 App. Div. 
 
 "^Boice V. Campbell 2 N. Y. Civ. 280, 63 N. Y. Snpp. 981. 
 
 Proc. Kcp. 232. 03 How. Pr. 167. '''Gray v. Jotnual of Finance Pub. 
 
 '-'Heillij V. Tidlis, 10 Daly, 283. Co. 2 Misc. 260, 50 N. Y. S. R. 764, 
 
 "■Reiliy v. Flymi, 10 Daly, 462. 21 N. Y. Supp. 1)67; Press Pub. Co. 
 
 =-y{onynge v." Watcrbury, 12 Hun, v. liaker, 30 N. Y. S. R. 879, 13 N. Y. 
 
 534; Bonynye v. Field, 81 N. Y. 159. Supp. 822. 
 
 '•^Sheridan v. Genet, 12 Hun, 600. ""Dinkcl v. ^VehU\ 11 Abb. N. C. 
 
 ^Lamorcux v. Morris, 4 How. Pr. 124. 
 
 245. "KMiieniffc v. Ludington, 13 Abb. 
 
 '^Covell V. Hart. 14 Hun, 252. N. C. 407. 
 
 ^''hivingston-Middlcditch Co. v. 
 Xew York College of Dentistry, 31 
 Misc. 259, 64 N. Y. Supp. 140.
 
 LIABILITY OF ATTORNEY. 55 
 
 47. Repayment of costs. — Where a party has collected costs of 
 the opposite party either personally or by his attorney, and the 
 money thus collected has been turned over to the attorney, either 
 for services in that action or for services generally"^ ^ or money 
 has been received under an order and a like disposition has been 
 made of it,*'^ an action will not lie against the attorney to re- 
 t'over the money thus paid upon the reversal of the judgment or 
 <'rder. But where the money has been obtained by the attorney 
 l)y any fraud practised, the court can make the attorney refund 
 the money thus collected, unless it appears that he has paid it to 
 liis client. 
 
 Money paid by the defendant to the plaintiff's attorney, and 
 aj)plied by the latter upon the indebtedness due him from his 
 client, may be recovered from the attorney, when the defendant 
 has been induced by the fraud of the plaintiff to settle the ac- 
 tion.^"^ If the money had been paid to the plaintiff and he in 
 turn had paid the money to his attorney, the latter could not 
 have been comjjelled to return it.''^ 
 
 The attorney will be compelled to return costs that have been 
 improperly allowed,^'"*^ unless it a^jpears that he has pnid them 
 to his client.*'''' 
 
 An attorney who has rendered services for an executor, and 
 who has been paid for his services from the funds of the estate, 
 will not be compelled to refund the money thus received, when it 
 is subsequently decided that the will is invalid, and the executor 
 is unable to refund the money thus expended by him.*'^ 
 
 e^a-Langletf v. Warner, 3 N. Y. 327 ; Fowler, 14 Abb. Pr. N. S. 249, Rear- 
 
 Butcher v. Henmng, 90 Hun, 565, 35 gued in 15 Abb. Pr. N. S. 86, Af- 
 
 N. Y. Supp. 1006; Simpson v. Horn- firmed on appeal in 55 N. Y. 641. 
 
 heck, 3 Lans. 53; Wright v. Nos- ^*Fischer v. Burns, 61 N. Y. S. R. 
 
 trand, 21 Jones & S. 381. 476, 30 N. Y. Supp. 437. 
 
 '-Re White, 82 App. Div. 553, 81 S4a.Ooopcr v. Cooper, 27 Misc. 595, 
 
 N. Y. Supp. 858; (Jrauer v. Graucr, 59 N. Y. Supp. 86. 
 
 2 Mi.sc. 98, 20 N. Y. Supp. 854. 49 dibForstman v. Schtilting, 108 N. 
 
 N. Y. S. R. 354. Y. 110, 15 N. E. 366. 
 
 '^Forstman v. Schulfing, 108 N. Y. '^"Shaffer v. Bacon, 35 App. Div. 
 
 110, 15 N. E. 366; Wilmerdings v. 248, 54 X. Y. Supp. 796.
 
 56 TilE LAW OF COSTS IN NEW YORK. 
 
 Where a party to an action settles the same by paying the 
 anittunt of the damages chiimed, together with the alleged costs, 
 and it is discovered that he has paid too much costs, an action 
 will lie to recover back the amount of the excess costs thus paid, 
 and the action may be brought in a court other than the one in 
 which the action was pending in which the excess costs were 
 paid.*^*^ 
 
 The court has power under § 1323 of the Code of Civil Pro- 
 cedure to compel a party to return costs that have been j^aid to 
 his attorney under a judgment which has been reversed or modi- 
 lied. The court of original jurisdiction has this power, but it 
 is doubtful wdiether the appellate court has such power.^^ 
 
 "^Britton v. Frinh, 3 How. Pr. 102; "'Wright v. Nostrand, 21 Jones & 
 Clinton v. Strong, 9 Johns. 370; S. 381. 
 Ripley v. Gelston, 9 Johns. 201, 6 
 Am. Dec. 271; Wisner v. Bulklry, 15 
 \Aeud. 321.
 
 CIIAPTED IV. 
 
 MOTIONS AND AMENDMENTS. 
 
 48. Motion costs. 
 
 a. In general. 
 
 b. Amount. 
 
 c. How awarded. 
 
 d. When awarded. 
 €. ^^'hen refused. 
 
 (1) In general. 
 
 (2) Both succeed in part. 
 
 (3) Costs balance. 
 
 (4) Unnecessary motion. 
 
 (5) Ex parte motions. 
 
 f. Same motion in several cases. 
 
 g. Relief asked in motion granted by opposite party before argument. 
 h. Order granting favor. 
 
 49. Costs upon allowing amendment. 
 
 a. In general. 
 
 h. Amendment of complaint during trial. 
 
 c. Amendment of complaint after judgment. 
 
 d. Amendment of complaint after appeal. 
 
 e. Amendment of artswer. 
 
 f. Serving supplemental answer. 
 
 g. Constriiction of order. 
 
 h. Retaxing costs paid as a condition of amending. 
 .50. Costs on change of parties. 
 
 51. Motions on the pleadings. 
 
 a. Striking out scandalous pleadings. 
 
 6. Striking out pleadings as punishment. 
 
 c. Motion for judgment on frivolous pleading. 
 
 52. Dismissal for neglect to prosecute. 
 
 53. Motion for bill of particulars. 
 
 54. Motion for bill of discovery. 
 
 55. Change of venue. 
 
 a. Convenience of witnesses, 
 ft. Venue laid in Avrong county. 
 
 56. Opening defaults. 
 
 a. In general. 
 h. On the trial. 
 
 57
 
 OO TilK LAW OI' COSTS li\ AKW VOKK. 
 
 c. Waiver of costs granted. 
 
 d. Costs to abide tlie event. 
 
 e. ("osts to moving part}'. 
 /. Default on aj)peal. 
 
 48. Motion costs. a. In general. — A iiotico of motion cannot 
 be withdrawn or countermanded before arg-nmcnt. The party op- 
 posing' the motion may attend to argue the motion and obtain an 
 order denying rho motion hy default, but tlie costs of such motion 
 are in the discretion of the court. In the ]S[ew York superior 
 court The rule was estaldished that a notice of motion could not be 
 countermanded or withdrawn without the payment of costs. Bui 
 where the motion embraced two distinct matters one could hd 
 M'ithdrawn without the ]jayment of costs.^ Before the adoption 
 of the C'ode of Procedure costs were allowed to the party who 
 attended court prepared to oppose a motion and the moving 
 }>arty did not appear.- 
 
 h. Amount. — The amount of costs allowed on a motion is reg- 
 ulated by § 3251 of the Code of Civil Procedure, which fixes 
 the sum at "not exceeding ten dollars besides necessary disburse- 
 ments for printing and referee's fees," except a motion for a new 
 trial upon a case, or an ap})lication for judgment upon a special 
 A^erdict where tlie amount is the same as u])on an ai)peal as pre- 
 scribed, in subdivision 4 of that section, i. e. $00. •' The costs 
 allowed on special verdict apply only to actions at law.^ 
 
 c. IIoiv aiuarded. — Costs upon a motion, unless specially reg- 
 ulated by statute, may be awarded, either absolutely or to abide 
 the event of the action, to any ])arty, in the discretion of the 
 court or judge.''' Motion costs are discretionary. This discre- 
 tion is not to be exercised arbitrarily, but in reference to the 
 
 ^Walkinfthav v. Pcrzel , 7 Robt. lioicery Sav. Bank, 9 N. Y. Civ. Proc. 
 
 606, 32 How. Pr. 310. Rep. 177; lie Otccns, 31 Abb. N. C. 
 
 'Brelt V. Hood, 1 Cai. 343, Cole- 480, 02 N. Y. S. R. 107, 30 N. Y. 
 
 man & C. Cas. 259; Lownshurij v. Siipp. 348. 
 
 h'athhope, 1 Wend. 283. \irtcagc v. Lcc, 5 :\Ionth. L. Bull. 
 
 ^Kcnncy v. First 'Nat. Bank, 8 N. 6.5. 
 
 V. Civ. Proe. Rep. 398; Walsh v. ^ Code Civ. Proc. § 3236.
 
 MOTIONS AND AMKXDiMENTS. 59 
 
 justice of the case, and -what has been tlie nsage of the conrts in 
 similar cases/"' 
 
 d. When aa-arded. — A party is not entitled to motion costs 
 unless they are allowed in the order granted upon the motion." 
 
 Thev are not allowed unless the motion is necessary for the at- 
 tainment of some substantial right in the case, except where 
 they are awarded as punishment to the opposite party. ^ 
 
 Thus, a moving ])arty will be charged with the costs of a mo- 
 tion, where otherwise he would not, if he asks in his moving 
 papers for costs against his opponent without any foundation 
 for it.^ Costs will be allowed upon a motion to strike out im- 
 proper costs taxed in a bill of costs.^** 
 
 e. ^Yhen refused. (1) In getieral. — Costs will be refused to 
 the party who succeeds upon the motion, when his actions have 
 induced or compelled the opposite party to make the motion,^^ or 
 when he has refused to the moving party the relief asked in the 
 moving papers, upon being tendered all that he is entitled to.^^ 
 Upon a default a party cannot insert in his order more than he 
 has asked in his notice of motion. If he has not asked for costs 
 he cannot insert them in the order — payable absolutely to the 
 moving party,^^ or to abide the event of the action, although he 
 asks in his notice of motion "for such other and further rule or 
 order in the premises as the court may deem proper to grant. "^"^ 
 TjlU motion costs may be granted upon a contested motion, al- 
 though no costs were asked in the notice of motion.^ -^ A motion 
 for a compulsory reference to hear, try, and determine should not 
 
 ''Stiles V. Fisher, 3 How. Pr. .52. ^^Leonard v. Manard, 1 Hall, 200. 
 
 'Chadicick v. Brother, 4 How. Pr. '-Gaul v. Miller, 3 Paige, 192; 
 
 283, 3 N. Y. Code Rep. 21; Morrison Kane v. Van Vranken, 5 Paige, 62; 
 
 V. Ide, 4 How. Pr. 304, 3 N. Y. Code Bell v. Judson, 2 How. Pr. 42. 
 
 Rep. 27. "Crippen v. Ingersoll, 10 Wend. 
 
 '^Jacobs V. Hooker, 1 Barb. 71. 003; Smith v. Fleischman, 17 App. 
 
 ^Burroughs v. Reiger, 12 How. Pr. Div. 532, 45 N. Y. Supp. 553. 
 
 170. ^*Xorthrop v. Van Dusen. 5 How. 
 
 ^"Boicjie V. Anthong, 13 How. Pr. Pr. 134, 3 X. Y. Code Rep. 140. 
 
 301. ''^Jones v. Cook, 11 Hun, 230.
 
 60 TJIK LAW OF COSTS IN NEW YORK. 
 
 l)e granted with costs. At most the costs should be made to abide 
 the event. ^'^ 
 
 (2) Both succeed in part. — It is a general rule that where costs 
 are in the discretion of the court, they will not be allowed where 
 both j)arties succeed in part. If costs depended upon the success 
 of the issue, both having succeeded, costs should be granted to 
 both, and thus they would balance. This rule applies to motion 
 costs. 
 
 A moving party will not be allowed costs where he obtains 
 less than what he asked in his notice of motion.^ '^ 
 
 If the moving party asks for the costs of a motion when he is 
 not entitled to them, and upon the argument he obtains all that 
 he asks for, except the costs, he will be denied costs. The oppo- 
 site party would be entitled to costs if he had limited his oppo- 
 sition simply to the allowance of costs, as in that event he would 
 succeed wholly, but where he argues the case on the merits and 
 is defeated upon that part of the motion, he cannot be allowed 
 costs. In the latter event neither party would be allowed costs,, 
 as each succeeds in part.^* 
 
 (3) Costs balance. — Costs will not be allowed to either party 
 where two separate motions in the same case are argued at the 
 same time, and each party succeeds wholly upon one motion^ 
 because the costs balance each other. ^'^ 
 
 (4) Unnecessary motion. — Costs will be refused where a party 
 lias compelled his opponent to make a motion after he is offered 
 all that he is entitled to, as where a defendant offers motion costs 
 for the privilege of amending his answer.^** Costs Avill be 
 granted to the party moving for discovery and inspection of 
 
 ^'Cvthbert v. Huichins, 7 App. "Noxon v. Gregory, 5 How. Pr. 
 
 Div. 251, 48 N. Y. Supp. 277. 3.39; ^Yrel■s v. Southwick, 12 How. 
 
 '\McKenzie v. Hadcstaff, 2 E. D. Pr. 171. 
 
 Smith, 75; Whipple v. Williams, 4 ''Ward v. Sands, 10 Abb. N. C. 
 
 How. Pr. 28; Hates v. Loomis, 5 <'0. 
 
 \\'end. 78; Coriin v. George, 2 Abb. '"Hell v. Judson, 2 How. Pr. 42. 
 Pr. 465; Steam Navigation Co. v. 
 Weed, 8 How. Pr. 50; Penfield v. 
 White, 8 How. Pr. 88.
 
 MOTIONS AND AMENDMENTS. 61 
 
 papers if a request to inspect them has been unreasonably re- 
 fused.-^ Or where pleadings, not having been properly sub- 
 scribed, have been returned for that reason, and the attorney re- 
 fuses to receive them after they are corrected, together with the 
 costs of a motion.^^ 
 
 Costs were held to abide the event where the party was offered 
 the relief asked for and $5 for drawing the papers, which was 
 refused. Motion costs are intended not only to pay for arguing 
 a motion, but also for drawing the papers.^^ 
 
 (5) Ex parte motions. — Costs will not be granted on ex 'parte 
 motions.^^ 
 
 f. Same motion' in several cases. — Costs of only one motion 
 will be allowed where the moving party could have united the 
 motions in all cases in one motion.-^ Cost of but one motion can 
 be allowed, where there has been a series of orders so connected 
 that if one is erroneous all are.^^ 
 
 Costs of but one motion can be allowed although separate at- 
 torneys appear for different parties upon the argument. ^'^ 
 
 g. Relief ashed in motion granted by opposite party before 
 argument. — Costs of motion were allowed under the Code of 
 Procedure although, after the service of a notice of motion 
 founded on an irregularity in the complaint, an amended com- 
 })laint was served which obviated the irregularity, as the motion 
 was a proceeding already had under § 172 of the Code of Pro- 
 cedure.^^ 
 
 The contrary has been held under the Code of Civil Proced- 
 ure.^* 
 
 -^Breiioort v. Warner, 8 How. Pr. 2 How. Pr. 146; Sharkey v. Morgan, 
 
 321. 14 N. Y. S. R. 940. 
 
 ^-Schiller v. Maltbie, 11 N. Y. Civ. '"^Htanton v. King, 76 N. Y. 585. 
 
 Proc. Rep. 304. "Middletown v. Rondout d 0. R. 
 
 -^Stiles V. Fisher, 3 How. Pr. 52. Co. 43 How. Pr. 481. 
 
 -^Edlefson v. Duryee, 21 Hun, 607, "^Prudden v. Lochport, 40 How. 
 
 59 How. Pr. 326; Boione v. An- Pr. 46; Williams v. Wilkinson, 5 
 
 ihony, 13 How. Pr. 301 ; Brcvoort v. How. Pr. 357 ; Hall v. Huntley, N. 
 
 Warner, 8 How. Pr. 321. Y. Code Rep. N. S. 21, note. 
 
 ''^Fost V. Jenkins, 2 How. Pr. 33; -^Velch v. Preston, 58 How. Pr. 
 
 Cortland Mut. L. Ins. Co. v. Lathrop, 52; Rider v. Bates, 66 How. Pr. 129;
 
 02 TllK 1,A\V OK COSTS IN iNKW YOI.'K. 
 
 //. Order (jraii/lii;/ furor. — W'liciiovor a fuvov is <>i-aiited upon 
 a iiuition, the court in granting it has a right to impose any terms 
 or c-oiiditions whicli are in conformity with the usages of the 
 courts in simihir cases and which tend t<t (U) justice in the ac- 
 tion.''" If the moving party is dissatistied with the terms im- 
 posed, lie need not accept the favor. Where an order is made 
 granting a privilege to the moving party, and costs are allowed 
 to tiie opposing party, the moving party nnist pay costs whether 
 lie avails liimself of the privilege or not; it would be otherwise 
 if the [)ri\ilege were granted upon the condition that he pay 
 costs of the motion.^ ^ 
 
 Motion costs are usually imposed upon one of the parties to 
 the action, but sometimes they are imposed upon the attorney as 
 a punishment for his lack of good faith with the court and oppos- 
 ing connsel.''" Costi? of motion and disbursements were awarded 
 against an attorney who moved upon insufficient facts, and from 
 impi-oper motives to disbar another attorney. '"'■"' 
 
 49. Costs upon allowing- amendment, a. In general. — Costs on 
 l)ermitting an amendment are in the discretion of the court.*** 
 
 The general rule is that in all cases where a party is allowed 
 to amend, he shall be charged with the costs of all proceedings 
 which will be vacated by the amendment.^'' 
 
 The terms usually imposed upon a plaintiff when he moves 
 before trial for ilie privilege of serving an amended complaint, 
 where the amendment is substantial, and not formal, is the pay- 
 ment of the defendant's costs to date, and costs of opposing the 
 motion.'*® 
 
 A>jc York, L. E. <(■ U'. R. Co. v. Car- '"Ef/fjert v. Bnnnett, 4 :Moiitli. L. 
 
 hart, M Hun, 288. Bull. 5: Code Civ. Pioc. § 723. 
 
 ^"Slilcs V. Fifiher, .3 How. Pi-, 'rl. ^'T'o7i Valkctiburgh v. Van Schaick, 
 
 ''^Farmers' Loan & T. Co. v. Bonk- 8 How. Pr. 271. 
 
 ers' d M. Tcleg. Co. 109 N. Y. :',42, •'"Smith v. Savir}, 60 Hun, 311, 30 
 
 16 N. E. 539. Al)l). N. C. 192, 53 N. Y. S. R. 378, 
 
 ■'-Jorflan v. Xatioxul ^7top d- Leath- 23 N. Y. Supp. 568; Goiriug v. L-.rvy, 
 
 rr Bank, 13 Jones & S. 423. 22 N. Y. Civ. Proc. Rep. 10. 43 N. Y. 
 
 "^lie Kelly, 59 N. Y. 595. S. R. 767, 17 N. Y. Supp. 771.
 
 MOTIONS AND AMEM)AiE-\TS. 63 
 
 AVlicrc iho aiiK'iKbneiil is formal, motion costs and such addi 
 tional costs as will reimburse the defendant are usually imposed. 
 
 h. Amendment of complaint during trial. — Where the defend- 
 ant moved to dismiss the complaint because some formal alle- 
 gations wore omitted, plaintiff Avas allowed to amend upon pay- 
 ing $30.^' 
 
 A plaintiff was allowed to amend his complaint by alleging 
 that he claimed as assignee, upon paying the trial fee and dis- 
 bursements.^'* Where the plaintiff was compelled to pay $50.50 
 for withdrawing a juror, he was allowed to amend his complaint 
 by alleging some ])reliminary steps, which did not change the 
 cause of action, without the payment of any more costs abso- 
 lutely,^^ 
 
 In a case where a plaintiff was allowed after the proof was all 
 in, to amend his complaint alleging an express contract so as 
 to proceed upon quantum meruit, the defendant was not allowed 
 any costs, but was allowed to amend a defective offer of judg- 
 ment nunc pro tunc.^^ 
 
 But where the plaintiff" cannot recover upon the theory con- 
 tained in his complaint, and the court, instead of dismissing the 
 complaint at the trial, retains the case in order to allow him to 
 apply at special term for leave to amend his complaint, the 
 special term should impose, as a condition of allowing him to 
 serve an amended complaint, the payment of all costs and dis- 
 bursements subsequent to the service of the complaint.'*^ 
 
 The terms to be imposed upon granting an order on a motion 
 made at special term jimst be fixed by that court, they cannot be 
 sent to the referee who is trying the case to delenuine.'*^ 
 
 "TTVi/Z V. Metropolitan R. Co. 10 *"Fhi)in v. Weffmctyer. 14 N. Y. 
 
 Misc. 72, 24 N. Y. Civ. Proc. Rep. Civ. Proc. Rep. 130, 4 N. Y. Supp. 
 
 85, 1 N. Y. Anno. Cas. 40, 63 N. Y. 188; Hare v. White. 3 How. Pr. 296, 
 
 S. R. 170, 30 X. Y. Supp. 833. 1 N. Y. Code Rep. 70. 
 
 ^Minton v. Eome Benefit 8oc. 16 "Lindblad v. Li/nde. 81 App. Div. 
 
 N. Y. S. R. 1001, 1 N. Y. Supp. 838. 003, 81 N. Y. Supp. 351. 
 
 ^Union Bank v. Matt, 19 How. Pr. "Stanton v. Su-ann, 23 N. Y. We«_^i<. 
 
 267, n Abb. Pr. 42. Dig. 382.
 
 64 THE LAW OF COSTS IX NEW YOIJK. 
 
 c. Amendment of complaint after judgment. — The terms im- 
 posed upon the plaintiff who desires to amend his complaint so 
 as to demand damages equal to the verdict should be the costs of 
 the trial, the relinquishing of the verdict, and consenting to a 
 new trial."*^ Tlie same rule obtains under the Code of Civil Pro- 
 cedure,^^ notwithstanding § 1207. 
 
 d. Amendment of complaint after appeal. — ^AVhere after an 
 adjudication in the appellate court that he cannot recover upon 
 tlie cause of action contained in the complaint, the plaintifl:' 
 moves for leave to serve an amended complaint which mil in- 
 volve other issues than those set forth in the original complaint, 
 such permission should be granted only on condition of his pay- 
 ing the defendant's costs up to date, including costs in the ap- 
 pellate court, awarded to the defendant to abide the event."*'^ 
 Sometimes costs of opposing the motion in addition have been 
 granted.'*" But the plaintiff will not be compelled to pay the 
 defendant the amount of an extra allowance granted to the plain- 
 tiff.^^ Double costs will not be charged where the defendant is 
 a public officer, unless they are mentioned in the order. '^^ Xor 
 will tlie fact that the plaintiff is suing in forma pauperis relieve 
 
 *^Coulter V. American Merchants' Y. S. R. 603, 20 N. Y. Supp. 733; 
 
 Union Exp. Co. 5 Lans. 67 ; Corning Salters v. Genin, 8 Abb. Pr. 253, 3 
 
 V. Corning, 6 N. Y. 97; Dox v. Dey, Bosw. 639; Walton v. Mather, 10 
 
 3 Wend. 356; Curtiss v. Laicrence, Misc. 216, 31 N. Y. Supp. Ill; Ire- 
 
 17 Johns. 111. land v. Metropolitan Elev. R. Co. 8 
 
 **Pharis v. Gere, 31 Hun, 443. N. Y. S. R. 127; Satterlee v. Cler- 
 
 *'Bates V. Salt Springs Nat. Bank, mont, N. Y. Daily Reg. May 26, 
 
 43 App. Div. 321, 60 N. Y. Supp. 1883; Nanetty v. Naylor, 2 Month. 
 
 313; McEntyre v. Tucker, 40 App. L. Bull. 65, 66; yicoll v. Lloyd, 33 
 
 Div. 444, 29 N. Y. Civ. Proc. Rep. Misc. 775, 67 N. Y. Supp. 947 ; Thile- 
 
 185, 58 N. Y. Supp. 146; Fox v. Da- mann v. New York, 71 App. Div. 
 
 vidson, 40 App. Div. 620, 58 N. Y. 595, 76 N. Y. Supp. 132. 
 
 Supp. 147; Cramer v. Lovejoy, 41 *^Troy & B. R. Co. v. Tibbits, 11 
 
 Hun, 581; Brady v. Cassidy, 37 X. How. Pr. 168. 
 
 Y. S. R. 501, 13 N. Y. Supp. 824; "Troy d- B. R. Co. v. Tibbits, 11 
 
 Frisbie v. Averell, 87 Hun, 217, 33 How. Pr. 168. 
 
 N. Y. Supp. 1021; Eighmie v. Tay- ^Saratoga & W. R. Co. v. McCoy, 
 
 lor, 23 N. Y. Week. r)ig. 429; Mc- 7 How. Pr. 190. 
 
 Grane v. New York, 19 How. Pr. 144; 
 
 Bowen v. Sweeney, 66 Hun, 42, 49 N.
 
 MOTIONS AND AMENDMENTS. 65 
 
 liim from the general rule. In such a case, the order may pro- 
 vide that the defendant's costs shall be deducted from any re- 
 •covery obtained by tlie plaintiff.*^ 
 
 Where a plaintiff was allowed to amend his complaint to ob- 
 viate some formal defects pointed out by the court of appeals, 
 and the defendant was allowed to set up a new equitable defense 
 in his answer, the terms imposed upon the plaintiff were the pay- 
 ment of the costs in the court of appeals, the other costs were 
 ordered to abide the event.^*^ 
 
 Where a father sued the defendant for harboring his son and 
 depriving him of his services, and the verdict was set aside, he 
 was allowed to amend his complaint so as to sue for wages 
 ■earned, upon paying trial fee $30 and $10 costs of motion.^^ 
 
 e. Amendment of answer. — A defendant will be allowed to 
 amend his answer after a reversal by the appellate court, and the 
 direction of a new trial, so as to obviate the aefect pointed out by 
 tJje appellate court. The terms usually imposed are the pay- 
 ment of all costs for proceedings which will be rendered nuga- 
 toi-y by the amendment- which is all the costs after notice of 
 trial. This is so although no costs were awarded upon the trial 
 or upon appeal. The trial has been had and the appeal taken, 
 
 and the plaintiff should not pay for the mistake of the defend- 
 ant.^2 
 
 In a proper case the plaintiff should also have the privilege of 
 discontinuing without costs, after the amended answer is served 
 and costs therefor are paid. Sometimes all tlie costs of the action 
 are required to be paid for the privilege of amending. '^^ 
 
 *^Coyle V. Third Ave. R. Co. 19 ^-Rodgers v. Clement, 58 App. Div. 
 
 Misc. 345, 43 N. Y. Supp. 499. 54, 68 N. Y. Supp. 594; GuUuno v. 
 
 ^"Tookerv. Arnoiix, 10 N. Y. Week. Whitenack, 3 Misc. 54, 51 N. Y. S. 
 
 Dig. 132, 1 Month. L. Bull. 54. E. 768, 22 N. Y. Supp. 560. 
 
 ^^Hopff V. United States Baking ^^Tradesmen's Nat. Bank v. Curtis, 
 
 Co. 48 N. Y. S. R. 729, 21 N. Y. Supp. 63 App. Div. 14. 71 N. Y. Supp. 414. 
 589. 
 
 COSTS 5.
 
 66 THE LAW OF COSTS IN NEW YORK. 
 
 The court sometimes only imposes a portion of the costs of 
 the appeal and the costs of the trial court and costs of motion."^* 
 
 The city court of jSTew York and the New York superior court 
 have held that, where the reversal was with costs to abide the 
 event, the defendant should be allowed to sen^e an amended 
 answer upon the payment of all costs to date,^^ but where the 
 judgment was reversed with costs to the appellant to abide the 
 event, the defendant should be required to pay as a condition of 
 serving an amended answer all the costs awarded to the appel- 
 lant upon the appeal, and the costs of the motion.^^ 
 
 Payment of an additional allowance made to the plaintiff in 
 the trial court should not be imposed as a condition of amend- 
 ment. The judgment upon which the additional allowance was 
 made is gone, and the extra allowance falls with it. If an addi- 
 tional allowance was proper on the first trial, it would probably 
 be proper on the second trial. In that case there would be two 
 additional allowances in one action. The additional allowance 
 is supposed to be granted only on the final judgment.^'^ 
 
 Where the defendant was the appellant and succeeded upon 
 the appeal, and, upon the new trial, facts developed which made 
 it seem best to the defendant to serve an amended answer, the 
 court allowed him to amend upon the payment of a lump sum to 
 be applied upon the taxable costs and the disbursements incurred 
 by the plaintiff. ^^ 
 
 A defendant was allowed to serve an amended answer upon 
 the payment of motion costs only, because the amendment would 
 not change the issues, and would not benefit the defendant or 
 compel the plaintiff' to serve an amended complaint."^ 
 
 "Wardlaw v. New York, 30 Abb. ^^Wardlaio v. New York, 30 Abb. 
 
 N. C. 129, 23 N. Y. Supp. 669. N. C. 129, 23 N. Y. Supp. 669. 
 
 ^^Alexandcr Lumber Co. v. Abra- ^Va7i Allati v. Gordon, 92 Hun, 
 
 hams, 20 IMisc. 674, 46 N. Y. Supp. 500, 72 N. Y. S. R. 91, 36 X. Y. Supp. 
 
 538; Walton v. Mather, 10 Misc. 216, 987. 
 
 31 N. Y. Supp. 111. ^"Broicn v. May, 17 Abb. N. C. 208, 
 
 '^Alexander Lumber Co. v. Abra- 23 N. Y. Week. Dig. 480. 
 hams, 20 Misc. 674, 46 N. Y. Supp. 
 538; Ireland v. Metropolitan Elev, 
 R. Co. 8 N. Y. S. R. 127.
 
 MOTIONS AND AMENDMENTS. 67 
 
 The attorney for the defendant, upon preparing his case for 
 trial, discovered that the information given him from which he 
 drew the answer was incorrect. The defendant was allowed to 
 amend upon paying costs after notice and before trial and mo- 
 tion costs.^° 
 
 "\^Tiere a case had been on the day calendar for some time and 
 the defendant has delayed the trial for various reasons, the de- 
 fendant was allowed to serve an amended answer changing the 
 defense upon paying all costs.®^ 
 
 /. Serving supplemental answer. — In an action for assault 
 and battery, the defendant was allowed to set up the recovery 
 and satisfaction of judgment against another for the same cause 
 of action, upon the payment of $10 costs of motion and any tax- 
 able disbursement incurred in the untried action, and not in- 
 cluded in the other, under § 3231 of the Code of Civil Pro- 
 cedure.^^ 
 
 In an equity action, relief is given according to the facts as 
 they exist at the time of the trial. The defendant in such an 
 action should be allowed to serve a suj^plemental answer setting 
 up facts that have arisen since the serving of his answer, but 
 when he is guilty of laches in not moving until the cause is 
 moved for trial, he should pay the costs of the trial. The further 
 conditions were imposed that he should waive all costs awarded 
 on the former proceedings in the event that he should finally 
 succeed, and that the plaintiff might discontinue witliout costs if 
 he so elected.^^ A defendant may be allowed to set up in a sup- 
 plemental answer facts that existed at tlie time that the original 
 answer was served, but he should be required to pay costs to date 
 and to stipulate that the plaintiff may discontinue vdthout 
 costs.^* 
 
 ^"Peterson v. Felt, 61 App. Div. '^Uaffey v. Lynch, 46 App. Div. 
 
 176, 70 N. Y. Supp. 440. IGO, 61 N. Y. Supp. 736. 
 
 ^^Trihune Asso. v. Smith, 8 Jones '^Preservaline Mfg. Co. v. Selling, 
 
 & S. 99. 75 App. Div. 474, 78 N. Y. Supp. 299. 
 
 "'Roberts v. Warren, 3 How. Pr. 
 N. S. 524.
 
 08 THE LAW OF COSTS IN NEW YORK. 
 
 g. Construction of order. — A plaiiitilf moved that tlie defend- 
 ant make his answer more definite and certain. The motion 
 was granted, and the defendant was ordered to pay $10 costs of 
 motion. It was held that he could serve his answer without pay- 
 ing the costs imposed by the order, as that was not a condition 
 precedent. To have that effect the order must provide that it 
 be "on payment, etc.," or some equivalent expression.^^ 
 
 Where an order allows the defendant to serve an amended 
 answer upon payiug "costs of the action to the present time/' 
 this means such costs as would go to the plaintiff in case there 
 had been a termination favorable to him at the time of the order 
 giving the defendant leave to amend.^'*"' 
 
 h. lietaxing of costs paid as condition of amending. — There 
 is a contradiction of decisions on the question of the right of 
 either party to again tax the costs that have once been paid, for 
 Jhe granting of some privilege, such as serving an amended 
 pleading. The majority of cases, however, hold that the costs 
 once paid as a condition of amending the pleadings cannot be 
 again taxed by either party, that the order permitting the amend- 
 ment is an adjudication that the items covered by it belong to 
 the party named in the order.^'^ 
 
 There are cases which hold that where a party pays costs for 
 the privilege of amending, and he is defeated upon the issue 
 
 ^Stiirtevant v. Fairman, 4 Sandf. Schmidt v. Mackie, 9 N. Y. Week. 
 
 (i74- Re Amsterdam Water Comrs. Dig. 288; Skinner v. White, 69 Ilun, 
 
 30 Hun, 534. 127, 52 N. Y. S. R. 737, 23 N. Y. 
 
 ^^Dawson v. Burnham, 2 Month L. Supp. 384; Seneca Nation of Indians 
 
 Bull. 32; llavemeyer v. Havemeyer, v. llaicley, 32 Hun, 288; Seymour v. 
 
 12 Jones «Sc S. 172. Ashendcn, 13 N. Y. Civ. Proc. Rep. 
 
 ''Woolsey v. Ellenville, 84 Hun, 255; Provost v. Farrell, 13 Hun, 
 
 236, 65 N. Y. S. R. 746, 32 N. Y. 303; Cahill v. New York, 50 App. 
 
 Supp. 546; Marar v. Gross, 2 Misc. Div. 276, 7 N. Y. Anno. Cas. 320, 63 
 
 500, 23 N. Y. Civ. Proc. Rep. 97, 51 N, Y. Supp. 1006. 
 N. Y. S. R. 92, 22 N. Y. Supp. 387;
 
 MOTIONS AND AMENDMENTS. 69 
 
 raised by the amended peading, his adversary can again tax the 
 costs that were paid for the privilege of amending.*^* 
 
 There are cases which hold that where a party pays costs for 
 the privilege of amending and wins upon the issue raised by 
 tPie amended pleading, he can tax the costs which he paid for the 
 privilege of amending. "^^ There doubtless will never be a uni- 
 formity of decisions on this point because every court has a 
 right to interpret its own order/" and each court has a right to 
 say what it means, when it uses certain words. 
 
 50. Costs on change of parties. — A motion to revive and con- 
 tinue an action in the name of the administrator of the deceased 
 plaintiff, should, where the action is meritorious, be granted, and 
 the plaintiff should not be required to give security for costs.'^' 
 'Nor should costs of the motion be imposed upon the defendant. "^^ 
 
 Terms should not be imposed upon the plaintiff in bringing 
 in a new defendant by amendment, where the necessity of so 
 doing was shown by an amended answer the right to serve which 
 was granted as a favor. '^^ 
 
 Where an order substitutes another defendant in place of the 
 present defendant, with costs to the present time, the question 
 whether such costs should have been allowed can be raised only 
 by appeal from that order. It cannot be raised upon an appeal 
 from the taxation of such costs.'^^ 
 
 51. Motions on the pleadings. a. Striking out scandalous 
 pleadings. — No costs will be allowed where the court of its own 
 motion strikes out as scandalous allegations contained in the 
 
 ^Bon-en v. Sweeney, 66 Hun, 42, ^^Collins v. Jewell, 3 Misc. 341, 23 
 
 49 N. Y. S. R. 603, 20 N. Y. Supp. N. Y. Civ. Proc. Rep. 153, 51 N. Y. 
 
 733; Cohn v. Husson, 13 Daly, 334; S. R. 927, 22 N. Y. Supp. 716. 
 
 Donovan v. Board of Education, 1 ''-MeeJcin v. Brooklyn Heights R. 
 
 X. Y. Civ. Proc. Rep. 311. Co. 51 App. Div. 1, 64 N. Y. Supp. 
 
 "^Dovale v. Ackerman, 24 Abb. N. 291. 
 
 C. 214, 11 N. Y. Supp. 5; Havemeyer ^^People v. Brooklyn, 6 App. Div. 
 
 V. Havemeyer, 16 Jones & S. 104. 202, 39 N. Y. Supp. 809. 
 
 ''°Seymour v. Ashenden, 13 N. Y. '^Wehle v. Bowery Sav. Bunk, 8 
 
 Civ. Proc. Rep. 255; Havemeyer V. Jones & S. IGl. 
 Havemeyer, 10 Jones & S. 104.
 
 TO THE LAW OF COSTS IN NEW YORK. 
 
 pleadings. If a motion should be made for that purpose, costs 
 would be granted against the attorney personallj."^^ 
 
 h. Striking out pleadings as punishment. — The court, upon a 
 motion to strike out a party's pleadings on account of his refusal 
 to answer questions, may grant less than is asked in the moving 
 papers, and still grant costs of the motion to the moving jjarty.'^'^' 
 
 The court may make the same disposition of a motion to 
 strike out matter as redundant.'^^ 
 
 There is no appeal from such an order granting costs, as the 
 order does not involve the merits of the action, nor affect a sub- 
 stantial right. '^^ Wliere the plaintiff in an action against a cor- 
 poration receives a collusive answer from a part of the trustees 
 with knowledge that they have been removed, such answer will 
 be stricken out upon a motion of the remaining trustees, with 
 costs against the plaintiff. '^^ Upon the granting of an order 
 setting aside the service of a summons and complaint for want 
 of jurisdiction, the defendant is entitled to motion costs only, 
 and not costs of the action. ^° 
 
 c. Motion for judgment on frivolous pleading. — Costs as upon 
 a motion may be awarded upon an ajoplication for judgment, on 
 account of the frivolousness of a demurrer, answer, or reply.®^ 
 Where tlie defendant admitted that the plaintiff' was entitled to 
 the relief demanded and alleged that the reason why he posi- 
 tively refused to execute the papers when presented to him was 
 that he did not understand their force, he is properly chargeable 
 with costs on a motion to strike out his answer as frivolous.^^ 
 
 ^^People ex rel. Allen v. Murray, ^"Bcrnhard v. Rice, 61 Hun, 184, 
 
 23 N. Y. Civ. Proc. Rep. 53, 22 X. 21 N. Y. Civ. Proc. Rep. 331, 40 N. 
 
 Y. Supp. 1051. Y. S. R. 570, 15 N. Y. Supp. 936; 
 
 '"Davibmann v. Butterfield, 2 Hun, Ex parte Benson, 6 Cow. 592; People 
 
 284. 4 Thomp. & C. 542. ex rel. Mallard v. Madison County 
 
 ''U)ennison v. Dennison, 9 How. Pr. Judges, 7 Cow. 423. 
 
 246. -'' Code Civ. Proc. § 537 ; Wesley v. 
 
 "jyennison v. Dennison, 9 How. Pr. Bennett, 6 Abb. Pr. 12. 
 
 246. ""-Deerman v. Smith, 29 N. Y. S. R. 
 
 '"'Holy Trinity Church v. St. 036, 9 N. Y. Supp. 91. 
 Stephen's Church, 38 N. Y. S. R. 120, 
 15 N. Y. Supp. 117.
 
 MOTIOJSrS AND AMENDMENTS. 71 
 
 The plaintiff is entitled upon a judgment gi-anted upon sucK an 
 iipplication to costs as upon default, and costs allowed upon the 
 application. 
 
 52. Dismissal for neglect to prosecute. — Where a complaint is 
 -dismissed under § 822 of the Code of Civil Procedure for fail- 
 ure to prosecute, judgment will be entered for the de- 
 fendant with costs up to that time, and costs of the motion if 
 granted.^" The defendant is not entitled to costs "after notice 
 of trial" unless he filed a note of issue ; serving a notice of trial 
 is not sufficient.^"* The complaint of an infant who prosecutes an 
 action without having a guardian appointed should be dismissed 
 without costs, and the plaintiff allowed to file the necessary 
 papers nunc pro tunc.^^ 
 
 Upon a motion by a defendant to dismiss the plaintiff's com- 
 plaint because he had not served other defendants, the plaintiff 
 will not be compelled to pay disbursements which he did not 
 >cause the defendant, as a condition of having his action retained. 
 He can be compelled to paj^ motion costs.^^ 
 
 53. Motion for bill of particulars. — Upon a motion for a bill 
 of particulars, the moving party is usually given costs in case 
 he wholly succeeds, but where he is only partly successful, the 
 costs should be made to abide the result of the action.^''' 
 
 54. Motion for bill of discovery.— Usually costs upon a motion 
 for discovery and inspection should, if the order is granted, be 
 allowed to the moving party to abide the event.^^ But where the 
 opposing party imreasonably refuses to exhibit a document 
 Avhich his adversary is entitled to see, costs will be imposed ab- 
 solutely.s^ 
 
 ^^Boicles V. Van Home, 11 Abb. Pr. "Williams v. Folsom, 37 N. Y. S. 
 
 84, 19 How. Pr. 346. K. 635, 13 N. Y. Supp. 712. 
 
 ^'Gilrop V. Stampfer, 30 Misc. 830, ''McGrath v. Alger. 40 App. Div. 
 
 •61 N. Y. Supp. 924. Contra, Roberts 010, 57 N. Y. Supp. 519. 
 
 V. Aden, 2 N. Y. City Ct. Rep. 302. ^"Seligman v. Beal Estate Trust 
 
 ^Hmlioff V. Wurtz, 9 N. Y. Civ. Co. 20 Abb. N. C. 210. 
 Proc. Rep. 48. 
 
 ^"Geoghegan v. Lucliow, 75 App. 
 Div. 581, 78 N. Y. Supp. 278.
 
 72 THE LAW OF COSTS IN NEW YOKK. 
 
 55. Change of venue. a. Convenience of witnesses. — Costs- 
 of motion to change the place of trial for the convenience of wit- 
 nesses is usually made to abide the event, but where the motion 
 is denied owing to defects in the moving papers, costs are usu- 
 ally given absolutely against the moving party, especially where 
 leave is granted to renew the motion on other papers.^" 
 
 h. Venue laid in wrong county. — It is the duty of the plaintiff 
 to change the place of trial to the proper county by amendment,, 
 or order where the venue has been laid in the wrong county, and 
 the defendant has demanded that the place of trial be changed 
 to the proper county. If the plaintiff does not make the change 
 after such a demand, he should be charged with costs of the 
 motion to change the place of trial to the proper county.^^ 
 
 The plaintiff will be allowed costs of appearing upon a motion 
 to change the place of trial, where the defendant demanded costs 
 in his notice of motion, and the plaintiff does not oppose the 
 change, but appears so that costs will not be cliarged against 
 him.^" 
 
 56. Opening defaults. a. In general. — Costs upon a motion 
 to open a default should not be granted with costs to abide the- 
 event, as it holds out a premium to the defendant in case he wins 
 on the trial. ^" 
 
 Costs of only one motion and the disbursements, including-^ 
 referee's fees, can be imposed upon granting a motion by the de- 
 fendant to open a default, when the question of the time of serv- 
 ing the complaint is sent to a referee to ascertain facts.^^ 
 
 It is proper to impose as a condition for opening a judgment 
 and allowing a defendant to come in and defend, the costs of the 
 
 ^McPhail V. Ridout, 83 Hun, 446, ^"Richardson v. Sun Printing & 
 64 N. Y. S. R. 661, 31 N. Y. Supp. Pub. Asso. 20 App. Div. 329, 46 N. 
 0.34. Y. Supp. 814. 
 
 "^Huhhard v. yaiional Protection ^*Martin v. Hodges, 45 Hun, 38. 
 7ns. Co. 11 How. Pr. 149. 
 
 "-Phelps V. Wasson, 2 How. Pr. 
 126.
 
 MOTIONS AND AMENDMENTS. Y3 
 
 trial, and ''for all proceedings after notice and before trial," as 
 the latter costs are supposed to be compensation for serving sub- 
 poenas as well as for counsel for preparing brief.^^ 
 
 The payment of costs which cannot be charged against a de- 
 fendant or his property, and which are a nullity, should not be 
 imposed as a condition for allowing a defendant to come in and 
 defend.^^ 
 
 Where the plaintiff obtained an order permiting him to serve 
 a reply, but instead of serving it he noticed the case for trial, 
 when the defendant moved for judgment for failure to reply, 
 the plaintiff was allowed to serve his reply upon paying the $10 
 costs of defendant's motion, first ordered, — $10 temi fees, and 
 $10 costs of second motion.^" 
 
 The court will allow a defendant in default to answer and set 
 up a settlement of the claim in suit, only upon j^ayment of the 
 costs and with the privilege to the plaintiff, after receiving such 
 payment, to discontinue without costs.'^^'' 
 
 Sometimes more onerous terms are imposed. A judgment by 
 default taken by the defendant upon a counterclaim, for failure 
 to reply, was opened upon the plaintiff paying motion costs, trial 
 fee, giving bond in the sum of $250 to pay costs, if defeated, 
 and the judgment on the counterclaim was allowed to stand as 
 security.®'"^ j\lore onerous terms will be imposed upon opening 
 a default where the court seeks to discourage a custom that inter- 
 feres with the business of the court, or there is a serious question 
 as to the good faith of the attorney. 
 
 h. On the trial. — A motion to open a default taken by the 
 plaintiff was granted upon the payment by the defendant of all 
 
 ^Wan Loan v. Squires, 51 Hun, '"^Gallison v. Buicalc, 24 N. Y. S. 
 360, 21 N. Y. S. R. 526, 4 N. Y. Supp. R. 318, 3 N. Y. Rupp. 802. 
 371. ""Ponwrrs v. Duncan, 25 Abb. N. 
 
 ^Buckingham v. Miiior, 18 How. C. 58, 11 N. Y. Supp. 380. 
 Pr. 287. 
 
 °''Montecarbole v. Mundel, 16 How. 
 Pi. 141,
 
 74 THE LAW OF COSTS IN NEW YOKE. 
 
 the costs taxed in the judgment, where both parties answered 
 ''ready" on tlie call of the calendar, but the defendant did not 
 attend ready for trial, because it had been informed that a prior 
 case would be tried.^°° 
 
 The court imposed as condition of opening a default, the pay- 
 ment of motion costs, trial fee, tenii fee, and disbursements, and 
 a stipulation that no application for adjournment should be 
 made to postpone the case when reached, in a case where the at- 
 torney had a case postponed on account of his illness, but he tried 
 a case in another court that day, and on the next day was engaged 
 in the trial of still another case, when his default was taken. ^"^^ 
 
 A defendant will not be allowed to open a default until he has 
 paid the costs incurred by his opponent up to that time in op- 
 posing his unsuccessful attempt to set aside the judgment. •^'^^ 
 
 Where an inquest is opened upon terms and an amended 
 pleading is allowed to be served, the moving party has a right to 
 pay the costs imj^osed within the time limited by the statute 
 (Code Civ. Proc. § 779) unless the order provides a different 
 time.^°^ 
 
 It lies in the discretion of the trial judge to allow a default 
 to be opened without the payment of costs, where the moving 
 party has been defeated upon a previous motion to open the de- 
 fault but was allowed to renew the motion upon the payment of 
 costs.^o* 
 
 The sum of $192.98 was held to be an excessive amount to be 
 imposed upon the opening of a default, and was reduced to 
 $85.85.1°^ 
 
 In another case where a default had been taken after the case 
 
 '"^Goodness v. Metropolitan Street 373, 71 N. Y. S. R. 682, 36 N. Y. 
 
 K. Co. 49 App. Div. 76, 63 N. Y. Supp. 752. 
 
 Supp. 476. ^"^Strntisly v. Weichman, 24 Misc. 
 
 '"'MuUer v. Post, 33 N. Y. S. R. 767, 53 N. Y. Supp. 549. 
 
 992, 11 N. Y. Supp. 615. ^"^Jones v. Tienken, 10 N. Y. Week 
 
 ^"■Hzerlip v. Bciier, 22 Misc. 351, 49 Dig. 219. 
 N. Y. Supp. 300. 
 
 ^"Wan Ingen v. Hilton, 91 Hun,
 
 MOTIOKS AND AMENDMENTS. T5 
 
 had been placed on the day calendar, the default was opened 
 upon the payment of term fees and costs of motion. ^^"^ 
 
 Where a defendant was told by a codefendant that a part of 
 the note sued on had been paid and that the balance would be 
 paid before judgment could be taken, the default was opened, but 
 the order provided that if the defendant should recover it should 
 be without costs after notice of trial, and further, that the plain- 
 tiff might discontinue without paying costs.^^'^ 
 
 Where upon a motion by the plaintiff to substitute a new de- 
 fendant in place of the present defendant, a reference had been 
 ordered to ascertain the facts, and the plaintiff had defaulted 
 upon the reference, whereupon the defendant had paid the ref- 
 eree's fees and taken up his report, the plaintiff was allowed to 
 open the default upon the payment to the defendant of the 
 amount he had paid the referee ($10), costs of motion, and $25 
 in addition thereto.^°^ 
 
 jSTo costs will be allowed or imposed upon the opening of a de- 
 fault where neither party is at fault, as in a case where the an- 
 swer was mailed at 11 p. m. on the last day to answer, and the 
 plaintiff entered up judgment at noon the next day, no 
 answer having been then received,-^ "^ or where the defend- 
 ant took default, not knowdng that his clerk had stipulated 
 that neither party should take a default.^^*' Where the plain- 
 tiff took judgment by default, which was paid, and he then dis- 
 covered that he had not demanded the amount that he should, 
 he was allowed to vacate the judgment by returning the amount 
 received and paying to the defendant the costs of trial and costs 
 of appeal from the order which denied him relief.-^ ^^ 
 
 ^'^Anderson v. Jolwson, 1 Sandf. ^""Gillespie v. Satterlee, 18 Misc. 
 
 736, 1 N. Y. Code Rep. 94; Richmond 606, 42 N. Y. Supp. 463. 
 
 V. Russell, 1 N. Y. Code Rep. 8.5. ^'"Brady v. Martin, 19 N. Y. Civ. 
 
 ""Smith V. Weston, 81 Hun, 87, 24 Proc. Rep. 134, 33 N. Y. S. R. 425, 
 
 N. Y. Civ. Proc. Rep. 141, 62 N. Y. 11 N. Y. Supp. 424. 
 
 S. R. 623, 30 N. Y. Supp. 649. '^'McCredy v. Woodcocl; 41 App. 
 
 ^'^Weinherger v. Metropolitan Trac- Div. 526, 58 N. Y. Supp. 656. 
 lion Co. 63 App. Div. 240, 71 N. Y. 
 Supp. 289.
 
 76 THE LAW or COSTS IN NEW YORK. 
 
 c. Waiver of costs granted. — Where a party is granted costs 
 upon a motion by the opjiosite party to open a default, and ho 
 refuses them when they are tendered to him, he waives them; 
 he cannot offset costs nor insist upon a stay of proceedings until 
 they are paid. He can collect them only by execution.^ ^^ 
 
 d. Costs to abide event. — Where costs are given upon the 
 opening of a default to one party to abide the event, neither 
 Ijarty is entitled to them unless, upon the final judgment, he be- 
 comes entitled to the general costs of the action.^ ^^. 
 
 e. Costs to moving party. — Costs of motion will be granted to 
 the party moving to open a default, where the judgment has been 
 entered irregularly, ^^^ or where the party has assumed tO' decide 
 that his opponent has not a right to serve a certain pleading, and 
 treats it as a nullity, when that question should be decided by the 
 court. -'-^^ 
 
 /. Default on appeal. — A plaintiff was allowed to open a de- 
 fault upon an appeal and serve a case upon the condition that 
 he give security for costs on appeal. '-^° 
 
 ^'■■Kiefer v. Grand Trunk R. Co., ^^'Hpencer v. TooJcer, 12 Abb. Pr. 
 
 37 N. Y. S. R. 306, 13 N. Y. Supp. 353, 21 How. Pr. 333. 
 
 860. ^^'^McGillivroy v. Standard Oil Co. 
 
 ^^''New V. Anthony, 4 Hun, 52, 6 26 N. Y. Week. Dig. 108, 6 N. Y. S. 
 
 Thomp. & C. 243. R. 868. 
 
 "*Gilniartin v. Smith, 4 Saiidf. 
 ri84.
 
 CHAPTER V. 
 
 COSTS UPON A DISCONTINUANCE. 
 
 57. In general. 
 
 5S. Excuse for discontinuance. 
 
 59. How order obtained. 
 
 60. Two bills of costs. 
 
 61. Eights of defendant. 
 
 (52. When a trial fee is allowed. 
 
 63. Discontinuance in equity actions. 
 
 64. Discontinuance when a receiver has been appointed or an injunction 
 
 granted. 
 
 65. Discontinuance after appeal. 
 
 66. Additional allowance upon a discontinuance. 
 
 67. Discontinuance in special proceedings. 
 
 68. Refusal of plaintiff to accept terms of discontinuance. 
 
 69. Protection of attorney iiJ)on a discontinuance. 
 
 70. Order to be entered upon discontinuance. 
 
 57. In general. — Ordinarily, a suitor has a right to discon- 
 tinue any action or proceeding commenced bv him, and his rea- 
 sons for so doing are of no concern to the court. He has the same 
 right to discontinue that he has of submitting to a noijsuit at 
 the trial.^ Where substantial rights of other parties have ac- 
 crued or injustice will be done, the court has a discretion to re- 
 fuse to allow a discontinuance, but where there are no such facts, 
 and nothing appears to show a violation of a right or interest of 
 the adverse party, the plaintiff may discontinue, and a refusal 
 of leave to discontinue becomes merely arbitrary and without 
 any basis upon which discretion can exist.^ The same rule 
 applies to actions in equity and to actions at law.^ The order 
 of discontinuance may be obtained ex parte, but the court will 
 
 ^Re Butler, 101 N. Y. 307, 4 N. E. 375; Re Anthonij Street, 20 Wend. 
 518. 618, 32 Am. Dec. 608. 
 
 'Re Butler, 101 N. Y. 307, 4 N. E. ^Cuminings v. Bennett, 8 Faige, 81. 
 518; Carleton v. Darcy, 75 N. Y. 
 
 77
 
 78 THE LAW OF COSTS IN NEW YOliK. 
 
 reopen such an order and make snch an order as the facts require 
 upon tlie application of the defendant.* 
 
 An order of discontinuance is properly refused where a coun- 
 terclaim, set up by the defendant, will be barred by the statute 
 of limitations if the action is discontinued,^ or where the plain- 
 tiff has agreed to brini;,- an action for the benefit of others simi- 
 larly situated and the discontinuance would leave the other per- 
 sons without redress, because their claims would be barred by 
 the statute of limitations,^ or where the defendant has examined 
 witnesses and their testimony would have to be taken again in 
 any new action. In the last case the plaintiff would be allowed 
 to disci intinue upon stipulating that such evidence might be used 
 in any action subsequently brought upon the same cause of 
 action."* \ plaintiff is also properly refused permission to dis- 
 continue an action in ejectment where he has recovered judg- 
 ment in the action and been put in possession, but the defendant 
 has paid the costs and taken a new trial,^ or where the plaintiff 
 seeks to set up the statute of limitations to the counterclaim set 
 up in the answer, and has been refused that privilege at special 
 term,^ but the mere fact that the defendant has set up a counter- 
 claim is not sufficient to deprive the plaintiff of the right to dis- 
 continue. The defendant must also have some rights in the 
 present action that he would not have in a new action, in order 
 to warrant the court in refusing a discontinuance.-^'' In actions 
 in which the public have a peculiar interest, such as actions for 
 divorce,^ ^ or in actions relating to the opening or closing of 
 highways,^ 2 public policy may demand that the plaintiff try 
 
 *Carleton v. Darcy, 75 N. Y. 375. ^Yelloio Pine Co. v. Lehigh Valley 
 
 '^Van Alen v. Schermerhorn, 14 Creosoting Co. 32 App. Div. 51, 52 
 
 How. Pr. 287. N. Y. Siipp. 281. 
 
 'Ilirshfeld v. Bopp, 5 App. Div. ^"Seaboard d R. R. Co. v. Ward, 
 
 202, 39 N. Y. Supp. 24. IS Barb. 595, 1 Abb. Pr. 46. 
 
 ''Cockle V. Undertcood, 3 Duer, "Winnn/i v. Winans, 124 N. Y. 140, 
 
 676. Contra, Cooke v. Beach, 25 26 X. E. 293. 
 
 How. Pr. 356. "/sc/i?i v. Smith, 62 Hun, 221, 16 
 
 *Carleton v. Darcy, 75 N. Y. 375. N. Y. Supp. 683.
 
 COSTS UPON A DISCONTINUANCE. 79 
 
 out his case, altliongh the defendant would not be injured by a 
 discontinuance. 
 
 The plaintiff will be allowed to discontinue without the pay- 
 ment of any cost to the defendant if he enters his order before 
 the defendant appears in the action. It makes no difference that 
 he has retained an attorney, if he has not appeared in the 
 action. ^^ Obtaining the order and ser^dng■ notice thereof are not 
 sufficient, the order must be entered before appearance.-^^ 
 
 A defendant upon a discontinuance obtained at his request is 
 sometimes ordered to pay the costs of a codefendant whom he 
 has had unnecessarily made a party to the action. ^^ 
 
 In an action at law the plaintiff cannot, without a proper ex- 
 cuse, be allowed to discontinue upon payment of motion costs 
 merely. He must also pay all the costs of the action that have 
 accrued up to the time when he wishes to discontinue. Costs in 
 such an action are not discretionary, but are regulated by stat- 
 ute.^ « 
 
 58. Excuse for discontinuance. — A\Tiere the plaintiff shows a 
 sufficient excuse in the instituting of the action, or the occurrence 
 of circumstances, since the commencement of the action, which 
 equitably entitle him to discontinue, he may be allowed to dis- 
 continue without costs, or only costs of the motion, in the dis- 
 cretion of the court,^' and such discretion cannot be overruled 
 upon appeal, unless the order is arbitrary and there are no facts 
 to justify it.^'^ It has been held a sufficient excuse to allow the 
 
 "Smith V. White, 7 Hill, 520; ^%'laflin v. Robertson, 1 Silv. Sup. 
 
 Averill v. Patterson, 10 N. Y. 500, Ct. 176, 23 K Y. S. R. 305, 6 N. Y. 
 
 10 'H.ow. Vr. 85; K etui a y. Atlas S. S. Supp. 430; Uimberg v. Rogers, 40 
 
 Co. 19 Abb. N. C. 265; Hallett v. Misc. 190, 81 K Y. Supp. 627. 
 
 Ballett, 10 Misc. 304, 24 N. Y. Civ. "Staiger v. Sehultz, 3 Keyes, 614. 
 
 Proc. Rep. 102, 63 N. Y. S. R. 175, "Pefi;/ v. Metropolitan Street R. 
 
 30 N. Y. Supp. 946. Co. 33 Misc. 738, 68 N. Y. Supp. 
 
 ^^Schenck v. Fanclier, 14 How. Pr. 730: Schildwachter \. New York, 12 
 
 95; Weigan v. Held, 3 Abb. Pr. 462; :Misc. 52, 24 N. Y. Civ. Proc. Rep. 
 
 Bedell v. Poicell, 13 Barb. 183. 390, 66 N. Y. S. R. 672, 33 N. Y. 
 
 ^''Richardson v. Thedford, 5 App. Supp. 41. 
 Div. 404, 39 N. Y. Supp. 307.
 
 80 THE LAW OF COSTS IN NEW YORK. 
 
 discontinuance of an action without the payment of full costs, 
 tliat the defendant had obtained a release of the clain'/^ or had 
 obtained a discharge under the insolvent law,^*^ or that, pend- 
 ing the action, had obtained a discharge in bankruj)tcj.^^ 
 
 But where the plaintiff knows of the defendant's discharge 
 and goes on with the action, he will be compelled to pay the de- 
 fendant's costs after the discharge.^- But if it appears that he 
 never had a case against the bankrupt, he will be compelled to 
 pay the costs upon obtaining an order of discontinuance.^^ It 
 is a sufficient excuse to allow the plaintiff to discontinue with- 
 out the payment of costs, in an action by an infant by her 
 guardian ad litem, that he, being required to give security for 
 costs, is unable to do so,^'* or when an action is brought to recover 
 penalties given by statute, and the statute is repealed without 
 any saving clause f'' or the infancy of the defendant is alleged in 
 the answer;-*^ or is proved on the trial ;^^ or in an action brought 
 to abate a nuisance, prosecuted in good faith but upon doubtful 
 grounds, where since the commencement of the action the de- 
 fendant has voluntarily abated the nuisance in part f^ or where 
 the cause of action is against a person of the same name as the 
 defendant, and the motion to discontinue is made as soon as the 
 mistake is discovered f^ or where a person is alleged to be a 
 
 ^^De Barante v. Deyermand, 41 N. "^Hoffman v. Ridley, 4 N. Y. Civ. 
 
 Y. 355, 40 How. Pr. 180. Proc. Rep. 41. 
 
 ^"Staiger v. Schultz, 3 Keyes, 614; "'Cole v. Bose, 65 How. Pr. 520; 
 
 Hart V. Storey, 1 Johns. 143; Her- Gale v. Wells, 7 Hoav. Pr. 191; For- 
 
 chants' Bank v. Moore, 2 Johns. 294; ter v. Jones, 7 How. Pr. 192. 
 
 Honeywell v. Burns, 8 Cow. 121. "''Wellington v. Classon, 9 Abb. Pr. 
 
 -'Hart V. Storey, 1 Johns. 143; 175,- 18 How. Pr> 10; Ex parte IS'el- 
 
 Merchants' Bank v. Moore, 2 Johns, son, 1 Cow. 417; Van Buren v. Fort, 
 
 294; Case v. Belknap, 5 Cow. 422; 4 Wend. 209; Cuyler v. Coats, 10 
 
 Jjafron v. Woram, 5 Kill, 373; Park How. Pr. 141. 
 
 V. Moore, 4 Hill, 592. ■''Butler v. Morris, 1 Bosw. 329. 
 
 "^Ludloic V. Hackett, 18 Johns. -'Lochlin v. Casler, 52 How. Pr. 
 
 252; Merritt v. Arden, 1 Wend. 91; 228. 
 
 St. John V. Hart, 16 How. Pr. 192; -^National Wall Faper Co. v. Sser- 
 
 Smith V. Skinner, 1 How. Pr. 122. Up, 9 App. Div. 206, 41 Supp. 376. 
 
 ^Ludington v. Bell, 13 Jones & S. 
 513.
 
 COSTS UPON A DISCONTINUANCE. 81 
 
 member of a firm against which an action is brought, but the 
 mistake is discovered before the papers are served upon him, 
 but he appears in the action and denies that he is a member of 
 the firm f'^ or where an executor brings a wrong action by mis- 
 take 5"^^ or where the defendant is sued as a trustee and he had 
 resigned the day before the service of the summons but concealed 
 that fact.32 
 
 A plaintiff has been allowed to discontinue an action without 
 ■costs when he had commenced the action under the mistaken 
 impression that under a stipulation between the parties he could 
 introduce upon the trial as evidence certain depositions taken in 
 another action. ^^ 
 
 A merely formal party will not be allowed costs upon the 
 discontinuance of an action by the real parties in interest.^^ But 
 the mere poverty of the plaintiff', or the removal of a cause to a 
 •court where costs are greater, is not a sufficient excuse, because 
 the plaintiff knew the fact of his poverty and the liability of the 
 removal of the cause when the action was commenced, and can 
 continue the action as a poor person if necessary.^^ The 
 plaintiff who has been allowed to sue as a poor person will be 
 -compelled to pay costs upon obtaining an order of discontinu- 
 ance.^*' It is not a sufficient excuse that the court on appeal has 
 declared the law so that a recovery by the plaintiff is hopeless 
 when he knew all the facts when he brought the action. ^'^ 
 ISTor is it a sufficient excuse that the plaintiff has sold the prop- 
 erty which was the subject-matter of the action, since the service 
 
 ^°Walcrhvrjf Leather Mfg. Co. v. ^^Beadlestton v. Alley, 28 N. Y. S. 
 
 Krause, 1 Hilt. 560, 9 Abb. Pr. 175 R. 89, 7 K Y. Siipp. 747. 
 
 note. ^^Petty v. Metropolitan Street R. 
 
 ^'Phoenix v. Hill, 3 Johns. 249; Co. 33 Misc. 738, 68 N. Y. Supp. 730. 
 
 Arnoux Y. titeinhrenner, 1 Paige, 82; ^^Parkinson v. Scott, 5 Misc. 261, 
 
 Purdy V. Purdy, 5 Covr. U;^ Morse 31 Abb. N. C. 44, 25 N. Y. Supp. 102. 
 
 V. McCoy, 4 Cow. 551. ^HJlossey v. Ayers, 63 Hun, 624, 
 
 ^-Smith V. Britt, 8 N. Y. Week. 17 N. Y. Supp. 278; Agar v. Tihhets, 
 
 Di.S. 70. 56 Hun, 272, 18 N. Y. Civ. Proc. Rep. 
 
 '^mUhorne v. Kolle, 2 N. Y. Week. 338, 30 N. Y. S. R. 456, 9 N. Y. Supp. 
 
 Dig. 182. 591. 
 COSTS 6.
 
 82 THE LAW OF COSTS IN NEW YOKK. 
 
 of the summons.^^ But the plaintiff will not be allowed to dis- 
 continue without the payment of costs where he does not show 
 a good excuse and the defendant has been put to the expense of a 
 trial.^^ Nor will he be allowed to amend his complaint and 
 leave out a defendant who has answered without tlie payment 
 of costs.^" 
 
 59. How order obtained. — The plaintiff may obtain an order 
 of discontinuance ex parte, in an action at law, where the answer 
 does not set up a counterclaim, nor an affirmative defense, if the 
 order provides for the payment of costs up to that time to the de- 
 fendant;'^^ or where it sets up a counterclaim and the. time to 
 reply has not expired and that, too, whether the action be one at 
 law or in equity.''^ 
 
 The defendant may by an order granted upon notice have 
 leave to enter judgment of discontinuance, unless the plaintiff 
 consent to withdraw the order of discontinuance.'*^ 
 
 60. Two bills of costs. — The plaintiff will be ordered to pay- 
 two bills of costs upon an order of discontinuance, where there 
 are two defendants and the summons and complaint were served 
 upon them at such an interval of time that it necessitated the 
 serving of two answers f* or when he has brought two actions 
 when he could have obtained the relief sought in one action;*^ 
 or there is a stipulation in three actions that two await the out- 
 
 ^^Lewis V. Germond, 1 Paige, 300. smith v. Sutherland, 4 Abb. Pr. 15,. 
 
 ^^Lat/man v. Neio York Bank Note 1 Hilt. 265; Cohn v. Anathan, 16 N. 
 
 Co. 20 N. Y. Supp. 431. Y. Civ. Proc. Rep. 178, 24 N. Y. S. 
 
 ^"Chase v. Dunham, 1 Paige, 572. R. 295, 4 N. Y. Supp. 97. 
 
 *^Angier v. Eager, 45 App. Div. 32, *Hh-ockett v. Smith, 14 Abb. Pr. 62. 
 
 60 N. Y. Supp. 811; Carleton v. *^Mazet v. Crow, 18 N. Y. Civ. 
 
 Darcy, 75 N. Y. 375; Re Butler, 101 Proc. Rep. 178, 24 Abb. N. C. 372, 31 
 
 N. Y. 307, 4 N. E. 518; ^Vinans v. N. Y. S. R. 972, 10 X. Y. Supp. 743; 
 
 Winans, 124 N. Y. 140, 26 N. E. 293; Walker v. Russell, 7 Abb. Pr. 452 
 
 Walsh V. Walsh, 33 App. Div. 579, note, 16 How. Pr. 91 ; Lindslay v. 
 
 53 N. Y. Supp. 881 ; Cooke v. Beach, Dcafendorf, 43 How. Pr. 90. 
 
 25 How. Pr. 356; Harrington v. *^Lowerre v. Vail, 5 Abb. Pr. 229. 
 T.ihhy, 6 Daly, 259, 2G1 ; Kenna v. 
 Atlas S. S. Co. 19 Abb. N. C. 265. 
 
 *"-Seahoard d R. R. Co. v. Ward, 
 18 Barb. 595, 1 Abb. Pr. 46; Oak-
 
 COSTS UPON A DISCONTINUANCE. 83 
 
 come of tlie third, and the order is made after the third case is 
 decided.^** 
 
 Only one bill of costs will be imposed, as a condition of dis- 
 continuing an action brought against two defendants where they 
 needlessly appeared by separate attorneys, and it appears that the 
 debtor was a corporation, and not a partnership,^'^ where there 
 were many defendants who appeared by two attorneys, and the 
 jjlaintiff could not proceed on account of facts disclosed after 
 the commencement of the action, only one bill of costs was im- 
 posed as a condition of discontinuance.'*'^ Costs to the attorney 
 of the common council of a city will not be allowed upon the dis- 
 continuance of an action against the city and the common coun- 
 cil, where the city attorney should have appeared for both ; but 
 costs will be allowed to any defendant, where his interest de- 
 manded a separate attorney.'*'^ 
 
 61. Rig-hts of defendant. — One of several joint defendants 
 may refuse to accept a discontinuance without costs when his 
 codefendants have settled, but in that case he will be compelled 
 to try the case on the issues already joined.^*^ 
 
 A defendant is entitled to costs upon an order of discontinu- 
 ance where the complaint states that no personal claim is made 
 against him, but no notice to that effect as provided in § 423 of 
 the Code of Civil Procedure is served. The court sometimes al- 
 lows motion costs in addition, and sometimes refuses them.^^ 
 
 62. When a trial fee is allowed. — Although the case is on the 
 day calendar Avhen the plaintiff is allowed to discontinue upon 
 the payment of costs, the defendant cannot tax a trial fee.^^ 
 
 '"Stallman v. Kimherhj, 33 N. Y. ''"Clark v. Wood, 9 Wend. 435. 
 
 S. R. 813, 11 N. Y. Supp. 518. '■"Woldtman v. Goff, 15 N. Y. Civ. 
 
 "Ackroyd v. iS'ewton, 24 Misc. 424, Proc. Rep. 39, 4 N. Y. Supp. 210. 
 
 53 N. Y. Supp. 682. '-"Oelherman v. Rosenhaum, 15 N. 
 
 ^^Exstein v. Eohertson, 1 Silv. Y. Civ. Proe. Rep. 389, 4 N. Y. Supp. 
 
 Sup. Ct. Rep. 169, 17 N. Y. Civ. 210; Sutphcn v. Lash, 10 Hun, 120; 
 
 Proc. Rep. 23, 23 N. Y.. S. R. 1, 6 Lockioood v. Salmon River Paper Co. 
 
 N. Y. Supp. 429. 49 N. Y. S. R. 302, 20 N. Y. Supp. 
 
 ^^nequeinhourg v. Bookstaver, 54 967. 
 Hun, 88, 26 N. Y. S. R. 479, 7 N. Y. 
 Supp. 217.
 
 84 THE LAW OF COSTS IN NEW YORK. 
 
 A trial fee will be allowed where the defendant has moved for 
 a dismissal of the complaint when the case is reached.^^ 
 
 A trial fee will not be allowed where the defendant has settled 
 the case unbeknoMm to his attorney, who places the case on the 
 calendar and takes a default.^^ 
 
 63. Discontinuance in equity actions. — In equity actions the 
 same rule applies as in actions at law, in regard to terms of dis- 
 continuance."^ 
 
 In an action to abate a nuisance a plaintiff was allowed to dis- 
 continue uj)on the payment of motion costs, where the referee 
 refused to send in his report on the ground that he did not know 
 how to decide the question, and the defendant had abated some of 
 the nuisances complained of.°^ An executor who is appointed 
 after the removal of a former executor will not be allowed to 
 discontinue an action without costs when the order removing his 
 predecessor is reversed, if the action could have been brought 
 in his own name.^"^ 
 
 Where the representatives of a deceased plaintiff are unwill 
 ing to proceed in a case, an order of discontinuance Avith costs 
 against the representatives in their representative capacity 
 should be entered.^^ An order of discontinuance will be set aside 
 where a mistake has been made by one party in omitting the 
 stenographer's bill.^^ 
 
 In a partition action where the owners of the property sold 
 the premises, the plaintiff was allowed to discontinue upon pay- 
 ment of motion costs to a defendant who had been made a 
 party at his own request, on the ground that he had a right to 
 
 '^^Lockwood V. Salmon River Paper .53 N. Y. Supp. 682: Cooke v. Beach, 
 
 Co. 49 N. Y. S. E. 302, 20 N. Y. 25 How. Pr. 350. 
 
 Supp. 967; Jones v. Case, 38 How. ^Lochlin v. Caslcr, 52 How. Pr. 
 
 Pr. 349; Ehlcrs v. ^yillis, 63 How. 228. 
 
 Pr. 341. "'Hood v. Hood, 12 Daly, 113. 
 
 '^*PU(ier V. Core, 12 Abl). Pr. 244, ^'Banta v. Marcelhts, 2 Barb. 373. 
 
 21 How. Pr. 155. ''"Adams v. Moore, 22 Misc. 451. 50 
 
 ^Ackroyd v. Hewton, 24 Misc. 424, X. Y. Supp. 718.
 
 COSTS UPON A DISCONTINUA^SICE. 85 
 
 distribute the proceeds of the sale.*''^ But no costs upon discon- 
 tinuance will be allowed to a defendant when it was not neces- 
 sary for him to appear.*^ ^ A\Tiere the plaintiff is allowed to dis- 
 continue upon payment of costs, he will be obliged to pay all 
 costs regularly and in good faith incurred by the defendant 
 after the granting of the order of discontinuance, and before 
 the order is served on the defendant.^^ 
 
 64. Discontinuance when a receiver has been appointed or an 
 injunction granted. — In the order of discontinuance of an action 
 in which a receiver of tlie property in question has been ap- 
 pointed, or temporary injunction granted, there should be a pro- 
 vision that the plaintiff was not entitled to the receiver or the 
 injunction, and a reference to ascertain the damage may be pro- 
 vided in the order ;^^ or the defendant may be left to his pro- 
 ceedings to fix the amount of liability.'^^ 
 
 65. Discontinuance after appeal.— The special term has no 
 power to allow a plaintiff' to discontinue without costs, after the 
 appellate court has reversed a judgment in favor of the plaintiff 
 with costs to abide the event, as such an order would be a sub- 
 stantial modification of the order of reversal. The event pro- 
 vided for in the order of reversal meant the determination of the 
 action either by judgment or discontinuance.''^ 
 
 66. Additional allowance upon a discontinuance. — Uj)on the 
 discontinuance of a difficult and extraordinary case, it is proper 
 to grant an extra allowance in addition to costs as a condition for 
 such leave.'''" This question ^^dll be determined upon the 
 
 ""Woermnn v. Baas, 39 N. Y. S. R. ^"Robins v. Gould, 1 Abb. N. C. 
 
 922, 15 N. Y. Supp. 469. 133; McComh v. Kellogg, 13 N. Y. 
 
 ^'Gallagher v. Egan, 2 Sandf. 742; Civ. Pvoc. Rep. 1.50. 28 N. Y. Week. 
 
 Merchants' Ins. Co. v. Marvin, 1 Dig. 154; Tubbs v. Hall, 12 Abb. Pr. 
 
 Paige, 557. N. S. 237; Damhman v. Schulting, G 
 
 '-Hall V. Lindo, 8 Abb. Pr. 341. Him, 29, 51 How. Pr. 357; Coffln v. 
 
 ^"Sioeetzer v. Smith, 27 N. Y. S. R. Coke, 4 Hun, 61G; Society of Neio 
 
 628, 8 K Y. Supp. 156. York Hospital v. Coe, 15 Hun, 440; 
 
 "'Peet V. Kimball, 58 App. Div. Jaffray v. Goldstone, 62 Hun, 52, 41 
 
 329, 68 N. Y. Supp. 1010. N. Y. S. R. 901, 16 N. Y. Supp. 430; 
 
 '"Tan Wyck v. Baker, 11 Hun. 309. Stallman v. Kimberly, 33 N, Y. S. R.
 
 86 TJIE LAW OF COSTS IN NEW YORK. 
 
 situation of the case at the time of the order of discontinu- 
 ance.'''' 
 
 The court has power to impose an additional allowance as a 
 condition of an order of discontinuance, even if the defendant 
 does not make a motion for an extra allowance.*^^ When a plain- 
 tiff has obtained ex ■parte an order of discontinuance, the de- 
 fendant may, before taxation of costs, move for an additional 
 allowance.''^ But the court has no right to impose a condition 
 that the plaintiff sign a stipulation not to bring another action 
 for the same cause. ^*' 
 
 ' 67. Discontinuance in special proceedings. — The court may 
 grant an order of discontinuance in a special proceeding and 
 may impose as a condition of making such an order the payment 
 of more than taxable costs,'^-^ or nothing at all.'^^ 
 
 68. Refusal of plaintiff to accept terms of discontinuance. — 
 The plaintiff is not bound to accept a discontinuance upon the 
 conditions imposed by the court. His refusal so to do is simply 
 a denial of the motion for discontinuance;"^^ or he may serve a 
 notice that he elects not to discontinue.'^* 
 
 The plaintiff will not be allowed costs of motion upon the 
 granting of his motion for an order discontinuing without costs. 
 When such an order is made it will be considered as inadvert- 
 ently made and should be resettled ;"^ or an appeal will lie from 
 such an order. "^^ 
 
 813, 11 N. Y. Supp. 518; Bright v. '^Re Waverly Water Works Co. 85 
 
 Mihraul-ee d St. P. R. Co. 1 Abb. N. Y. 478; Re White Plains, 65 App. 
 
 N. C. 14; FoUom v. Van Wagner, 7 Div. 417, 72 N. Y. Supp. 1026. 
 
 Lans. 309, 14 Abb. Pr. N. 8. 44; '-Re Wells Avenue Seicer, 46 Hun, 
 
 Brotcn v. Safeguard Ins. Co. 7 Abb. 534, 28 N. Y. Week. Dig. 125. 
 
 Pr. 345. "/?e Waverly Waterworks Co. 85 
 
 ^''Angier v. Eager, 51 App. Div. N. Y. 478. 
 
 171. C4 X. Y. Supp. 692. '^Society of 'Neio York Hospital v. 
 
 '^Jaffray v. Goldstone, 62 Hun, 52, Coe, 15 Hun, 440. 
 
 41 N. Y. S. R. 901. 16 N. Y. Supp. -"'Elliott v. Vermilyea, 28 Misc. 
 
 430. 790, 59 N. Y. Supp. 181. 
 
 ^"Aiigier v. Eager, 51 App. Div. '"^Elliott v. Vermilyea, 27 Misc. 
 
 171, 64 N. Y. Supp. 692. 189, 57 N. Y. Supp. 218. 
 
 '"Kilmer v. Evening Eerald Co. 70 
 App. Div. 291, 75 N. Y. Supp. 243.
 
 COSTS UPON A DISCO]SrTINUANCE. 
 
 87 
 
 Where an action is discontinued without costs, the order en- 
 tered is a kind of final judgment, and all costs theretofore 
 granted in that action are merged in the final judgment. There 
 is then nothing due the defendant in that action.'^'^ 
 
 69. Protection of attorney upon a discontinuance. — The court 
 "will not allow the plaintiif to discontinue where the parties have 
 settled the action collusively for the purpose of defrauding the 
 plaintiff's attorney out of his costs, except upon the payment of 
 the costs to the attorney.''^* 
 
 Where the plaintiff's attorney has been retained upon a con- 
 tingent fee, the court will not allow a discontinuance until he is 
 paid, and in a proper case may order that he be paid taxable 
 costs and an extra allowance. "^^ But where the defendant's at- 
 torney served an answer after he knew that his client had settled 
 the action, the plaintiff will be allowed to discontinue without 
 costs.^*^ 
 
 70. Order to be entered upon discontinuance. — It is the duty 
 of the defendant to have his costs taxed where the discontinu- 
 ance was upon the condition that the plaintiff pay the defend- 
 ant's costs.^-^ Likewise if the appellant elects to discontinue his 
 appeal he must enter an order to that effect and pay the respond- 
 ent his costs. The entry of the order without the payment of 
 costs may be treated as a nullity.^^ The defendant may move to 
 dismiss the complaint, and the respondent to dismiss the appeal, 
 when the costs are not paid.^^ But it is irregular for the de- 
 fendant to enter the order of discontinuance and tax his costs if 
 the costs are not paid.^^ 
 
 '"Michael v. Wenning, 1 X. Y. City Tweed, 5 Hun, 382, Affirmed in 63 
 
 Ct. Rep. 479. " K Y. 202. 
 
 '^Filer v. Eorn, 3 Misc. 624, 52 N. ^-Burnett v. Harl-ness, 4 How. Pr. 
 
 Y. S. R. 266,, 23 N. Y. Supp. 115. 158, 2 N. Y. Code Rep. 100: Morrison 
 
 '"Byron v. Durrie, 6 Abb. N. C. v. Ide, 4 How. Pr. 304. 3 N. Y. Code 
 
 136. Rep. 27. 
 
 ^"Hoicard v. Rilcer, 11 Abb. X. C. ''Buffalo & A. R. Co. v. Johnson, 
 
 113. 42 N. Y. 215. 
 
 ^Angier v. Eager, 51 App. Div. ^Hicls v. Brennan, 10 Abb. Pr. 
 
 171, 64 X. Y. Supp. 692; People v. 304.
 
 88 THE LAW OF COSTS IN NEW YORK. 
 
 \\Tien the costs arc well understood there is no need of having 
 them taxed by the clerk, but the order may recite what costs 
 should be paid as tlio price of the granting of the order of dis- 
 continuance.^^ 
 
 ^Richardson v. Thedford, 5 App. 
 Uiv. 404, 29 M. V. Supp. 307.
 
 CHAPTER VI. 
 
 DELAYING TRIAL AND MOTION FOR A NEW TRJAL. 
 
 71. Withdrawing a juror. 
 
 72. Adjourning trial. 
 
 73. Motion for new trial made without case. 
 
 74. New trial in ejectment actions. 
 
 75. New trial on account of error of jury. 
 
 76. Waiver of right to costs. 
 
 77. New trial on account of error of court. 
 
 78. New trial on account of error of referee. 
 
 79. New trial in justice's court, because the verdict is against the weiglit 
 
 of evidence. 
 
 80. New trial on the ground of newly discovered evidence. 
 
 81. What is included in "Costs of former trial." 
 
 82. Additional allowance upon the first trial. 
 
 83. What items are taxable. 
 
 84. Motion for new trial made on two grounds. 
 
 85. Correction of order. 
 
 86. What courts have power to exercise discretion as to terms of a new trial. 
 
 87. Motion for a new trial made on a case. 
 
 88. Appeal from an order granting new trial. 
 
 71. Withdrawing' a juror.— The terms nsnally imposed npon 
 the party asking to withdraw a juror are the payment of all costs 
 to date. This includes not only disbursements, but also a trial 
 fee.i 
 
 Where a party is allowed to withdraw a juror upon the pay- 
 ment of certain costs within twenty days, and the costs are not 
 paid within that time, the opposite party can have the clerk 
 enter up judgment in his favor, upon proof of the noncompliance 
 with the order.^ 
 
 The costs thus paid cannot be taxed again by either party.^ 
 
 ^Byrne v. Brooldyn City <& N. R. see Hay ward v. Manhaitan It. Co, 
 
 Co. 6 Misc. 6, 58 N. Y. S. R. 121, 52 Hun, 383. 17 N. Y. Civ. Proc. Rep. 
 
 26 N. Y. Supp. 65; Dewey v. Steioart, 155, 24 N. Y. S. R. 357, 5 N. Y. Supp. 
 
 6 How. Pr. 465; Chandler v. Bick- 473. 
 
 nell 5 Cow. 30. ^Byrne v. Brooklyn City d M. R. 
 
 "Hanna v. Dexter, 15 Abb. Pr. 135;
 
 90 THE LAW OF COSTS IN NEW YORK. 
 
 A full bill of costs could be taxed npon a final determination 
 if the order allowing the withdrawal of a juror imposed as a 
 condition the pa^anent of a lump sum or an amount measured 
 by the amount of the costs and disbursements to date.'* 
 
 72. Adjourning trial. — The amount of costs that can be im- 
 posed upon the granting- of an application to adjourn a trial i.3 
 fixed by § 3255 of the Code of Civil Procedure at a sum not ex- 
 ceeding $10, or in the city court of the city of ISTcw York a sum 
 not exceeding $5, besides the fees of witnesses and other taxable 
 disbursements already made and incurred, which are rendered 
 ineffectual by the adjournment. This applies to putting the case 
 over the term, as well as adjourning the case to a later day in the 
 term.^ If the parties cannot agree upon the amount of dis- 
 bursements that must be adjusted by a taxation of those 
 amounts, the same as upon a final determination of the action.''' 
 It is sufficient to show that the party has become obligated to pay 
 the different disbursements claimed, although the payment has 
 not been actually made. It is no answer to a charge for witness 
 fees tliat the witnesses have not attended the trial." The affi- 
 davit used upon the taxation of the costs must show that the ex- 
 pense had been already paid or incurred when the order to post- 
 pone was granted. The affidavit for witness fees must be the 
 same as upon the taxation of costs upon final judgment, and 
 must further show that the fees thus joaid were rendered ineffec- 
 tual by reason of the postponement.^ 
 
 Co. 6 Misc. 6, 58 N. Y. S. R. 121, 26 Kennedy v. Wood, 54 Hun, 14, 17 
 
 N. Y. Supp. 65; Marx v. Gross, 2 N. Y. Civ. Pioc. Rep. 375, 26 N. Y. 
 
 Misc. 500, 23 N. Y. Civ. Proc. Rep. S. R. 34, 7 N. Y. Supp. nO. 
 97, 51 N. Y. S. R. 92, 22 N. Y. Supp. Underlied v. WJialey, 4 Silv. Sup. 
 
 387. Ct. 29, 17 N. Y. Civ. Proc. Rep. 377, 
 
 *Schmidt v. Mactic, 9 N. Y. Week. 20 N. Y. S. R. 7, 7 N. Y. Supp. 74. 
 Dip. 288. ^Law-son v. Hill, 66 Hun, 288, 49 
 
 •'Laicson v. Hill 66 Hun, 288, 49 N. Y. S. R. 251, 20 N. Y. Supp. 904. 
 N. Y. S. R. 251, 20 N. Y. Supp. 904. 
 
 'Shanks v. liae, 19 How. Pr. 540;
 
 DELAYING TEIAL, AND MOTION FOK A NEW TKIAL. 91 
 
 Disbursements for exemplification of records and official cer- 
 tificates cannot be taxed because the postponement of the trial 
 has not rendered these useless.^ 
 
 If the costs are not paid at once the opposite party should in- 
 sist upon the trial proceeding, or apply for an order directing 
 the payment of the costs imposed. An order directing the plain- 
 tiff to pay the costs cannot be entered without a further applica- 
 tion to the court. If the proper order is not made, and the 
 costs are not paid, they will be adjusted upon a final determina- 
 tion of the action.^*' A party may pay the amount imposed by 
 the court when it is in excess of the amount allowed by law, and 
 then he can appeal from the order imposing the terms. The ex- 
 cess will be ordered refunded by the opposite party.-^-^ The court 
 has not power to dismiss the plaintiff's complaint because he has 
 not paid the costs imposed at a previous term of court, as a con- 
 dition of putting the case over the term.^^ 
 
 73. Motion for new trial made without case. — All motion costs 
 which are not otherwise specially regulated by the Code of Civil 
 Procedure are in the discretion of the court under the provisions 
 of § 3236 of the Code of Civil Procedure. But when motion 
 costs are awarded the amount thereof is governed by § 3251 of 
 the Code of Civil Procedure. Where a motion for a new trial 
 is made without a case the amount of costs is $10 ; where a mo- 
 tion for a new trial is made upon a case, or a motion is made 
 for judgment upon a verdict rendered subject to the opinion of 
 the court, or where exceptions are ordered to be heard, in the 
 first instance, at a term of the appellate division of the supreme 
 court, — the amount of costs is, before argument, $20 ; for argu- 
 
 'Morell V. Goiild, 5 Hill, 553. ^^Kennedy v. Wood, 54 Hun, 14, 
 
 ^"Bulkeley v. Kcteltas, 2 Sandf. 17 N. Y. Civ. Proc. Rep. 375, 26 N. 
 
 735; Gamble v. Taylor, 43 How. Pr. Y. S. R. 34, 7 N. Y. Supp. 90. 
 
 S75; Jackson ex dcm. Pinkney v. ^-Hewitt v. Coolc, 75 App. Div. 239, 
 
 Fell, 19 Johns. 270; Kirhy v. Sisson, 78 N. Y. Supp. 2. 
 
 1 Wend. 83; Slocum v. Watkins, 1 
 
 Denio, G31; Mix v. Brisban, 2 Wend. 
 
 286.
 
 02 THE LAW OF COSTS IN NEW YORK, 
 
 iiioiit, .$10.''' When a motion is made for a new trial upon the 
 judge's minutes under § 999 of the Code of Civil Procedure 
 without a case, motion costs, and not costs of trial, may be al- 
 loAved.'"* The contrary was held under the Code of Procedure, -^^^ 
 This was on the ground that a trial, which is the judicial exami- 
 nation of the issues between the parties, was had whether a mo- 
 tion for a ncAv trial was made on a case or on the judge's min- 
 utes. Section 999 of the Code of Civil Procedure makes a mo- 
 tion for a new trial upon the judge's minutes a motion, and not 
 a trial. 
 
 74. New trial in ejectment actions.— The defendant in an 
 action of ejectment must pay the allowance granted by the trial 
 court, as well as otlier costs, when he takes a new trial under the 
 provisions of § 1525 of the Code of Civil Procedure.-'® 
 
 75. New trial on account of error of jury. — The payment of 
 the costs of the former trial will be imposed upon the granting 
 of a motion for a new trial on account of the error of the jury,^'*" 
 such that the verdict is against the weight of evidence,'* or is 
 
 "il/i7?er V. Bush, 29 App. Div. 117, plaintiff to abide the event. Later 
 
 51 N. Y. Supp. 486; Kousso v. Von- an order was granted striking out 
 
 irin, 41 How. Pr. 8; Perkins v. all reference to costs, and the plain- 
 
 Brainard Quarry Co. 11 iMise. 337, tiff taxed $60 costs as a matter of 
 
 32 N. Y. Snpp. 236; Wilcox v. Dag- right. The special term and the ap- 
 
 gett, 15 N. Y. Week. Dig. 208 ; At- pellate division sustained the de- 
 
 k-irisoii V. Truesdell, 28 N. Y. S. R. cision of the clerk. Stewart v. J. 
 
 585, 7 N. Y. Snpp. 801 ; Badley v. Harper Bonnell Co. 20 Misc. 174, 45 
 
 Pethcal, 23 N. Y. Civ. Proc. Rep. 216, N. Y. Supp. 735, follows the case of 
 
 24 X. Y. Supp. 803. The case of Davis v. Grand Rapids F. Ins. Co. 
 
 Davis V. Grand Rapids F. Ins. Co. ^*~Saugatuck Cutlery Co. v. Rowe, 
 
 5 Aj)p. Div. 36, 39 N. Y. Supp. 71, 5 Abb. N. C. 142? Neicman v. French, 
 
 was decided by the same court con- 45 Hun. 65, 27 N. Y. Week. Dig. 33, 
 
 sisting of the same judges who de- 9 N. Y. S. R. 492. 
 
 cided Miller v. Bush, and is not in ^^Muller v. Higgins, 13 Abb. Pr. X. 
 
 harmony with the other eases cited. S. 297. 
 
 This case does not discuss the ques- ^^Ving v. De La Rionda, 20 X. Y. 
 
 tion whether motion costs are in the Civ. Proc. Rep. 183, 37 X. Y. S. R. 
 
 discretion of the court or not. A 404, 13 X. Y. Supp. 793. 
 
 reference to the printed case on ap- ^^Harrigan v. Uoosick Falls. 16 X. 
 
 l)eal shows that the motion for a Y. S. R. 352, 1 N. Y. Supp. 57; Laic- 
 
 new trial was denied, and the origi- rence v. Wilson, 86 App. Div. 472. 
 
 nal order granted $10 costs to the ^^Kelly v. Frazier, 27 Hun, 314, 2
 
 DELAYING TRIAL AND MOTION FOIJ A NEW TKIAL. 93 
 
 not sustained by siiiRcIent evidence/^ or is for inadequate^** or 
 excessive damages.-^ 
 
 The imposition of the costs of the former trial, costs of oppos- 
 ing the motion for a new trial, and costs of the appeal from the 
 judgment and order denying a new trial, is proper upon the re- 
 versal of such judgment and granting a new trial by the appellate 
 court, where the new trial was granted because of the reversal of 
 a judgment in another action which was the basis of recovery in 
 the action under consideration.^^ 
 
 In the first and third departments it is held that terms im- 
 posed upon granting a new trial on the ground that the verdict 
 
 N. Y. Civ. Proc. Rep. 322; Lyons v. K Y. Supp. 454; Helgers v. 8taten 
 
 Connor, 53 App. Div. 475, 65 K. Y. Island Midland R. Co. 69 App. Div. 
 
 Supp. 1085; Bailey v. Park, 5 Hun, 570, 75 IST. Y. Supp. 34; Faivdrey v. 
 
 41; Fleischman v. Yagel, 16 Misc. Brookhjn Heights R. Co. 64 App. 
 
 511, 38 N. Y. Supp. 523; O'Brien v. Div. 418, 72 X. Y. Supp. 283; Cohen 
 
 Long, 49 Hun, 80, 1 N. Y. Supp. 695 ; v. BrooUyn Heights R. Co. 73 N. Y. 
 
 O'Shea v. McLear, 15 N. Y. Civ. Proc. Supp. 1132; Harrington v. Brookh/n 
 
 Rep. 69, 16 N. Y. S. R. 482, 1 N. Y. Heights R. Co. 73 N. Y. Supp. 1136; 
 
 Supp. 407 ; East River Bank v. Hoyt, Curry v. Neic York & Q. G. R. Co. 
 
 22 How. Pr. 478; Benedict v. John- 73 N. Y. Supp. 1132; Peck v. Fonda, 
 
 son, 2 Lans. 97; Sewell v. Lathrop, J. & G. R. Co. 3 Silv. Sup. Ct. 10, 25 
 
 67 Hun, 651, 23 N. Y. Supp. 1154; X. Y. S. R. 95, 3 N. Y. Supp. 379. 
 
 Young v. Stone, 77 Hvm, 395, 28 N. ^^Young v. Stone, 77 Hun, 395. 60 
 
 Y. Supp. 881; Kennedy v. Harlem R. N. Y. S. R. 419, 28 N. Y. Supp. 881. 
 
 Go. 3 Duer. 659; Overing v. Russell, ^"Sloane v. MeCawley, 33 Misc. 652, 
 
 28 HoAV. Pr. 151; Brock v. Barnes, 68 X. Y. Supp. 187; Brown v. Foster, 
 
 40 Barb. 521; Jackson ex dem. Liv- 1 App. Div. 578, 73 N. Y. S. R. 94, 
 
 ingston v. Thurston, 3 Cow. 342; 37 X. Y. Supp. 502; O'Shea v. Mc- 
 
 Goodyear v. Ogden, 4 Hill, 104; Lear, 15 X. Y. Civ. Proc. Rep. 69, 
 
 Broicn v. Bradshaw, 1 Duer, 199; 16 X. Y. S. R. 482, 1 X. Y. Supp. 
 
 Ward V. Woodbiirn, 27 Barb. 354; 407; Riegehnan v. Brunnings, 36 
 
 'North V. Sergeant, 33 Barb. 350, 14 App. Div. 351, 56 X. Y. Supp. 755; 
 
 Abb. Pr. 223, 20 How. Pr. 519; Bar- Richards v. Sandford, 2 E. D. Smith, 
 
 ris V. Panama R. Co. 5 Bosw. 312; 349, 12 X. Y. Legal Obs. 94. 
 
 Voorhees v. National Citizens' Bank, ^^Langley v. Sixth Ave. R. Co. 16 
 
 15 Abb. Pr. X. S. 13; Baldwin's Bank Jones & S. 542; Mahar v. Simmons, 
 
 V. Butler, 38 X. Y. S. R. 983, 14 X. 47 Hun, 479, 14 X. Y. S. R. 443; 
 
 Y. Supp. 831 ; Kummer v. Ghristo- Buck v. Webb, 58 Hun, 185, 33 X. Y. 
 
 pher d E. T. Street R. Co. 3 Misc. S. R. 824, 11 X. Y. Supp. 617; Har- 
 
 100. 51 X. Y. S. R. 770, 22 X. Y. ris v. Panama R. Co. 5 Bosw. 312. 
 
 Supp. 698; Murphy v. Hasioell, 65 "/Smff/i A^ Fra«7.-/?e?r7. 13 Hun, 489, 
 
 Barb. 380; Wilson v. Lester, 64 Affirmed in 77 X. Y. 414. 
 Barb. 431 ; Landrigan v. Brooklyn 
 Heights R. Co. 23 App. Div. 43, 48
 
 94 THE LAW OF COSTS IN NEW YORK. 
 
 is against the weight of evidence rests in the discretion of the 
 court, which may or may not impose the payment of the costs 
 of tlie former triaL^^ 
 
 76. Waiver of right to costs.— Where a party intends to appeal 
 from an order granting a new trial, he should apply for a stay. 
 Still where he does not do so, but simply refuses to accept the 
 costs pending his appeal, he does not waive the payment of the 
 costs and if he is defeated upon his appeal, he can demand the 
 payment of the costs first imposed.^^ 
 
 AVhere a judge of his own motion sets aside a verdict and di- 
 rects a new trial and makes no award of costs, objection to the 
 order because it does not allow costs to the party securing the 
 verdict must be taken at the time. If such objection is not then 
 taken, such a refusal to award costs is not ground for a reversal 
 upon an appeal from the order.-"^ 
 
 77. New trial on account of error of court. — Where a verdict 
 is set aside because it is against the weight of evidence, and con- 
 trary to tlie lav/ as contained in the judge's charge, the costs of 
 the motion and of tlie foi-mer trial should be ordered to abide 
 the event.-® The moving party is asking for a right, and the 
 court cannot impose the payment of costs as a condition.-'^ The 
 court sometimes compels the moving party to stipulate that he 
 
 '^Cohen v. Kriilewitch, 77 App. Supp. 291 ; Knapp v. Curtis, 9 Wend. 
 
 Div. 126, 78 N. Y. Supp. 1044; Peo- 60; Jacvhsohn v. Belmont, 7 Bosav. 
 
 pie V. Glasgow, .30 App. Div. 94, 52 14; Neicman. v. French, 4,5 Hun, 66. 
 
 N. Y. Supp. 24 ; Lashmoay v. Young, 9 N. Y. S. R. 492, 27 N. Y. Week. 
 
 76 App. Div. 177, 78 N. Y. Supp. 366. Big. 33; La Farge v. Kneeland, 7 
 
 -^Stokes V. Stakes, 38 App. Div. Cow. 461 ; Lough v. Romaine, 4 
 
 215, 56 X. Y. Supp. 637. Jones & S. 332; Jones v. Mefropoli- 
 
 -'^fichmidt V. Brown, 80 Hun. 183, tan Elev. R. Co. 27 Jones & S. 
 
 61 N. Y. S. R. 831, 30 N. Y. Supp. 437, 14 N. Y. Supp. 632; Silver- 
 
 68. man v. Dry Dock, E. B. & B. 
 
 ''Van Rensselaer v. Dole, 1 Johns. R. Co. 69 App. Div. 22, 74 N. Y. 
 
 Cas. 279, and note; Smith v. A>m; Supp. 481; Randall v. Albany City 
 
 York, 55 App. Div. 90, 8 N. Y. Anno. Nat. Bank, 1 N. Y. S. R. 592; A^ider- 
 
 C'as. 389, 66 N. Y. Supp. 1046; Hen- son v. Rome, W. d 0. R. Co. 54 N. 
 
 derson v. Henderson, 2 Abb. N. C. Y. 334. 
 
 102; Rohhins v. Hudson River R. Co. -''Anderson v. Rome, W. £ 0. R. Co. 
 
 7 Rosw. 1 ; Brauer v. Oceanic Steam 54 N. Y. 334. 
 War. Co. 66 App. Div. 605. 73 N. Y.
 
 DELAYING TRIAL AND jNIOTION FOE A NEW TRIAL. 95 
 
 will waive all costs if he succeeds, and that the opposite party 
 may tax full costs if he succeeds.-^ 
 
 78. New trial on account of error of referee. — Where the report 
 of a referee is set aside as against the weight of evidence, costs 
 are in the discretion of the court, and may be ordered to abide 
 the event.^^ But costs should not be imposed when a new trial 
 is granted on account of the misconduct of the referee.^*' 
 
 79. New trial in justice's court, because the verdict is against 
 the weight of evidence. — Upon an appeal from a judgment ren- 
 dered in a justice's court, where a new trial is not demanded in 
 the appellate court, the judgment may be reversed and a new 
 trial ordered in the court below, conditioned upon the payment 
 by the appellant of the sum of $10.^^ 
 
 80. New trial on the ground of newly discovered evidence. — 
 Payment of the costs of the former trial should be imposed as a 
 condition of granting a new trial on the ground of newly dis- 
 covered evidence.^^ 
 
 The court, however, may impose the payment of a larger 
 sum.^^ 
 
 81. What is included in "Costs of former trial." — The costs 
 of the former trial do not include all the costs of the action, but 
 include the trial fee, witness fees, and other disbursements of 
 that term, to be ascertained after notice of taxation, if the parties 
 
 ^^Seggerman v. Metropolitan Street ^"Comstoch \. Dye, 13 Hun, 113; 
 
 R. Co. 38 Misc. 374, 77 N. Y. Supp. Simmons v. Fay, 1 E. D. Smith, 107; 
 
 905. Whitney v. Saxe, 15 N. Y. Civ. Proc. 
 
 -^Wentworth \. Candee, 17 How. Rep. 450, 18 N. Y. S. R. 1020, 2 jST. 
 
 Pr. 405; Allardv. Mouchon, 1 Johns. Y. Supp. 653; Christ v. Chetwood, 8 
 
 Cas. 280; Smith v. Schanck, 18 Barb. Misc. 81, 58 N. Y. S. R. 815, 28 N. Y. 
 
 344; Scranton V. Baxter, 4 Sandf. 8. Supp. 1U8; Reid v. Gaedeke, 38 
 
 ^O'Brien v. Long, 49 Hun, 80, 17 App. Div. 107. 29 N. Y. Civ. Proc. 
 
 K Y. S. R. 510, 1 N. Y. Supp. 695. Rep. 212, -57 X. Y. Supp. 414. 
 
 ^Jacob V. Haefelien, 54 App. Div. ="/i'f; Ryan, 70 Hun, 149, 53 N. Y. 
 
 570, 66 N. Y. Supp. 1007; Cunning- S. R. 926, 24 N. Y. Supp. 277, Af- 
 
 ham V. Nassau Electric R. Co. 40 firmed in 141 N. Y. 550, 57 N. Y. 
 
 App. Div. 211, 58 N. Y. Supp. 22; S. R. 865, 36 N. E. 343. 
 Code Civ. Proc. § 3063.
 
 96 THE LAW OF CO.STS IN NEW YORK. 
 
 cannot agree. Costs of opposing the niotiun are usually al- 
 lowed.^"* 
 
 82. Additional allowance upon the first trial. — it has been held 
 that the costs of the former trial do not include an additional 
 allowance where the report of a referee was set aside, the reason 
 being that such allowance could only be had on obtaining a judg- 
 ment, and here a judgment had not been obtained.^'' 
 
 But where a verdict was set aside upon the jJayrnent of costs 
 subsequent to the notice of trial, it was held that this included 
 an additional allowance, because it was a part of the costs of the 
 trial.36 
 
 83. What items are taxable. — It has been held that the item 
 for proceedings subsequent to notice, and before trial is allowable 
 under an order granting a new trial upon payment of costs 
 "'after notice of trial" on the ground that this item is compensa- 
 tion for preparing for trial, subpoenaing witnesses, etc.^'^ 
 
 Term fees for terms that the case was on the calendar, but 
 not tried, are not included within the terms "after notice of 
 trial"^^ in an order granting a new trial. 
 
 The words "after notice of trial" in such an order mean from 
 and after notice of trial, excluding that item and commencing 
 with the first costs acciniing thereafter."^ 
 
 Where a new trial is granted with costs to the moving party 
 to abide the event, and upon the new trial a verdict is rendered 
 for the same party as before, the successful party cannot tax the 
 
 ''*Buck V. Wehb, 58 Hun, LS5, 33 '''Keil v. Rice, 24 How. Pr. 228: 
 
 N. Y. S. R. 824, 11 N. Y. Siipp. 617; Mitchell v. Westervelt, 6 How. Pr. 
 
 M'Quade v. .Yew York & E. R. Co. 265, Affirmed in 6 How. Pr. 311, 
 
 5 Ducr, 613. 11 How. Pr. 434; Smith note; Jhtcklvgham v. Mitwr, 18 How. 
 
 V. Frankfield. 13 Hun, 489, Affirmed Pr. 287; Dewey v. Stewart, 6 How. 
 
 in 77 N. Y. 414: Ellsworth v. Good- Pr. 465, Doubted in Fleischman v. 
 
 inq. 8 How. Pr. 1. Yagel, 16 Misc. 511, 38 N. Y. Supp. 
 
 '^Hicks V. Waltermire, 7 How. Pr. 523. 
 
 370. Contra. M'Quade v. Yew York ^Fleischman v. Yagel, 16 Misc. 
 
 d E. R. Co. 5 Duer. 613, 11 How. Pr. 511. 38 X. Y. Supp. 523. 
 
 434 ^^Fleischman v. Yagel, 16 Misc. 
 
 "Ellsworth V. Gooding, 8 How. Pr. 511, 38 N. Y. Supp. 523. 
 1.
 
 DELAYING TRIAL AND MOTION FOK A NEW TRIAL. 97 
 
 costs of motion ; tlie motion costs were discretion a rv and the 
 court having fairly exercised its discretion, the order is final as 
 it was not appealed from.^" 
 
 84. Motion for new trial made on two grounds. — Where a 
 motion for a new trial is made on exceptions taken and because 
 of the insufSciency of the evidence, and the order is granted 
 upon the payment of the costs of the former trial, but is silent as 
 to the grounds of the order, the order will be upheld as being 
 made on the ground of lack of evidence.^^ If the order does nor 
 show the grounds upon which the new trial was granted, it will 
 be presumed that it was granted because the verdict was against 
 the weight of evidence, or tliat in the opinion of the trial court 
 substantial justice will be promoted thereby.^^ 
 
 85. Correction of order. — Where an order denying a motion 
 for a new trial makes no award of costs, and the successful party 
 enters the order with costs, he should upon discovering his mis- 
 take move for permission to vacate the order and ask the court 
 to pass upon the question of costs. The court cannot pass upon 
 the question of costs upon deciding a motion by the defeated 
 party to correct the order, as the party successful upon the mo- 
 tion for a new trial is not before the court asking any relief.'*^ 
 
 86. What courts have power to exercise discretion as to terms 
 of a new trial. — The granting or denying a motion for a new 
 trial is to a certain extent discretionary, and the appellate di- 
 vision of the same court in which the motion was originally 
 made can exercise its discretion, when the order of the trial 
 court is brought before it for review, and it may modify the or- 
 der.*^ But the appellate court could only review such an order 
 
 *^Hadley v. Petlical, 23 X. Y. Civ. Hun, 9, 31 N. Y. Supp. 612: Young 
 
 Proe. Eep. 216, 24 N. Y. Supp. 803. v. Stone, 77 Hun, 395, 28 N. Y. Supp. 
 
 *^Henderson v. Henderson, 2 Abb. 881 ; Glassford v. Lewis, 82 Hun, 46. 
 
 N. C. 102. 31 N. Y. Supp. 162. 
 
 *^Fleischman v. Yaqel, 16 INIisc. "Siegrist v. Hollotvay, 7 N. Y. Civ. 
 
 511, 74 N. Y. S. E,. 43, 38 N. Y. Proe. Pop. 58. 
 
 Supp. 523; Grening v. Malcom, 83 **Funk v. Evening Post Pub. Co. 
 COSTS 7.
 
 98 TIIK LAW OF COSTS IN NKW YORK. 
 
 \ipon an appeal from another court in those cases in which it can 
 review any other discretionary order, as where there is a palpa- 
 ble abuse of discretion, etc. 
 
 87. Motion for a new trial made on a case. — The costs award- 
 ed to the successful party upon a motion for a new trial on. a 
 case are the same as upon an appeal as prescribed in subd. 4^ 
 § 3251 of the Code of Civil Procedure.^^ The party success- 
 fully opposing the motion is entitled to those costs.^*^ 
 
 These costs are chargeable even when the motion is made pre- 
 maturely, when the party has had the benefit of the motion.^" 
 The moving party is not entitled to these costs."*^ 
 
 Only motion costs can be allowed upon a motion for a new 
 trial upon a case when the time to appeal has expired.^^ 
 
 Two fees for argument can be taxed where the motion i< 
 ai'gued before one judge who does not decide it, but sends it to 
 another judge, who denies the motion.^*' The successfid party 
 will be allowed to retax his costs at the proper amount, where he 
 has inadvertently taxed simple motion costs.^^ 
 
 When the whole office of a case is to enable the court to ascer- 
 
 7G Hun, 497, 59 N. Y. S. R. 333, 27 735; Dacis v. Grand Rapids F. Ins. 
 
 N. Y. Supp. 1089. Co. 5 App. Div. 36, 39 X. Y. Supp. 
 
 "Code Civ. Pioc. § 3251, subdiv. 3. 71: Christ v. Chctwood, 8 Misc. 81, 
 
 See motion for new trial made with- 58 N. Y. S. R. 815, 28 N. Y. Supp. 
 
 out a case, § 73, swpra. 1148; WhitneTj v. Saxe, 15 N. Y. Civ. 
 
 '"Reid V. (laedeke, 38 App. Div. Proc. Rep. 450, 18 N. Y. S. R. 1020. 
 
 107, 29 N. Y. Civ. Proc. Rep. 212, 2 N. Y. Supp. 653. 
 
 57 N. Y. Supp. 414; Garveyx. United -'lioiisso v. Vontrin, 41 How. Pr. 8. 
 
 i<tates Horse & Cattle Show Soc. 1 '•'Wilsoti v. Ahhott, 68 N. Y". Supp. 
 
 N. Y. Anno. Cas. 406, 73 N. Y. S. R. 867. Contra, Pilnrim v. Donnelly, 1 
 
 360, 38 X. Y. Supp. 171; Atldnson v. How. Pr. N. S. 281, 15 Abb. N. C. 
 
 Truesdell. 28 N. Y. S. R. 585, 7 N. 240. 
 
 Y. Supp. 801; Wilcox v. Daggett, 15 *^Forstman v. Scluilfing, 38 Hun. 
 
 N. Y. Week. Dig. 208; Perkins v. 482. 
 
 Brainard Quarry Co. 11 Misc. 337, '"Guckenheimer v. Angevine, IS 
 
 65 N. Y. S. R. 417, 32 N. Y. Supp. Hun, 453. 
 
 236; Fleischman v. Yagel, 16 ^lisc. ''^Vi'hitney v. Saxe, 15 N. Y. Civ. 
 
 511, 74 N. Y. S. R. 43, 38 X. Y. Supp. Proc. Rep. 450. 18 N. Y. S. R. 1020, 
 
 523: HIeirart v. J. JJarper Bonnell 2 N. Y. Supp. 653. 
 Co. 20 Misc. 174, 45 X. Y. Supp.
 
 DELAYING TKIAI, A^"D MOTION FOB A NEW TRIAL. 99 
 
 tain whether the new evidence is cumulative merely, only mo- 
 tion costs are ehargeable,^^ 
 
 The moving party, although successful, must, as a condition 
 of obtaining a new trial, j)ay the costs of the former trial. ^^ 
 
 Costs are in the discretion of the court upon the decision oJ' 
 a motion made for a new trial, which is ordered to be heard at 
 the appellate division in the first instance. If no costs are award- 
 ed none can be taxed.^"* ' 
 
 Whether costs that a party has paid for the granting of a new 
 trial as a favor can be again taxed should be decided upon the 
 same j)rinciple as is applied in similar indulgences in opening 
 defaults and allowing amendments.^" 
 
 88. Appeal from an order granting new trial. — A party may 
 pay costs that have been improperly granted against him, and 
 accept the provisions of the order, and then appeal from so much 
 of the order as imposes costs. ^^ 
 
 Where upon a motion for a new trial because the verdict is 
 against the weight of evidence, the attention of the court is not 
 called to the fact that such motions are not usually granted ex- 
 cept upon the payment of the costs of the trial, the appellate 
 court will not listen to that point upon an appeal from an order 
 granting a new trial which does not impose the payment of the 
 costs of the previous trial.''' 
 
 ^^Hossley v. Colerick, 3 How. Pr. ^Kummer v. Christopher & T. 
 
 N. S. 169, 9 N. Y. Civ. Proc. Rep. 43. Street R. Co. 12 Misc. 387, 24 N. Y. 
 
 '•"^Eossley v. Colerick, 3 How. Pr. Civ. Proc. Kep. 404, 67 N. Y. S. R. 
 
 N. S. 169, 9 N. Y. Civ. Proc. Rep. 43; 404, 33 N. Y. Supp. 581. 
 
 Comstock v. Dye, 13 Hun, 113; Sim- ^O'Brien v. Ijong, 49 Hun, 80, 17 
 
 mons V. Fay, 1 E. D. Smith, 107; N. Y. S. R. 510, 1 N. Y. Supp. 695. 
 
 Bonynge v. JVaterbury, 12 Him, 534, "Feiher v. Lester, 36 N. Y. S. R. 
 
 537; May v. Strauss, 8 Abb. N. C. 986, 13 N. Y. Supp. 339. 
 274 ; Peck v. Cohen, 8 -Jones & S. 142. 
 
 ""^Miller v. Bush, 29 App. Div. 117, 
 51 N. Y. Supp. 486.
 
 CHAPTER VII. 
 
 COSTS UPON THE DECISION OF A DE:\rURRER. 
 
 89. Absolute right to costs in actions at law. 
 
 90. In actions which involve questions of law and fact. 
 9). Where both parties are successful. 
 
 92. Separate bills of costs, where there are two or more parties on the 
 
 successful side. 
 9.3. What items are taxable. 
 
 94. Judgment upon frivolous demurrer. 
 
 95. When successful party cannot tax costs. 
 
 96. Amendment of pleading to obviate defect pointed out by demurrer. 
 
 97. Judgment entered upon decision of demurrer. 
 
 98. Final or interlocutory judgment. 
 
 99. Costs by whom taxed. 
 
 89. Absolute right to costs in actions at law. — The right of the 
 successful party to the costs upon tlie decision of a demurrer to 
 the whole complaint in an action at law is absolute, unless the 
 case comes within the exceptions of § 3232 of the Code of Civil 
 Procedure, which provides that "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 in- 
 terlocutory judgment is rendered upon the issue of law, tlie in- 
 terlocutory judgment may, in the discretion of the court, deny 
 costs to either party, or award costs to the prevailing party, 
 either absolutely, or to abide the event of the trial of the issue 
 of fact."^ It makes no difference that the party defeated is a 
 public official.^ Where a defendant could have demurred to a 
 
 Kidams v. Ward, GO How. Pr. 288; fiers v. Belmont, 24 N. Y. Civ. Proc. 
 
 Tallman v. Bernhard, 75 Hun, 30, 31 Rep. 408. 07 X. Y. S. R. 329, 33 N. Y. 
 
 Abb. N. C. 84, 23 N. Y. Civ. Proc. Supp. 023 ; Childs v. Algie, 4 Month. 
 
 Rep. 284, 58 N. Y. S. R. 597, 27 L. Bull. 17. 
 
 X. Y. Supp. 6; Marsh v. Chaham, 19 -Keller v. Rhrady, 30 Misc. 833, 61 
 
 Misc. 263, 44 N. Y. Supp. 253; Oli- X. Y. Supp. 1123. 
 
 100
 
 COSTS upo:n the decisiojn" of a demukrer. 101 
 
 complaint, but prefers to raise the question upon the trial, and 
 succeeds, he should be allowed no more discretionary costs than 
 he would have been allowed upon a demurrer.^ 
 
 90. In actions which involve questions of law and fact. — The 
 court, having discretion to award costs upon the decision of a de- 
 murrer in an action at law, where there are issues of law to be 
 tried, cannot, after it has decided that a party is entitled to 
 costs, limit the amount of costs. The successful party is entitled 
 to the statutory costs as allowed by § 3251 of the Code of Civil 
 Procedure.'* 
 
 The costs awarded in such a case cannot be entered in a judg- 
 ment and collected, until iinal judgment is rendered upon the 
 issues in the action generally.^ 
 
 There are special term decisions which hold that costs may 
 be awarded upon the determination of a demurrer, although 
 other issues were left undetermined.^ The law is better deter- 
 mined in the decisions of the New York common pleas and of the 
 general term of the fifth department, which hold that the costs 
 upon such a demurrer must aw^ait the trial of the issues of fact, 
 and that the party successful upon the demurrer must also be 
 successful upon the trial of the issue of fact to recover the costs 
 of the demurrer.^ The history of these costs is given in the case 
 last cited,^ and the conclusion there arrived at by the editor, that 
 the court erred in this decision because its attention was nor 
 called to the provisions of the present Code on this subject, seems 
 to be correct. 
 
 ^Barnes v. Seligman, 55 Hun, 339. Hun, 570: Fales v. Lawson, 4 N. Y. 
 
 29 N. Y. S. R. 68, 8 N. Y. Supp. 834. Supp. 284 ; Code Civ. Proc. § 3233. 
 
 Wogt Mfg. d Coach Lace Co. v. Woelger v. O'Rourke, 18 Abb. N. C. 
 
 Oettinger, 88 Hun, 52, 68 N. Y. S. R. 457, 12^ N. Y. Civ. Proc. Rep. 254 : 
 
 549, 34 N. Y. Supp. 731. Adamfi v. Ward, 60 How. Pr. 288. 
 
 ^Biershenh v. Stokes, 46 N. Y. S. 'Schenck v. Rowell, 2 Month. L. 
 
 R. 179, 18 N. Y. Supp. 854; Oester- Bull. 18; Willover v. First Nat. 
 
 riches v. Jones, 45 Him, 246, 13 N. Y. Bank, 40 Hun, 184, 10 N. Y. Civ. 
 
 Civ. Proc. Rep. 98, 10 N. Y. S. R. Proc. Rep. 80. 
 
 356: Rohinson v. Hall, 35 Hun, ^ Note to Willover v. First Nat. 
 
 214; Armstrong v. Cummings, 22 Bank, 10 X. Y. Civ. Proc. Rep. 80.
 
 <^ 
 
 102 THE LAW OF COSTS IN NEW YORK. 
 
 91. Where both parties are successful. — Costs are not award- 
 ed to either party where a demurrer has been interposed to two 
 or more causes of action, or counterclaims, and it is sustained 
 in part and overruled in part.** 
 
 92. Separate bills of costs, where there are two or more parties 
 on the successful side. — Separate bills of costs must be awarded 
 tx3 the different defendants, when they have succeeded upon tlie 
 decision of a demurrer if they are not united in interest and 
 have appeared by different attorneys.^" 
 
 The plaintiff, upon the decision of a demurrer in his favor, 
 is not entitled to tax a separate bill of costs against defendants 
 who have appeared by the same attorney, but have answered 
 separately.-' -^ 
 
 93. What items are taxable. — Upon the entry of a final judg- 
 ment upon the decision of a demurrer, the successful party in an 
 action at law is entitled to tax a full bill of costs. 
 
 Upon the entry of an interlocutory judgment, where the de- 
 feated party is given leave to plead over upon the payment of 
 costs, the successful party is entitled to tax costs after notice 
 and before trial, $15, trial fee $20, and disbursements.^^ The 
 
 "Henner v. Benner, 35 N. Y. S. R. Co. 10 How. Pr. 1.54; Miller v. 
 
 602, 12 N. Y. Supp. 472; Petrakion Coates, 2 Hun, 668, 5 Thomp. & C. 
 
 V. Arhcely, 23 N. Y. Civ. Proc. Pvcp. 690. 
 
 183, 26 N. Y. Supp. 731; Sargent v. ''Buell v. Gay, 13 How. Pr. 31. 
 
 Sargent Granite Co. 3 Misc. 325, 52 Contra, Comstock v. Eallech, 4 
 
 N. Y. S. R. 517, 23 N. Y. Supp. 886; Sandf. 671. 
 
 Hollingshed v. Woodward, 35 Hun, ^-Garrett v. Wood, 61 App. Div. 
 
 410. 294, 70 K Y. Supp. 359; Jones v. 
 
 ^"Olifiers v. Belmont, 24 N. Y. Civ. Butler, 83 Hun, 91, 1 N. Y. Anno. 
 
 Proc. Rep. 408, 67 N. Y. S. R. 329, Cas. 278, 63 N. Y. S. R. 814, 31 N. Y. 
 
 33 N. Y. Supp. 623: Delaioare, L. <C- Supp. 401, Reversed on other grounds 
 
 IF. R. Co. V. Burkard, 40 Hun, 625 ; in 146 X. Y. 55, 65 N. Y. S. R. 772, 
 
 none V. Van Orden, 11 Abb. N. C. 41 N. E. 633; Louis v. Emjnre State 
 
 228, 63 How. Pr. 237; 'New York v. Ins. Co. 75 Hun, 364, 23 N. Y. .Civ. 
 
 Brady, 25 Jones & S. 14, 25 N. Y. Proc. Rep. 295, 56 N. Y. S. R. 766. 
 
 S. R. 106, 5 X. Y. Supp. 179, Affirmed 27 N. Y. Supp. 83; Marsh v. Graham, 
 
 in 115 N. Y. 599, 26 N. Y. S. R. 340, 19 Misc. 263, 44 N. Y. Supp. 253; 
 
 22 N. E. 237; Collomh v. Caldwell, Skinner v. White, 69 Hun, 127. 23 
 
 5 How. Pr. 336, N. Y. Code Rep. N. Y. Supp. 384; Edson v. Dillaye, 
 
 N. S. 41: Wood v. Brooklyn F. In^. 8 How. Pr. 273; Phlpps v. \an Cott,
 
 COSTS UPON THE DECISION OF A DEMURRIOE. 103 
 
 disbursements allowed are those connected with the argument 
 of the demurrer and the entry of the judgment thereon, and do 
 not include costs of serving the summons and complaint, and 
 sheriff's fees on execution. ^^ 
 
 The defeated party should pay the costi^ of such proceedings 
 as by the overruling of the demurrer will be vacated, entering 
 judgment, satisfaction piece, transcript, and filing. ^^ 
 
 There are some cases which hold tliat upon tlie sustaining of 
 a demurrer, the successful party is entitled to tax costs before 
 notice of trial.-' ^ But these cases do not seem to be well con- 
 sidered and seem to be contrary to the general trend of the de- 
 cisions. 
 
 In the New York city court only $20 costs are allowed upon 
 sustaining a demurrer to one of several defenses set up in the 
 answer.-'^ 
 
 94. Judgment upon frivolous demurrer. — Upon an application 
 for judgment on account of the frivolousness of a demurrer only 
 motion costs can be allowed.^^ Where, however, both partie-- 
 treat a notice of application for judgment on account of friv- 
 olousness of the demurrer, as a notice of argument, and the court 
 decides the question upon the merits, costs as upon a trial of an 
 issue of law can be taxed, but motion costs cannot.-'^ 
 
 15 How. Pr. 110; Crary v. tiorioood, Adams v. TTV/jtZ, 60 How. Pr. 288; 
 
 5 Abb. Pr. 219; Anon?/mO!<s, 3 Sandf. Van ValJcenhurgh v. Van ScliaicJc, 8 
 
 756; Thotnpson v. Stanley, 22 N. Y. How. Pr. 271; Gollomb v. Caldwell, 
 
 Civ. Proc. Rep. 348, 22 N. Y. Supp. 5 How. Pr. 336, N. Y. Code Rep. N. 
 
 897; yellis v. De Forrest, 6 How. S. 41; Bendriclcs v. Bouck, 4 E. D. 
 
 Pr. 413; Van Valkenhurgh v. Van Smitli, 461, 2 Abb. Pr. 360; Consid- 
 
 Schaick, 8 How. Pr. 271. But see eratit v. Brisbane, 7 Abb. Pr. 345 
 
 Knecring v. Lennon, 3 Misc. 247, 51 note, 1 Bosw. 644; Thompson v. 
 
 N. Y. S. R. 907, 22 N. Y. Supp. 775. Stanleij, 22 N. Y. Civ. Proc. Rep. 348 
 
 ^^Louis V. Empire State Ins. Co. 22 N. Y. Supp. 897. 
 
 75 Hun, 364, 23 N. Y. Civ. Proc. Rep. ^^usso v. Basso, 19 Abb. N. ( '. 
 
 295, 56 N. Y. S. R. 766. 27 N. Y. 173. 
 
 Supp. 83. ^•'Small v. Ludlow, 1 Hilt. 307: 
 
 ^'Thompson v. Stanley, 22 N. Y. Roberts v. Clark, 10 How. Pr. 451: 
 
 Civ. Proc. Rep. 348, 22 N. Y. Supp. Rochester City Bank v. Rapelje, 12 
 
 897. How. Pr. 26; Code Civ. Proc. § 537. 
 
 ^'Doelger v. 0' Rotirke, 18 Abb. N. "MGWilliam v. Dayton, 27 Misc. 
 
 C. 457, 12 N. Y. Civ. Proc. Rep. 254; 828, 57 N. Y. Supp. 819.
 
 104 TUK LAW OF COSTS IN NEW YORK. 
 
 95. When successful party cannot tax costs. — ISTo costs upon 
 tho decision of a demurrer can be taxed in the final judgment, 
 where tliey were given "to abide the event" and the party to 
 whom they were thus awarded was defeated upon the other is- 
 sues, because the costs were given only on the condition that the 
 party successful on the demurrer should finally succeed.^^ Where 
 the plaintiff had a technical cause of action to which the de- 
 fendant demurred, the demurrer was overruled and judgment 
 rendered for the plaintiff for 6 cents, with costs of the action to 
 the defendant, imder § 3229 of the Code of Civil Procedure.^ ^ 
 
 96. Amendment of pleading to obviate defect pointed out by 
 demurrer. — The right of a party to serve an amended pleading in 
 the place of the one which has given rise to the demurrer is un- 
 doubted. The right of the party demurring to costs upon 
 the demurrer is subject to the right of the opposing party to 
 amend. ^^ It is the general rule that a party may by amendment 
 obviate the objection to his pleading whether the objection be 
 taken by motion or by a pleading, provided, of course, that the 
 time within which he may amend as of right has not expired. 
 
 There is one case to the contrary rendered upon an uncontested 
 motion, and no decision was written.^^ 
 
 There is no absolute right in the party defeated upon the trial 
 of a demurrer, to serve another pleading in the place of the one 
 disposed of in whole or in part by the demurrer. It rests in the 
 sound discretion of the court whether or not a party will be 
 allowed to do so. The terms usually imposed are the payment 
 of the costs of the demurrer Avithin a certain time, and if an ap- 
 peal has been taken the costs of the appeal. After such a de- 
 cision on appeal the successful party cannot obtain an extra al- 
 
 ■"Murphy v. Gold & Stock Teleg. ^Branagan v. Palmer, 5 N. Y. 
 
 Co. 18 N.Y. Civ. Proc. Rep. 43, 27 Week. Dig. 521. 
 
 N. Y. S. R. 39, 9 N. Y. Supp. 28. "-^Curry v. Blair, 4 N. Y. \Yeek. 
 
 -^Uoomc V. Jennings, 3 Misc. 413, Dig. 271. 
 .52 N. Y. S. R. 507, 23 N. Y. Supp. 
 i>(j6.
 
 COSTS UPOX THE DECISION OF A DEMURRER, 105 
 
 lowance and thus make it a part of the costs which the opposing 
 party must pay for the privilege of serving an amended plead- 
 
 When the decision of the appellate court simply gives to the 
 defeated party permission to apply to the court below for leave 
 to withdraw his demurrer and answer, the court, upon such ap- 
 plication, may impose as terms for this favor the payment of, 
 not only the regular costs, but also the payment of an extra al- 
 lowance granted.^^ 
 
 97. Judgment entered upon decision of demurrer. — Upon the 
 decision of a demurrer to a part of the issues raised, an interloc- 
 utory judgment should be entered. If the demurrer is to all 
 the issues unless leave to plead over be granted, a final judgment 
 should be entered when an entire bill of costs can be taxed.^^ 
 
 If the defeated party appeals from the interlocutory judg- 
 ment, instead of pleading over, and does not stay the proceed- 
 ings of his opponent pending the appeal, his opponent may enter 
 up final judgment and tax his costs therein, when the time lim- 
 ited for pleading over has expired.^'^ 
 
 98. Final or interlocutory judgment.— The order sustaining or 
 overruling a demurrer to a pleading, where leave is not granted 
 to plead over, or when permission is given but is not accepted, 
 authorizes a final judgment, and the successful party is entitled 
 to a full bill of costs.^^ 
 
 An interlocutory judgment is entered upon the decision of a 
 demurrer, when permission is given to plead over upon payment 
 
 -^McDonald v. Mallory, 14 Jones & ^Eecla Consol. Gold Min. Co. v. 
 
 S. 58. O'Neill 23 N. Y. Civ. Proc. Rop. 143, 
 
 '^Terry v. Moore, 12 App. Div. 396, .51 N. Y. S. R. 436, 22 N. Y. Supp. 
 
 42 N. Y. Supp. 51. 130. 
 
 -^Brassington v. RoJirs, 3 Misc. ^Crasto v. White, 52 Hun, 473, 17 
 
 258, 23 N. Y. Civ. Proc. Rep. 146, N. Y. Civ. Proc. Rep. 46, 23 N. Y. 
 
 52 N. Y. S. R. 171, 22 N. Y. Supp. S. R. 535, 5 N. Y. Supp. 718; Hoff- 
 
 761 : Adams v. Wood, 60 How. Pr. man v. Barry, 2 Hun, 52, 4 Tliomp. 
 
 288: Code Civ. Proc. §§ 3232, 3222, & C. 253. 
 and 779.
 
 106 TUE LAW OF COSTS Ii!i NEW YOKli. 
 
 of costs, but if such privilege is not accepted within the time 
 allowed, a final judgment is entered.-'* Before the adoption of 
 the jDresent Code, it was held that the costs granted upon the de- 
 cision of a demurrer to a part of the issues raised by the plead- 
 ings were final, not interlocutory.^^ But these cases on this point 
 have been rendered obsolete by the adoption of the present Code. 
 §§ 3232 and 3233 of the Code of Civil Procedure. 
 
 99. Costs by whom taxed. — The order should expressly pro- 
 vide for the taxation of the costs before the clerk of the county 
 in which the action is brought or before a judge, designating 
 him.^^ 
 
 The general practice seems to be to have the costs taxed by the 
 clerk in the usual way.^^ 
 
 "^Castro V. White, 52 Hun, 473, 17 strong v. Cummings, 22 Hun, 570; 
 
 X. Y. Civ. Proc. Rep. 46, 23 N. Y. S. Palmer v. Smedley, 13 Abb. Pr. 185. 
 
 R. 535, 5 N. Y. Supp. 718; Bernheim- ''Marsh v. Graham, 19 Misc. 263, 
 
 cr V. Bartmayer, 34 Misc. 346, 69 N. 44 N. Y. Supp. 253 ; Code Civ. Proc. 
 
 Y. Supp. 816. § 3262. 
 
 ^"Mora V. Sun Miit. Ins. (Jo. 22 '-Marsh v. Graham, 19 Misc. 263. 
 
 How. Pr. GO, 13 Abb. Pr. 304; Ann- 44 N. Y, Supp. 253.
 
 CIIAPTEK VIII. 
 
 COSTS AS REGULATED BY THE RELIEF SOUGHT AND BY THE 
 JUDGMENT RENDERED. 
 
 100. Generally. 
 
 101. Action to recover real property. 
 
 a. When claim of title arises upon the pleadings. 
 
 (1) In general. 
 
 (2) Unnecessary allegations of title. 
 
 ( 3 ) United with another cause of action. 
 6. Ejectment. 
 
 c. The question of title to real estate must be involved. 
 
 d. Lack of jurisdiction. 
 
 e. Action for dower. 
 
 f. Trespass. 
 
 g. Plea of license. 
 
 h. Plea that the land is a highway. 
 t. Actions in relation to easements. 
 j. Actions between landlord and tenant. 
 k. Title to real estate proven as a matter of evidence. 
 I. Action commenced in a justice's court. 
 
 m. Power of the justice's court before removal of the action. 
 n. Action to abate a nuisance, 
 o. Action for trespass and assault and battery. 
 p. Certificate of judge that question of title arose on the trial. 
 
 102. Action to recover a chattel. 
 
 a. In general. 
 
 ft. The value of the chattels as fixed by the verdict. 
 
 c. Action by finder to recover lost property from depositary. 
 
 103. Actions of which a justice of the peace has not jurisdiction. 
 
 a. In general. 
 
 6. Assault and battery. 
 
 c. Alienation of affections. 
 
 d. Malicious prosecution. 
 
 e. Action for causing death. 
 
 104. Other actions where the recovery is less than $50. 
 
 a. In general. 
 
 h. Actions where the sum total of the accounts proved exceed $400. 
 
 c. How the amount is computed. 
 
 d. When the plaintiff is entitled to costs. 
 
 e. When the defendant is entitled to costs. 
 
 107
 
 108 THE LAW OF COSTS IN NEW YORK. 
 
 f. Where the accounts do not exceed $400. 
 
 ^f. Recovery reduced below $50 by tlie interposition of a counterclaim 
 by the defendant. 
 
 h. Recovery reduced below $50 by payments made after the com- 
 mencement of the action. 
 
 i. Recovery increased above $50 by the addition of interest which has 
 accrued since the commencement of tlu; action. 
 
 j. Miscellaneous cases where the recovery was less than $50. 
 
 100. Generally. — The cases in which the successful pa^ty is 
 entitled to costs upon recovering final judgment are designated 
 in §? 8228-3229 of the Code of Civil Procedure. 
 
 101. Action to recover real property. — The plaintiff is enti- 
 tled to costs, of course, upon the rendering of a final judgment 
 in his favor in "an action triable by a jury to recover real prop- 
 erty, or an interest in real property ; or in which a claim of title 
 to real property arises upon the pleadings, or is certified to have 
 come in question upon the trial." Section 3228, subd. 1. It 
 will be noticed that there is no limitation as to the value of the 
 property or amount of the damages recovered to entitle tlie suc- 
 cessful party to costs. In may cases there can be no damages 
 assessed. If any are assessed they have no bcai'ing upon the 
 right to costs. ^ 
 
 In an action to compel the determination of a claim to real 
 property tlie defendant, if ho puts in issue the question whether 
 the plaintiff or those under whom he claims title has been in pos- 
 session of the land in dispute for one year next preceding the 
 commencement of the action, and succeeds upon that defense, is 
 entitled, as a matter of right, to costs in the final judgment dis- 
 missing the complaint. Code Civ. Proc. § 1640. 
 
 If the defendant does not join issue with the plaintiff, no costs 
 can be awarded to either party. Code Civ. Proc. § 1645. 
 
 The phrase "a claim of title to real property arises upon the 
 pleading" does not mean tliat a claim of title arises from a mere 
 assertion of title in the complaint, even in a case where, if the 
 
 'Utter V. Gifford, 25 How. Pr. 289.
 
 REGULATED BY RELIEF AND JUDGMENT. 109 
 
 title were disputed, it would be incumbent upon the plaintiff to 
 prove it at the trial. A claim of title in the complaint is not a 
 claim of title in the pleadings. Tlie phrase has reference to a 
 case where both parties in the pleadings claim the title, or when 
 one claims it and the other disputes it.^ The prevailing ])arty 
 is entitled to costs, as a matter of right, where the title of land 
 comes in question, only in actions at law, not in actions in 
 equity.^ 
 
 a. When claim of title arises upon the pleadings. (1) Ln gen- 
 eral.— It is sufficient to entitle the prevailing party to costs, if 
 the title to real property arises on the pleadings,* although upon 
 the trial the opposite party admits the title of the successful 
 party,^ because he was compelled to be ready to prove title and 
 had incurred all the trouble and expense to prove that fact, and 
 tlie admission only saves him the trouble of introducing proof 
 that he has prepared. The claim of title arises on the pleadings 
 \\'here the plaintiff must show title in himself to recover, and the 
 defendant makes a general denial^ or denies facts relating to 
 title which the plaintiff' nuist prove upon the trial in order to 
 recover.''' 
 
 (2) Unnecessary allegations of title. — The title to real estate 
 does not arise upon the pleadings, when the pleader makes un- 
 necessary allegations as to ownership of real estate, although his 
 opponent makes a general denial of all the allegations in the 
 pleadings.'^ 
 
 -Lynk V. Weaver, 128 N. Y. 171, 311, Affirmed in 21 N. Y. 4fiG; Mul- 
 
 28 N. E. 508. Icr v. Bayard, 15 Abb. Pr. 449; 
 
 ^Law V. McDonald, 9 Hun, 23. Learn v. Currier, 15 Hun, 184, Af- 
 
 ^ISliles V. Lindsley, 8 How. Pr. 131, firmed in 76 N. Y. 625. 
 
 1 Duer, 610; Dempsey v. Hall, 3 ^Moody v. Steele, 11 N. Y. Civ. 
 
 Jones & S. 201. Proc. Eep. 205, 3 N. Y. S. R. 269; 
 
 '-Duncl-el v. Farley, 1 How. Pr. Learn v. Currier, 15 Hun, 184, Af- 
 180; Euhlell v. Rochester, 8 Cow. firmed in 76 N. Y. 625; Blooming- 
 US. dale V. Stcubing, 14 Misc. 549, 36 N. 
 
 ^Crowell V. Smith, 35 Hun, 182; Y. Supp. 1074: Rathhone v. McCon- 
 
 Dunckel v. Farley, 1 How. Pr. 180. nell, 21 N. Y. 466. 
 
 ''Rathhone v. McConnell, 20 Barb.
 
 110 THE LAW OF COSTS IN NEW YORK. 
 
 This has been held in actions for assault and battery,^ for 
 damages for the bite of a dog, and the answer alleges that the 
 plaintiff was a trespasser ;^^ in an action for conversion because 
 assessors had assessed real property to the plaintiff which did 
 not belong to him, and the plaintiff's personal property had been 
 sold to satisfy the tax thus levied ;^^ and in actions by a landlord 
 against his tenant for breach of covenant of the ler.se,^^ and for 
 damages caused by the ten ant. ^^ 
 
 (3) United with another cause of action. — The plaintiff' is 
 not entitled to costs when he joins with a personal cause of action 
 upon which lie recovers less than $50, a cause of action in which 
 the title to real estate arises, and he is defeated on the latter.^ ^ 
 A claim of title to real property arises upon the pleadings only 
 when such an issue is essentially or legitimately presented by the 
 pleadings.-'^ 
 
 h. Ejectment. — The successful party is entitled to costs in an 
 action brought to recover real property, upon which the plaintitT 
 claims that the defendant has built, where the defendant admits 
 that the plaintiff is entitled to the property described in the com- 
 plaint, but denies that his buildings encroached upon the land 
 thus described.^® 
 
 Both parties are entitled to costs where the action is brought 
 to recover two parcels of land, and eacli party succeeds as to one 
 parcel, as this is a case directly within the provision of § 3234 
 of the Code of Civil Procedure.^' Title to real estate comes in 
 
 "Langdon v. Guy, 91 N. Y. 660; "Burhans v. Tibbits, 7 How. Pr. 
 
 Welsh V. Fallihee, 75 Hun. 308, 56 74; l^hull v. Green, 49 Barb. ,311; 
 
 N. Y. S. R. 777, 27 N. Y. Supp. 81. Hill v. Edie, 24 N. Y. Week. Di":. 
 
 ^"Picrref v. Moller, 3 E. D. Smitli. 124: Situ felt v. f^weet, 15 N. Y. Week. 
 
 574. Dig. 1; Alexander v. Hard, 42 How. 
 
 ^'Bailey v. Daigler, 50 Hun, 538, vi. 131. 
 
 20 N. Y. S. R. 549, 3 N. Y. Supp. "-Bailey v. Daigler, 50 Hun, 538, 
 
 718. 20 X. Y. S. R. 549, 3 N. Y. Supp. 718. 
 
 ^-Aaron v. Foster, 11 N. Y. Civ. '"Leprell v. Kleinschmidt , 112 N. 
 
 Proc. Rep. 325. 3 N. Y. S. R. 270. Y. 364. 21 N. Y. S. R. 30, 19 X. K. 
 
 ^'Cleveland v. Wilder, 78 Hun, 591, 812. 
 
 60 N. Y. S. R. 764, 29 N. Y. Supp. "Coon v. Diefendorf, 2 How. Pr. 
 
 209. N. S. 389. 8 N. Y. Civ. Proc. Krp.
 
 EEGUT.ATED BY RELIEF AXD JUDGMENT. Ill 
 
 question in an action by tlie grantee against tlie grantor to re- 
 cover back the amount of the purchase price, because he was 
 evicted by paramount title. -^^ 
 
 c. The question of title to real estate tnust he involved. — It is 
 not sufficient that the question relate to real estate. The title 
 must be in question. ^^ The title to real estate does not arise in 
 an action brought on a land contract, for damages for failure to 
 perform.^° 
 
 d. Lack of jurisdiction. — The plaintiff is not entitled to costs, 
 although the court decides the question of title to real estate in 
 his favor, if the court had no power to try the question.^^ 
 
 e. Action for doiver. — In an action for dower the fees and ex- 
 penses of the commissioners, or of the referee, including the ex- 
 pense of a survey, when it is made, must be taxed under the di- 
 rection of the court, and the amount thereof must be paid to the 
 plaintiff and allowed to her upon the taxation of her costs. Code 
 Civ. Proc. § 1612. She is also entitled upon recovering judg- 
 ment, to a full bill of costs.^^ Where the case is sent to a ref- 
 eree for trial, his failure to award costs does not affect the plain- 
 tiff's right thereto,^'^ because this is an action to recover real 
 property, and is triable by a jury under § 968 of the Code of 
 Civil Procedure.^'^ It was decided in an action tried before the 
 last nine chapters of tlie Code of Civil Procedure took effect, that 
 the costs in such an action were in the discretion of the court.^' 
 These cases have been rendered obsolete by such enactment. 
 
 293; Acl-crman v. DeLude, 20 N. Y. '^Everson v. McMnllen, 45 Hun, 
 
 Week. Dig. 544; Seymour v. Billings, 578, 10 N. Y. S. R. 627, Reversed on 
 
 12 Wend. 285; Martin v. Martin, 3 other grounds in 113 N. Y. 293, 22 
 
 How. Pr. 203. N. Y. S. R. 787, 4 L. R. A. 118, 10 
 
 ^^Miimford v. Withey, 1 Wend. 279. Am. St. Rep. 445, 21 N. E. 52. 
 
 ^^Collins V. Adams, 15 N. Y. Civ. ^Jones v. Emery, 1 N. Y. Civ. 
 
 Proc. Rep. 384. 19 N. Y. S. R. 48, 4 Proc. Rep. 338. 
 
 N. Y. Supp. 217. ^*Jones v. Emery, 1 N. Y. Civ. 
 
 -"Altmun v. Tillson, 10 N. Y. S. R. Proc. Rep. 338; Vadney v. Thomp- 
 
 -^^^- son, 44 Hun, 1, 6 N. Y. S. R. 395; 
 
 "■^Wilkins v. Williams, 15 N. Y. Kinne v. Kinne, 2 Thonip. & C. 393. 
 
 Civ. Proc. Rop. 168. 17 N. Y. S. R. "^Aikman. v. Harsell, 31 Hun, 634, 
 238, 3 N. Y. Supp. 897.
 
 112 THE LAW OF COSTS IN NEW YORK. 
 
 /. Trespass. — The title to real estate arises upon the plead- 
 ings when an action is brought for trespass and the defendant 
 denies the plaintiff's title, whether by general denial,-^ or specif- 
 ieallj, — as, where the defendant sets up adverse possession, or pre- 
 scriptive right in the land in question, as, a right to overflow the 
 plaintiff's land;^^ or the defendant seeks to justify the alleged 
 trespass by proof of a right of common of estovers as tenant,^^ or 
 a right of way, either by grant or prescription.^^ It also arises 
 whore the plaintiff must prove title in order to maintain his ac- 
 tion, — as, where the land is wild and uncultivated and the plain- 
 tiff must prove constructive possession,^" or where the payment 
 of rent and the right of possession is in dispute.^ ^ The question 
 of title to real estate does not arise where the question involved 
 is whether the alleged trespass was committed within the admit- 
 ted bounds of the plaintiff's land,^^ or where the question in- 
 volved Avas whether the plaintiff had suffered any damage from 
 the alleged trespass,^^ or where the plaintiff is not compelled to 
 prove title to establish constructive possession. ^^ 
 
 The title to real estate arises in an action for damages to the 
 freehold, but does not arise in an action for injury to posses- 
 sion.^^ It does not arise in an action for a nuisance, where the 
 damage is not a permanent injury, but only to the right of pos- 
 session. In an action for damages to the freehold, the question 
 would only arise in case the defendant denied the plaintiff's 
 title.36 
 
 5 N. Y. Civ. Proc. Rep. 93; Schler- ^-Heintz v. DeUinger, 28 How. Pr. 
 
 loh V. Schierloh, 14 Hun, 572. 39. 
 
 '^Horlon v. Jordan, 32 N. Y. S. R. ^Dunster v. Kelly, 110 N. Y. 558, 
 
 920, 11 N. Y. Supp. 2. 18 N. Y. S. R. 548, 18 N. E. 361. 
 
 "Tunnicliff v. Lawyer, 3 Cow. 382; ^*Brown v. Majors, 7 Wend. 495. 
 
 Eustace v. Tuthill, 2 Johns. 185. ^Dean v. Metropolitan Elev. R. 
 
 =^Radley v. Brice, 6 Wend. 539. Co. 119 N. Y. 540, 23 N. E. 1054; 
 
 ^Heaton v. Ferris, 1 Johns. 146. Kelly v. Manhattan Beach R. Co. 81 
 
 ""'Hubbell V. Rochester, 8 Cow. 115. X. Y. 233; Brven v. Manhattan R. 
 
 "^Powers V. Conroy, 47 How. Pr. Co. 20 N. Y. Civ. Proc. Rep. 127, 39 
 
 84; Dempsey v. Hall, 3 Jones & S. N. Y. S. R. 86, 14 N. Y. Supp. 788. 
 
 201. ^Qtiinn v. Winter, 22 Abb. N. C.
 
 REGULATED BY RELIEF AND JUDGMENT. 113 
 
 g. Plea of license. — A claim of license does not necessarily in- 
 volve the question of title. If the license is alleged to be from 
 the plaintiii", it does not arise.^" If the validity of the license 
 from another is in question, it does not arise. "^^ It does not 
 arise although the right of the licensor to give the license is de- 
 nied by the reply.^^ 
 
 The question does not arise where the defendant justifies, by 
 means of a parol license, the damage to the plaintiff, caused by 
 overflowing the plaintifl:"'s land ;^*^ nor where he justifies by a 
 parol license the entry upon plaintiff's land for the purpose of 
 opening a drain,'*^ or cutting and carrying away grass,^^ or 
 where he pleads a like justification for a trespass upon imin- 
 closed land covered with Avater,'*^ or for damages for a diver- 
 sion of water from a stream."*^ But the title to real estate does 
 arise in an action against a municipal corporation brought to re- 
 cover damages for causing a sewer to overflow the land of the 
 plaintiff', and the answer is that the alleged sewer is a water- 
 course, and defendant claims a right by prescription to maintain 
 
 i+ 45 
 
 li. Plea that the land is a highway. — The defendant is entitled 
 to costs where he admits title in the plaintiff', and the trespass by 
 himself, the damages for which are less than $50, but justifies 
 
 462, 25 N. Y. S. R. 851, 4 N. Y. Siipp. ^Launitz v. Barnum, 4 Sandf. 637. 
 
 865. But see Mechl v. SchiciecJcart, 67 
 
 ^'Mechl V. Schirirrlart, 67 Barb. Barb. 599, 3 N. Y. Week. Dig. 405. 
 
 599, 3 N. Y. Week. Dig. 405; Powers ^"Mechl v. Schwieclcart, 67 Barb. 
 
 V. Gross, 6 Hun, 234; Seaman v. 599, 3 X. Y. Week. Dig. 405. 
 
 Glegner, 3 Hun, 119; Yeic v. An- *%liandler v. Duune, 10 Wend. 563, 
 
 thonij, 4 I\un, o3; O'Reilhj V. Davies, 23 Am. Dec. 578; Otis v. Hall, 3 
 
 4 Sandf. 722 ; Poirell v. liiisf, 8 Barb. Johns. 450. 
 
 567, N. Y. Code Rep. X. S. 172; Lau- *^People ex rel. Fryer v. 'New York 
 
 nitz V. Barnum, 4 bandf. 637; Craven Common Pleas, 18 Wend. 579. 
 
 V. Price, 37 How. Pr. 15, 53 Barb. "^Craven v. Price, 53 Barb. 442, 37 
 
 442: Turner v. VanRiper, 43 How. How. Pr. 15. 
 
 Pr. 33; Muller v. Bayard, 15 Abb. "^Yickham v. Seely, 18 Wend. 649. 
 
 Pr. 499; Dunsier v. Kelly, 110 N. Y. ''liathbone v. McConnell, 21 K Y. 
 
 558, 18 N. E. 361; DoUttle v. Eddy, 466. 
 
 7 Barb. 74; Utter v. Gifford, 25 Rovf. *''Grcen v. Canandaigxia, 30 Hun, 
 
 Pr. 289. 306. 
 COSTS 8.
 
 114 TJIE LAW OF COSTS IN MEW YORK. 
 
 under a law wliicli provided for the laying out of a highway, 
 which is subsequently declared unconstitutional ;^° or under pro- 
 ceedings instituted to lay out a highway, which have been discon- 
 tinued ;^'^ or under a plea that the land where the alleged tres- 
 pass occurred was a highway, and succeeds upon that issue.^* 
 But a plea in an action for trespass, of a right reserved between 
 grantor and grantee to enter and carry away growing vines and 
 shrubs, raises the question of title.'*^ 
 
 It was held under the Revised Statutes that w^here the dam- 
 ages in an action for trespass are trebled by the court, so that 
 they amount to more than $50, the plaintiff is entitled to costs.^*^ 
 These decisions have been rendered obsolete by a change in the 
 statute.^^ 
 
 i. Actions in 'relation to easements. — The question of title to 
 real estate comes in issue when it relates to an easement of one 
 of the parties over land belonging to the state, or the right of the 
 state to an easement over the real estate of the plaintiff,^^ or for 
 damages to an easement, where the defendant denies any knowl- 
 edge of ownership.^^ The question of title does not arise in an 
 action for damages resulting from the obstruction of the approach 
 to the plaintiff's upland from a river.^* But it arises in an ac- 
 tion to recover damages caused by the construction and mainte- 
 nance of an elevated railroad.^^ 
 
 j. Actions l>etween landlord and tenant. — The question of title 
 
 ''Dexter v. Alfred, 74 Hun, 259, 56 tracting Co. 43 App. Div. 215, 60 N. 
 
 N. Y. S. R. 264, 26 N. Y. Supp. 592. Y. Siipp. 12. 
 
 "Guernsey v. Davidson, 7 Alb. L. ^^Bruen v. Manhattan R. Co. 20 N. 
 
 J. 204. Y. Civ. Proc. Rep. 127, 39 N. Y. S. R. 
 
 *^Hcaih V. Barmour, 35 How. Pr. 86, 14 N. Y. Supp. 788; .Jones v. 
 
 1, 50 Barb. 444, Affirmed in 50 X. Y. Metropolitan Elev. R. Co. 27 Jones 
 
 302. & S. 437, 14 N. Y. Supp. 632. 
 
 "Powell V. Rust, 8 Barb. 567, X. Y. "^Rumscy v. Xew York d- N. E. R. 
 
 Code Rep. N. S. 172. Co. 50 N. Y. S. R. 253, 21 N. Y. 
 
 "^A'ejHt/ V. /n.7)«/iam, 66 Barb. 250; Supp. 193. 
 
 Jcrmain v. Booth, 1 Denio, 639. '^'-I'ovcrs v. Manhattan R. Co. 20 
 
 '■'Lijnk V. ^Ycaver, 128 X. Y. 171, X. Y. Civ. Proc. Rep. 78, 14 X. Y. 
 
 28 N. E. 508. Supp. 130. 
 
 ^'Slingerland v. International Con-
 
 KEGUI.ATED BY BELIEF AND JUDGMENT. 115 
 
 arises in an action by the landlord against a tenant for dam- 
 ages to real estate, where the answer is a general denial f^ or in 
 an action for mesne profits, where the answer is a general de- 
 nial f"^ or in an action for damages for trespass in removing fur- 
 niture, where the question is whether the plaintiff is a tenant of 
 the defendant or a trespasser f^ or in an action for damages for 
 the destruction of furniture, where the plaintiff alleged that he 
 was lawfully in possession of a house, and the defendant alleged 
 that the title was in a tliird person ;^^ or in an action for tres- 
 pass, where tlie defendant claimed as tenant.^^ 
 
 k. Title to real estate proven as a matter of evidence. — 'A; 
 party in an action where his title is not denied cannot, by prov- 
 ing his title, in order to make his case more sure, bring the ques- 
 tion of title of real estate in question, and thus be entitled to 
 costs upon a recovery of less tlian $50.^^ 
 
 The defendant, by claiming that title to real estate comes in 
 question, and forcing the plaintiff to prove his title, is estopped 
 from afterwards claiming that title to real estate does not come 
 in question.^2 
 
 k. Title to real estate proven as a matter of evidence. — A 
 menced in a justice's court, where a plea of title has been inter- 
 posed under § 2951 of tlie Code of Civil Procedure, the costs in 
 the new action, brought as provided by §§ 2952 et seq., are de- 
 termined as though the action had been originally brought in the 
 supreme court. The party succeeding on the question of title 
 is entitled to costs. The defendant has the burden of proving, 
 in the first instance, that the title to real property is involved. 
 In case of his failure to prove this, he must pay costs to the 
 plaintiff to compensate him for the added expense of trying hi;^ 
 
 '^Dempsey v. Eall, 3 Jones & S. N. Y. S. R. 620, 23 N. Y. Supp. 402. 
 
 201. ^Boxjle V. Lawton, 3 How. Pr. N. 
 
 "Broadivay v. 8cott, 31 Hun, 378; S. 444. 
 
 Ainslie v. New York, 1 Barb. 168. '^Burnet v. Kelly, 10 How. Pr. 406. 
 
 ^Powers V. Conroy, 47 How. Pr. ^'-Foster v. Romer, 15 N. Y. Week. 
 
 84. Dig. 487. 
 
 ^^Farrell v. Eilh 69 Hun, 455, 52
 
 116 THE LAW OF COSTS IN NEW YORK. 
 
 case in a court of record. The defendant must also prove, not 
 only diat the title to real estate is in question, but he must suc- 
 ceed upon his claim of title. Unless he succeeds in both re- 
 spects, he has raised a question upon which he has been beaten, 
 when the plaintiff had brought an action to decide another ques- 
 tion, ill a court where the expense would be small, and has been 
 compelled to litigate not onlv that question, but the question of 
 title in a court of record. 
 
 The plaintiff is entitled to costs, though he recovers less than 
 $50, when he succeeds as to any part of the title, if the defend- 
 ant has justified his acts thereunder.^^ 
 
 To entitle the defendant to costs, although he obtains final 
 judgment in his favor, he must obtain a certificate that the title 
 to real property came in question on the trial.^'* In the event of 
 his failure to obtain such a certificate, the plaintiff can tax his 
 costs.^^ 
 
 The defendant is entitled to costs where the plaintiff, after 
 commencing an action in the supreme court, fails to establish his 
 title, which it is necessary for him to do in order to recover,^*' 
 or makes default upon the trial, "^^ or does not attempt to prove 
 the trespass alleged,^^ or has unnecessarily alleged title.^^ The 
 defendant is also entitled to costs when he succeeds in the su- 
 preme court upon the question of title,"*^ or succeeds upon the 
 question of title to that portion of land in dispute, and the plain- 
 tiff recovers less than $50 damages for trespass upon that por- 
 tion of the land not in dispute."^ 
 
 '"Heath v. Barmour, 53 Barb. 444, "Gates v. Canfield, 28 Hun, 12, 64 
 
 35 How. Pr. 1 ; Burhans v. Tibbits, How. Pr. 81, 2 X. Y. Civ. Proc. Rep. 
 
 7 How. Pr. 74; Hnll v. Hodskins, 30 (McCarty) 255. 
 
 How. Pr. 15: Randals v. Thonton, ^Falkel v. Moore, 32 Hun, 293. 
 
 4 Alb. L. J. 76; Locklin v. Casler, "^Squires v. Seward, 16 How. Pr. 
 
 50 How. Pr. 43. 478. 
 
 ^ Code Civ. Proc. § 3235. '"Morss v. SaUshuri/, 48 N. Y. 636. 
 
 '^Taylor v. Wright, 36 App. Div. "^Harding v. EUston, 19 N. Y. Civ. 
 
 568, 55 N. Y. Supp. 761. Proc. Rep. 252, 13 N. Y. Supp. 549. 
 
 ""Saunders v. Goldthrite, 41 Hun, 
 •212.
 
 KEGDI.ATED BY BELIEF AND JUDGMENT. 117 
 
 m. Power of the jv.stice's court before removal of the action. 
 — A justice of the peace has jurisdiction of an action in which a 
 plea of title has been interposed, until the undertaking provided 
 by law is delivered to him. There is no provision for a justifica- 
 tion of sureties before him, but he doubtless can disapprove of the 
 sureties offered, if he notes in his record his reason for such dis- 
 approval, and thus retain jurisdiction of the ease^ in which case 
 he should return the undertaking. If the undertaking is not 
 delivered, the justice retains jurisdiction, but upon the trial the 
 defendant cannot introduce any evidence to sustain his plea of 
 title. Although upon a new trial in the county court upon ap- 
 peal from the judgment rendered by the justice, the county 
 court, having a right to try the question of title to real estate, 
 must hear such evidence as is presented to it upon the questions 
 involved, although the defendant may have waived some of his 
 rights in the trial before the justice.''^ 
 
 Under § 2958 of the Code of Civil Procedure, where a plea 
 of title is interposed to only one of two or more causes of action, 
 and there are other causes of action to which that plea is not 
 interposed, the justice must try those to which no plea of title is 
 interposed. Under proper practice there cannot arise a case 
 where the defendant could succeed in the supreme court upon a 
 question of title, and the plaintiff still have an affirmative judg- 
 ment. 
 
 n. Action to abate a nuisance. — Costs are not allowed as a 
 matter of right in an action to abate a nuisance,'^^ but rest in the 
 discretion of the court. If the title to the real estate is dis- 
 puted, then the successful party is entitled to costs, as a matter 
 of right Where a plaintiff founds his right to recover for a 
 nuisance upon the fact that he is the owner and possessor of cer- 
 
 '"'Gould V. Patterson, 63 Hun, 575, "Le Roy v. Broicne, 54 Hun, 584, 
 
 28 Abb. N. C. 385, 22 N. Y. Civ. Proc. 18 N. Y. Civ. Proc. Rep. 125. 28 N. 
 
 Rep. 230. 45 X. Y. S. R. 85, 18 N. Y. Y. S. R. 210, 8 N. Y. Supp. 82. 
 Supp. 332.
 
 118 THE LAW OF COSTS IN NEW YOKK. 
 
 tain real estate, and the defendant denies such i:)ossession and 
 ownership, the title to real estate comes in question.''''* 
 
 0. Action for trespass and assault and hattery. — The plaintiff 
 upon a recovery of less than $50 is not entitled to full costs in 
 an action for assault and battery, although he alleges that he 
 owned certain premises and the defendant entered thereon and 
 commited an assault upon him, and the defendant alleges that 
 another owned tlie premises and the plaintiff wrongfully entered 
 and committed an assault upon the owner. It is an action for 
 simple assault, and no injury to the freehold is alleged. The al- 
 legations of ownership are mere matters of description, and not 
 facts upon which the right of either party depends.''^ But if in 
 an action for assault and battery the judge certifies that the title 
 to real estate comes in question, the plaintiff is entitled to a full 
 bill of costs, although he recovers less than $50."^® 
 
 p. Certificate of judge that question of title arose on the trial. 
 — Although a claim of title does not arise upon the pleading, yet 
 the successful party is entitled to costs, whatever the amount of 
 the verdict, if a certificate of the trial judge or referee is given, 
 showing that a question of title arose upon the trial. Such cer- 
 tificate is conclusive upon the taxing officer. '^'^ Under such a 
 certificate the plaintiff is entitled to costs, although he recovers 
 less than $50, where he fails in proving title, but only shows pos- 
 session.'^^ If the certificate is improperly granted, the remedy 
 of the party aggrieved is by motion at special term, not by ap- 
 peal.'^'^ The granting of such a certificate is such an interme- 
 
 '^Quinn v. JVinter, 22 Abb. N. C. Civ. Proc. Rep. 138; Lillis v. O'Con- 
 
 462, 25 N. Y. S. R. 851, 4 N. Y. Supp. ncr, 8 Hun, 280; Dinehart v. Wells, 
 
 865. 2 Barb. 432, Affirmed by Court of 
 
 "U'eZs/i V. FaUihee, 75 Hun, 308, Appeals, July 2, 1850, no opinion 
 
 56 N. Y. S. R. 777, 27 N. Y. Supp. 81. and report; New York v. Hillsburgh, 
 
 '•"lAllis V. O'Connor, 49 How. Pr. 2 N. Y. Code Rep. 152. 
 497, Afiirmed in 8 Hun, 280. ''Norton v. Jordan, 32 N. Y. S. R. 
 
 ''''Cooley V. Cumminga, 24 Jones & 920, 11 N. Y. Supp. 2. 
 S. 521, 17 N. Y. Civ. Proc. Rep. 145, '-"Cooley v. Cummings, 24 Jones & 
 
 24 N. Y. S. R. 172. 4 N. Y. Supp. S. 521, 17 N. Y. Civ. Proc. Rep. 145, 
 
 530; Davies v. WilUams, 13 N. Y. 24 N. Y. S. R. 172, 4 N. Y. Supp.
 
 KEGULATED BY KELIEE AND JUDGMENT. 119 
 
 diate order tliat when specified in the notice of appeal, it will be 
 brought up for review by an appeal from the final judgment.^*' 
 On a motion to vacate the certificate, the court can review thr 
 grounds upon which the certificate was granted.*^ 
 
 Upon a motion for that purpose a judge may correct an order 
 made by him, giving costs to the wrong party. He has no power 
 to order costs to a party when the statute gives them otherwise.^^ 
 
 Iso certificate is needed to enable the plaintiff to tax a full bill 
 of costs, whatever may be the size of the verdict in his favor, 
 where the title to real estate comes in question upon the plead- 
 ings.^^ 
 
 102. Action to recover a chattel, a. In general. — In an ac- 
 tion to recover several articles of personal property, where the 
 complaint contains only one cause of action and the plaintiff 
 recovers a portion of the property and the defendant the balance, 
 the plaintiff alone is entitled to costs. ^'^ The cases that held that 
 where the defendant succeeded as to a part of the goods, and 
 the plaintiff as to the rest, both parties were entitled to costs, 
 have been overruled, and it has been held that cases under the 
 Kevised Statutes are not applicable to cases arising under the 
 Code of Civil Procedure.^^ 
 
 This rule can work no injustice to the defendant, as, by an of- 
 fer of judgment, he can throw upon the plaintiff the responsibil- 
 ity for costs incurred in prosecuting an unsuccessful litigation 
 
 530; Davies v. ^Yimams, 13 X. Y. ^^Neioell Universal Mill Co. v. 
 Civ. Proc. Rep. 138; Barney v. Muxloto, 115 N. Y. 170. 17 N. Y. Civ. 
 Keith, 6 Wend. 555; Mumford v. Proc. Rep. 238, 24 N. Y. S. R. 545; 
 Witheif, 1 Wend. 279; Burhans v. Mertens v. Fitzwater, 53 Hiin, 597, 
 TibMts, 7 How. Pr. 75: Niles v. 17 K Y. Civ. Proc. Rep. 277, 25 N. 
 Lindsley, 1 Eyer, 610; Utter v aif- Y. S. R. 305, 6 N. Y. Supp. 797; Kil- 
 ford, 25 How. Pr. 297. hum v. Loioe, 37 Hun, 237; Yowles 
 
 ^"Coolei/ v. Cummings, 24 Jones & v. Murray, 50 How. Pr. 159; Acker- 
 S. 521, 17 N. Y. Civ. Proc. Rep. 145, man v. O'Gorman, 2 Silv. Sup. Ct. 
 24 N. Y. S. R. 172, 4 N. Y. Supp. 109, note, 17 N. Y. Civ. Proc. Rep. 
 530. 275, 25 N. Y. S. R. 170, 6 N. Y. Supp. 
 
 ^^Barney v. Keith, 6 Wend. 555. 825: Stoddard v. Clarke, 9 Abb. Pr. 
 
 ^-Boardway v. Scott, 31 Him, 378. N. S. 310. 
 
 "^KelJy v. New York d M. B. R. ^^Xeicell Universal Mill Co. v. 
 Co. 1 Month. L. Bull. 43, Affirmed in Miixloic. 115 N. Y. 170, 17 N. Y. Civ. 
 19 Hun, 363. Proc. Rep. 238. 24 N. Y. S. R. 545.
 
 120 THE LAW OF COSTS IN NEW YORK. 
 
 as to any article of property described in the complaint. The 
 same rule applies where an offer of judgment for the return of 
 a portion of the goods in question, together with a certain sum for 
 damages for detention, is accepted, and judgment is entered 
 thereon. Plaintiff's costs are limited by the amount of the 
 value of the chattel, as fixed in the offer of judgment plus the 
 amount of damages, if that sum is less than $50.^^ In an ac- 
 tion to recover several articles of personal property where the 
 complaint sets forth two or more causes of action upon which is- 
 sues of fact are joined, if the plaintiff succeeds as to one or more, 
 and defendant upon the other or others, each party is entitled to 
 costs against tlie adverse party, unless it is certified that the sub- 
 stantial cause of action was the same upon each issue, in which 
 case the plaintiff only is entitled to costs.^' 
 
 b. The value of the chattels as fixed by the verdict. — The 
 amount of costs recoverable by the plaintiff in an action in re- 
 plevin cannot exceed the value of the chattel as fixed by the trial 
 court, together with the damages, where such sum is less than 
 $50.^^ If such sum is $50 or more, the plaintiff is entitled to a 
 full bill of costs, notwithstanding the defendant recovers prop- 
 erty exceeding that sum.^^ The plaintiff is not entitled to costs 
 Avhere the verdict simply awards the chattels to the plaintiff", 
 without fixing the value thereof.^" If tlie action is tried upon 
 an appeal from a judgment of a justice's court, the plaintiff can- 
 not resort to the judgment of the justice's court to aid him in 
 fixing the value of the chattels.^^ 
 
 ^HaTisaiier v. Machawicz, 54 App. ^''Stoddard v. Clarke, 9 Abb. Pr. 
 
 Div. 23, 66 N. Y. Supp. 340. X. S. 310. 
 
 "'Code Civ. Proc. § 3234; Code ^WoJff v. Moses, 26 Misc. 500, 6 
 
 Civ. Proc. § 3228, subdiv. 2; Newell N. Y. Anno. Cas. 163, 57 N. Y. Supp. 
 
 f'niversnl Mill Co. v. Muxloio, 115 696; Herman v. Girvin, 8 App. Div. 
 
 y. Y. 170, 17 N. Y. Civ. Proc. Rep. 418, 40 N. Y. Supp. 845. 
 
 238. 24 N. Y. S. R. 545. "Lockwood v. Waldorf, 91 Hun, 
 
 ^'Wilkins v. Williams, 15 N. Y. 281, 70 N. Y. S. R. 855, 36 N. Y. 
 
 Civ. Proc. Rep. 168, 17 N. Y. S. R. Supp. 199 
 238. 3 N. Y. Supp. 897: Code Civ. 
 IMoc. § 3228, subdiv. 2.
 
 KEGULATED BY BELIEF AND JUDGMENT. 121 
 
 The plaintiff cannot show by affidavit the vahie of the goods 
 recovered bv him, where he has failed to do so on the trial.^^ It 
 has been held that where the plaintiff has the goods in his pos- 
 session, and he recovers a judgment that he is entitled to retain 
 ibem, he is entitled to tax a full bill of costs, although the value 
 of the goods was not fixed, and no damages were recovered for 
 the detention of the goods. ^'^ But this ruling has been criti- 
 cised, and, doubtless, would not now be followed. ^^ 
 
 The plaintiff is not entitled to costs when he recovers a judg- 
 ment for money only, of less than $50 in an action where the 
 complaint could be either for conversion or replevin,'''^ because 
 he accepted a judgment which is consistent with the action for 
 conversion, and he could have obtained the same judgment in an 
 inferior court. ^"^ 
 
 c. Action hy finder to recover lost property from depositary. 
 — Where a finder of lost property gives it to a third party to be 
 delivered to the rightful o^vner, who never claims it, he is enti- 
 tled to costs in an action to recover it from the depositary, al- 
 though after such verdict the rightful owner claims the property 
 and the finder is enjoined from receiving the money or entering 
 judgment upon the verdict recovered by him.^^ 
 
 103. Actions of which a justice of the peace has not jurisdic- 
 tion, a. In general. — The plaintiff is entitled to costs upon the 
 recovery of a verdict in an action of which a jiistice of the peace 
 has not jurisdiction, as enumerated in § 2863 of the Code of 
 Civil Procedure. But in an action to recover damages for an 
 assault, battery, false imprisonment, libel, slander, criminal con- 
 
 ^'Rapid Safety Filter Co. v. Wyck- '^McLain v. MathusheJc Piano Mfg. 
 
 off, 20 Misc. 429, 45 N. Y. Supp. Co. 54 App. Div. 126, 8 N. Y. Anno. 
 
 1028. Cas. 2.37, 66 N. Y. Supp. 397. 
 
 "^Claflin V. Davidson, 21 Jones & ^McLain v. Mathushek Piano Mfg. 
 
 S. 122, 8 N. Y. Civ. Proc. Rep. 46. Co. 54 App. Div. 126, 8 N. Y. Anno. 
 
 ^^Herman v. Girr'm, 8 App. Div. Cas. 237, 66 X. Y. Supp. 397. 
 
 418, 40 N. Y. Supp. 845; Rapid "New York d H. R. Co. v. Haws, 
 
 Safety Filter Co. v. Wyckoff, 20 56 N. Y. 175. 
 Misc. 429, 45 N. Y. Supn. 1028.
 
 122 TIIK LAW OK COSTS IN NEW YOUK. 
 
 versation, sccluction, or malicious prosecution, or a fine or pen- 
 alty in which the jicople of the state are a party, the plaintiff is 
 entitled to costs only to the amount of the verdict, unless he re- 
 covers $50 or more.'"**^ 
 
 b. Assault and battery. — Where the plaintiff brings an action 
 for damages for an assault and battery against two defendants, 
 who appeared by the same attorney, and recovers a verdict of $25 
 against one defendant, and the other has a verdict of no cause of 
 action, the successful defendant is entitled to a full bill of costs, 
 and the plaintiff is entitled to $25 costs against the other 
 defendant.^^ 
 
 The plaintiff can only tax $10 in all for his costs and disburse- 
 ments in an action for assault and batteiy, where he was non- 
 suited on the first trial, and the general term reversed this, with 
 costs to abide the event, and on the second trial he recovers a ver- 
 dict of $10.^*^^ A law which gives jurisdiction to a local court 
 in actions for assault and battei-y, and provides that in actions in 
 the supreme court for such causes within the territorial jurisdic- 
 tion of the local court, costs cannot exceed the recovery, will not 
 bind the plaintiff, where the case was originally brought outside 
 the jurisdiction of the local court, but was removed within such 
 jurisdiction by the defendant.^ ^^ 
 
 When the jjlaintiff joins with an action for assault and bat- 
 ter^' another cause of action in which the defendant is entitled to 
 costs, unless the plaintiff recovers a verdict of $50, and tlie jury 
 renders a general verdict for less than $50, the defendant is en- 
 titled to costs ;^'^^ or, at most, the defendant is entitled to a full 
 bill of costs, and the plaintiff to 6 cents costs.^^^ 
 
 c. Alienation of affections. — The plaintiff in an action for 
 
 "" Code Civ. Proc. § 3228, subdiv. 3. "^Sleight v. Hancox, 4 Abb. Pr. 
 
 "^Stoiie V. Duff)/, 3 Sandf. 761, X. 245. 
 
 Y. Code Rep. N. S. 129. ^"-Chapin v. Cole, 38 How. Pr. 481. 
 
 "^Snyder v. Collins, 12 Hun, 383. ^'^Shorke v. Charles, 18 Wend. 616.
 
 REGULATED BY RELIEF AKD JUDGMENT. 123 
 
 alienation of affections is entitled to tlie same amount of costs as 
 •damages, where he recovers less than $50.^"* 
 
 d. Malicious 'prosecution. — An action for malicious prosecu- 
 tion is among those enumerated, where the plaintiff's costs can- 
 not exceed the amoiuit of tlie damages, if the damages are less 
 than $50.1^5 
 
 e. Action for causing death. — In an action brought by an ex- 
 ecutor or administrator for damages for causing the death of his 
 decedent, as provided in § 1902 of the Code of Civil Procedure, 
 the plaintiff is entitled to a full bill of costs, if he recovers any 
 amount.^ °^ 
 
 104. Other actions where the recovery is less than $50. a. In 
 general. — The laws seeks to discourage tlie bringing of petty ac- 
 tions in courts of record. Therefore, it not only refuses costs 
 to a plaintiff in an action which he could have brought in an in- 
 ferior court, if he recovers less than $50, but, on the other hand, 
 gives costs to the defendant in such cases,^^'^ But a plaintiff in 
 an action upon a Lloyd insurance policy is entitled to a full bill 
 of costs, although the recovery against the several underwriters 
 is less than $50, provided the aggregate recovery on the policy is 
 over $50.^ ^s 
 
 h. Actions where the sinn total of the accounts proved exceed 
 $J/00.—Bj subd. 4 of § 28G3 of the Code of Civil Procedure, a 
 justice of the peace has not jurisdiction of an action "wliere, in 
 a matter of account, the sum total of the accounts proved to the 
 satisfaction of the justice exceeds $-100." 
 
 The adjudication of a justice of the peace that the sum of the 
 
 "^Wilson V. McGregor, 20 N. Y. Rep. 202, 37 N. Y. S. R. 556, 13 N. Y. 
 
 Civ. Proc. Rep. 36, 207, 34 K Y. Supp. 653 ; O'Connor v. Union R. Co. 
 
 R. R. 775, 12 N. Y. Supp. 39. 33 Misc. 728, 68 N. Y. Supp. 1056; 
 
 ^"^Marsullo v. Billotto, 55 How. Pr. Silberstein v. Wm. Wicke Co. 29 Abb. 
 
 375; Peet v. Worth, 1 Bosw. 653; N. C. 291, 22 N. Y. Supp. 171. 
 
 BeJding v. ConJdin, 2 N. Y. Co. Rep. i°' Code Civ. Proc. §§ 3228, 3229, 
 
 112, 4 How. Pr. 196. subdiv. 4. 
 
 ^'"Gorton v. United States d B. ^"""Huff v. Jewett, 20 Misc. 35, 44 
 
 Mail S. 8. Go. 20 K Y. Civ. Proc. N. Y. Supp. 311.
 
 124 TlIK LAW OF COSTS IN NEW YORK. 
 
 aocoimts exceeds $400 is conclusive upon the parties, and the 
 plaintiff is entitled to full costs in the new action brought in the 
 supreme court, if he recovers any amount.^ "^ 
 
 It is not necessary, in order to entitle the plaintiff to costs, 
 where the total of the accounts on both sides exceed $400, and he 
 recovers a verdict of less than $50, tliat he first bring his action 
 in the justice's court and discontinue it tliere.^^*^ He may bring 
 his action in the first instance in a court of record, but in such 
 a case the burden is on him to show that the amount of claims 
 proved exceeded the sum of $400. It is not sufficient to show 
 that the sum total of tlie accounts claimed or contested exceeds 
 that sum.^^^ When the action is tried before a court or referee, 
 the question is determined by the facts found,^^^ and when tried 
 before a jury, by the sum total of the accounts shown to have 
 been proved to their satisfaction.^ ^^ The fact that the court 
 submits to the jury the question of fact whether items, the sum 
 of which exceed $400 have been proven to their satisfaction 
 does not meet the requirement of the statute.-^ ^^ But where the 
 jury specifically find that the sum t/Otal of the accounts proved 
 to their satisfaction exceed $400, that is sufficient. It is very 
 doubtful whether anything less is sufficient. If they find for 
 the plaintiff in various amounts, and for the defendant in vari- 
 ous amounts, and by the directions of the court render a verdict 
 for the plaintiff for the balance, the requirements of the statute 
 
 ^'^Bailcy v. Sitonr, 41 TTow. Pr. Ynulcr v. Johnson. 62 App. Div. 584, 
 
 .•^46: Glackin v. ZcJIcr. .52 Barh. 147; 71 N. Y. Supp. 178. 
 
 Kirk V. Blaahfield, 6 TliOTiip & C. '^-Eemp v. Union Gas d Oil Stove 
 
 .509; Bradner v. Howard. 75 N. Y. Co. 22 X. Y. Civ. Proc. Rep. 190. 46 
 
 417. AfTinning 14 Hun. 420. 7 N. Y. X. Y. S. R. 67. 19 N. Y. Supp. 959; 
 
 Week. Dip. 57. Glackin v. Zeller. 52 Barb. 15.3; Gil 
 
 ""Glackin v. Zeller, 52 Barb. 153; liland v. Campbell, 18 How. Pr. 177. 
 
 Tompkins v. Greene, 21 Hun. 257; ""Fuller v. Conde, 47 N. Y. 89; 
 
 Ton/.-er V. ./o/!H.so»i. 62 App. Div. 584, Sherry v. Cary, 111 X. Y. 517, 19 
 
 71 N. Y. Supp. 178. N. E. 87; Youker v. Johnson, 62 
 
 "'Tompkins v. Greene. 21 Hun, App. Div. 584. 71 X. Y. Supp. 178. 
 
 257. AfTirnu'd in 82 X. Y. 619; Sherry "*Youker v. Johnson, 62 App. Div. 
 
 T. Gary, 111 X. Y. 517. 19 X. E. 87; 584, 71 X. Y. Supp. 178.
 
 REGULATED BY BELIEF AND JUDGMENT. 125 
 
 are fnlfilled.^^^ Where the amount of the plaintiff's claim is 
 admitted, and is in excess of $400, and the amount of the de- 
 fendant's claim is decided to be in excess of $400, the statutory 
 requirement is fulfilled.-'^® 
 
 c. How the am-ount is computed. — The amount involved is not 
 the sum of the entire amount of both sides of an account, but 
 the balance due after deducting payments made thereon.^ ^" 
 Payments made on account are no part of the claim. ^^^ Where 
 a purchaser retained $500 of the purchase price of a house, with 
 which to complete it, the amount involved in an action by the 
 seller is the amount remaining unexpended.^ ^^ 
 
 In an action for services, where the defendant sets up a coun- 
 terclaim of money loaned, the amount of the plaintiff's claim^ 
 must be reduced by payments made thereon, and the counter- 
 claim must be reduced by payments made thereon, and other 
 charges of the plaintiff against the defendant. Where the sum 
 of these claims as thus reduced does not equal $400, and the 
 plaintiff" recovers less than $50, the defendant is entitled to 
 
 COStS.^20 
 
 The w^ord "accounts" in § 2863 of the Code of Civil Proced- 
 ure means demands, and is not restricted to running accounts. -^^^ 
 Cases under the Revised Statutes,^ ^^ or under the Code of 
 1848^^^, are not now applicable, as the law under which they 
 
 ^'"'■Sherry v. Cary, 111 N. Y. 517, "^Brady v. Diirbroio, 2 E. D. 
 
 19 N. E. 87. Smith, 78. 
 
 ^^"Stihcell V. Staples, 5 Duer, 691, '^"Steele v. MacDonald, 4 N. Y. Civ. 
 
 3 Abb. Pr. 365. Proc. Rep. 227. 
 
 "'TFaip V. Boyd, 19 N. Y. S. R. ^'^IJ vderhill v. Rnshm.ore, 51 App. 
 Ill, 2 N. Y. Supp. 735; Tomplcins v. Div. 204, 64 K Y. Supp. 1015. Con- 
 Greene, 21 Hun, 257; Nauman v. tra. Crane v. Holcomh, 2 Hilt. 269, 
 Rraun, 20 N. Y. Civ. Proc. Rep. 77, Affirmed in 8 Abb. Pr. 35, note; Lund 
 14 N. Y. Supp. 139; Crlm v. Crank- v. Broadhead, 41 How. Pr. 146. 
 hite, 15 How. Pr. 250; Burdick v. ^-"Spring Valley Shot & Lead Co. 
 Hale, 13 Abb. N. C. 60, 4 N. Y. Civ. v. Jackson, 2 Sandf. 622. 
 Proc. Rep. 311. ^-U<:alt v. Ligjiot, 3 Abb. Pr. 33, 
 
 "^S7ee?e v. MacDonald, 4 N. Y. Civ. Affirmed in 3 Abb. Pr. 190. 
 Proc. Rep. 227 ; Mander v. Bell, 4 N. 
 Y. Week. Dig. 519.
 
 12G THE LAW OF COSTS IN NEW YORK. 
 
 were decided has been materially modified in our present 
 Code.^^* Only the amounts in dispute will be considered in 
 making up the sum in dispute. Claims on either side that are 
 conceded will be disregarded. ^^^ 
 
 Tlio plaintiff cannot entitle himself to costs when he recovers 
 less than $50, by alleging that his damages exceed $100. It is 
 the amount proved, not the amount claimed, that determines the 
 question of costs.^^^ 
 
 d. When the plaintiff is entitled to costs. — The plaintiff is en- 
 titled to costs if he recovers a verdict for any amount, where the 
 total of accounts on both sides exceed $400.^^''' In an action on 
 a note for $186, the defendant alleged that it had been given in 
 settlement of a partnership account, that there had been a mis- 
 take in the computation, and that in reality the plaintiff owed 
 the defendant $100. The referee examined accounts in excess 
 of $2,000, and gave the plaintiff' judgment for $26.12. It was 
 held that the plaintiff was entitled to costs.^^^ 
 
 e. When the defendant is entitled to costs. — If the defendant 
 obtains a verdict for any amount, he is entitled to costs ;^^^ or if 
 it is determined that the accounts do not exceed $100 and the 
 plaintiff recovers less than $50.^^'^ 
 
 ^""^Vry V. Wilde, 15 N. Y. Civ. Proc. Silk d- Woolen. Millfi v. Eidl, 6 Abb. 
 
 Rep. 451, 19 N. Y. S. R. 674, 3 N. Y. Pr. N. S. 319, 37 How. Pr. 299, 1 
 
 Supp. 791. Sweeny, 359; Lahlcche v. Kirkpat- 
 
 ^-■Floodless V. Brundngc, 8 How. rick, 8 N. Y. Civ. Proc. Rep. 340, 3 
 Pr. 2G3 ; Matteson v. Bloomfield, 10 How. Pr. N. S. 61 ; Ltmd v. Broad- 
 Wend. 556. head, 41 How. Pr. 146; Griffen v. 
 
 '■"Scajnan v. GJerfner 3 Hun, 119, Broicn, 35 How. Pr. 372, 53 Barb. 
 
 5 Tliomp. & C. 273; Brady v. Smith, 428; Friedman v. Eisenberg, 24 N. Y. 
 
 1 N. Y. City Ct. Rep. 175; Tompkins S. R. 298, 4 N. Y. Supp. 551; Stil- 
 
 v. Greeve, 21 Hun. 257; Glackin v. v.^eU v. Staples, 3 Abb. Pr. 365, 5 
 
 Zeller, 52 Barb. 147; Lultgor y. Wal- Duer, 691. 
 
 ters, 64 Barb. 419; Fuller v, Conde, ^^Gilliland v. Campbell, 18 How. 
 
 47 N. Y. 89; Blank v. Westcott, 7 Pr. 177. 
 
 Abb. Pr. N. S. 225; Finder v. Stoat- ^'^Smith v. Bryant, 29 Misc. 564, 
 
 hoff. 7 Abb. Pr. N. S. 433; Alexander 61 N. Y. Supp. 943; Ury v. Wilde, 
 
 V. Hard. 42 How. Pr. 131. 15 N. Y. Civ. Proc. Rep. 451, 19 N. 
 
 '-'Sherry v. Gary, 111 N. Y. 514, 19 Y. S. R. 674, 3 N. Y. Supp. 791. 
 
 N. E. 87; Hayes v. O'Reilly, 8 N. Y. '^Kemp v. Union Gas & Oil Stove 
 
 Civ. Proc. Rep. 347, note; Boston Co. 22 N. Y. Civ. Proc. Rep. 190, 46
 
 REGULATED BY REEIEF AND JUDG]MENT. 127 
 
 f. Where the accounts do not exceed $400. — ^AVhere the ac- 
 counts do not exceed $400, tlie plaintiff mnst recover $50 to be 
 entitled to costs; otherwise the defendant will be entitled to 
 costs.^^^ ISTor can the plaintiii tax his disbnrsements, as the 
 right to tax them depends upon his right to tax the general costs 
 in the action.^ ^^ If the plaintiff in an action in which the com- 
 plaint demands judgment for a sum of money only, whether it be 
 an action at law or in equity/^^ cannot bring himself within one 
 of the first three subdivisions of § 3228, he must recover 
 $50 to be entitled to costs. If he does not recover that amount 
 the defendant is entitled to costs, by § 3229 of the Code of Civil 
 Procedure.^^* 
 
 (J. Recovery reduced heloiv $50 by the interposition of a coun- 
 terclaim by the defendant. — The defendant is entitled to costs 
 where he reduces the plaintiff's recovery below $50 by the in- 
 terposition of a counterclaim.^^^ The plaintiff is not entitled to 
 costs where he fails to recover upon the cause of action set out 
 in his complaint, although the defendant did not recover upon 
 liis counterclaim. ^^^ In such a case the defendant is entitled t^) 
 costs. The defendant is also entitled to costs in an action 
 brought to recover for work done under a contract between the 
 plaintiff and himself, which provided that the compensation for 
 the work done should apply upon a debt owing from the plain- 
 tiff to the defendant, and thereafter, unbeknoAvn to the defend- 
 ant, the plaintiff forms a partnership and performs the work, 
 and the recovery is less than $50.^^'^ 
 
 The defendant is entitled to costs where the plaintiff brings 
 
 X. Y. S. R. 67. 19 N. Y. Supp. 059; 72 X. Y. S. R. 434, 36 N. Y. Supp. 
 
 Mander v. Bell, 4 N. Y. Week. Dig. 1032. 
 
 519; Burdick v. Hale, 13 Abb. N. C. "'Gregory v. McArdle, 1 How. Pr. 
 
 60. N. S. 187. 
 
 "^Landsbergcr v. Magnetic Teleg. ^^^Thayer v. Holland, 63 How. Pr. 
 
 Co. 8 Abb. Pr. 35; Crane v. Holcomh, 179; Shitelegge v. De Witt, 12 Daly, 
 
 8 Abb. Pr. 35, note. 319. 
 
 ^^Peet V. Warth, 1 Bosw. 653. '^'Russell v. Bardes, 39 N. Y. S. R. 
 
 ''^Miirtha v. Ciifley, 92 N. Y. 359. 41, 14 N. Y. Supp. 473. 
 
 ^^'Norton v. Fancher, 92 Hun, 463,
 
 128 THE LAW OF COSTS IN NEW YORK. 
 
 an action for rent and to foreclose a lien on personal property, 
 and it is determined that he has no lien and is entitled to an 
 amount less than $50 for rent. This is nothing but an action 
 for the recovery of money.^^^ Where the defendant has made 
 an offer of judgnnent for the whole amount claimed by the plain- 
 tiff, less $150, and as a condition of having the case put over the 
 t«rm has been compelled by the court to stipulate that the plain- 
 tiff shall enter judgment without costs for the amount of the of- 
 fer, and the cause to proceed as to the $150, the plaintiff is en- 
 titled to tax his full bill of costs if he recovers any amount upon 
 the trial.^^'' In this case it will be noticed that the entire recov- 
 ery exceeded $50. 
 
 h. Recovery reduced beloiv $50 hi/ payments made after tlic 
 commencement of the actio7i. — It is tlie amount recovered in the 
 judgment that fixes the right to costs. The court or referee can- 
 not make any valid order in regard thereto. The party entitled 
 to costs is entitled to them in the absence of an order giving them 
 to him, or in spite of an order giving them to his adversary.^*" 
 If the plaintiff accepts payments unconditionally, which reduce 
 the amount due to less than $50, and the defendant sets up the 
 payment in his answer, the defendant is entitled to costs.-^*^ A 
 verbal stipulation that the payment shall not affect the right to 
 costs cannot be enforced by the courts, as that is within the pro 
 visions of Rule 11.^^^ There are obiter remarks that the plain- 
 tiff can protect his right to costs by accepting the money on con- 
 dition that it should not affect his right to a judgment for the 
 full amount, but that he will credit it on the execution. ^^'^ Thi- 
 
 ""Trust V. Pirson, 1 Hilt. 292. Af- Y. Week. Dig. 186, 13 N. Y. S. R. 
 
 firmed in 3 Abb. Pr. 84. 302; Bendit v. Annesley, 42 Barb. 
 
 ^"^Hoe V. Sanhorn, 36 N. Y. 93, 3 192, 27 IIow. Pr. 184; Keller v. Van 
 
 Abb. Pr. N. S. 189, 35 How. Pr. 197. ^Vie, 49 How. Pr. 97. 
 
 ""Bates V. Xorris, 23 Jones & S. ""Bates v. Norris, 23 Jones & S. 
 
 269. 269, 13 X. Y. Civ. Proc. Rep. 395. in 
 
 "'Rice V. Childs, 28 Hun, 303: X. Y. S. R. 302, 28 N. Y. Week. Diu. 
 
 Bates V. Norris, 23 Jones & S. 269, IBf!. 
 
 13 N. Y. Civ. Proc. Rep. 395, 28 N. '^'L'ice v. Childs, 28 Hun, 303.
 
 REGULATED BY RELIEF AND JUDGMENT. 129 
 
 agreement would have to be in writing to escape the provisions 
 of Rule 11. If the payment is made after the defendant's time 
 to answer has expired, the defendant can take advantage of the 
 payment only by serving a supplemental answer, after having 
 obtained leave of the court. Upon such an application the 
 plaintiff should protect his right to costs.^'*"* 
 
 i. Recovery increased above $50 by the addition of interest 
 which has accrued since the cojnmencement of the action. — If 
 the amount due the plaintiff at the time of the commencement of 
 the action is less than $50, but at the time of the verdict the ac- 
 crued interest makes the recovery more than $50, the plaintiff is 
 entitled to costs.^^^ 
 
 ;'. Miscellaneous cases where the recovery was less than $50. 
 — In case of a default of pleading upon the part of the defend- 
 ant, the plaintiff can wait before entering judgment until the 
 accrued interest makes the entire sum due more than $50, and 
 thus he would be entitled to costs. In such a case the defendant 
 can s.erve an offer of judgment. There is a lack of harmony in 
 the cases as to whether the defendant is or is not entitled to costs 
 where the plaintiff accepts an offer of judgment for less than 
 $50 "with costs." 
 
 The better rule is that the defendant is entitled to costs in 
 such cases.^^® It has been held, however, that the offer is in 
 effect a stipulation that the plaintiff may have costs, and thus 
 the defendant has waived his right to costs. The costs to which 
 the plaintiff is entitled under the offer are his legal costs. He 
 has no legal costs, and therefore neither party is entitled to 
 costs.^*^ 
 
 ^**Bates V. 'Norris, 23 Jones & S. ""Johnson v. Sagar, 10 How. Pr. 
 269, 13 N. Y. Civ. Proc. Rep. 395, 28 552. 
 
 N. Y. Week. Dig. 186, 13 N. Y. S. R. '"Moffett v. Deom, 8 N. Y. Civ. 
 302. Proc. Rep. 85. 
 
 "■'Loving v. Morrison, 25 App. Div. 
 139, 5 N. Y. Anno. Cas. 151, 48 N. Y. 
 Supj). 075. 
 
 COSTS 9.
 
 loO THE LAW OF COSTS IK NEW YORK. 
 
 The (lofondaiit is entitled to costs where the phiintiff recovers 
 Jess than $50 in an action for breach of promise to marry,^'** or 
 for conversion. '^^ It was decided under the Code of Procedure 
 that the defendant was entitled to costs in an action for damages 
 foi- a false return by a justice of the peace, unless the plaintili 
 recovers $,"')().^^^ 
 
 Tt was held in a later case that the plaintiff was entitled to a 
 full bill of costs if he recovered any amount in an action for 
 damages against a sheriff for making a false return. ^^^ The 
 wording of the Code of Procedure was different from the present 
 Code, and these cases are, doubtless, not now applicable. 
 
 The defendant is entitled to costs in an action against him 
 for damages for injuries received through his negligence, unless 
 the plaintiff recovers at least $50.^''^ There is a special term 
 decision of the superior court, made in 1887, which holds that in 
 such actions the plaintiff" is entitled to costs equal to the amount 
 of the verdict.-'''^ It has also been held that where the plaintiff 
 recovers any amount, he is entitled to a full bill of costs. -^^^ 
 But these decisions seem to have been made \\dthout due consid- 
 eration, and have been criticised by the later decisions. 
 
 ^^Seitz V. Berg, 2 N. Y. City Ct. Civ. Proc. Rep. 315, 1.5 N. Y. Supp. 
 
 Rep. 2!)4. 519; Coidter v. American Merchants' 
 
 ""A'.Va»i V. Dojjle, 40 How. Pr. 215; Union Exp. Co. 50 N. Y. 585; Gorton 
 
 Powers V. Gross, 6G N. Y. 646. v. United States & B. Mail S. S. Co. 
 
 '^Worden v. Brown, 14 How. Pr. 20 X. Y. Civ. Proc. Rep. 202, 32 N. 
 
 327. Y. S. R. 556. 13 N. Y. Supp. 653. 
 
 '''^Whitney v. Daggett, 6 Abb. N. C. ^''Hlarrahrant v. Sullivan, 13 N. Y, 
 
 434. Civ. Proc. Rep. 196. 
 
 '^-Ruger v. Falufs ^Yatch Case Co. ''"'Keichel v. Ye/r York C. & H. R. 
 
 20 N. Y. Civ. Proc. Rep. 204. 37 X. Y. R. Co. 18 N. Y. Civ. Proc. Rep. 240, 
 
 R. R. 400. 13 N. Y. Supp. 788; Kal- 29 X. Y. S. R. 843, 9 N. Y. Supp. 
 
 iski V. I'clham Park R. Co. 20 X. Y. 414.
 
 CHAPTEE IX. 
 
 ACTIONS m WHICH COSTS ARE IN THE DISCRETION OF THi: 
 
 COURT. 
 
 105. In general. 
 
 106. In what courts. 
 
 107. When and how this discretion can be reviewed. 
 
 108. Costs; how awarded and reviewed when action is tried before referee. 
 
 109. Costs; how aw^arded when the action is tried by tlie court. 
 
 110. Costs; how awarded when part of the issue is tiled by a jury and 
 
 part by the court. 
 
 111. Costs where the cause of action hiis terminated before the trial. 
 
 112. Costs where the defendant makes an offer in his pleading. 
 
 113. Costs where both parties are successful. 
 
 114. What pleading determines tlie fact thai costs are in the discretion of 
 
 the court. 
 
 115. Costs where there has been a multiplicity of actions. 
 
 116. Contribution of costs among wrongdoers. 
 
 117. Liability of successor in interest in an action where costs are discre- 
 
 tionary. 
 
 118. Costs where the question involved is novel. 
 
 105. In general. — A party to an action is not entitled, npon 
 its successfnl determination, to costs as a matter of right, unles.-^ 
 he can bring himself within one of the provisions of § 3228 or ^ 
 8229 of the Code of Civil Procednre. In all actions not ■within 
 the provisions of those sections, whether costs shall be awarded 
 or not, and if so, to whom, and the amonnt, not exceeding the 
 amount authorized by statute, rests in the discretion of the 
 court,^ even in an action against an executor.^ 
 
 106. In what courts. — The discretion extends to every stage 
 
 'Code Civ. Proc. § .3230. Pr. 504; Black v. O'Brien, 23 Hun. 
 
 ■Church V. K'ldd. 3 Hun. 254, 5 82; Herrington v. Robertson, 71 N. 
 
 Thonip. & C. 454; Vaji Riper v. Pop- Y. 280; McBride v. Chamherlain, 56 
 
 penhausen, 43 N. Y. 68; Barker v. N. Y. S. R. 431, 26 N. Y. 8upp. 94: 
 
 White, 3 Keyes, 617, 5 Abb. Pr. N. S. Knhn v. SchmidL 83 Hun, 541, 65 
 
 124, 1 Abb.\\pp. Dec. 05, 41 How. X. Y. S. R. 190, .32 N. Y. Supp. 33. 
 
 131
 
 132 THE LAW OF COSTS IN NEW YORK. 
 
 of the cause, including an appeal to the court of appeals.^ The 
 court of appeals in such actions can grant the costs of every 
 court,* when it reverses or modifios a judgment. 
 
 107. When and how this discretion can be reviewed. — "The 
 question of costs, therefore, in an equity action is one of the is- 
 sues involved ; it is primarily presented at the trial court, and 
 while, as a rule, the appellate tribunals will not interfere with 
 the discretion exercised by the court below, yet, as it furnishes 
 one of tlie issues for determination by appellate tribunals, it is 
 always before such court for disposition, together with the other 
 issues which the case presents."^ The appellate division of the 
 supreme court can modify a judgment by allowing costs where 
 they were refused below, or can strike them out when granted be- 
 low.^ Such discretion is not reviewable by the court of ap- 
 peals,*^ even if there has been an abuse of discretion.^ 
 
 The trial court has no power to add to or take away any costs 
 awarded by the appellate court. It must enter the judgment as 
 directed by the appellate court, and it has no power to do any- 
 thing else.^ It is only in exceptional cases that costs are re- 
 fused to the prevailing party in equity actions. ^"^ The success- 
 ful party to whom costs are denied has a right to appeal from 
 such determination. The imposition of costs in equity cases is 
 discretionaiy, still the discretion is not arbitrary. The appel- 
 late court will not reverse the discretion of the court below, 
 where there is a reasonable basis for its exercise. ^^ 
 
 ^Chipman v. Montgomery, 63 X. Y. 104, 52 N. E. 645; Herrington v. 
 
 221; Herrington V. Robertson, 71 N. Robertson, 71 N. Y. 280; Dill v. 
 
 Y. 280. ' \Vis7icr, 88 N. Y. 153. 
 
 *Murtha v. Curley, 92 N. Y. 359, ^Siaiger v. Schultz, 3 Keyes, 614. 
 
 65 How. Pr. 68, 3 N. Y. Civ. Proc. 3 Abb. Pr. N. S. 377. 
 
 Rep. 266; Munro v. Tousey, 129 N. 'Hascall v. King, 5i Ai)p. Biv. i-l\- 
 
 Y. 38, 14 L. R. A. 245, 41 N. Y. S. R. 444, 66 N. Y. Supp. 1112. 
 
 127, 29 N. E. 9. ^"Proctor v. Soulier, 8 App. Div. 
 
 ^Hascall v. King, 54 App. Div. 441- 69, 40 N. Y. Supp. 459. 
 
 444, 66 N. Y. Supp. 1112. ^^Husted v. Van Ness, 1 App. Div. 
 
 "Hammond v. Slocum, 50 How. Pr. 120, 72 N. Y. S. R. 28, 36 N. Y. 
 
 415. Supp. 1043. 
 
 'Uusted v. Van Ness, 158 N. Y.
 
 ACTIONS IN WHICH COSTS ARE IN DISCRETION OF COURT. 133 
 
 In equity actions the trial justice must designate tlie party 
 entitled to costs, even where he adopts the practice of stating his 
 decision concisely. ^^ 
 
 108. Costs; how awarded and reviewed when action is tried 
 before referee. — In equity actions tried before a referee, costs 
 must be awarded by him.-*^ If he does not award tliem, none 
 can be taxed.^* The judgment entered upon the report of the 
 referee should contain the costs awarded in the action.^^ Where 
 the referee has simply allowed costs to the defendants, not speci- 
 fying that costs should go to each defendant, the special term has 
 no power to award a separate bill of costs to each defendant.*® 
 His discretion cannot be reviewed by motion, but only by except- 
 ing to the findings and appealing from the judgment entered on 
 the report. ■^''^ 
 
 Although a referee has used his discretion unwisely in the 
 matter of granting costs, that is not necessarily an adequate rea- 
 son for reversing the judgment. -^^ His discretion will be re- 
 versed only in cases of palpable abuse.* ^ The prevailing party 
 can move for directions for the referee to pass upon the question 
 of costs^** where he has failed to make any decision in relation 
 thereto. 
 
 "Reynohlfi v. ^ina L. Ins. Co. 6 "Woodford v. Bucklin, 14 Hun, 
 
 App. Div. 254, 39 N. Y. Supp. 885. 444; Rosa v. Jenkins, 31 Hun, 384; 
 
 "Code Civ. Proc. § 1022; Wood- McBride v. ChamberJain, 56 N. Y. 
 
 ford V. BucJclin, 14 Hun, 444. S. R. 431, 26 N. Y. Supp. 94; Graves 
 
 ^*Coddingfon v. Bowen, 2 Silv. Sup. v. Blanchard, 4 How. Pr. 300, 3 N. 
 
 Ct. 417, 24 N. Y. S. R. 832, 6 N. Y. Y. Code Rep. 25; Kennedy v. Mc- 
 
 Supp. 355; Sahafer v. Sabater, 7 None, 10 App. Div. 97, 41 N. Y. 
 
 App. Div. 70, 39 N. Y. Supp. 958; Supp. 577; Wihley v. Robinson, 85 
 
 Stevens v. Weiss, 25 Misc. 457, 55 Hun, 362, 66 N. Y. S. R. 423, 32 
 
 N. Y. Supp. 562; Graves v. Blan- N. Y. Supp. 1018. 
 
 chard, 4 How. Pr. 300, 3 N. Y. Code ^^Broum v. Britton, 41 App. Div. 
 
 Rep. 25; Phelps v. Wood, 46 How. 57, 58 N. Y. Supp. 353; Williams v. 
 
 Pr. 1; Ludington v. Taft, 10 Barb. Montgomery, 148 N. Y. 519, 43 N. E. 
 
 447. 57. 
 
 ^''Mason v. Corbin, 29 App. Div. ^^Barker v. White, 3 Keyes, 495, 
 
 602, 51 N. Y. Supp. 178. 5 Abb. Pr. N. S. 127, 1 Abb. App. 
 
 ^^Nassau Bank v. National Bank, Dec. 98. 
 
 32 App. Div. 268, 52 N. Y. Supp. "-"Phelps v. Wood, 46 How. Pr. 1. 
 1118.
 
 134 THE LAW OI! COSTS lA' XEW Y0I;K. 
 
 The referee may ordor the plaintiff to pay a part of the costs 
 and the defendant the balance.^^ Where the defendant was suc- 
 cessful up to the court of appeals, which reversed the courts be- 
 low and granted a new trial, costs to abide the event, upon which 
 both parties succeeded in part, the plaintiff should be allowed 
 costs up to and including the court of appeals, as he was com- 
 pelled to go to that court to correct the error, but neither should 
 be allowed cost^ for subsequent proceedings.^^ The appellate 
 division has a right to send back to the referee who tried the case 
 :ind once passed upon it, the question of costs, to be heard de 
 novo upon the evidence contained in the printed case, l^o ap- 
 peal lies to the court of appeals from such an order. It is a 
 matter of practice, over which the appellate division had juris- 
 diction.^^ 
 
 109. Costs ; how awarded when the action is tried by the court. — 
 Costs must be granted by the court, without such an order no 
 costs are awarded.^* The court may upon motion pass uj3on 
 the question of costs where it has neglected to do so upon th<^ 
 trial. It may grant costs upon a motion to strike out costs 
 which have been taxed without authority.-^^ Costs should be 
 granted by the trial judge. The appellate division has no power 
 to send the case back to the special term to pass upon the ques- 
 tion of costs, when tlie trial judge has made no direction as to 
 costs.^^ Silence upon the subject of costs is a refusal thereof.^'' 
 
 Where the court has passed upon the merits of the case and 
 awarded costs in an interlocutory judgment, it cannot change 
 the allowance of costs in the final judgment entered upon the 
 
 -'Barker v. White, 3 Keyes, 617, 1 '*a. Andrews v. Moller. 20 N. Y. 
 
 Abb. App. Dec. 95, 41 How. Pr. 504, Week. Dig. 377. 
 
 T) Abb. Pr. N. S. 124. "^LeRoy v. Browne, 10 X. Y. Supp. 
 
 "ManderiUe v. Avery, 44 N. Y. S. 328; First Nat. Bank v. Levy, 41 
 
 R. 1, 17 N. Y. Supp. 429. Hun, 461. 
 
 -''Taylor v. Root. 48 N. Y. 687. '"Le Roy v. Broicne, 10 N. Y. Supp. 
 
 '*Hascall v. King, 54 App. Div. 328; Commissioners of Pilots v. 
 
 441, 31 N. Y. Civ. Proc. Rep. 207, 66 Spofford, 3 Hun, 55. 
 N. Y. Supp. 1112; Downing v. Mar- 
 xhalL 37 X. Y. 380; Kreits v. Frost 
 55 Barb. 474.
 
 ACTIOA.S lA' WHICH COSTS ARE lA' DISCRETION" OF COURT. 135 
 
 report of a referee, who has been appointed to take proof of the 
 accounts between the parties.^^ 
 
 110. Costs; how awarded when part of the issue is tried by a 
 jury and part by the court. — In an action for an injunction, 
 where the jury found tliat the plaintiff liad suffered no damage, 
 and upon the trial of the balance of the case before the court it 
 decided that the plaintiff' had suffered damages large enough to 
 carry costs, tlie costs were determined by the judgment, and not 
 by tlie verdict. ^^ 
 
 111. Costs where the cause of action has terminated before the 
 trial. — xin equity case will be heard, although before the trial 
 the subject-matter has ceased to exist, in order that the question 
 of costs, as it existed at the time of the commencement of the 
 action, may be determined,"^ although a litigation for costs in 
 equity courts is not favored.^*^ Courts will refuse to examine 
 into tlie merits of a case after settlement, to see who is entitled 
 to costs.^^ jSTeither party will be allowed costs where the plain- 
 tiff brings an action to cancel a deed and a mortgage, and for an 
 accounting of rents, and succeeds in the action, where the debt 
 owing by the plaintiff to the defendant had been paid by rents, 
 and the last instalment was paid after the commencement of the 
 action.^" The plaintiff' will not be obliged to pay costs upon the 
 dismissal of his complaint in an action for the construction of a 
 will and an accounting, where after the commencement of the 
 action the parties practically agreed that the matters should be 
 settled in the surrogate's court, because he might have had a cause 
 of action at the time of the commencement of the action.^^ 
 AVhere a complaint is dismissed by reason of events occurring 
 
 •''Foley V. Foley, 15 App. Div. 276, 425, Reversed on other questions in 
 
 44 K Y. Supp. 588. 63 N. Y. 547. 
 
 ^^VaUace v. American Linen ^^Eastburn v. Kirk, 2 Johns. Ch. 
 
 Thread Co. 16 Hun, 404; Toch v. 317. 
 
 Toch, 9 App. Div. 501, 41 N. Y. ^-Cross v. Smith, 85 Hun, 49, 66 N. 
 
 Supp. 353. Y. S. R. 55, 32 N. Y. Supp. 671. 
 
 ^Kelley v. McMahon, 37 Hun, 212. ^^Parler v. Murray, 57 N. Y. S. R. 
 
 ""Belmont v. Ponvcrt, 6 Jones & S. 949, 14 N. Y. Supp. 79.
 
 136 THE LAW OF COSTS IN NEW YOKK. 
 
 since the commencement of the action, it should be without 
 costs. •'''* 
 
 112. Costs where the defendant makes an offer in his pleading. 
 — The defendant ^\'ill not be compelled to pay costs when, in his 
 answer, he offers the plaintiff all the relief to which the court 
 decides he is entitled.^^ The defendant will be compelled to 
 pay costs where the plaintiff succeeds only as to part of the re- 
 lief sought, and tlie defendant makes no offer of judgment.'^* 
 The defendant will be entitled to costs where the complaint does 
 not offer to do equity, and he is compelled to come into the court 
 to obtain his equitable rights.'*'^ 
 
 113. Costs where both parties are successful. — Costs will be 
 allowed to neither party in an action for two causes of action, 
 where each party succeeds on one.^^ A plaintiff will be allowed 
 costs up to and including the trial, where he is entitled to some 
 relief, but not to as much as he claimed in his complaint. The 
 defendant will be allowed costs subsequent to the trial, where he 
 is successful upon the appeal.^^ 
 
 114. What pleading determines the fact that costs are in the 
 discretion of the court. — The question of costs is determined by 
 the complaint, and not by tlie answer. The defendant will be 
 entitled to costs, as a matter of right, and not as a matter resting 
 in the discretion of the court, where he succeeds upon an equi- 
 table defense interposed to a legal action.^" Costs would have 
 
 '*CoIunihia College v. Thacher, 87 Lciber, 7 Paig-e. 483; Crippen v. 
 
 N. Y. 311, 41 Am. Es>p. 305, 10 Abb. Heermance, 9 Paige, 211; Barker v. 
 
 N. C. 235. Lanetj, 7 App. Div. 352, 40 X. Y. 
 
 ^^Bickford v. Searles, 9 App. Div. Supp. 66; Stafford v. Xott, 3 Paige, 
 
 158, 41 N. Y. Supp. 148. 100; Ten Eyclc v. Holmes, 3 Sanaf. 
 
 '"'Rutty V. Person, 20 Jones & S. Cli. 428; West v. Utica, 71 Hun, 540. 
 
 329. 51 X. Y. S. R. 911, 24 X. Y. Supp. 
 
 "Bissell V. KeUor/ff, 60 Barb. 617. 1075; Cross v. S)ynt}t, 85 Hun. 49, 66 
 
 '"Law V. McDonald, 9 Hun, 23. 3 X. Y. S. R. 55, 32 X. Y. Supp. 671. 
 
 N. Y. Week. Diij. 544; Couch v. Mil- ''^Sterniacli v. Friedman, 75 App. 
 
 lard, 41 Hun, 212, 4 X. Y. S. R. 167; Div. 418, 78 X. Y. Supp. 318. 
 
 Walter v. F. E. McAlister Co. 21 ^"Cythe v. La Fontain, 51 Barb. 
 
 Misc. 747, 27 N. Y. Civ. Proc. Rep. 186; Lanz v. Trout, 46 How. Pr. 54; 
 33, 48 N. Y. Supp. 26; Caldn-ell v.
 
 ACTIO^fS IN WHICH COSTS ARE IN DISCKETION OF COURT. 137 
 
 been in the discretion of the court had the plaintiff brought an 
 equitable action for the same relief.^^ The plaintiff will not be 
 compelled to pay costs where the defendant sets up a counter- 
 claim, and becomes insolvent, but refuses to allow the plaintiff 
 to discontinue without costs, and on the trial the plaintiff makes 
 no proof of his cause of action, but the defendant attempts to 
 prove his counterclaim and fails.^- Costs out of a fund belong- 
 ing to the plaintiff will not be allowed to the unsuccessful defend- 
 ant, although he was sued as administrator.'*^ 
 
 115. Costs where there has been a multiplicity of actions. — 
 Costs of only one action will be allowed, when the plaintiff could 
 have obtained all the relief to which he was entitled in one ac- 
 tion but he has brought two or more actions.^^ 
 
 116. Contribution of costs among wrongdoers. — A defendant 
 who has been compelled to pay costs cannot complain that his co- 
 defendant, with whom he has entered into a fraudulent scheme to 
 set aside which the action was brought, has not been compelled to 
 pay costs, as there is no contribution among wrongdoers.^^ 
 
 117. Liability of successor in interest in an action where costs 
 are discretionary. — A city which has annexed a village will not 
 be liable for costs in a successful action to restrain the city from 
 collecting the tax, and to set aside the assessment levied by the 
 village, because the city was not responsible for the acts com- 
 plained of.^^ 
 
 118. Costs where the question involved is novel. — A defendant 
 may be exonerated from paying costs, although defeated, if the 
 
 Bradley v. Aldrich, 40 N. Y. 509, 100 other frronnds in 129 N". Y. 38, 41 N. 
 
 Am. Dec. 528. Y. S. R. 127; Wendell v. Wendell, S 
 
 *'Cijthe V. La Fontain, 51 Barb. Paip^e, 509; Neicman v. Ogden, 6 Ch. 
 
 186. Sent. 40. 
 
 *-McCulloch V. Vibbard, 14 N. Y. *^Holden v. Xeiv York d E. Bank 
 
 Civ. Proc. Rep. .388, 16 N". Y. S. R. 72 N. Y. 280. 
 1012, 1 N. Y. Siipp. 610. ^'Trcdirell v. Brookhjn, 11 App. 
 
 *^Sheehan v. Huerstel, 14 Jones & Div. 224, 43 X. Y. Supp. 458. Con- 
 
 S- <5^- tra, Richter v. .Yew; York, 24 Misc. 
 
 **Munro v. Tousey, 36 N. Y. S. R. 613, 54 N. Y. Supp. 150. 
 622, 13 N. Y. Supp. 81, Reversed on
 
 lOS TIIK LAW OF COSTS LIS! NEW YORK. 
 
 case is novel, and the law is nnsettled. A liushand was not al- 
 lowed costs, although he succeeded in an action to have advances 
 made by him declared a lien on his wife's property.^'^ Where 
 a husband and wife each had a will dra\vn up at the same time, 
 and by mistake each signed the wrong mil, and after the hus- 
 band's death the wife brought an action to correct the mistake, 
 the court dismissed the complaint because of lack of power to 
 correct the mistake, but without costs, for the reason that the 
 question was novel. "^^ 
 
 "Alward v. Alward, 15 N. Y. Civ. *'Xe/,so« v. McDonald, 61 Hun, 406, 
 Proc. Rop. 151, 17 N. Y. S. R. 864, 41 N. Y. S. R. 1, 16 N. Y. Supp. 273. 
 2 N. Y. Supp. 42.
 
 CHAPTER X. 
 
 COSTS IN REAL ACTIONS. 
 
 119. Foreclosure of mortgage by advertisement. 
 
 120. Foreclosure of mortgage by action. 
 
 a. In general. 
 
 b. Liability of defendant by ap^jearing in the action. 
 
 c. Liability of defendant by serving an answer. 
 
 d. When the wife of the mortgagor is entitled to costs. 
 
 e. Answer setting up payment since the commencement of the action 
 
 f. Report of the referee. 
 
 g. Costs in an unnecessary action, 
 h. Offer of judgment. 
 
 i. Commissions. 
 j. Additional allowance. 
 
 k. Liability of party who has assumed the mortgage debt. 
 I. Surplus proceedings. 
 VI. Allowance to receiver of rents. 
 n. Liability of referee. 
 
 o. Costs upon redemption from the mortgagee. 
 p. How the discretion of the trial court in awarding costs can be re 
 
 viewed. 
 q. Discretion reviewed by the court of appeals. 
 
 121. Foreclosure of a land contract. 
 
 122. Foreclosure of a chattel mortgage. 
 
 123. Action to have a deed declared a mortgage. 
 
 124. Action to set aside fraudulent conveyances. 
 
 125. Action to remove a cloud on the title. 
 
 126. Action to compel the specific performance of a land contract. 
 
 127. Power of court to relieve purchaser from a bid upon a judicial sale. 
 
 128. Liability of purchaser at a judicial sale in protecting his bid. 
 
 129. Partition action. 
 
 o. In general. 
 
 b. Costs to the defendant. 
 
 c. By whom costs should be paid. 
 
 d. At what stage in the proceedings costs are allowed. 
 
 e. Costs to guardian ad litem. 
 
 130. Action to construe a will. 
 
 o. To whom costs are allowed. 
 &. Upon what principle costs are allowed, 
 c. Amount of additional allowances. 
 
 139
 
 140 TTfK T.AW OF COSTS IN NEW YOT?K. 
 
 d. By what court costs are awarded. 
 
 e. Payable out of what fund. 
 
 131. Action to foreclose mechanic's liens, 
 o. In general. 
 6. Liability of the owner of the premises. 
 
 c. Offer of judgment. 
 
 d. Costs allowed to a subcontractor. 
 
 e. Additional allowance. 
 
 119. Foreclosure of mortgage by advertisement. — The allow- 
 ance or refusal of costs in actions of foreclosure bj advertise- 
 ment is in the discretion of the court.^ 
 
 In a foreclosure by advertisement a charge for a copy for the 
 printer and for one to keep, and a charge for publication for 
 thirteen weeks, are allowable, but a charge cannot be made for 
 inserting what is not required by law to be inserted, nor for serv- 
 ing persons not required to be served, although it may be pru- 
 dent to sen^e them; nor can a charge be made for notices at- 
 tached to affidavits that are required to be filed, when one notice 
 could be used. Neither can a charge be made for a copy of no- 
 tice of sale, served upon the auctioneer, when he is the attorney 
 for the plaintiff, and a charge has been made for an office copy.^ 
 These items must be taxed on notice.^ The amount of costs and 
 disbursements in these actions is regulated by §§ 2-i01-2403 of 
 the Code of Civil Procedure. 
 
 120. Foreclosure of mortgage by action. a. In general. — 
 Costs in a mortgage foreclosure are in the discretion of the 
 court.^ Xo costs will Ix^ allowed where both parties succeed as 
 to a ])art of the matt^ers litigated.^ 
 
 6. Liability of defendant hi/ appearing in the action. — A de- 
 fendant will not make himself liable for costs simply by appear- 
 
 '0'7/orc V. TJrop/it/, 24 How. Pr. .379. * Morris v. Wheeler. 45 X. Y. 708; 
 
 -FeryvKon v. ^yooley, N. Y. Civ. Pratt v. Ramsdell, 16 How. Pr. 59; 
 
 Proc. kep. 2.3G: Collins v. Standish, Bartow v. Cleveland, 16 How. Pr. 
 
 6 How. Pr. 493; Hornbij v. Cramer, 364, 7 Abb. Pr. 339. 
 
 12 How. Pr. 490. ^Cross v. Smith, 85 Hun, 49, 66 N. 
 
 'Re Moss, 6 How. Pr. 263. Y. S. R. 55, 32 N. Y. Supp. 671.
 
 COSTS liS" KExVL ACTIONS. 141 
 
 ing in the action, and demanding that all papers be served upon 
 his attorney.® 
 
 c. Liability of defendant by servmg an answer. — A prior as- 
 signor of the mortgage is a proper, but not a necessary, party de- 
 fendant. His answer admitting the assignment is a benefit to 
 the plaintiff, who can take judgment with this answer in ; and 
 where the answer is stricken out, no costs should be allowed.' 
 
 d. When the wife of the mortgagor is entitled to costs. — In 
 foreclosing a mortgage not for purchase money, given by a mar- 
 ried man after his marriage, the wife not joining, she is not a 
 necessary party. Where made a party and notice given that 
 judgment should not affect her inchoate dower rights, she can- 
 not recover costs against the plaintiff by defending the action, as 
 that is unnecessaiy to protect her rights. On the other hand, in 
 such case costs will not be allowed against her, for the reason 
 that the plaintiff unnecessarily made her a party. ^ A wife of 
 the second mortgagee will not be allowed cost-s against the plain- 
 tiff, where she is made a party to cut off her inchoate right of 
 dower, and the action is continued to fix the liability on the 
 land, after the premises have been sold on a first mortgage and 
 the surplus paid upon the second mortgage.^ 
 
 e. Answer setting up payment since the commencement of the 
 action. — An answer setting up the payment of the bond and 
 mortgage after the commencement of the action should not be 
 stricken out as sham on the ground that the defendant had not 
 paid costs. Costs are in the discretion of the court, and it is 
 not certain that the plaintiff will be allowed any.^^ 
 
 /. Report of the referee. — The report of a referee, which 
 awards costs to the plaintiff, wdll not authorize a judgment giv- 
 
 '^Tully V. Eastburn, 1 Month. L. ^Barker v. Barton, 67 Barb. 458. 
 
 Bull. 74. ^McRoberts v. Pooley. 12 N. Y. S. 
 
 'Merrill v. Bischoff, 3 App. Div. R. 107. 
 
 361, 73 N. Y. S. R. 685, 38 N. Y. '"Wetmore v. Gale, 2 N. Y. Week. 
 
 Supp. 194. Dig. 408.
 
 142 TllK l.A\V OF COSTS IN NEW YOKK. 
 
 ing costs against the defendant personally. The report must 
 provide that the defendant be held personally for costs before 
 snch a judgment can be entered.^ ^ After a case was tried be- 
 fore a judge, wli<» awarded judgment for the ])laintitf without 
 awarding costs, but sent it to a referee to ascertain the amount 
 due and whether there were any prior liens, upon the coming in 
 of the report the plaintiff, without notice to the defendant, was 
 awarded costs, at a special term held by another judge.^^ 
 
 g. Costs in an unnecessary action.— The hdlder of a first 
 mortgage will not be allowed costs of foreclosing his mortgage, 
 where, before the commencement of the action, the holder of the 
 second mortgage has conunenced his action, mailing the first 
 mortgagee a party, and has asked that the amount due on the 
 first mortgage be ascertained and paid. The second action is 
 unnecessary.^*^ A plaintiff will be refused costs where he has 
 caused the defendant to delay paying tlie balance of interest un- 
 til the time has expired, so that the plaintiff can elect that the 
 whole amount secured by the mortgage become due, and he will 
 be allowed to foreclose only for the balance of interest.'^ But 
 after an election once fairly made, that the entire amount should 
 become due for failure to pay an instalment of principal or in- 
 terest, the plainrifF caimot be compelled to accept the unpaid in- 
 stalment and costs to date.^'^ 
 
 h. Ojfer of jvdgment. — The plaintiff has no absolute right to 
 costs in an action to foreclose a mortgage, until they are granted 
 by the court. On the other hand a defendant in such an action 
 has no right to tender the amount due. and stop the action.^" If 
 
 "Cnsr V. Mnrniis. H) N. V. Tiv. Amniicrl in 102 X. V. 713. 7 N. E. 
 
 Proc. Rop. 206. .33 N. Y. S. R. 44. 11 -128. 
 
 X. Y. Su])|). 243. ^'Rosrhe v. Kosinnirski, 01 App. 
 
 '-Chamberlnin v. Dcmpsri/. 3(5 N. Div. 23. 70 N. Y. Siipp. 216. 
 
 Y. 144. '".Vcr Tori- F. d- M. Ins. Co. v. 
 
 '^Guilfonl V. .facobie, 09 Hun. 420, liurrell. 9 How. Pr. 398, 12 N. Y. 
 
 .52 N. Y. S. R. 837, 23 N. Y. Supp. Legal Obs. 252. 
 462. 
 
 "House V. Eisenlord, 30 Hvin. 90,
 
 COSTS IX REAL ACTIONS. 143 
 
 ihe defendant wishes to settle such an action he may offer to pay 
 the plaintiff the amount of his mortgage and such costs as he 
 thinks pro]3er. If the plaintiff' refuses to accept the offer, the 
 defendant may apply to the court for leave to pay the amount 
 due, and such costs as the court may determine, and have the 
 case discontinued.^^ An offer of judgment may also be made 
 under the provisions of § 738 of the Code of Civil Procedure. 
 The offer should not only authorize a judgment for foreclosure 
 and sale of the mortgaged premises for a certain amount, but 
 should also authorize the entry of a deficiency judgment against 
 the party liable upon the bond, ^vith costs.^^ A party liable 
 upon the bond, who purchases the bond and mortgage pending 
 suit, and pays an additional allowance under protest, cannot re- 
 cover back the sum tlius paid under protest, as such sum is not 
 paid under a mistake of fact or of law.^^ 
 
 i. Commissio7is. — The plaintiff is entitled to half commis- 
 sions under § 3252 of the Code of Civil Procedure, as upon a 
 settlement, when, after the commencement of an action to fore- 
 close a mortgage, he assigns it to one of the defendants."" 
 
 j. Additional alleivance. — (See also § 302, subd. i, infra.) 
 An additional allowance in a mortgage foreclosure action is lim- 
 ited by § 3253 of tlie Code of Civil Procedure to $200, although 
 the case is difficult and extraordinary, and a defense is inter- 
 posed."^ The fact that the action is brought to foreclose a chat- 
 tel mortgage as well as a mortgage on real estate will not entitle 
 the plaintiff' to an allowance in excess of $200.^- Nor can the 
 
 "Bartow v. Cleveland, 7 Abb. Pr. ^Waterhury v. Tucker & C. Cord- 
 
 339, 16 How. Pr. 3G4; Pratt v. Rams- age Co. 152 N. Y. 610. 46 N. E. 959; 
 
 dell, 7 Abb. Pr. 340, note. Hunt v. Chapman, 62 N. Y. 333, 338; 
 
 ^"Rollins V. Barnes, 23 App. Div. Ferris v. Hard, 15 N. Y. Civ. Proc. 
 
 240, 5 N. Y. Anno. Cas. 153. 48 N. Y. Rep. 171, 17 N. Y. S. R. 364, 4 N. y' 
 
 Siipp. 779. Supp. 9; O'Neill v. Gray, 39 Hun, 
 
 ^^Bliss V. Wallis, 3 How. Pr. N. S. 566; Rosa v. Jenkins, 31 Hun, 384. 
 
 325. "Waterbtiri/ v. Tucker & C. Cord- 
 
 '"Cltevers v. Damnv, 37 N. Y. S. R. age Co. 152 N. Y, 610, 46 N. E. 959. 
 904, 13 N. Y. Supp. 452.
 
 144 TirE LAW OF C0ST5 IN NKW YORK. 
 
 court grant an allowance in excess of f$200, even when the actitm 
 has been unrcasonaLly defencled.^^ 
 
 It has been lield in the supreme court that in an action to fore- 
 close a chattel mortgage the limitation of $200 did not apply.^* 
 The court of appeals has said, obiter, that the wording of the 
 limitation was broad enough to cover all kinds of mortgages.^^ 
 
 k. LiahilUy of party who has assumed the mortgage debt. — 
 A party who has assumed and agreed to pay a mortgage may be 
 compelled to pay the costs of the foreclosure action, to which 
 he was not a party, by a party who has been compelled to pay 
 the same.^^ 
 
 I. Surplus proceedings. — The only costs allowed upon surplus 
 proceedings, besides the fees of the referee and other disburse- 
 ments, are $10 costs of motion for appointment of a referee, if 
 allowed by that order, and $10 costs of motion to confirm the ref- 
 eree's report, if allowed.^^ There have been obiter remarks in 
 old cases, that a successful party might be entitled to a trial fee, 
 but there seems to be no warrant for such a fee.^^ The holder 
 of a second mortgage is entitled to have the costs of the action 
 brought to foreclose his mortgage paid out of the surplus paid 
 into tlie court upon the foreclosure of the first mortgage, al- 
 though those costs were not awarded until after a sale of the 
 premises under the first mortgage.^^ The result would be differ- 
 ent if the action related to the rights of tlie parties in the land, 
 
 "Bidwell V. Sullivan, 4 N. Y. Anno, tcr Comity Ice Co. 5 N. Y. Week. 
 
 Cas. IGl, 26 N. Y. Civ. Proc. Eep. Dig. 104; German Sav. Bank v. 
 
 392. 45 N. Y. Supp. 530. Sharer, 25 Hun, 409; Re Gibbs, 58 
 
 ■*Uuntington v. Moore, 59 Hun, How. Pr. 502; Floyd v. Clark, 16 
 
 351, 13 X. Y. Supp. 97. Daly, 528, 17 N. Y. Supp. 848; Bor- 
 
 '^Waterhuiy v. Tucker d C. Cord- land v. Alleond, 8 Daly, 126. 
 
 age Co. 152 X. Y. 610, 46 N. E. 959. ^Borland v. Alleond, 8 Daly, 126; 
 
 ^Comstock v. Drohan, 8 Hun, 373, Elwell v. Bobbins, 43 How. Pr. 108; 
 Affirmed in 71 X. Y. 9, without pass- Xew York Life Ins. d T. Co. v. Van- 
 in^ on tliis point. derbilt, 12 Abb. Pr. 458. 
 
 '"•McDermolt v. Henncsy, 9 Hun, ^^Bushwick Sav. Bank v. Traum, 
 
 59; Ehcell v. Bobbins, 43 How. Pr. 26 App. Div. 532, 50 N. Y. Supp. 542. 
 108 ; Rensselaer d S. R. Co. v. Da- 
 vis, 55 N. Y. 145; Wellington v. Uls-
 
 COSTS IN REAL ACTIONS. 145 
 
 and before judgmont Avas obtained, which awarded costs against 
 the defendant personalh', and not on the land, the property had 
 loeen sold on a mortgage foreclosure, and a surplus resulted.^'' 
 The costs of the reference may be ordered paid out of the fund,^^ 
 or bv the unsuccessful party upon the reference. This rests in 
 the discretion of the court, and this discretion can be reyiewed 
 by the same court in appellate term, but it cannot be reviewed by 
 the court of appeals. '^^ Unsuccessful clainuints may be made 
 to pay the extra expense to which the successful claimant ha? 
 been put by reason of their claims.^^ But where there is a good 
 reason to investigate the successful party's claim, and not much 
 work is necessitated by the unsuccessful claim, no cost-s should 
 be charged against the unsuccessful claimant.^^ In a surplus 
 proceeding where the ^\'idow and heirs are the claimants, the 
 widow, who has agreed to accept a gross sum in lieu of dower 
 should not be charged with any expense of the proceeding.^^ 
 
 Liens subsequent to an easement are entitled to be satisfied 
 prior to the costs of an action brought to establish that easement, 
 altliough they are recorded after the filing of the lis pendens in 
 the action to establish the easement.'^^ 
 
 m. AUoivance to receiver of rents. — A receiver of rents will 
 not be allowed counsel fees, when his attorney advises him to 
 disregard his duty as such receiver, and act for his own personal 
 gain.-' 
 
 11. Liability of referee. — A referee should be made to pay the 
 costs of an appeal from an order which requires him to pay into 
 
 ^Crocker v. Lewis, 144 X. Y. 140, Y. Supp. 463; Farmers' Loan d T. 
 
 39 X. E. 1; Bushwick Sav. Bank v. Co. v. Millard, 9 Paige, 620. 
 
 Traum, 26 App. Div. 532, 50 X. Y. ^*Dudqeon v. Hmith, 23 X. Y. Week. 
 
 Supp. 542. Dig. 400. 
 
 ^^Oppenheimer v. Walker, 3 Hun, ^Campbell v. Erring. 43 How. Pr. 
 
 SO, 5 Tlionip. & C. 325. 258. 
 
 '-Hyman v. Uauff, 138 X. Y. 48. 51 "^Crocker v. Lewis, 79 Hun, 400. 01 
 
 X. Y." S. R. 731, 33 X. E. 735. X. Y. S. R. 503, 29 X. Y. Supp. 798. 
 
 ^^Laicton v. Sager, 11 Barb. 349: "Ranneij v. Peyser, 20 Hun, 11, 5 
 
 Beniiis V. Thrall, 35 Misc. 137. 70 X. Abb. X. C. 246. 
 
 COSTS 10.
 
 146 TJIE LAW OF COSTS IX .NEW YOKK. 
 
 court the surplus, as sIioaati by the judgment and his report of 
 sale, when he claims by affidavit that the terms of sale provided 
 that he should Y>ay the first mortgage out of the first pro- 
 ceeds of sale, the owner of which was not a party to the 
 action. The referee not having made a proper report, and not 
 having followed the provisions of the judgment, should pay the 
 costs incurred in correcting his error.^*^ 
 
 0. Costs upon redemption from the mortgagee. — The plaintiff 
 in an action to redeem from the moi'tgagee in possession is usu- 
 nlly required to pay the costs of the action.^'' -^ny unreasonable 
 resistance by the defendant, or any unconscionable defense, will 
 take the case out of the general rule.^*^' The costs of an unsuc- 
 cessful appeal by the defendant may be ordered paid by him."*^ 
 If the plaintiff wishes to exempt himself from the payment of 
 the defendant's costs, he should tender the defendant the amount 
 due upon the mortgage before bringing an action.'*^ A plaintiff 
 in an action to redeem will not be required to pay the costs of a 
 foreclosure, ineffectual as to him.*^ Costs are properly refused 
 to the successful defendant, where he succeeds by reason of the 
 statute of limitations."*^ 
 
 p. Hoiv the discretion of the trial court in airarding costs can 
 he reviewed. — A party desiring to review the discretion of the 
 trial court in awarding costs must himself apjiealfrom the judg- 
 
 '^Koch V. Fnircll. 1.3 .Tones & S. Am. Deo. .538; Stoddard v. ^Vhiting, 
 
 162. ^<5 X. Y. 627; Bclden v. Slade, 26 
 
 '"A'l/i// V. Duntz\ 11 Barb, ini ; Hun. 635; Slee v. Manhattan Co. 1 
 
 Shearer v. Field, 6 ^Mi.sc. 189. 27 N. V-.ih^v. 48; ^'an Buren v. Olmsted, 5 
 
 V. Supp. 29; Vroom v. Ditiiuis. 4 Paiire, 9. 
 
 Paige. 526; Parker v. Austin, 15 N. *^Ben)iett v. Cook, 2 Hun, .526, 5 
 
 Y. Week. Dig. 474; Brlden v. Sladr, Tlionip. & C. 134. 
 
 26 Hun, 635: Brockiray v. ll>//.s, I '-Shearer v. Field, 6 Misc. 189, 27 
 
 Paige, 617: Benedict v. (lilman, 4 N. Y'. Supp. 29; Benedict v. Gilman, 
 
 Paige, 58; Davis v. Dtiffie, 18 Abb. 4 Paige, 58; Kincf v. Duntz, 11 Barb. 
 
 Pr. 360. 191. 
 
 *''Parker V. Austin, \5 !>*. Y. Week. "lielden v. Slade, 26 Ilun. 635; 
 
 Dig. 474; Yroom v. Ditmas, 4 Paige, Benedict v. dilman, 4 Paige, 58. 
 
 .526; Va// /or V. Co/ n7?c, 20 App. Div. "Denitn est v. Wi/nknop, 3 Johns. 
 
 581, 47 N. Y. Supp. 267: Brineker- Cli. 129. 8 Am. Dee. 467. 
 hoff V. Lansing. 4 .Tohns. Ch. 65, 8
 
 COSTS IN BEAT. ACTIONS. 147 
 
 ment. The appellate court will not review tlie discretion of the 
 trial court in refusing costs to the plaintiff upon the appeal of 
 a defendant. ^^ 
 
 q. Discretion reviewed hy the court of appeals. — The plaintiff 
 is not entitled to costs where there is a defect of parties which 
 is set up by answer, and the defect is obviated after the service 
 of answer and before trial. The court of appeals will reverse 
 an allowance of costs which the court below has made under a 
 mistaken view of the law, although, if the same allowance had 
 been made under a coi*rect view of the law, the court of appeals 
 would not have reviewed the discretion of the court below, al- 
 though it believed that the allowance was unjust."*^ It is not un- 
 just to compel the defendant, who did not pay his debt, to pay an 
 allowance to a special guardian of an infant who is properly 
 made a party.'*'^ 
 
 121. Foreclosure of a land contract, — It is usual in foreclos- 
 ing a land contract or other lien upon property, to charge the 
 funds realized from the sale of the property with the costs of the 
 action unless some good reason is shown why the lienor should 
 not receive the protection of having his reasonable costs and ex- 
 penses paid, so that he may realize his debt, if the property is 
 sufficient for that purpose.'*^ 
 
 But an allowance under § 3252 of the Code of Civil Pro- 
 cedure cannot be granted in an action to foreclose a land con- 
 tract.^^ 
 
 122. Foreclosure of a chattel mortgage. — A defendant in an 
 action to foreclose a chattel mortgage is properly chargeable 
 with costs where he unsuccessfully claims a portion of the pro- 
 perty.^° 
 
 *'EweU V. Hubbard, 46 App. DIv. *^Burkhart v. Bahcock, 2 How. Pr. 
 383. 61 N. Y. Supp. 790. N. S. 512. 
 
 ".1/orris V. Wheeler, 45 N. Y. 708. '''McXeeley v. Welz, 20 App. Div. 
 
 ^'Ewell V. Hubbard, 46 App. Div. 566, 47 N. Y. Supp. 310. 
 383, 61 X. Y. Supp. 790. 
 
 *'Burank v. Babcock, 3 N. Y. S. E, 
 458.
 
 148 THK L.AW OF COSTS IN NEW VOKK. 
 
 A mortgagor has a right to redeem property covered by a 
 chatt-el mortgage, after a default made in the payment of the 
 money secured by the mortgage, imbil a foreclosure sale. If 
 the mortgagee unreasonably refuses to allow him to redeem, the 
 mortgagee will be charged, in the discretion of the court, with 
 the costs of an action brought to redeem the property.^^ 
 
 123. Action to have a deed declared a mortgage. — Costs are 
 properly allowed against a defendant in an action to have a deed 
 declared a mortgage, where the plaintiff succeeds. ^^ Costs are 
 properly allowed against both defendants, a husband and wife, 
 where the husband claims that the instrument is a deed, and his 
 wife claims an inchoate right of dower in the property.^^ 
 
 124. Action to set aside fraudulent conveyances. — In an action 
 to set aside a deed as in fraud of creditors the costs are in tlie 
 discretion of the court. ^^ A grantor in a deed is liable to his 
 grantee for the costs which the grantee has been compelled to 
 pay in an action to restrict him in the use of land conveyed with- 
 out restrictions ; and also for a reasonable amount for the attor- 
 ney of the grantee, provided the grantee notified the grantor of 
 the action, and requested him to defend it, which he refused to 
 do.^^ The notice must be timely. A notice served after the 
 case is in the court of appeals is too late.^° 
 
 125. Action to remove a cloud on the title. — A defendant will 
 be compelled to pay costs whenever his actions force the plaintiff 
 into court to protect his rights. He will be compelled to pay 
 costs where he denies plaintiff's claim of a right of way over his 
 land, and the plaintiff is compelled to bring an action to settle 
 that question, and succeeds.^^ A defendant will not be allowed 
 
 ^Pratt V. stiles, 9 Abb. Pr. 150, 17 ^Charman v. Tatum, 54 App. Div. 
 
 How. Pr. 211. 61, 66 N. Y. Supp. 275. 
 
 '--Foley V. Foletj, 15 App. Div. 276, "^Finton v. Egelston, 61 Hun, 246, 
 
 44 N. Y. Supp. 588. 40 N. Y. S. R. 936, 16 N. Y. Supp. 
 
 ^%'astleman v. Simpson, 16 N. Y. 721. 
 
 Weok. Dig. 455. "Wells v. Tolman, 88 Hun, 438, 68 
 
 ■■^Bl^ck V. O'Brien, 23 Hun, 82. N. Y. S. R. 777, 34 N. Y. Supp. 840.
 
 COSTS IN REAL, ACTIONS. 149 
 
 costs, altlioiig'li lie succeeds in an action brought to remove a 
 cloud on the plaintiff's title, where, by erroneous desci-iption, the 
 defendant's deed seems to cover the plaintiff's land, and defend- 
 ant has given a mortgage, which had been paid off, covering the 
 plaintiff's land. In such a case the defendant should have re- 
 leased the plaintiff's land, to which he had no right, instead of 
 making claim to it.'''''' A wife was charged with the costs of an 
 action against her to have her inchoate right of dower in certain 
 land declared terminated, when her husband's title failed 
 through breach of conditions in the conveyance to him, and shc^ 
 refused to join with her husband in a quitclaim deed.^^ 
 
 126. Action to compel the specific performance of a land con- 
 tract. — Costs will not be allowed to a successful plaintiff in an 
 action to compel a specific performance, where he has not, before 
 the commencement of the action, demanded a conveyance by the 
 defendant The same rule will obtain, even where a demand 
 and refusal are impossible, — as, in case the defendant is a luna- 
 tic, who has received the property by inheritance.^** ; 
 
 Equity will also refuse costs to the successful party, where he 
 has not acted honestly and fairly with his opponent. The court, 
 will not aid a party in his sharp practices by mulcting the de- 
 feated party in costs. Costs were refused to a successful de 
 fendant in an action for specific performance which could not be 
 enforced because the contract was incomplete, but the plaintiff 
 had expended a large sum of money upon the faith of the con- 
 tract, and the defendant had sold the interest, to compel the con- 
 veyance of which his action was brought, to rivals of the plain- 
 tiff.6^ 
 
 Costs were refused to a successful defendant, because the re- 
 fusal to convey was not decided enough, and the exact grounds^ 
 
 ^CoxY.CUft, 3 Barb. 481, Affirmed ^Stcartivout v. Burr, 1 Barb. 495. 
 in 2 N. Y. 118. '^Kayser v. Arnold, 16 N. Y. S. R. 
 
 "GrecM V. Reynolds, 72 Hun, 565, 105, IN. Y. Siipp. 412. 
 64 N. Y. S. R. 846, 25 N. Y. Supp. 
 625.
 
 150 THE LAW OF COSTS IN NEW YOJJK. 
 
 of the objection to the contract were not stated. Tlie defendant 
 had been undecided and not candid in the refusal to convey, and 
 thus had caused tlie plaintiff much trouble and expense.^^ 
 
 In the trial of an action to recover back part of the purchase 
 price paid upon a land contract, because of a flaw in the title, 
 the defendant for the first time produced a discharge of an old 
 mortgage which made the title perfect. The defendant had 
 judgment in his favor, but was denied costs, as he had neglected 
 to show the discharge of mortgage to purchaser.^^ 
 
 A defendant will not be compelled to pay costs of an action 
 for specific performance, where that relief is denied, but the 
 action is continued so that the plaintiff may recover damages for 
 the breach of the contract.^^ 
 
 Where a jjurchaser by a land contract refused to complete the 
 purchase on account of a defect in the title, and the owner then 
 sold to a third person, and the contract purchaser brought an 
 action for specific performance against the original owmer and 
 wife and the grantee, upon a decision refusing specific per- 
 formance on account of the flaw in the title, costs were granted 
 to the grantee as he was a necessary party, but were refused to 
 the wife of the original owner, because there was no reason why 
 she should defend. She was made a party so that she could be 
 compelled to join in the deed if the title should be held good, 
 but she had no interest in the property, as she had already con- 
 veyed that.^^ 
 
 A creditor, when he recovers a debt in an equitable action, 
 should recover costs also, unless there are special and strong 
 reasons to tlie contrary.*^^ A defendant has been compelled to 
 
 ^'Cuff V. Borland, 50 Barb. 438. ^Coiich v. MiUnrd, 41 Hun, 215; 
 
 '^Pangburn v. Miles, 10 Abb. N. C. Dilts v. Street, 49 N. Y. S. R. 275, 
 42. 21 N. Y. Supp. 57. 
 
 ^Fitzpatrick v. Borland, 27 Hun, 
 291. 
 
 '^Walton V. MeeJcs, 41 Hun, 311.
 
 COSTS IN KEAT. ACTIONS. 151 
 
 pay costs in an action brought to compel liini to give a mortgage, 
 which action he nnsuccessfullj clefends.^^ 
 
 127. Power of court to relieve purchaser from a bid upon a judi- 
 cial sale. — The court can, upon a motion made in tlie action, re- 
 lieve a purchaser from his bid when there is a defect in the title 
 as to a portion of the property purchased, and upon such motion 
 may allow him the costs of the motion and a sum in addition 
 thereto for counsel fee, for examining the title. The discretion 
 of the court in allowing such counsel fee is not reviewable by the 
 court of appeals. ^^ 
 
 128. Liability of purchaser at a judicial sale in protecting his 
 "bid. — A purchaser upon the sale of land for the non2)ajment of 
 an assessment, who litigates an action to declare void and vacate 
 the lien of sale and certificate of sale under such assessment, is 
 properly chargeable with costs in the event of the plaintiff suc- 
 ceeding.'^^ 
 
 129. Partition action, a. In general — Costs in partition are 
 regulated by §§ 1540, 1555, 1559, 1579, and 1580 of the Code of 
 Civil Procedure. The costs in an action for partition are in the 
 discretion of the court."^^ The fact that an issue of fact in such 
 an action is triable by a jury does not bring the action watliin § 
 3228, subd. 1, of the Code of Civil Procedure, thereby entitling 
 the plaintiff to costs, as of course. '^^ The contrary has been held 
 in a special term deeision.'^^ This decision is undoubtedly 
 erroneous. 
 
 h. Costs to the defendant. — In proper cases costs are allowed 
 to the defendant. There has been a considerable diversity of 
 opinion as to the power of the court to allow costs and an extra 
 
 "Dilts V. Sn^eet, 49 N. Y. S. R. 275, Civ. Proc. Rep. 51, 42 K Y. S. R. 76, 
 
 21 N. Y. Supp. 57. 16 N. Y. Supp. 605; Wells v. Van- 
 
 '^S'/iriver v. Shriver, 86 X. Y. 575. dericerl-er, 45 App. Div. 155, 7 N. Y. 
 
 ^^Newell V. Wheeler, 48 N. Y. 486. Anno. Cas. 73, 60 N. Y. Supp. 1089; 
 
 '"'Austin V. Ahearne, 61 N. Y. 6; Henderson v. Scott, 43 Hun, 22; Aus- 
 
 Eenderson v. Scott, 43 Hun, 22. tin v. Ahearne, 61 N. Y. 6. 
 
 ''^Weston V. Stoddard, 22 N. Y. "Z)arts v. Davis, 3 N. Y. S. R. 163.
 
 152 TIIK LAW OF COSTS IN NKW YORK. 
 
 allowance to a defendnnf under § 3253 of the Code of Civil Pro- 
 cedure, where actual ])artition has been had. The later cases 
 hold that the court has power to grant costs tx) the defendant 
 under such circumstances/^ although the contrary has been held 
 in earlier cases, which avouM not now he followed.'* It has 
 been hold that costs could not be granted to a defendant when no 
 defense was interposed.^^ These cases were decided prior to the 
 amendment of § 3253 of the Code of Civil Procedure by chapter 
 299 of the laws of 1899, and are now of no authority. Costs 
 can bo granted to the defendant, altliongh he has not interposed 
 :;ny answer.^ ^ 
 
 c. Bi/'irhom costs should he paid. — The ])laiiititf should be 
 charged with the costs of persons whom lie made defendants, 
 who have no interest in the subjcct-nuitter.'^'^ Costs in partition 
 should be paid out of the fund, where there has been only the 
 necessary litigation.""^ In actual partition the costs should be 
 paid according to the shares of the respective owners.*^ ^ Where 
 one defendant puts in an answer and is defeated upon the issues 
 raised thereby, the costs and ex])euses of the proceedings, except 
 the costs and expenses of the trial, should come out of the whole 
 proceeds. The costs and disbursements of the trial should come 
 out of the share represented by the defendant so litigating.^" 
 
 The defendant who did not a|)pear, and who did not receive 
 
 '■HU-ofii^man v. Wi/ekoff, G4 App. v. Snlls. 28 Ahh. X. C. 117. in N. Y. 
 
 Div. 554. 72 X. Y. Supp. :i.37 ; Chit- Sujip. 240. 
 
 lenden v. Gates, 25 App. Div. 62.3, ^Crossman v. Wi/choff, 04 App. 
 
 49 N. Y. Supp. 1133; Tihhils v. Tih- Div. 554, 72 X^ Y. Sup]). 3.37. 
 
 bits, 7 Paio;e, 204. '''Ifomerffleif v. JIanuiHlcii, 7 N. Y. 
 
 ^'*^Vced V. I'oDte, 31 lliin. 10. 13 Lcsal Obs. 127. 
 
 Abb. X*. C. 200: Davis v. Davis, 3 X. '''Tanner v. AiVr.f. 1 Barb. 500. 
 
 Y. S. R. 103; Hprague v. Knf]cl- ^"Weston v. Stoflrlavd, 22 'S. Y. Civ. 
 
 hrecht, 29 Misc. 404, 61 N. Y. Supp. Proc. Rep. 51. 42 X. Y. S. R. 76, 10 
 
 9,52; MoILrr v. Porter, 49 X. Y'. S. X. Y". Supp. (505. 
 
 R. 849, 21 X. Y. Supp. 723; Allen v. '"Wells v. Yandenverher, 45 Apj). 
 
 Allrn. 11 X. Y. S. R. 470; VanWyck Div. 155, 7 X. Y. Anno. Cas. 73, CO 
 
 v. BaI.ev, 11 Hun, 309. X. Y. Supp. 1089. 
 
 '^Drfrndorf v. Drfendorf, 42 App. 
 Div. 107. 59 X. Y. Supp. 103; Sails
 
 COSTS IN REAL ACTI' XS. 153 
 
 any part of the land partitioned, should not be charged with 
 costs.®^ ]^or should a widow be charged with costs, because a 
 sale must be made, and her dower extends to the entire prop- 
 erty.^^ In actual partition she is neither a necessary party, 
 nor is she chargeable with costs.^^ 
 
 The court cannot punish a defendant for unreasonably refus- 
 ing to make a partition by deed, by imposing costs uj)on him.^'* 
 The plaintiff will be allowed his costs, even though the defendant 
 who purchases the property is entitled to a smn for improve- 
 ments greater than his bid, and the purchaser will be required 
 to pay the costs. The same result would, of course, be reached 
 if the purchaser should be compelled to pay the amount of his 
 bid to the referee, who would deduct the costs of the sale and the 
 plaintiff's costs, and return the balance to the purchaser.^^ 
 
 d. At what stage in the proceedings costs are allowed. — When 
 there is no issue requiring a trial, it is the usual practice to wait 
 for final judgment and the ascertainment of the amount of the 
 proceeds of sale before determining what costs and allowances 
 shall be granted.^*' But where an issue is raised it is one of the 
 duties of the trial judge to determine upon whom should fall the 
 burden of the unsuccessful contention, and he should decide that 
 question at the trial.**' Where the issues are sent to a referee 
 for determination, the question of costs is determined by the 
 court upon the confinnation of the referee's report. He has no 
 power over the question of costs.^''^ AMiere it is proposed to pay 
 the mortgage upon the property, the mortgage nuist be paid be- 
 fore the costs of the partition action,^® 
 
 ^^Tanner v. Niles, 1 Barb. 560. Saffron v. Saffron, 11 N. Y. R. R. 
 
 '^Tanner v. TSIiles, 1 Barb. 560. 471. 
 
 ^'Tanner v. Niles, 1 Barb. 560. ^Johnson v. Weir, 36 Misc. 737. 74 
 
 '*McGoican v. Morrow, 3 N. Y. N. Y. Supp. 358. 
 
 Code Rpp. 9. ^^Vells v. Vanderiverlcer, 45 App. 
 
 ^''Henderson v. Scott. 43 Hun. 22; Div. 155, 7 N. Y. Anno. Cas. 73, 60 
 
 Ford V. Knapp, 102 N. Y. 135. 55 X. Y. Supp. 1089. 
 
 Am. Rep. 782, 6 N. E. 283; Black, v. '•^Bellcr v. Antifidel, 84 Hun, 252, 
 
 O'Brien, 23 Hun, 82. 65 X. Y. S. R. 719, 32 X. Y. Supp. 
 
 ^Fhjnn v. Kennedii, 62 Hun, 26, 41 575. 
 X. Y. S. R. 359, 16 X. Y. Supp. 361;
 
 154 THE LAW OF COSTS IN NEW YORK. 
 
 e. Costs to guardian ad litem. — The costs of a guardian ad 
 iiiem for infant defendants are allowed under the general equity 
 power of the court^*^ The court has the power and authority, 
 independently of the Code of Civil Procedure, to award reason- 
 able compensation to a guardian ad litemP^ 
 
 The costs of the guardian are payable out of the general fund, 
 but anything in addition thereto must be made payable from the 
 infant's share.^^ The application of a mortgagee to be paid the 
 amount of his mortgage out of the funds is a special proceeding, 
 and not a motion in the action, and the costs of the application 
 are governed by § 3240 of the Code of Civil Procedure.^^ 
 
 But a motion to compel a referee to pay to a sheriff the amount 
 of an execution that he has in his hands against a person entitled 
 to share in the money in the referee's hands is a motion in the 
 action, and not a special proceeding.^* 
 
 The question of additional allowances is discussed in § 299, 
 subd. h, post. 
 
 130. Action to construe a will. a. To icliom costs are al- 
 lowed. — In an action for the construction of a will, costs are in 
 the discretion of the couii", and it may allow costs to all parties.^"" 
 A person made a defendant in an action to construe a will has a 
 right to come into court and protect his interest, and he, as well 
 as the plaintiff will bo allowed his costs, payable out of the es- 
 tate, although the court decides that he has no interest in the 
 estate.^^ 
 
 h. Upon ivliat principle costs are allowed. — Costs in such 
 actions are allowed upon equitable principles. The fact that the 
 
 "oSnils V. Sails, 28 Abb. N". C. 117, ^Byrnes v. Lahagh, 10 X. Y. S. R. 
 
 19 N. Y. Supp. 246. 728, 12 N. Y. Civ. Proc. Rep. 417. 
 
 "'Weed V. Paine, 31 Hun, 10. 13 ^Foicler v. Fowler, 147 N. Y. 673, 
 
 Abb. N. C. 200. 42 N. E. 343. 
 
 "^New York Life Ins. d T. Co. v. "''Leonard v. Davenport, 58 How. 
 
 Sands, 26 Misc. 252, 56 N. Y. Siipp. Pr. 384. 
 
 741; Union Ins. Co. v. Van Rensse- °".l/i7Zcr v. Ton f^chicarzenstein, 51 
 
 laer, 4 Paige, 85; Gott v. Cook, 7 App. Div. 18, 64 N. Y. Supp. 475. 
 Paige, 521.^
 
 COSTS IN HEAL ACTIONS. 155 
 
 successful parties succeed against tlie avowed intention of tlic 
 testator -^all have an important bearing in making the costs 
 allowed to all parties a charge upon that part of the estate as to 
 which the decedent died intestate, and which devolves upon the 
 successful parties.^^ The defeated party can be allowed costs, 
 but where he has been defeated at special term and at the appel- 
 late division, the court of appeals is averse to allowing him costs 
 for his third defeat.^^ 
 
 c. A')nount of additional allowances. — Plaintiffs who act as 
 trustees may be granted an allowance as a compensation for serv- 
 ice of counsel in the litigation. This allowance is made by rea- 
 son of the inlierent power of the court and does not rest upon 
 any statutory provision.^^ This allowance the court of appeals 
 has the power to review.^"*^ 
 
 The plaintiif may also receive an extra allowance as provided 
 in § 3252 of the Code of Civil Procedure. 
 
 All parties to an action to construe a will may, where a de- 
 fense has been interposed, receive an extra allowance under the 
 provisions of § 3253 of the Code of Civil Procedure.^"^ This 
 has been denied in a special term decision.^ "^^ But this was de- 
 cided upon the authority of cases which were decided before an 
 amendment to the Code of Procedure in 1870. Previous to 
 that time an action to construe a will was expressly excepted 
 from the provisions of § 309. In 1870 that exception was re- 
 moved, and the limitation, that a defense must be interposed in 
 an action, to bring it within the purview of that section was in- 
 serted. When our present Code was adopted, § 3253 took the 
 place of § 309 of the former Code. The court in the case last 
 cited evidently overlooked the change made in 1870. 
 
 ^Booih V. Baptist Church of 380; Wetviore v. ParJcer, .52 N. Y. 
 
 Christ, 126 N. Y. 215, 28 N. E. 238, 466. 
 
 37 N. Y. S. R. 79. ^"'Allen v. Stevens, 161 N. Y. 123, 
 
 ^McLean v. Freeman, 70 X. Y. 81. 55 N. E. 568. 
 
 ^Downing v. Marshall, 37 N. Y. ^""Hafner v. Hafner, 34 Misc. 99, 
 
 SSO. 69 N. Y. Supp. 460. 
 
 ^""Downing v. MarshaU, 37 N. Y.
 
 15G TJIK J.AW OF COSTS IX NEW YORK. 
 
 The allowaucos to llic plainliff or to two or more parties on 
 the same side, made under § 3253 of the Code of Civil Pro- 
 cedure, eaunot exceed the sum of $2,000.' ^■'' But where several 
 legatees apjK'ar hv different attorneys the allowances to the sev- 
 eral defenihints may exceed the sura of $2,000.^*^* 
 
 d. By what court costs are awarded. — Costs, when awarded,, 
 are awarded by the supreme court in its discretion and within 
 the b"mits imposed by law. This discretion the court of appeals 
 has no power to review, unless the statutory limit has been ex- 
 ceeded.^ '^^ 
 
 c. Payable out of uliai [mid. — Where the question affects the 
 entire estate, costs should be made payable out of the entire 
 estat(\'''" But where only a portion of the will is involved, the 
 costs of the plaintiff should be paid out of the entire estate, and 
 the costs of the defendants should be made payable out of the 
 shares ('(tilling to them.^'^'' But wbere the defendants are success- 
 ful upon the questions involved, the court has a discretion 
 whether it will allow them costs or not, but it cannot allow all 
 the costs out of their property.'^** The costs are g-enerally charge- 
 able upon the residuary estate, rather than upon particular be- 
 quests. A guardian ad litem will be allowed his taxable costs 
 out of the general estate, but any allowance in addition thereto 
 must be made from the infant's share.^^*^ 
 
 The plaintiff will be charged personally with costs and extra 
 allowance, where the action is brought unnecessarily.^ ^"^ 
 
 131. Action to foreclose mechanic's lien. a. In general. — 
 
 ""Code Civ. Proc. § .32r,4. ""Mills v. Mill.^. 50 App. Div. 221, 
 
 ''>*AUen V. Stcveus, IGl X. Y. 12.3. 63 X. Y. Supp. 771. 
 
 55 N. E. 508. '""Smith v. Lnnsinfi, 24 Misc. 5156, 
 
 ^"^Prorost V. Provost, 70 N. Y. .')3 N. Y. Siipp. 633; Doicmus v. 
 
 141; Allen v. Stevens, 161 N. Y. 123. Doremvs, 66 Hun, 125, 20 N. Y. 
 
 55 N. E. 568. Snpp. 906: Uafner v. Ilafner. 34 
 
 ^'>'CooJ: V. MuiuK 33 Ihin, 25. 19 Misc. 99, 69 X. Y. Supp. 460. 
 
 X. Y. WiH'k. Dip. 398; Re Maresi, 74 ''Hlarlork v. Vandevort, 128 X. Y. 
 
 App. Div. 76, 77 X. Y. Supp. 76. 374, 28 X. E. 599: Smith v. Roeke- 
 
 ""Cook V. Muirn, 33 Hun, 25. 19 N. feller, 5 Thomp. & C. 562, 3 Hun, 
 
 Y. Week. Dip. 398. 295; Wead v. Canticcll. 36 Hun, 528.
 
 COSTS IN REAL ACTIOaSTS. 157 
 
 Costs upon the foreclosure of mechanic's liens are now governed 
 by the provisions of § 3411 of the Code of Civil Procedure, 
 which contains practically the same provisions as the various 
 laws which governed the question before the enactment of this 
 section, except that now the law provides that the "costs and dis- 
 bursements shall rest in the discretion of the court, and may be 
 awarded to the prevailing party," while the law of 1885 pro- 
 vided that the ''costs and disbursements . . . shall rest in 
 the discretion of the court, and may be awarded to or against 
 the plaintilf or the plaintiffs, defendant or defendants, or any or 
 either of them, as may be just and equitable." Laws 1885, 
 •chap, 342, § 14. The costs upon foreclosure of a lien on a ves- 
 sel are governed by §§ 3432 and 3439 of the Code of Civil Pro- 
 cedure, ^o costs will be allowed where the amount of the lien 
 is paid before the service of the summons.^^^ 
 
 Under the former law, costs were allowed to the different de- 
 fendants who succeeded in their contention. -^^^ Doubtless the 
 court would do so now, under its general powers to award costs 
 in equity cases. 
 
 It is no objection to allowing the plaintiff costs that he re- 
 covered less than he claimed, where no offer of judgment was 
 made. The same rule will govern as in actions at law.^^^ 
 
 b. Lidbility of the owner of tJie premises. — The payment of 
 the amount of the claim into court does not necessarily relieve the 
 owner from liability for costs.^^^ Such payment must be made 
 by him to protect himself from costs, where he has money in his 
 hands sufficient to pay the lien.^^® If he defends the action and 
 the plaintiff has judgment the owner will be obliged to pay 
 costs.^^® 
 
 "^Rei/nolds v. Eamil, N. Y. Code "*Dunning v. Clark, 2 E. D. Smith, 
 
 Rep. N. S. 230. 535. 
 
 ^'^-McCliesney v. Syracuse, 75 Hun, ^^'Willianisori v. Hendriclcs, 10 
 
 503, 57 N. Y. S. R. 676, 27 N. Y. Abb. Pr. 98. 
 
 Supp. 508. ""J/wZi V. Jones, 45 N. Y. S. R. 
 
 '^Walk V. McKeige, 43 N. Y. S. R. 643, 18 X. Y. Supp. 359. 
 26. 16 N. Y. Supp. 741.
 
 158 THE LAW OF COSTS IN NEW YORK. 
 
 It has been held, however, that the omission to pay the 
 money into court is not sufficient to charge the owner with costs 
 created by the litigation between a contractor and a claimant.^ ^'^ 
 
 The neglect of a subcontractor to serve the notice provided for 
 in § 423 of the Code of Civil Procedure will deprive him of 
 costs against the owner, who defends the action, although the 
 contractor makes default, and the lien is held valid against tho 
 property.^ ^^ The court may require tlie owner, where he de- 
 fends the action, to pay costs in addition to the amount actually 
 due the contractor.^ ■'^ 
 
 c. Offer of judgment. — The plaintiff will be obliged to pay 
 costs to the owner subsequent to tlie offer of judgment, where the 
 recovery is not as favorable as the offer ; but he will be entitled 
 to costs up to the time of the offer.^^^ 
 
 d. Costs allowed to a subcontractor. — A subcontractor is enti- 
 tled to costs of his action, if there is enough due from the o^vners 
 to the contractor to pay him. The costs of an appeal by the con- 
 tractor from a judgment obtained by a subcontractor cannot be 
 collected out of the property. The plaintiff should have de- 
 manded security upon the appeal, or else proceeded with his 
 judgment. ■'^^ A subcontractor will be allowed his costs out of 
 the fund, where the contractor has made a general assignment 
 for the benefit of his creditors.^ -^ 
 
 e. Additional allowance. — In actions that are difficult and 
 extraordinary an additional allowance may be made under 
 § 3253 of the Code of Civil Procedure.^^s g^^^^i^ ^^^ award rests 
 
 ''^Eagleson v. Clark, 2 E. D. Smith, ^-McMurray v. Eutcheson, 59 
 
 *M4, 2 Abb. Pr. 364. How. Pr. 210. 
 
 "Wunbar v. Diem, 9 N. Y. Week. ^-^Horr/an v. McKenzie, 43 N. Y. 
 
 Dig. 231. S. R. 131, 17 N. Y. Supp. 174 {Hagan 
 
 ^^"Kenney v. Apgar, 93 X. Y. 539. v. Arnerican Baptist Home Mission- 
 
 ^-"Schulfe V. Lcatershire Boot d ary Soc. 14 Daly. 131, 6 N. Y. S. R. 
 
 ,s'/ioe Co. 88 Hun, 22G, 34 N. Y. Supp. 212, was decided as the law stood be- 
 
 (iG3. See Morgan v. Stevens, 6 Abb. fore 1885) ; Laicson v. Reilhj, 13 N. 
 
 X. C. 356. Y. Civ. Proc. Rep. 290; Carney v. 
 
 ^^HoUer v. Apa, 47 N. Y. S. R. 485, Reilly, 18 Misc. 11, 40 N. Y. Supp. 
 
 IS N. Y. Supp. 588. 1123.
 
 COSTS ISr REAL. ACTIONS. 159 
 
 ill the discretion of the court at trial terra, and the final discre- 
 tion rests ^v"ith the same court, as it sits to hear appeals, either at 
 general term or in the appellate division. From this determi- 
 nation within the limits of discretion there is no further ap- 
 peal.^-'* But the plaintiff is not entitled to the additional allow- 
 ances provided for in § 3252 of the Code of Civil Procedure.^^^ 
 
 '^^Carneij v. Reilbj, 18 Misc. 11, 40 '"nVright v. Reusens, 39 N. Y. S. 
 
 N. Y. Supp. 1123; Gorham v. Innis, R. 802, 15 N. Y. Supp. 504; Rtith v. 
 
 115 N. Y. 87, 21 N. E. 722; Hanover Jones, 1 Month. L. Bull. 61; Ran- 
 
 F. Ins. Co. V. Germania F. Ins. Co. dolph v. Foster, 3 E. D. Smith, 648, 
 
 138 N. Y. 252, 33 N. E. 10G5. 4 Abb. Pr. 262.
 
 CHAPTER XL 
 
 INCREASED COSTS. 
 
 132. Double costs. 
 
 a. Who are entitled to double costs. 
 6. Waiver of right to double costs. 
 
 c. How obtained. 
 
 d. When they are refused. 
 
 e. Costs on appeals. 
 
 133. Treble costs. 
 
 132. Double costs, a. WJio are eniitled to double costs. — 
 By § 3258 of the Code of Civil Procedure a public officer, ap- 
 pointed or elected, or a person assisting such an officer, when 
 sued in an action at law^ for an official act, is entitled, in case 
 he is successful in his defense, to regular costs, and, in addition 
 thereto, to one-half that amount. These are called double costs. 
 Section 3259 of the Code of Civil Procedure expressly provides 
 that the increase given by the preceding section shall not apply to 
 disbursements This section renders obsolete a class of cases 
 which held that double costs included disbursements.^ 
 
 The following officers have been held to be entitled to double 
 costs: Overseer of the poor,^ sheriff,^ (after the adoption of the 
 Code of Procedure the decisions were irreconcilable on the 
 question whether a sheriff was entitled to double costs but there 
 seems to he no room for question now), policemen,^ overseers of 
 
 ^Cooper V. Schultz, 33 How. Pr. 5; HJallup v. Bell, 20 Hun, 172. 
 
 Stewart v. Schultz, 33 How. Pr. 3, *Van Geldcr v. HaUenbeck, 15 N. 
 
 Affirmed in 34 How. Pr. 31, 50 Barb. Y. Civ. Proe. Rep. 333, 18 N. Y. 8. 
 
 192. 3 Abb. Pr. N. S. 383; Davis v. R. 19, 2 N. Y. Supp. 252; Stnith v. 
 
 Cooper, 50 P.arb. 376. Cooper, 30 Hun, 395, 17 N. Y. W^eek. 
 
 -KUnck v. KeUy, 15 Abb. Pr. X. S. Dig. 490; Shepard v. Hoit, 7 Hill. 
 
 135; Jackson v. Li/nch, 32 How. Pr. 198. 
 
 93; Bartle v. Gilman, 18 N. Y. 2G2, ^Enrir/ht v. Shalvey, 1 N. Y. City 
 
 264, 265; Chadwick v. Brother, 4 Ct. Rep. 58. 
 How. Pr. 284. 
 
 160
 
 INCREASED COSTS. 161 
 
 liigliway,* and laborers workiiio- out their tax, -when sued for 
 trespass;^ collector of a school district;^ constable;^ surrogate;^" 
 and trustees of a school district.^ ^ But a board of supervisors 
 is not.^^ 
 
 b. Waiver of right to double costs. — This right to double costs 
 is waived when the person otherwise entitled thereto unites in 
 his answer with a person not entitled to such additional costs.-^^ 
 A person who is interested in, or for whose benefit a process is 
 being executed, is not within the meaning of the statute so as to 
 be entitled to double costs, where he aids the ofiicer in the execu- 
 tion of a process.-^* 
 
 The personal representatives of a deceased defendant who was 
 ■entitled to double costs are also entitled to double costs. ^'^ 
 
 Indemnitors substituted as defendants in place of a sherifT 
 under the provisions of §§ 1421—1426 of the Code of Civil Pro- 
 cedure are entitled to single costs in contradistinction to doubl(3 
 •costs, as provided in § 3258 of the Code of Civil Procedure.^® 
 
 The contrary was held under the Revised Statutes.^ ^ 
 
 Where public officers have final judgment after return to a 
 writ of alternative mandamus the costs allowed are the same as 
 in an action, and tliej are entitled to double costs ;^^ but where 
 the cost of the special proceeding ai'e not the same as in an 
 
 ^Whcelock v. Hotchkiss, 18 How. 296, Affirmed in 04 N. Y. 626; Brad- 
 
 Pr. 468. ley v. Baxter, 8 How. Pr. 18; Wales 
 
 ''Van Bergen v. Ackless, 21 How. v. Hart, 2 Cow. 426; Merrill v. TSIear, 
 
 Pr. 314. .5 Wend. 237; Rote v. tiherwood, 6 
 
 ''Reynolds v. Moore, 9 Wend. 35, 24 Johns. 109. 
 
 Am. Dec. 116. ^'Bradley v. Fay, 8 How. Pr. 18. 
 
 "Joyies V. Gray, 13 Wend. 280; "Carpe^itier v. WiUet, 3 Hoht. 700. 
 
 Piatt V. Sherry, 7 Wend. 238. 28 How. Pr. 376. 
 
 ^"Burhans v. Blanchard, 1 Denio, ^'^Isaacs v. Cohen, 86 Hun, 119, 2 
 
 626. N. Y. Anno. Cas. 98, 67 N. Y. S. R. 
 
 ^'Saratoga cC- W. R. Co. v. McCoy, 22, 33 X. Y. Supp. 188. 
 
 8 How. Pr. 526. "M'Farland v. Crary, 6 Wend. 
 
 ^-Barber v. Crossett, 6 How. Pr. 297; Westervelt v. Nelson, 8 N. Y. 
 
 45; People ex rel. Lockport v. Xia- Lec^al Obs. 173. 
 
 gara County, 50 How. Pr. 353. ^"People ex rel. Bates v. Speed, 73 
 
 "Code Civ. Proc. § 5258; Comins Hun, 302. 57 N. Y. S. R. 295, 26 N. 
 
 V. Jefferson County, 3 Thomp. & C. Y. Supp. 254. 
 
 COSTS 11.
 
 1(12 TlIK J.AW OF COSTS IN iS'EW YOIMC. 
 
 action, as specifiod in § 3251 of the Code of Civil Procedure, 
 double costs cannot he allowed to the officers who succeed. The 
 costs of certiorari are regulated by ^ 3240 of the Code of Civil 
 Procedure, an<l therefore officers who prevail in these proceed- 
 ings are not entitled to double costs. ^•' Where an application for 
 a pereni])tory writ of mandamus is denied without a previous 
 alternative writ, the costs are governed by § 208(5 of the Code of 
 Civil Procedure, and therefore the successful officers would not 
 bo entitled to double costs. 
 
 c. Noil- ohhiined. — By § 3248 of the Code of Civil Procedure 
 "rhe judge presiding at the trial, or the referee, must, upon the 
 application of the party to be benefited thereby, either before or 
 after the verdict, report, or decision is rendered, make a certifi- 
 cate stating the fact. Such a certificate is the only competent 
 evidence as to the matter before the taxing officer." This section 
 applies to actions, and not to special proceedings,-'^ Such a cer- 
 tificate is conclusive upon the taxing officer,^^ and may be made 
 itu)ic pro tunc even after appeal. ^^ 
 
 d. WJioi tJicy arc refused. — The defendant is not entitled to 
 double costs in an action brought to restrain a board of health 
 from interfering with the plaintiff's business. Such an action 
 is not brought for any act done by the defendant by virtue of his 
 otHce, but to restrain him from doing what the plaintiff claimed 
 he ought not to be allowed to do. The statute has no application 
 to actions in equity.^^ The defendants in an action by a sheriff 
 against the sureties upon the bond of an under sheriff for dam- 
 
 ^"People ex rel. Sanders v. Col- '-'Snyder v. Bexjer, 3 E. D. Smith, 
 home, 20 How. Pr. 378; People ex 235. 
 
 rel. Hall V. Hempstead Toivn Audi- -^Cooper v. ScJwUz, 33 How. Pr. 5; 
 tors, 42 App. Div. 250, 59 N. Y. Stewart v. Schultz, 33 How. Pr. 3, 
 Siipp. 10. Affirinod in 50 P>arb. 192, 34 How 
 
 -"Wood y. h'andolph,\) Misc. 507, Gl Pr. 31. 3 .\bb. Pr. X. S. 383; Davu 
 X. Y. S. 11. 80, 30 X. Y. Supp. 344. v. Cooper. 50 Barb. 376; Taaks v 
 
 -'Lillis V. O'Connor, 8 Hun, 280; Schmidt, 25 How. Pr. 341. 
 Van Gelder v. Hallenbeck, 15 X. Y. 
 Civ. Proc. Rep. 333, 18 X. Y. S. R. 
 19, 2 X. Y. Supp. 252.
 
 INCREASED COSTS. 168 
 
 ages for breach of the hoiid are not entitled to double costs, in 
 case they are successful.^'* 
 
 e. Costs on appeal. — Double costs on appeal under the fdniior 
 statute have been granted to the defendant when he was a re- 
 spondent f"" but he was denied them when he was appellant.-^' 
 The Code of Civil Procedure has made no change in tliis re- 
 sjject-' 
 
 It has been held by a later case that the defendant is entitled 
 to double costs in all appeals from the county court to all higher 
 courts, but he is not entitled to increased costs upon an appeal 
 from a justice's court to the county court, because the costs in 
 such cases are regulated solely by § 3073 of the Code of Civil 
 Procedure.-^ > 
 
 Double costs cannot be obtained on a mere reversal which is 
 not a final adjudication. The defendant must succeed upon the 
 trial or obtain a final judgment in his favor before the right to 
 double costs attaches ; but when it once attaches by force of the 
 statute, it applies to any appeal upon which he succeeds in sus- 
 taining the judgment originally rendered in his favor.^^ 
 
 It is not necessary that double costs be awarded by the appel- 
 late court, when they are given by the statute.^" 
 
 133. Treble costs.— Section 14 of chapter 1 6 of the General 
 Laws is as follows: 
 
 ^'Members of the militia ordered into the active service of the 
 state by any proper authority shall not be liable, civilly or crim- 
 inally, for any act or acts done by them while on duty. When a 
 
 '"^Conner v. Kcese, 38 Hun, 124, 23 -'Scott v. Farley, 3 Montli. L. Bull. 
 
 X. Y. Week. Dig. 478. 29. 
 
 ^Burkle V. Luce, 1 N. Y. 239, 3 "^S haver v. El fired, 86 Hun, 51. 66 
 
 How. Pr. 236; Porter v. Cohh, 25 N. Y. S. R. 783, 33 N. Y. Supp. 158; 
 
 Hun, 184. ^^ood v. Randolph, 9 Misc. 507, 61 
 
 ^Mlieelock v. Hotchkiss, 18 How. N. Y. S. R. 80, 30 N. Y. Supp. 344. 
 
 Pr. 468; Dockstader v. Sammons, 4 ^Helmers v. Davidson, 2 N. Y. 
 
 Hill, 546; Foster v. Cleveland, 6 City Ct. Rep. 308. 
 
 How. Pr. 253; Estus v. Baldwin, 9 ^"Carpenticr v. Willet, 3 Robt. 700, 
 
 How. Pr. 80; Bartle v. Gilman, 18 28 How. Pr. 376. 
 X. Y. 260. 17 How. Pr. 1.
 
 164 THE LAW OV COSTS IN NEW YOKK. 
 
 suit or proceeding shall be commenced in any court by any per- 
 son against any officer of the militia for any act done by such offi- 
 cer in his official capacity in the discharge of any duty under this 
 chapter, or against any person acting under the authority or 
 order of any such officer, or by virtue of any warrant issued by 
 him pursuant to law, the defendant may require the person prose- 
 cuting or instituting the suit or proceeding to file security for 
 the payment of costs that may be awarded to the defendant 
 therein ; and the defendant in all cases may make a general de- 
 nial and give the special matter in evidence. In case the plain- 
 tiff shall be nonsuited, or have a verdict or judgment rendered 
 against him, the defendant shall recover treble costs." 
 
 Wliere a constable executes a warrant for military fines, is- 
 sued to him by the colonel of a regiment, he acts under the com- 
 mand of an officer of the militia, and if prosecuted therefor, ho 
 is entitled to treble costs if ho succeeds. The words "trebh^ 
 costs" are to be understood literally. •''^ 
 
 Where the supreme court reverses a judgment of a court mar- 
 tial on the ground that the court martial never obtained jurisdic- 
 tion, costs are properly imposed upon the officer assuming to hold 
 the court martial.^- 
 
 The provision of § 1-i of chapter 16 of the General Laws, re- 
 quiring security for costs in actions brought against any officer 
 of the militia for any act done by him in his official capacity, is 
 constitutional.^^ 
 
 ^^Valker v. Burnham, 7 How. Pr. "McLaughlin v. Kipp, 82 App. 
 55. Div. 413, 81 N. Y. Supp. 896. 
 
 ^-Re Leary, 30 Hun, 394.
 
 CHAPTER XII. 
 
 COSTS IN ACTIONS AGAINST SCHOOL OFFICERS AND MUNICIPAL 
 
 CORPORATIONS. 
 
 134. Costs in actions against school officers. 
 
 a. Statute. 
 
 6. Who is entitled to protection of the statute. 
 
 c. Certificate. 
 
 d. How costs awarded against a school officer are collected. 
 
 e. Costs awarded to school officers. 
 
 135. Costs in actions against a municipal corporation. 
 
 a. In general. 
 
 b. What actions are within the statute. 
 
 c. To whom the claim must be presented. 
 
 d. How the claim must be presented. 
 
 e. Effect of the presentation of the claim. 
 
 134. Costs in actions against school officers. a. Statute. 
 
 Section 324-i of the Code of Civil Procedure is as follows: 
 
 ''Costs cannot be awarded to the plaintiff in an action against 
 a school officer, or a supervisor, on account of an act performed 
 by him by virtue of, or under color of, his office, or on account 
 of a refusal or an omission to perform a duty enjoined upon him 
 by law, where his act, refusal, or omission might have been the 
 subject of an appeal to the state superintendent of public instruc- 
 tion, and where it is certified that it appeared upon the trial that 
 the defendant acted in good faith. But this section does not ap- 
 ply to an action for a penalty ; or to an action or a special pro- 
 ceeding to enforce a decision of the superintendent." 
 
 Section 3 of Article 1, of Title 15 of Chapter 23 of the Gen- 
 eral Laws is a substantial re-enactment of the foregoing section. 
 
 Section 4 of the same Article, Title, and Chapter provides 
 
 that "whenever the trustees of any school district, or any school 
 
 district officer or officers, have been or shall be instructed by a 
 
 165
 
 l(i() TllK LAW OF COSTS IN NEW VOIiK. 
 
 resolnlion of the district, at a meeting called for that purpose, 
 to defend any action brought against them, or to bring or defend 
 an action or proceeding touching any district property or claim 
 of the district, or involving its rights or interests, or to con- 
 tinue any such action of (or) defense, all their costs and reason- 
 able expenses, as well as all costs and damages adjudged against 
 them, shall be a district charge and shall be levied by tax. If 
 the amount claimed by them be disputed by a district meeting, 
 it shall be adjusted by the county judge of any county in which 
 the district or any part of it is situated." 
 
 Section 5 is as follows : "W^ienever such trustees or any 
 school district officer shall have brought or defended any such 
 action or proceeding, without any such resolution of the district 
 meeting, and after the final determination of such suit or pro- 
 ceeding, shall present to any regTilar meeting of the inhabitants 
 of the district, an account, in writing, of all costs, charges, and 
 expenses paid by him or them, with the items thereof, and veri- 
 fied by his or their oath or affirmation, and a majority of the 
 voters at such meeting shall so direct, it shall be the duty of the 
 trustees to cause the same to be assessed upon and collected of 
 the taxable property of said district, in the same manner as 
 other taxes are by law assessed and collected ; and, when so col- 
 lected, the same shall be paid over, by an order upon the col- 
 lector or treasurer to the officer or officers entitled to receive 
 the same ; but this provision shall not extend to suits for penal- 
 ties, nor to suits or proceedings to enforce the decisions of the 
 superintendent of public instruction." 
 
 Section 6. "Whenever an officer or officers mentioned in the 
 last preceding section of this title shall have complied with the 
 provisions of said section, and the inhabitants shall have refused 
 to direct the trustees to le\y a tax for the pa\Tnent of the costs, 
 charges, and expenses therein mentioned, it shall be lawful for 
 him or them, then and there, to give notice orally and publicly,
 
 ACTIONS AGAINST SCHOOL OFFICERS^ ETC. 1G7 
 
 that lie Avill appeal to the county judge of the county, and in 
 case of his disability to act in the matter by reason of being- 
 disqualified, or otherwise, then to the district attorney of the 
 county in a\ Inch the schoolhouse of said district is located, from 
 the refusal of said meeting to vote a tax for the payment of 
 said claim, and the inhabitants may, then and there, or at any 
 subsequent district meeting, appoint one or more of the inhabi- 
 tants of the district to protect the rights and interests of the 
 ■district upon said appeal. And the officer or officers before men- 
 tioned shall thereupon, within ten days, serve upon the clerk of 
 said district (or if there be no such clerk, upon the toA\^i clerk 
 of the town) a copy of the aforesaid account, so sworn to, to- 
 gether with a notice, in writing, that on a certain day therein 
 specified he or they intend to present such account to the county 
 judge or to the district attorney, as the case may be, for settle- 
 ment. And the clerk shall record such notice together with a 
 copy of the account, and the same shall be subject to the inspec- 
 tion of the inhabitants of the district. And it shall be the duty 
 of the person or persons ajipointed by any district meeting for 
 that purpose, to appear before the county judge or the district 
 attorney, as the case may be, on the day mentioned in the notice 
 aforesaid, and to protect the rights of the district upon such 
 settlement; and the expenses incurred in the performance of 
 this duty shall be a charge upon said district, and the trustees, 
 upon presentation of the account of such expenses, with the 
 proper voucher therefor, may levy a tax therefor, or add the 
 same to any other tax to be levied by them ; and their refusal 
 to levy said tax for the payment of said expenses, shall be sub- 
 ject to an appeal to the superintendent of public instruction." 
 
 Section 7. "Upon the appearance of the parties, or upon due 
 proof of service of the notice and copy of the account, the county 
 judge shall examine into the matter and hear the proofs and 
 allegations presented by the parties, and decide by order whether
 
 168 THE LAW OF COSTS IN KEW YORK. 
 
 or not the account, or any or what portion thereof, onght ju.stlj 
 be charged upon the district, with costs and disbursements to 
 such officer or oihcers, in his discretion, which costs and disburse- 
 ments shall not exceed the sum of $30, and the decision of the 
 county judge shall be final ; but no portion of such account shall 
 be so ordered to be paid which shall appear to such judge to 
 have arisen from the wilful neglect or misconduct of the claim- 
 ant. The account with the oath of the party claiming the same 
 shall be prima facie evidence of the correctness thereof. The 
 county judge may adjourn the hearing from time to time, as 
 justice shall seem to i-equire." 
 
 Section 8. ''It shall be the duty of the trustees of any school 
 district, within thirty (Inys after service of a copy of such order 
 upon them, or ii|)i)U tlie district clerk, and notice thereof to 
 them, or any two of them, to cause the same to be entered at 
 length in the book of record of said district, and to raise the 
 amount thereby directed to be paid, by a tax upon the district, 
 to be by them assessed and levied in the same manner as a tax 
 voted by the district." 
 
 h. Who is entitled to protection of the statute. — The plaintiff 
 is not entitled to costs, where he recovers a judgment against a 
 school collector for trespass, in seizing and selling property with- 
 out. legal notice.^ The exemption applies to costs on appeal, as 
 well as costs in the trial court.^ It is not evidence of bad faith 
 for the defendant to accept the office of trustee, and levy a tax 
 as directed by law, after the county superintendent had at- 
 tempted to change the boundaries of adjoining districts, and the 
 plaintiff had stated that he intended to contest the legality of the 
 new organization. The defendant has as much right to his 
 opinion as the plaintiff has to his.^ 
 
 A supervisor who does not honor a draft dra■\^'Tl upon him by 
 
 ^Whitbeck v. Billings, 3 Thomp. & "Ex parte Bennett, 3 Denio, 175. 
 C. 764, 1 Hjui, 494; Clarke v. Tunni- ^Rawaon v. Van Riper, 1 Thomp. & 
 tlilf, 38 X. Y. 58. C. 370.
 
 ACTIONS AGAINST SCHOOL OFFICEKS, ETC. 169 
 
 a trustee de facto is liable for costs, and is not entitled to a cer- 
 tificate because payment to a de facto officer would have protected 
 him.* A tax collector who refuses to pay an order drawn on 
 him by the trustee to pay the wages of a teacher is not entitled 
 to a certificate under § 3244 of the Code of Civil Procedure, 
 because an appeal does not lie from that refusal to the state su- 
 perintendent.^ Where a school officer makes a levy, and a per- 
 son feels aggrieved, he should appeal to the superintendent of 
 public instruction; otherwise if he obtains a judgment and the 
 judge certifies that the defendant acted in good faith, the plain- 
 tiff will be denied costs.® 
 
 c. Certificate. — School officers are entitled to the protection 
 of this section, upon receiving a certificate that they acted in 
 good faith.'^ But one certificate is necessary, and that protects 
 the defendant through all stages of the litigation. There is no 
 provision for a certificate that the defendant acted in bad faith.* 
 A certificate that it did not appear that the defendant acted in 
 good faith does not exonerate the defendant from paying costs, 
 as that is not equivalent to a certificate that he acted in good 
 faith. ^ The question of costs is decided by the nature of the 
 action, and not by the certificate. The granting of a certificate 
 in an action not provided for by the Code of Civil Procedure will 
 not exempt the defendant from the payment of costs.^^ 
 
 d. Hoiv costs awarded against a school officer are collected. — 
 When costs are awarded against a school officer they are to be col- 
 lected by execution from him individually. A mandamus will 
 
 *Barrctt v. Bayer, 34 N. Y. S. R. Johnson v. Yeomans, 8 How. Pr. 
 
 325, 12 N. Y. Siipp. 170. 140; Traver v. IS'ichols, 7 Wend. 434; 
 
 '"Durfec v. McCall, 21 N. Y. Week. Fenno v. Dickinson, 4 Denio, 84; 
 
 Dig. 337. Ayers v. Western R. Corp. 49 N. Y. 
 
 ^Clarke v. Tunnicliff, 38 N. Y. 58, 660; Brock way v. Jewett, 16 Barb. 
 
 4 Abb. Pr. N. S. 451. 590. 
 
 'Clarke v. Tunnicliff, 38 N. Y. 58, ''Biidd v. Allen, 09 Hun, 535, 53 N. 
 
 4 Abb. Pr. K S. 451. Y. S. R. 290, 24 N. Y. Supp. 5. 
 
 ^Willey V. Shaver, 1 Thomp. & C. ^"Durfee v. McCall, 21 N. Y. Week. 
 
 324; Ex parte Bennett, 3 Denio, 175; Dig. 337.
 
 170 THE LAW OF COSTS IN NEW YORK. 
 
 not lie to compel liiiii to pav tlK> costs out of the money in his 
 hands belonging to the school district^^ 
 
 Where the trustees of a school district, without the authority 
 of the district, commence an action to recover a school tax, and 
 they are defeated with costs, the plaintiff can collect his costs 
 only from the individual property of the trustees. In such a 
 case the trustees have no claim against the school district for the 
 rejmyment of the costs which they have been compelled to pay, 
 until such claim has been audited and allowed as provided b}- 
 statute. -^^^ If new trustees are elected pending the action, and 
 they prosecute and take charge of the litigation, they are per- 
 sonally liable for the entire costs of the action, although they 
 have never been formally substituted as plaintiffs therein.^^^ 
 
 e. Costs aivarded to school officers. — Officers of a school dis- 
 trict are entitled to double costs when they succeed in their de- 
 fense in an action brought against them for an act done by them 
 by virtue of their office. ^^ 
 
 135. Costs in actions against a municipal corporation, a. In 
 general. — Under Code Civ. Proc. § 3245, costs cannot be award- 
 ed to the plaintiff in an action against a municipal corporation, 
 in which the complaint demands a judgment for a sum of money 
 only, unless the claim on which the action is founded was, before 
 the commencement of the action, presented to the board of sucli 
 corporation having the power to audit the same, or to its chief 
 fiscal officer, at least ten days before the commencement of said 
 action. 
 
 h. Wit at actions are within the statute. — This section does not 
 apjdy to actions ex delicto, — only to actions ex contractu}^ 
 
 ^^People ex rel. Wallace v. Abbott, '^'^^ Beck v. Kerr, 87 App. Div. 1, 
 
 107 N. Y. 225, 13 N. Y. Civ. Proc. 83 N. Y. Siipp. 1057. 
 
 Rep. 16.3. 27 N. Y. Week. Dig. 27G, '= Code Civ. Proc. § 3258; Reynolds 
 
 11 N. Y. S. R. 387, 13 N. E. 779. v. Moore, 9 Wend. 35, 24 Am. Dec. 
 
 iia/Vo/>ie ex rel. Wallace v. Ab- 116; Saratopa d W. R. Co. \. McCoy, 
 
 bolt, 107 N. Y. 225, 13 N. E. 779; 8 How. Pr. 526; Barber v. Crossett, 
 
 Bed- V. Kerr, 87 App. Div. 1, 83 N. 6 How. Pr. 45, Code Rep. N. S. 401. 
 
 V. Supp. 1057. ^'Gage v. HornellsviUe, 106 N. Y.
 
 ACTIONS AGAINST SCHOOL . OFF] CEKS^ ETC. 171 
 
 There were several cases at general terni which held otherwise, 
 but they have been overruled by the court of ap]3eals in the cases 
 last cited. ^* This section does not apply to claims to be re- 
 lieved from assessment/^ nor to costs on appeal.^ ^ A claim for 
 damages for property destroyed by a mob need not be presented 
 before suit, in order to entitle the plaintiff to costs.^^ 
 
 This section does not apply to actions brought in a justice'r, 
 court, because subdivision 13 of § 3347 says that § 3245 applies 
 only to those actions specified in subdivision 4 of § 3347, which 
 does not include actions brought in justice's court.-^^ 
 
 c. To whom the claim must he presented. — -By the amend- 
 ment of 1899 a provision was added that the claim should be 
 presented "to the board of such corporation having the power tf) 
 audit the same." Before that the claim must have been pre- 
 sented "to its chief fiscal officer." 
 
 Before that amendment it Avas held that a presentation to the 
 treasurer complied with the requirements of this section.^ ^ It 
 was held that a presentation to the common council of a city,^^ 
 especially where the charter so provides,^ ^ or to the trustees of 
 a village, was sufficients^ 
 
 667, 8 N. Y. S. R. 885, 27 N. Y. "McClure v. Niagara County, 3 
 
 Week. Di,^. 8, 12 N. E. 817; Hunt v. Abb. App. Dec. 83, 4 Abb. Pr. N. S. 
 
 Oswego, 107 N. Y. 629, 1 Silv. Ct. 202, 4 Trans. App. 275. 
 
 App. 520. 27 N. Y. Week. Dig. 237, "Marsh v. Lansinghurgh, 31 Hun, 
 
 11 N. Y. S. E. 762, 14 N. E. 97; Toy- 514. 
 
 lor V. Cohoes, 105 N. Y. 54, 26 N. Y. ^Hiaine v. Rochester, 85 N. Y. 525, 
 
 Week. Dig. 60, 6 N. Y. S. R. 461, 11 12 N. Y. Week. Dig. 419; Fisher v. 
 
 N. E. 282; Childs v. West Troy, 11 Cortland, 42 Hun, 173; Judson \. 
 
 N. Y. Week. Dig. 193; McClure v. Olean, 40 Hun, 158; Dressel v. 
 
 Niagara County, 3 Abb. App. Dec. Kingston, 32 Hun, 526; Hunt v. Os- 
 
 83, 4 Abb. Pr. N. S. 202, 4 Trans, wego, 45 Hun. 305. 
 
 App. 275; Hoioell v. Buffalo, 15 N. -"Williams v. Buffalo, 25 Hun, 301, 
 
 Y. 512; McGaffin v. Cohoes, 74 N. Y. 13 N. Y. Week. Dig. 142; Butler v. 
 
 387, 30 Am. Rep. 307. Rochester, 4 Hun, 321, 6 Thomp. & 
 
 '*Hart V. Brooldyn, 36 Barb. 226; C. 572. 
 
 Dressel v. Kingston, 32 Hun, 526; "^Grier v. Locl.port, 21 N. Y. Week. 
 
 Judson V. Olean. 40 Hun, 158. Dig. 444; Quinlan v. Utica, 11 Hun, 
 
 '''Re .letter, 78 N. Y. 601. 217, Affirmed in 74 N. Y. 603. 
 
 ^^ULiea Waterworks Co. v. Utica. "Gage v. Hornellsville. 41 Hun, 87. 
 
 31 Hun, 426. 2 N. Y. S. R. 345, Affirmed in 106
 
 172 THE LAW OF COSTS IN NEW YORK. 
 
 Since the amendment a presentation to either the treasurer 
 of a city or its common council, or to the treasurer of a village, 
 •>r its board of trustees, would be sufficients^ 
 
 A claim against the water commissioners of a village should 
 he presented to the treasurer of the village, and not to the treas- 
 urer of the water commissioners-^"* 
 
 A claim against a town is properly presented to the super- 
 visor.S"'' 
 
 d. How the claim must he presented. — The claim must be pre- 
 -iented by the claimant, or someone who claims authority to act 
 for him, and in such a form as will afford an opportunity and 
 sufficient information, so that, when presented to the proper 
 auditing officers, it may be audited and paid.^^ 
 
 e. Effect of the presentation of the claim. — If the claim is 
 l)roperly presented and rejected, and the plaintiff succeeds in 
 an action thereon, he is entitled to costs; but if the claim was 
 not presented, neither party is entitled to costs when the plain- 
 tiff succeeds.s'^ 
 
 The question as to whether the claim had been properly pre- 
 sented would not arise upon the trial, and no certificate of the 
 court is required,^^ but should be presented in the first instance 
 to the taxing officer. His decision can be reviewed only by a 
 motion for that purpose. It cannot be raised on an appeal from 
 the judgnient.^^ 
 
 A claim presented for $10,000 damages is properly presented, 
 although only $5,000 damages is asked in the action brought 
 upon the claim. ^° 
 
 N. Y. 667, 27 N. Y. Week. Dig. 8, 8 -\'^paulding v. Wavcrli/, 12 App. 
 
 X. Y. S. R. 885, 12 N. E. 817. Div. .504. 44 N. Y. Supp. 112. 
 
 ''Brewster v. Hornellsvillc, 35 App. -''Baine v. Fochester, 85 N. Y. 523. 
 
 Div. 626, 88 N. Y. S. R. 915, 54 N. ^Baine v. Rochester, 85 N. Y. 523. 
 
 V. Supp. 915. -"^Stanton v. Taylor, 64 Hun, 633, 
 
 "-*King V. Randolph, 28 App. Div. 45 N. Y. S. R. 906, 19 N. Y. Supp. 
 
 25. 50 N. Y. Supp. 902. Contra, 43. 
 
 HaUinan v. Ft. Edward, 26 Misc. ^MiuicJc v. Tro;/, 19 Hun, 253, Af- 
 
 422. 57 N. Y. Supp. 162. firmed in 83 N. Y. 514. 
 
 -'•F!ta)itoii V. Tajflor. 64 Hun, 633, 
 45 X. Y. S. 11. imo. 19 X. Y. Supp. 
 
 r.i.
 
 CHAPTER XIII. 
 
 LIATRIMONIAL ACTIONS. 
 
 136. Action for absolute divorce. 
 a. Costs. 
 6. Counsel fees allowed. 
 
 (1) In general. 
 
 (2) Poverty of husband. 
 
 c. Counsel fees refused. 
 
 d. Keviewed by court of appeals. 
 
 e. Counsel fees upon appeal. 
 
 f. Rights of the attorney upon a settlement. 
 
 g. How the payment of counsel fees may be enforced. 
 lo7. Action for separation. 
 
 a. In general. 
 
 6. Counsel fees denied. 
 
 c. Counsel fees upon appeal, 
 
 d. Rights of the attorney upon a settlement. 
 
 e. How the payment of counsel fees may be enforced. 
 
 138. Action to annul a marriage. 
 
 a. Counsel fees allowed. 
 6. Counsel fees denied. 
 
 139. Costs in other actions between husband and wife. 
 
 136. Action for absolute divorce. a. Costs. — Costs in these 
 actions are in the discretion of the court, under § 3230 of the 
 Code of Civil Procedure. When allowed they are only the regu- 
 lar taxable costs. Costs are not allowed against a wife when she 
 is a defendant, unless it appears that she has property.^ By the 
 consent of the husband or his attorney the question of allowance 
 and counsel fees may be reserved till the trial of the action. 
 Without that consent the court can, upon the entry of a final 
 judgment in favor of the wife, allow only taxable costs.^ There 
 
 We Hose V. De Rose, Hopk. Ch. Div. 224, .58 N. Y. Supp. 532; Bent- 
 
 100. leij V. Bentley, 3 Month. L. Bull. 76; 
 
 '^Lonsdale v. Lonsdale, 41 App. Atherton v. Athcrton, 82 Hun, 179. 
 
 173
 
 174 THE LAW OF COSTS IX XEW YOJJK. 
 
 is no antliority for making an award of an additional allowance.* 
 Where ii referee hears the ease, he has the same power over the 
 allowance (if eosts as in any other action, and the special term 
 has ni> |)()\vei' to chaniic his decision on that point. Where a 
 judgmeiii contains a lin<lini:' as to costs not warranted hv the 
 referee's report, the remedy is by a motion to strike out the part 
 ihat is objectionable.'* 
 
 Costs will be denied the successful party wliere there is reason 
 to believe that iie, as well as the defeated party, obtained false 
 testimony.^ The report of a referee is not a special verdict, and 
 costs, as such, cannot be taxed on motion for judgment^ A co- 
 respondent who appears and ser\'es an answer and defends an 
 action is properly chargeable with costs, if his defense fails. He 
 is not called a defendant by the amendment to § 1757 of the 
 Code of Civil Procedure ( Laws of 1899, chap. 061). He is not 
 obliged to defend, and cannot be compelled to do so, but if he 
 elects to do so, he should be treated as a party defendant from 
 the time of his appearance. Costs are in the discretion of the 
 court, l)ut § 1757 of the Code of Civil Procedure modifies this, 
 in that, if the corespondent is successful, he is entitled, as of 
 right, to costs against the person naming him as corespondent. '^ 
 
 h. Counsel fees allowed. (1) In general. — Courts have a 
 right to grant counsel fees in matrimonial actions as incidental 
 to the power vested in the court to try such actions, and no 
 statutory authority is necessary.^ Counsel fees are never al- 
 
 G4 N. Y. S. R. 708, 31 Supp. 977; •■Sparrowhawk v. Sparroichawk, 11 
 
 Beadleston v. Beadleston, 103 N. Y. Hun, 528. 
 
 403, 8 N. E. 735; McCarthy v. Mc- 'Billings v. BiUirifjs, 73 App. Div- 
 
 Carthy, 137 N. Y. 500, 33 N. E. 550; 69, 76 X. Y. Supp. G28. 
 
 De Meli v. De Mcli, 5 N. Y. Civ. Proc. "Higgins v. Hliarp, 164 N. Y. 4, 58 
 
 Rep. 300. 67 How. Pr. 20. X. E. 9; North v. Xorih, 1 Barb. Ch. 
 
 'Beadleslo)} v. Beadleston, 103 X. 241; Griffin v. (Iriffin, 47 X. Y. 134; 
 
 Y. 402, 8 X. E. 735; Pountncy v. Brinkley v. Brinkley, 50 X. Y. 184, 
 
 Pountney, 32 X. Y. S. R. 334, 10 X. 10 Am. Rop. 400: O'Dea v. O'Dea, 31 
 
 Y. Supp. 192. Hun, 441, Atiirnied in 101 N. Y. 23, 
 
 *Sabatcr v. Sabater, 7 App. Div. 4 X. E. 110. 
 70, 39 X. Y. Supp. 958. 
 
 'Beadleston v. Beadleston, 20 X. 
 Y. S. R. 21. 2 N. Y. Supp. 809.
 
 MATRIMONIAL ACTIONS. 175 
 
 lowed for past services, but for services to be rendered.^ Coun- 
 sel fees will be denied when the husband discontinues his action 
 against his wife for divorce,^ *^ or the wife abandons her defense 
 to her husband's action.^ ^ Tt^'liej will also be denied where, be- 
 tween the time of the service of the notice of motion and the 
 hearing thereon, the case has been tried and judgment entered. ^^ 
 Counsel fees wall be allowed the Mdfe where she denies under 
 oath the charges of adultery,^'^ or sets up an affirmative de- 
 fense, such as recrimination.^^ But the countercharges must be 
 alleged specifically, and not in general terms. -^'^ Or if she ad- 
 mits tlie charge and sets up the affirmative defense of forgive- 
 ness.-'® She will also be allowed counsel fees when she is the 
 plaintiff^, where, if the allegations of her complaint are true, she 
 is entitled to a divorce.^'^ 
 
 (2) Poverty of liashand. — The poverty of the husband is no 
 answer to such an application, wlien he is the plaintiff, although 
 that may be taken into consideration in fixing the amount. He 
 must conform to the rule or abandon the suit.^^ But that reason 
 
 ^McCarthy v. McCarthy, 137 N. Y. N. Y. Siipp. 800; Bucld v. Buclci, 70 
 500, 33 K E. 550, 51 N. Y. S. R. Hiin, 598. 54 N. Y. S. R. 287, 24 N. 
 276; Winkemeier v. Winkemeier, 11 Y. Supp. 374. 
 
 App. Div. 201, 42 N. Y. Supp. 583; ^'Htrortfj v. Strong, 1 Abb. Fr. N. 
 Beadleston v. Beadleston, 103 N. Y. S. 358, 3 Robt. 675; Shaw v. Shaic, 
 402, 25 N. Y. Week. Digr. 8, 3 N. Y. 5 Misc. 497. 26 N. Y. Supp. 715; 
 S. R. 634, 8 ISr. E. 735; Poillon v. Miller v. Miller, 43 How. Pr. 125; 
 PoilloH, 75 App. Div. 536, 78 X. Y. Starkweather v. Starkweather, 29 
 Supp. 323; Emerson v. Emerson, 26 Hun. 488. 
 
 X. Y. Supp. 292. The contrary was ^^Clark v. Clark, 7 Robt. 284. 
 lield before the adoption of the Code ^^Starkweather v. Starkweather, 29 
 of Civil Procedure. Hun, 488 : Frickel v. Frickel. 4 ]\risc. 
 
 '"Moore v. Moore, 51 N. Y. S. R. 382, 24 N. Y. Siipp. 483. 
 911, 22 K Y. Supp. 451, Appeal Dis- "Bucki v. Bucki, 70 Hun, 598. 54 
 missed in 138 N. Y. 679, 53 N. Y. N. Y. S. R. 287, 24 X. Y. Supp. 374 : 
 S. R. 301. 34 N. E. 373. Douglas v. Douglas, 13 Abb. Pr. X. S. 
 
 ''aoldschniidt v. Goldschmidt, 1 291; Bertschi/ v. Berischy, 14 'N. Y. 
 ^fonth. L. Bull. 74. Week. Dig. Ill; Br owtie v. Browne,^ 
 
 '-Winkemeier v. Winkemeier, 11 X. Y. Civ. Proc. Rep. 189; Brennan 
 App. Div. 199, 42 X. Y. Supp. 586. v. Brennan. 19 X. Y. Week. Di<j. 342. 
 
 '^Frickel v. Frickel, 4 Misc. 382, '^Frickel v. Frickel, 4 Misc. 382, 
 24 X. Y. Supp. 483 ; Strong v. 24 X. Y. Supp. 483 : Hallock v. Hal- 
 S'j'ronsr, 1 Abb. Pr. X. S. 358, 3 Robt. lock, 4 How. Pr. 160; Piircell v. 
 675: Israel v. Israel, 28 :Misc. 57. 59 PureelL 3 Edw. Cli. 194; Cohen v.
 
 176 THE LAW OF COSTS IN NEW YORK. 
 
 does not apply where the wife is the plaintiff and is able to con- 
 duct the action.^ ^ Where the husband has paid a sum in gross 
 in full for services of the attorney in an action, upon a disagree- 
 ment by tlie jury the attorney may move for additional counsel 
 fees, because the possibility of a disagreement was not within 
 the thought of the parties. ^"^ Before counsel fees will be allowed 
 in an action brought by the wife, she must present proof to the 
 court sliomng a probable, and certainly a possible, prospect of 
 establishing her marriage to the defendant.^^ 
 
 c. Counsel fees refused. — Counsel fees will be refused where 
 it appears clearly beyond reasonable doubt, that the success of 
 the husband is inevitable f^ or where the "wife does not deny 
 under oath the charge of adultery f^ or if she denies the adultery 
 she does not deny acts that are incompatible with her inno- 
 cence f^ or where she admits the acts charged, but seeks to justify 
 them under a divorce not recognized by the courts of this state ■?^' 
 or where the wife is the plaintiff and all her allegations of her 
 husband's adultery are upon infonnation and belief, and no 
 proofs of the source of her information or the grounds of her 
 belief are presented to the court f^ or where the \x\ie has prop- 
 erty of her own^^ and has induced the act complained of,^^ or 
 does not explain suspicious circumstances.^^ 
 
 They should never be granted to punish the husband because 
 
 Cohen, 11 Misc. 704. 1 N. Y. Anno. 4 Misc. 382, 24 X. Y. Supp. 483. 
 
 Cas. 226, 06 "NT. Y. S. R. 336, 32 N. '*Pe11ee v. Petlee, 45 N. Y. S. R. 
 
 Y. Supp. 1082. 549, 19 X. Y. Supp. 311. 
 
 ^"Hoffman v. Hoffman, 7 Robt. 474. '^Bailie v. Bailie. 30 App. Div. 461. 
 
 ^Wan ^Vo7■mer v. Van Wormer, 57 52 N. Y. Supp. 228. 
 
 Hun, 496, 11 X. Y. Supp. 247. '"non-ninfi v. Downing, 23 App 
 
 ''Collins V. Collina, 71 N. Y. 269, Div. 559, 48 X. Y. Supp. 727; Monk 
 
 9 N. Y. Week. Dip. 131, 573. v. Monk, 7 Robt. 153; Ofifjood v. Os 
 
 "TJhlman v. Uhlman, 19 Jones & good, 2 Pai_c:o, 021; Moriarty v 
 
 S. 301 ; Deslrouqh v. Desbrottgh, 29 Moriarfy, 26 Jones & S. 279, 10 X 
 
 Hun, 592; Koch v. Kock, 42 Barb. Y. Supp. 228. 
 
 515; Cohen v. Cohen, 11 Misc. 704, "Chase v. Chase, 29 Hun. 527. 
 
 1 N. Y. Anno. Cas. 226, 06 X. Y. S. "^Oher v. Oher, 5 Silv. Sup. Ct. 37, 
 
 R. 330. 32 X. Y. Supp. 1082. 7 X. Y. Supp. 843. 
 
 ^Miller V. Miller. 27 INIisc. 758, 59 "^Morrell v. Morrell, 2 Barb. 480. 
 N. Y. Supp. 473; Frickel v. Frickel,
 
 MATKIMONIAL ACTIONS. 177 
 
 he does not consent to a reference,^'^ The court has a right to 
 require the husband to pay a sura to be used for a specific pur- 
 pose, such as to pay referee's fees.^^ 
 
 d. Reviewed hy court of aj) peals. — The allowance of counsel 
 fees is discretionary with the court of original jurisdiction, and 
 the court of appeals will not review such an order unless the 
 iimount is so excessive as to show abuse of judicial discretion.^^ 
 
 e. Counsel fees upon appeal. — Where a wife has obtained a 
 judgment in her favor, and the husband appeals, the court has 
 still power to grant her alimony and counsel fees in defending 
 the judgment.^^ If it should appear upon such application that, 
 in previously carrying on her action, she had incurred expenses 
 the payment of which was essential in order that she might 
 further maintain her rights under the judginent, the past ex- 
 pense could also be included in the allowance to her.*^* But the 
 court may refuse to include the past expense of attorneys, and 
 assign other attorneys to defend her.^^ An allowance will be 
 made for counsel fees upon an appeal by the wife from a judg- 
 ment against her, where it appears that the appeal is taken in 
 good faith and upon reasonable cause.^*' 
 
 The court is reluctant to grant counsel fees upon an appeal 
 by a wife from a judgment in her favor, and upon such an ap- 
 plication she must present a meritorious reason for such an ap- 
 peal.^' A Avife cannot move for alimony and counsel fees upon 
 a reversal of a judgment against her, until the order of reversal 
 is entered.^^ 
 
 ^"Patterson v. Patterson, 4 App. "'^McCarthy v. McCarthy, 137 IST. Y. 
 Div. 140, 74 N. Y. S. R. 502, 38 N. 500, 51 N. Y. S. R. 276, 33 N. E. 550. 
 Y Siujp 637 ^^Kmerson v. Emerson, 26 N. Y. 
 
 ^'Schloemer v. ScMoemer. 49 N. Y. ^"PP- 2*^2- 
 «2 ^^Halstead v. Halstead. 11 Misc. 
 
 -De Llamosas v. De LJanwsas, 62 ^92, 1 N. Y. Anno. Cas. 230, 66 N. 
 
 ^^ Y. S. R. 335, 32 N. Y. Supp. lOSO; 
 
 ^ ■ " . ' ,, „ . , .v.r ,r Oansz V. Gansz, 59 N. Y. Supp. 955. 
 
 -McBrrde v. McBr^de, 119 N. Y. sr^,,-,;,,,,,,-,/ ,. winkemEr, 11 
 
 519, 30 N. Y. S. R. 78. 23 N. E. 1065; ^pp. Div. 201, 42 N. Y. Supp. 583. 
 
 Donnelly v. Donnelly, 63 How. Pr. ^Halstead v. Halstead, 21 App. 
 
 481. Div. 589, 47 N. Y. Supp. 814. 
 COSTS 12.
 
 178 THE LAW OF COSTS IN NEW YORK. 
 
 /. Rights of the (lUonipy upon a settlmicnt. — (See § 137, subd. 
 (/;, infra.) There seeuis to be uo reason why a husband is not 
 liable for the services of his wife's attorney in an action for a 
 divorce, where the acti(»n has been settled, the same as in an 
 action for sei3ar;iii(.n. The cases that hold otherwise are doubt- 
 less overruled. •^•' 
 
 If a setth^nient takes place after an allowance of counsel fees 
 to the attorney for the wife, a proper reduction will be made, as 
 the original order contemplated services which Avill not be ren- 
 dered."*" If the settlement is made before the motion for counsel 
 fees is heard, an allowance should be made, and if the order 
 grantino- the allowance is set aside the attorney can appeal there- 
 from, though he is not a party to the action."*^ 
 
 g. Iloir the payment of roimscl fees mfii/ he enforced. — (See 
 § 137, subd. e, infra.) The costs awarded in the final judgment 
 cannot be collected by proceedings to punish for contempt. Jac- 
 ([vin V. .Jaccjuin. 36 ITun, 378, is not in conflict with ParTi- v. 
 Pari-, SO jST. Y. 1.56, as in the latter case the costs for which the 
 attacliment was issued were costs of the proceeding for attach- 
 ment.'*" Section 1773 of the Code of Civil Procedure requires 
 that it must appear presumptively to the satisfaction of the court 
 that payment cannot be enforced by means of resorting to any 
 secunty given, or by sequestration proceedings, or by issuing 
 execution.'*"" Counsel fees awarded in a final judgment upon de- 
 fault may not be enforced by contempt proceedings.^'* But coun- 
 sel fees ordered to be paid pendente lite may be enforced by con- 
 tempt proceedings.^^ Although there is a provision that the 
 
 ^Phillips V. Simmons. 20 How. Pr. fair v. forlrfnir. 23 Abb. X. C. 219, 
 
 342. 11 Abb. Pr. 287. 7 X. Y. Supp. 170. 
 
 '"Rudd V. Rtidd, 28 X. Y. ^Yeok. "Co^krfair v. Cockefair. 23 Abb. 
 
 nijr. 220. 13 X. Y. S. R. 004. X. C. 210. 7 X. Y. Supp. 170. 
 
 "Lovdov V. Loudon, 17 N. Y. "MiUcr v. Miller, 7 Hun, 208. 
 
 Week. Di^r- 477. Contra, Pritchord v. Priichard, 4 
 
 *-Lansing v. Lansinci, 4 Lans. 377; Abb. X. C. 298; HoKe v. Hoivc, 5 X. 
 
 r.ranth \. Brarifh, 20 X. Y. Civ. Y. ^Yeok. Dig. 460. 
 
 Proc. Rep. 33. 36 X. Y. S. R.. 628, '\Mercer v. Mercer, 73 Hun. 102. 
 
 13 X. Y. Supp. 360. Contra. Cocke- 56 X. Y. S. R. 117, 25 X. Y. Supp.
 
 MATRIMONIAL ACTIONS. 179 
 
 amount be incliuled in the judgment. A provision for the col- 
 lection of counsel fees for past services should not be included 
 in the judgment.^'^ 
 
 When the action temiinates, either by settlement or death, all 
 intermediate orders fall. After such termination of the action 
 counsel fees cannot be collected bv the attorney against the hus- 
 band by an order'*" nor by action. ^^ 
 
 The order committing the husband for contempt must contain 
 an adjudication that he has refused to pay the coimsel fees or- 
 dered by the court, and that such refusal was calculated to, and 
 (lid actually, defeat, impair, or prejudice the rights of the party 
 in whose favor they had been ordered. It must also appear that 
 payment cannot be enforced by execution, sequestration, or re- 
 sorting to any security.^^ The pleading of the husband may be 
 stricken out on his failure to pay counsel fees.^*^ Where the wife 
 fails in her proceeding to enforce the collection of alimony and 
 counsel fees, because the order does not contain recitals, costs 
 should not be imposed on her.'^^ 
 
 137. Action for separation. a. In general. — Costs may be 
 awarded in separation cases in the discretion of the court upon 
 final judgment.'^" The same rule obtains in all matrimonial 
 actions, that the court can only allow taxable costs in the 
 
 867; Flor v. Flor, 73 App. Div. 262, ^^Whiiney v. Whitnetj, 26 Jones & 
 
 76 N. Y. Supp. 813. S. 335, 19 X. Y. Civ. Proc. Rep. 265, 
 
 "J/ercer v. Mcrcrr. 73 Hun. 192, 33 X. Y. S. R. 704, 11 N. Y. Supp. 
 
 56 N. Y. S. R. 117, 25 X. Y. Supp. 582; Mahon v. Mahon, 18 Jones & S. 
 
 867; Percival v. Percival, 28 X. Y. 92; Sandford v. Sandford, 40 Hun. 
 
 Week. Dig. 155, 14 X. Y. S. R. 255; 540, 44 Hmi, 563. 
 
 Williams v. Williams, 17 X. Y. Civ. ^Clark v. Clark, 13 Daly, 497 ; 
 
 Proc. Rep. 297, 25 X. Y. S. R. 186, Brishane v. Brisbane, 67 How. Pr. 
 
 6 X. Y. Supp. 645: Straus v. Straus, 184, 5 X. Y. Civ. Proc. Rep. 352, Af- 
 
 67 Hun. 491, 50 X. Y. S. R. 845, 22 firmed in 34 Hun, 339; Walker v. 
 
 X. Y. Supp. 567. Walker, 82 X. Y. 260. 
 
 *'Uopkius V. Hopkins, 21 X^. Y. "'Mendel v. Mendel, 25 X. Y. Week. 
 
 Week. Di!?. 174. Dig. 314, 4 X. Y. S. R. 556. 
 
 ^Millad]/ V. Stein, 19 INIisc. 652, 44 '-Jacquin v. Jacqiiin, 36 Hun, 378. 
 
 X. Y. Supp. 408. Contra, Kellogg 2 How. Pr. X. S. 20:!, 7 X. Y. Civ. 
 
 v. Stoddard, 40 Misc. 92, 81 X. Y. Proc. Rep. 327. 
 Supp. 271.
 
 180 THE LAW OF COSTS IN NEW YORK. 
 
 final judgment, and cannot grant counsel fees therein. They 
 must bo granted pending the action for services to be rendered, 
 and upon motion,^^ Costs are not usually allowed igainst the 
 wife when she fails, but they can be allowed.^* 
 
 Where the wife is plaintiff and presents a prima facie case, 
 counsel fees will be allowed.^^ 
 
 b. Counsel fees denied. — Counsel fees will be denied where 
 it appears that the wife has sufficient property to maintain her 
 action f^ or that she does not make out a prima facie case f or 
 that, upon a disagreement of a jury, additional counsel fees are 
 demanded, and the husband is poor f^ or where the wife has had 
 a judgment against her, from which she has not appealed, but 
 has brought a new action before another court to escape the con- 
 demnation of her acts pronounced by the first court ;^^ or where 
 the wife refuses to live with her husband in suitable apart- 
 ments ;^'' or where the wife is plaintiff and the defendant is a 
 bigamist, and therefore she was not the wife of the defendant 
 and did not need to bring this action ;*^^ or where the cause of 
 action is stale.^^ 
 
 In some cases counsel fees have been refused and the wife sent 
 to police court for alimony.®^ 
 
 c. Counsel fees upon appeal. — Counsel fees will be allowed 
 when the husband appeals from a judgment against him."* 
 
 "Donnerstag v. Donnerstag. 4 069. 28 How. Pr. 218; Bertschy v. 
 
 Month. L. Bull. 53. Berlschy, 14 N. Y. Week. T>\^. 111. 
 
 ''^Williams v. Williams, 130 N. Y. ^Kittle v. Kittle, 8 Daly, 72. 
 
 193, 14 L. R. A. 220, 41 N. Y. S. R. '"'Deisler v. Deisler, 65 App. Div. 
 
 280, 27 Am. St. Rep. 517, 29 N. E. 208, 72 N. Y. Supp. 560. 
 
 98; Straus v. Straus, 67 Hun, 491. ""Kirsch v. Kirsch, 45 N. Y. S. R. 
 
 50 N. Y. S. R. 845. 22 N. Y. Supp. 287, 18 N. Y. Supp. 447. 
 
 567; Wiidon v. Winton, 31 Hun, 290. "'Blinls v. Blinks, 5 Misc. 193. 25 
 
 ^^DoufiUis V. Douglas, 5 Hun, 140, N. Y. Supp. 768. 
 
 13 Abb. Pr. N. S. 291; Miers v. ^CmHis v. Cw/<is, 29 Misc. 257, 61 
 
 Miers, 35 Misc. 476, 71 N. Y. Supp. N. Y. Supp. 59. 
 
 1058; Broune v. Broicne, 9 N. Y. ^Patton v. Fatton, 13 Misc. 726, 
 
 Civ. Proc. Rep. 180; Bertschy v. 69 N. Y. S. R. 567. 35 N. Y. Supp. 
 
 Bertschy, 14 N. Y. Week. Dig. 111. 250. 
 
 '-^Maxicell v. Maxwell, 28 Hun, 566. "Haddock v. Haddock, 75 App. 
 
 ■-'Solomon V. Solomon, 3 Robt. Div. 565, 78 N. Y. Supp. 304; Anony-
 
 MATRIMONIAL ACTIOJfS. 181 
 
 It is against public policy for a Avife to agree with her attor- 
 ney to compensate him by giving him a portion of her alimony. 
 An order which authorizes a compliance with such an agreement 
 should be set aside.^^ 
 
 d. Rights of the attorney upon a settlement. — (See § 136, subd. 
 /.) The courts will enforce an agreement that the husband made 
 upon the settlement of the action, to pay the attorney for the 
 wife.^® The husband is liable for the fees of the wife's attorney 
 where she voluntarily returns to her husband, although no coun- 
 sel fee had been awarded in the action f* and this is so although 
 the husband was the plaintiff in the action. ^^ The attorney must 
 proceed in his o^vn name, whether he proceeds by motion or by 
 action. ^^ 
 
 e. How the pat/jnent of counsel fees may he enforced. — (See 
 § 13(), subd. g, siipra.) The payment of costs allowed in the final 
 judgment cannot be enforced by contempt proceedings, but by 
 execution, under § 1240 of the Code of Civil Procedure."^^ If 
 the order includes alimony-, payment of the entire sum may be 
 enforced by contempt proceedings, though such an order for the 
 payment of costs is unauthorized.^-^ 
 
 The court will not listen to a husband upon an application 
 to reduce the amount of alimony and counsel fees, and to purge 
 him of contempt in not paying the same, as long as he remains 
 outside of the jurisdiction of the court and does not submit him- 
 self to the court. '^^ Costs aAvarded to a wife belong to her, but 
 
 movs, 15 Abb. Pr. X. S. 307: Mc- ''Hays v. Ledman, 28 Misc. 575, 
 
 Bride v. McBride, 55 Hun. 401, 8 59 N. Y. Supp. 687. 
 
 N. Y. Supp. 448. Contra, Win ton v. ^^Chase v. Chase, 65 How. Pr. 306, 
 
 Winton, 31 Hun, 290. 29 Hua, 527. 
 
 ^Van Vleck v. Van Vleck, 21 App. ^"Jacquin v. Jacquin, 36 Hun, 378.- 
 
 Div. 274, 47 N. Y. Supp. 470. 2 How. Pr. N. S. 206, 7 N. Y. Civ. 
 
 ''Smith V. Smith, 35 Hun, 378, 15 Proc. Rep. 327. 
 
 N. Y. S. R. 804; Tan Gieson v. T'on '^People ex rel. Woolf v. Jacobs, 5 
 
 Gieson, 26 App. Div. 347, 49 N. Y. Hun, 428, 433, Affirmed in 66 X. Y. 
 
 Sunp. 781. 8: Lansing v. Lansing, 4 Lans. 377. 
 
 '^Xaumer v. Gray, 41 App. Div. ''^Sibley v. Sibley, 66 App. Div. 552, 
 
 361, 58 N. Y. Supp. 476. 73 X. Y. Supp. 244.
 
 182 THE LAW (M' COSTS IX XEW YOIIK. 
 
 her attorney lias a lien flicrcoii. wliidi lie may enforce aftfM- her 
 dentil."^ 
 
 138. Action to annul a marriage, a. Counsel fees allowed. 
 — ('(ists in these actions are in the discretion of the court. Un- 
 (\vr proper circnnistaiicos, where the hnsljand is the phiintiff, 
 alimony and counsel fees may be allowed to the wife in an action 
 to have his marriage with her declared void on the ground that 
 she had a former hushand living at the time of the marriage;^* 
 but they Avill be denied when the fact of the former marriage 
 is admitted."^ Coimsel fees will also be allowed in an action to 
 annul a marriage that was induced by fraud and duress,^" or 
 where the marriage was induced by fraud only. '''^ 
 
 h. Counsel fees denied. — But counsel fees and alimony will 
 be refused in an action brought by a wife to have a marriage de- 
 clared void."^ This has been held in an action to annul a mar- 
 riage on account of the impotency of the husband ;'''^ also in an 
 action to have a marriage annulled on the ground that the wife 
 was under the age of legal consent when it was contracted.*'* It 
 has been held that the court can grant alimony and counsel fees 
 in such actions brought by the wife.^^ But this case must be 
 
 ^^Lachenmeper v. Lachenmeyer, 65 '''Meo v. Meo, 22 Abb. N. C. 58, 15 
 
 How. Pr. 42.3. N. Y. Civ. Proc. Rep. 308, 18 N. Y. 
 
 ".YoriTi V. A^or/7(, 1 Barb. Ch. 241 ; S. R. 270, 2 N. Y. Supp. 5G9. 
 
 O'Dca V. O'Dea, 31 Hun, 441, 101 N. 'Usaacsolm v. Isaacsohn, 3 Month. 
 
 Y. 23, 4 N. E. 110; Hopper v. Hop- L. Bull. 73; Meo v. Meo, 22 Abb. N. 
 
 per, 92 Hun, 415, 36 N. Y. Supp. C. 58, 15 N. Y. Civ. Proc. Rep. 308, 
 
 610; Grif/in v. Griffin, 47 N. Y. 134; 18 N. Y. S. R. 270, 2 N. Y. Supp. 
 
 Sinn V. Sinn, 3 Misc. 598, 52 N. Y. 569; Herron v. Herron, 28 Misc. 323, 
 
 S. R. 855, 23 N. Y. Supp. 339; Wab- 59 N. Y. Supp. 861. 
 
 Icrson V. Wnhhcrson, 27 ^Misc. 125, '"'Bloodf/ood v. Bloodgood, 59 How. 
 
 57 N. Y. Supp. 405; Applcfou v. Pr. 42; Bartleti v. Burtlett, Clarke 
 
 TToruer, 51 Barb. 270; Hif/gins v. Cli. 460; A'or^/j v. A"or<7i, 1 Barb. Ch. 
 
 Sharp, 164 N. Y. 4, 8 N. Y. Anno. 243. Contra, Allen v. Allen, 59 How. 
 
 Cas. 139, 58 N. E. 9; Brinkleij v. Pr. 27, 8 Abb. N. C. 175. 
 
 Brinkley, 50 N. Y. 184, 10 Am. Rep. ^Herron v. Herron, 28 Misc. 323, 
 
 460. 59 N. Y. Supp. 861. 
 
 ''^Appleton V. ^Varner, 51 Barb. ^'Allen v. 'Mien, 8 Abb. N. C. 175, 
 
 270. 59 How. Pr. 27. 
 
 ''"Lee v. Lee, 4 X. Y. Civ. Proc. 
 Rop. 321. 66 How. Pr. 207.
 
 JMATIIIMOKIAI. ACTIONS. 183 
 
 deemed overruled by tlie later cases. Counsel fees have been 
 refused when the action was brought to annul a marriage because 
 the wife had another husband living at the time of the second 
 marriage, Avhich fact was kno^m at. the time to both.parties.^- 
 
 Tlie court cannot compel a mother, who has brought an action 
 under § 1744 of the Code of Civil Procedure to procure an an- 
 nulment of a marriage contracted bv her son when under the age 
 (if legal consent, to pay alimony and counsel fees to the defend- 
 ant.^'^ Although tlie court has no jurisdiction upon an applica- 
 tion by a third party to set aside a divorce, as obtained by fraud, 
 it can impose costs of a motion or of a special proceeding upon 
 -uch third person; but it has no authority to impose a lump 
 sum.^^ 
 
 139. Costs in other actions between husband and wife. — The 
 court has jjower to grant counsel fees in an action brought by 
 the wife against the husband to compel him to sup])ort her in a 
 suitable manner.*^'' AVhere a wife sues her husband for assault 
 and battery, and is defeated on the ground that she cannot main- 
 tain the action because of the unity of the parties, the same legal 
 unity will prevent costs being taxed against her.''*^ 
 
 ^-Hopper V. Hopper, 92 Hun, 415, ^Utamsden v. Ramsden, 28 Hun, 
 
 71 N. Y. S. R. 664, 36 N. Y. Supp. 285, 2 N. Y. Civ. Proc. Rep. (Bro^vne) 
 
 610; Kinzey v. Kinzeij, 7 Daly, 460. 416, 2 N. Y. Civ. Proc. Rep. (Mc- 
 
 ^^Stivers v. IVise, 18 App. Div. Carty) 408, 15 N. Y. Wook. Dit;-. 481. 
 
 316, 46 N. Y. Supp. 9. ""Whhe v. Ahhc, 22 App. Div. 483, 
 
 ^'i^iiiimons v. Simmons, 32 Hun, 48 N. Y. Supp. 25. 
 551.
 
 CHAPTER XIV. 
 
 COSTS AND ALLOWANCES IN CRIMINAL MATTERS. IN ACTIONS 
 FOR PENALTIES. AND IN PROCEEDINGS UNDER THE LUiUOR 
 TAX LAW. 
 
 140. Allowance upon the trial of an indictment, where the offense is pun- 
 
 ishable with death. 
 
 141. Personal and incidental expenses of counsel in capital cases. 
 
 142. Allowance for appeal in capital cases. 
 
 143. Allowance to counsel appointed to aid the district attorney. 
 
 144. Liability of complainant or of jirisoner in criminal cases for the cost>i 
 
 of the proceedings. 
 
 145. Costs in actions for violation of the game law. 
 
 146. Action for other penalties. 
 
 147. Proceedings under the liquor tax law, 
 
 140. Allowance upon the trial of an indictment, where the 
 offense is punishable with death. — It has been the custom of 
 our cotirts from time immemorial, when a defendant was w^ith- 
 out counsel and without means with which to ])rocure counsel, to 
 assign some member of tlie bar to defend him. ("ntil the enact- 
 ment of tlie Code of Criminal Procedure there was no power in 
 tlie court to order payment for such services.^ In 1881, § 308 
 of the Code of Criminal Proc(>dure was enacted, which simply 
 provided for the assignment of counsel. This Avas amended in 
 1893 bv chapter 521, which provided that 'Svlien services are 
 renderc^d by counsel in ])ursuance of such assignment in a case 
 where the offense charged in the indictnienr is |)unisha!)lo by 
 death, tlie court in which the defendant is tried may, in its 
 discretion, and up(m satisfactory proof that such defendant is 
 wholly destitute of means, award to such counsel reasonable com- 
 
 'I'cnplr rx rel. Broini v. Onondafja Xiagara Count if, 78 N. Y. 622; Peo- 
 ''ouiiti/. 3 How. Pr. N. S. 1, 4 N. Y. pie ex rel. TIadley v. Albany County, 
 Crim. Rep. 102. Affirmed in 102 N. 28 How. Pr. 22. 
 Y. 691 : P'ople rx rel. Rnn.som V. 
 
 184
 
 COSTS AiSTD ALLOWANCES IN CKIMINAL ACTIONS^ ETC. 185 
 
 pensation for his services, which shall be a charge upon the 
 county in which the indictment in the action is found, to be paid 
 out of the proper fund upon the certificate of the judge or justice 
 presiding at the trial." 
 
 This section was further amended by chapter 427 of the Laws 
 of 1897, and the section has remained unchanged since that date. 
 
 The amendment of 1897 for the first time introduced the lim- 
 itation of $500 in addition to the personal and incidental ex- 
 penses of the attorney. Xo allowance can be made to counsel as- 
 signed after arraignment.^ The court will assign counsel free 
 from any promptings or suggestion whatsoever, either by the de- 
 fendant or by counsel desiring such assignment.^ The courts 
 have construed this limitation of amount to mean that where 
 more than one counsel is assigned the court cannot grant an al- 
 lowance of more than $500, and may apportion that sum between 
 counsel."' 
 
 Where the court makes an allowance in excess of that pro- 
 \ided for by this section, such order is void, and the proper of- 
 ficers should refuse to pay it ; but no appeal lies from such or- 
 der. ** After the first amendment to this section in 1893. and 
 before the second amendment in 1897, it was held that there was 
 no limitation im])osed by the statute as to the number of counsel 
 assis-ned." This has been rendered obsolete bv the amendment 
 of 1897. AVhen two persons are jointly indicted and the same 
 counsel is assigned for both, the allowance may exceed $500, 
 especially when they demand separate trials.'^ 
 
 There is no trial within the meaning of § 308 of the Code of 
 
 -People V. Di Medicin. 39 Misc. 438, ''People v. Heiselbetz, 30 App. Div. 
 
 SON. Y. Supp.212. Contra, People ex 199. 51 X. Y. Supp. 685. 
 
 rel. Acrifelli v. Foster, 40 Misc. 19, "People ex rel. Roth v. Fitch, 51 
 
 81 N. Y. Supp. 212. N. Y. Supp. 683. 
 
 ^People V. Fuller, 35 ?*Iisc. 189. 71 'People v. McElmney, 36 Misc. 
 
 N. Y. Supp. 487. 316. 10 N. Y. Anno. Cas. 316, 73 X. 
 
 'People V. Heiselbetz, 30 App. Div. Y. Supp. 639. 
 199, 51 N. Y. Supp. 685.
 
 ISO TJIK LAW OK COSTS IN NKW VOIJK. 
 
 C'l'iminal Procedure, so as to justify an allowanco, wliore upon 
 arraiiiiimcnt tlio dofendaiit pleads not guiltv to an indictment 
 with a specification of insanity tliereto, and a connnission ap- 
 pointed by tlic court adjudges that the defendant was insane at 
 the time of the commission of the crime and at the time of the 
 examination. Tlie proceedings before the commissioners form- 
 ed no part of the trial of the issue joined by the plea of the de- 
 fendant to the indictment. The onlv effect of such proceedings 
 was to postpone the trial of the dcfendaiii until he becanje sane. 
 l\o allowance could therefore be made to counsel for his sery- 
 ices.** 
 
 141. Personal and incidental expenses of counsel in capital cases. 
 — The personal and incidental expenses of the counsel men- 
 tioned in the statute are such as relate to the expenses incurred 
 by the counsel on his personal account, and do not refer to the 
 expenses of expert witnesses, although they wc^re called to meet 
 the eyidence of expert witnesses on the part of the people;^ nor 
 are daily transcripts of the eyidence furnished by the stenog- 
 rapher, personal and incidental expenses.'" The cost incurred 
 in haying a j)erson inten'ie\v witnesses and take their statements, 
 and marshal the evidence for use upon the trial, are not personal 
 and incidental ex])enses within the meaning of the statute. ^^ 
 But the expense of an interpreter when the attorney does not un- 
 derstand the language of the prisoner and his witnesses and they 
 do not understand the English language is a proper subject for 
 allowance.'^ 
 
 142. Allowance for appeal in capital cases. — The limitation 
 imposed by the words ''not exceeding $.500" a])])lies to the trial 
 
 ^People ex rel. M itUcn v. Colcr. Gl Misc. 4.30. T.'J X. Y. Supp. 290. 
 
 App. Div. .538. 70 X. Y. Supp. 03!). ^'People ex rel. Levy v. Grout, 37 
 
 ''People ex rel. (Umlirell v. Coler, :Misc. 430, 75 X. Y. Supp. 290. 
 
 61 App. Div. 59S. 70 X. Y. Supp. '-7?c ^Yal(lheimer, 84 App. Div. 366. 
 
 755. 82 X. Y'. Supp. 910. 
 
 ^"People ex rel. Lrn/ v. (I'rout. 37
 
 COSTS AND ALLOWANCES IN CKIMJNAL ACTIONS^ ETC. 187 
 
 court and to the a])])(']l;itf' court separately, and not eollect- 
 ivoly.^^ 
 
 143. Allowance to counsel appointed to aid the district attorney. 
 
 — Section 204 of the county law (LaAvs 1S92, chap. 686) reads 
 as follows : ''The district attorney of any county in which a capi- 
 tal or other important criminal action is to be tried, with the 
 approval in writing of the county judge of the county, which 
 shall be filed in the office of the county clerk, may employ coun- 
 sel to assist him on such trial ; and the costs and expenses there- 
 of, to be certified by the judge presiding at the trial, shall be a 
 charge upon the county in which the indictment is found." An 
 attorney assigned to assist the district attorney in a case, who 
 argues the case in the court of appeals, and opposes a motion 
 for a new trial on the ground of newly discovered evidence, is 
 not entitled to a writ of certiorari to review the action of the 
 board of supervisors in auditing the claim, when he presents no 
 certificate of any judge. ^"* 
 
 144. Liability of complainant or of prisoner in criminal cases 
 for the costs of the proceedings. — A complainant upon whose 
 motion an order of arrest is issued is not liable for costs in a 
 proceeding arising therefrom to punish a third person for con- 
 tempt of court in obstructing the officer in the execution of the 
 warrant. Both of these proceedings are criminal proceedings, 
 and not civil, and no statute gives costs in either.^ ^ Section 719 
 of the Code of Criminal Procedure is as follows: "When the de- 
 fendant is acquitted, either by the court or by a jury, he must 
 be immediately discharged ; and if the court certify, upon its 
 minutes, or the jury find, that the prosecution was malicious or 
 without probable cause, the court must order the prosecutor to 
 
 ^^I'cnple V. Ferraro, 1G2 N. Y. .545, ^''People ex rel. Nov York Soc. for 
 
 57 X. E. 167 ; People v. Barone, 161 Prevention of Crueltj/ to Children v. 
 
 N. Y. 475, 55 N. E. 1091. Gilmore, 88 N. Y. ' G26, 14 N. Y. 
 
 ^*People ex rel. Peclc v. Genesee Week. Dig. 206. 
 County, 61 App. Div. 545, 70 N. Y. 
 Supp. 578.
 
 188 THE LAW OF COSTS IN NEW YORK. 
 
 pay the costs of the proceedings, or to give satisfactory security, 
 by written undertaking, with one or more sureties, to pay the 
 same to the county within tliirty days after the trial." 
 
 No api^eal lies to the county court from an order under the 
 forgoing section, requiring the prosecutor to pay the costs of the 
 proceedings.^^ 
 
 A provision in a city charter which gives the recorder power 
 to try certain criminal cases, and provides that when a prisoner 
 elects not to be so tried, but waives an examination, he must pay 
 the costs that have accrued up to that time, and in default there- 
 of he nuiy be sent to the jail for a period not exceeding five days, 
 is constitutional.-^'^ 
 
 145. Costs in actions for violation of the game law. — Under 
 § 186 of chap. 31 of the General Laws the people, in case of re- 
 covery of any amount in an action for a penalty under this act, 
 or in an action authorized by the article on forests and public 
 parks, are entitled to full costs. These costs may be collected by 
 body execution under § 189 of said chapter. In case there should 
 be no recovei-y tlie defendant would be entitled to costs under 
 § 3229 of the Code of Civil Procedure. 
 
 Costs recovered by the defendant would doubtless be collected 
 under § 3241 of the Code of Civil Procedure, and not under 
 § 3243, as there is no ])rovision for the payment of any recovery 
 to the county. Thore are no decisions under the present law. 
 but the decisions under the former laws make that distinction, 
 and therefore are applicable to the present law to that extent.^ ^ 
 But an execution cannot be issued to collect such costs. Code 
 Civ. Proc. § 1985. 
 
 ^'People V. Carr, 54 Hun, 443, 28 ner, 38 N. Y. S. R. 349, 14 N. Y. 
 
 N. Y. S. R. 287, 7 N. Y. Supp. 724. Supp. 334, AfTirined in 128 N. Y. 416. 
 
 "People ex rel. Staudacher v. 28 N. E. 364; People v. Smith, 47 
 
 Webb, 16 Hun, 42. N. Y. S. R. 170, 20 N. Y. Supp. 332: 
 
 ^"People ex rel. Fargo v. Rosendale, People v. Alden, 112 N. Y. 117. 19 N. 
 
 76 Hun, 112, 57 N. Y. S. R. 377, 27 E. 516, 20 N. Y. S. R. 496; Gerry v. 
 
 N. Y. Supp. 825, Affirmed in 142 N. Liddle 82 Hun, 85, 63 N. Y. S. R. 
 
 Y. 670, 37 X. E. 571; People v. Tan- 358, 31 X. Y. Supp. 58.
 
 COSTS AND AI-T.OWANCES IN CKi:\riNAL ACTIONS^ ETC. 189 
 
 146. Action for other penalties. — Bj the amendment made to 
 5ubd. 3 of § 3228 of the Code of Civil Procedure bj chap. 110 of 
 the Laws of 1898, actions brought by the people to recover a 
 fine or penalty are placed in the same category, with respect to 
 costs, as an action to recover damages for assault, battery, false 
 imprisonment, etc. Costs are given to the plaintiff, if any recov- 
 ery is had, but they cannot exceed the damages if they are less 
 than $50.i» 
 
 To charge defendant's costs upon a county the benefit referred 
 to in § 3243 of the Code of Civil Procedure must be one peculiar 
 to the county in its relation to the main objects sought to be ob- 
 tained in the action. ^*^ 
 
 147. Proceedings under the liquor tax law. — Proceedings by 
 certiorari to revoke a liquor tax license is a special proceeding, 
 and costs are taxable as such under § 3240 of the Code of Civil 
 Procedure.^^ Costs for making a case cannot be charged, where 
 it is waived by stipulation.^^ 
 
 In a proceeding instituted under subd. 2 of § 28 of the liquor 
 tax law, to revoke the certificate, costs cannot be awarded against 
 the county treasurer, payable out of any excise money that may 
 come into his hands. Such a provision as to costs is applicable 
 to a proceeding commenced under § 29 of that act. The county 
 treasurer is not chargeable personally with costs on the ground 
 that he did not bring an action to cancel the certificate, when he 
 was informed that the holder of the certificate was unlawfully 
 trafiicking in liquor. Subdivision 2 of § 28 does not enjoin that 
 duty on him.-"^ 
 
 ^"People V. Strauss. 48 App. Div. -^^Voo(l \. Randolph, ^^l\s,e.o01,Z0 
 
 198, 62 N. Y. Supp. 812. N. Y. Supp. 344; Re Loper, 32 Misc. 
 
 "^People V. Hodnett, 81 Hun, 137, 534, 67 N. Y. Supp. 329. 
 
 62 N. Y. S. R. 699. 30 N. Y. Supp. ^Re Loper, 32 Misc. 534, 67 N. Y. 
 
 735; People v. Alden, 112 N. Y. 117. Supp. 329. 
 
 19 N. E. 516. 20 N. Y. S. R. 496: -Ute Seymour, 47 App. Div. 320, 
 Gerrif v. Liddle, 82 Hun, 85, 63 N. 62 N. Y. Supp. 25. 
 
 Y. S. R. 358, 31 N. Y. Supp. 58; 
 People V. Smith, 47 N. Y. S. R. 170, 
 
 20 N. Y. Supp. 332.
 
 100 THE LAW or costs in new york. 
 
 Wliether a holder of a certificate shall be required to pay costs 
 of a proceeding brought to cancel his certificate on the ground 
 that he has not secured the required consent of two thirds of the 
 property owners, wli(>n sucli omission was made in good faith, 
 rests in the discretion of the court. In one case where he was 
 hehl lial)l(' for the costs his license was not revoked. Costs were 
 imposed in this case because the proceeding was the result of the 
 negligence of the holder of the certificate.'^ 
 
 In another case the court revoked the license, but did not com- 
 pel him to pay costs, because the loss of the certificate was con- 
 sidered heavy enough punishment for the negligence of an 
 agent.^'' Although the liquor certificate has expired by its own 
 limitation before the order revoking it is made, the court may 
 yet award costs to the successful party.^^ 
 
 ^*J{c Jolnifion. 18 Misc. 498, 42 N. ""lie Lymnn, 48 App. Div. 275, 62 
 
 Y. Supp. 1074. X. Y. Supp. 846; Re Lyman, 28 Misc. 
 
 --^Lyuian v. Murphy, 33 Misc. 349, 408, 59 X. Y. Supp. 968. 
 08 X. Y. Supp. 4!)0.
 
 CHAPTER XV. 
 
 SPECIAL PROCEEDINGS. 
 
 148. In general. 
 
 149. Mandamus. 
 
 a. In general. 
 
 6. When costs are not imposed. 
 
 c. When costs are imposed. 
 
 d. Upon whom costs are imposed. 
 
 e. Additional allowance. 
 
 f. Terms imposed upon amendment. 
 
 g. Stay for nonpayment of costs. 
 h. Amount of costs. 
 
 i. Costs upon appeal. 
 
 150. Condemnation proceedings. 
 
 a. In general. 
 
 6. Additional allowance. 
 
 c. How the allowance of costs is reviewed. 
 
 d. Costs upon abandonment of the proceedings. 
 1-51. Proceedings brought by railroads. 
 
 a. Proceedings brought by one railroad to cross another. 
 
 h. Proceedings to condemn a right of way for elevated railroads. 
 
 c. Proceedings under the general railroad act. 
 
 d. Additional allowance. 
 
 e. Trial fee. 
 
 f. Costs upon appeal by the railroad. 
 
 152. Various proceedings. 
 
 153. Proceedings by taxpayers to investigate the affairs of a village. 
 
 154. Costs upon opening a highway. 
 
 155. Proceedings to investigate the affairs of a county. 
 
 156. Proceedings to vacate an assessment. 
 
 157. Pioceedings under special acts. 
 
 148. Ill general. — The iioneral provision for costs in these pro- 
 ceedings is contained in § 3240 of the Code of Civil Procedure, 
 whicli is as follows: "Costs in a special proceedino; 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 spe- 
 cially regidated in thas act, may he awarded to any party in the 
 
 \91
 
 192 TJIK LAW OF COSTS IN NEW YORK. 
 
 discretion of the court, at the rates allowed for similar services 
 in an action brongiit in the same court, or an appeal from a judg- 
 ment taken to the same court, and in like nuuiner." 
 
 149. Mandamus, a. In general. — Costs upon the granting of 
 a mandamus are in the discretion of the court, under § 2086 of 
 the Code of Civil Procedure, which reads as follows: ''Where an 
 alternative writ of mandamus has been issued, costs may be 
 awarded, as in an action ; except that, upon making a final order, 
 the costs are in the discretion of the court. Where an applica- 
 tion for a peremptory writ of mandamus is granted or denied, 
 without a previous alternative mandamus, costs not exceeding 
 $50 and disbursements may be awarded to either party, as upon 
 a motion." Where the order is silent as to costs, none are al- 
 lowed. •* 
 
 The discretion of the trial court in granting or refusing costs 
 will not usually be reviewed on appeal.^ 
 
 b. When costs are not imposed. — Ordinarily, costs will not 
 be awarded against an officer acting in good faith." Costs will 
 not be awarded to a board of supervisors when the relator is de- 
 feated upon the ground that he should have brought his pro- 
 ceedings against the county treasurer, when that official has re- 
 fused to obey the order of the court, by the advice of the board 
 of supervisors.* 
 
 It is not the practice, upon awarding a peremptory writ, to 
 grant costs against judges of subordinate courts or other public 
 officials intrusted with the discharge of judicial duties.^ But 
 when judges make a return to an alternative writ and are de- 
 feated, they will be charged with costs. They can always pro- 
 
 ^People ex rel. Ma gee v. Densinore, ^People ex rel. Burroughs v. Brink- 
 
 1 Barb. 557; People ex rel. Kipp v. erhoff, 68 N. Y. 259; People ex rel. 
 
 Harris, G Abb. Pr. 30: People ex rel. Smith v. Flagg, 5 Abb. Pr. 232. 
 
 Coller V. Dutchess County. 3 How. *People ex rel. Cole v. Greene 
 
 Pr. 380. " County, 15 Abb. N. C. 447. 
 
 "People ex rel. Martin v. Albright, ^Hecox v. Ellis, 19 Wend. 157. 
 23 How. Pr. 306, 14 Abb. Pr. 305.
 
 SPECIAL PROCEEDIKGS. 193 
 
 tect themselves against costs by obeying tlie alternative writ. 
 Where they omit to do so and make a return, it may be pre- 
 sumed that they are indemnified against costs by the party in 
 interest.^ 
 
 c. ^^^len costs are imposed. — Costs wall be imposed where a 
 public official has committed an error in judgment in refusing to 
 ^■ive the relator a certificate required by law, and he has been 
 compelled to commence these proceedings to obtain it.' 
 
 d. Upon whom costs are imposed. — Costs should be imposed 
 upon tlie relator when the application for a Avrit is denied, and 
 the law against the relator is plain.^ It is not sufficient to ren- 
 •der one not a j)ai'ty to the proceedings liable for costs, that the 
 return was made at his request and he opposed the issuing of the 
 peremptoi-y writ.^ But a party resisting a mandamus by re- 
 quiring the relators to plead oi" demur, and subsequently join- 
 ing in the demurrer, is liable for the costs of the demurrer if the 
 relators have judginent.-^^ AV'iiere the application is premature, 
 but the respondent still had time to do tlie duty sought to be 
 eoerced, costs will not be allowed to either party.^^ 
 
 e. Additional aUoivance. — There is no warrant in the statute 
 for granting an extra allowance upon the final order in these 
 proceedings.-^^ 
 
 /. Terms imposed upon amendment. — An alternative writ 
 may be amended only at special term. The same terms are 
 usually imposed as upon the amendment to a pleading in an 
 action. Where the amendment changes the entire scope of the 
 
 "People ex rel. Fishers v. Neto ^"People ex rel Hale v. Onondaga 
 
 York Common Pleas, 18 Wend. 534. Com,mon Pleas, 3 Wend. 304. 
 
 ''People ex rel. Smith v. Hasbrouck, ^^People ex rel. Smither v. Rich- 
 
 54 How. Pr. 418. mond, 5 Misc. 26, 25 N. Y. Supp. 144. 
 
 ^People ex rel. Sanders v. Colhorne, ^''People ex rel. Rolf v. Coler, 58 
 
 20 How. Pr. 378. App. Div. 347, 68 N. Y. Supp. 1101; 
 
 "People ex rel. Holhrook v. Jeffer- People ex rel. Boyd v. Bertie, 46 
 
 son County Common Pleas Judges, Apj). Div. 505, 61 N. Y. Supp. 965. 
 2 Wend. 301. 
 
 COSTS 13.
 
 194 THE LAW OF COSTS IN NEW YORK. 
 
 proceeding, tlie terms should be the payment of all tlie defend- 
 ant's costs subsequent to the service of the writ.-^^ 
 
 g. Stay for nonpayment of costs.- — The objection that the re- 
 lator has not paid the costs upon the dismissal of a previous ap- 
 plication for the same writ cannot be raised for the first time 
 upon an appeal. It should have been raised upon the motion. 
 ]^ot having been raised tlien, it is waived. •^'^ 
 
 h. Amount of costs. — Costs in the discretion of the court are 
 allowed the same as in an action, when an alternative writ is 
 issued. Where an application for a peremptory writ is granted 
 or denied without a previous alternative writ, costs not exceed- 
 ing $50 may be awarded to either party.-^*'' AVhere, on an agreed 
 statement of facts, a peremptory writ is obtained, when but for 
 such statement an alternative writ would have been necessary, it 
 was held that the costs were discretionary with the court.^^ It 
 has been held that where a court, upon overruling a demurrer 
 to a return upon an alternative writ of mandamus, awards costs, 
 the costs must be the costs upon an issue of law, and not motion 
 costs.^'^ But under the amendment to § 3230 of the Code of 
 Civil Procedure by chap. 181 of Laws of 1900, the court would 
 have power upon the trial of an issue of law to award $10 costs, 
 and it would seem that that amount of costs might be awarded 
 in these proceedings. 
 
 Where public officers have final judgment after return to a 
 writ of alternative mandamus, costs may be awarded as in an 
 action, in the discretion of the court. These costs are taxed 
 under the provisions of § 3251 of the Code of Civil Procedure, 
 and tlierefore double costs are taxable under the provisions of 
 § 3258 of the Code of Civil Procedure.^^ But where an applica- 
 
 '^People ex rel. McDonald v. K. Co. 47 Hiin, 44, 28 N". Y. Week. 
 
 riavsen, 61 App. Div. 184, 70 N. Y. Dig. 16, 14 N. Y. S. R. 168. 
 
 Supp. 417. ^''People ex rel. Scrihner v. Peek- 
 
 "Re Lofliis, 41 N. Y. S. R. 357, sidll Water Comrs. 58 App. Div. 554, 
 
 16 N. Y. Supp. 327. 69 N. Y. Supp. 93. 
 
 '» Code Civ. Proe. § 2086. ^^People ex rel. Bates v. i:ipeed, 73 
 
 ^"People V. ycir York, L. E. d W. llun, 302, 57 K Y. S. R. 295, 26
 
 SPECIAL PROCEEDINGS. 195 
 
 tion for a peremptory writ of mandamus is denied without a pre- 
 vious alternative mandamus, costs cannot exceed $50 and dis- 
 bursements, and double costs are not taxable, because the costs 
 allowed are not taxable under § 3251 of the Code of Civil Pro- 
 cedure.^^ The cases that held that only motion costs could be 
 awarded when an application for a peremptory writ was denied 
 have been overruled by a change in § 2086 of the Code of Civil 
 Procedure. Fifty dollars costs are now allowable.^*' Where at 
 the time of the hearing the court can grant no relief, even if the 
 relator's position is correct, the application for a peremptory 
 writ should be denied, without costs. ^^ 
 
 i. Costs upon appeal. — Costs upon appeals are the same as 
 costs upon appeals in actions.^^ Where a peremptory writ is 
 granted with costs, and a stay pending an appeal is refused, the 
 defendant has a right to appeal after he has complied with tlie 
 writ, because he is entitled to recover back the costs that he has 
 paid, if the wu'it should be reversed.^^ When costs are awarded 
 as a matter of discretion, they will not usually be reviewed on 
 appeal. ^^ Where the special term sustains a demurrer with 
 costs, which order is affirmed at the appellate division with costs, 
 but is reversed in the court of appeals, with leave to the defend- 
 ant to answer upon payment of costs, the successful party may 
 apply at special term for an allowance of costs ; but the costs of 
 the appellate division can be obtained only upon an application 
 to it.-^ Wliere the appellate division affirms a peremptory writ 
 
 N." Y. Siipp. 254; People ex rel. How. Pr. 327; People ex rel. Weeks 
 
 Sanders v. Colborne, 20 How. Pr. v. Eicen, 8 Abb. Pr. 359 note; Peo- 
 
 378. pie ex rel. Lumley v. Lewis, 28 How. 
 
 ^^People ex rel.. Hall v. Hempstead, Pr. 159, 
 
 42 App. Div. 250, 59 K Y. Supp. 10. "-^lie Martin, 128 N. Y. 605, 38 N. 
 
 '"'People ex rel. Stihcell v. \ew Y. S. R. 885, 27 N. E. 1017. 
 
 York Produce Exchange, 64 How. Pr. "People ex rel. Martin v. Alhright, 
 
 523 ; People ex rel. Cogger v. Schuy- 23 How. Pr. 306. 
 
 ler County, 2 Abb. Pr. N. S. 78. ^People ex rel. Keene v. Queens 
 
 "^Ee Sell wager, 36 N. Y. S. R. 534, County, 83 Hun, 237, 64 N. Y. S. R. 
 
 13 N. Y. Supp. 384. 159, 31 N. Y. Supp. 569, Affirmed 
 
 =^ Code Civ. Proc. § 3240 ; People without opinion in 145 N. Y. 597, 40 
 
 ex rel. Bray v. Ulster County. 65 N. E. 164.
 
 19G THE LAW OF COSTS IN NEW YOKK.. 
 
 "with costs," the same costs are given as upon an appeal from a 
 judgmcnt.^'^ 
 
 When tlie court of appeals reverses a peremptory writ "witii 
 costs," only costs in the court of appeals can be taxed. The 
 courts beloAv, which granted costs to the respondent in the court 
 of appeals, can grant costs to the appellant upon application to 
 them.^^ The court may, upon granting a peremptory writ 
 against a public officer, board, or other body, not only award the 
 relator his damages and costs, but may also impose a fine not 
 exceeding $250 as a penalty for past neglect of duty.^^ This 
 applies only to public officials.^^ 
 
 The costs of these proceedings, except where a peremptory 
 writ of mandamus is awarded after the issuing of an alternative 
 writ, may be collected by contempt proceedings.^'^ The court has, 
 however, a discretion in enforcing the payment of costs by these 
 means, and will refuse to so enforce them when it would be a 
 hardship to do so.^^ 
 
 150. Condemnation proceedings, a. In general. — Condemna- 
 tion proceedings are now regulated by §§ 3357-3384 of the Code 
 of Civil Procedure. Before the enactment of that law the ques- 
 tion of costs was governed by § 3240 of the Code of Civil Pro- 
 cedure, which relates to special proceedings in general. The 
 costs of a proceeding under a special act which provides for a 
 different procedure from that laid do^^^l in the Code are governed 
 by § 3240 of the Code of Civil Procedure. They may be awarded 
 to any party, in the discretion of the court, at the rates allowed 
 for similar services in an action brought in the same court, or 
 on an appeal from a judgment taken to the same court and in 
 
 ^People ex rel. Bray v. Ulster "^People ex rel. Garhutt v. Roch- 
 
 County, 65 How. Pr. 327; Code Civ. esier & S. L. R. Co. 76 N. Y. 294. 
 Proc. § 3240. ""Code Civ. Proc. § 2007. 
 
 "Weople ex rel. Kcene v. Queens ^^People ex rel. Meyer v. Masonic 
 
 County, 83 Hun, 237, 04 N. Y. S. R. Gtiild & Mut. Ben. Asso. 22 N. Y. 
 
 1.59, 31 N. Y. Supp. 569; Barnard v. Civ. Proc. Rep. 74, 18 N. Y. Supp. 
 
 Hall, 143 N. Y. 339, 38 N. E. 301. 800. 
 
 ^ Code Civ. Proc. § 2090.
 
 SPECIAL PROCEEDINGS. 197 
 
 like manner.^2 Where the costs are taxed under § 3240 of the 
 Code of Civil Procedure there can be no extra allowance.^^ 
 
 The only case where the defendant is entitled to costs upon 
 a preliminary heai'ing is when the petition is dismissed.^^ 
 
 The only costs tliat tlie plaintiff can obtain in these proceed- 
 ings are those upon the preliminary hearing mentioned in § 3369 
 of the Code of Ci^dl Procedure. These are the same costs that 
 are mentioned in § 3372, as "costs of trial."^^ The hearing be- 
 fore the commissioners is not a trial, but an assessment of dam- 
 ages, and no trial fee can be allowed therefor.^^ There is no 
 warrant in allowing separate bills of costs against partners who 
 unite in their answer and are defeated.^'^ 
 
 The fact that the plaintiff is entitled to the costs of trial does 
 not deprive the defendant of the other costs of the proceeding, 
 when there has been no offer, or, if an offer has been made, it 
 is smaller than the award."^ The only way that the plaintiff 
 can defeat the defendant's claim for costs is by making the offer 
 as provided in § 3372.^*^ If this offer is not accepted, and no 
 answer is interposed, the defendant is entitled to costs as of 
 
 ■■-Code Civ. Proc. § 3240. 54 N. Y. Supp. 412; St. Johnsville 
 
 "'■Re Broolchjn, 148 N. Y. 107, 42 v. Cronlc, 55 App. Div. 633, 67 N. Y. 
 
 X. E. 413; Re Holden, 126 N. Y. 589. Supp. 419: Brooklyn Union Elev. R. 
 
 38 N. Y. S. R. 504, 27 N. E. 1063; Co. v. Case, 82 App. Div. 567, 81 N. 
 
 Re Grade Crossing Comrs. 20 App. Y. Supp. 527. 
 Div. 271, 46 ]Sr. Y. Supp. 1070. ^Ulanhaffan R. Co. v. Kent, 80 
 
 '*Code Civ. Proc. § 3369; Dans- Hun, 559, 62 N. Y. S. R. 569, 30 N. 
 
 rille & Mt. M. R. Co. V. Hammond, Y. Supp. 959. 
 
 77 Hun, 39, 59 N. Y. S. R. 49, 28 ■^Manhattan R. Co. v. Taber, 78 
 
 X. Y. Supp. 454. Hun, 434, 60 N. Y. S. R. 781, 29 N. 
 
 ^'"Eornellsville Electric R. Co. v. Y. Supp. 220; Johnstoivn v. Fred- 
 New York, L. E. d W. R. Co. 83 Hun, erick, 35 App. Div. 44, 54 N. Y. 
 407, 64 N. Y. S. R. 416. 31 N. Y. Supp. 412. 
 Supp. 745. ^^Syracuse v. Stacy, 45 App. Div. 
 
 ^Syracuse v. Benedict,' 86 Hun, 260, 60 N. Y. Supp. 1106; St. Johns- 
 
 343, 67 N. Y. S. R. 614, 33 N. Y. ville v. Cro7xk, 55 App. Div. 633, 67 
 
 Supp. 944; Manhattan R. Co. v. N. Y. Supp. 419. Overruled in Re 
 
 Kent, 80 Hun, 559. 62 IST. Y. S. R, Brooklyn Union Elev. R. Co. 176 N. 
 
 569, 30 N. Y. Supp. 959, Affirmed in Y. 213, 68 N. E. 249. 
 145 N. Y. 595, 40 N. E. 164; Johns- 
 t(ncn V. Frederick, 35 App. Div. 44,
 
 198 THE LAW OF COSTS IN NEW YORK. 
 
 course, when the award is larger than the offer.^^^ These costs 
 are as follows: "Before notice of trial, $10; after notice of 
 trial, $15 ; trial fee, $30, and where the trial occupies more 
 than two days, $10.^^** If the defendant is under a legal dis- 
 ability to convey, no offer need be made, and the defendant can- 
 not be allowed the costs of the proceeding.^*^ AVhere there is no 
 allegation in the petition or proof that the plaintiff has made an 
 offer to purchase the property, though there is an adjudication 
 of another court that the parties were unable to agree, the de- 
 fendant is entitled to costs.^^ Where there is one petition to 
 condemn several pieces of land belonging to different owners, 
 and it is stipulated that the evidence taken in one should be con- 
 sidered as taken in all, there is but a single proceeding, although 
 separate orders for each piece be entered.^^ The costs provided 
 for in § 3369 of the Code of Civil Procedure are only granted 
 to a defendant when he interposes an answer and succeeds there- 
 on. They are the same as are allowed to the defendant in a su- 
 preme court action, including the allowances for proceedings be- 
 fore and after notice of trial. These costs are allowed, as of 
 course, and are taxed by the clerk."*^ 
 
 h. Additional allowance. — The additional allowance provided 
 for in § 3372 of the Code of Civil Procedure is based upon the 
 whole allowance, where there has been no offer. Where there 
 has been an offer, it is based upon the difference between the 
 amount of the offer and the amount of award.^^ These allow- 
 ances are not given to punish tlie litigants for improper mo- 
 tives ;^^ nor do they depend upon an answer being sensed and the 
 
 39a Re Broollyn Union Eler. R. Co. *-Re Prospect Park d C. I. R. Co. 
 
 176 N. Y. 213, 68 N. E. 240. 67 X. Y. 371. 
 
 39b Re Brooklyn Union Elcr. R. Co. " Code Civ. Proc. § 3369. 
 
 176 N. Y. 213, 68 N. E. 249. **United States v. Engeman, 27 
 
 ^"Maiihattnn R. Co. v. McEee, 1 Abb. N. C. 141. 
 
 -\pp. Div. 488, 72 K Y. S. R. 595, *^St. Laiorence & A. R. Co. v. De 
 
 37 N. Y. Supp. 269. Camp, 52 N. Y. S. R. 10, 23 N. Y. 
 
 "^Manhattan R. Co. v. Kent, 80 Supp. 544. 
 Hun, 559, 62 N. Y. S. R. 569, 30 N. 
 Y. Supp. 959.
 
 SPECIAL PKOCEEDIXGS. 199 
 
 matter being difficult and extraordinary, as in allowances in an 
 action,"*'^ but are intended as an indemnity to the prevailing 
 party for exj)enses necessarily or reasonably incurred in the j)ro- 
 ceedings.'^' Attorneys A\ho have appeared for the owner of the 
 premises cannot obtain an order that they be paid out of the 
 fund awarded to the owner because this is not a case of cost and 
 allowances. Their right to remuneration rests upon their con- 
 tract with the owner. Section 325 i of the Code of Civil Pro- 
 cedure, limiting the amount of extra allowance to $2,000, does 
 not apply to condemnation proceedings.^^ An allow^ance may 
 be granted in a proceeding in the United States court to acquire 
 lands in this state.''^ 
 
 c. IIovj the allowance of costs is reviewed. — The allowance of 
 costs cannot be reviewed on taxaticm. The remedy is by a mo- 
 tion to correct the judgment, and by an appeal from the order 
 made thereon, or by an appeal from the judgment.^*^ 
 
 d. Costs upon abandonment of the proceedings. — These pro- 
 ceedings may be abandoned and discontinued at any time before 
 the expiration of thirty days after the entry of the final order. 
 The fees and expenses of the commissioners must be paid, and 
 such other costs and expenses as shall be directed in the final 
 order.^^ The costs and expenses mean the taxable costs of the 
 parties who have appeared, costs of motions, and allowances to 
 the guardian ad litem for infants. '^^ 
 
 151. Proceedings brought by railroads, a. Proceeding hrougU 
 hy one railroad to cross another. — The proceedings brought by 
 
 "/?c Lake SJwre d M. S. R. Co. 65 ^United States v. Engeman. 27 
 
 Hun, 538. 48 N. Y. S. R. 3G0. 20 X. Abb. K C. 141. 
 
 Y. Supp. 573. ^Uie Le Roy. 35 App. Div. 177, 55 
 
 *''St. Lawrence d A. R. Co. v. De N. Y. Supp. 149; Manhattan R. Co. 
 
 <^amp, 52 N. Y. S. R. 10. 23 N. Y'. v. Youmans, 81 Hun, 82, 62 N. Y. 
 
 ^upp. 544. S. R. 562, 30 N. Y. Supp. 5G6; Code 
 
 ^'Bruyn v. Yeic York, W. 8. d B. Civ. Proc. § 3374. 
 
 R. Co. 17 N. Y. Week. Dig. 471. ^-Onondaga County v. White, 38 
 
 ^''Re Brooklyn, 10 Misc. 650, 24 N. IVlisc. 587, 77 N. Y. Supp. 1074. 
 Y. Civ. Proc. Rep. 182, 65 N. Y. S. 
 R. 201, 32 N. Y. Supp. 182.
 
 200 THE LAW OF COSTS IN NEW YORK. 
 
 one railroad to cross another is not strictly a condemnation pro- 
 ceeding. Costs are in the discretion of the court, under § 3240' 
 of the Code of Civil Procedure.^^ 
 
 b. Proceedings to condemn a right of way for elevated rail- 
 roads. — The courts do not usually allow costs in a proceeding for 
 condemning the right of way for an elevated railroad.^^ 
 
 c. Proceedings under the general railroad act. — A proceeding 
 under the general railroad act is a special proceeding, and costs 
 should be allowed as in an action under § 3240 of the Code of 
 (^ivil Procedure.''^ 
 
 d. Additional alloiimnce. — There is no provision in § 3240 of 
 the Code of Civil Procedure for any extra allowance f^ but an 
 extra allowance can be granted as a condition of discontinuance, 
 after report and before confirmation.'*^ 
 
 e. Trial fee.- — A trial fee cannot be allowed when no issue of 
 fact is raised or tried, although disbursements may be allowed,""^ 
 
 /, Costs upon njypeal by the railroad. — Upon an appeal by 
 the railroad from an award, the apjDellate division, upon revers- 
 ing the order of confirmation and sending the matter to new com- 
 missioners, has no right to impose costs upon the land owner. 
 If the appeal is taken b}' the land owner and he is defeated, it 
 is a question whether the court might not, in such a case, have 
 power to impose costs on the land owner.*^^ 
 
 152. Various proceedings. — An application for an order ap- 
 pointing commissioners to appraise damages caused by the ex- 
 
 '^nornellsville Electric R. Co. v. Co. v. Davis, 55 N. Y. 145; Re Ryrn- 
 
 Neio York, L. E. & W. R. Co. 83 Hun, cuse, B. & A'. Y. R. Co. 4 Hun. 311; 
 
 407, 64 K Y. S. R. 416, 31 N. Y. Re New Yorl; L. & W. R. Co. 26 
 
 Supp. 745; Re Lima d H. F. R. Co. Hun, 592. 
 
 68 Him. 252, 52 N. Y. S. R. 186. 22 '•'"Renssalaer d S. R. Co. v. Davis,. 
 
 X. Y. Supp. 967; Re Cortland A H. 55 N. Y. 145; Re Syracuse, B. d N.. 
 
 Horse R. Co. 98 N. Y. 336. Y. R. Co. 4 Hun, 311. 
 
 ^*Rc Union FAcv. R. Co. 55 Hun, "'•New York, TF. *S'. d- B. R. Co. v. 
 
 163, 28 N. Y. S. R. 386. 7 N. Y. Thome, 1 How. Pr. N. S. 190. 
 
 Supp. 853. ^Re New York, L. d W. R. Co. 26- 
 
 '•'Re South Market Street, 80 Hun, Hun, 592. 
 
 ■246, 61 N. Y. S. R. 626, 29 N. Y. "^Re Neio York, ^Y. S. d B. R. Co. 
 
 Supp. 1030: Re Rensselaer d S. R. 94 N. Y. 287.
 
 SPECIAL, PROCEEDINGS. 201 
 
 tention of a street,^'' or to acquire lands for sewerage pnrposes,^^ 
 is a special j^roceeding, and costs should be awarded under § 
 •3240 of the Code of Civil Procedure. 
 
 Upon an appeal from an award of commissioners appointed 
 uj)on a pi'oceeding for altering, widening, or narrowing a 
 street of a village the costs are regulated by § 15Y of the Vil- 
 lage Law (Gen. Laws, chap. 21) which is as follows "Costs on 
 ap2>eal may be allowed as follows : 
 
 "1. If on appeal by the board of trustees the award of the 
 commissioners be affirmed, the county court may allow to the 
 respondent costs of such appeal, against the village, not exceed- 
 ing' $25. 
 
 "2. If on such appeal the award be reversed on the ground 
 that as to a specified owner it is excessive, the court may fix 
 the amount of costs, not exceeding $50, to be stated in the order, 
 to be paid by the village to such owner, if upon a rehearing the 
 amount awarded to him is not more favorable to the village h^ 
 the amount of such costs than the first award. 
 
 "8. If on appeal ])y an o^vner the award be affirmed, costs not 
 exceeding $25 may be awarded against him, to be recovered by 
 the village. 
 
 "4. If on such an appeal the award be reversed, the county 
 court may allow to the owner a sum not exceeding $25 for the 
 costs of appeal, which shall be a charge against the village." 
 
 Under a special law (Laws 1896, chap. 393) for acquir- 
 ing city-hall property, which provided that appraisers' fees, 
 etc., should not be paid except upon an order of a supreme 
 court judge, and a motion was made for appraisers' fees^ 
 etc., it was held that this was not a special proceeding under 
 a general law, but under a special law, and only motion 
 costs could be granted upon such an applicatiou, and not costs 
 
 ^ne South Market Street, 80 Hun, "i?e Long, 39 K Y. S. R. 892, 15 
 246, 61 N. Y. S. R. 626, 29 N. Y. N. Y. Supp. 657. 
 ^ Supp. 1030.
 
 202 THE LAW OF COSTS I^" NEW YORK. 
 
 of a special proceeding.®^ WTien such a bill is presented 
 for taxation there must be suiRcicnt evidence produced to 
 enable the justice to pass upon the value of the ser\dces rendered, 
 or the amount of the disbursements made.^^ The fact that a 
 piirty has agreed to pay a certain sum for services rendered is no 
 evidence of its value.^'' Under § 998 of the Greater New Yorij 
 charter (Laws 1897, chap. 378, as amended by Laws 1901, chap. 
 166), relative to the taxation of the costs, fees, and expenses of 
 the commissioners of estimate and assessment appointed in con- 
 demnation proceedings instituted by the city of Xew York, thf- 
 commissioners must present proof which will enable the court to 
 see that the number of days charged for by them was necessa- 
 rily devoted to the proceedings. An allegation which states in 
 general terms that they had performed and discharged tkeir du- 
 ties as such commissioners, and had been employed a specified 
 number of days, is not sufficient.''^ 
 
 But commissioners appointed under the act which provides 
 for the acquisition of property connected with the water supply 
 of the city of 'New York (Laws 1877, chap. 445, § 17, as 
 amended by Laws 1897, chap. 713), who present affidavits to the 
 effect that each commissioner was actually employed as a com- 
 missioner of appraisal in the proceeding a specified number of 
 days, make out a prima facie case for compensation for that 
 number of days.''® 
 
 Under the grade crossing act (Laws of 1888, chap. 345), the 
 costs and allowances are governed by § 3372 of the Code of Civil 
 Procedure.®'^ 
 
 153. Proceedings by taxpayers to investigate the affairs of a 
 village. In proceedings for the summary investigation into the 
 
 '-Re New York, 69 N. Y. Supp. 178. "»7^e Xetc York, 77 App. Div. 433, 
 
 "^People ex rel. Allison v. New 79 N. Y. Supp. 192. 
 
 York Bd. of Edu. 26 App. Div. 208, ""A'e ColUs, 80 App. Div. '287. 80 
 
 49 N. Y. Supp. 915. K. Y. Supp. 307. 
 
 "/ee Neiv York, 72 App. Div. 113, °"/i*e BuffuJo Grade Crossing Comrs. 
 
 76 N. Y. Supp. 137. 19 Misc. 230. 43 N. Y. Supp.' 1073.
 
 SPECIAL PROCEEDIIsGS. 203 
 
 financial affairs of a village, pursuant to Laws 1892, chap. 685, 
 § 3, the costs are regulated by § 3240 of the Code of Civil Pro- 
 cedure. If the costs are not properly taxed the remedy is the 
 same as in an action. ^^ Attorney and comisel fees have been 
 taxed at special term,^" but there seems to be no more warrant 
 for taxing these items in this proceeding than for taxing them in 
 an action. 
 
 Costs cannot be charged against persons who are not parties to 
 these proceedings, although it may be that their bills are the ones 
 that are investigated and found irregular.'''^ 
 
 154. Costs upon opening a highway. — The costs and disburse- 
 ments upon an application to lay out a highway under Gen. 
 Laws, chap. 19, §§ 83-88, are a charge against the town, if the 
 highway is opened ; but this does not include services of counsel 
 for the petitioner. ''^^ In case the application to lay out the high- 
 way is denied the toAvn. is not liable for the costs and disburse- 
 ments in the unsuccessful application.'^^ The liability of the pe- 
 titioner in case he is defeated is limited to $50. If he pays this, 
 as costs, to the parties opposing the application, he is not liable 
 to pay the commissioners their fees. In such a case they cannot 
 collect for their services from anyone. "^^ 
 
 When a reassessment of damages shall be had on the applica- 
 tion of the party for whom damages were assessed, and such 
 damages shall not be increased on such reassessment, the costs 
 shall be paid by the party applying for the reassessment; and 
 when application shall be made by two or more persons for the 
 reassessment of damages, all persons so liable for costs are liable 
 in proportion to the amount of damages respectively assessed 
 to them by the first assessment, and may be recovered by action 
 
 ^Re Plattsiurgh, 27 App. Div. 353. '^Eppig v. 'New York, 57 App. Div. 
 
 50 X. Y. Supp. 356. 114. 68 N. Y. Supp. 41. 
 
 ^'Re Plattsburgh, 27 App. Div. 353, '"Re Miller, 9 App. Div. 260, 41 
 
 50 X. Y. Supp. 356. N. Y. Supp. 581. 
 
 '°7?e Hempstead, 36 App. Div. 321. ''^Patton v. Miller, 28 App. Div. 
 
 .55 N. Y. Supp. 345. 517, 51 N. Y. Supp. 202.
 
 204 THE LAW OF COSTS IN NEW YORK. 
 
 in favor of any person entitled to the same. Gen. Laws^ 
 chap. 19, § 02. 
 
 Upon an application to lay out a private road the damages 
 are to be paid by the person for whose benefit tlie road is laid 
 out. imless it shall be certified that the necessity of such private 
 road was occasioned by the alteration or discontinuance of a 
 public highway, in such case the damages must be paid by the 
 to\\Ti and refunded to the applicant. Gen. Laws, chap. 19, 
 
 § m. 
 
 But if the amount of damages assessed are increased upon a 
 new hearing regularly had, the applicant must pay the costs 
 of such rehearing. If the damages assessed are not increased 
 upon such rehearing the owner must pay the costs and expenses 
 of such rehearing. Gen. Laws, chap. 19, § 120. 
 
 155. Proceedings to investigate the affairs of a county. — A pri- 
 vate person or an unincorporated association is entitled to be re 
 imbnrsed by the county for reasonable costs and expenses in pro- 
 ceedings before the governor, instituted upon reasonable 
 jiTounds, to remove a county officer. There is no need of an au- 
 thorization by the attorney general. If the board of supervis- 
 ors refuse to audit the claim the claimant may resort to either 
 certiorari or mandamus proceedings."^* Upon an appeal to the 
 state board of tax commissioners from the equalization of assess- 
 ments the board may allow for services of counsel a sum not 
 exceeding $2,000, and for disbursements, including the compen- 
 sation and expense of a stenographer, a sum not exceeding 
 $1,000 in addition thereto."^^ Wliere costs on appeal from a 
 tax equalization were ordered paid by the defeated party, and 
 where it refused to levy taxes to pay the same, it was held that a 
 mandamus was the proper proceeding to compel such levy.'^ 
 
 ^*People ex rel. Smart v. Washing- ^'People ex rel. Ulster County v. 
 
 ton Couniji. 66 .App. Div. 66. 72 N. Kinffsto7i, 101 N. Y. 82, 3 How. Pr. 
 
 Y. Supp. 568. N. S. 452, 4 N. E. 348. 
 
 "Oen. Laws. chap. 24, § 177.
 
 SPECIAL PEOCEEDINGS. 205 
 
 T\Tiere a board of supervisors contracted with an attorney to pay 
 $1,200 in an appeal hj a town to the state assessors from the 
 equalization of the board of supervisors, and the state assessors 
 certified the expenses of the respondent's attorney at $500, this 
 did not determine the amount which might be properly paid by 
 the board of supervisors to their counsel for compensation on 
 such appeal. ''^^ 
 
 Upon a petition by a receiver of taxes to punish a taxpayer 
 for nonpayment of a personal tax, where the taxpayer charges 
 that the marshal never demanded taxes from him, which is not 
 denied by tlia receiver, the court would, under Laws 1882, chap. 
 410, § 861, relieve him of costs of the proceedings.'^^ 
 
 156. Proceedings to vacate an assessment. — A proceeding to 
 vacate an assessment is a special proceeding, and costs thereof 
 similar to those in an action are in the discretion of the court, 
 under § 3240 of the Code of Civil Procedure.''^ 
 
 157. Proceedings under special acts. — Special acts in relation 
 to laying out streets, etc., Avhich contain no provision as to costs, 
 are governed by the same section.^" Where there are several de- 
 fendants who are not united in interest, and who make separate 
 defenses and require separate judgments, they are entitled to 
 separate bills of costs.^^ Under § 159 of the Village Law (Laws 
 1897, chap. 414, as amended by Laws 1901, chap. 68) the costs 
 can be claimed by the owner as a matter of right, only after the 
 appointment of commissioners to ascertain the amount of tlie 
 damage. All costs incurred prior thereto are governed by § 
 3240 of the Code of Civil Procedure. "When the court appoints 
 commissioners, upon confirming the report of the referee, it can 
 
 ""People ex rel. Anihal v. Fulton *"7?e Grade Crossing Comrs. 17 
 County, 53 Hun, 254, G N. Y. Supp. App. Div. 54, 44 N. Y. Supp. 844. 
 591. ^Re Eleventh Ave. 14 N. Y. Week. 
 
 '''Re McLean, 62 Hun, 1, 41 N. Y. Dig. 466. 
 S. R. 897, 10 N. Y. Supp. 417. 
 
 '^Re Prolesiant Episcopal Public 
 School, 86 N. Y. 39g!
 
 206 1111. J.AW oi' (.o.si'^s I.N m:\v vouk. 
 
 allow costs up to that time. If tlie order of confirmation is 
 silent as to costs, none can be taxed for proceedings prior to tli«i 
 appointment of sneli commissioners. '**" 
 
 ^Bley V. Hanihiun, 84 App. Div. 
 23, 82 N. Y. Supp. 35.
 
 CHAPTER XVI. 
 
 SPECIAL PROCEEDINGS CONTINUED. 
 
 158. Proceedings for appointment of a committee of a lunatic, idiot, habit- 
 ual drunkard, or imbecile. 
 a. Petition dismissed. 
 6. Petition granted. 
 
 c. Attempt by incompetent to have the committee removed. 
 
 d. Allowance to and against conmiittee. 
 1.39. Certiorari. 
 
 a. In general. 
 
 6. Proceedings against assessors. 
 
 c. Amendment of certiorari. 
 
 d. Additional allowance. 
 IGO. Habeas corpus. 
 
 161. Proceedings supplementary to execution. 
 
 a. Statute. 
 
 6. At what stage of tlie proceeding costs are granted. 
 
 c. How costs are collected of judgment debtor. 
 
 d. Costs granted to judgment debtor. 
 
 e. Costs granted to third parties. 
 
 f. Costs in proceedings to collect taxes. 
 
 162. Contempt proceedings. 
 
 a. In general. 
 
 b. In proceedings supplementary to execution. 
 l(j.3. Summary proceedings. 
 
 o. Statute. 
 6. Tender. 
 
 c. Costs on appeal. 
 
 Ifi4. General assignment for the benefit of creditors, 
 a. Allowance for legal services. 
 6. Costs in actions to set aside assignment. 
 
 c. Costs on contested claims. 
 
 d. Costs in actions brought by assignee. 
 
 e. Costs in an action for an accounting. 
 
 f. Costs upon the final accounting. 
 
 g. By whom costs of final accounting are paid. 
 h. How costs against an assignee are collected. 
 
 165. Assignee or trustee in bankruptcy. 
 
 166. Writ of prohibition. 
 
 167. How costs on state writs are collected. 
 
 168. Removal of excise commissioners. 
 
 207
 
 208 THE LAW OF COSTS IN NEW YOKK. 
 
 1G9. rroc-c'cding-s to mortgage trust property. 
 
 170. Spec-ial proceedings before an oflicer. 
 
 171. Proceedings to discharge from imprisonment on oxocution. 
 171a.Proceedings to discover the death of a tenant for life. 
 
 158. Proceedings for appointment of a committee of a lunatic, 
 idiot, habitual drunkard, or imbecile, a. Petition dismissed. — 
 Where a hnal order is made dismissing a petition the court may, 
 in its discretion, award in the order a fixed sum as costs, not ex- 
 ceeding $50, and disbursements, to be paid by the petitioner to 
 the adverse party. Costs are not awarded against the unsuccess- 
 ful petitioner, if he acted in good faith and upon probable 
 cause ;^ but he will be compelled to bear his o^\^l expenses.^ 
 
 h. Petition granted. — Where a committee of the property is 
 appointed the court must direct the payment by him, out of the 
 funds in his hands, of the necessary disbursements of the peti- 
 tioner, and of such a sum for costs and counsel fees as it thinks 
 reasonable ; and it may, in its discretion, direct the committee 
 to pay a sum not exceeding $50 and disbursements to any ad- 
 verse j3arty.^ The attorney who appears for the person who is 
 declared a lunatic is not limited to the sum of $50 for liis serv- 
 ices in defending the proceeding.* 
 
 If it is found that the alleged lunatic is of sound mind, then 
 the court obtains no control over his property, and cannot charge 
 the costs of the proceeding thereon ; but after the jury has found 
 that he was of unsound mind the court, upon confirming the in- 
 quisition, acquires complete jurisdiction over the lunatic and his 
 property f and if the lunatic dies after the determination of the 
 jury and before its confirmation the court, liaving acquired ju- 
 risdiction over the property of the lunatic, may direct the pay- 
 ment of the costs and disbursements of the proceeding.^ 
 
 'i?e McAdams, 19 Hun, 293; Re ^Re Clapp, 20 How. Pr. 385; Re 
 Arnhout, 1 Paige, 497; Broiver v. dies, 11 Paige, 638; Re Arnhoul, 1 
 Fisher, 4 Johns. Ch. 441; Code Civ. Pauie, ,501. 
 Proc. § 23,*]6. "/'e LnftJwuse, 3 App. Div. 139, 74 
 
 =7?e Giles, 11 Paige, 638. X. Y. S. E. 468, 38 N. Y. Supp. 39. 
 
 'Code Civ. Proc. § 2336. 
 
 'Re Hardy, 26 App. Div. 164. 49 
 N. Y. Supp. 953.
 
 SPECIAL PROCEEDIiS'GS CONTINUED. 209 
 
 By § 2323 of the Code of Civil Procedure, costs may be al- 
 lowed, upon the appointment of a committee of an incompetent 
 person who has been committed to a state institution, to the pe- 
 titioner in a sum not exceeding $25 besides the necessary dis- 
 bursements, payable from the estate of the incompetent. 
 
 Upon the denial of an application to set the same aside, costs 
 as of a motion may be allowed. 
 
 0. Attempt hy iiico)npetent to liave the committee removed. — 
 The conmiittee of a lunatic is authorized to pay counsel fees in 
 defending a proceeding brought to liave the lunacy proceeding set 
 aside. '^ The allowance thus made rests largely in the discretion 
 of the court at special term, and this discretion will not usually 
 be reviewed on appeal.^ There is no hard and fast rule con- 
 cerning allowance out of the estate of the incompetent to attor- 
 neys for sendees rendered in an imsuccessful attempt to procure 
 a supersedeas of a commission, where the inquiry is expressly 
 sanctioned by the court, by ordering a reference to inquire into 
 the mental condition of the incompetent person. If the proceed- 
 ing is groundless or vexatious, and is supported by no probable 
 cause, or is instituted in bad faith, or for the benefit of a third 
 party, no costs should be allowed.^ If the estate is large the 
 •costs are projDerly allowed out of the estate.^*^ It is immaterial 
 that the application is not made by the committee.^ ^ On the 
 ■contrary, if the incompetent person has a small estate, all of 
 which is required to support him and his family, the court will 
 be averse to making an allowance out of the estate.^ ^ If the 
 proceeding was instituted for the benefit of a third person the 
 ■costs are properly chargeable against such third person.^^ Costs 
 
 'Re Clapp, 20 How. Pr. 385. '"Re Tracy, 1 Paige, 580. 
 
 ^Re Killick, 4 Silv. Sup. Ct. 89: "7?e Lamer, 68 App. Div. .321. 74 
 26 N. Y. S. R. 763, 7 N. Y. Siipp. X. Y. Pupp. 70. 
 ■360. "Re M'Lean. 6 Jolins. C'li. 440. 
 
 "Carier v. Bccl-irith. 128 N. Y. 312. ''/?e Folgcr, 4 Jolins. Cli. 169. 
 40 N. Y. S. Pv. 343; Re Beckwith, 3 
 Hun, 443. 
 
 COSTS 14.
 
 210 TJIE LAW OF COSTS IN NEW YORK. 
 
 out of the estate of the incompetent will be denied to an attor- 
 ney who had a personal interest in the proceeding.^* 
 
 d. Allowance to and against coinmittec. — Whore a committee 
 has employed an attorney the court has power to entertain an ap- 
 plication of the attorney for payment, and order the committee 
 to pay the value of the attorney's services.^^ A committee who 
 has been guilty of gross negligence will be charged with costs of 
 proceedings for his removal, and to procure a settlement of his 
 accounts.^ ^ The matter of allowing counsel fees to the commit- 
 tee rests in the discretion of the court.^'^ The jurors are entitled 
 to only 25 cents, Avitli no per diem allowance.-^^ 
 
 159. Certiorari, a. In general. — Costs not exceeding $50 and 
 disbursements may be allowed in the final order to either party 
 in the discretion of the court.^^ The order must specify the 
 amount of costs. The clerk has no authority to tax costs, but 
 the amount of costs must be fixed by the court.-" Costs as of an 
 action cannot be taxed under § 3240 of the Code of Civil Pro- 
 cedure, because the amount of costs is fixed by § 2143 of thai 
 Code. ISTor does § 3258, subd. 1, or § 3251, which give public 
 officers double costs, have any application to these proceedings.^^ 
 
 The costs, when allowed, should be taxed and inserted in the 
 order.^- The costs upon a certiorari to review the comptroller's 
 assessment of state taxes on corporations are governed by the 
 Code of Civil Procedure, § 2143, because the statute which reg- 
 ulates the practice in such proceedings makes no special provi- 
 sion as to costs, and the general statute applies. 
 
 "Re Van Coti, 1 Paige, 489. "^People ex rel Hall v. Unnpsfead, 
 
 "7?e Norton, 18 Misc. 406. 42 N. 42 App. Div. 250, 59 N. Y. Supp. 10; 
 
 Y. Supp. 775. People ex rel. Green v. Smith, 1.? 
 
 "7?f Carter, 3 Paige, 146. Hun. 227; People ex rel. Smith v. 
 
 "Re Killick, 4 Silv. Sup. Ct. 89, Nelliston, 79 N. Y. 638. 
 
 26 N. Y. S. P. 763. 7 N. Y. Supp. 360. -'People ex rel. Hall v. Hempstead, 
 
 ^Re Sanford, 61 Hun. 33, 15 N. Y. 42 App. Div. 250. 59 N. Y. Supp. 10; 
 
 Supp. 291; Code Civ. Proc. §§ 2333, People ex rel. Donovan v. New York 
 
 3313, 3314, 3316. Fire Comrs. 5 Abb. N. C. 144. 
 
 "People ex rel. Hall v. Hempstead. -Re BrooJdyn Bd. of Edu. 19 N. 
 
 42 App. Div. 250, 59 X. Y. Supp. 10; Y. Civ. Proc. Rep. 420, 34 N. Y. S. R. 
 
 Code Civ. Proc. S 2143. 403, 11 N. Y. Supp. 780.
 
 SPECIAL PROCEEDi:N'Gis CONTINUED. 211 
 
 h. Proceedings against assessors. — Costs in proceedings by 
 certiorari under chapter 24 of the General Laws are governed 
 by § 254 of that act. This section is a re-enactment of §§ 6 and 7 
 of chapter 2G9 of the Laws of 1880, which substantially re-enact- 
 ed chapter 270 of tlie Laws of 1854. Section 2143 of the Code of 
 Civil Procedure does not apply.^' If the relator is defeated, 
 costs must be awarded against him not exceeding the costs and 
 disbursements taxable in an action upon the trial of an issue of 
 fact in the supreme court.^"* 
 
 Assessors will not be charged with costs where a question of 
 law has been submitted to them, and they have decided wrong- 
 ly.-*" The presumption of law is that the officers intend to per- 
 form tlieir duty honestly and conscientiously, and such presump- 
 tion can only be overcome by clear evidence. This is not done 
 !)y isolated cases that may be difficult to reconcile with a consci- 
 •ntious discharge of duty ; but where, looking at the assessment 
 as a whole, and considering the difficulty of assessing peculiar 
 property, the result is good, costs will not be awarded against 
 them.-^ Their dereliction uuist be clear before they will be 
 compelled to pay costs.^'^ 
 
 Assessors will be charged personally -^vith costs, when they 
 have all the facts before them and the true rule of law civen 
 them, and then assess the property at a grossly excessive sum.^* 
 
 ^People ex rel. Fairfield Chemical ^*Gen. Laws chap. 24, § 254. 
 
 Co. V. Coleman, 18 Abb. N. C. 246; -^People ex rel. Canady v. Wil- 
 
 People ex rel. 'Niagara Falls Eydrau- Hams, 90 Hun. 501, 71 N. Y. S. K. 
 
 lie Poirer d Mfg. Co. v. Russell, 57 401, 36 X. Y. Supp. 65. 
 
 Htin, 53, 32 X. Y. S. R. 20, 10 X. Y. -"People ex rel. Walkill Valley R. 
 
 Supp. 391 ; People ex rel. Lee v. Col- Co. v. Keator, 67 How. Pr. 277, Af- 
 
 lege Point, 89 Hun. 194, 68 N. Y. S. firmed in 36 Hun, 592, 17 Abb. N. C. 
 
 R. 878, 34 X. Y. Supp. 1145, seems 369. 
 
 to have been decided without the at- '"People ex rel Mann v. Covert, 18 
 
 tention of the court being drawn to N. Y. \Yeek. Dig. 458 ; People ex rel. 
 
 the fact that costs in certiorari Raplee v. Reddy, 43 Barb. 539; Peo- 
 
 against assessors are not governed by pie ex rel. Thurman v. Ryan, 88 N. 
 
 the general provisions as to costs in Y. 142, 42 Am. Rep. 238. 
 
 these proceedings contained in the '^People ex rel. Boston, H. T. d W. 
 
 Code of Civil Procedure. /'. Co. v. Wilder, 3 N. Y. S. R. 159.
 
 212 TILE 1.AW OF COSTS IN NEW YOKK. 
 
 They will be charged with costs where the court finds that they 
 acted with gross negligence.^^ Where repeated adjudications 
 had held that the property was exempt, and the assessors again 
 assessed it, and appealed from the adverse decision against them, 
 to the court of appeals, and, while the case was pending there, 
 again placed it on the tax roll, they were properly chargeable 
 with bad faith, and should be compelled to pay costs personally.^" 
 Where assessors assessed, in 1900, property that was declared 
 exempt in 1898, and one of the board of 1900 was on the board 
 in 1898, costs of a writ of certiorari are properly allowed 
 against them.^^ In the absence of a holding at special term or 
 by the appellate division that the action of the assessors was 
 grossly negligent or in bad faith or with malice, no costs can bo 
 allowed against them.^^ 
 
 The immunity that the assessors possess at special term with 
 regard to costs does not aj)ply upon an appeal taken by them 
 from an adverse decision, and, if defeated upon the appeal, cost.- 
 may, in the discretion of the court, be awarded against them the 
 same as on an appeal from an order, — $10."^ If costs are 
 awarded to assessors, either at special term or upon an appeal, 
 they are entitled to increased costs under § 3258 of the Code 
 of Civil Procedure, because these costs are regulated by § 3251, 
 and not by § 2143. The party claiming such costs should apply 
 
 "People ex rel. Warren v. Carter, S. R. 207, 25 N. Y. Supp. 393, Af- 
 
 119 N. Y. 654, 30 N. Y. S. R. 116, firmed in 141 X. Y. 118, 23 L. R. A. 
 
 23 N. E. 927. 95, 56 N. Y. S. R. 586, 35 N. E. 1073; 
 
 '"People ex rel. Doivd v. Fonda, 22 People ex rel. Eckerson v. Christie, 
 
 N. Y. Woek. Dig. 477. 14 N. Y. S. R. 525. 
 
 ^People ex rel. Delta Kappa Ep- ^Re Pryor. 67 App. Div. 316, 73 
 
 silon l^oc. V. LawJor, 36 Misc. 594, 73 N. Y. Supp. 961; People ex rel. Smith 
 
 N. Y. Supp. 1082. V. Ye;p York T. & A. Comrs. 101 N. 
 
 '"People ex rel. Niagara Falls Y. 651, 4 N. E. 752; People ex rel. 
 
 llydrauUc Power d Mfg. Co. v. Riis- Warren v. Carter, 46 Hun, 444; Peo- 
 
 scll, 57 Hun, 53, 32 N. Y. S. R. 20, pie ex rel. Oak Hill Cemetery Asso. 
 
 10 N. Y. Supp. 391; People ex rel. v. Pratt, 66 Hun, 578, 50 N. Y. S. R. 
 
 }fann v. Peterson, 31 Hun. 421; Peo- 355, 21 N. Y. Supp. 853, Affirmed in 
 
 pie ex rel. Ogdenshurgh & L. C. R. 138 N. Y. 655, 53 N. Y. S. R. 931, 
 
 Co. V. Pond. i3 Abb. N. C. 1: People 34 N. E. 513; People ex rel. Smith 
 
 <x rel. Lorillard v. Barker, 55 N. Y. v. Asten, 1 N. Y. S. R. 37; People ex
 
 SPECIAL PROCEEDINGS CONTINUED. 213 
 
 io the court for a certificate directing the clerk to tax the in- 
 creased costs.^'* Costs must be awarded upon denying the pe- 
 tition. ^'^ Costs upon appeal against others than assessors are in 
 the discretion of the court, and when awarded they are the same 
 as upon an appeal from a judgment in an action."'^ Upon ap- 
 peals from a certiorari against the assessors the costs are not gov- 
 erned by the provisions of the Code of Civil Procedure, but un- 
 der § 255 of chapter 24 of the General Laws, which makes ap- 
 peals the same as appeals from orders ; and therefore costs are 
 governed by § 3239 of the Code of Civil Procedure.^^ 
 
 c. Amendment of certiorari. — Relators should be allowed to 
 amend the certiorari after a return is filed upon the payment of 
 casts.^* At common law, costs were not allowed upon certiorari, 
 either at special term,^'' or on appeal."**^ 
 
 d. Additional allowance. — Under § 3253 of the Code of Civi! 
 Procedure an additional allowance may be granted, except in the 
 first and second judicial districts, in certiorari to review assess- 
 ments. 
 
 160. Habeas corpus. — Costs are not allowed in habeas corpus 
 proceedings of a criminal nature,^^ except where the prisoner is 
 
 rcl. Walllill Valley R. Co. v. Keator, S03 : People ex rel. Oak Hill Ceme- 
 
 101 N. Y. 612, 3 N. E. 903; People iery v. Pratt, (5() Hun, 578, 50 N. Y. 
 
 ex rel. Weatern U. Teleg. Co. v. S. R. 355, 21 N. Y. Supp. 853. 
 
 Dolan, 126 N. Y. 166, 179. 12 L. R. ^People ex rel. Neio York, C. & H. 
 
 A. 251, 27 N. E. 269; People ex rel. R. R. Co. v. Feitner, 58 App. Div. 
 
 Bleeder fitreet & F. F. R. Co. v. 343, 68 N. Y. Supp. 1058. 
 
 Barker, 90 Hun, 253, 70 N. Y. S. R. ''I'eople ex rel. Cook v. Board of 
 
 204, 35 N. Y. Supp. 803. I'olice, 17 Abb. Pr. 324, note, 26 How. 
 
 "Code Civ. Proc. § 3248. Pr. 450. Contra, People ex rel. 
 
 '^Gen. Laws, chap. 24, § 254; Peo- M tiller v. Schodack Hightcay Gomrs. 
 
 pie ex rel. Rome, W. d 0. R. Co. v. 27 How. Pr. 158. 
 
 Jones, 43 Hun. 131. 6 N. Y. S. R. '"People ex rel. Kilmer v. Cheri- 
 
 112, 25 N. Y. Week. Dig. 487. tree, 5 N. Y. Week. Dig. 65; People 
 
 ^Code Civ. Proc. § 3240; Wood v. ex rcl. Smith v. Nelliston, 79 N". Y. 
 
 Randolph, 9 Misc. .507, 61 K Y. S. 638, 9 N. Y. Week. Dig. 298. 
 
 R. 80, 30 N. Y. Supp. 344; People "People ex rel. Van Riper v. New 
 
 ex rel. Shelton v. Cower, 44 How. Pr. York Catholic Protectory, 106 N. Y. 
 
 26. 604, 27 N. Y. Week. Dig. 260, 5 N. 
 
 "People ex rel. Bleecker Street d Y. Crim. Rep. 409, 11 N. Y. S. R. 
 
 F. F. R. Co. V. Barker, 90 Hun. 253, 155, 13 N. E. 435. 
 70 N. Y. S. R. 264, 35 N. Y. Supp.
 
 214 THE LAW OF COSTS IN NEW YORK, 
 
 released and an appeal is taken in the name of the people, under 
 v$ 2059 of the Code of Civil Procedure; then costs upon affirm- 
 ance should be paid by the county. Such costs are $50 and dis- 
 bursements.*"^ But in a civil special proceeding, costs and dis- 
 bursements as in an action may be awarded in the discretion of 
 the court.** The costs should embrace only the items for pro- 
 ceedings after petition and before trial, and for trial and dis- 
 bursements.*"'' Where the matter is disposed of upon a demur 
 rer interposed to tlie return of the sheriff, the proceedings are 
 analogous to the trial of an issue of law, and a similar trial fee 
 is proper. Costs before notice of trial should not be allowed, as 
 there is no notice of trial of the demurrer or anything resem 
 bling such notice.*^ In the final order the facts must be set 
 forth which show that the amount fixed by the order is properly 
 chargeable.*" Upon an appeal from an order granted at special 
 term, denying the application of counsel upon a habeas corpus 
 that failed, for an allowance out of the property of the person in 
 whose behalf the proceeding was instituted for services therein, 
 on the ground that the proceeding was instituted in bad faith, 
 or, at least, without authority, the appellate division, upon re- 
 versing the order of the special term, should not allow the 
 amount claimed, but should send the matter back to the special 
 term to inquire into the necessity or propriety of the proceeding, 
 the right of counsel to compensation, and the reasonableness 
 of the charges,*^ A defendant cannot be charged with costs 
 until he has had a full, fair, patient, and impartial hearing.** 
 
 « Code Civ. Proc. § 3240 ; People *^McMaster's Efttate, 14 N. Y. Civ. 
 
 ex rel. fUnJcler v. Tern/, 42 Hun. 273, Proc. Rep. 195. 16 N. Y. S. R. 240, 
 
 5 N. Y. S. R. 121, 25 X. Y. Week. 1 X. Y. Supp. 225; Re Bernhard, 14 
 
 Dig. 307. N. Y. Civ. Proc. Rep. 195, 16 N. Y. 
 
 *^Code Civ. Proc. § 3240; Re Bar- S. R. 240, 1 N. Y. Supp. 225. 
 
 nett, 11 Hun, 468, 53 How. Pr. 247; "Re Teese, 32 App. Div. 46. 6 N. 
 
 Re Teese, 32 App. Div. 46, 6 N. Y. Y. Anno. Cas. 149, 52 X. Y. Supp. 
 
 Anno. Cas. 149, 52 N^. Y. Supp. 517; 517. 
 
 People ex rel. Oprandy v. Ciarcia, *^Re Lamer, 170 X. Y. 7, 62 X. E. 
 
 49 App. Div. 90, 63 X. Y. Supp. 497. 761. 
 
 "Z.'e Barnrit, 11 Hun, 468, 53 How. *''PeopIe ex rel. ^Yatso7t v. Boffett, 
 
 Pr. 247; Muller v. Boice, 4 Month. 75 App. Div. 365, 78 N. Y. Supp. 175. 
 L. Bull. 10.
 
 SPECIAL PIIOCEEDINGS CONTINUED. 215 
 
 161. Proceedings supplementary to execution, a. Statute. — 
 Tlie costs allowed in these proceedings are regulated hy §§ 2455 
 and 2456 of the Code of Civil Procedure. 
 
 h. At wliai stage of the proceeding costs are granted. — The 
 application for an allowance of costs cannot be made until the 
 proceeding has been brought to an end in favor of the party ap- 
 plying for them.^'^ But it may be made without notice.^^ The 
 judge is authorized to make this allowance if any property is 
 found in the hands of the judgment debtor.^^ He may make 
 this allowance at any time before the final order for the appli- 
 cation of the funds in the hands of the receiver.^^ 
 
 Sections 2455 and 2456 of the Code of Civil Procedure relate 
 to the costs of a proceeding, and not to the costs of a 
 motion to dismiss them.°'* Costs may be allowed against 
 the judgment debtor upon a proceeding based on a third 
 jDarty order,^"" or upon an order directed to the judgment 
 debtor, when the judgment debtor pays the amount due and 
 there is no examination.^^ It is not fatal to the allowance that 
 the amount is allowed for '^counsel fee" instead of for "costs."^'^ 
 The attorney for the judgment creditor has no lien upon the 
 costs till they are allowed. If the judgment debtor settles in 
 full with the judgment creditor, no costs can be allowed.^* JSTor 
 can the costs be allowed where the judgment is collected by a sec- 
 ond execution, issued subsequent to tlie institution of such a 
 proceeding.'''^ 
 
 ^Davis V. Turner, 4 How. Pr. ino. Proc. Pep. 139. 3.S N. Y. S. R. 27, 
 
 '■^Servcn v. Lowerre, 3 Misc. 113, 11 N. Y. Supp. 082. 
 
 22 N. Y. Supp. 1052. '•K'olne v. Oirard, 19 Abb. K C. 
 
 ^"Kearney's Case, 13 Abb. Pr. 459, 288. 
 
 22 How. Pr. 309. ''Hulsaver v. Wiles, 11 How. Pr. 
 
 ^^Vehber v. Hohbie, 13 How. Pr. 446. 
 
 382. ^^Paterson Bros. v. Goorley, 14 
 
 "'Hutson V. Weld, 38 Hun, 142; Misc. 56, 69 N. Y. S. R. 651, 35 N. 
 
 Valient e v. Bryan, 3 N. Y. Civ. Proc. Y. Supp. 297. 
 
 Rep. 358, 66 How. Pr. 302. '-'>Rittcr v. Greason, 28 Misc. 656, 
 
 "Grinnell v. Sherman, 19 Civ. 59 N. Y. Supp. 1053.
 
 216 TJIK LAW OF COSTS IN ]S"EW YORK. 
 
 c. Ilmr costs are collected of judgmeiit debtor. — Section 21:55- 
 of the Code of Civil Procedure provides that the order granting; 
 costs must direct their payment out of any money that has come, 
 or may come, into the hands of the receiver or of the sheriff ; or, 
 within a time specified in the order, by the judgment debtor or- 
 other person against whom the special proceeding is instituted. 
 It has been held that the establishment of a method of collection 
 impliedly precludes their collection in any other way. They are 
 not motion costs, and, therefore, are not collectable by execu- 
 tion.^*^ Costs may be collected by contempt proceedings, al- 
 though after the granting of the costs the judgment is satisfied 
 by payment to the sheriff upon execution.®^ 
 
 Upon the reversal by the appellate division of an order ad- 
 judging the judgment debtor in contempt, he is entitled to tax 
 but $10 costs.'^- 
 
 An appeal does not lie from such an order to the court of 
 appeals.***^ 
 
 d. Costs granted to jvdf/)iient debtor. — Where the proceedings 
 have been dismissed because the affidavit is fatally defective, mo- 
 tion costs to the defendant are proper."^ These costs are not al- 
 lowed under § 2456 of tlu^ Code of Civil Procedure, as that only 
 apjjlies to a case when the judgment debtor has been examined.^^ 
 A creditor who has not been guilty of bad faith should not be 
 compelled to pay money to his debtor, but the costs allowed to 
 the judgiuent debtor shoukl be credited on the judgment.^^ 
 Costs may be allowed to th(^ judgment debtor when the creditor 
 finds no property, and has tried and failed to have the judgment 
 debtor adjudged guilty of contempt.^' 
 
 '^VaJieiite v. Bryan, 3 N. Y. Civ. "^Hutso}! v. U>/r?. .38 Hun, 142, 22- 
 
 Proc. Re]). .358, 66 How. Pr. 302. N. Y. Week. Dig. 572. 
 
 '^Ilolfon V. Robinson, 59 App. Div. "^Engle v. Bonneau, 2 Sandf. 679; 
 
 45, 69 N. Y. Supp. 33. Simms v. Frier, 2 Month. L. Bull. 97. 
 
 "-Jones V. Sherman, 18 Abb. X. C. ""Kress v. Morehead, 26 N. Y. 
 
 461, 11 N. Y. Civ. Proc. Rep. 416, 8 Week. Dig. 410, 8 N. Y. S. R. 858. 
 
 N. Y. S. R. 344. "'Boelger v. Swivel, 1 How. Pr. N- 
 
 "''Crosby v. Stephan, 97 N. Y. 606. S. 372.
 
 SPECIAL, ^ROCEEDI:^^GS CONTIA'UED. 217 
 
 e. Costs granted to third parties. — Costs should be allowed to 
 a third party, Arhen he has been examined, and no property has 
 been foimd,^*^ unless the judgment creditor can show good reason 
 for the examination,'^^ The judgment creditor can avoid this 
 liability by examining the third party as a witness in a proceed- 
 ing directed against the judgment debtor. 
 
 Sections 2456, 2555 of the Code of Civil Procedure relate to 
 the costs of the proceeding, and have nothing to do Avith the costs 
 of motion and the appeals from orders, which come under the 
 general law.'^*' 
 
 /. Costs in proceedings to collect taxes. — Under Laws 1896, 
 chap, 908, § 259, no costs can be allowed against the officer or 
 corporation seeking to enforce the collection of taxes by supple- 
 mentary proceedings. But this docs not apply to an appeal by 
 the tax officer from an order which dismisses his proceedings. 
 The order thus made was a final order, and costs would bo 
 awarded as in an action were it not for the pro\dsion of § 254 
 of the statute, which makes the amount of costs upon any appeal 
 from any order taken under that article (art. 11) the same as 
 the costs upon an appeal from an order,'^^ 
 
 162. Contempt proceedings.- a. In general — Costs in these 
 proceedings are the same as costs in an action, and are governed 
 by § 3240 of the Code of Civil Procedure.'^^ In proceedings to 
 punish for contempt, where the party acted in good faith the 
 only costs that can be taxed against him are motion costs and 
 disbursements.^^ But no costs are allowed in proceedings for 
 
 "'Sloane v. Higgimi, 2 Month. L. "7?p Pn/or, 67 App. Div. 316, 73 
 
 Bull. 11. " N. Y. Supp. 961. 
 
 "'■'Anonijinotis. X. Y. Code Rep. X. '-Code Civ. Proc. § 3240; McLean 
 
 S. 113, 3 Sandf. 725; Anonymous, 11 v. Jephson, 26 Abb. N. C. 40, note. 
 
 Abb. Pr. 108. 13 N. Y^ Supp. 834. 
 
 '"'People ex rel. Scudder v. Cooper, '^Poicer v. Athens, 19 Hun, 165; 
 
 10 X. Y'^. Week. Dig. 77; Jones v. People ex rel. Scudder v. Cooper, 20 
 
 Sherman, 18 Abb. X. C. 401, 11 N. Y. Hun, 486. 
 Civ. Proc. Rep. 416, 8 X. Y. S. R, 
 344; Hutson v. Weld, 38 Hun, 142, 
 22 N. I''. Week, Dig. 572.
 
 218 THE LAW OF COSTS IN NEW YORK. 
 
 criminal contempt. '^^ A person in contempt may be fined the 
 amount of counsel fees and disbursements in the proceedings to 
 punish him for contempt."^ But the amount must be proved 
 before the referee or court. '^ The Revised Statutes were the 
 same as the Code of Civil Procedure.'^ '^ 
 
 b. In proceedings supplementary to execution. — A judgment 
 debtor may be fined the amount of money that he has paid out in 
 disregard of the order, and, in addition, the costs of the supple- 
 mentary proceedings and motion costs.^*"' Upon the refusal of 
 the court to adjudge the judgment debtor guilty of contempt, it 
 may allow him his disbursements and costs of motion to be dis- 
 charged and acquitted of the alleged contempt. '^^ The costs on 
 a reversal of an order directing a commitment for contempt are 
 but $10 and disbursements. '^° 
 
 163. Summary proceedings, a. Statute. — Costs in these pro- 
 ceedings are regulated by § 2250 of the Code of Civil 
 Procedure, which is as follows : ''Costs, when allowed, and 
 the fees of officers, except where a fee is specially given 
 in chapter 21 of this act, must be at the rate allowed by 
 law in an action in a justice's court, and are limited in 
 like manner, unless the application is founded iqDon an 
 allegation of forcible entry or forcible holding out, in which 
 case the judge or justice may award to the successful party 
 a fixed sum as costs, not exceeding $50, in addition to his 
 disbursements. If the final order is made by a county judge, or 
 
 '^People ex rel. New York Soc. for Abb. N. C. 114, 19 N. Y. S. R. 231, 
 
 Prevention of Cruelty to Children v. 2 N. Y. Supp. 763; Boon v. Mc- 
 
 Gilmore, 88 N. Y. G26. Guclcen, 67 Hun, 251, 23 N. Y. Civ. 
 
 '^People ex rel. Woolf v. Jacohs, Proc. Eep. 115, 50 N. Y. S. R. 901, 
 
 66 N. Y. 8. 22 N. Y. Supp. 424. 
 
 '"iJre^ y. Bre/f, 33 Hun, 547 ; Peo- ''^Fitz'simmons v. Ryan, 64 App. 
 
 pie ex rel. Lawyer's Surety Co. v. Div. 404, 72 N. Y. Supp. 65. 
 
 Anthony, 1 App. Div. 132, 40 N. Y. '"'Rhodes v. Linderman, 17 N. Y. 
 
 Supp. 279; Code Civ. Proc. §§ 2284, Sup]). 628. 
 
 2289, 2290. ^^ Jones v. Sherman, 18 Abb. N. C. 
 
 ■"Sitdloto V. Knox, 7 Abb. Pr. X. S. 401, 11 N. Y. Civ. Proc. Rep. 416, 8 
 
 419; Fenlon v. Dcmpsey, 50 Hun, N. Y. S. R. 344. 
 131, 15 N. Y. Civ. Proc. Rep. 393, 22
 
 SPECIAL I'liOCEEDINGS CONTINUED. 219 
 
 a special county judge, or by a mayor or recorder, an execution 
 to collect the costs may be issued thereupon as if it was a judg- 
 ment of a justice of the peace of the same city or county; and 
 for that purpose the officer takes the place of a justice of the 
 peace. In every other case an execution may be issued to collect 
 the costs awarded thereby, as if the final order was a judgment 
 rendered in the court of which the judge or justice is the pre- 
 siding officer." The costs allowed in a justice's court are fixed 
 by § 3076, subd. 2, at the sum of $10.^^ 
 
 b. Tender. — There is no provision in the statute for a tender 
 in tliese proceedings.^^ 
 
 c. Costs on appeal. — A tenant who, upon appeal secures a re- 
 versal of an order recovered in a justice's court in favor of the 
 landlord, is entitled to costs, as of course.^^ Section 2260 of the 
 Code of Civil Procedure provides that an appeal may be taken 
 from a final order with like effect as an appeal from a judgment. 
 Subdivision 4 of § 3066 of the Code of Civil Procedure ffives 
 costs, as of course, upon an appeal from a judgment, where the 
 judgment is reversed. But where the proceeding is instituted 
 in a court of record the costs on appeal are in the discretion of 
 the court, under § 3240 of the Code of Civil Procedure. ^^ 
 
 Upon an appeal from a final order rendered in justice's court 
 in a case of forcible entry and detainer the defendant must pay 
 the judgment recovered by the landlord, in order to take an ap- 
 peal to the county court. This payment is jurisdictional, and 
 not a mere irregularity.^^ 
 
 164. General assignment for the benefit of creditors, a. Allow- 
 unce for legal services. — Allowances for legal services in these 
 
 ^^Lauria v. Capobianco, 39 Misc. 7 N. Y. Civ. Proc. Rep. 112; Garri- 
 
 441, 80 N. Y. Supp. 203. son v. Marie, 7 K Y. Civ. Proc. Rep. 
 
 ^■"Stover V. Chasse, 9 Misc. 45, 59 113, 1 How. Pr. N. S. 348. 
 
 N. Y. S. R. 671, 29 N. Y. Supp. 291. ^'^Lewis v. Hoffman, 5 N. Y. Civ. 
 
 """Harrison v. Sn-art, 34 Hun, 259. Proc. Rep. 141. 
 
 ^Everall v. Lassen, 13 Daly, 10,
 
 220 THE LAW OF COSTS IN NEW YORK. 
 
 proceedings are made to the assignee, and not to tlie attorney.'^ 
 The assignee is personally responsible to his attorney for the 
 value of his ser^'ices. He should pay his attorney and then ask 
 the court to reimburse him, the same as for any other disburse- 
 ment.*^" If the attorney's work is worthless or fraudulent 
 against the estate, no allowance will be made therefor.^^ The 
 assignee who is an attorney cannot be allowed anything for him- 
 self or for the members of his firm for services in protecting the 
 estate.^^ But where the only appealing creditor did not object 
 to the allowance below, the appellate court will not disturb the 
 allowance.^" The sum of $25 was held a proper charge for 
 drawing an assignment.^^ Where the assignee is an attorney, 
 he will not be allowed fees of counsel to advise him, unless spe- 
 cial complications or difficulties require it.^^ But where com- 
 plicated questions arise the assignee may be allowed counsel 
 fees.^^ A general assignee for the benefit of creditors is a trus- 
 tee of an express trust within the meaning of § 3246 of the Code 
 of Civil Procedure.^** 
 
 h. Costs in actions to set aside assignment. — An assigmee for 
 the benefit of creditors is bound to defend an action brought to 
 set aside the assignment, unless he is personally acquainted with 
 the fraud for which the assignment was set aside. In the event 
 of his defeat, his knowledge of the fraud not being proved, he 
 Avill not be charged with costs,^^ but will be allowed counsel fees 
 
 ^■Re ^Yorfhl1/, 10 Daly, 12. Levy, 1 Abb. N. C. 177. Contra, Re 
 
 ^Uie Reynolds, 30 Misc. 397, 62 N. Petchell, 10 Daly, 102; Re Carrick, 
 
 Y. Snpp. 515; Re Ludeke, 22 Misc. 13 Daly, 181. 
 
 fi76, 50 X. Y. Supp. 952. ^-Re ^cotf, 53 How. Pr. 441; Re 
 
 ^'/?e Levenirift, 40 App. Div. 429, Biirhank, 65 How. Pr. 129. 
 
 58 N. Y. Supp. 256. "Vt'e Friend, 23 IMisc. 300, 50 N. Y. 
 
 ^"Re Clute, 14 App. Div. 234, 43 Supp. 954; Levy's Accounting, I 
 
 N. Y. Supp. 573; Winn v. Crosby, 52 Abb. N. C. 182; Re Johnson, 10 Daly, 
 
 How. Pr. 174; Re MaxireU, 66 Hun, 123; Jewett v. Woodward, 1 Edw. 
 
 151, 49 N. Y. S. R. 154, 21 N. Y. Ch. 200. 
 
 Supp. 209. ■ ^'Cnnnitigham v. McGregor, 12 
 
 ^Re Maxirell, 66 Hun, 151, 49 N. How. Pr. 305, 5 Duer. 048. 
 
 Y. S. R.. 154, 21 N. Y. Supp. 209. "^Faxon v. Mason, 76 Hun, 408, 59 
 
 "7?e Yan Horn, 10 Daly, 131; Re N. Y. S. R. 328, 27 N. Y. Supp. 1025;
 
 SPECIAL PROCEEDINGS CONTINUED 221 
 
 and disbursements.^*^ The fact that the assignor confessed 
 judgment to the assignee for a spurious debt, which judgment 
 was made a preferred claim in the assignment, is not such fraud 
 as to charge the assignee with costs, where he repudiated the 
 judgment and informed the creditors that he had no claim.^^ 
 Nor is it fraud for the assignee to allow the assignor to occupy a 
 small portion of the assigned property, so as to charge the as- 
 signee with costs in an action to set aside the assignments^ An 
 assignee who is a party to a fraud for which the assignment is 
 set aside will not be allowed either costs or disbursements, and 
 should be charged with costs and expenses of the accounting.^^ 
 The assignee vnW be allowed his costs and disbursements in his 
 successful defense of an action to set aside the assignment.^ *^^ 
 If the assignee insists upon retaining his costs and disburse- 
 ments in his unsuccessful defense of the assignment, he is prop- 
 erly charged with all the costs necessarily incurred in the settle- 
 ment of that question.^*^^ An assignee who has unsuccessfully 
 defended an assignment to him cannot be granted an allowance 
 against the successful creditor. ^•'•^ But where the creditor con- 
 sents, such an allowance can be made in spite of the objection of 
 the assignor.^*-^^ 
 
 c. Costs on contested claims. — An assignee who defends a 
 claim in good faith will be allowed his disbursements and coun- 
 sel fee,^'^'* even if defeated. ^°^But if the assignor, in good faith, 
 
 Durant v. Pierson, 19 N. Y. Civ. 27 N. Y. Supp. 787; Dexter v. Adler, 
 
 Proc. Rep. 203, 33 X. Y. S. R. 207, 76 Hun, 439, 27 N. Y. Supp. 1121; 
 
 12 N. Y. Supp. 145. Mayer v. Hazard, 49 Hun, 222, 17 
 
 ^Dorney v. Thacher, 76 Hun, 361, X. Y. S. R. 26, 1 N. Y. Supp. 680. 
 58 N. Y. S. R. 466, 27 X. Y. Supp. ^"Waxon v. Mason, 90 Hun, 426, 70 
 
 787. X. Y. S. R. 624, 35 X. Y. Supp. 950. 
 
 "'Wehb V. Daggett, 2 Barb. 9. ^"'Re Talcott, 3 App. Div. 578, 73 
 
 ^Webb V. Daggett, 2 Barb. 9. X. Y. S. R. 809, 38 X. Y. Supp. 338; 
 
 "Smith V. White, 27 N. Y. S. R. Re Barr, 6 Misc. 526, 56 X. Y. S. R. 
 
 227, 7 X. Y. Supp. 373. 742, 27 X. Y. Supp. 416; People ex 
 
 ""/?e Barries, 4 Misc. 136, 53 X. Y. rel. Olin v. Lockicood, 9 Dalv. 68; 
 
 S. R. 119, 23 X. Y. Supp. 600. Re Clute. 14 App. Div. 234, 43 X. Y. 
 
 ^"'Mayer v. Hazard, 49 Hun, 222, Supp. 573. 
 17 X. Y. S. R. 26, 1 X. Y. Supp. 680. ""Re Risley, 10 Daly, 44. 
 
 ^'"Dorney v. Thacher, 76 Hun, 361,
 
 222 THE LAW OF COSTS IN NEW YORK. 
 
 has incliuled the claim in liis scliedule of debts, the assignee 
 would not be justified in contesting it.^*^® In any event the 
 assignee must prove the value of the services of his attomey.^^'^ 
 Upon a reference of a disputed claim the successful party is en- 
 titled to costs,^"^ and an extra allowance in a proper case.^*^** 
 
 An assignee should not be allowed a retaining fee paid to his 
 own regular attorney, as that is supposed to remunerate counsel 
 for being deprived of the opportunity of rendering services t(> 
 the other party.^^" An attorney for the assignee, who purchases 
 claims of creditors at a discount, will only be allowed, upon the 
 accounting, the amount he paid for them, with interest thereon. 
 If he had purchased them for the benefit of the estate, he might 
 be granted an allowance for his services in purchasing tliem.^^^ 
 
 Where the assignee defends a suit unsuccessfully the court 
 upon the final accounting may charge him personally with costs, 
 if it finds that he was guilty of misconduct in conducting the 
 defense. -^^^ An assignee has been granted an allowance in ex- 
 cess of his commissions and taxable costs, when he defends in 
 ofood faith an action brought to recover trust funds that the 
 assignor has deposited in the bank in his own name.^^^ 
 
 d. Costs in actions hrourjltt by assignee. — An assignee for the 
 benefit of creditors must bring his action in his representative 
 capacity, if he would escape personal liability for costs. If he 
 sues without alluding to his representative capacity, he wall be 
 liable personally.^ ^'^ An assignee for the benefit of creditors is 
 not personally liable for costs, where he has no assets in his 
 
 "^7?e Levy, 1 Abb. N. C. 177.' ""A'e Schaller, 10 Daly, 57; Re Van 
 
 ^<"Ke Johnson, 10 Daly, 123: He Horn, 10 Daly, 131. 
 
 Hulhert, 10 Abb. N. C. 284. "'A'e Dwicjht, 61 App. Div. 357, 70 
 
 ^o^Re Atnood, 3 App. Div. 578, 73 X. Y. Supp. 563. 
 
 N. Y. S. R. 809, 38 N. Y. Supp. 338. ^"Re Dorr, 4 N". Y. Supp. 754. 
 
 ^'"Re Foirchild, 10 Daly, 74; Re ''^-Enc/Ush Bank v. Barr, 31 Abb. 
 
 Risley, 10 Daly, 44; Re Schaller, 62 X. C. 7. 
 
 How. Pr. 40; Re Barr, 6 Misc. 526, ^"Murray v. Hendrichson, 1 Bosw. 
 
 56 K Y. S. R. 742, 27 K Y. Supp. 635, 6 Abb. Pr. 96; Carnahan v. 
 
 ;]6. rond, 15 Abb. Pr. 194.
 
 SPECIAL PROCEEDINGS CONTINUED. 223 
 
 hands, but is assured by the assignor that the defendant owes 
 the amount for which the action is brought,-^ ^^ An assignee is 
 personally liable for costs in an action brought by him as such, 
 where the defendant successfully attacks the assignment, which 
 is declared void. There being no trust, he cannot bring his 
 action as trustee. •^^'^ An assignee Avill also be allowed reasonable 
 counsel fees, incurred in protecting the estate.^ ^'^ An assignee 
 must be guilty of mismanagement or bad faith in order to be 
 charged with costs personally.-^ ^^ It is not evidence of bad faitli 
 that the assignee prosecutes an action in spite of the fact that 
 the opposing party claims that the contract is tainted with usury, 
 or the fact that he has paid out all the money he has received to 
 his attorney. That question will come up on the final account- 
 |j-,g_ii9 "\Yiiere the court charges him Avith costs, as assignee, it 
 impliedly determines that he is not liable personally, and that 
 decision cannot be attacked collaterally.^ ^"^ 
 
 e. Costs in an action for an accounting. — In an action against 
 an assignee for an accounting he will be allowed his costs, unless 
 he is guilty of neglect or fraud. Tie would be compelled to 
 come into court for his voluntary accounting.^ ^^ 
 
 A creditor who brings such an action cannot compel other 
 creditors to share in the expense of the suit before they can share 
 in the fund.^^^ An assignee will not be allowed costs where his 
 acts are open to suspicion, although the suspicion is groundless. 
 A creditor is justified in calling an assignee into court where 
 the property is sold in bulk, for an apparently inadequate price 
 and without notice to creditors.^ -^ Proceedings taken by cred- 
 
 ^^^Cunningham v. McGregor, 12 ^^MoeJc v. Rohie, 48 Hun, 181, 15 
 
 How. Pr. 305, 5 Duer, 648. X. Y. S. E. 605. 
 
 ''^Sibcll V. Remsen, 30 Barb. 441, ^""JacJc v. Robie, 48 Hun, 181. 15 
 
 Affirmed in 29 How. Pr. 574. N. Y. S. R. 605. 
 
 ^'Wornei/ v. Thaclier, 76 Hun, 361, ^"^Diiffif v. Duncan, 32 Barb. 587. 
 
 27 N. Y. Supp. 787 ; Faxon v. Mason, Affirmed in 35 X. Y. 187. 
 
 00 Hun, 426, 35 N. Y. Supp. 950; ^-'■Leims v. Hake, 42 Hun, 542. 4 
 
 yories V. Blakeman, 6 N. Y. 579. N. Y. S. R. 676. 
 
 "'Code Civ. Proc. § 3246. ^^Pricc v. Mapes, 28 N. Y. S. R. 88,
 
 224 THE LAW OF COSTS IN NEW YORK. 
 
 itors or otlier interested parties are special proceedings, and 
 § 779 of the Code of Civil Procedure applies. Motion costs 
 may be granted, and if they are not paid, further proceedings 
 will he stayed until they are paid.-^^^ 
 
 /. Costs upon the final accounting. — An allowance for serv- 
 ices rendered by an attorney for the assignee upon the account- 
 ing may be allowed, but none can be made to the attorney of a 
 creditor. ^^^ 
 
 An assignee will not be allowed a counsel fee for preparing 
 schedules, for general advice and consultation.^-*" The assignee 
 is allowed, upon an accounting, the same costs as would be al- 
 lowed upon the trial of an issue of fact.^^"^ But no allowance 
 can be made for cost^ before notice of trial or trial fee, where 
 no objections to the account are tiled. -^^^ jSTo allowance will be 
 made to the assignee when he has been defeated upon all the 
 material issues.^ ^^ These costs sliould be taxed after notice to 
 all parties. ^^"^ 
 
 g. By whom costs of final accounting are paid. — The costs of 
 an accounting are usually borne by the trust fund; but if the 
 assignee desires to be relieved for his own convenience, he must 
 bear tlie expenses. ^"^^ He may also be charged with the expense 
 of an accounting, when he has been guilty of bad faith.^^^ 
 
 7 N. Y. Supp.. 747. Affirmed without ^'Re Itauth, 10 Daly, 52; Re Schal- 
 
 opinion in 132 K y. 552. ler, 62 How. Pr. 40." 
 
 ^-'Re Thorn, 10 Daly, 71; Re Ap- '"^Re Vieu, 29 Misc. 161, 60 N. Y. 
 
 lington, 26 Abb. N. C. 69. 33 N. Y. Supp. 175. 
 
 S. R. 657. 11 N. Y. Supp. 563. ^^'>Re Pool, 8 Misc. 284, 59 N. Y. 
 
 '-'Re Watt, 10 Daly, 11. S. R. 214, 28 N. Y. Supp. 707. 
 
 '-^Re Levy, 1 Abb.N. C. 182; Re ""7?e Bowlhy, 34 Misc. 311, 69 N. 
 
 Wollf, 13 Daly. 481, Affirmed in 102 Y. Supp. 783. 
 
 N. Y. 741; Re Ludeke, 22 Misc. 676, "'Re Edn-ards, 10 Daly, 68; Re 
 
 ^^0 X. Y. Supp. 952; Re Friend, 23 Rautli, 10 Daly, 52; Re Elmore. 10 
 
 Misc. 300, 50 N. Y. Supp. 954; Re Daly, 48. 
 
 Johnson, 10 Dalv, 123; Re Corrick, '^'Hynes v. Campbell, 60 Hun, 391, 
 
 13 Daly, 181; Re Wolf , 1 N. Y. S. R. 39 N. Y. S. R. 874, 15 N. Y. Supp. 
 
 273; Mayer v. Hazard, 49 Hun, 222, 506; Synith v. White, 27 N. Y. S. K. 
 
 17 N. Y.S. R. 26, 1 N. Y. Supp. 680; 227, 7 N. Y. Supp. 373. 
 Re Bowlhy, 34 Misc. 311. 69 N. Y. 
 Supp. 783.
 
 SPECIAL PROCEEDINGS CONTINUED. 225 
 
 Creditors who have succeeded in having an assignee removed 
 cannot be granted an allowance out of the fund.^^^ 
 
 h. How costs against an assignee are coUected. — A general 
 assignee who is liable for costs in his representative capacity 
 may be proceeded against the same as anyone else. An execution 
 may issue, as of course, requiring the sheriff to satisfy it out of 
 the trust proj)erty of the judgment debtor. If this execution is 
 returned unsatisfied the creditor may maintiiin supplementary 
 proceedings thereon ; but the affidavit therein must show the re- 
 turn unsatisfied of an execution requiring satisfaction out of the 
 trust estate. Merely describing the judgment debtor as assignee 
 is not sufficient.-^^^ 
 
 165. Assignee or trustee in bankruptcy. — A tmstee in bank- 
 ruptcy is a trustee of an express trust within the meaning of § 
 3246 of the Code of Civil Procodure.^^^ Under the former 
 bankruptcy law a bankrupt obtained judgment in an action 
 brought by him, and then went into bankruptcy'. His assignee 
 argued the appeal. The case was sent back for a new trial and 
 the assig-nee refused to have anything to do with the case, and so 
 notified the bankrupt. The complaint was dismissed vnth costs. 
 It was held that none of the costs could be collected of the 
 assignee, because at the time of the commencement of the bank- 
 ruptcy proceeding the costs did not constitute a debt, nor were 
 they provable as such; and that the judgment was not affected 
 by the discharge in bankruptcy, but could, after such discharge, 
 be collected from the bankrupt. ^'^^ 
 
 A trustee who brings an action for a conversion which oc- 
 curred after he had taken possession of the estate is liable per- 
 sonally for costs in case he is defeated, because he could have 
 brought the action in his personal capacity.^"'" 
 
 "'/?e Manahan, 10 Daly, 39; Moore '^"Heather v. Neil, 14 N. Y. Week. 
 
 V. Jeyil-ins, 5 Month. L. Bull. 70. Dijj. 46. 
 
 ^^'Felt V. Dorr, 16 N. Y. Week. '"'Bedell v. Barnes, 29 Hun, 589. 
 
 ^i^ •^^•■>- 17 X. Y. Week. Dig. 312. 
 
 ^Reade v. Waterhouse, 52 N. Y. 
 587. 
 
 COSTS 15.
 
 226 THE LAW OF COSTS IN NEW YORK. 
 
 A trustee in bankruptcy is not liable for costs because after 
 the commencement of the action an act of Congress was passed 
 which deprived state courts of their jurisdiction.^^^ 
 
 166. Writ of prohibition. — Costs upon a writ of prohibition 
 are regulated by § 2100 of the Code of Civil Procedure, which 
 is as follows : "Where a final order is made in favor of the re- 
 lator, it must award an absolute writ of prohibition ; and it may 
 also direct that all proceedings or any specified proceeding there- 
 tofore taken in the action, special proceeding, or matter, as to 
 which the prohibition absolute issues, be vacated and annulled. 
 The Avi-it of consultation is abolished. Where a final order is 
 made against the relator, it must authorize tlie court or judge, 
 and the adverse party, to proceed in the action, special proceed- 
 ing, or matter, as if the alternative writ had not been issued. 
 Costs not exceeding $50 and disbursements may be awarded 
 to either party as upon a motion." 
 
 167. How costs on state writs are collected. — Section 2007 of 
 the Code of Civil Procedure is as follows: "For nonpayment,, 
 upon demand, of the costs awarded by a final order made in a 
 special proceeding instituted by state writ, except where a per- 
 emptory writ of mandamus is awarded after the issuing of an 
 alternative mandamus the person required to pay the same may 
 be punished for a contem])t of tlie court awarding them, or of 
 which the judge awarding them is a member, as if the final 
 order was a final judgment of the court." 
 
 168. Removal of excise commissioners, — Where two members 
 of a board of excise were elected as no license commissioners, 
 and refused to grant a license, proceedings were commenced to 
 remove them. A special meeting was called and an attorney 
 was employed, who succ^essfully defended the board. His ser- 
 \-ices were held to be a proper town charge, and a mandamus 
 
 "^Olcott V. Maclean, 11 Hun, 394.
 
 SPECIAT. PROCEEDINGS COXTINUED. 227 
 
 would issue where the hoard refused to audit it on the ground 
 that it was not a town charge.^^^ 
 
 169. Proceedings to mortgage trust property. — A proceed- 
 ing for leave to mortgage trust property, which is opposed and 
 sent to a referee, is a special proceeding, and costs must be al- 
 lowed accordingly. A trial fee is proper where it is sent to a 
 referee, and upon an appeal from the order made tlierein costs 
 must be the same as upon appeal from a judgment. But where 
 no case is made, no charge for making and serving a case can 
 be allowed.^'*" 
 
 170. Special proceedings before an officer. — Where a proceed- 
 ing is instituted before an officer (judge at chambers), and not 
 before a court, costs cannot be allowed for proceedings before 
 the judgo, but costs can be awarded upon appeal. -^^^ 
 
 171. Proceedings to discharge from imprisonment on execution. 
 — Upon such proc4.K^dings only costs after notice ($15) and trial 
 fee ($30), are allowable. The notice of the application is the 
 only notice of trial, and is the institution of the proceeding.^*^ 
 The same costs are taxable upon a proceeding to discharge an 
 insolvent from his dcbts.^^* 
 
 171a. Proceedings to discover the death of a tenant for life. — 
 The costs of this proceeding are regulated by §§ 2309, 2311, and 
 2316 of the Code of Civil Procedure. They are fixed by the 
 court at a gross sum not exceeding $50, in addition to disburse- 
 ments. 
 
 "'7?e Byan, 6 Misc. 478, 56 N. Y. another point in 134 N. Y. 333, 19 
 
 S. R. 794^ 27 N. Y. Supp. 169. L. R. A. 138, 48 N. Y. S. R. 279, 32 
 
 >*"/('e Clarke, 27 Abb. N. C. 144, 15 N. E. 23. 
 
 X. Y. Supp. 867. "=J^e David, 2 Month. L. Bull. 96; 
 
 '''Clarke v. Sheldon, 32 K Y. S. R. Code Civ. Proc. § 2167. 
 
 3G, 10 X. Y. Supp. 36, Reversed on "^ Code Civ. Proc. § 2193.
 
 CHAPTER XVII. 
 
 ACTIONS BY OR AGAINST A PERSON IN A REPRESENTATIVE 
 
 CAPACITY. 
 
 172. Costs in actions by or against a receiver. 
 
 a. In general. 
 
 h. When the costs and expenses of an nnsuccessful action are allowed 
 
 to a receiver. 
 0. Additional allowance. 
 
 d. When the costs are ordered paid out of the fund. 
 
 e. When the costs are ordered paid by the receiver personally. 
 
 f. How it is determined whether the receiver shall pay costs per- 
 
 sonally, or in his representative capacity. 
 
 g. How the payment of costs awarded against a receiver in his repre- 
 
 sentative capacity is enforced. 
 
 173. Costs in actions by or against a trustee. 
 
 a. In general. 
 
 6. Allowances to trustee for attorney's services in litigation. 
 
 c. Allowances upon an accounting. 
 
 ( 1 ) To whom. 
 
 (2) By whom paid. 
 
 174. Costs in actions by or against executors. 
 
 a. In general. 
 
 6. What is mismanagement. 
 
 c. Procedure to charge executor personally with costs. 
 
 d. When costs ai-e allowed against an executor in hLs representative 
 
 capacity. 
 
 e. Costs upon disputed claims. 
 
 f. Costs in equity actions against executors. 
 
 g. Actions brovight against the testator, and continued against the 
 
 executor. 
 h. What costs and disbursements are allowed against an executor. 
 i. How and when a claim must be presented to an executor. 
 j. To whom the claim must be presented. 
 k. Effect of advertising for claims. 
 I. When a claim is reasonably resisted. 
 m. Effect of reduction of amount of claim on the question of unrea- 
 sonable resistance to the claim. 
 n. Refusal to refer. 
 0. Unreasonably resisted. 
 
 228
 
 BY OR AGAINST REPRESEJirTATIVBe. 229 
 
 p. Failure to file consent that the claim may be heard on judicial 
 
 settlement. 
 q. Costs upon a statutory reference. 
 r. Costs upon a statutory reference, where the plaintiff recovers less 
 
 than $50. 
 s. Costs upon appeals. 
 
 172. Costs in actions by or against a receiver, a. In general. — 
 Costs against a receiver are exclusively chargeable upon the fund 
 in his hands, unless the court directs them to be paid personally, 
 for mismanagement or bad faith in the prosecution or defense 
 of the action.-' 
 
 b. When the costs and expenses of an unsuccessful action are 
 allowed to a receiver. — A receiver in supplementary proceed- 
 ings, who has acted in good faith in bringing an action and 
 prosecuting an appeal from an adverse decision in the trial 
 court, may, upon his accounting, be allowed the costs and ex- 
 penses of the prosecution.^ The fact that the receiver appeals 
 from the special to the appellate division from the judgment^ 
 although evidence of perseverance is no evidence of mismanage- 
 ment or bad faith.* 
 
 The court upon an accounting has power to provide for the 
 payment of the fees of the referee who took the testimony and 
 examined the receiver's account.* A receiver, like all other trus- 
 tees, cannot be allowed for his own legal services rendered to 
 himself or to his cotrustee. It was held under the common law 
 that the receiver who was an attorney was entitled to retain the 
 sums taxed in the fee bills. Under that practice the amounts 
 taxed in the fee bills belonged to the attorney. Under our 
 present practice, costs belong to the client.^ 
 
 ^ Code Civ. Proc. § 3246. *Re Merry, 11 App. Div. 597, 42 
 
 ''Re Merry, 11 App. Div. 597, 42 N. Y. Supp. 617. 
 N. Y. Supp. 617. "Re Bank of Niagara, 6 Paige, 213. 
 
 ^Re Merry, 11 App. Div. 597. 42 
 N. Y. Supp. 617; Devendorf v. Diclc- 
 inson, 21 How. Pr. 275.
 
 230 THE i.Aw or costs in new york. 
 
 €. Additional alloivance. — A receiver cannot be panted an 
 additional allowance in excess of the statutoiy limit of $2,000.'' 
 
 d. When the costs are ordered paid out of the fund. — Costs 
 awarded against a receiver are usually ordered paid out of the 
 fund in behalf of which they were incurred J A receiver in sup- 
 plementary proceedings of an annuitant, who is made a party 
 to an action brought by the annuitant to have his annuity de- 
 clared a charge upon real estate, is not entitled to have his costs 
 out of the fund, but must recover them from the annuitant.* 
 
 A receiver who is appointed after the entry of judgment can- 
 not be made to pay out of the funds in his hands the costs award- 
 ed in that judgment against the person whose estate he is ad- 
 ministering, because the receiver was not a party to the record.^ 
 A receiver is an officer of the court, and, as such, is under the 
 control of the court. It is the existence of this relation that 
 gives the court power to order the receiver to pay costs. Where 
 he is appointed by some other authority than that of the state 
 courts, — as under the national banking act, — the court has no 
 power to direct him to pay costs. ^° 
 
 e. When the costs are ordered paid by the receiver personally. 
 — A receiver who brings an action without the leave of the court, 
 and is defeated, is liable personally for costs ;^^ or, where he ob- 
 tains an ex parte order changing an order already made, in an 
 action to wliich he is not a party.-^^ 
 
 The want of funds by a receiver in supplementary proceedings 
 to pay costs of an action brought by him to set aside a deed given 
 by the judgment creditor has been held to be conclusive evidence 
 
 ^Hynes v. McDermott, 14 Daly, ^Arthur v. Dalton, 14 App. Div. 
 
 104, 3 N. Y. S. R. 582. ' lOS, 43 N. Y. Siipp. 583. 
 
 ''Locke V. Covert, 42 Hun, 484, 6 ^Ocean Nat. Bank v. Cavil, 7 Hun, 
 
 N. Y. S. R. 55, 25 N. Y. Week. Dig. 2b7. 
 
 288; People v. John D. Locke Co. 12 '"Ocean Nat. Bank v. Carll, 7 Hun, 
 
 N. Y. Civ. Proc. Rep. 31; Columbia 237. 
 
 Ins. Co. V. Stevens. 37 N. Y. 537, 4 ^'Smithv.Woodniff,G Abb. Pr. 65 : 
 
 Abb. Pr. N. S. 122, 35 How. Pr. 101; Phelps v. Cole, 3 N. Y. Code Rep. 
 
 Shields V. Sullivan, 3 Dem. 296, 16 157. 
 
 Abb. N. C. 194. '"Re Castle, 2 N. Y. S. R. 363.
 
 BY OK AGAINST KEPRESENTATIVES. 231 
 
 of bad faitli, sufficient to charge him personally with costs.^^ It 
 is not bad faith to prosecute a suit against the only responsible 
 debtor, when the receiver has not funds to pay the costs, if he 
 believes, and has good reason to believe, that he is justly en- 
 titled to recover.-'^ But the bringing by a receiver of an action 
 to recover what has already been paid is such mismanagement or 
 bad faith as will charge him personally with costs.^"^ A receiver 
 is justified in defending a suit, when he does so in good faith 
 and upon reasonable grounds. In the event of his failure to es- 
 tablish his defense, he will not be charged personally with 
 costs.^^ But where a receiver in supplementary proceedings 
 thrusts himself into an action tliat would not be a bar to any 
 action that he might bring, after the j^erson under wdiom he 
 claims has sw'om that the claim did not belong to him, the re- 
 ceiver is properly charged personallj'^ with costs of his unsuc- 
 cessful contention, when he has no funds in his hands to pay 
 oosts.^'^ A receiver should not be made to pay costs, where he 
 holds a certificate which he cannot adjudge to be void, and places 
 no hindrance in the way of the plaintiff, who brings an action 
 to have it so adjudged. ^^ He is chargeable personally with costs 
 Avhere he interposes an answer which he does not try to substan- 
 tiate; but then only with the extra costs that he has caused to 
 be incurred, not the cost of the entire action.^^ A receiver will 
 not be charged personally Avith costs where he prosecutes an 
 action in good faith, but which for good reasons, he does not 
 try.2o 
 
 ^^Cnmmings v. Egerton, 9 Bosw. ^^Bank of Indianapolis v. Middle- 
 
 C84. toim Xat. Bank, 1 N. Y. S. R. 772. 
 
 '^*Cunningham v. McGregor, 5 ^^First Nat. Bank v. Washburn, 20 
 
 Duer, 648, 12 How. Pr. 305. App. Div. 518, 47 N. Y. Supp. 117; 
 
 '^^Kimberly v. Goodrich, 22 How. Bank of Plattshurgh v. Piatt, 1 
 
 Pr. 424. Paige, 464; Park v. Peck, 1 Paige, 
 
 ^^People V. Globe Mut. L. Ins. Co. 477. 
 
 65 How. Pr. 239, 11 Abb. N. C. 145. "-"St. John v. Denison, 9 How. Pr. 
 
 "Bourdon v. Martin, 74 Hun, 246, 343; Purdy v. Piirdy. 5 Cow. 14; 
 
 56 N. Y. S. P. 314, 26 N. Y. Supp. Reeder v. Seeli/, 4 Cow. 548; Phoenix 
 
 378. Affirmed in 142 N. Y. 669, 37 v. Hill. 3 .Johns. 249. 
 N. E. 571.
 
 232 THE LAW OF COSTS IN NEW YOEK. 
 
 The court has power to allow a receiver to discontinue au 
 action brought by him, without imposing any costs upon him.^' 
 The court will impose costs personally upon a receiver in an 
 action to restrain him from attempting to use his office, where 
 he obtains an order that the court has no jurisdiction to make, 
 and his actions have been characterized by fraud and deceit.^^ 
 
 /. How it is determined whether the receiver shall pay costs 
 personally, or in his representative capacity. — When an action 
 has been decided adversely to a receiver, he cannot be charged 
 personally with costs without a notice to him that an application 
 will be made to so charge him.^^ Sucli a motion should be made 
 at special term, before the entry of judgment, before either the 
 trial judge or any other judge.^"* 
 
 If, without obtaining such an order, judgment should be en- 
 tered charging the receiver personall}' with costs, he shoidd move 
 at special tenn to strike out that part of the judgment.^^ 
 
 Upon a motion made by a receiver, where all the facts are be- 
 fore the court, the court can charge the receiver personally with 
 costs of the motion.-*^ If all the facts were not before the court 
 upon the decision of the motion, a new motion would be neces- 
 sary to place all the facts before the court.^^ 
 
 g. How the payment of costs awarded against a receiver in his 
 representative capacity is enforced. — Where a receiver continues 
 an action that had been commenced before his appointment, and 
 he is beaten, the successful party is entitled to have his costs 
 paid at once, and is not compelled to wait for the administration 
 of the funds, when he shows to the court, by affidavit, that the 
 receiver has funds in his hands to a much larger amount than 
 
 ^Crosby v. Day, 81 N. Y. 242. 378, Affirmed without opinion in 142 
 
 ^Robi7ison v. Wood, 39 N. Y. S. R. N. Y. 669, 37 N. E. 571, 60 N. Y. 
 
 466, 15 N. Y. Supp. 169. S. R. 870. 
 
 ^^First Nat. Bank v. Washburn, 20 ^First Nat. Banlc v. Waslihurn, 20 
 
 App. Div. 518, 47 N. Y. Supp. 117; App. Div. 518, 47 X. Y. Sxipp. 117. 
 
 Marsh v. Husscy, 4 Bosw. 614. =«A'e Cnstle, 2 N. Y. S. R. 363. 
 
 ^*Bou7don V. Martin, 74 Hun, 246, ^Re Castle, 2 N. Y. S. R. 363. 
 56 N. Y. S. R. 314, 26 N. Y. Supp.
 
 BY OB AGAINST REPKESENTATIVES. 233 
 
 the costs awarded against him.^^ Upon sucli motion the court 
 will not determine that the receiver has paid his attorney too 
 much ; that question will be decided upon the accounting.-^ A 
 motion will lie to set aside an execution issued against a receiver 
 personally upon a judgment for costs entered against him, w^hen 
 the court had not ordered the costs to be paid by the receiver 
 personally, for mismanagement or bad faith.^° 
 
 173. Costs in actions by or against a trustee, a. In general. — A 
 trustee will be charged personally with the costs of an appeal 
 which is taken to relieve himself of costs awarded against him 
 personally in the trial court.^^ A trustee who continues to act 
 after the expiration of his trust may be charged personally with 
 costs.22 J3ut i^e ^ill not be charged with costs in trying to up- 
 hold his trust.^^ 
 
 It is not sufficient, to charge a trustee personally with costs 
 in an action brought by the plaintiff, as sucli, and where a 
 referee so found, that he dropped the designation "as trustee" 
 from the title of his report.-''* If a judg-ment for costs is entered 
 against the plaintiff personally, and execution is issued thereon, 
 the court on motion will correct the judgment and set aside the 
 execution, and it may allow the defendant to make a motion to 
 charge the plaintiff personally with costs.^^ A trustee who 
 brings an action and allows his complaint to be dismissed, with 
 costs, is not liable for costs personally until after an application 
 is made to the court for such an order, and the court finds him 
 guilty of mismanagement or bad faith, and grants the required 
 order.^^ A motion to modify the judgment so that the trustee 
 
 -^Columhia Ins. Co. v. Stevens, 37 ^^O'Brien v. Ganiiss, 25 Hun, 446, 
 
 N. Y. 536, 35 How. Pr. 101, 4 Abb. 13 N. Y. Week. Di<;. 422. 
 
 Pr. N. S. 122. ^*Alger v. Conger, 17 Hun, 45, 8 
 
 ^^Dcvendorf v. Dickinson, 21 How. N. Y. Week. Di,?. 181. 
 
 Pr. 275. ^^ Alger v. Conger^ll Hun, 45. 8 
 
 "Marsh v. Enssey, 4 Bosw. 614. N. Y. Week. Dig. 181. 
 
 ^'Piftman v. Johnson, 35 Hun, 38, ^Slociim v. Barry, 38 N. Y. 46, 4 
 
 15 Abb. N. C. 472. Abb. Pr. N. S. 399. 
 
 "'■-American L. Ins. Co. v. Van 
 Epps, 14 Abb. Pr. N. S. 253, Reversed 
 on other grounds in 56 N. Y. 601.
 
 234 THE LAW OF COSTS IN NEW YOKK:. 
 
 is chargeable with costs personally is not proper. The motion 
 should be to charge the trustee personally.^' Where a complaint 
 is dismissed in the court of appeals, with costs in all the courts, 
 the special term cannot award costs against the plaintiff person- 
 ally, because that would be changing the decision of the court 
 of appeals. If the defendant thinks that the court of appeals 
 intended that the costs should be paid by the plaintiff personally, 
 he should move to have the remittitur amended in that respect.^^ 
 The successor of a trustee who has been ordered to pay costs per- 
 sonally cannot be made liable therefor personally.^^ Where a 
 trustee purchases a farm to protect the estate, holding a portion 
 of the farm personally and a portion as trustee, and brings an ac- 
 tion for intitructions, and is directed to sell the farm and deduct 
 the expenses of the action from the proceeds of the sale, he must 
 deduct the costs from the gross amount of the sale, and not from 
 the share going to the estate.'^*^ In an action against a trustee, in 
 which the plaintiff won, and a reference was ordered to ascertain 
 whether the defendant should be charged personally with costs, 
 the defendant has no right to pay his counsel with money ad- 
 judged to belong to the plaintiff.^^ A tiiistee will be required to 
 pay costs, where he refuses to turn over the property so held 
 by him, until after an accounting in court, when he had no right 
 to impose such a condition.^^ In an action to compel a former 
 trustee to turn over the trust fund to the substituted trustee, 
 only taxable costs can be allowed against the former trustee. The 
 court in that action cannot make an allowance to the attorney 
 for the substituted trustee for services rendered to the latter, 
 payable out of the fund. Such an allowance must be obtained in 
 a proceeding directly instituted for that purpose.'*^ 
 
 "EiiHer v. Boston d A. R. Co. 24 ^Hlomez v. Gomez, 49 N. Y. S. R. 
 
 Hun, 99, 10 N. Y. Week. Dig. 11. 646, 20 N. Y. Supp. 901. 
 
 "^Hughes V. Cuming, 63 App. Div. *-Farnngton v. Farmers' Loan & 
 
 363, 71 N. Y. Supp. 599. T. Co. 50 N. Y. S. R. 264, 21 N. Y. 
 
 '^"American Life Ins. & T. Co. v. Supp. 194. 
 
 Ton Eps, 56 N. Y. 601. "^Walton v. Collins, 38 App. Div. 
 
 '"McKee v. Weeden, 1 App. Div. 439. 57 N. Y. Supp. 244. 
 :,83, 73 N. Y. S. K. 188, 37 N. Y. 
 Supp. 465.
 
 BY OR AGAINST EEPRESEif TATIVES. 235 
 
 A trustee who has been uniformlj beaten in similar actions 
 is properly charged personally with the costs of an appeal to the 
 court of appeals."** 
 
 A trustee cannot defeat the plaintiff's right to costs by doing, 
 after the commencement of the action, the very thing to compel 
 which the action was brought.^^ Where a trustee refuses to ad- 
 just accounts, and compels the opposite party to bring an action 
 to settle them, the trustee is properly chargeable with the costs 
 of tlie action."*^ 
 
 b. Allowances to trustee for attorney's services in litigation. — 
 A trustee or a receiver who has incurred expense in litigations 
 brought to protect the trust fund is entitled to be reimbursed 
 for his expenses,'*' but he should show in detail the nature of 
 the services.*^ Where a trustee employs an attorney to foreclose 
 several mortgages, and the attorney receives only taxable costs, 
 either from the purchasers or the estate, the trustee cannot be 
 compelled to return to the estate any amounts that the attorney 
 has paid him out of his costs.''^ 
 
 c. Allowances upon an accounting. (1) To whom. — l^o al- 
 lowance for counsel fees can be made upon an accounting, except 
 to the trustee.^^ 
 
 A trustee who does not keep accurate books of accounts is not 
 entitled to costs in an action brought to compel him to account.^^ 
 A trustee who has his accounts surcharged to the extent of 
 $1,000 should not be allowed costs. ^^ 
 
 ^o allowance upon an accounting will be made to a trustee 
 who resigns for his own benefit, — e. g., on account of ill health. ^^ 
 
 **Smith V. Central Trust Co. 154 ''Re Xew York Mut. Ins. Co. 17 
 
 N. Y. 333, 48 N. E. 553. App. Div. 633, 45 X. Y. Supp. 263. 
 
 *^Wilcox V. Qiiimhy, 47 N. Y. S. R. '^Clute v. Gould, 28 Hun, 348. 
 
 423. 20 N. Y. Supp. 5. '■"Savage v. Sherman, 87 X. Y. 277. 
 
 *^Blumenthal v. Einstein, 81 Hun. °^WMte v. Ranlcin, 18 App. Div. 
 
 415. 63 N. Y. S. R. 264, .30 N. Y. 293, 46 N. Y. Supp. 228. 
 
 Supp. 1126, Affirmed on this opinion '""Gomez v. Gomez, 33 App. Div. 
 
 in 140 X. Y. 399, 42 X. E. 542. 379, 54 X. Y. Supp. 237. 
 
 "^Vooflruff V. Neiv York, L. E. d ^'/?e Allen, 29 Hun. 7. 
 W. /.'. Co. 129 X. Y. 27, 29 X. E. 251, 
 41 X. Y. S. R. 193.
 
 236 THE LAW OF COSTS IN NEW YOBK. 
 
 (2) By wliom paid. — The allowances to the trustee are usu- 
 ally allowed out of the entire estate, but where an action is 
 brought to compel a trustee to account, by only one of the per- 
 sons beneficially interested in the estate, the expense of the ac- 
 coimting should be borne by the share of the plaintiff.^* 
 
 174. Costs in actions by or against executors, a. In general. — 
 The provisions of §§ 1835 and 1836 of the Code of Civil Pro- 
 cedure apply only to actions arising out of the claims of cred- 
 itors, and matters which constituted a charge against the estate 
 at the time of the death of the deceased. They have no refer- 
 ence to a claim brought into being by the personal act of the 
 representative, or a claim or demand arising solely out of mat- 
 ters independent of the estate of the deceased. In the latter case 
 costs are governed by the provisions of § 3246 of the Code of 
 Civil Procedure.^^ An executor who is a defendant is not en- 
 titled to costs because they are denied to the plaintiff, where the- 
 plaintiff recovers judgment, and, if the action had been against 
 the executor personally, the plaintiff would have been entitled to 
 costs as a matter of right, but costs are denied him on account 
 of the provisions of § 1835 or § 1836 of the Code of Civil Pro- 
 cedure.^^ An executor is liable personally for all legal services 
 rendered him in the administration of his trust. In a proper 
 case he will be allowed for such disbursements upon the final 
 accounting. A suit to recover for such service must be brought 
 against him personally, and if judgment is rendered against him 
 therefor, costs will be taxed against him personally, as in any 
 other action.^'^ An executor who is also a trustee, and is directed 
 by the will to do certain things, must be sued in his representa- 
 tive capacity on a contract thus made. Tlie provisions of the 
 
 ^Gomez v. Gomez, 33 App. Div. ^HopJcins v. Lott, 111 N. Y. 577^ 
 
 379, 54 N. Y. Siipp. 237. 19 N. E. 273. 
 
 ''Dunn V. Arkenburgh, 48 App. "Stniih v. Patten, 9 Abb. Pr. X. S. 
 
 Div. 518. 62 N. Y. Supp. 861. 205. (See note.)
 
 BY OK AGAINST KEPUESENTATIVES. 237 
 
 Oode of Civil Procedure as to costs in actions against the execu- 
 tors have no application to such a case.°^ 
 
 He must bring all suits in tort or on contract in his repre- 
 sentative capa(;itv, where the cause of action arose in the life- 
 time of tlie testator. In these cases, if he is unsuccessful he will 
 not he compelled to paj costs, unless he is guilty of mismanage- 
 ment or bad faith.^^ But if the cause of action arose after the 
 death of his testator, he mav bring the action personally, and, 
 if unsuccessful, will be compelled to pay costs. Though he may 
 bring such an action in his representative capacity, he is not 
 compelled to do so, and he will be liable for costs whether he 
 brings tlie action personally or in his representative capacity.^® 
 Under the Kevised Statutes and under the Code of Procedure 
 the exemption from costs applied only to actions brought against 
 an executor or administrator, and not to actions brought by 
 him.*^^ This distinction does not exist under the present Code. 
 In an action for conversion or injury to property, which hap- 
 pens after the death of the testator, although before letters are 
 issued, the executor is liable for costs in case of his defeat.®^ 
 An executor is personally liable for costs in an action founded 
 upon a contract made after the death of his testator. ^^ Upon 
 his accounting he should be allowed the costs of an action brought 
 
 ^O'Brien v. Jnckson, 42 App. Div. G25; Acldey v. Acldey, 50 N. Y. S. R. 
 
 17L 58 N. Y. Supp. 1044. 554, 21 N. Y. Supp. 877; Lyon v. 
 
 ^^Buchland v. Gallup, 105 N. Y. Marshall, 11 Barb. 248; Eetchum v. 
 
 453, 11 N. E. 843; Burhans v. Blan- Eetchum, 4 Cow. 87; People ex ret. 
 
 chard, 1 Denio, 626. Bailey v. Albany Mayor's Court 
 
 ""Buclland v. Gallup, 105 N. Y. Judges, 9 Wend. 486; Buckland v. 
 
 453. 11 N. E. 843; Burhans v. Blan- Gallup, 105 N. Y. 453, 11 N. E. 843; 
 
 chard, 1 Dpnio. 626; Valentine v. Fox v. Fox, 5 Ilun, 53; Eoldridge v. 
 
 "Joclcson, 9 Wend. 3o2 ; Merritt v. Sea- Scott, 1 Lans. 303 ; Feig v. Wray, 64 
 
 man, 6 N. Y. 168; Patterson v. Pat- How. Pr. 391, 2 N. Y. Civ. Proc. Rep. 
 
 tersnn, 59 N. Y. 574, 17 Am. Rep. (McCaity) 386, 3 N. Y. Civ. Proc. 
 
 384; Lyon v. Marshall, 11 Barb. 241. Rep. 159. 
 
 ''Fox V. Fox, 22 How. Pr. 453. "^Bostwick v. Brown, 15 Hun, 308; 
 
 '^Burhans v. Blanchard, 1 Denio, Buckland v. Gallup, 105 N. Y. 453, 
 
 626; Mullen v. Gui7ui, 88 Hun. 128, 11 N. E. 843; Grout v. Carver, 15 
 
 ^8 N. Y. S. R. 680, 34 N. Y. Supp. Hun, 361.
 
 238 THE LAW OK COSTS IN A'EW YORK. 
 
 lig-ainst iiim personally, upon a contract made by liim as execu- 
 tor, that lie paid, and ;i reasonable coiupensation to his attor- 
 ney, if he defended the action in good faith. '^^ When an execu- 
 tor recovers costs, he must charge himself with receiving that 
 much money, and may credit himself with what his attorney's 
 services are worth. ^^ 
 
 In all cases where the executor may bring the action in his 
 personal capacity the opposing party, if successful, is entitled 
 to costs against the executor personally, as a matter of right, and 
 he may tax them v/ithout making an application to the court.^^' 
 
 An executor will not be charged with costs on the ground that 
 the action is personal, when he was compelled to bring it in his 
 representative capacity. In such a case, if his action is ground- 
 less, he may be compelled to pay costs for mismanagement or 
 bad faith.*'' 
 
 b. What is mismanagement. — The executors will be com- 
 pelled to pay costs in an action brought to compel them to make 
 good the loss occasioned to the estate on account of their un- 
 authorized investments,®^ or any other misappropriation.®* 
 Where a jndgment with costs is not obtained against an executor 
 for such misappropriation until after his death, the plaintiff 
 must share \vith the other creditors upon the distribution of the 
 proceeds of the sale of the deceased executor's real estate as to 
 the amount of the reco"\'erv, but he cannot have the costs of the 
 action paid pro rata out of the proceeds.'*^ Where a complaint 
 is dismissed with costs, and an extra allowance granted to the 
 
 **Gront V. Carver, 15 Hun. 3G1. S!mith v. Patten, 9 Abb. Pr. X. S. 
 
 ^Brofllci/'s Estate, 17 X. V. S. R. 205 (see note) : Mullen v. Giiinn, 88 
 
 836. 1 roniioly, 106. 2 N. Y. Siipp. Hun. 128, 68 N. Y. S. R. 680, 34 
 
 751. ' X. Y. Supp. 625. 
 
 ^Feifj V. Wrap, 64 How. Pr. 391. ""Spencer v. f<froit. 40 Hun, 463, 
 
 2 X. Y. Civ. Proc. Rep. (McCarty) 23 X. Y. Week. Di.^. 458. 
 
 386. 3 X. Y. Civ. Proc. Rep. 159; ^AcJcennan v. Emott, 4 Barb. 62fi. 
 
 Bostwick V. Brown, 15 Hun. 308; "^Re Fox. 92 X. Y. 93; Ray v. Van 
 
 Holdridge v. Scott, 1 Lans. 303; Hook, 9 How. Pr. 427. 
 
 Lyon V. Marshall, 11 Barb. 241; "i?e Foa?, 92 X. Y. 93.
 
 BY OE AGAINST EEPRESEI^TATIVES. 239 
 
 defendant, and the plaintiff dies before the entry of judgment, 
 the plaintiff's executor has a right to be substituted in the action^ 
 if for no other reason than that he may have a right to review 
 by an appeal the extra allowance."^ 
 
 Costs are properly chargeable against the executors in an 
 action to compel them to account, or where they seek to retain 
 the trust property as their o^vn.'^^ 
 
 An executor will be charged with mismanagement, where he 
 conducts an action in his representative capacity, to obtain a 
 personal benefit, and is defeated in the action. ''^^ 
 
 It is not mismanagement or bad faith to seek to recover prop- 
 erty from the defendant, Avhich he claims he received from the 
 testator as a gift, shortly before his death."^^ 
 
 c. Procedure to charge executor personally with costs. — To 
 charge an executor personally with costs, application should be 
 made to the court upon notice of motion."*^ Where such a motion 
 is made at a term of the court not held by the same judge be- 
 fore whom the action was tried, the certificate of the trial judge 
 must be presented, showing the facts bearing on the question of 
 costs.'^^ The appellate court has no power to pass upon that 
 question, when it was not raised below.'^ Where the special 
 term refuses to charge an executor personally with costs, and 
 such order is affirmed by the general term, the opposing party 
 lias no power to enter judgment charging the costs against the 
 executor personally. If the special term acted upon an imper- 
 
 '^Armstrong v. Union College, 55 ing Co. 18 Misc. 434, 41 N. Y. Supp. 
 
 App. Div. 302, 8 N. Y. Anno. Cas. 788: Woodruff v. Cook, 14 How. Pr. 
 
 332, 66 N. Y. Supp. 942. 481. 
 
 ""-Peliz V. Schultes, 48 N. Y. S. R. '"ParJchill v. EUhnan, 12 How. Pr. 
 
 2, 20 N. Y. Supp. 336. 353. 
 
 ''Gross V. Moore, 14 App. Div. 353, '^S^nith v. A. D. Farmer Type 
 
 43 N. Y. Supp. 945. Founding Co. 18 Misc. 434, 41 N. Y. 
 
 "^McGovern v. McGovern, 18 Jones Supp. 788; Jack v. Robie, 48 Hun. 
 
 & S. 390. 181-185. 
 
 '^Slocum V. Barr^j, 38 N. Y. 46; 
 Smith V. A. D. Farmer Type Found-
 
 240 THE lAW OF COSTS IN NEW YORK. 
 
 feet state of facts, the remedy would be to ask it to grant, in its 
 discretion, a reargiiment upon the facts stated fully. '^^ The 
 question whether an executor is chargeable personally with costs 
 cannot be attacked collaterally. Where the appellate court has 
 directed judgment, with costs, against the executor in his repre- 
 sentative capacity, that impliedly determines that he is not liable 
 personally. After such determination the court at special term 
 has no power to again consider the question of charging him 
 personally.^*^ But the question whether he should be charged 
 personally with costs of an imsuccessful appeal should be de- 
 cided at special term in the court of original jurisdiction.^^ The 
 fact that the executor would be beneficially benefited by a re- 
 covery is no reason for charging him with costs. This can only 
 be done by charging him "^vith mismanagement or bad faith, as 
 provided by statute. ^^ 
 
 d. Whe7i costs are allowed against an executor in his repre- 
 sentative capacity. — An executor who brings an unsuccessful 
 action must pa^'^ costs the same as if he had brought the action 
 in his own right.^^ In such a case the judgment should be en- 
 tered against the plaintiff "as executor, etc." The judgment 
 should not add the words "exclusively chargeable and collectiable 
 from the estate or funds of said deceased," as the words import 
 that the court has passed upon the question as to the personal 
 liability of the plaintiff. The addition of these words add noth- 
 ing to the legal consequences of the award, and are therefore 
 unnecessary.^^ Sections 1835 and 1836 of tJie Code of Civil 
 
 ''^ Place V. Hat/ward, 19 Jones & S. ^^CoJiu v. Husson, 24 Jones & S. 
 
 509, Affiimed in 100 N. Y. 626, 3 489, 5 N. Y. Supp. 7; Lindslay v. 
 
 N. E. 199. Deafendorf, 43 How. Pr. 90; Re Dar- 
 
 ^"Horie V. De Feyster, 106 K Y. ling, 39 N. Y. S. R. 43, 14 N. Y. 
 
 045. 13 N. E. 778. Supp. 445. 
 
 ^'^riarringf.071 v. l^trovg, 49 App. ^*Weelcs v. Garrei/, 24 Jones & S. 
 
 Div. 39, 63 N. Y. Supp. 257. 562, 4 K Y. Supp. 891 
 
 ^-Ilone V. De Peyster, 106 N. Y. 
 645, 13 N. E. 778; Finley v. Jones, 
 6 Barb. 229.
 
 BY OK AGAINST EEPRESENTATIVES. 241 
 
 Procedure refer only to actions brought against the executor, 
 and exempt him under certain circumstances, from costs up to 
 the judgment, but have no reference to costs upon appeal. If an 
 executor appeals from a judgment taken against him, and ap- 
 peals in vain, costs of such appeal may be awarded against him. 
 notwithstanding the exemption accorded him in the first in- 
 stance.^^ But the executor is entitled to one lawful trial with- 
 out being subjected to costs. This means the last trial. Up to 
 the final judgment, no costs can be allowed, either for trials or 
 successful appeals taken by him. But he is liable for unsuccess- 
 ful appeals from a judgment against him.^^ Costs may be taxed 
 in such cases against the executor in his representative capacity, 
 by the clerk, and no application to the court is necessary.^''^ In 
 the absence of a special order charging him vdth mismanagement 
 or bad faith, the costs are collectable from the estate.^^ An exec- 
 utor mil be presumed to have the funds of the estate in his 
 hands until he has made an accounting. The fact that he al- 
 leges that he has no money in his hands with which to obey an 
 order requiring him to pay costs is not an answer to a motion to 
 punish him for contempt.^^ He will not be charged personally 
 with costs, where he is defeated by the acts of the defendant 
 subsequent to the commencement of the action. A plaintiff was 
 not charged with costs where both himself and defendant were 
 named as executors, and the defendant refused to qualify as 
 such executor, but, after the commencement of the action, did 
 qualify, and thus defeated the action.^*^ 
 
 ^^Benjamin v. Ver Nooy, 36 App. ruff v. Cook, 14 How. Pr. 4S1 : Cur- 
 
 Div. 581, 29 N. Y. Civ. Proc. Rep. tis v. Dutton, 4 Sandf. 719. 
 
 120, 55 N. Y. Supp. 796; E%int v. ^'Lindslay v. Deafendorf, 43 How. 
 
 Connor, 14 Abb. Pr. 466; Judah v. Pr. 90; Dodge v. Crandall. 30 N. Y. 
 
 Stagrj, 22 Wend. 641. 294; Slociim v. Barry, 38 X. Y. 46; 
 
 ^^Benjamin v. Ver Nooy, 168 N. Y. Fish v. Crane, 9 Abb. Pr. N. S. 252; 
 
 578, 61 N. E. 971. Hoice v. Lloyd, 9 Abb. Pr. N. S. 257, 
 
 "Co/)M V. Eusson, 24 Jones & S. 2 Lans. 335. 
 
 489, 5 N'. Y. Supp. 7; Lindslay v. ^"Gillies v. Krexider, 1 Dem. 349. 
 
 Deafendorf, 43 How. Pr. 90; Wood- "^Dean v. Roscboom, 37 Hun, 310. 
 COSTS 16.
 
 242 THE LAW OF COSTS IN NEW YOlMv. 
 
 \yherc an administrator brings an action for damages for the 
 killing of his intestate, and he is defeated, with costs, the surro- 
 gate will not grant permission to the defendant to issue an exe- 
 cution for the collection of such costs.^^ 
 
 e. Costs 1111071 disputed claims. — Previous to the amendment 
 of 1893 of § 2718 of the Code of Civil Procedure, the referee 
 upon a disputed claim had no power over the question of costs, 
 because this was a special proceeding, and not an action, and the 
 I'eport of the referee had to be confirmed before entering judg- 
 ment thereon.^^ By that amendment the referee was given power 
 to award costs, subject to §§ 1835 and 1836 of the Code of Civil 
 Procedure.''^ 
 
 The facts upon which costs are granted or refused depend 
 upon circumstances outside of the litigation, and not within its 
 issues. The certificate of the judge or referee is a necessary 
 basis of the award, and ^\uthout it the facts cannot wholly ap- 
 pear. The evidence on the trial, and its results, may be taken 
 into account, but cannot serve wuthout the prescribed certifi- 
 cate.^'* The judge or referee must certify that the creditor pre- 
 sented his claim to the executors within the time required by 
 law, and that the claim was unreasonably resisted or neglected, 
 or that the executor did not file the consent required by § 1822 
 of the Code of Civil Procedure.'-'^ 
 
 A report that fetates that the plaintiff is entitled to judgment 
 "with the usual costs and disbursements" is not such a certifi- 
 
 "i?e McCiiUough, 18 Misc. 721. 43 83 Hun, 403. 64 N. Y. S. R. 667, 31 
 
 N. Y. Supp. 968. X. Y. Supp. 87S. 
 
 "■McBride v. Chamherlain, 56 N. ^Malson v. Abbey, 141 N. Y. 179, 
 
 Y. S. R. 431, 26 N. Y. Supp. 91; Roe ."56 N. Y. S. R. 690, 36 N. E. 11; 
 
 V. Boyle, 81 N. Y. 305; Eldred v. Wroy v. HalUday, 3 Month. L. Bull. 
 
 Emnes, 115 N. Y. 403, 22 N. E. 216, 98. 
 
 26 N. Y. S. R. 277; Mersereau v. ""^ Code Civ. Proc. § 1836; King v. 
 
 Ryerss, 12 How. Pr. 300; Smith v. Todd, 27 Abb. N. C. 149, 21 N. Y. 
 
 Randall, 67 Barb. 377: Ely v. Tay- Civ. Proc. Rep. 114, 15 N. Y. Supp. 
 
 lor, 42 Hun, 205. 156. 
 
 »»Yi7c.s V. Crocker, 88 Hun, 313, 34 
 N. Y. Supp. 761 ; Henning v. Miller,
 
 BY OR AGAINST REPEESENTATIVES. 243 
 
 cate as the law requires, and the plaintiff is not entitled to 
 costs.^^ But he is entitled to his disbursements.^'^ 
 
 Where a party thinks tJiat he is entitled to costs against execu- 
 tors, he must make his application therefor,^^ setting up the facts 
 not embraced within the issue, upon which, together with evi- 
 dence upon the trial and result of the trial, the question of costs 
 depends. The defendant must be heard upon the application 
 whenever it is made.^^ It is an irregularity to enter costs with- 
 out the certificate required by laAv.^"" If the question again 
 comes before the special term upon a motion to strike out the 
 costs thus impro])erly taxed, the court can then grant the certifi- 
 cate and allow the costs to be taxed.^*^^ The irregularity will be 
 deemed waived, if notice of taxation of costs is served and the 
 defendant does not appear. -^"^ When costs are taxed without an 
 application therefor, and the defendant moves to strike out the 
 costs thus irregularly taxed, he should show that the plaintiff 
 is not entitled to costs. If the special term refuses to strike out 
 such costs, and the defendant appeals from the judgment and 
 order refusing to strike out the costs, he will be charged person- 
 ally with tlie costs of the appeal, where the judgment and order 
 are affirmed.^*^^ But where an appeal is taken from the judg- 
 ment as entered, and the special term has not had the matter 
 
 '^Lonvshury v. Sherwood, 53 App. ^'^Hees v. Nellis, 65 Barb. 440, 1 
 
 Div. 318, 65 N. Y. Supp. 676. Thomp. & C. 118; Howe v. JJoyd, 2 
 
 ^''Lounshiiry v. Shencood, 53 App. Lans. 335, 9 Abb. Pr. N. S. 257; 
 
 Div. 318, 65 N. Y. Supp. 676; Niles Cotes v. Smith, 29 How. Pr. 331; 
 
 V. Crocker, 88 Hun, 312, 34 N. Y. New York v. Lyons, 1 Daly, 300; 
 
 Supp. 761 ; Halloch v. Bacon, 64 Clumpha v. Whiting, 10 Abb. Pr. 
 
 Hun. 90, 19 N. Y. Supp. 91. 448; Kellogg v. Baker, 15 Abb. Pr. 
 
 ^'Morgan y. Skidmore, 3 Ahh. 'i^. C. 288; D'lvernois v. Leavitt, 8 Abb. 
 
 92. Affirmed in effect in 55 Barb. Pr. 60: Vail v. Remsen, 7 Paige, 
 
 263: Hall v. Brennan, 64 Hun, 394, 206; Brady v. Donelly, 1 N. Y. 126; 
 
 46 X. Y. S. R. 777. 19 N. Y. Supp. Effray v. Mason, 22 N. Y. Civ. Proe. 
 
 623; 3 Wait, Pr. 535; Bailey, Trial Rep. 59, 42 N. Y. S. R. 657, 18 N. Y. 
 
 Practice, 384, 385. Supp. 350. 
 
 ^'Burroirs v. Butler. 22 N. Y. ^'"Snyder v. Yovng, 4 How. Pr. 217. 
 
 Week. Dig. 489. "Wees v. Nellis, 65 Barb. 440, 1 
 
 ""Darde v. Conklin. 73 App. Div. Thomp. & C. 118. 
 590, 77 N. Y. Supp. 39.
 
 244 THE LAW OF COSTS IN NEW YORK. 
 
 before it again, the appellate court will strike out the costs thus 
 improperly entered.^ *^^ 
 
 The discretion of the trial judge in awarding costs will not 
 be disturbed upon appeal, unless it is quite clear that it was 
 erroneously exercised.-^®* 
 
 /. Costs in equity actions against executors. — In an action in 
 equity against an executor which is tried before a referee, costs 
 are in the discretion of the referee, and, if allowed at all, he 
 must allow them.^"® After such allowance the party feeling ag- 
 grieved thereby should except to the findings of the referee, 
 and appeal from the judgment entered thereon.^^"^ The court at 
 special term has no power to review such discretion when the 
 matter is presented to it upon motion.^ °^ 
 
 g. Actions brought against the testator, and continued against 
 the executor. — Sections 1835 and 1836 of the Code of Civil Pro- 
 cedure do not apply to actions at law commenced against the 
 intestate in his lifetime, and which, after his death, are contin- 
 ued by order against his executor. If the plaintiff recovers, he 
 is entitled to costs as a matter of right.^°^ One case that held 
 otherwise was expressly overruled. -^-^^ 
 
 h. Wlirit costs and dishursements are allowed against an exec- 
 utor. — In an action against an executor, where the plaintiff is 
 allowed costs, this, of course, includes all necessary disburso- 
 
 ^"^Matson v. Abbey, 141 N. Y. 179, Y. S. R. 431, 26 N. Y. Siipp. 91: 
 
 56 N. Y. S. R. 690, 36 N. E. 11. Woodford v. BucJdiv. 14 Hun, 444; 
 
 "^"^ Mercantile Safe Deposit Co. v. Rosa v. Jenkins, 31 Hun, 384. 
 
 Dimou, 5.5 App. Div. 538, 67 N. Y. ^'^McBride v. Chamberlain, 56 N. 
 
 Supp. 430. Y. S. R. 431, 26 N. Y. Supp. 91. 
 
 ^°« Code Civ. Proc. § 1022; McBride ^"^Alerrift v. Thompson, 27 K Y. 
 
 V. Chamberlain, 56 N. Y. S. R. 431, 225; Lemen v. Wood, 16 How. Pr. 
 
 26 N. Y. Supp. 91; Barker v. White, 285; Mitchell v. Mount, 17 Abb. Pr. 
 
 3 Keyes, 617; Van Riper v. Poppen- 213; Benedict v. Caffe, 3 Duer, 6(1!). 
 
 haus'en, 43 N. Y. 68; Herrington v. 12 N". Y. Legal Obs. 262; Tindal v. 
 
 Robertson, 71 N. Y. 280; Mersereau Jones, 11 Abb. Pr. 258, 19 How. Pr. 
 
 V. Ryerss, 12 How. Pr. 300; Binds v. 469. 
 
 Myers, 4 How. Pr. 356, 3 N. Y. Code ^^"Merritt v. Thompson, 27 N. Y. 
 
 Rep. 48. 225; McCann v. Bradley, 15 How. 
 
 ^"''McBride v. Chamberlain, 56 N. Pr. 79.
 
 BY OK AGAIjSST kepresbntatives. 245 
 
 ments. It was a mooted question for some time whether a plain- 
 tiif who lecoverod in such an action and was refused costs was 
 entitled to his disbursements. It is now settled that in such a 
 case tlie j^laintiif is entitled to his disbursements ; that under § 
 817 of the Code of Procedure, they were allowed, and this 
 provision was not repealed by the act of 1880.^^^ The cases that 
 held tlie contrary have been expressly disapproved.^ ^^ The 
 plaintiff may also be allowed an additional allowance in a proper 
 case.^^^ 
 
 i. How and when a claim must he presented to an executor. 
 — A claim upon which an action at law is brought must be pre- 
 sented to the executor after his appointment, and must be re- 
 jected by him, to entitle the plaintiff, when successful, to recover 
 costs.-' ^^ Where a claim has not been presented within the time 
 limited by the notice to present claims, the plaintiff, in case of 
 a successful action thereon, is not entitled to either the costs or 
 disbursements of the action, although it is stipulated upon the 
 reference thereon "that tlie costs of the reference are to be taxed 
 as the costs of the case.'' The "costs of the reference" in such a 
 stipulation mean the ordinary expenses incident to a reference^ 
 namely, disbursements, referee's fees, witness fees, and other 
 
 '^'Larkins v. Maxon, 103 N. Y. 680, '"Larkins v. Maxon, 103 N. Y. 680, 
 
 9 N. E. 56, 1 Silv. Ct. App. 215, 11 1 Silv. Ct. App. 215, 11 N. Y. Civ. 
 
 N. Y. Civ. Proc. Rep. 298. 25 N. Y. Proc. Pop. 298, 25 N. Y. Week. Dig. 
 
 Week. Dig. 39, 3 N. Y. S. R. 642 ; ?,(). 3 N. Y. S. R. 642, 9 K E. 56. 
 Lounshuri/ v. Sherwood, 53 App. Div. ^^'-Fort v. Gooding, 9 Barb. 388; 
 
 318, 65 N. Y. Supp. 676; Hatch v. Nihlo \. Binsse, 47 Barb. 435, 32 
 
 -S:<e«;arf, 42 Hun, 164, 25 N. Y. Week. How. Pr. 92; Davis v. Myers, 86 
 
 Dig. 371, 5 N. Y. S. R. 180; Niles v. Hmi, 236. 67 N. Y. S. R. 37, 33 N. Y. 
 
 CVor/v-er, 88 Hun, 312, 34 N. Y. Supp. Supp. .352; Johnson v. Myers, 103 
 
 761; Hallodc v. Bacon, 64 Hun, 90, N. Y. 666, 9 N. E. 55. 
 19 N. Y. Supp. 91 ; Krill v. Broionell, "*Niles v. Crocker, 88 Hun, 312, 68 
 
 40 Hun, 72; Button v. 'Newton, 15 N. Y. S. R. 579, 34 N. Y. Supp. 761: 
 
 Abb. N. C. 452, 2 How. Pr. N. S. 56, Beecher v. Duel, 14 N. Y. Week. Dig. 
 
 7 N. Y. Civ. Proc. Rep. 333; Hall v. 109; Chesebro v. Hicks, 66 How. Pr. 
 
 Edmunds, 67 How. Pr. 202; Over- 194; Keyser v. Kelly, 11 Jones & S. 
 
 heiser v. Morehouse, 16 Abb. N. C. 22; Mundorff v. Wangler, 57 How. 
 
 208, 2 How. Pr. N. S. 257, 8 N. Y. Pr. 372, 12 Jones & S. 495. 
 Civ. Proc. Rep. 11.
 
 246 THE LAW OF COSTS IN NEW YOKIC. 
 
 proper charges, and that these should be taxed as a part of the 
 costs of the case. As the plaintiff cannot tax tlie costs, he cannot 
 tax tlie disbursements, because the latter stand upon the same 
 foundation as the former. ■^^'^^ It is otherwise in an action in 
 equity.^ ^^ The claim must be presented to entitle the creditor 
 to recover costs, although the claim is against the executor as 
 surety, and a right of action may never exist.^^^ A successful 
 plaintiff is entitled to costs where he presents his claim, which 
 if? rejected, before the executor commences to advertise for 
 claims,^ ^'^ or if he presents it at any time, where the executor 
 never advertises for claims.^ ^® 
 
 The executor may unduly resist a claim not properly pre- 
 sented, and not be liable for costs in case he is not successful.* ^^ 
 To entitle the plaintiff to costs the claim presented must be the 
 same as tlie one on which the recovery is had.^^^ Where a claim 
 for services that would be outlawed was presented and rejected 
 the plaintiff recovered in an action upon a special contract, in 
 which the testator agreed to compensate the plaintiff by will for 
 the very same services, the claim for which had been rejected, 
 but the plaintiff was not allowed costs or disbursements on the 
 ground tliat the recovery was upon a different demand than tliat 
 which was presented to and rejected by the execiitor.*^* Where 
 costs are given to the plaintiff in an action against an executor, 
 this is res judicata upon the question of the presentation of the 
 plaintiff's claims to the executor within the time limited by the 
 published notice to present claims.^ ^- 
 
 llisiNichols V. Moloiighncy, 85 App. "^A'jVps v. Crochcr, 88 Hun, 312, 
 
 Div. 1, 82 N. Y. Supp. 949. 68 N. Y. S. R. 579. 34 N. Y. Supp. 
 
 ^^^Keyser v. KeUy, 11 Jones & S. 761. 
 
 22; Yorl;s v. Peck, 9 How. Pr. 201. ""TFflT/ace v. Mcirkham, 1 Denio, 
 
 ^'"l^upplee V. .Sfoi/re, 51 Hun, 30. 20 671; Genef v. Binsse, 3 Daly, 239; 
 
 N. Y. S. Tl. 554, 3 N. Y. Supp. 627. Carter v. Beckicith, 104 X. Y. 236, 
 
 ^"Field y. Field, 77 N. Y. 294. 10 N. E. 350. 
 
 ^^^Brinkcr v. Loomis, 43 Hun, 247, "'Bcerher v. Duel, 14 N. Y. Week. 
 
 26 N. Y. Week. Dig. 35, 5 N. Y. S. R. Diff. 109. 
 
 439. »"/?e Gall, 40 App. Div. 114, 29
 
 BY OR AGAI?^ST EEPRESE^YTATIVES. 24:7 
 
 When it is a disputed question whether the claim was duly 
 presented and rejected, the afHdavits upon this question should 
 give specific interviews, with their dates or, where it is done by 
 correspondence, the contents of the letters or copies of them: 
 who made the demand, and what was said at the interviews.^^"^ 
 The claim must be presented in writing. A verbal presentation 
 is not enough. It need not be verified unless the executor de- 
 mands it.^^* An absolute rejection, without demanding that 
 it be verified, is sufficient. The executor cannot afterwards raise 
 the question that the claim was not verified, as he has waived 
 that. Presentment is not excused because the executor has 
 knowedge of the existence of the claim. ^^""' 
 
 j. To whom the claim rnust he presented. — It is sufficient if 
 the claim is presented to one of two or more executors.^-*' It is 
 not necessary that the claim be ])resented to an executor or ad- 
 ministrator substituted as a defendant in an action in the place 
 of the decedent.^"" 
 
 Jc. Effect of adrertlsitig for claims.- — An executor is not liable 
 for costs, where he has published the statutory notice for the 
 presentation of claims, and the claim in suit has not been pre- 
 sented. It makes no difference that the creditor has no actual 
 knowledge of the publication.^ ^^ 
 
 The mere fact that an executor did not advertise for claims 
 will not render him liable for costs upon an unsuccessful de- 
 fense. There must also be an unreasonable resistance or neglect, 
 or a failure to file the consent required by § 1822 of the Code of 
 Civil Procedure. -^^'^ 
 
 X. Y. Civ. Proc. Rep. 178. 57 N. Y. '-'Tindall v. Jones, 19 How. Pr. 
 
 Supp. 835. 469, 11 Abb. Pr. 258. 
 
 ^-K'hesphro v. Eicls, 66 How. Pr. ^-'Clarlson v. Root, 18 Abb. N. C. 
 
 194. 462; Eorton v. Broirn, 29 Hun. 654; 
 
 ^-'Ki)w V. Todd, 21 N. Y. Civ. Proe. Supplee v. Sayre, 51 Hun, 30, 20 N. 
 
 Pep. 114, 27 Abb. N. C. 149, 15 N. Y. Y. S. P. 554, 3 N. Y. Supp. 627. 
 
 SSupp. 156. ^-"Snijdej- v. Young, 4 How. Pr. 
 
 ^-'^l^Ues V. Crocker, 88 Hun, 312, 217; Bullocl- v. Bogardus, 1 Denio, 
 
 68 N. Y. S. P. 579, 34 N. Y. Supp. 276; Bradley v. Burwell, 3 Denio, 
 
 761. 261. 
 
 ^'HJenet v. Binsse, 3 Daly, 239.
 
 248 THE LAW OF COSTS IN NEW YOKK. 
 
 I. When a claim is reasonably resisted. — A claim cannot be 
 said to be unreasonably resisted until the executors have had 
 time to consider the matter. A plaintiff who brings an action be- 
 fore the expiration of that time is not entitled to costs, although 
 he recovers a verdict.^ ^"^ It is not unreasonable to resist the 
 payment of a claim of Avhich the executor has no personal knowl- 
 edge and which is nearly outlawed ;^^^ nor to resist a claim that 
 was presented to the deceased in his lifetime for a certain 
 amount, but is presented to the executor for a much larger 
 amount, even though the plaintiff recovers a sum larger than the 
 original bill, but not as large as that presented to the executor.^^^ 
 A claim is not unreasonably resisted, where the first item was 
 $5,000 for services to the decedent as a nurse, and an action was 
 brought within two months after letters were issued.^^^ Where 
 a referee in partition died without having paid over the part of 
 the money going to unknown heirs, and those entitled to the 
 money commenced proceedings against his executor, it was held 
 that the executor should not be made to pay costs, as he was 
 guilty of no wrong.^^* 
 
 An executor cannot be said to have unreasonably resisted a 
 claim where he has won on two trials, but lost on the third, and 
 he has found among the papers of the deceased papers and docu- 
 m=ents from which he had the right to assume that the debt was 
 paid.^''^ The mere fact that the plaintiff recovers a judgment 
 for the amount of the claim presented is not proof that the claim 
 was unreasonably resisted. •'^^ It is not unreasonable to resist 
 liability of the testator as indorser of a note, Avhere he died be- 
 fore the maturity of a note.-^^'^ 
 
 '^Macti V. Willinms, 55 Hun, 489, '^Waughn v. Strong, 66 Hun, 278, 
 
 30 N. Y. S. R. 345. 8 N. Y. Supp. 658. 49 N. Y. S. R. 319, 21 K Y. Supp. 
 
 '^^Chesehro v. Hicks, 66 How. Pr. 154. 
 
 194. ^^''Ehrenrelcli v. Lichienberg, 29^ 
 
 "-frarrisoti v. Ayers, 18 Hun, 336. Misc. 305. 60 N. Y. Supp. 513, Affirm- 
 
 ""Buch-hout V. Htmt, 16 How. Pr. inj; 28 IMisc. 789, 59 N. Y. Supp. 383. 
 
 407. "''Bank of Port Jefferson v. Dar- 
 
 "'Brotcn v. King, 63 Hun, 158. 45 ling, 91 Hun, 236, 72 N. Y. S. R. 54, 
 
 N. Y. S. R. 24. 17 N. Y. Supp. 678. 36 N. Y. Supp. 153.
 
 BY OK AGAINST KEPiiESENTATIVES. 249 
 
 In an action for damages for an eviction from land leased 
 from the intestate, where tlie plaintiff recovers 6 cents damages, 
 the claim cannot be said to have been unreasonably resisted, 
 therefore the plaintiff is not entitled to costs.^^^ 
 
 Costs should not be granted where a defense was interposed 
 in good faith, and would, doubtless, have succeeded if certain 
 witnesses for the defense could have been procured.^ ^^ 
 
 Costs should not be allowed against an executor where the 
 credit was originally given to a third person, but upon trial it 
 was proved to be for the benefit of the deceased.^ ^° 
 
 A claim is not unreasonably resisted where the interest on the 
 claim has been reduced from 10 per cent to 6 per ceut.^'*^ Nor 
 is a claim unreasonably resisted where, after making a payment 
 thereon, the administrator, upon the advice of counsel that the 
 entire claim is illegal, refuses to pay any more, and fails to 
 sustain his defense in an action brought thereon.^ ^- 
 
 m. Effect of reduction of amount of claim on the question of 
 unreasonable resistance to the claim. — If the amount of recovery 
 is materially reduced from the amount of the claim presented, 
 this fact has been held sufficient to show that the claim was not 
 unreasonably resisted. ■^'^^ The claim was not unreasonably re- 
 sisted where it was reduced one third, ^^* or three seventLs,'^^ or 
 one half.^'*^ Executors should not be held liable for costs where 
 they reduce a claim for the board of a testator.^ ^" AVhere exec- 
 utors have reduced claims in the following amounts, it was held 
 
 ^EopUns V. Lott, 111 N. Y. 577, X. Y. Civ. Proc. Rep. 11; HeaJy v. 
 
 19 N. E. 273. Malcolm, 75 App. Div. 422, 78 N. Y. 
 
 "^Stephenson v. Clark, 12 How. Pr. Snpp. 315. 
 
 282. ^**Ryan v. McElroy, 15 App. Div. 
 
 ^*°Comstock V. Olmstcad, 6 How. 216. 44 N. Y. Supp. 196. 
 
 Pr. 77. "^Baileij v. Schmidt, 19 N. Y. S. R. 
 
 ^*^Davis V. Myers, 86 Him. 236. 67 50. 5 N. Y. Supp. 405. 
 
 N. Y. S. R. 37, 33 X. Y. Supp. 352. ''"Pinkerneni v. Bischoff, 2 Abb. N. 
 
 "■Proude v. Whiton, 15 How. Pr. C. 107; Dag<]ett v. Mead, 11 Abb. N. 
 
 304. C. 116. 
 
 ^*'Orerheiser v. Morehouse, 2 How. ^"Webster v. Nichols, 21 N. Y. 
 
 Pr. N. S. 257, 16 Abb. X. C. 208. 8 Week. Dig. 566.
 
 250 THE LAW OF COSTS IN NEW YORK. 
 
 that the chum was not iinrcasonahly resisted, and the plaintiff 
 was not entitled to costs : Rednccd from $3,000 to $300 upon an 
 unliquidated claim ;^^^ from over $60,000 and large amount of 
 interest, further reduced by the general term to $10,000;^'*^ 
 from $1,000 to $350 ;i^" from $306.36 to $93.^ ^^ 
 
 n. Ecfmal to rc/cr.— Under § 1836 of the Code of Civil Pro- 
 cedure, before the amendment in 1805, A\'hicli provided that the 
 pJaintift' was entitled to costs where the claim was presented 
 within the time limited by the notice to present claims, and 
 payment thereof had been unreasonably resisted or neglected, or 
 the defendant had refused to refer the claim, the following de- 
 cisions held that the plaintiff was entitled to costs because the 
 defendant had absolutely refused to refer. Although the claim 
 was presented for $2,554.25, and an action was brought for 
 $1,412.63, and the recovery thereon was $573.63;^^^ or was re- 
 duced from $2,551.04 to $192.90 ;i''^ or was reduced from $1,- 
 510.80 to $461.19 ;i^^ or was reduced from $3,800 to $1,250, 
 although the claim was presented in the name of a firm, but the 
 recovery was had by one member thereof.^ ^'^ 
 
 These recoveries were had in actions after an absolute refusal 
 t<^) refer. If these recoveries had been had upon a statutory 
 reference, costs would undoubtedly have been denied. These 
 cases are not now in point, as the provision that a refusal to re- 
 fer when a claim was properly presented rendered the executor 
 liable for costs if judgment went against him has been removed 
 by the amendment of 1895. 
 
 "•*/?)/ ^7i Y. Daimiport, 22 N. Y. Civ. "-Carter v. BeclcwUli, 104 N. Y. 
 
 Proc. Eep. 121, 45 N. Y. S. R. 926, 236, 25 N. Y. Week. Dig. 373, 5 N. Y. 
 
 18 N. Y. Snpp. 721. S. R. 617, 10 N". E. 350. 
 
 ^'Molmson v. MyerR, 103 K Y. 666, "'.Ve/Zis v. Duesler, 44 N. Y. S. R. 
 
 1 Silv. Ct. App. 209. 25 N. Y. Week. 228, 18 N. Y. Supp. 315. 
 
 Dijr. 75, 3 N. Y. S. R. 655, 9 N. E. 55. '■"Z/ctii.s v. Gallagher, 37 App. Div. 
 
 ^^"Crtiikshank v. Cruikshank, 9 627, 29 X. Y. Civ. Proc. Rep. 149, 
 
 How. Pr. 3.50. 55 N. Y. Supp. 1066. 
 
 ^^'Heahf v. Murphy. 21 N. Y. Civ. ^'■'^Genet v. liinsse, 3 Daly, 239. 
 Proc. Rep. 13, 16 N. Y. Supp. 541.
 
 BY OH AGAIiS'ST KI-;PKESENTAT1VES. 251 
 
 0. Unreasonably resisted. — The plaintiff is entitled to costs 
 Avhere the referee finds, as a matter of fact, that the claim was 
 imreasonablj resisted.'""^ It will be assumed that he was of this 
 o]3inion from the facts which appeared upon the trial.^^^ 
 
 Wliether payment of a claim is uni'easonablv resisted depends 
 very largely upon matters outside of, and not connected with, the 
 cause of action or the merits of a claim. If an action is brought 
 before the expiration of the year allowed to the administrators 
 for the payment of debts or claims against the estate, the com- 
 plaint must state facts showing that the payment was unrea- 
 sonably resisted, and the certificate of the judge must certify 
 facts showing the necessity and propriety of bringing the action 
 at that time.^^^ 
 
 A claim is unreasonably resisted when the executor, by proper 
 inquiry, could have found that the bill was proper, or the testa- 
 tor ordered the bill paid, by a clause in his will,^'^'-^ or left such a 
 direction in his papers, and the executor does not seek the cor- 
 roborative evidence necessary to justify him in paying the 
 bill.^^^ An executor should be required to pay costs where the 
 testator directs that the persons taking care of him should be 
 well rewarded, and the referee allows the claim for the full 
 amount.^ ^^ 
 
 A claim is unreasonably resisted when the objection is not 
 promptly raised, and when raised is unsuccessful.-^®^ Costs are 
 properly allowed against an executor when he rejects no item of 
 the account, and the amount due upon the claim depends upon 
 the question of interest.^®^ A claim is unreasonably resisted 
 
 ^"^Ellis V. FUon, 85 Hun, 485. 66 ^""Kellogg v. Ogden, 27 App. Div. 
 
 N. Y. S. R. 764, 33 N. Y. Supp. 138. 214, 50 N. Y. Siipp. 650. 
 
 ^"Benedict v. Sliter, 82 Hun, 190, ^"^Darling v. Ealsey, 2 Abb. N. C. 
 
 69 N. Y. S. R. 1, 31 N. Y. Supp. 413. 105. 
 
 ^^Tatterson v. Buchanan, 40 App. ^^-Boijd v. WilJdn, 23 How. Pr. 137. 
 
 Div. 493, 29 N. Y. Civ. Proc. Rep. ^"^Eyland v. Carpenter, 20 N. Y. 
 
 238, 58 N. Y. Supp. 179. Week. Dig. 201. 
 
 '"'Darling v. Ealsey, 2 Abb. N. C. 
 105.
 
 252 THE LAW OF COSTS IN NEW YORK. 
 
 when the executor denies the justice of the entire claim, but 
 upon the trial it is reduced only about one fifth.^^* A reduction 
 of the claim from $196 to $178.50 is not such a reduction as to 
 deprive the plaintiff of costs. ^^^ 
 
 p. Failure to file consent that the claim may he heard on 
 judicial settlement. — The commencement of an action upon a 
 claim within five months and twenty days after its rejection i.s- 
 a waiver by the plaintiff' of his right to costs in case he is suc- 
 cessful.^ ^^ 
 
 There is a special term decision which holds that an executoi',. 
 to relieve himself from costs, must file his consent, as provided 
 in § 1822 of the Code of Civil Procedure, witliin five month--: 
 and twenty days after his rejection of the claim, although before 
 tlie expiration of that time an action has been commenced there- 
 on.^6' 
 
 q. Costs upon a statutory reference. — Parties still have a 
 right to settle their disputes by a reference. But a refusal to 
 refer does not make the defendant liable for costs. The referee 
 has now the power to pass upon the question of costs, subject to 
 the qualification in §§ 1835 and 1836 of the Code of Civil Pro- 
 cedure. The reference is an action, and judgment may be en- 
 tered upon the report of the referee without an application to the 
 court; and the practice on appeal from his decision is the same 
 as in other civil actions.^ ^^ The discretion of the referee relates 
 only to the costs of the plaintiff. When the executor wins, he i^ 
 entitled to costs, as a matter of right. ■'^^ Under the old law. 
 
 ''"Fort V. Gooding, 9 Barb. 371. 764, 33 N. Y. Supp. 13S; Niles v. 
 
 '^^Dukelow V. Searles, 48 N. Y. S. Crocker, 88 Him, 312, G8 N. Y. S. R. 
 
 R. 91. 20 N. Y. Supp. 348. 579, 34 N. Y. Supp. 761; Winne v. 
 
 '"^Hart V. Hart, 45 App. Div. 280, Hills, 91 Hun, 92, 71 N. Y. S. R. 702, 
 
 61 N. Y. Supp. 131; Hotje v. Flijnn, 36 N. Y. Supp. 683; Jenkinson v. 
 
 30 Misc. 636, 64 N. Y. Supp. 252. Harris, 27 IMisc. 714, 59 N. Y. Supp. 
 
 '"De Kalb Ave. M. E. Church v. 548; Fisher v. Bennett, 21 Misc. 178, 
 
 Eelk, 30 :\Iisc. 367, 62 N. Y. Supp. 47 N. Y. Supp. 114; Carter v. Bar- 
 
 393. num, 24 Misc. 220, 53 N. Y. Supp. 
 
 "^'Code Civ. Proc. § 2718; Ellis v. 539. 
 Filon, 85 Hun, 485, 66 N. Y. S. R. ''\idams v. Olin, 78 Hun, 309. 6(
 
 BY OK AGAINST KEPKESENTATIVES. 253 
 
 costs to a successful defendant rested in the discretion of the 
 <}ourt, and as it was a special proceeding, and not an action, ap- 
 plication had to be made to the court.' ^*^ A motion to confirm a 
 referee's report is now improper; the court cannot review the 
 referee's decision, and hence cannot confirm it. 
 
 \Arhere the referee has not passed upon the question of costs, 
 the court, under § 1836 of the Code of Civil Procedure, may 
 pass on that question.' ^^ The certificate of the referee, as pro- 
 vided for in §§ 1835 and 1836 of the Code of Civil Procedure, 
 must still be given, or else the plaintiff cannot be allowed his 
 •costs.' '^^ The certificate of the referee is a different paper from 
 his report, and he may give it after he has filed his report Sec- 
 tion 3248 of the Code of Civil Procedure re2:ulates the ffivins: 
 of tliis certificate.''^^ If the plaintiff' recovers, he is entitled to 
 his disbursements under § 317 of the Code of Procedure, 
 :as that part of the section has not been repealed.''^* It was held, 
 when these proceedings were under the Ile\4sed Statutes, that 
 au extra allowance could not be granted herein, as this was a 
 special proceeding, and not an action.' ^^ 
 
 N. Y. S. R. 695, 29 N. Y. Supp. 131; 560, 61 K y. Supp. 953; Carter v. 
 
 Winne v. Bills, 91 Hun. 89, 71 N. Y, Becktoith, 104 N. Y. 236; 10 N. E. 
 
 S. R. 702, 36 N. Y. Supp. 683. 350. 
 
 ""RadJey v. Fisher, 24 How. Pr. "*Whitcomb v. Whitcoml), 92 Hun, 
 
 404; Bahhage v. Wehster, 72 Hun, 443, 36 N. Y. Supp. 607; Lar- 
 
 456, 25 N. Y. Supp. 300; Walker v. kins v. Maxon, 103 N. Y. 680, 1 Silv. 
 
 Gardener, 8 Misc. 468, 60 N. Y. S. R. Ct. App. 215, 11 N. Y. Civ. Proc. 
 
 599, 29 N. Y. Supp. 669. Rep. 298, 25 N. Y. Week. Dij?. 39, 3 
 
 ^''Jenkinson v. Harris, 27 Mi8C. N. Y. S. R. 642, 9 N. E. 56, Approv- 
 
 714, 59 N. Y. Supp. 548; Fisher v. ing Krill v. Brownell, 40 Hun, 72; 
 
 Bennett, 21 Misc. 178, 47 N. Y. Supp. Sutton v. Newton, 15 Abb. N. C. 452, 
 
 114. 2 How. Pr. N. S. 56, 7 N. Y. Civ. 
 
 "'/ee Raab, 47 App. Div. 33, 62 N. Proc. Rep. 333 ; Hall v. Edmunds, 67 
 Y. Supp. 332; Whitcomb v. Whit- How. Pr. 202; Overheiser v. More- 
 comb, 92 Hun, 443, 71 N. Y. S. R. house, 16 Abb. X. C. 208, 2 How. Pr. 
 mi, 36 N. Y. Supp. 607; Eenning v. N. S. 257, 8 N. Y. Civ. Proc. Rep. 
 Miller, 83 Hun, 403. 64 N. Y. S. R. 11, Disapproving Miller v. Miller, Z2 
 667, 31 N. Y. Supp. 878; Lounsbury Hun, 481; Daggett v. Mead, 11 Abb. 
 V. Sherwood, 53 App. Div. 318, 65 N. X. C. 116. 
 Y. Supp. 676. "^Moiory v. Peet, 13 N. Y. Week. 
 
 "^Brainerd v. De Graef, 29 ]Misc. Dig. 16.
 
 254 THE LAW or COSTS IN NEW YOKK. 
 
 That reasoning would not hold now, as the reference is now an 
 action in the supreme court. This allowance mij be granted by 
 the court at special term.^'^^ 
 
 r. Costs upon a statutory reference, luhere the plaintiff recov- 
 ers less than $50. — A statutory reference is now an action in 
 the supreme court, and is governed in the matter of costs the 
 same as all other actions in that court, except that the plaiutiif's 
 right to costs is limited by §§ 1835 and 1836 of the Code of 
 Civil Procedure. If a creditor consents to a reference of a dis- 
 puted claim and recovers less than $50, he is liable for costs. 
 The amendment of subd. 5 of § 2863 of the Code of Civil Pro- 
 cedure by the Laws of 1895 allows an action to be brought 
 against an executor or administrator in a justice's court, where 
 the amount of the claim is less than $50 and the claim has been 
 duly presented to the executor or administrator and rejected by 
 hini.^"^ Where the plaintiff presented a claim of $114, which 
 was rejected and referred, and the executor pleaded, as a coun- 
 terclaim, a claim that she had against the plaintiff and a third 
 party, jointly and severally, and thus reduced the plaintiff's re- 
 cm-ery below $50, the plaintiff was held entitled to costs, because 
 he could not have commenced his action in a justice's court.-*"** 
 
 It has been held that where an action is commenced upon a 
 claim of more than $50 though the recovery is less than that 
 amount, the plaintiff is entitled to costs, if the proper certifi- 
 cate of the presentation and rejection is procured. In the ab- 
 sence of such certificate the plaintiff cannot be allowed his costs, 
 nor can the defendant.-*"^ 
 
 The plaintiff should not be allowed costs unless he recovers 
 $50, or a sum which added to any counterclaim independent of 
 the cause of action, which he has liquidated in the action, equals 
 
 ^'"''Fisher v. Bennett. 21 IMisr. 178, ^'''^Germcin-Amevican Provision Co. 
 47 X. Y. Rupp. 114. V. Garrone, 73 App. Div. 409, 77 N. 
 
 ^''''Lampherc v. Lamphere, .^4 App. Y. Supp. 134. 
 Div. 17, G6 N. Y. Stipp. 270. 
 
 "^Osborne v. Parker, 66 App. Div. 
 277, 72 N. Y. Snpp. 894.
 
 BY OR AGAIlSrST EEPRESENTATIVES. 255 
 
 $50. The plaintiff should not be allowed tlie right to bring an 
 executor into a court of record upon a claim upon which there is 
 less than $50 due, and compel him to pay the costs in that 
 court. If this is the law a plaintiff can, bv increasing his claims 
 above $50 compel the executor to pay a sum in excess of what he 
 believes is proper, either as blackmail, or as costs in an action 
 in a court of record. Costs against an executor of an insolvent 
 estate must be paid in full, and the judgment creditor will not 
 be compelled to accept a pro rata part of them.^^** 
 
 s. Costs upon appeals. — The protection of the statute is given 
 to the executor upon successful appeals taken by him. If he 
 secures a new trial, with costs tx) abide the event, and upon tht^ 
 new trial again loses, he cannot, in any event, be charged with 
 the costs of his former appeal. He, doubtless, would be com- 
 pelled to pay the costs of an unsuccessful appeal,^ ^^ or of an ap- 
 peal taken for his own benefit.^ ^^ 
 
 '^"Heather's Estate, 15 Abb. N. C. ^^-Gardntr v. GunLter, 6 Paige, 
 194; Columbian Ins. Co. v. Stevens, 455. 
 37 N. Y. 536. 
 
 '^Benjamin v. Ver 'Nooy, 168 N. 
 Y. 578, 61 N. E. 971.
 
 CHAPTEK XVIII. 
 
 COSTS IN SURROGATE'S COURT. 
 
 175. Authority to award costs. 
 
 176. By whom paid. 
 
 177. How the discretion of the surrogate is reviewed. 
 17S. Costs on probate of will. 
 
 179. Costs on probate of lost will. 
 
 180. Application to revoke the prc/bate of a will. 
 
 181. Granting and revoking letters of administration. 
 
 182. Allowances upon an accounting. 
 
 183. Allowances when the estate is less than $1,000 in amount. 
 
 184. How costs awarded in tlie surrogate's court are collected. 
 
 185. To whom costs are awarded. 
 
 186. Costs upon the removal of an executor. 
 
 187. Costs upon an appeal from the surrogate's court. 
 
 188. Affirmance or reversal "with costs" or "without costs." 
 
 189. Amount of costs on appeal. 
 
 190. Allowances to special guardians. 
 
 191. Amount of costs allowed. 
 
 192. What disbursements are allowed. 
 
 193. Disputed claim heard by the surrogate. 
 
 194. Proceedings to sell real estate to pay debts of the decedent. 
 
 195. Allowances upon tax appraisals. 
 
 175. Authority to award costs. — The power of the surrogate 
 to grant allowances or costs is derived wholly from statutory 
 provisions.^ 
 
 176. By whom paid.— Section 2557 of the Code of Civil Pro- 
 cedure provides by whom costs awarded in the surrogate's court 
 are to be paid. Section 2557 is as follows: "Except where 
 special provision is otherwise made by law, costs awarded by a 
 decree may be made payable by the party personally, or out of 
 
 »iJe Welling, 51 App. Div. 355, 64 N. C. 289, 1 N. Y. Supp. 17; Hoyt's 
 N. Y. Supp. 1025; McMahon v. Estate, 5 Dem. 432, 12 N. Y. Civ. 
 Smith, 20 Misc. 305, 45 N. Y. Supp. Proc. Rep. 208, 26 N. Y. Week. Dig. 
 662; Re Denilce, 48 Hun, 606, 21 Abb. 373, 8 N. Y. S. R. 786. 
 
 256
 
 COSTS IN SUKROGATe's COURT. 257 
 
 the estate or fund, as justice requires ; but costs other than ac- 
 tual expenses cannot be awarded to be paid out of an estate or 
 fund which is less than $1,000 in amount or value." Sections 
 2558 and 2566 of the Code of Civil Procedure govern the ques- 
 tion of costs in this court. It is usual to make the costs payable 
 out of the estate or fund, unless the costs are caused by parties 
 not acting in good faith, in which case the costs are imposed 
 upon the party causing the expense. It is to the interest of jus- 
 tice that suspicious matters should not pass unchallenged, and 
 where the contestant has reasonable grounds for contesting a 
 matter, costs will not be imposed on him.^ A party who mis- 
 takes his remedy and makes unnecessary costs to the adminis- 
 trator is properly chargeable with costs.^ Costs should not be 
 allowed against the mother of an infant, where she was cited to 
 appear upon an application for the appointment of a guardian 
 of the person of the infant. She is not a party to the proceed- 
 ings so as to subject herself to costs.* 
 
 177. How the discretion of the surrogate is reviewed. — The 
 discretion of the surrogate is not reviewable by the court of ap- 
 peals,^ nor by the supreme court, unless there has been an abuse 
 of discretion and a violation of justice ; and the order which re- 
 verses the exercise of the discretion of the surrogate must show 
 that the gTound of the reversal was the abuse of discretion by 
 the surrogate.^ But the appellate division of the supreme court 
 has power, when it modifies a decree of the surrogate, to deter- 
 mine whether a party should be allowed costs in the surrogate's 
 court. But the court of appeals has no jurisdiction to review 
 
 -Pou-elVs Estate, 5 Dem. 2S1, 5 N. "Colhjer v. Collyer, 110 N. Y. 481, 
 
 Y. S. R. 348: Re Keelcr, 2 Connoly, 6 Am. St. Rep. 405, 18 N. Y. S. r! 
 
 45, 23 Ahh. N. C. 376, 18 N. Y. Civ. 210, 18 N. E. 110. 
 
 Proc. Rep. 30, 26 N. Y. S. R. 90, 7 'Re felled; 111 N. Y. 284, 19 X. 
 
 X. Y. Supp. 199. Y. S. R. GOl, 19 X. E. 06; Re Niles, 
 
 ""Re Killan, 66 App. Div. 312, 72 34 N. Y. S. R. 720, 12 N. Y. Supp. 
 
 X. Y. Supp. 714. 157; Mnrrin v. Marvin, 11 Abb. Pr. 
 
 *Re Valentine, 100 X. Y. 607, 22 X. S. 97, 
 N. Y. Week. Dig. 175, 2 X. E. 451. 
 
 COSTS 17.
 
 2;>8 TJIE J-AW OF COSTS IN NEW YORK. 
 
 the discretion of the supreme court in such a case.^ This is on 
 the ground that the discretion of one court cannot be reviewed 
 bj another court, unless thei-e has been an abuse of discretion, or 
 the court below has declined to exercise its discretion on the 
 ground that it has no discretion in the premises. 
 
 178. Costs on probate of will. — Parties who contest the pro- 
 bate of a will without any reasonable ground and hope of success 
 will be charged personally Avith the costs of the contest.^ No> 
 contest is needed to ascertain whether a will was properly exe- 
 cuted or not; that can be discovered upon the examination of the 
 witnesses to the will, when the will is offered for prol)ate.^ In 
 {;ase of palpable bad faith and fraud on the part of the attorney 
 ov counsel, either or both may be made to pay the costs person- 
 ally.^*' No per diem allowance can be made for preparation for 
 trial in these ]n'oceedings.^^ It is not absolutely necessary that 
 the contestant be guilty of lack of good faith to make him liable 
 personally for costs. I'he court may award costs against him 
 personally by way of indemnity to the successful party. ^^ 
 
 Section 2558 of the Code of Civil Procedure prohibits the 
 allowance of costs to an unsuccessful contestant of a will, unless 
 he is the special guardian of an infant. If the infant becomes 
 of age during the contest the guardian can receive compensation 
 up to that time, but not longer. The consent or stipulation of 
 the proponent will not confer jurisdiction upon the surrogate ta 
 make such an allowance. ^'^ Costs to a special guardian of an in- 
 
 'Re Denion. 137 X. Y. 428. .51 N. ^"Re Tucle. 17 N. Y. S. R. 805, 3 
 
 Y. S. R. (50, .3.3 X. E. 482. N. Y. Supp. 108. 
 
 ^Castle's K/italr, 1,5 N. Y. Civ. "/?c Aaron, 5 Dem. 362, 2.5 X. Y. 
 
 Proc. Rep. 276, 17 X. Y. S. R. 810, Week. Big. .324, 7 X. Y. S. R. 735. 
 
 2 N. Y. Supp. 638; Re Fuller, 16 X. ^-Re ^eagi-ist, 1 App. Div. 615, 7a 
 
 Y. Civ. Proc. Rep. 412. 22 X. Y. S. X. Y. S. R. 88, 37 X. Y. Supp. 496. 
 
 R. 352, 5 X. Y. Supp. 460; Re Whe- "/?c Heeler, 2 Connoly, 45, 23 Abb. 
 
 Ian, 6 Dem. 425, 15 X. Y. Civ. Proc. X. C. 376, 18 X. Y. Civ. Proc. Rep, 
 
 Rep. 273, 17 X. Y. S. R. 772, 2 X. Y. 30. 26 X. Y. S. R. 90, 7 N. Y. Supp. 
 
 Supp. 635. 199. 
 
 'ffc Whrlan, 6 Dem. 425, 15 X. Y. 
 Civ. Proc. Rep. 273, 17 X. Y. S. R- 
 772, 2 N. Y. Supp. 035.
 
 COSTS IN surrogate's COURT. 259 
 
 fant upon an unsuccessful contest of a will cannot exceed $70 
 and $10 per day for all the days, less two, necessarily occupie<l 
 in the trial, and disbursements.^^ Bj' section 2558 costs upon 
 an unsuccessful attempt to have a will admitted to probate may 
 be allowed to the proponent when he is named in the alleged will 
 as the executor thereof, and he has taken his proceedings in 
 good faith. 
 
 One who finds a will which he is interested in establishing 
 should offer it for probate, and he will not be charged personally 
 with the costs in case of failure. ^•'* 
 
 179. Costs on probate of lost will.— A proponent of an alleged 
 lost will is properly chargeable with the costs to each of the con- 
 testants of the proceedings, when he commenced the proceedings 
 without any knowledge or evidence to sustain his contention, 
 trusting to chance for their development.-'^ 
 
 180. Application to revoke the probate of a will. — The same 
 rule as to costs that applies upon the probate of a will applies 
 upon the application to revoke the probate of a will. If the 
 proceedings are not brought in good faith, costs will be charged 
 upon the party instituting them.-^'^ 
 
 181. Granting and revoking- letters of administration. — Costs 
 may be imposed upon a contestant to the appointment of an ad- 
 ministrator, when the contest is not conducted in good faith.^** 
 In revoking letters of administration the administrator will be 
 allowed his costs in opposing the proceedings, when he had good 
 reason to think that he was justified in so doing, the surrogate 
 and the general term both holding with him.^'' A temporary 
 administrator mav be authorized by an order of the surrosat.^ 
 
 ^*ForsteT v. Kane, 1 Dem. «)7 ; Be ^'•Re Lotvman, 1 Misc. 43, 22 N. Y. 
 
 Trucy, IS Abb. N. C. 242; Code Civ. Supp. 1055; Henry's Estate, 5 Dem. 
 
 Proe. §§ 2558, sub. 3, 2561. and 3256. 272, 5 N. Y. S. R. 344. 
 
 "7?e Grisicold, 15 Abb. Pr. 299. ^^Fe Clark, 15 N. Y. Supp. 370. 
 
 '^Collyer v. Colhjer, 17 Abb. N. C. '^He Page, 107 N. Y. 2G6, 14 N. E. 
 
 .328, Affirmed in 110 N. Y. 481. 6 Am. 193, 
 St. Rep. 425, 18 N. E. 110; HauseU 
 V. Vilmar, 76 N. Y. G30.
 
 260 THE LAW OF COSTS IN NEW YORK. 
 
 to pay tlie expenses of bis administration of the trust, or the 
 stenographer's or referee's fees on contest of a will or adminis- 
 tration f^ but he cannot be ordered to pay the costs incurred 
 upon the attempt to prove alleged wills,^^ nor the costs incurred 
 upon the probating of the will of the deceased,^^ nor the costs of 
 a contested proceeding for the grant of letters of administra- 
 tion.-^ 
 
 182. Allowances upon an accounting. — The costs of a contest 
 upon an accounting are in the discretion of the surrogate, both 
 as to the amount and by whom payable, Avithin the limits im- 
 posed by §§ 2561 and 2562 of the Code of Civil Procedure.^^ 
 The allowances for legal services upon an accounting where 
 there is no contest is not to exceed $25, where there is a contest, 
 the allowance cannot exceed $70 and $10 for each day in excess 
 of two.25 
 
 An executor or administrator may be allowed a sum not to 
 exceed $10 per day for time necessarily spent in preparing his 
 account for settlement, or otherwise preparing for trial.^^ The 
 per diem allowance can only be granted for the time actually 
 and necessarily occupied upon the trial, or preparation therefor, 
 or to an executor or administrator in preparing his accounts for 
 settlement. ^'^ The time occupied in the summing up of counsel 
 is within the meaning of § 2561 of the Code of Civil Proced- 
 ure.^^ But the time spent in preparing pleadings, making 
 briefs, ascertaining facts, appearing upon an adjournment, or 
 appearing to settle a decree, is no part of the trial within the 
 meaning of the Code of Civil Procedure.^^ 
 
 ="> Code Civ. Proc. § 2672. v. Howard, 1 Dom. 103 ; Re Miles, 5 
 
 ^'Re Aharon, 5 Dem. 362, 25 N. Y. Redf. 110, 3 Month. L. Bull. 39; 
 
 Week. Dig. 324, 7 N. Y. S. R. 735. Fernbacher's Estate, 4 Dem. 227, 17 
 
 "Re Parish, 29 Bavb. 627. Abb. N. C. 339, 8 N. Y. Civ. Proc. 
 
 '^Re Badger, 7 Mouth. L. Bull. 71. Rep. 349. 
 
 -'Re CoUamer, 5 N. Y. S. R. 197; -'Wither's Estate, 2 N. Y. Civ. 
 
 Re Dodge, 40 Hun, 443. Proc. Rep. (Browne) 162. 
 
 =5 Code Civ. Proc. § 2561. ^^Du Bois v. Brown, 1 Dem. 317. 
 
 ^'^Code Civ. Proc. § 2562; Walton ""^Du Bois v. Broion, 1 Dem. 317.
 
 COSTS IN sukkogatb's oofwt. 261 
 
 An executor or administrator will not be charged with costs, 
 unless he has been at fault.^^ The fact that an accounting is 
 compulsory is not sufficient to charge an executor or adminis- 
 trator with the costs of the accounting. The estate will be 
 charged with the expense of such an accounting when it is for 
 the best interest of the estate that there should be an accounting, 
 and upon such an accounting matters are found correct, al- 
 though somewhat mixed.^^ ISTo allowance can be made to leg- 
 atees or their attorneys for services, where they were not the suc- 
 cessful parties upon an accounting, in either surcharging the 
 account, or having some item disallowed.^^ If they succeed, 
 they should be allowed costs.^^ An executor or administrator 
 will be charged personally with costs where he has failed to keep 
 books and has refused to make an accounting until compelled to 
 do so, and then his account is surcharged with a large amount.^* 
 WTiere the decedent divided up his property into two parts, giv- 
 ing the real estate to one class and the pf^rsonal property to an- 
 other, and there are two executors, one of whom has taken 
 charge of the personal property and the other of the real estate, 
 and each executor makes a separate account, each class must bear 
 the expenses of the accounting of its fund.^^ 
 
 An executor or administrator is not chargeable personally 
 with cosis where, upon an accounting, he called the court's at- 
 tention to the fact that there was a question as to the legitimacy 
 of one of the children.^^ An executor or administrator who has 
 not acted in bad faith, but did not understand his duties, will not 
 be charged with costs,^'^ 
 
 ^"Griffith v. Bcecher, 10 Barb. 432. N. Y. Supp. 140; Willcox v. Smith, 
 
 '^Willett's Estate, 15 N. Y. Civ. 26 Barb. 316. 
 Pioc. Eep. 284, 2 N. Y. Supp. 66i5. =''Re Mansfield, 10 Misc. 296, 64 N. 
 
 '=/?e Wellinp, 51 App. Div. 355, 64 Y. S. R. 309, 31 N. Y. Supp. 84. 
 N. Y. Supp. 1025. ^Re Laramie, 2 Silv. Sup. Ct. 539, 
 
 ''/?e Goetschius. 3 Misc. 155, 23 N. 24 N. Y. S. R. 702, 6 N. Y. Supp. 175. 
 Y. Supp. 975; Willcox v. Smith, 26 ^'Re Swart, 2 Silv. Sup. Ct. 585. 25 
 
 B:nl>. 316; Re Meeker, 9 Daly, 556. N. Y. S. R. 88, 6 N. Y. Supp. 608. 
 
 "/?? Matthewson, 8 App. Div. 8, 40
 
 262 THE LAW OF COSTS IN NEW YOEK. 
 
 The mere fact that the objectors upon a testamentary account- 
 ing are, in the main, unsuccessful is not sufficient to charge them 
 with costs. Their proceedings must also be characterized by 
 bad faitli.^^ Objections made to an account for the purpose of 
 delay are sufficient to charge the objectors with costs.^^ The ex- 
 pense of an accounting caused by an executor, administrator, or 
 general guardian of an infant, either for his own convenience, — 
 as, when he resigns, — ^^^^or by his delinquencies, — as, when he is 
 removed, — should be borne by him personally.'*^ He will also 
 be called to pay the expense of an accounting which he unduly 
 prolongs.^^ But the expenses of an accounting which he did not 
 ask and to which he was compelled to submit Avill not be charged 
 against him, when the entire matter is dismissed for lack of 
 jurisdiction.'*^ 
 
 The costs of proceedings to remove an executor or administra- 
 tor on account of wasteful and improvident management of the 
 estate is properly chargeable against him.^^ 
 
 An executor or administrator is properly chargeable with the 
 costs of an accounting when he has denied the possession of the 
 property which the accounting shows him to have,^^ or has 
 sought to convert the estate to his own use.'*^ He is also charge- 
 able with costs of an unsuccessful appeal from a decision of the 
 surrogate, which finds that the mortgage, which he claims per- 
 sonally, belongs to the estate ;*'' or of an appeal from a decision 
 
 '^Willett's Estate, 15 N. Y. Civ. "/I'e Vandervoort, 19 N. Y. Civ. 
 
 Proc. Rep. 284, 2 N. Y. Supp. 665. Proc. Rep. 355, 33 N. Y. S. R. 644, 11 
 
 ''ffe Belling, 6 Dem. 428, 15 N. Y. N. Y. Supp. 764. 
 
 Civ. Proc. Rep. 279, 17 N. Y. S. R. **8fmiton's Estate, 1 Connoly, 108, 
 
 801, 2 N. Y. Supp. 637. 18 N. Y. S. R. 807, 2 N. Y. Supp. 
 
 *'Re Jones, 4 Sandf. Ch. 615: h'e 342. 
 
 Lamb, 50 N. Y. S. R. 343, 21 N. Y. ""Re Mull, 16 N. Y. S. R. 981. 2 N. 
 
 Supp. 343 ; 7?e Dixon, 50 N. Y. S. R. Y. Supp. 23 ; 7?c Gabriel, 60 N. Y. 
 
 629, 21 N. Y. Supp. 343 ; Re Decker, Supp. 87. 
 
 37 Misc. 527. 76 N. Y. Supp. 315. */'e Post, 30 Misc. 551. 64 N. Y. 
 
 "/?e Devier, 17 Misc. 486, 41 N. Y. Supj). 369. 
 
 Supp. 268. "^ie Manhardt, 17 App. Div. 1, 44 
 
 *=i2e Williams, 1 Connoly. 99, 15 X. Y. Supp. 836. 
 N. Y. Civ. Proc. Rep. 270,' 17 N. Y. 
 S. R. 839, 2 N. Y. Supp. 669.
 
 COSTS IN SURKOGATE^S COURT. 263 
 
 of the surrogate when the appeal is without merit ;^^ or where 
 the contest is caused on account of the incorrect accounts filed by 
 him, and by reason of maladministration of the estate, although 
 it was done through ignorance.^^ 
 
 An executor, administrator, or general guardian of an infant 
 will also be charged with costs when he files an incorrect account 
 and refuses to explain the items thereof, and delays matters as 
 much as he can.'^^ 
 
 The paying of claims barred by the statute is such maladmin- 
 istration as will charge the executor or administrator with the 
 costs of the accounting.^^ Costs are properly chargeable upon 
 the sureties of one executor who has sought and failed to charge 
 his coexecutor with certain items,"*^ I'hey are also properly 
 chargeable upon a petitioner who has \iC interest in the matter, 
 and seeks to have an executor removed.''^ 
 
 183. Allowances when the estate is less than $1,000 in amount. 
 — ^NTo allowance other than actual expenses can be awarded or 
 paid out of an estate or fund which is less than $1,000 in 
 amount or value.^^ To determine the amount of the estate to 
 ascertain whether it comes under the provisions of § 2557 of the 
 Code, the gross amount of the estate at the time of the owner's 
 deatli is nddod to any increase up to tlie time of the accounting. ■''*^' 
 
 184. How costs awarded in the surrogate's court are collected. — 
 The right to issue an execution to collect costs decreed to be paid 
 by the contestant personally is not lost by reason of the payment 
 of such costs out of the estate, by the consent of all parties, pend- 
 
 *'Re MrCarter, 94 X. Y. .5.58. Rep. 282, 17 X. Y. S. R. 832, 2 N. ^■. 
 
 *^Re Kopp, 15 X. Y. Civ. Proc. Rep. Supp. 495. 
 282, 17 N. Y. S. R. 832, 2 X. Y. Supp. '-Uie Gladke. 60 X. Y. Supp. 869. 
 495. ^^Re Adams, 51 App. Div. 619. 64 
 
 "'Williams' Estate, 1 Connoly. 99. X. Y. Supp. 591. 
 15 X. Y. Civ. Proc. Rep. 270. 17 X. ".S7?ooA- v. Shook, 19 Barb. 653. 
 Y. S. R. 839. 2 X. Y. Supp. 669; Re "Code Civ. Proc. § 2557. 
 Decker, 37 ilisc. 527. 76 X. Y. Supp. ^'^Chalker v. Chalker, 5 Redf. 480. 
 315; Re Kopp, 15 N. Y. Civ. Proc.
 
 264 THE T.AW OF COSTS IN NEW YORK. 
 
 ing an appeal. '^^ An execution to collect costs ordered to he 
 paid by two executors to a third should run against the two exec- 
 utors, and not against all three.^^ An executor or administrator 
 who fails to pay costs awarded against him in a representative 
 capacity will be charged personally with the costs of a motion to 
 compel him to do so.^^ 
 
 The surrogate cannot, by contempt proceedings, compel the 
 payment of costs decreed by him to be paid by the executor or 
 administrator personaily.^^ jS«or can he enforce the payment of 
 costs by imprisonment, as that is prohibited by § 15 of the Code 
 of Civil Procedure. Section 2555 does not give that authority 
 where it is to enforce the payment of costs only, although if the 
 costs were included in a decree providing for the payment of 
 money, the entire decree might be enforced by imprisonment for 
 contempt of court.^'' The nonpayment of costs of motion does 
 not affect a stay of proceedings, because § T79 of the Code of 
 Civil Procedure does not apply to surrogates' courts.^^ 
 
 185. To whom costs are awarded. — Costs are always allowed 
 to the parties, and not to the attomeys.*^^ The power of a sur- 
 rogate to award costs on a will contest, to be paid out of the es- 
 tate, is limited to the executor propoimding the wall, an unsuc- 
 cessful contestant who is a guardian for an infant, and the suc- 
 cessful parties. An infant represented by an attorney cannot 
 be allowed costs.^^ 
 
 '^Bartlett's Estate, 18 X. Y. Week. 2 N. Y. Civ. Proc. Rep. 162; DuBois 
 
 Dig. 65. V. Brott.n. 1 Dem. 317, 65 How. Pr. 
 
 ^'E\sner v. Avery, 2 Dem. 466. 461 : Derin v. Patchin, 26 N. Y. 441, 
 
 '^Re Curry, 47 N. Y. S. R. 307, 19 25 How. Pr. 5; Re Crane, 68 App. 
 
 N. Y. Supp. 728. Div. 355, 74 N. Y. Supp. 88; Re Well- 
 
 ^^Re Feehan, 36 J\Iise. 614, 73 N. Y. ing, 51 App. Div. 355, 64 N. Y. .Supp. 
 
 Supp. 1126. 1025; Seaman \. Whitehead, 78 X. 
 
 '"Re Humfreville, 154 X. Y. 115.47 Y. 306; Re Goefschuis, 3 Mi?;c. 155, 
 
 N. E. 1086; 7?e Fee/iflH, 36 Misc. 614, 23 X. Y. Supp. 975; Willcox v. 
 
 73 N. Y. Supp. 1126. S7nith, 26 Barb. 316; Walton v. 
 
 "Scopeld V. Adriance, 2 Dem. 486. Howard, 1 Dem. 103; McMahon v. 
 
 '-i?e Bitchier, 25 ]Mise. 369, 55 X. Smith, 20 Misc. 305, 45 X. Y. Supp. 
 
 V. Supp. 640; Aaron^s Estate, 5 663. 
 
 Dem. 362. 25 X. Y. Week. Dijr. 324, ^Re Lamb, 22 X. Y. S. R. 351, 5 
 
 7 X. Y. S. R. 735; Withers' Estate, X. Y. Supp. 565.
 
 COSTS IX surrogate's court. 265 
 
 This is on the principle that the executor has employed the at- 
 torney, to whom he is personally responsible, and this expense, 
 like all others, should be paid by the estate.^* There is, how- 
 ever, no personal liabilit}^ upon the part of an executor to his at- 
 torney in probating a will, when it provides that the cost of pro- 
 bating it shall be a charge upon the estate.*''^ An executor's or 
 administrator's liability to his attorney is not measured by the 
 allowance of the surrogate. It may well be more than the al- 
 lowance, but it can never be less, because an allowance will not 
 be made to the executor or administrator until he has actually 
 paid his attorney's bill and asks for reimbursement.*^^ Payment 
 by a note indorsed by a third person is not an actual payment, 
 and the executor or administrator cannot be allowed for serv- 
 ices thus paid.^^ If the executor or administrator is financially 
 irresponsible a payment of his attorney by his notes will not be 
 sufficient, and his claim for repayment will be refused.^^ But 
 if the surrogate orders the payment to the attorney the parties 
 may acquiesce in it. They can review such an order by an ap- 
 peal only, not by a motion to vacate that part of the order.^^ An 
 executor or administrator who is an attorney cannot receive com- 
 pensation for his own legal services rendered to the estate.''^" 
 
 The court will first inquire whether the executor or adminis- 
 trator had a right to incur the expense, and if that is decided in 
 the affirmative, then whether the sum that he did expend is rea- 
 sonable in amount. ''^^ An action to construe the will of the de- 
 
 '^Crilntan v. GUman, 6 Thomp. &. ^Re Bailey, 47 Hun, 477; Shields 
 
 C. 211, Affirmed in 6 X. Y. 41: Sea- v. Sullivan, 3 Dem. 296. 
 
 man v. Whitehead, 78 N. Y. 306. """Marsh v. Avery, 81 N. Y. 29. 
 
 •^Boynton v. Laddy. 32 N. Y. S. R. ''"Re Reed, 12 k. Y. S. R. 139: 
 
 .')78, 10 N. Y. Snpp. 622. Collier v. Munn, 41 X. Y. 143 ; Mor- 
 
 "^Heather's Estate, 15 Abb. N. C. gan v. Eannas, 13 Abb. Pr. X. S. 
 
 194; Re Bailey, 47 Hun, 477; Re 361 ; CnwpfteZZ vr. Purdy, .5 Redf. 434; 
 
 O'Brien, 5 Misc. 136, 25 X. Y. Supp. Re Van Wert, 3 Misc. 563, 24 X. Y. 
 
 704; Re Van 'S'ostrand, 3 Misc. 396. Supp. 719: Valentine's Estate, 9 
 
 24 X. Y. Supp. 850. Abb. X. C. 313. 
 
 "7?e Blair, 28 Misc. 611, 59 X. Y. "^Re Uutchinson, 84 Hun, 563, 66 
 
 Supp. 1090. X. Y. S. R. 149, 32 X. Y. Supp. 869.
 
 266 THE LAW OF COSTS IN NEW YORK. 
 
 ceased, or for a partition of his real estate which involves the 
 construction of the will, are proper cases for the executor to re- 
 tain counsel."^^ Costs may be allowed upon the probate of a will 
 to the successful contestants upon the construction of the will.^"'* 
 
 An allowance to contestants upon their success in the surro- 
 gate's court will not be disturbed by the appellate court when it 
 reverses the decree of the surrogate, if the granting of the costs 
 were acquiesced in by the opposite party, both as to the power of 
 the court to make it and the amount."'* Under subd. 3 of § 
 2558 of the Code of Civil Procedure the surrogate, when two 
 wills of the same testator are offered for probate, has the power 
 to allow costs to tlie executor named in the will that he does not 
 admit to probate.'''^ 
 
 186. Costs upon the removal of an executor. — In a proceed- 
 ing to remove an executor the authority of the surrogate in the 
 allowance of costs is limited by the restrictions of § 2561 of tho 
 Code of Civil Procedure.'^ Costs cannot be awarded to an un- 
 successful petitioner. '^^ The executor upon such a proceeding 
 is properly chargeable with the costs, when the proceeding is 
 based upon his business inexperience and the large interests in 
 his hands, and his refusal to file a bond under the provisions of 
 § 2686 of the Code of Civil Procedure,"^® or where his conduct 
 has been reckless and careless.*^ ^ 
 
 An executor is protected in paying costs as directed by the 
 surrogate, if he does so before the appeal is perfected. If there 
 is no appeal from that part of the order awarding costs, then as 
 
 '^Re Tlutchhison, 84 Hun, .56.3, 66 '"Fernhacher's Estate, 4 Dem. 227, 
 
 N. Y. S. R. 149, 32 N. Y. Supp. 869; 17 Abb. N. C. 339, 8 N. Y. Civ. Proc. 
 
 Noyes v. Blaleman, 3 Sandf. .531 ; lieTp. 3i9; Walton v. Hoioard, 1 Bern. 
 
 Irving V. De Kay, 9 Paige, 521; Wet- 103; DuBois v. Brown, 1 Dem. 317, 
 
 more v. Parker, 52 N. Y. 450. 65 How. Pr. 461. 
 
 "/^e Miinter, 19 Misc. 201, 44 N. "i?e Engelbrecht, 15 App. Div, 
 
 Y. Supp. 605. 541, 44 N. Y. Supp. 551. 
 
 '"lie Bognrt, 46 App. Div. 240, 61 "/.'e O'Brien, 45 N. Y. S. R. 180, 
 
 N. Y. Supp. 671. 19 N. Y. Supp. 541. 
 
 '^Ke Mondorf, 110 N. Y. 450, 18 N. '"lie Stanton, 1 Connoly, 108, 18 N. 
 
 E. 256. Y. S. R. 807, 2 K Y. Supp. 342.
 
 COSTS IN surrogate's COURT. 267 
 
 to that part the decree is final and the executor is not only jus- 
 tified in paying such, but he is boiuid to do so. If the appellate 
 court reverses tlie decree of the surrogate, the executor cannot be 
 held for the sum thus paid.'**' 
 
 187. Costs upon an appeal from the surrogate's court. — Costs 
 upon an appeal from the surrogate's court are governed by §§ 
 2560 and 2589 of the Code of Civil Procedure, which are as 
 follows: Sec. 2560. "Where a question of fact has been 
 tried by a jury, the costs aw^arded against the unsuccessful party 
 are the same as the taxable costs of an action in the supreme 
 court. The costs of an appeal, where they are awarded in a sur- 
 rogate's court, are the same as if they were awarded in the su- 
 preme court." 
 
 Sec. 2589. "The appellate court may award to the successful 
 party the costs of the appeal ; or it may direct that they abide 
 the event of a new trial, or of the subsequent proceedings in the 
 surrogate's court. In either ease the costs may be made payable 
 out of the estate or fund, or personally by the unsuccessful 
 party, as directed by the appellate court ; or, if such a direction 
 is not given, as directed by the surrogate." 
 
 Under these sections, costs cannot be allowed, on appeal, to the 
 contestants who are unsuccessful.®^ But the reasonable ex- 
 penses of an executor or administrator in appealing from a judg- 
 ment which swept away the entire estate are properly allowed 
 by the surrogate.®^ 
 
 The court may, in its discretion, order the costs of one party 
 on appeal paid by another who has occasioned them.®^ Upon 
 reversing a decree of the surrogate admitting a will to probate 
 and sending the matter to a jury, it is proper to make the costs 
 of the appeal abide the event of the trial, and payable out of the 
 
 ""Re Eastman, 25 N. Y. Week. Dig. ^^Re Ritch, 76 Hun, 36, 59 N. Y. 
 ?>97. S. R. 623, 27 N. Y. Supp. 616. 
 
 "/?e Budlong, 100 N. Y. 203, 3 N. ^'i?e Martin, 98 N. Y. 193. 
 E. 334 ; Re Wilson, 103 N. Y. 374, 8 
 N. E. 731.
 
 268 THE LAW OF COSTS IN NEW YORK. 
 
 estate,®* Costs may be allowed to both parties, payable out of 
 the estate, when the executor or administrator appeals from an 
 adverse judgment and is defeated f^ or where both parties are 
 successful upon the appeal, the resj)ondent in upholding the 
 principle of the judgment of the lower courts, and the appellant 
 in reversing the judgment for lack of proof f^ or where there is 
 probable cause for taking the appeal, but the judgment is af- 
 finned.®'^ Where two parties appear in the surrogate's court by 
 different attorneys, who are partners, and take separate appeals,, 
 when one appeal would have protected their rights, upon re- 
 \ersal only one bill of costs can be taxed. ^^ But where the at- 
 torneys were not partners and there is no charge that there was 
 a device to increase costs, both attorneys are allowed to tax full 
 costs. ®^ Executors or administrators will be charged personally 
 wdth the costs of an unsuccessful appeal taken by them from a 
 riding of the surrogate which reduced the allowance of their 
 
 commissions 
 
 90 
 
 If no costs are allowed to an executor or administrator on an 
 appeal from a former decree, none can be allowed by the surro- 
 gate upon the final accounting. Such costs are in the discre- 
 tion of the appellate court, and if none are allowed by that court,. 
 they are not chargeable against the estate.^^ 
 
 The expenses of an executor, including additional counsel in 
 an unsuccessful appeal to the court of appeals, may be allowed 
 where the general term has reversed a decree of the surrogate 
 
 **i?e Drake, 45 App. Div. 206, 60 Crafls v. Rockefeller, 6 How. Pr. 9; 
 
 N. Y. Supp. 1020; Re Van Houten, Ten BroecJc v. Paige, 6 Hill, 267; 
 
 11 App. Div. 208, 42 N. Y. Supp. Castellanos v. Beauville, 2 Sandf. 
 
 919; Re Dixon, 42 App. Div. 489, 59 670; Braden v. KaJchaiser, 3 Sandf. 
 
 N. Y. Supp. 421. 760. 
 
 ^^Shakespeare v. Markliam, 72 N. ^"^Depinj v. Wurts, 47 How. Pr. 
 
 Y. 400. 225; Savage v. Gould, 60 How. Pr. 
 
 ""Laiorence v. Lindsey, 70 N. Y. 255; Seguine v. Seguine, 3 Abb. Pr. 
 
 566. N. S. 442; Hawley v. Donnelly, 8 
 
 '■''Clavp V. Fullerton, 34 N. Y. 190, P;iip:e, 415. 
 
 90 Am. Dec. 681. "'Vt'e Clinton, 12 App. Div. 132, 42 
 
 "'Brockicay v. Jeu-ett, 16 Barb. N. Y. Supp. 674. 
 
 590: Tracy v. Stone, 5 How. Pr. 104; ^Jacques v. Elmore, 7 Hun, 675.
 
 COSTS IN surrogate's COURT. 269 
 
 admitting the "U'ill to probate, and the question is a novel one.®^ 
 The expense of an appeal taken bj an executor or administrator 
 against the allowance of a claim that absorbed the entire estate 
 should be allowed, when the appeal was tiiken at the request of 
 all the persons interested in the estate, except the owner of the 
 claim.-'^ 
 
 188. Affirmance or reversal "with costs" or "without costs." — 
 Upon the decision of an appeal by the appellate division the 
 costs awarded by the surrogate are not affected, unless the order 
 is reversed or modified in respect to costs. AMiere the appellate 
 division affirmed a decree of a surrogate, "with costs to be paid 
 by the contestants personally," this did not affect the allowance 
 made by the surrogate in the original decree.^^ It was held in 
 the old general term that a reversal of such a decree "with costs" 
 meant costs in the surrogate's court, as well as on appeal, — that 
 it was the intention of the court to place the contestant in the 
 same position in which he would have been had the surrogate de- 
 cided correctly and given him costs upon the hearing.^^ To 
 make an executor personally liable for the costs of an unsuccess- 
 ful appeal, there must be an express adjudication to that effect; 
 the affirmance of a judgment "with costs" makes the costs pay- 
 able out of the estate.''^ Where an order upon a final account- 
 ing is affirmed in the appellate division "without costs" the sur- 
 rogate has no power to open the accounting and allow the execu- 
 tor the expense of the appeal.^'^ 
 
 The appellate court has, undoubtedly, control over a decree 
 brought before it on appeal, ^'hen it disposes of the question 
 of costs in that court, or in the court below, the surrogate can- 
 
 "^Re Blair, 28 Misc. 611, 59 K Y. "^Sheldon v. Williams, 52 Barb. 
 
 Supp. 1090; Re Uutchinson, 84 Hun, 183. 
 
 563, 32 N. Y. Supp. 869. ^Uie McEchron, 55 App. Div. 147, 
 
 "^Re Ritch. 76 Hun, 36, 59 N. Y. 07 N. Y. Supp. IS; Reed v. Reed, 52 
 
 S. R. 623, 27 N. Y. Supp. 613. N. Y. 651; Hon<! v. De Peyster, 106 
 
 "^Re Seagrist, 8 App. Div. 298, 40 N. Y. 645, 649, 13 N. E. 778; Sheri- 
 
 N. Y. Supp. 940. dan v. Andrews, 80 N. Y. 648. 
 
 '"Re Hood, 30 Hun, 472.
 
 270 THE LAW OF COSTS IN NEW YORK. 
 
 not altt^r tlie doeision. Still, the troublesome question to the 
 practitioner is to detennine definitely when the court has exer- 
 cised its power and to what extent. Every court can interpret 
 its own orders, and that interpretation cannot be changed by any 
 other court. 
 
 Upon the reversal by the appellate division, "with costs," of 
 an order of the surrogate's court, the successful party cannot tax 
 disbursements. Sections 3251 and 8256 of the Code of Civil 
 Procedure apply to actions, and not to orders in the surrogate's 
 court. The order must contain directions to the clerk to tax the 
 disbursements in order to enable him to tax them. If the suc- 
 cessful party desires to tax the disbursements he should move in 
 the appellate division for a resettlement of the order of that 
 court. '-^^ 
 
 Where the supreme court affirms a decision of the surrogate's 
 court, but the court of appeals reverses both judgments and dis- 
 misses the proceeding without costs, the appellant is not entitled 
 to costs in any court. ^^ 
 
 189. Amount of costs on appeal. — Upon an appeal from a de- 
 cree of a surrogate the same costs will be allowed as upon an ap- 
 peal from a judginent in the supreme court. -^^^ 
 
 The costs of an appeal from an order dismissing the petition 
 and citation requiring the executors or administrators to show 
 cause why they should not file an inventory are $10 and dis- 
 bursements. Section 3240 of the Code of Civil Procedure 
 makes tlie costs in a special proceeding the same as in an 
 action.'"^ 
 
 It has been held that, since the amendment of § 318 of the 
 Code of Procedure in 1862, the supreme court had the power tx> 
 
 •»i?e Stcencken, 58 App. Div. 85, ^"^ Code Civ. Proc. §§ 2560, 2589, 
 
 68 N. Y. Supp. 444; Cassidy v. Mc- 3240; Cole v. Terycnning, 27 Hun, 
 
 Farland, 139 N. Y. 209, 54 N. Y. S. Ill; Walsh v. Van Alien, 36 Hun. 
 
 K. 605, 34 N. E. 893. 629. 
 
 ^McGrecjor v. Buel.l, 1 Keyes, 153, ""Walsh v. Tan Allen, 36 Hun,. 
 
 17 Abb. Pr. 31, 3 Abb. App. Dec. SG. 029.
 
 COSTS IN SUEROGATE S COURT. 
 
 271 
 
 make an extra allowance upon an appeal from the surrogate's 
 court.i<*2 
 
 Where the executor or administrator is defeated upon an a})- 
 peal upon a technicality, the opposing party will be allowed the 
 costs given him by the appellate court and his disbursements, 
 but no costs in the surrogate's court. ^'^'' 
 
 190. Allowances to special guardians. — The amount of cost- 
 that a surrogate can allow to a special guardian upon application 
 for probate or revocation of probate of a will is limited by §§ 
 2561 and 3256 of the Code of Civil Procedure. 
 
 It cannot exceed $25 where there has been no contest, and $7'> 
 where tliere is a contest, and in addition thereto $10 per day for 
 every day in excess of two which the hearing occupies.^*'* 
 
 This is properly ordered paid out of the general estate. If 
 the guardian is entitled to any further allowance, it should be 
 paid by the infant or from his estate.-* *^^ The surrogate has the 
 power to make such an allowance out of the infant's estate.-'*'" 
 But it cannot be made ex parte}^'^ 
 
 Where an attorney appears for the general guardian of an in- 
 fant, and a special guardian is appointed, an allowance will be 
 made to the special guardian, but none will be made to the gen- 
 eral guardian.^ ''^ 
 
 Upon a judicial accounting the surrogate cannot award costs 
 to the special guardian of an infant for services subsequent to 
 
 ^"■Seginne v. Seguine, 3 Abb. Pr. 11; Re Budloiig, 100 N. Y. 203, 3 N. 
 
 N. S. 442; Dupuy v. Wtirts, 1 Hun, E. 334. 
 
 119, 53 How. Pr. 48. ^"'Rc Robiiiso)i, 40 App. Div. 30, .57 
 
 ">^Re Baldivin, 30 IMisc. 169, 63 N. N. Y. Supp. 523, Affirmed in 160 X. 
 
 Y. Supp. 727. Y. 448, 55 N. E. 11; Re Farmers^ 
 
 ^"^Re Tracy, 18 Abb. N. C. 242; Loan & T. Co. 49 App. Div. 1, 63 N. 
 
 Re O'Keeffe, 80 Ai)p. Div. 513, 81 N. Y. Supp. 227; Brincl-erhoff v. Farias. 
 
 Y. Supp. 118; Re Robinson, 40 App. 52 App. Div. 250, 65 N. Y. Supp. 
 
 Div. 30, 57 N. Y. Supp. 523, Affirmed 358. See Re Greenhalffh, 64 Hun, 26, 
 
 in 160 N. Y. 448, .55 N. E. 11. 45 N. Y. S. R. 924. 18 N. Y. Supp. 
 
 '"^Re Rupparier, 7 App. Div. 11, 39 748. 
 
 N. Y. Supp. 763; Re Robinson, 40 ^"'Re BucUong, 100 N. Y. 203, 3 N. 
 
 App. Div. 30, 57 N. Y. Supp. 523. E. 334. 
 
 Affirmed in 160 N. Y. 448, 55 N. E. ^'^Re Meeker, 9 Daly, 556.
 
 272 THE LAW OF COSTS IN NEW YORK. 
 
 the decision of the court of appeals that the infant has no inter- 
 est in the personal property.^ *^^ 
 
 The special guardian is entitled to pay till an appeal is taken. 
 If the infant needs protection on the appeal it is the province of 
 the appellate court to appoint a guardian. If the appellate 
 court makes no formal appointment, but recognizes as guardian 
 the person who acted below, he may become entitled to compen- 
 sation.^^^ A special gaiardian for an infant in an action to con- 
 strue a will should be allowed only his taxable costs, when it 
 appears that the infant has no interest in the estate.-^ ^^ 
 
 If the appellate court makes no provision for costs of the spe- 
 cial guardian the surrogate cannot make him an allowance for 
 his ser\'ices on the appeal.^ ^^ 
 
 191. Amount of costs allowed. — A per diem allowance can 
 only be made as indicated in § 2562 of the Code of Civil Pro- 
 cedure, and not for preparing for trial.-^^^ The same per diem 
 allowance, $10, is made in proceedings before a referee as if the 
 proceedings had been before the surrogate. But there is no pro- 
 vision for a per diem allowance for adjournments taken before a 
 referee.^ ^^ 
 
 ISTo more costs can be allowed when two attorneys are em- 
 ployed than where one is employed. In computing the number 
 of days for which an allowance can be made, only the time actu- 
 ally spent on the trial on the merits, including the summing up 
 or argument, can be allowed. The time spent in preparing the 
 pleadings, making briefs, and ascertaining the facts cannot be 
 
 '»ife James, 78 Hun, 121, 60 X. Y. ^"Bindrim v. UUrich, 64 App. Div. 
 
 S. R. 184, 28 N. Y. Supp. 992. 444, 72 N. Y. Supp. 239. 
 
 ^'"Schell V. Hewitt, 1 Dem. 2-50, 65 "-Schell v. Hewitt, 1 Dem. 250, 65 
 
 How. Pr. 187, 4 N. Y. Civ. Proc. Pep. How. Pr. 187, 4 N. Y. Civ. Proc. Rep. 
 
 57; Kellinger v. Roe, 7 Paige, 362; 57. 
 
 TJnderhill v. Dennis, 9 Paige, 202; "^^Aaron's Estate, 5 Dom. 362, 25 
 
 Chaffee v. Baptist Missionary Con- N. Y. Week. Dig. 324, 7 N. Y. S. P. 
 
 vention, 10 Paiije, 85, 40 Am. Dec. 735. 
 
 225; Re Marshall, 19 N. Y. S. P. 152, ^''Re Clark, 36 Hun, 301. 
 2 N. Y. Supp. 808.
 
 COSTS IN SUEROGATE S COURT. 
 
 273 
 
 included. The executor or administrator, however, can be al- 
 lowed for the time spent in preparing his account.^ ^^ 
 
 The surrogate cannot make an allowance of costs greater than 
 that provided for in § 2561 of the Code of Civil Procedure. If 
 the services of the attorney for the executor are worth more than 
 those costs, the executor may pay them, as any other disburse- 
 ment, and if they are proper, he will be allowed them upon his 
 accounting.' ^*^ Under an order of reference made under § 
 254 6 of the Code of Civil Procedure, an allowance of only $25 
 can be made to tlie petitioner, as the costs are governed by § 
 2561, but the remuneration of the special guardian is governed 
 by what his services were worth. ^^'^ 
 
 An application for leave to issue an execution under the pro- 
 visions of §§ 1380 and 13S1 of the Code of Civil Procedure is 
 a special proceeding, and not a motion, the costs of which are 
 goveraed by § 2561, which provides that costs of $25 shall be 
 allowed where there is no contest, and $70 if there is a con- 
 test."^ 
 
 An application to require trustees under a will to make appli- 
 cation of the income of an infant's estate to his support is a 
 special proceeding and costs are governed by § 2561 of the Code 
 of Civil Procedure.^ ^^ 
 
 192. What disbursements are allowed. — The amount inserted 
 
 in an executor's or administrator's bill of costs as disbursements 
 for referee's fees, and projierly verified, should not be reduced 
 without counterproof of its incorrectness.-^""^ 
 
 The question of the costs incurred by the executor or admin- 
 istrator in establishing the relationship of various parties to the 
 deceased should be reseiwed, like any other disbursement, until 
 
 "=Z>»Kois V. Broion, 1 Dem. 317, 65 "^Taylor's Estate, 8 N. Y. Civ. 
 
 How. Pr. 461. Proe. Rep. 453. 
 
 "»7?e Bitchier, 25 ]\Iisc. 369, 55 X. "''Re McCormich, 40 App. Div. 73, 
 
 Y. Siipp. 640. 57 X. Y. Supp. 548. 
 
 "'fte Rylance, 25 Misc. 283, 55 X. ^-"Re Reeves, 3 Silv. Sup. Ct. 291. 
 Y. Supp. 433. 
 
 COSTS IS.
 
 274 THE LAW OF COSTS IN NEW YORK. 
 
 the final accouutinii'.^^^ Upon proceedings to admit a will to 
 probate the surrogate has no power to allow $500 as a fee to an 
 expert witness. He can allow only the ordinary witness fee.^^^ 
 The cost of stenographer's minutes furnished to the contestants 
 under the provisions of § 2558 of the Code of Civil Procedure, 
 upon the application for probate or revocation of probate, are a 
 proper disbursement; but the expense for the stenographer's, 
 minutes for examination of a witness de bene esse, which were 
 not properly returned and the proper foundation for the recep- 
 tion of which was not laid, are not a proper disbursement.^^-* 
 The order for the stenographer's minutes, under § 2558, must 
 precede the hearing or no allowance can be made.^^"* 
 
 An account of an executor or administrator will be opened 
 when an ap]>lication is made therefor upon the ground of newl}' 
 discovered evidence upon matters litigated upon the accountings 
 but this will be granted only on terms. Usually these are the 
 costs allowed upon a contest, — $70.^^' 
 
 193. Disputed claim heard by the surrogate. — lu all cases 
 wliere disjjuted claims against an estate are submitted to the sur- 
 rogate for determination upon judicial settlement, pursuant to 
 § 1822 of the CV)de of Civil Procedure, the allowance or disal- 
 lowance of the costs to the claimant is a matter within the discre- 
 tion of the surrogate within the limits of § 2561 of the Code of 
 Civil Procedure. Such discretion should be guided and con- 
 trolled by the same principles which are api)licable to the allow- 
 ance or disallowance of costs in actions at law against an execu- 
 tor under §§ 1835 and 1836. A claimant nuiy become a party 
 to a final accounting by filing the proper consent, and in a 
 proper case may be allowed costs. ^^^ 
 
 "^Re Gooseherry, 52 How. Pr. 310. 8upp. 7(iO: /'e Engclhrcchf, 15 App. 
 
 ^--Re Bender, 86 Hun, 570, 67 N. Div. 541, 44 N. Y. Supp. 551. 
 
 Y. S. R. 682, 33 N. Y. Supp. 907. '-Hie McManns, 35 ]\Iisc. ()78. "2 
 
 ^■"^Re Henry, 7 IST. Y. S. R. 713, 25 N. Y. Supp. 678. 
 
 N. Y. Week. Difr. 156. '-'Vie Ingrdham, 35 Misc. 577, 72 
 
 '■'Re Byron, 61 F^un. 278, 16 N. Y. N. Y. Supp. 62.
 
 COSTS ijst surrogate's court. 275 
 
 It has been held, however, that §§ 1835 and 183G of the Code 
 of Civil Procedure have no application to these proceedings, but 
 apply only to actions.' ^^ 
 
 Where the appellate court orders the issues raised upon the 
 probate of a will to be tried by a jury, and makes no award of 
 costs, none can be allowed by the surrogate. His powers under 
 §§ 2558, 2559, and 2560 of the Code of Civil Procedure apply 
 only to those cases where costs are aw^arded by the appellate 
 court. ^^^ 
 
 It has been held that where the issues are sent to a jury, witli 
 costs to the appellant to abide the event, the successful party is 
 entitled to tax all the costs of the proceedings and the action.^^^ 
 Where the supreme court directs that costs be paid to certain 
 parties, which were paid, and upon further appeal this order 
 was reversed, the supreme court can order the costs thus paid to 
 be refunded. ^^'^ 
 
 194. Proceedings to sell real estate to pay debts of the decedent. 
 — The costs and allowances to the petitioning creditor^^^ and to 
 a special guardian^ ^^ in a proceeding to sell a decedent's real es- 
 tate for the payment of his debts are governed by §§ 2561 and 
 2563 of the Code of Civil Procedure. No allowance can be 
 made to any creditor other than the petitioning creditor, because 
 no provision is made in § 2793 of the Code of Civil Procedure 
 for such an award. ^^^ 
 
 Under no circumstances can the costs awarded against an ad- 
 ministrator be a charge upon the real estate of the deceased in 
 
 "'/?e Coonleif, ,38 Misc. 219. 77 N. .39.5, 22 N. Y. S. Fv. 880. (5 N. Y. Supp. 
 
 Y. Supp. 269." 56.5. 
 
 ^-^Hatten's Estate, 6 Dem. 444, 15 ^"^Moss's Estate, 24 N. Y. Civ. 
 
 N. Y. Civ. Proc. Rep. 293, 17 N. y. Proc. Eep. 438, 68 N. Y. S. R. 720. 
 
 S. R. 774, 2 N. Y. Supp. 493 ; Shell 34 N. Y. Supp. 798. 
 
 V. Hetmtt, 1 Dem. 249, 4 N. Y. Civ. ^^Whitbeck v. Patterson, 22 Barb. 
 
 Proc. Rep. 57. 65 How. Pr. 187; Re 83. 
 
 Campbell, 48 Hun. 417, 14 N. Y. Civ. '^'Re Matthewson, 1 Connoly, 157, 
 
 Proc. Rep. 400, 28 N. Y. Week. Dig. 19 N. Y. S. R. 208, 3 N. Y. Supp. 660. 
 
 400, 16 N. Y. S. R. 483, 1 N. y. Supp. "-7?e Dodge, 40 Hun, 443. 
 
 231. See Bull's Estate, 1 Connoly, ^^Long v. Olmsted, 3 Dem. 581.
 
 27G THE LAW OF COSTS IN NEW YORK. 
 
 the possession of the heir/^* — not even the costs of proceedings 
 had in the lifetime of the decedent in an action commenced 
 against him and revived against his administrator.^ ^^ Costri 
 awarded against a surviving partner in an action upon a part- 
 nership debt cannot be paid out of the real estate of a deceased 
 partner.^ ^^ The question of costs cannot be determined until 
 the proceeds are deposited with the county treasurer and the de- 
 cree is made for distribution. ^^'^ 
 
 The freeholder who sells the property may be allowed a rea- 
 sonable amount for his services, yet he cannot be allowed such 
 an amount as would exhaust the fund and leave nothing to pay 
 the creditors.-*^^ \Vhere the surrogate orders a question of fact 
 arising in a special proceeding for the disposition of real prop- 
 erty of a decedent for the purpose of paying his debts, to be de- 
 termined by a jury the costs are taxed in the surrogate's court, 
 and are the same in amount as if the proceedings had been heard 
 by the surrogate. Code Civ. Proc. § 2547. 
 
 AVhere the costs in an action for admeasurement of dower 
 were ordered paid out of the money received from the sale of 
 the crops raised, and, if that was not sufficient, then out of the 
 real estate sold, the surrogate held that this determination was 
 not res judicata as to creditors who were not parties to that ac- 
 tion.*^* 
 
 195. Allowances upon tax appraisals. — In proceedings to as- 
 sess the estate of a decedent, where the appointment of a special 
 guardian is wholly unnecessary no allowance can be made to 
 him.140 
 
 ^'''Sanford v. Granger, 12 Barb. ^^Laird v. Arnold, 42 Hun, 136. 
 
 392; Wood v. Bylngton, 2 Barb. Ch. "'7?e Maftheicson, 1 Connoly, 254, 
 
 387; Ball v. Miller, 17 How. Pr. 300; 19 N. Y. S. R. 210, 9 N. Y." Supp. 
 
 Hurd V. Callahan, 5 Redf. 393, 9 Abb. 290. 
 
 N. C. 374. "°WiZcoa?'s Estate, 11 N. Y. Civ. 
 
 ^^'^Wood V. By'mgton, 2 Barb. Ch. Proc. Rep. 115. 
 
 387. ""ii'e Kemp, 7 App. Div. 00!). 40 N. 
 
 "'7?e fitowell, 15 Misc. 533, 25 N. Y. Supp. 1144: Re Post. 5 App. Div. 
 
 Y. Civ. Proc. Rep. 316, 74 N. Y. S. 113, 38 N. Y. Supp. 977. 
 R. 296, 37 N. Y. Supp. 1127.
 
 COSTS IN SUKROGATE S COURT. Zl i 
 
 Tlie allowance of costs to the comptroller by the surrogate in 
 proceedings taken under chapter 399 of the Laws of 1892 is dis- 
 cretionary.^^^ 
 
 The district attorney in Xew York county should, in cases 
 where he is successful, haA'e his costs taxed according to the rules 
 of the surrogate's court. In cases where he is unsuccessful, and 
 deems himself entitled to the certificate provided for in § 15, he 
 must apply to the court for such certificate, showing his non- 
 success, and must furnish evidence to the satisfaction of the sur- 
 rogate that there was probable cause for issuing the citation and 
 taking the proceedings.^'*^ 
 
 Where the appellate division affirms or reverses, "with costs,'' 
 a final decision of the surrogate made in a special proceeding to 
 assess a tax upon the property of a decedent, the same costs are 
 awarded as are allowed upon an appeal from a judgment. The 
 successful party may also tax his disbursements, although they 
 were not specified in the order of affirmance or reversal. ^'^^ 
 
 "'i?e Hoffman, 76 Hun, 399, 58 N. ***i?e Babcock, 8G App. Div. 563. 
 Y. S. R. 699, 27 X. Y. Supp. 1086. 
 
 ^*^McCarth}fs Estate, 5 Misc. 276, 
 25 N. Y. Supp. 987.
 
 CHAPTER XIX. 
 
 OFFER OF JUDGMENT, TENDER, AND PAYMENT. 
 
 196. Offer of judgment; in general. 
 
 197. How an offer of judgment .should be served. 
 
 198. How affected by the amendment of tlie complaint. 
 
 199. When offer is definite. 
 
 200. How many offer.s may be made. 
 
 201. Offers in justice's court. 
 
 202. Time of service of the offer of judgment. 
 
 203. Service by mail. 
 
 204. Power of the defendant to withdraw his offer. 
 
 205. Amendment of offer of judgment. 
 
 206. Computation of interest in the offer of judgment. 
 
 207. Offer must allow entry of judgment for costs. 
 
 208. When the plaintiff is entitled to the costs of the action. 
 
 209. Offer of judgment by joint debtors. 
 
 210. Effect of offer upon counterclaims. 
 
 211. When the defendant is entitled to costs. 
 
 212. Judgment entered, where plaintiff obtains a recovery and defendant is 
 
 entitled to costs. 
 
 213. Effect of the appellate court modifying the judgment, so that defend- 
 
 ant is entitled to costs. 
 
 214. To what costs plaintiff is entitled upon accepting an offer of judgment. 
 
 215. Additional allowance. 
 
 216. Costs upon the acceptance of an offer of judgment for less than $50. 
 
 217. Offer of judgment in actions upon bonds and mortgages. 
 
 218. Tender after the commencement of a mortgage foreclosure. 
 
 219. Offer of judgment in replevin. 
 
 220. Offer of judgment in an action to foreclose a mechanic's lien. 
 
 221. Tender before suit brought. 
 
 a. When action is commenced. 
 6. Tender to whom. 
 
 c. In what tender must consist. 
 
 d. Waiver by the creditor of a formal tender. 
 
 e. Practice of the defendant to avail himself of the tender. 
 
 f. Waiver of irregularities in pleading tender. 
 
 g. Restrictions imposed upon the tender. 
 
 222. Tender after suit brought. 
 
 a. Statute. 
 
 b. Waiver of irregularity. 
 
 c. In mortgage foreclosure. 
 
 273
 
 OFFER OF JUDGMENT, TENDER, AND PAYMENT. 279 
 
 223. Payment after the commencenient of an action. 
 
 224. Offer to liquidate damages conditionally. 
 224a.Judgment by confession. 
 
 196. Offer of judgment; in general.— The statute governinj,^ 
 tender and offer of judgment is contained in Code Civ. Proc. §§ 
 731-740. 
 
 The provisions of the Code relating to offers of judginent ap- 
 ply to actions in equity, as well as actions at law.^ Earlier 
 ■cases that held otherwise must be deemed to be overruled.- 
 
 197. How an offer of judgment should be served. — The statu- 
 tory requirements must be observed, or the offer may be disre- 
 garded.^ An offer which is a nullity may be disregarded."* It 
 is not necessary even to return it.^ The statute does not require 
 that the original offer be served,'' l)ut the defendant can be com- 
 pelled to file the original offer if it is important to the plaintiff." 
 If, however, it should be held that the service of the original is 
 necessars^, such service is waived where the original and a copy 
 is handed to the attorney and he hands back the original, with 
 admission of the service of a copy thereof.* If the service of 
 the original is required, the failure to serve the original is an 
 
 'Singleton v. Home Ins. Co. 121 Proc. Rep. 172. 10 N. Y. Supp. 939; 
 
 N. Y. 644, 31 X. Y. S. R. 906, 24 N. Warner v. Bahcock, 9 App. Div. 398, 
 
 E. 1021; Kicrnan v. Afiricultural 75 N. Y. S. R. 885, 41 N. Y. Supp. 
 
 Ins. Co. 3 App. Div. 26. 74 N. Y. S. 493; Walker v. Chilson, 65 Hun, 529. 
 
 R. 417, 37 N. Y. Supp. 1070. 20 N. Y. Supp. 527; Mcl-arren v. St. 
 
 '^Stevens v. Yeriane, 2 Lans. 90. John, 14 Hun, 387. 
 
 ^Smith V. Kerr, 49 Hun, 29, 15 N. 'Smith v. lierr, 49 Hun. 29, 15 N. 
 
 Y. Civ. Proc. Rep. 126, 28 N. Y. Y. Civ. Proc. Rep. 126, 28 N. Y. 
 
 Week. Dig. 516, 17 N. Y^ S. R. 351, Week. Dig. 516, 17 N. Y\ S. R. 351. 
 
 1 N. Y. Supp. 454; Mc.Farren v. St. 1 N. Y". Supp. 454; Pfister v. Stumm, 
 
 John, 14 Hun, 387; Riggs v. Wm/- 7 Misc. 526, 27 N. Y. Supp. 1000; 
 
 dell, 17 Hun, 515, Affirmed in 78 N. Markes v. Epstein, 13 N. Y. Civ. 
 
 Y. 586; Leslie v. Walrath, 45 Hun, Proc. Rep. 293. 
 
 18, 26 N. Y. Week. Dig. 450, 9 N. Y. 'Smith v. Kerr, 49 Hun, 29, 15 N. 
 
 S. R. 652. Y. Civ. Proc. Rep. 126, 28 N. Y. 
 
 *Wnrner v. Bahcock. 9 App. Div. Week. Dig. 516, 17 N. Y. S. R. 351, 
 
 398, 75 X. Y. S. R. 885, 41 X. Y. 1 X. Y. Supp. 454. 
 
 Supp. 493; Sares v. Matthews. 39 X. ^Yoonan v. Smith. 12 Abb. X. C. 
 
 Y". S. R. 920, 15 X. Y. Supp. 510. 337, Affirmed in 84 X. Y. 672, with- 
 
 ^Perine v. Wiggins, 18 X. Y. Civ. out opinion.
 
 280 THE LAW OF COSTS IN NEW YORK. 
 
 irregularity which is waived by a failure to return the copy with 
 the objections sj^ecifically pointed out.^ It is not essential that 
 the paper have the original signature of the attorney who sub- 
 scribed it. His name may be either written by himself, or by 
 someone else, or even printed, as long as the signature is treated 
 by the attorney as liis.-^*^ 
 
 Upon the taxation of costs the defendant must produce the 
 original, or else account for its absence. The fact that the of- 
 fice of the defeiidant's attorney, with all its contents, has been 
 destroyed by fire, since the service of the offer, is a sufficient ex- 
 euse.^^ 
 
 198. How affected by the amendment of the complaint. — An 
 offer of judgment is rendered ineftectual for any j)urpose, by an 
 amendment of the complaint, which leaves out some of the 
 causes of action contained in the original complaint.^^ If the 
 amendment is one of form only, the offer will still hold good.^^ 
 The offer must apply to the state of the pleadings at the time it 
 is made.^^ Where the plaintiff is allowed to amend a complaint 
 on the trial, increasing his claim for interest, the defendant 
 must be allowed to amend his offer to meet the change in the 
 complaint, or the court may, as a condition of granting the 
 amendment, make the excess of interest of no avail to defeat the 
 offer.i^ 
 
 ^Markes v. Epstein. 13 N. Y. Civ. f^chmenger, 12 N. Y. Civ. Pioc. Rep. 
 
 Proc. Rep. 293. 312, 9 N. Y. S. R. 516. 
 
 '"Smith V. Kerr, 49 Hun, 29, 1.5 N. ^nVoelfle v. Schnienger, 12 N. Y. 
 
 Y. Civ. Proc. Rep. 126, 28 N. Y. Civ. Proc. Rep. 312, 9 N. Y. S. R. 
 
 Week. Dig. 516, 17 N. Y. S. R. 351, 516; Kilts v. Seeher, 10 How. Pr. 
 
 1 N. Y. Supp. A5\\Barnard v. Heyd- 270. 
 
 rick, 49 Barb. 62. 32 How. Pr. 97, 2 '*Woelfle v. Schmenger, 12 X. Y. 
 
 Abb. Pr. N. S. 47; New York v. Eis- Civ. Proc. Rep. 312, 9 N. Y. S. R. 
 
 ler, 2 N. Y. Civ. Proc. Rep. 125. 516; Tompkins v. Ives, 36 N. Y. 75, 
 
 '\Smi1h V. Kerr, 49 Hun, 29. 15 N. 3 Abb. Pr. N. S. 267, Affirming 30 
 
 Y. Civ. Proc. Rep. 126, 28 N. Y. How. Pr. 13; Kautz v. Vandenburgh, 
 
 Week. Dig. 516, 17 N. Y. S. R. 351, 77 Hun, 591, 60 N. Y. S. R. 496, 2S 
 
 1 N. Y. Supp. 454. N. Y. Supp. 1046. 
 
 '-Thornall v. Crawford, 34 Misc. '^Brooks v. Mortimer, 10 x\pp. Div- 
 
 714, 70 N. Y. Supp. 61; Woelfle v. 518, 42 N. Y. Supp. 299.
 
 OFFER OF JUDGMENT, TEXDEK, AND PAYMENT. 281 
 
 199. When offer is definite. — An offer of jiulgment is definite 
 enough where it offers to allow judgment to be taken against the 
 ilefendant for the amount of the note sued on, less two other 
 notes, with costs and disbursements. The amount for which the 
 offer was made can be ascertained by the clerk by computa- 
 tion. ^« 
 
 200. How many offers may be made. — A defendant may serve 
 as many offers as he desires, and for such different amounts as 
 lie pleases.^^ 
 
 201. Offers in justice's court. — An offer made in an action in 
 justice's court is good in an action in the supreme coiu't which 
 is commenced there for the same cause of action, after a plea of 
 title has l>een interposed in the justice's court. -^^ An offer made 
 in a justice's court refers to that court, and has nothing to do 
 with the awarding of costs upon a new trial in tlie county 
 court.^^ 
 
 is commenced there for the same cause of action, after a plea of 
 judgment and answer, served together, may be deemed ser\^ed 
 together or at different times according to the intention of the 
 parties.^*^ The ])laintiff has ten days after personal service of 
 an offer of judgment, to decide whether he will accept it or not. 
 Tf the case is reached and disposed of before the expiration of 
 that time, the offer is of no effect.^^ Even if the trial has com- 
 
 ^"Burnett v. M'estfoll, 15 How. Pr. ^"Kautz v. Vandenburgh, 77 Hun, 
 
 430; Keese v. Wyman, 8 How. Pr. ."591, GO X. Y. S. R. 49(5, 28 N. Y. 
 
 88. Supp. 1040 ; Ruggles v. Fogg, 7 How. 
 
 "Hihhard v. Randolph, 72 Him, Pr. 324 ; )S'c7rMCider v. </aco6i, 1 Duer, 
 
 626, 56 N. Y. S. R. 431, 25 N. Y. (594, 695, 11 N. Y. Legal Obs. 220, 
 
 Supp. 854. Approved in Tompkins v. Ives, 36 N. 
 
 ^^Niagara Falls Suspension Bridge Y. 75, 3 Abb. Pr. N. S. 267-269. 
 Co. V. Bachman, 4 Lans. 523; Cook -''Hares v. Matthews, 39 N. Y. S. R. 
 
 V. ISiellis, 18 N. Y. 126; Pugsley v. 920, 15 N. Y. Supp. 510; Herman \ 
 
 Kisselburgh, 10 N. Y. 420, 7 How. Lyons, 10 Hun, 111, 2 Abb. N. C. 90 
 
 Pr. 402; Wiggins v. Tallmadge, 7 Pomeroy v. Hulin, 7 How. Pr. 161 
 
 How. Pr. 404; Brown v. Broicn, 6 N. Walker v. Johnson, 8 How. Pr. 240 
 
 Y. 106, 6 How. Pr. 320. Eawley v. Davis, 5 Hun, 642 ; Ferine 
 
 ^^Mock V. Saile, 52 Hun, 198, 17 v. Wiggins, 18 N. Y. Oiv. Proc. Rep. 
 
 N. Y. Civ. Proc. Rep. 121, 23 N. Y. 172, 10 N, Y. Supp. 939. 
 S. R. 307, 5 N. Y. Supp. 149.
 
 282 THE LAW OF COSTS IN NEW YORK. 
 
 menced before the expiration of that time, but is not disposed of 
 until after the expiration of that time, the offer is a nullity. A 
 trial before a referee is commenced when the parties appear be- 
 fore him for trial, and, before the taking of any testimony, per- 
 mission is granted to one of the parties to amend his pleadings, 
 and the trial is adjourned,^^ 
 
 203. Service by mail. — Where an offer is ser^^ed by mail the 
 plaintiff has twenty days within which to accept the offer.^^ 
 
 204. Power of the defendant to withdraw his offer. — The 
 defendant cannot withdraw his offer nntil the end of the period 
 which is given by law to the plaintiff for the consideration of the 
 offer.2^ 
 
 205. Amendment of offer of judgment. — In case of a mistake 
 the court may allow the defendant to amend his offer of judg- 
 ment.-'^ The defendant cannot move the case until the time 
 given by law to the plaintiff for the consideration of the offer 
 has expired.^^ 
 
 The Xew York citv court at general term has held that, where 
 the plaintiff goes to trial before the expiration of the ten days, 
 and recovers the amount of the offer, he cannot then accept the 
 offer of judgment, and the defendant is entitled to costs from the 
 time of his offer.-'^ 
 
 206. Computation of interest in the offer of judgment. — An 
 offer of judgment for a certain amount, "with interest," but hav- 
 ing no date from which the interest can be computed, will be 
 
 ^Warner v. BabcocJ:, 9 App. Div. ""Eagan v. Moore, 2 N. Y. Civ. 
 
 398, 75 N. Y. S. R. 885, 41 N. Y. Proc. Rep. (Browne) 300, 11 Daly, 
 
 Supp. 493. 199, 2 N. Y. Civ. Proc. Rep. (Mc- 
 
 "^Van Allen v. Glass, GO Hun, 546, Carthy) 336; McVicar v. Keating, 
 
 21 N. Y. Civ. Proc. Rep. 127, 39 N. 19 App. Div. 581, 46 N. Y. Supp. 298. 
 
 Y. S. R. 076, 15 N. Y. Supp. 261 ; "''Walher v. Johnson, S How. Pr. 
 
 Sores v. Matthews, 39 N. Y. S. R. 240. 
 
 920, 15 N. Y. Supp. 510. "'Guttroff v. ^S'allach, 3 Misc. 136, 
 
 -*McVirar v. Kcathif/. 19 App. Div. 51 N. Y. S. R. 495, 22 N. Y. Supp. 
 
 581, 46 N. Y. Supp. 298; Hackett v. 745. 
 Edicards, 22 Misc. 659, 49 N. Y. 
 Supp. 609: Walker v. Johnson, 8 
 How. Pr. 240.
 
 OFFER OF JUDGMENT^ TENDEE, AND PAYMENT. 283 
 
 treated as though no otfer of interest was made. To ascertain 
 whether such otter is more favorable than the recovery, it will 
 be compared with the entire recovery, including interest to the 
 date of the offer, but excluding interest after that date, because 
 judgment could be entered on the day that the oITer was served.^* 
 Where damages are liquidated and the cause of action draws 
 interest, and the offer does not contain a provision for interest 
 from any date, interest will be computed on the amount of the 
 offer from its date to the date of the judgment, in ascertaining 
 whether the offer is more favorable than tlie recovery.-^ Or the 
 rule may be stated in another way. Interest which accrued sub- 
 sequent to the offer of judgment cannot be estimated in deter- 
 mining whether a judgment is more or less favorable than the 
 offer.3« 
 
 But when tlie claim is unliquidated, interest cannot be re- 
 covered thereon, and therefore interest cannot be added to the 
 sum offered, for the purpose of determining whether the judg- 
 ment obtained is more favorable than that oft'er.^^ 
 
 207. Offer must allow entry of judgment for costs. — An offer 
 "with costs to date" is a valid offer ; the words ''to date" are mere 
 surplusage. The plaintiff" could enter judgment on the date of 
 the offer.^2 
 
 The cases which held that adding the words "to date" after 
 the words "with costs" invalidated an offer are overruled by the 
 last case cited.^^ 
 
 -^Smith V. Boicers, 3 X. Y. Civ. '"Pile v. Johnson, 47 K Y. 1; 
 
 Proc. Rep. 72. 15 N. Y. Week. Dig. Kelhj v. Bonesteel, 29 Hiin, 546. 
 
 485. ^'Thornall v. Crawford, 34 Misc. 
 
 '"Thornall v. Crairford, 34 Misc. 714, 70 N. Y. Supp. 61; Bathgate v. 
 
 714, 70 N. Y. Supp. 61; Budd v. Haskin, 63 N. Y. 261; Johnston v. 
 
 Jackson, 26 How. Pr. 398; Pike v. Catlin, 57 N. Y. 652. 
 
 Johnson, 47 N. Y. 1; Smith v. Boiv- ^-Lynk v. Weaver, 128 N. Y. 171, 
 
 ers, 3 X. y. civ. Proc. Rep. 72, 15 28 N. E. 508. 
 
 N. Y. Week. Dig. 485; Ilirschspring ^^Henderson v. Bannister, 1 N. Y. 
 
 V. Boe, 20 Abb. N. C. 402, 13 N. Y. City Ct. Rep. 125; Rannetj v. Rus- 
 
 €iv. Proc. Rep. 125; Tihnan v. sell, 3 Duer, 689. 
 Kcane, 1 Abb. Pr. X. S. 23.
 
 284 THE LAW OF COSTS IN NEW YORK. 
 
 208. When the plaintiff is entitled to the costs of the action. — 
 I'he plaintiff is entitled to costs where lie recovers any amount 
 in excess of the offer of judgment It makes no difference that 
 the defendant has been compelled, as a condition of being- 
 granted a favor, to allow the plaintiff to enter the judgment for 
 the amount of the offer, the costs to be determined by the verdict 
 on the amount in dispute. In such a case the plaintiff, when 
 he recovers less than $.50 upon the trial, is entitled to full costs, 
 provided that the entire amount recovered in both judgments 
 exceeds $,50.""* The plaintiff is entitled to costs up to the time 
 of the offer of judgment, although he fails to obtain a more 
 favorable judgment than the offer.^"" The defendant is entitled 
 to costs subsequent to the offer, when the recovery is not greater 
 than the offer. 
 
 209. Offer of judgment by joint debtors. — Section 738 of the 
 Code of Civil Procedure allows an offer of judgment to be made 
 by one of two or more defendants, when the action can be 
 severed. Therefore, if two or more defendants are sued upon 
 a joint liability, an offer by one of the defendants to allow judg- 
 ment to be taken against him is not as favorable as a judgment 
 for a smaller amount, because such a judgment could be enforced 
 only against the joint property of all the defendants and the in- 
 dividual property of the defendant making the offer.'^*^ The im- 
 plied agency resulting from a partnership does not extend to 
 making an off'er of judgment, so as to bind the individual prop- 
 erty of the other partners,"^ unless he had a special authority to 
 
 "ffoe V. Sanborn, 36 N. Y. 93, 3 How. Pr. N. S. 82, 2 N. Y. City Ct. 
 
 Abb. Pr. N. S. 189, 35 How. Pr. 197. Rep. 172, 7 N. Y. Civ. Proc. Rep. 
 
 ^Magnin v. Dinsmore, 46 How. Pr. 428; Emery v. Emery, 9 How. Pr. 
 
 297, 15 Abb. Pr. N. S. 331; Hirsch- 130; Bridenhecker \. Mason, 16 How. 
 
 spring v. Boe, 20 Abb. N. C. 402, 13 Pr. 203; lAppman v. Joelson, N. Y. 
 
 N. Y. Civ. Proc. Rep. 125; Burnett Code Rep. N. S. 161, note. 
 
 V. Westfall, 15 How. Pr. 430. ^'Rich v. Roberts, 18 N. Y. Civ. 
 
 ^Bannerman v. Quackenbush, 13 Proc. Rep. 205, 10 N. Y. Supp. 915; 
 
 Daly, 460, 17 Abb. N. C. 103, 9 N. Y. Garrison v. Garrison, 67 How. Pr. 
 
 Civ. Proc. Rep. 108, Affirming 2 271; Weed v. Bergstresser, 2 Month.
 
 OFFER OF JUDGMENT^ TENDER^ AND PAYMENT. 2bo 
 
 make an offer.^*^ But where one of the defendants is in default 
 and the other defendant makes an offer of judgment, the offer is 
 good, and the plaintiff must recover a sum larger than the oft'er, 
 or he ^vill be compelled to paj costs.^^ 
 
 210. Effect of offer upon counterclaims. — An offer of judgment 
 applies to the pleadings as they are at the time of the offer, and 
 not as they may after\vards become.^" The acceptance of an 
 offer will bar a future action upon any claim set out in the com- 
 plaint, or any counterclaim arising out of the same transaction 
 that would be barred by an entry of judgement upon the causes of 
 action set out in the complaint.^^ It will not bar an indej)endent 
 counterclaim that is set up in an answer served after the offer of 
 judgment.^^ 
 
 It will bar all claims set up in the complaint,"*^ and all coun- 
 terclaims set up in the answer, when the offer is served after the 
 service of the answer.^* 
 
 In ascertaining whether a recovery is more favorable than the 
 offer served before the answer, the amount of counterclaims so 
 independent of the cause of action set out in the complaint that 
 an action thereon would not be barred by the entry of a judg- 
 ment upon default must be added to the recovery obtained by 
 the plain tiff. ^^ A defendant who makes an offer of judgment 
 which is not accepted, and then sets up a counterclaim arising 
 out of the same transaction as the cause of action, is entitled to 
 
 L. Bull. 55; Binney v. Le Gal, 19 ^Kautz v. Vandeniurgh, 77 Hun, 
 
 Barb. 592, 1 Abb. Pr. 283; Hecke- 591, 60 N. Y. S. R. 496, 28 N. Y. 
 
 mann v. Young, 55 Hun, 406, 29 N. Supp. 1046; TompJcins v. Ives, 36 N. 
 
 Y. S. R. 55, 8 N. Y. Supp. Ill; Ever- Y. 75; Fielding v. Alills, 2 Bosw. 489. 
 
 son V. Gehrman, 1 Abb. Pr. 167; ^Bavies v. New York, 93 N. Y. 
 
 Emery v. Emery, 9 How. Pr. 130. 250. 
 
 ^Bridenbecker v. Mason, 16 How. "Bathgate v. Easkin, 63 N. Y. 
 
 Pr. 203. 261. 
 
 ""La Farge v. Chilson, 3 Sandf. ^Tompkins v. Ives, 36 N. Y. 75; 
 
 752, 1 N. Y. Code Rep. N. S. 159. Fielding v. Mills, 2 Bosw. 489; L'ltg- 
 
 *'>Tompkins v. Ives, 36 N. Y. 75. gles v. Fogg, 7 How. Pr. 324; Schnei- 
 
 "Doud V. Smith, 8 Misc. 619, 61 der v. Jacobi, 1 Duer, 694, 11 N. Y. 
 
 N. Y. S. R. 333, 29 N. Y. Supp. 821. Legal Obs. 220.
 
 286 TILE LAW OF COSTS IN NEW YORIC 
 
 costs when the recovery is not for a sum larger than the offer.*® 
 In determining where costs shall fall, it is proper to add to the 
 recovery obtained by the plaintiff, all the counterclaims that he 
 has extinguished, which would not have been barred had he ac- 
 cepted the offer. The extinguishment of counterclaims that 
 would have been barred by the acceptance of the offer must be 
 disregarded for any purpose.^'^ 
 
 211. When the defendant is entitled to costs. — The defendant 
 is entitled to all his costs and disbursements after the service of 
 an offer of judgment which is not accepted, where the plaintiff 
 does not recover a judgment more favorable than the offer, the 
 plaintiff being entitled to costs and disbursements up to the time 
 of the offer.^8 
 
 The jilaintift' is entitled to costs where the defendant makes an 
 offer of judgment which is not accepted, in an action upon two 
 causes of action, where the plaintiff recovers on one cause of 
 action the exact amount of the offer, and 6 cents is allowed hinv 
 on the other.^''* Where a third party, who had an interest in 
 the subject-matter, was brought in at the request of the defend- 
 ant, who then made the plaintiff an offer of judgment, the 
 amount of costs to Avhich the third party was entitled at the 
 time of the offer cannot be added to the recovery, in ascertaining 
 whether the recovery was more favorable than the offer. His 
 costs have nothing to do with the offer."" 
 
 212. Judgment entered, where plaintiff obtains a recovery and 
 defendant is entitled to costs. — Only one judgment should be en- 
 tered when the defendant is entitled to costs after his offer of 
 judgment, which is not accepted. Tlie amount of his costs 
 
 '"ScoviUe V. Kent, 8 Abb. Pr. N. S. '"Dayton v. Parke, 67 Hun, 137, 51 
 17. N. Y. S. R. 542, 22 N. Y. Supp. 613. 
 
 '■'Hchneider v. Jacobi. 1 Duer, 694, ""Singleton v. Home Ins. Co. 121 
 11 N. Y. Legal Obs. 220; Ruggles v. N. Y. 644, 31 X. Y. S. R. 906, 24 N. 
 Fogg, 7 How. Pr. 324. E. 1021. 
 
 ^Magnin v. Dinsmore, 46 How. Pr. 
 297, 15 Abb. Pr. N. S. 331; Burnett 
 V. Weslfall 15 How. Pr. 430.
 
 OFFER OF JUDGMENT, TENDER,. AND PAYAIENT. 287 
 
 slioiUd be deducted from the sum of the recovery and tlie costs up 
 to the time of the offer, and a judgment for the balance should 
 be entered.^^ The attorney for the defendant cannot object to 
 the absorption of the defendant's costs in the judgment, because 
 the costs are due primarily from the plaintiff to the defendant, 
 raid the attorney's right is only derivative/'^^ See § 17^ ante. 
 
 213. Effect of the appellate court modifying the judgment, so 
 that defendant is entitled to costs. — Wliere the appellate court 
 reduces the recovery so that it is less than the offer, the de- 
 fendant is entitled to costs subsequent to the offer the same as 
 though judgment had been rendered for that amount in the first 
 instance.^^ If the offer is not contained in the appeal papers 
 the appellate court cannot amend its remittitur so as to give the 
 defendant costs. The special term has power to give tlie de- 
 fendant the benefit of his offer.^"* 
 
 214. To what costs plaintiff is entitled upon accepting an offer 
 of judgment. — The plaintiff is entitled, upon accepting an offer 
 of judgment, to only those costs and disbursements which he 
 had incurred at the time the offer was served, or that may be 
 necessary to incur to enter up the judgment He cannot tax 
 costs and disbursements for proceedings regularly had in the 
 prosecution of the action, incurred after the receijjt of the offer 
 and before its acceptance.^^ 
 
 215. Additional allowance. — When the recovery is less than 
 the offer of judgment, the defendant is entitled, not only to the 
 
 ''Woatsicorth v. Raij, 28 N. Y. Civ. 7?. Co. 62 N. Y. 290. 1 N. Y. Week. 
 
 Proc. Rep. 6, 52 N. Y. Supp. 498; Dij?. 38. 
 
 Johnson v. FarrcU, 10 Abb. Pr. 384; '^^Doii glass v. Macdiirmid, 2 How. 
 
 Southard v. Becker. 15 Misc. 436, 37 Pr. N. S. 289; Eenderson v. Bannis- 
 
 N. Y. Supp. 927: Runnell v. Griffin, 1ei\ 1 N. Y. City Ct. Rep. 125; 
 
 8 Abb. Pr. 39; Dingee v. Shears, 29 Walker v. Johnson, 8 How. Pr. 240: 
 
 Hun, 210; Warden v. Frost, 35 Hun, Hawley v. Davis, 5 Hun, 642; Van 
 
 141. Allen v. Glass, 60 Hun, 546, 21 N. Y. 
 
 '-■Bulkley v. Back, 22 Jones & S. Civ. Proc. Rep. 127, 39 N. Y. S. R. 
 
 300. 676, 15 X. Y. Supp. 261 ; Herman v. 
 
 "^Sturgis v. Spofford, 58 N. Y. 103. Lyons, 10 Hun, 111; Pomeroy v. Hu- 
 
 ^Lumhard v, Syracuse, B. & N. Y, tin, 7 How. Pr. 161,
 
 288 THE LAW OF COSTS IN NEW YORK. 
 
 costs awarded by statute, but also to such other costs as may he 
 awarded to him in the discretion of the court.^^ A plaintiff, 
 however, is entitled upon the acceptance of an offer of judgment 
 to only the statutory costs, and the court has no power to grant 
 an extra allowance.^' 
 
 216. Costs upon the acceptance of an offer of judgment for less 
 than $50. — It was held under the old Code that where the plain- 
 tiff' accepted an offer of judgment for less than $50 the defend- 
 ant was entitled to costs."** This case was later explained on the 
 ground that the defendant claimed costs in the offer of judg-ment, 
 and therefore he was entitled to them wdien his offer was ac- 
 cepted. This case also held that where the defendant made an 
 offer of judgment, with costs, it meant such costs as the plaintiff' 
 was entitled to under the pleadings and offer, and therefore, 
 where tlie offer was for a sum less than $50 the plaintiff would 
 be entitled to no costs ; and the defendant was not entitled to 
 costs, as he had waived his rights thereto by a stipulation that 
 the plaintiff' might have costs.^^ The proj^er interpretation of 
 such an offer would be such costs to be entered in the judgment 
 as the Code of Civil Procedure grants, and therefore the de- 
 fendant would be entitled to costs. 
 
 217. Offer of judgment in actions upon bonds and mortgages. — 
 An offer of judg-ment may be made in all actions. *^'^ One made 
 in a mortgage foreclosure stands on the same ground as in any 
 other action. *^^ The offer must include the right to enter up a 
 
 ^Commissioners of Pilots v. tSpof- ^'^Joluison v. Sagar, 10 How. Pr. 
 
 ford, 3 Hun, 57, 5 Tlionip. & C. 353; 552. 
 
 Brady v. Durbrow, 3 E. D. Smith, '-Hloffctt v. Deom, 8 X. Y. Civ. 
 
 78 ; London v. Van Etten, 57 Hun, Proc. Rep. 85. 
 
 122. 19 N. y. Civ. Pioc. Rep. 78, 32 ^Lumhard v. Syracuse, B. d- N. Y. 
 
 N. Y. S. R. 439, 10 N. Y. Supp. 802; R. Co. 62 K Y. 290; Singleton v. 
 
 Hirschspring v. Boe, 20 Abb. N. C. Home Ins. Co. 121 N. Y. 644, 31 N. 
 
 402, 13 N. Y. Civ. Proc. Rep. 125. Y. S. R. 90G, 24 N. E. 1021. 
 
 "Pool v. Oshorn, 8 X. Y. Civ. Proc. "Bathgate v. Hasldn, 63 X. Y. 
 
 Rep. 232, note ; Safety Steam Gene- 261 ; Pen field v. James, 56 X\ Y. 659 : 
 
 rator Co. v. Dickson Mfg. Co. 61 Astoi- v. Palache, 49 How. Pr. 231. 
 Hun, 335, 21 X. Y. Civ. Proc. Rep. 
 329, 40 X. Y. S. R. 681, 16 X. Y. 
 Supp. 32.
 
 OFFKU OF JUDGJNIKNT. TKA'UKK. AXL) PAYMENT. 289 
 
 deficiency judgment.*'" In an action at law npon a bond which 
 is secured by a mortgage, for an instahnent of interest, an offer 
 of the whole sum secured by tlie bond and mortgage is not a;^ 
 favorable as a judgment for the instalment of interest, because 
 it is more favorable to have an investment for the principal sum 
 than to have to secure another investment. ^^ 
 
 218. Tender after the commencement of a mortgage foreclosure. 
 — A defendant in a mortgage foreclosure may make a tender, 
 after suit is commenced, of the amount due, and such costs as 
 the parties may agree iipon. If no agreement can be reached 
 the defendant should make an application to the court to settle 
 the amount of the costs. ^* 
 
 The defendant is not entitled to have his mortgage discharged 
 of record after a sufficient tender, until the court has passed 
 upon the question of plaintiff's costs.**'^ The offer must contain 
 an offer to allow a deficiency judgment, where there is a per- 
 sonal liability on the part of the defendant. 
 
 219. Offer of judgment in replevin. — An offer of judgment 
 may be made in a replevin action. ^^ The plaintiff" cannot, upon 
 an acceptance of an offer of judgment for specific property, to 
 which no value is fixed, and of a certain sum as damages, tax 
 costs in excess of the damages named in the offer, where the 
 amount of damages is less than $50.^'^ 
 
 220. Offer of judgment in an action to foreclose a mechanic's 
 lien. — An offer of judgment may be made in an action to fore- 
 close a mechanic's lien.^^ Earlier cases held that the offer must 
 contain a statement that it is made in "discharge of the lien."^*^ 
 
 ^''Rollins V. Barnes, 23 App. Div. ^"ArcJier v. Cole, 22 How. Pr. 411. 
 
 ■240, 5 N. Y. Anno. Cas. 153, 48 N. ^TTausauer v. Machmvicz, 54 App. 
 
 Y. Supp. 779; Bettis v. Goodwill, 32 Div. 23, GG N. Y. Supp. 340. 
 
 How. Pr. 137. ^^Schulfe v. Lestershire Boot d- 
 
 "^Hoivard v. Farley, 3 Robt. 599. Shoe Co. 88 Hun. 226, 68 N. Y. S. R. 
 
 '*Pratt V. Ramsdell, 16 How. Pr. 258, 34 N. Y. Supp. 663: Pfister v. 
 
 .59, 7 Abb. Pr. 340, note. f^tumm, 7 Misc. 526, 27 N. Y. Supp. 
 
 "'^Reimer v. DiedricJc, 4 N. Y. Week. 1000. 
 
 Dig. 230. '"Hall v. Dennerlein, 39 N. Y. S. 
 COSTS 19.
 
 290 THE LAW OF COSTS IN IS^EW YORK. 
 
 Later cases have held that offers which did not contain tliese 
 words were goodJ^ An offer of judgment nnist contain an offer 
 to allow a deficiency judgment to he entered against the defend- 
 ant, where there is a joersonal liability on his part."^ 
 
 An offer by an owner to allow tlie contractor to take judgment 
 for a certain sum and costs.less the amount due the subcontractor 
 on his lion, is not as favorable as a judgment for a smaller sum, 
 out ()f which the subcontractor was to be paid, because by the 
 judginent the debt of the contractor to the snbeontractor is paid, 
 but nndei- the offer the lien of the contractor was to be dis- 
 charged, and his debt to the subcontractor was still unpaid.'^ 
 
 The serving of an offer of judgment in a mechanic's lien fore- 
 clo!,ure or any other equity action does not deprive the court of 
 its discretion as to costs. The offer only applies where costs are 
 allowed. If the court shall decide upon tlie disposition of a 
 case that no costs shall be allowed, the defendant has no right to 
 ihe costs which are usually allowed.'^"' 
 
 221. Tender before suit brought. «. When action is coni- 
 nii need. — A tender on the day of signing the summons, but be- 
 fore its service, is a tender before suit brought.'"^ This is so,, 
 although the summons has been delivered to the sheriff for serv- 
 ice.'^^ 
 
 />. Tender to irhoni. — The tender must be made to the creditor 
 or some person authorized to receive it on his behalf.''' ''' Tf the 
 cicditor absents himself for the purpose of avoiding his debtor 
 the tender may be made to a person at his house.'^^ 
 
 R. 67, 14 N. Y. Siipp. 796; Burton '*KeUy v. West, 4 Jones & S. .304. 
 
 V. RocJcicell, 63 Hun, 163. 44 N. Y. '"Knight v. Beach, 7 Abb. Pr. N. 
 
 S. R. 487, 17 X. Y. Supp. 66.5. S. 241; Broun v. Ferguson, 2 Denio, 
 
 '"Kennedy v. McKone. 10 App. 106; Hull v. Peters, 7 Barb. 331. 
 
 Div. 88, 41 X. Y. Supp. 782. '"Grussy v. Schneider, 50 How. Pr. 
 
 ''Kennedy v. ^fcKone, 10 App. 134; Hargous v. Lahens, 3 Sandf. 
 
 Div. 88, 41 N. Y. Supp. 782. 213. 
 
 '■Fargo v. Hehner, 43 Hun, 17, 25 "Judd v. Ensign. 6 Barb. 258; 
 
 X. Y. Week. Di^. 405, 6 X. Y. S. R. Smith v. Smith, 2 Hill, 351,25 Wen<L 
 
 584. "^ ' 405. 
 
 '^Conolly V. Hyams, 42 App. Div. 
 63, 58 X. Y. Supp. 932.
 
 OFFER OF JUUGMEA'T, TENDEK. A^•D PAVEMENT. 291 
 
 c. In ivltai tender must consist. — The tender may be made 
 Avith any kind of money or by check, unless the creditor objects 
 to the kind of money or payment by check at the time the tender 
 is made. By not objectina- he waives any irreguhn-ity that conhl 
 have been cured. ^^ This is especially so where the creditor has 
 requested a check and refuses one on other grounds.'^ The old 
 rule used to be that the tender must be made in legal tender.^'' 
 But the strictness of this rule has been modified by the necessi- 
 ties and usages of modern commercial life. 
 
 d. Waiver hy the creditor of a formal tender. — When the 
 debtor is able and willing to pay his debt, an actual tender may 
 be waived by the creditor.^^ A tender need not be made to one 
 who states in advance that he will not receive the money.^^ If 
 the tender is rejected on a specified gTOund, no other objection 
 which could be obviated can afterwards be raised.^^ 
 
 e. Practice of the defendant to avail himself of the tender.- — 
 A tender before suit brought, to be of any avail, must be pleaded 
 and the money paid into court before, or at the time of, the 
 service of the answer.*^* 
 
 The money need not be brought into court where the tender 
 has only the effect of extinguishing a lien, and df)es not discharge 
 
 ^Duffjf V. O'Doiwran. 46 N. Y. man v. Pulfs, 21 N. Y. .547: Congrc- 
 
 22.3: Lh)lc v. Macl\ 2.i Misc. 615. .56 gation Beth Elohiin v. Central 
 
 N. Y. 8upp. 11.";. Presby. C7(«rc/), 10 Abb. Pr.N. S. 484; 
 
 ''^MifcheU v. Verninut Copper M\n. Duffy v. O'Donovan, 46 N. Y. 223. 
 
 Co. 47 How. Pr. 218. "'Simpson v. French, 25 How. Pr. 
 
 ^"Grusfiy v. l<chneifler. 50 How. Pr. 464; Plainer v. Lehinan, 26 Hun, 
 
 134: Block v. Garfiehl. 30 Misc. 82L 374: Heywood Boot d Shoe Co. v. 
 
 61 N. Y. Supp. 918. Ralph, 82 Hun. 418, 63 N. Y. S. R. 
 
 "^lAiik V. l/r/cA-, 25 :\[isc. 615, 56 580, 31 N. Y. Supp. 263; Wilson v. 
 
 N. Y. Supp. 115: Voupell v. Wood- Doran. 110 N. Y. 101, 17 N. E. 688; 
 
 vard, 2 Sandf. Cli. 143: Dona v. Crouin v. Epstein, 1 N. Y. Supp. 69, 
 
 Fiedler. 1 E. D. Smitli. 463. Affirmed Affirnif-d in 15 Daly, 5, 19 N. Y. S. R. 
 
 in 12 N. Y. 40. 62 Am. Dec. 130: 806, 2 N. Y. Supp. 709; Becker v. 
 
 Lawrence v. Miller. 13 N. Y. Week. Boon, 61 "NT. Y. 317; Halpin v. 
 
 Difr. 124. Pha-nix Ins. Co. 118 N. Y. 165, 23 
 
 "'Cashman v. Martin, 50 How. Pr. N. E. 482: Sheridrn v. Smith, 2 Hill. 
 
 337: Shair v. Republic L. Ins. Co. 538; Broun v. Ferguson, 2 Denio, 
 
 69 X. Y. 286. 196. 
 
 ^^Hull V. Peters, 7 Barb. 331 ; Car-
 
 292 THE LAW OF COSTS IN NEW YORK. 
 
 the debt.*^ If the plea of tender is insufficient or irregular it 
 may be disregarded.^^ If the defendant pleads tender, but does 
 not pay the money into court, the answer may be returned as a 
 nullity.^' It is too late to pay the money into court on the day 
 of trial.^^ The defendant must prove upon the trial both tender 
 and payment into court.^'' 
 
 If the plaintiff does not recover a judgment more favorable 
 than the tender, he must pay costs. ^^^ 
 
 The defendant must also serve notice on the plaintiff that he 
 has paid the money into court. Whether the notice in the plead- 
 ing is sufficient has not been definitely determined.^^ 
 
 Pleading the payment into court is probably sufficient.''^ 
 
 f. Waiver of irregularities hi pleading tender. — There is a 
 lack of harmony in the decisions as to what acts are mere matter 
 of practice the nonperformance of which, therefore, may be 
 waived as irregularities, and what are absolutely required, and 
 therefore cannot be waived. 
 
 It has been held that the payment of money into court, plead- 
 ing that fact, and giving notice of such payment, other than that 
 contained in the pleading, are more matters of practice, and a 
 failure to perform any of them is an irregularity which may be 
 waived. ^^ 
 
 ^^Cafis V. Higenbotam, 100 N. Y. ^Wilson v. Doran, 110 N. Y. 101. 
 
 248, 3 N. E. 189; Kortright v. Cadij, 17 N. E. 688; Sheriden v. Smith, 2 
 
 21 N. Y. 343. Hill, 538. 
 
 ^"Sheridan v. Smith, 2 Hill, 533; ^-Becker v. Boon, 61 N. Y. 317; 
 
 Simpson v. French, 25 How. Pr. 464; Platner v. Lehman, 26 Hun, 374; 
 
 Plainer v. Lehman, 26 Hun, 374. Simpson v. French, 25 How. Pr. 464: 
 
 ^''Simpson v. French, 25 How. Pr. Mela v. Geis, 3 N. Y. Civ. Proc. Rep. 
 
 464. 152. 
 
 ^Heywood Boot & Shoe Co. v. ^'Sheriden v. Smith, 2 Hill, 538: 
 
 Ralph, 82 Hun. 418, 63 N. Y. S. E. Wilson v. Doran, 110 N. Y. 101, 17 
 
 580, 31 N. Y. Supp. 263: Fallcenberg N. E. 688; Platner v. Lehman, 2(5 
 
 V. Bash, 33 ]\Iiso. 607, 9 N. Y. Anno. Plun. 374; Knight v. Beach. 7 Abb. 
 
 Cas. 132, 67 N. Y. Supp. 1111. Pr. N. S. 241; Roosevelt v. yew York 
 
 ^^Logue v. Gillick, 1 E. D. Smith, tC H. R. Co. 45 Barb. 554, 30 How. 
 
 398. Pr. 226. 
 
 "^Logue v. Gillicl; 1 E. D. Smith, 
 398; Archer v. Cole, 22 How. Pr. 
 411.
 
 OFFER OF JUDGMENT, TENDEE, AND PAYMENT. 293 
 
 This would seem to be the sensible rule and the one in har- 
 mony with the rest of our practice. The servdce of a pleading 
 too late, or one that is unverified when it should be verified, and 
 many other acts, are irregularities which may be waived. It 
 would seem, therefore, that if the money is actually paid into 
 court, and the plaintiff has proceeded with the action as though 
 all the formal requirements had been fulfilled, he will not be 
 allowed to retrace his steps and take an objection to the defend- 
 ant's method of procedure which he should have taken promptly. 
 Where the money has never been paid into court, of course the 
 plea of tender must fail.®* 
 
 The plaintiff is entitled to judgment, although the tender was 
 sufficient and was kept good. It only stops the running of in- 
 terest and costs.^^ The defendant is entitled to have the question 
 of tender determined, so as to fix the question of costs. The 
 plaintiff cannot take the money out of court, and have the case 
 dismissed without cost*. Where he takes the money out of court, 
 he should tender the defendant his costs to that time. If he does 
 not do this, the defendant is entitled to costs up to the time that 
 the case is finally disposed of.®^ 
 
 If the defendant agreed to pay money at a certain time and 
 place, and he is sued therefor without demand, he must allege 
 that he was ready and willing to pay it at the time and place, 
 plead tender, and pay the money into court to save himself from 
 costs. 
 
 Merely alleging that he was ready and \^^lling to pay will not 
 be sufficient.^^ 
 
 g. Restrictions imposed upon Ihe fender. — A tender may al- 
 ways be restricted by such conditions as, by the terms of the con- 
 
 '*Becker v. Boon, 61 X. Y. 317; '^Mela v. aci.<i, 3 N. Y. Civ. Proc. 
 
 Railway Advertising Co. v. Posner, Rep. 152. 
 
 31 Misc. 783, 05 N. Y. Supp. 226; ^'Locklin v. Moore, 5 Lans. 307; 
 
 Eddy V. O'Eara, 14 Wend. 221; Sheriden v. Smith, 2 Hill, 538; 
 
 Wilder v. Seehje, 8 Barb. 408. Roosevelt v. Neto York d H. R. Co. 
 
 ^Kelly V. West, 4 Jones & S. 304. 45 Barb. 554; Simpson v. French, 25
 
 294 THE J. AW OF COSTS IN NEW YORK. 
 
 tract, are conditions precedent, or simultaneous or proper to be 
 performed bj the party to whom the tender is made.^*^ But a 
 tender on the conditi(m that it extinguishes a lien is bad.^^ A 
 tender upon the condition of receiving a receipt in full is bad'/^"' 
 or upon condition that the creditor sign a satisfaction piece of a 
 bond and mortgage.^ ^^ 
 
 222. Tender after suit brought. a. Statute. — The statute 
 governing such tenders is contained in §§ 731 and 732 of the 
 (.*ode of Civil Procedure, which are as follows: Sec. 731. 
 "^Vhere the complaint demands judgment for a sum of mone_N 
 only, and the action is brought to recover a sum certain, or which 
 may be reduced to certainty by calculation, or to recover dam- 
 ages for a casual or involuntary personal injury, or a like injury 
 to property, the defendant or his attorney may, at any time be- 
 fore the trial, tender to the plaintiff or his attorney such a sum 
 of money as he conceives to be sufficient to make amends for the 
 injury, or to pay the plaintiff's demand, together with the cost- 
 of the action, to that time." 
 
 Sec. 732. "A tender, made as prescribed in the last section, 
 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 ac- 
 cepts the tender." 
 
 These sections apply only to those courts mentioned in subd. 
 4 of § 334Y of the Code of Civil Procedure, — the supreme court, 
 county court, and city court of the city of ^ew York.-^^^ 
 
 How. Pr. 464; Caldwell v. Cassidy, 45 Barb. 579; Frost v. Yonkers Sav. 
 
 8 Cow. 271. Banlc, 70 N. Y. 553. 26 Am. Rep. 627. 
 
 "^Cass V. Higenbotam, 100 N. Y. '»= Code Civ. Proc. § 3347, subdiv. 
 
 248, 3 X. E. 189; Wheelock v. Tan- 6; licimer v. Diedrick, 4 N. Y. Week. 
 
 ner, 39 N. Y. 481. Dig. 230; Re Clark, 40 N. Y. S. R. 
 
 ^Xotjes V. Wyckoff, 114 N. Y. 204. 12, 45 N. Y. Supp. 370; Ellensfein 
 
 23 X. Y. S. R. 105, 21 N. E. 158. v. Alee, 12 Misc. 112, 66 X. Y. S. R. 
 
 ^"HVood V. Hitchcock, 20 Wond. 47. 695. 33 N. Y. Supp. 94. 
 
 ^"^Roosevelt v. Bull's Head Bank,
 
 OFFEK OF JUDGMENT, TENDER, AND PAYMENT. 295 
 
 A tender after suit brought, to be of any avail, must include 
 interest upon the claim and costs to the time of the tender,^"-' 
 even in an action in equity.'''* In an action in the district court, 
 where the defendant admits part of the claim and pays it into 
 the court, the plaintiff, in any event, is entitled to a judgment 
 for that amount and costs to the time of tender.'''^ 
 
 If a tender is made according to §§ 731-734 of the Code of 
 Civil Procedure, no conditions can be imposed upon paying the 
 money into court or taking it out, except those warranted by the 
 statute. ■'^^ Where a defendant makes a tender in an action after 
 the judgment has been reversed, with costs to abide the event, 
 the tender must include all the costs of the action, including the 
 costs in the appellate court, because the tender, if accepted, 
 would decide the action in favor of the plaintiff, and the costs 
 would then belong to him.^'^'^ 
 
 h. Waiver of irregular itij. — The statutory notice required by 
 § 732 of the Code of Civil Procedure may be waived by the 
 plaintiff going to trial, and not raising that objection.^ •'^ But 
 where an objection is taken on the trial, of the failure to give 
 such notice, the statutory notice is not waived. '^'^ 
 
 c. In mortgnge foreclosure. — Sec. 1634. "Where an action is 
 brought to foreclose a mortgage upon real property, upon 
 which a portion of the principal or interest is due, and another 
 portion of either is to become due, the complaint must be dis- 
 missed, without costs against the plaintiff, upon the defendant 
 paying into court, at any time before a final judgment directing 
 a sale is rendered, the sum due and the plaintift"'s costs." 
 
 Sec. 1035. "In a case specified in the last section, if, after a 
 
 ^'^^ Bernstein v. Lei-y, 34 ]\Iisc. 772. ^"'Stover v. Chasse, 9 Misc. 45, 59 
 
 68 X. Y. Siipp. 8.33. N. Y. S. R. 671, 29 N. Y. Supp. 291. 
 
 ^"^Eaton V. Wells, 22 Hun, 123. ^"^Tatjlor v. Brooklyn Elev. R. Co. 
 
 ^"^Ferree v. Ellsv:orth, 47 N. Y. S. 18 X. Y. Civ. Proc. Eep. 72, 27 X. Y. 
 
 E. 119. 19 X. Y. Supp. G59. S. R. 447, 7 X. Y. Supp. 625. 
 
 "^'Beil Y. Supreme Council A. L. ^"^Milson v. Doran, 110 X. Y. 101. 
 
 of H. 42 App. Div. 168, 29 X. Y. Civ. 17 X. E. 688. 
 Proc. Rep. 332, 58 X. Y. Supp. 1049.
 
 296 THE LAW OF COSTS IN NEW YORK. 
 
 final judgment directing a sale is rendered, but before the sale 
 is made, the dofeiidant pays into court the amount due for prin- 
 cipal and interest and the costs of the action, together with the 
 expenses of the proceedings to sell, if any, all proceedings upon 
 the judgment must be stayed; but upon a subsequent default in 
 the payment of principal or interest the court may make an order 
 directing the enforcement of the judgment for the purpose of 
 collecting the sum then due." 
 
 223. Payment after the commencement of an action. — A de- 
 fendant who, after the commencement of an action, makes a pay- 
 ment to the creditor personally, may set up the fact of such pay- 
 ment in his answer. Costs will be determined in such a case by 
 the amount due at the time of the trial,^^*' unless the plaintiff's 
 right to costs has been expressly reserved by agreement.-^ ^-^ 
 
 A plea of payment, which is sought to be upheld by proof of 
 payment to a third person, without the knowledge or consent of 
 the plaintiff, will not be substantiated by such proof.^^^ A plain- 
 tiff is not bound by a payment to a clerk after an action has been 
 commenced, unless lie retains the money. The defendant's plea 
 of payment when the plaintiff retains the money will be proper, 
 and he will be entitled to costs. ^^"" Where the defendant makes a 
 payment to a clerk, without the costs, the plaintiff' is entitled to 
 the costs of the iction, because the pajTiient was unauthorized, 
 unless he retains the njoney.^^^ 
 
 224. Offer to liquidate damages conditionally. — Sec. 736. 
 "In an action to recover damages for breach of a contract, the 
 
 ^^"Bronner Brick Co. v. M. M. Childs, 2S Knn, 303; Eaton \. Wells, 
 
 Canda Co. 18 Misc. 681, 42 N. Y. 82 'S. Y. 57(i. 579; Burke v. Phillips, 
 
 Supp. 14. 20 Misc. 413, 2G N. Y. Civ. Proc. 
 
 ^''Bronner Brick Co. v. M. M. Rep. 374, 4.5 N. Y. Supp. 1024 ; Safe* 
 
 Canda Co. 18 Misc. (581, 42 N. Y. v. Norris, 23 Jones & S. 269. 
 
 Supp. 14: Watson v. Depeyster. 1 "-Moffatt v. Henderson, 16 Jones 
 
 Cai. 66; Johnson v. Brannun, :■> & S. 449. 
 
 Johns. 268; Htewart v. Elice, 2 '"A'eeJer v. Van Wie, 49 How. Pr. 
 
 Paige, 604; Warfield v. Watkins. 30 97. 
 
 Barb. 395; Bendit v. Anneslejf. 42 ^'*Bogardus v. liichtmeyer, 3 Abb. 
 
 Barb. 192, 27 How. Pr. 184; Keeler Pr. 179; People v. Banker, 8 How. 
 
 V. Van Wie, 49 How. Pr. 97; Rice v. Pr. 258.
 
 OFFER OF JUDGMENT^ TENDER^ A2^D PAYMENT. 297 
 
 defendant's attorney may, with the answer, serve upon the plain- 
 tiff's attorney a written offer that if the defendant fails in his 
 defense the damages may be assessed at a specified sum. If the 
 plaintiff serves notice that he accepts the offer, with or before 
 the notice of trial, and damages are awarded to him on the trial, 
 they must be assessed accordingly." 
 
 Sec. 737. "If the plaintiff does not accept the 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 preparing for the 
 trial of the question of damages. The expenses must be ascer- 
 tained and the amount thereof determined by the judge or the 
 referee by or before whom the cause is tried." 
 
 224a. Judgment by confession. — Upon the entry of a judg- 
 ment by confession the creditor is entitled to tax $15 costs, be- 
 sides the disbursements taxable in an action.^ ^^ 
 
 '"Code Civ. Proc § l-iTo.
 
 CHAPTEE XX. 
 
 COSTS ON APPEAL FROM A JUSTICE'S COURT. 
 
 225. Costs to perfect the appeal. 
 
 226. Where a new trial is not hud in the appellate court. 
 
 a. Statute. 
 
 6. Where there is no respondent. 
 
 c. Where both parties appeal. 
 
 227. Where a new trial is had in the appellate court. 
 
 228. Offer to compromise before the return. 
 
 229. What is a more favorable judgment. 
 
 230. Costs on appeal from county court to the appellate division of the 
 
 supreme court. 
 
 231. Costs on bastardy proceedings in the county court. 
 
 232. Special provisions relating to the municipal court of New York city. 
 
 a. jMotions. 
 
 b. Apj)eals. 
 
 c. Opening defaults. 
 
 (I. Costs upon the reversal of tlie judgment. 
 
 e. Costs upon the affirmance of the judgment. 
 
 f. Costs when the judgment is moililied or a new trial is ordered. 
 
 225. Costs to perfect the appeal. — To render an appeal to the 
 county court effectual the appellant must pay the costs of the 
 justice's court and the charge of two dollars for making the re- 
 turn as provided by § 3047 of the Code of Civil Procedure.^ 
 
 Upon good cause shown, the county court may, in its discre- 
 tion, allow these fees to be paid n^inc pro tunc.^ The discretion 
 of the county court in refusing or granting such a favor cannot 
 be reviewed by the appellate division, because the appellate di- 
 vision has not the power to review the discretionary order of a 
 different court, unless it appears that that court has exercised its 
 
 ^Grisicold v. Tan Deusen 2 E. D. Hays, 40 App. Div. 5.57. .58 N. Y 
 Smith, 178; Thomas v. Thomas, 18 Supp. 35. 
 
 Hun, 481 ; Kenuey v. Liven/ Stable "Black v. Maifland. 1 App. Div. 6, 
 Keepers' Asso. 89 Hun. 190. 09 X. Y. 71 N. Y^ S. R. 669, 36 X. Y. Supp. 
 S. R. 237. 35 X. Y^ Supp. 8; Goss v. 739: Code Civ. Proc. § 3049. 
 
 298
 
 COSTS ON APPEAL FROM JUSTICe's COUliT. -"-^'i^ 
 
 discretion arbitrarily." The appellant must also pay the addi- 
 tional costs allowed bv § 3129 of the Code of Civil Procedure 
 upon his appeal from a judgment of the justice's court of the 
 city of Brooklyn* or the city of Albany,^ or the additional costs 
 allowed by any city court which has the same methods of appeal 
 as justice's courts. 
 
 But no costs and disbursements such as stenographer's fees 
 can be incurred and taxed without the express warrant of law.® 
 The costs of respondent which the appellant pays to take the 
 appeal, belong to the respondent and must be paid to him. The 
 appellant's onh" remedy, if he thereafter becomes entitled to 
 them, is to include them in his judgment under § 3060 of the 
 Code of Civil Procedure.''^ He cannot maintain an action 
 against respondent for them.^ Where costs are awarded to the 
 appellant, he ma^^ include in his disbursements the costs and 
 fees paid to the justice upon taking the appeal; and where the 
 judgment rendered by the justice was against him, he may also 
 include in those disbursements the costs of the action before the 
 justice which he w^ould have been entitled to recover in the judg- 
 ment of the justice if that judgment had been in his favor.® 
 
 226, Where a new trial is not had in the appellate court. 
 a. Statute. — The question of costs upon the decision of an ap- 
 peal, where a new trial is not had, is regulated by §§ 3066 and 
 3067 of the Code of Civil Procedure, which are as follows: 
 
 Sec. 3066. ''Upon an appeal, provided for in this article the 
 award of costs is regulated as follows: 
 
 ^Goss V. Hays, 40 App. Div. 557. ''Shericood v. Travelers Ins. Co. 12 
 
 58 N. Y. Supp. 35. Daly, 137, 65 How. Pr. 193, 3 N. Y. 
 
 *Kenney \. Livery Stable Keepers' Civ. Proc. Rep. 281; Kenney v. Liv- 
 
 Asso. 89 Hun, 190, 69 N. Y. S. R. ery Stable Keepers' Asso. 89 Hun, 
 
 237, 35 N. Y. Supp. 8. 190, 69 N. Y. S. R. 237, 35 N. Y. 
 
 ^Sherwood v. Travelers Ins. Co. 12 Supp. 8. 
 
 Daly, 137; Schwemmer v. Stratton, ^Bradley Salt Co. v. Meinhold, 23 
 
 49 k Y. S. R. 537, 22 N. Y. Supp. Misc. 468, 52 N. Y. Supp. 679. 
 
 523. 'Code Civ. Proc. § 3060; Jacks v. 
 
 ^Cohen v. Weill, 32 Misc. 198, 65 Darrin, I Abb. Pr. 232. 
 N. Y. Supp. 695.
 
 300 THE LAW OF COSTS IN NEW YORK. 
 
 "T. If the appeal is dismissed because neither party brings it 
 tc) i\ hearing, as prescribed in this article, costs shall not be 
 awarded to either party. 
 
 ''II. If the judgment is reversed for an error in fact, not 
 affecting the merits, or if a new trial is directed, before the 
 stime or another justice, as prescribed in this article, the costs of 
 the appeal are in the discretion of the appellate court. 
 
 "III. If the judgment is affirmed, costs must be awarded to 
 the respondent. 
 
 "IV. If the judgment is reversed, costs must be awarded to 
 the appellant. 
 
 "V. If the judgment is affirmed only in part, the costs, or 
 such a part thereof as to the appellate court seems just, not ex- 
 ceeding $10 besides disbursements, may be awarded to either 
 party." 
 
 Sec. oOGT. "Upon an appeal, provided for in this article, 
 costs, when awarded, must be as follows, besides disbursements r 
 
 "To the appellant, upon reversal, $30. 
 
 "To the respondent, upon affirmance, $25." 
 
 Costs are in the discretion of the appellate court, only when 
 the judgment is reversed for an error in fact, not affecting the 
 merits,^" or a new trial is directed,^ ^ or the judgment is affirmed 
 in part,^^ in which case costs in the appellate court are in the 
 discretion of the court, not exceeding $10 and disbursements and 
 costs below. ^^ 
 
 Upon the reversal the appellant is entitled, as of course, to $30 
 costs.^^ Upon an appeal in summary proceedings, costs are the 
 
 ^"Monroe v. White, 25 App. Div. Van Doren, I ^. T). Smith. 411 ; Main 
 
 292, 49 N. Y. Siipp. .517. v. Eagle, 1 E. D. Smith, 619; Chapin 
 
 "Code Civ. Proc. § 3066, subd. 2. v. Churchill, 12 How. Pr. 367; Sny- 
 
 ^^Compton V. Long Island R. Co. der v. Goodrich, 2 E. D. Smith, 84; 
 
 1 N. Y. S. R. 554. Wood v. Broum, 6 Daly, 428; Hard- 
 
 '^Code Civ. Proc. § 3066, subd. 5; ing v. Ellston, 19 N. Y. Civ. Proc. 
 
 Germ an- American Bank v. Milliman, Rep. 252, 13 N. Y. Supp. 550; Eisler 
 
 31 Misc. 87. 65 N. Y. Supp. 242. v. Union Transfer <& Storage Co. 16 
 
 "Code Civ. Proc. § 3066, subd. 4; Daly, 456, 12 N. Y. Supp. 732. 
 Code Civ. Proc. § 3067; Hahn v.
 
 COSTS ON APPEAL FROM JUSTICe's COUKT. 301 
 
 same as upon an appeal irom a jiidgraent^^ Upon affirmance of 
 a judgment the respondent is entitled to $25 besides disburse- 
 ments.^** The judgment will be affirmed with costs if the re- 
 turn does not show what judgment, if any, has been rendered.^^ 
 Upon a reversal or affirmance the appellate court has no powei- 
 to relieve the defeated party from costs.^** 
 
 b. Where there is no respondent. — Where plaintiff appeals 
 from a judgment dismissing his complaint, where there is no 
 appearance in the lower court or on the appeal, no costs can be 
 awarded whether the judgment is affirmed or reversed. ^^ 
 
 c. Where both parties appeal. — Where both parties appeal 
 and the judgment is affirmed, costs must be awarded to each, 
 but the order must provide that they offset each other.^*^ 
 
 227. Where a new trial is had in the appellate court. — Wlien 
 costs are awarded the successful party is entitled to tax, besides 
 the disbursements, the following costs : 
 
 For all proceedings before notice of trial, $15. 
 
 For all subsequent proceedings before trial, $10. 
 
 For the trial of an issue of law, $15. 
 
 For the trial of an issue of fact, $20. 
 
 For the argument of a motion for a new trial on a case, $15. 
 
 For each term not more than five, at which the appeal is reg- 
 ularly on the calendar, excluding the term at which it is tried 
 or otherwise disposed of, $10.-^ 
 
 The amount of disbursements are the same, as where no trial 
 is had in the appellate court. See § 225, last part. 
 
 An offer to compromise after the action is deemed at issue is 
 
 "Code Civ. Proc. § 2260; Harrison ^^Kafz v. Diamond, 16 Misc. 577, 
 
 V. Sioart, 34 Hun, 259. 74 X. Y. S. R. 174, 38 N. Y. Supp. 
 
 "Code Civ. Proc. § 3006, subd. 3, 766. 
 
 and § 3067. -"Marl In v. Tarbox, 23 Misc. 761, 
 
 "Woodside v. Pender, 2 E. D. 51 N. Y. Supp. 319. 
 
 Smith, 390. " Code Civ. Proc. § 3073. 
 
 ^^Logue v. Gilliclc, 1 E. D. Smith, 
 398 ; Compton v. Long Island R. Co. 
 1 N. Y. S. R. 554.
 
 302 THE LAW OF COSTS IN NEW YOEK. 
 
 provided for bj § 3072 of the Code of Civil Procedure. Tliis 
 offer may be made by either party, and may be with or without 
 costs. If the offer is not accepted and the party to whom it i? 
 made fails to obtain a more favorable judgment, he cannot re- 
 cover costs from the time of the offer, but must pay costs from 
 that time. Where the offer of judgment is made after a verdict 
 is set aside by the county court and a new trial ordered, but be- 
 fore the new trial, only one item for proceedings before notice 
 of trial, and one item for all subsequent proceedings before trial, 
 can be taxed by the party accepting the offer.^^ 
 
 228. Offer to compromise before the return. — Section 3070 of 
 the Code of Civil Procedure has been amended several timCvS^ 
 and takes the place of a part of § 371 of the Code of Pro- 
 cedure. Many cases have been rendered ol^solete by these 
 amendments, and the practitioner sliould examine veiy closely 
 cases decided before 1895, when the present law went into effect. 
 The history of the legislation on this point is reviewed b\' 
 Judge Vann in Pierano v. Merritt, 148 X. Y. 289, 12 :N. E. 718, 
 
 The offer may be made by the party in person, or by his attor- 
 neys.^^ Where neither party m.akes an offer of judgment, thf^ 
 party who recovers judgment is entitled to costvS. It makes no 
 difference how small the recovery is,^^ or if it is simply a verdict 
 of no cause of action, thus reversing an afHrmative judgment in 
 favor of the plaintiff.^^ 
 
 If only one party makes an offer, which is not accepted, and 
 the recovery is more favorable to the opposite party than the 
 offer, neither party is entitled to costs, the defeat-ed party be- 
 cause the recovery is larger than the offer, the successful party 
 
 ■^Wheeler v. Moweri?, 16 Misc. 331, ^Clark v. Mahacher, 20 App. Div. 
 39 N. Y. Supp. 731. 301, 46 N. Y. Siipp. 1081, In Effect 
 
 ^^Shermmi v. tShisler, 6 Misc. 203, Overruling Church v. Millet; 4G 
 27 N. Y. Supp. 215. How. Pr. 525; Vandericerken v. 
 
 -*Pierano v. Mcrritt, 148 N. Y. 293, Brown, 38 Hun, 234. 
 42 N. E. 718; Munson v. Ctirtxs, 43 
 Hun. 214; Goodenouqh v. Billings, 
 21 N. Y. Week. Di<^. 405.
 
 COSTS OX APPEAL FKOil JUSTICES COUKT. 
 
 303 
 
 because he did not make an offer.^^ There are cases which hohl 
 that if the defendant makes an ofPer which is not acce])ted, and 
 the plaintiff makes no offer, and the recovery is less favorable tc 
 the defendant than the offer, costs will be awarded under § 322S 
 of the Code of (Jivil Procedure, to the plaintiff if he recovers 
 more than $50.'' Or if the complaint is dismissed or the re- 
 covery is less than $50, costs will be awarded to the defendant.-^ 
 The last clause is in direct contradiction to McKuskie v. Hena 
 ricl-f^on, 128 ^N". Y. 555, 28 X. E. 650, but the judge who wrote 
 the opinion in Brazee v. Ilnnihy, 27 ^fisc, 129, 29 X. Y. Civ. 
 Proc. Eep. 29 (i. 58 K Y. Supp. ;>8T, thought that the attentiou 
 of the court of appeals had not been directed to § 3229 of the 
 Code of Civil Procedure. All these cases last cited are based 
 upon an obiter romark in McKusk'ic v. Hendrickson, 128 iST. Y. 
 555, 28 N. E. 650, and a reference thereto in Picrano v. Mer- 
 rift, 14-8 X. Y. 289, 42 N. E. 718. It would seem that the only 
 satisfactory solution of this question is to take the remark in 
 McKvd-ie v. Hcndrichson, 128 K Y. 555, 28 K E. 650, for 
 just what it is, — an ohiter remark. If ^ 3228 applies to this 
 class of cases, it would seem that § 3229 must also apply, and the 
 court decided in McKuslie v. Hendi-iclsori, supra, that § 3229 
 did not apply, because if it did apply the defendant would have 
 been allowed costs, as the recovery Avas less than $50. It would 
 seem that the only logical conclusion must be that neither ^ 
 3228 nor § 3229 applies to this class of cases, but that the costs 
 are govenie.l exchisively by §§ 3060,3070,3072 and 3073 of the 
 Code if Civil Procedure. If §§ 3228 and 3229 do apply to 
 these actions, then, under the provisions of subd. 13 of § 3347, 
 those sections (3228, 3229) nmst be applicable to actions on 
 
 '"McKuslde v. Hendrickson, 128 X. v. Keyes, 66 Hun, 233, 49 X. Y. S. R. 
 
 Y. 555. 28 X. E. 050; f^herman v. 2n9. 21 X. Y. Supp. 87. 
 Shisler, 6 Misc. 203. 27 X. Y. Supp. -"Bro.-ec v. Hornby, 27 IMisc. 120, 
 
 215; Zoller v. Hmith, 45 Hun, 319, 29 X. Y. Civ. Proc. Rep. 296, .58 N. 
 
 12 X. Y. S. R. 438. Y. Supp. 387; Quick v. Wixou, 27 
 
 ■''Foirler v. Bearing, 6 App. DiA. Hun. 592: Porter v. Cobh. 25 Hun, 
 
 221, 39 X. \. Supp. 1034; Birdsall 184.
 
 1 
 
 30i THE LAW or COSTS IN NEW YORK. 
 
 appeal from a justice's court. This would carry the right to 
 additional allowances, security for costs, etc. 
 
 Upon the acceptance of an oifer of judgment made under § 
 3070 of the Code of Civil Procedure, no costs can be taxed, 
 other than disbursements, including those in the court below.^'' 
 If the party entitled to enter judgment gives notice that he will 
 tax certain costs, the question can only be raised upon taxation, 
 not by a motion to set aside the pretended acceptance.^'^ 
 
 229. What is a more favorable judgment. — In determining 
 whether an- offer is more favorable than the recovery the question 
 must be settled by the state of the pleadings at the time of the 
 offer. If the verdict is increased by new matter set up in the 
 amended complaint, or reduced by new matter set up in the 
 amended answer, the addition must be considered.^^ The same 
 costs are recoverable when the appeal is heard by a supreme 
 court justice, because the county judge is disqualified, as would 
 have been allowed could the county judge have heard the case.^^ 
 This is so, although a new trial is granted on a case, which 
 order is reversed by the appellate division.^^ 
 
 230. Costs on appeal from county court to the appellate division 
 of the supreme court. — Ui^on an appeal to the appellate division 
 from a judgment rendered in the county court upon an appeal 
 from a justice's judgment, costs upon affirmance are a matter of 
 statutory right."'* A judgment entered by default upon a de- 
 fective verified complaint must be reversed with costs. The 
 court has no discretion in the matter.^^ 
 
 -"Smith V. Dederick, 18 Misc. 507, Stene, 16 How. Pr. 538, 541; Humis- 
 
 42 N. Y. Supp. 1119; Hollenback v. ton v. Ballard, 40 How. Pr. 40, 43; 
 
 Knapp, 42 Hun, 207; Lauffer v. Sheldon v. Albro, 8 How. Pr. 305; 
 
 Bast, 34 Misc. 408, 69 N. Y. Siipp. Horning v. Smith, 19 N. Y. Civ. 
 
 874. Proc. Rep. 142, UN. Y. Supp. 790. 
 
 ^"Hollenback v. Knapp, 42 Hun, ^^McLaurjlilrn v. Smith, 3 Hun, 
 
 207. 250, 5 Thomp. & C. 522. 
 
 '^Adolph V. De Ceu, 45 Hun, 130. ^*Combs v. Combs, 25 Hun, 279. 
 
 ^^O'Callaghan v. Carroll, 16 How. '-''Hurry v. Coffin, 11 Daly, 180, 2 
 
 Pr. 327; Taijlor v. Seeley, 4 How. Pr. N. Y. Civ. Proc. Rep. 319; Alburtis 
 
 314, 3 N. Y. Code Rep. 84; Davis v. v. McCready, 2 E. D. Smith, 39.
 
 COSTS OX APl'KAL FROM JUSTICe's COUKT. 305 
 
 The plaintiff mil not be charged with costs in the appellate 
 court when it opens a default, because he would not open the 
 default upon payment of disbursements and costs of the action, 
 ns there is no rule that he must accept the costs at his peril; and, 
 further, it is a question whether the inferior court could open a 
 default.^^ Where the order of a district court opening a de- 
 fault is reversed because of irregularities in the moving papers, 
 the appellant is entitled to $30. 
 
 Where the appellant, pending his appeal, pays the amount of 
 tlie judgment to the respondent, he must appear and obtain the 
 proper disposition of the case, or the attorney for the respondent 
 may take an affirmance by default.^'^ Where a verdict in the 
 county court has been set aside, and then an offer of judgment is 
 made and accepted, costs before and after notice of such new 
 trial cannot be taxed, but only the costs regularly allowed on such, 
 appeals.^* 
 
 231. Costs on bastardy proceedings in the county court. — Where 
 a defendant has been held on an order of affiliation by two jus- 
 tices, and has won on the trial and had judgment, with costs, 
 under the provisions of § 873 of the Criminal Code, costs will 
 be taxed as provided in § 3073 of the Code of Civil Procedure.^® 
 
 232. Special provisions relating to the municipal court of New 
 York city. a. Motions. — Upon an appeal from an order which 
 is remitted to the justice for a further hearing, the costs, as in 
 the supreme court, are in the discretion of the court, and are the 
 same in amount.^" 
 
 ^Camp V. Steivart, 2 E. D. Smith, *^!?trassner v. Thompson, 40 App. 
 
 S8. Div. 28, 57 X. Y. Supp. 546; Sando- 
 
 " Adams v. Kearney, 2 E. D. Smith, icits v. Duave, 30 IMisc. 630, 62 N. Y. 
 
 42. Supp. 744, Reversiiijj Colioell v. Dei- 
 
 '^WJieeler v. Moicers, 16 Misc. 331. Un. 20 Misc. 616, 46 N. Y. Supp. 450: 
 
 39 N. Y. Siipp. 731. S::erUp v. Baier, 21 Misc. 692, 47 X. 
 
 ^Neary v. Robinson, 98 N. Y. 81; Y. Supp. 1081; Thornall v. Turner. 
 
 Superintendents of Poor v. Moore, 23 Misc. 363, 51 N. Y. Supp. 214. 
 12 Wend. 273; Rivenburgh v. Heyi- 
 ness, 4 Lans. 208. 
 COSTS 20.
 
 306 THE I>A\V or COSTS IN NEW YORK. 
 
 6. Appeals. — If the order is reversed absolutely, the costs 
 are $30.^^ 
 
 c. Opening de faults. — A justice has no power to appoint a 
 referee to take proof of facts upon a motion to open a de- 
 fault. If the parties stipulate that the unseccessf ul party should 
 pay the referee's fees, they must be recovered in an action. The 
 jiistice cannot enter tliem in the judgment.'*^ If a party feels 
 aggrieved at the terms imposed by the justice upon opening a 
 default, he should appeal from the order. Appealing from the 
 jiidgment Avill not bring the matter up.^^ By § 1367 of the 
 New York charter, appeals from judginents of the city court of 
 tbe city of j^Tew York must be taken as prescribed in articles 1 
 and 2 of title 8 of chapter 19 of the Code; but as jSTew York 
 county has not a county court the appeal must be taken to the 
 supreme court. Although Kings, Queens, and Richmond coun- 
 ties have county courts, yet, to preserve uniformity the appeals 
 go to the supreme court. The costs on appeals are governed hy 
 § 3067 of the Code of Civil Procedure, and not by § 3251.** 
 There is no provision for a new trial in the appellate court. To 
 perfect an appeal from an order opening a default the appellant 
 must pay the costs and disbursements of the motion.'*''^ But he 
 need not pay those items imposed by the justice, the power to im- 
 pose which he seeks to revicAv by the appeal.*^ 
 
 d. Costs upon the reversal of the judgment. — Upon a reversal 
 of a judgment the appellant is entitled to $30 costs and disburse- 
 ments, which includes the costs paid to perfect the appeal, and 
 the disbursements of the appellant below, and the costs which 
 
 "Strassner v. Thompson. 40 App. ^'•Sclurarts v. Schcndel, 23 Misc. 
 
 Div. 28. 57 N. Y. Supp. 546. 473. 51 N. Y. Siipp. 395; ^'^zerlip v. 
 
 *^Szerlip v. Baier, 21 Misc. 331. 47 Bair. 20 Misc. 588, 46 N. Y. Supp. 
 
 N. Y. Supp. 133. 461. 
 
 "H'i<o/r.sA-i v. Maisner, 21 INIisc. *" Schwartz v. iichendel, 23 Misc. 
 
 487, 47 N. Y. Supp. 599. 473, 51 N. Y. Supp. 395. 
 
 "Mayer v. Friedman. 30 Misc. 364, 
 30 N. Y. Civ. Proc. Rep. 221, 62 N. 
 Y. Supp. 452.
 
 COSTS ON APPEAL FROM J USTICE's COUUT. 307 
 
 should liave been grantod him had a proper jiKlginent been ren- 
 dered. The appellate court has no discretion as to costs.'*'^ 
 
 e. Costs upon the affirmance of the judgment. — The appellate 
 court has no discretion as to costs upon an affirmance. The re- 
 spondent is entitled to $25 costs, under § 3067 of the Code of 
 Civil Procedure,^^ except wIkmv tlie respondent does not appear, 
 in which case no costs Avill be granted. ^^ 
 
 /. Costs when the juch/ui/'ut is uiocti/ied or a new trial is or- 
 dered. — Where a judgment is modified or a new trial ordered, 
 costs are in the discretion of the appellate court.^" Where the 
 reversal is based upon the fact that it does not appear that the 
 court has jurisdiction, costs will be denied tlie appellant, where 
 he raises the question for tlie first time upon appeal, since he 
 could have raised that question below.^-^ Where the general 
 term of the city court dismisses an appeal with $10 costs of mo- 
 tion, the clerk may tax $10, the motion costs, and $10 costs of 
 the appeal, but he has no authority to tax any disbursements, as 
 they were not granted. ^^ 'No costs can be taxed in an action 
 commenced in the district or municipal court, and removed to 
 the New York city court, as there is no statute governing such 
 cases. ^^ 
 
 "Clark V. Carroll, 1 N. Y. Civ. N. Y. S\ipp. 1078; Jawos v. fi'ows/osr, 
 
 Proe. Rep. 293 note; Boomer v. 31 ]\Iisc. 790. 65 N. Y. Supp. 223; 
 
 Brown, 4 Daly, 229. Tyroler v. (iunnnershach, 28 Misc. 
 
 "'Canton Surgical d Dental Co. v. 151, 59 N. Y. Supp. 2G6, 319; Howell 
 
 Wehh, 42 N. Y. S. R. 187, 16 N. Y. v. Wright Dairy Go. 31 Misc. 755, 
 
 Supp. 932. 64 N". Y. Supp. 55. 
 
 *^Lewis V. JJosey, 26 Misc. 789, 56 '-""Zinsser v. Herrman, 24 ]\Iisc. 689, 
 
 N. Y. Supp. 200. 53 N. Y. Supp. 778. 
 
 " New York Ch.irtpr, § 1367. ''^Levene v. Hahner, 62 App. Div. 
 
 ■•"Willis V. Parker, 30 Misc. 750, 62 195, 70 N. Y. Supp. 913.
 
 CHAPTEE XXL 
 
 SUBMISSION OF CONTROVERSY, ARBITRATION, INSOLVENT COR- 
 PORATIONS. 
 
 233. Costs on submitted controversy. 
 
 234. Costs on arbitration. 
 
 235. Costs in relation to insolvent corporations. 
 
 a. Allowances to trustees who resist proceedings to have corporation 
 
 declared insolvent. 
 
 b. Allowances to creditors. 
 
 c. Allowances to unsuccessful claimant. 
 
 d. Allowances to receivers. 
 
 233. Costs on submitted controversy. — Where a controversy is 
 submitted as provided by §§ 1279 and 1280 of the Code of Civil 
 Procedure the costs are in the discretion of the court, if the sub- 
 mission is silent upon that question;^ but costs cannot bo 
 taxed for any proceedings before notice of trial.^ The parties. 
 by stipulation, may waive the allowance of costs, but they can- 
 not by stipulation compel the award of costs.^ 
 
 Costs will be given to the successful party, when he has pre- 
 pared the case and the only brief.^ Costs will not be ordered 
 paid out of the share of people interested in obtaining a decision 
 upon the question, but who were not parties to the agreement.^ 
 
 An additional allowance cannot be granted in such a case.^ 
 
 ^Gray v. Daniels, 18 App. Div. 466, 39 N. Y. Supp. 975, Overruling Lan- 
 45 N. Y. Supp. 1106; Herkimer don v. Walmuth, 76 Hun, 271, 59 N. 
 County Light & P. Co. v. Johnson, Y. S. R. 87, 27 N. Y. Supp. 717. 
 37 App. Div. 257, 55 N. Y. Supp. 924. *Gray v. Daniels, 18 App. Div. 465, 
 
 ''Code Civ. Proc. § 1281; Neilson 45 N. Y. Supp. 1106. 
 V. Commercial Mut. Ins. Co. 3 Duer, '^Honse v. Raymond, 3 Him, 45, 5 
 45,5; Boughton v. Seamans 9 Hun, Thomp. & C. 248. 
 392. ^People v. Fitchhurg, R. Co. 133 
 
 ^Real Estate Corporation v. Ear- N. Y. 239, 44 N. Y. S. R. 907, 30 N. 
 per, 174 N. Y. 123, 66 N. E. 660: E. 1011. 
 Brennen v. North, 7 App. Div. 79, 
 
 308
 
 SUBMISSION OF CONTEOVERSY^ ETC. 309 
 
 234. Costs on arbitration. — Upon the granting of an order con- 
 firming, modifying, correcting, or vacating an award made in a 
 controversy submitted to arbitration, costs of the application not 
 exceeding $2,5 and disbursements may be awarded to the prevail- 
 ing party by the court in its discretion.'^ A party who revokes 
 an arbitration before the award is liable to the opposite party 
 for his costs and disbursements.^ 
 
 235. Costs in relation to insolvent corporations.- a. Alloir- 
 ances to trustees who resist proceedings to have corporation de- 
 clared insolvent. — Trustees of a corporation whose corporate 
 existence is attacked should be afforded the means to resist such 
 an attack, if such defense is made in good faith and with the 
 conviction that the corporation is solvent and that it has a right 
 to conduct its own business. The court that passes upon the 
 question of solvency of the corporation may allow, either at the 
 trial or on appeal, taxable costs to the directors of the corpora- 
 tion, payable out of the fund, if, in its opinion, the resistance 
 has been justified thus far. The court that administers the 
 funds may, in its discretion, determine up to what stage in the 
 proceedings the opi^osition was proper, and what would be a 
 reasonable sum to be allowed for the services rendered, or 
 whether any allowance should be made. The directors are not 
 entitled, as a matter of right, to be reimbursed for the amount 
 paid their attorney in these proceedings.^ But if the officers 
 know that the corporation is insolvent, and still defend the pro- 
 ceedings, no allowance can be made to them or their attorneys 
 for their services in opposing the proceedings to have the cor- 
 poration declared insolvent.*^ 
 
 ^Code Civ. Proc. §§ 2377, 2.378. 'Barnes v. Netrcomb, 89 N. Y. 108; 
 
 " Code Civ. Proc. § 2384 ; Kent v. Re Importers J: Grocers Exchange, 
 
 Vrouse, 5 N. Y. S. R. 141; Union 15 Daly, 419, 8 X. Y. Supp. 322. 
 
 Ins. Co. V. Central Trust Co. 36 N. ^"People v. Commercial Alliance 
 
 Y. S. R. 435, 13 N. Y. Supp. 17, Fur- Ins. Co. 91 Huu, 389. 70 N. Y. S. R. 
 
 ther Appeal, 87 Hun. 140. 66 N. Y. 823, 36 N. Y. Supp. 248. 
 S. R. 876, 33 N. Y. Supp. 1135.
 
 olO THE J.AW OF COSTS IN NEW YORK. 
 
 h. Allowances; to creditors. — The court has no power to grant 
 an allowance to a creditor or his attorney w^ho has intervened in 
 the matter and has rendered valuable services therein ;^^ nor 
 can they be allowed taxable costs.^^ The attorney general has 
 no authority to appoint special counsel to act generally for him 
 in the conduct of suits, and allowances to such special counsel 
 are not authorized. ^^ 
 
 C. Allowances to unsuccessful claimant. — A claimant who 
 has been unsuccessful in all the courts, including the court of 
 appeals, and has obtained no allowance, cannot after the ad- 
 verse decision in the court of appeals apply to the special term 
 for an allowance.^* 
 
 d. Allowances to receivers. — The receiver of a corporation is 
 entitled to be allowed his reasonable expenses for attorney's 
 services in all of his proceedings. But an ex parte allowance for 
 such a ser\dce is a nullity.^^ Objections to the allowance must 
 be made when the allowance is asked for. If none are raised 
 then, they cannot be raised later, except that charges for services 
 which were not rendered to the receiver, but to the corporation, 
 or charges that the receiver was not authorized to incur, such 
 as prosecuting in a criminal proceeding one who has defrauded 
 or attempted to defraud the receiver, may be stricken out on 
 appeal.^® The proper method to obtain an allow^ance for service 
 of the attorney upon an accounting is to conduct the proceed- 
 ings to its termination, and then, upon the entiy of the final 
 order, apply for and obtain an allowance for his necessary coun- 
 sel fee.^^ In ascertaining the amount to be allowc^l to a receiver 
 for legal services the items to be considered are : 
 
 ^^Atty. Gen. v. Islorth American L. ^*People v. Security L. Ins. d An- 
 
 Ins. Co. 91 N. Y. 57, 43 Am. Rep. miity Co. 23 Hun, 596. 
 
 648; People ex rel. Atty. Gen. v. Se- ''/?e Commonwealth F. Ivs. Co. 32 
 
 curity L. Ins. Co. 71 N. Y. 222. Hun, 78, 19 N. Y. Week. Dig. 57. 
 
 "Atty. Gen. v. Continental L. Ins. '"h'e Little, 47 App. Div. 22, 62 
 
 Co. 27 Hun, 195. 63 How. Pr. 129, X. Y. Supp. 27. 
 
 Appeal Dismissed in 90 N. Y. 45. '"7?e Little. 47 App. Div. 22, 62 
 
 '^itti/. Gen. V. Continental L. Ins. N. Y. Supp. 27. 
 Co. 88 N. Y. 571.
 
 SUBMISSION' OF ( OA'TROVEKSY, ETC. Sll 
 
 1. The amoi;nt involved. ^^ 
 
 2. The interests involved, meaning- the relative importance 
 to the client of the success or failure. 
 
 3. The questions of law involved, their intricacy, difficulty, or 
 novelty. 
 
 4. The labor and responsibility involved. 
 
 5. The result of the services, whether successful or not. 
 As to the lawyer, the items to be considered are: 
 
 1. Learning required, and the scope and thoroughness of the 
 learning. 
 
 2. The labor performed by him, his "tact" and judiciousness 
 of movement, his perfect integrity, and his assiduity in the in- 
 terest of his client.^^ 
 
 A proceeding to compel the receiver of a bank to })ay certain 
 notes out of the funds in his hands is not a motion under § 768 
 of the Code of Civil Procedure, but a special proceeding under 
 § 3334, and the costs thereof are governed by § 3240.-'^ 
 
 A receiver will be ordered to pay the costs awarded against 
 him in an action originally brought against the corporation, 
 where such costs were incurred for the benefit of the fund, and 
 all preferred claims have been paid.-^ 
 
 ^"Garfield v. Kirl:, 65 Barb. 404; "^People v. City Baitk, 96 X. Y. 32. 
 
 Betts V. Detts, 4 Abb. N. C. 317, 443. ^'Locke v. Covert. 42 Hun, 484, 12 
 
 ^^People V. Bond street Sav. Bank, X. Y. Civ. Proc. Rep. 31. 
 10 Abb. X. C. 15.
 
 CHAPTER XXII. 
 
 SECURITY FOR COSTS. 
 
 236. In gpiieral. 
 
 237. In what courts. 
 
 238. Order, how obtained; effect of order; by wliat courts granted. 
 
 239. Additional security. 
 
 240. Form of bond. 
 
 241. Deposit of money. 
 
 242. Deposit by third person. 
 
 243. Appeal taken by plaintiff without staying proceedings under the 
 
 judgment. 
 
 244. Deposit upon obtaining order of arrest. 
 
 245. Liability of attorney for plaintiff of whom defendant could demand 
 
 security. 
 
 246. Right to security for costs lost by laches. 
 
 247. What is a sufficient excuse for laches. 
 
 248. What is not a sufficient excuse for laches. 
 
 249. Rights of the defendant to security when he is in default. 
 
 250. How nonresidence is proved. 
 
 251. What is nonresidence. 
 
 252. Special rule for the city court of New York. 
 
 253. Cases where nonresident need not give security. 
 
 254. Effect of removal of plaintiff from the state. 
 
 255. Effect of assignment of cause of action to a resident of the state. 
 
 256. Residence of a domestic corporation. 
 
 257. Residence of a foreign corporation. 
 
 258. Security required of an infant. 
 
 259. Security required of executors. 
 
 a. In general. 
 
 6. Insolvent estate. 
 
 c. Nonresident executors. 
 
 d. Notice of application, 
 
 e. Security on appeal. 
 
 260. Security required of receivers. 
 
 261. Security required of receivers in supplementary proceedings. 
 
 262. When trustees in banl<ruptcy are required to give security for costs. 
 
 236. In general. — The statutory provisions relating to secur- 
 ity for costs are contained in §§ 32G8-3279 of the Code of Civil 
 
 Procedure. The provisions of § 3268 do not violate the 14th 
 
 312
 
 SECURITY FOR COSTS. 313 
 
 Amendment of the United States Constitution.* These pro- 
 visions relate only to actions brought by the classes of persons 
 enumerated therein, and not to actions brought against thera.^ 
 The provisions requiring security for costs in certain cases are 
 general, and cover actions for torts as well as those on contract.-'^ 
 These provisions are made, by § 3279 of the Code of Civil Pro- 
 cedure, applicable to special proceedings, yet they are not ap- 
 jDlicable to supplementary proceedings.^ 
 
 237. In what courts. — These provisions relate only to actions 
 brought in those courts of record specified in subd. 4 of § 3347 
 of the Code of Civil Procedure, as provided in subd. 13 of 
 § 3347.^ By amendment to § 3074 by the Laws of 1903, the 
 provisions of §§ 3268-3279 were made applicable to actions 
 brought in courts of justices of the peace by foreign corpora- 
 tions. The defendant cannot demand security when he has had 
 an action removed from a court not of record to one of record.^ 
 In such a case, where the plaintiff moves for a commission to 
 take testimony, the court may, in its discretion, refuse to grant 
 him a commission unless he gives security for costs."^ 
 
 Parties brought in as defendants under the provision of § 452 
 of the Code of Civil Procedure cannot be compelled to give 
 security for costs, because tlieir right of intervention is abso- 
 lute.^ The fact that the plaintiff has given an undertaking upon 
 commencing a replevin action,^ or upon obtaining a warrant of 
 
 Wenanzio v. Weir, 64 App. Div. Proc. Rep. 324, 9 N. Y. Supp. 743; 
 
 483, 72 N. Y. Supp. 234. Mellen v. Hutchins, 58 How. Pr. 349. 
 
 ^Kelly V. Kclbj, 77 App. Div. 519, ''Haines v. Judd, 16 Daly, 110, 18 
 
 78 N. Y. Supp. 918. N. Y. Civ. Proc. Rep. 327, 30 N. Y. 
 
 Uieller v. Townsend, 2 Abb. N. C. S. R. 666, 9 N. Y. Supp. 743. 
 432; Coryell v. Davis, 5 Hill, 559. '^Herzog v. Tamsen, 22 Misc. 766, 
 
 'First Nat. Bank v. Yates, 21 Misc. 27 N. Y. Civ. Proc. Rep. 165, 49 N. 
 
 373, 47 N. Y. Supp. 484. Y. Supp. 1015; Uhlf elder v. Tamsen, 
 
 Hie Rasch, 26 Misc. 459, 28 N. Y. 17 Misc. 296, 40 N. Y. Supp. 372. 
 Civ. Proc. Rep. 98, 55 N. Y. Supp. 'Boucher v. Pia, 8 Bosw. 691, 14 
 
 434; Loughrill v. Downey, 27 N. Y. Abb. Pr. 1. 
 S. R. 51, 7 N. Y. Supp. 503. 
 
 ^Uames v. Judd, 18 N. Y. Civ.
 
 ol4 THE i:aw of costs i.\ m:\v vouk. 
 
 attachment,^" or procuring an injunction, ^^ or procuring an or- 
 der of arrest, does not afi'ect the right to security for costs,^^ 
 b(x?ause the costs of the action are not protected by these under- 
 takings. 
 
 238. Order, how obtained; effect of order; by what courts 
 granted. — An order may be obtained ex parte when it is made 
 under the i)rovisions of §§ 3268, 3269, and 3270 of the Code of 
 Civil Procedure, because the defendant has an absolute right to 
 the security, and the judge has no discretion. ^^ But where the 
 defendant has been guilty of laches in moving for security the 
 court can grant the order or not, in its discretion, and the de- 
 fendant must excuse his delay. ^^ 
 
 The defendant may obtain a chamber's order ex parte, direct- 
 ing security to be filed in twenty days, and, if not so filed, to 
 show cause at the next special term after the expiration of said 
 twenty days why such security should not be filed, which order 
 to show cause should contain a stay. x\fter the hearing at 
 s]>ecial tenn, if the motion is granted a peremptory order is 
 granted. If the security is not filed after the entry of the per- 
 emptory order a motion may be made for judgment of nonprose- 
 ciition, or the party may apply to the court, in the first instance, 
 
 "•Woodward v. Stearns, 11 Abb. Pr. 114, 17 N. Y. S. R. 295, 2 X. Y. Supp. 
 
 X. S. 445 ; Hodges v. Porter, 10 Him, 'i04;('hvrehman v. Merritt, 50 Hun, 
 
 •244. 270, 15 X. Y. Civ. Proc. Rep. 245, 
 
 'KUcCall V. Frith, 2 X. Y. Civ. 19 N. Y. S. R. 171, 2 N. Y. Supp. 
 
 Proc. Rep. (Browne) 9, note. 843; Sioift v. Wheeler, 46 Hun, 580, 
 
 ^■Sutorins v. l^'orth, 20 X. Y. Civ. 13 X. Y. Civ. Proc. Rep. 343, 27 X. 
 
 Proc. Rep. 162, 36 X. Y. S. R. 873, Y. Week. Dig. 512, 12 X. Y. S. R. 
 
 13 X. Y. Supp. 557, further appeal, 737; Schicartz v. Scott, 25 X. Y. Civ. 
 
 1 Misc. 298, 48 X. Y. S. R. 694, 20 Proc. Rep. 53, 70 X. Y. S. R. 380, 
 
 X. Y. Supp. 726; Sperry v. Hellman, 35 X. Y. Supp. 607; Mitchell v. Dick, 
 
 20 X. Y. Civ. Proc. Rep. 218, 37 X. 8 IMisc. 98, 60 X. Y. S. R. 161, 28 
 
 Y. S. R. 258, 13 X. Y. Supp. 899; X. Y. Supp. 1003; Wicker v. Elmira 
 
 Strong v. Sprout, 53 X. Y. 497, 499. Heights, 42 Ap[). Div. 426, 59 X. Y. 
 
 ^Hiohertson v. Barnum, 29 Hun, Supp. 130; Pursley v. Rodgers, 44 
 
 657; McDonald v. Peet, 7 X. Y. Civ. App. Div. 139, 61 X. Y. Supp. 1015. 
 
 Proc. Rep. 200; Kamermami v. ^^Schirartz v. Scott, 25 X. Y. Civ. 
 
 Eisner d M. Co. 23 Misc. 330, 51 X. Proc. Rep. 53. 70 X. Y. S. R. 380, 35 
 
 Y. Supp. 210; Wood v. Blodgett, 49 X. Y. Supp. 607. 
 Hxui, 64, 15 X. Y. Civ. Proc. Rep.
 
 SECl-KITY FOR COSTS. 31."» 
 
 upon notice to the opposite party, for a peremptory order requir- 
 ing the filing of security for costs.^-^ When an application is 
 made under § 3271 of the Code of Civil Procedure, it must be 
 made on notice.^^ When a motion for an order requiring secur- 
 ity has been denied, no further application for security can be 
 made without leave of the judge who decided the first motion.^" 
 
 When an order has been made directing the filing of security, 
 it will remain in force till an order is made vacating it.-'^ A de- 
 fendant can move ex parte for security for costs on appeal, if he 
 has not moved before. ^^ The court in its discretion can compel 
 the plaintiff to not only give security for costs on appeal, but 
 also security for the costs that have accrued.^*^ But such an order 
 must be based upon notice to the plaintiff.^^ 
 
 The appellate court will seldom interfere with the use of the 
 discretion of the court below. ^^ A county judge cannot make 
 such an order in a supreme court action.-'* A plaintiff's com- 
 plaint cannot be dismissed upon the hearing of an order to file 
 security, or show cause why he should not file security, for costs. 
 The only order that the court can make in such a case is an order 
 
 "Cadtcell v. Manning, 15 Abb. Pr. ^'Worman v. FranJcish, 32 N. Y. 
 
 271, 24 How. Pr. 38. ' S. R. 23.5, 11 N. Y. Supp. 35. 
 
 "yS'wtYY V. Wheeler, 46 Hun, 580, "Sprovll v. Star Co. 27 Misc. 27, 
 
 13 N. Y. Civ. Proc. Rep. 343, 27 N. 56 N. Y. Supp. 1001. 
 
 Y. Week. Dig. 512, 12 N. Y. S. R. "IFoorf v. Blodpett, 49 Hun, 64, 
 
 737; Ryayi v. Potter, 4 N. Y. Civ. 15 N. Y. Civ. Proc. Rep. 114, 17 N. 
 
 Proc. Rep. 80, 2 N. Y. Civ. Proc. Y. S. R. 295, 2 N. Y. Supp. 304; 
 
 Rep. (McCarthy) 33; Wood v. Blod- Gifford v. Risinfj, 48 Hun, 128. 
 
 gett, 49 Hun, 64, 15 N. Y. Civ. Proc. -"Gedney v. Purdy, 47 N. Y. 676. 
 
 Rep. 114, 17 N. Y. S. R. 295, 2 N. Y. -^Wood v. Dlodgeit, 49 Hun, 64, 15 
 
 Supp. 304; Champlin v. Pierce, 3 N. Y. Civ. Proc. Rep. 114, 17 N. Y. 
 
 Wend. 445; Blanchard v. Nessle, 6 S. R. 295, 2 N. Y. Supp. 304. 
 
 Hill, 256; Churchman v. Merritt, 50 ^-Fessenden v. Blanchard, 48 Hun, 
 
 Hun. 270, 2 N. Y. Supp. 843; 350, 14 N. Y. Civ. Proc. Rep. 277, 51 
 
 Mitchell V. Did-. 8 Misc. 98, 60 N. N. Y. S. R. 871, 1 N. Y. Supp. 105; 
 
 Y. S. R. 161, 28 N. Y. Supp. 1003; Barnes v. Selignian, 51 X. Y. S. R. 
 
 Kamermann v. Eisner & M. Co. 23 376, 22 N. Y. Supp. 45. 
 
 Misc. 330, 51 N. Y. Supp. 210; "^Longstreet v. Saun/er. 21 N. Y. 
 
 Pnrsleij V. Bodgers, 44 Aj>p. Biv. 139, Civ. Proc. Rep. 16, 39 X. Y. S. R. 
 
 61 N. Y. Supp. 1015; McNeil v. Mer- 693, 15 N. Y. Supp. 608. 
 riam, 57 App.Div. 164, 9 N. Y'. Anno. 
 Cas. 382. 68 N. Y. Supp. 165.
 
 316 THE LAW OF COSTS IN NEW YORK. 
 
 requiring the plaintiff to file security within a fixed time, and 
 upon proof of his failure to do so the court could dismiss the 
 complaint with costs, under § 3277 of the Code of Civil Pro- 
 cedure,-^ which is the most that can be done.-'' The court can 
 refuse to dismiss the complaint, where security is filed after the 
 time limited in the order, and before the motion to dismiss the 
 complaint on that account is heard.^® 
 
 If, after security has been filed, the complaint is dismissed 
 because of noncompliance with some other part of the order 
 requiring the filing of security, the sureties are not liable upon 
 their bond, because the dismissal of the complaint was a non- 
 acceptance of the bond.^''^ Upon the original application the 
 court can require security only to the amount of $250, although 
 there may be many defendants and snch amount is not sufficient 
 for all the defendants,^^ because, where there are two or more 
 defendants, each cannot require security for costs. The bond 
 given is for the security of all.^® The court may, as a condition 
 of reviving an action for costs against an executor of a de- 
 ceased defendant, undei- § 577 of the Code of Civil Procedure, 
 require the plaintiff' to file security.^^ 
 
 239. Additional security. — Wliere one order is made requiring 
 security for costs, all further orders must be made under § 3276 
 of the Code of Civil Procedure, and the plaintiff is not estopped 
 from denying the authority of the court, because he has complied 
 with the first order.^^ The court will order additional security 
 
 -*Requard v. Theiss, 18 Misc. .563, -^Gaies v. McDoiinId, .39 N. Y. S. 
 
 42 N. Y. Siipp. 460, Affirmed in 19 R. 128, 14 N. Y. Supp. 907. 
 
 Misc. 480, 43 N. Y. Supp. 1066. ^Leffxnck v. Clinton, 26 How. Pr. 
 
 ^"Hinman v. Pierce, 50 Hun, 209, 26. 
 
 16 X. Y. Civ. Proc. Rep. 138, 19 N. ^"Knoch v. Funl<e, 28 Abb. N. C. 
 
 Y. S. R. 300, 2 N. Y. Supp. 861. 240, 22 X. Y. Civ. Proc. Rep. 161, 
 
 ''Cormiel v. Heinze, 51 N. Y. S. R. 47 N. Y. S. R. 503, 19 N. Y. Supp. 
 
 461, 22 N. Y. Supp. 117; Winchester 242. 
 
 V. Brown. 51 Hun, 284. 21 N. Y. S. ^^Newhall v. Appleton, 25 .Tones & 
 
 R. 864, 4 N. Y. Supp. 155. S. 154, 23 Abb. N. C. 62, 25 N. Y. 
 
 ^''Remington v. Westermann, 21 S. R. 810. 6 X. Y. Supp. 4. 
 Hun, 441. 10 N. Y. Week. Dig. 251.
 
 SECURITY FOE COSTS. 317 
 
 upon j)roof of facts that the present security is insufficient.^^ But 
 mere allegation that the security is insufficient will not suffice.^^ 
 Where a nonresident plaintiff and his surety both die, and the 
 estate of the surety is insolvent, the defendant is entitled to have 
 a new surety.^'* The plaintiff will not be compelled to give addi- 
 tional security where he has recovered a verdict, as there is every 
 intendment of his ultimate success.^^ But that does not apply 
 where the trial judge orders the exceptions heard at the appel- 
 late division in the first instance, because that shows a doubt in 
 the mind of the judge as to some important question of law.^^ 
 
 Before 1891 no additional security could be required where 
 the plaintiff made a deposit in money; but now additional se- 
 curity may be demanded in every case, upon proof of the proper 
 facts. Cases that held that additional security could not be re- 
 quired in such cases are now overruled by that amendment.^'^ 
 
 240. Form of bond. — The court cannot compel a plaintiff to 
 imite with his sureties in the undertaking.^^ Where there are 
 two or more defendants the undertaking should run to all the 
 defendants, as it is for the benefit of all,^^ unless some of the 
 defendants waive security, and this cannot be inferred because 
 they did not move for security.*" The undertaking should be 
 
 ^^Fogg V. Edioards, 57 How. Pr. ^'Honduras v. 8oto, 112 N. Y. 310. 
 
 290, 6 N. Y. Week. Dig. 493. 2 L. R. A. 642, 8 Am. St. Rep. 744, 
 
 '^'Nugent v. Keenan, 21 Jones & S. 19 N. E. 845. 
 
 530; Fogg v. Edioards, 57 How. Pr. ^^Ellensohn v. Haselhach, 17 Misc. 
 
 290, 6 N. Y. Week. Dig. 493; Breio- 92, 25 N. Y. Civ. Proc. Rep. 345, 39 
 
 ster V. Wooster, 9 Misc. 690, 24 N. N. Y. Supp. 332; Wag}ier v. Adams, 
 
 Y. Civ. Proe. Rep. 83, 62 N. Y. S. R. 1 How. Pr. 191; Miclclethwaite v. 
 
 123, 30 N. Y. Supp. 546. Rhodes, 4 Sandf. Ch. 434. 
 
 ^^Tracy v. Dolan, 31 App. Div. 24, ^^Leftwick v. Clinton, 26 How. Pr. 
 
 52 N. Y. Supp. 351. 26; Bothschild v. Wilson, 24 Abb. N. 
 
 ^Braclcett v. Griswold, 46 Hun, C. 123, 19 N. Y. Civ. Proc. Rep. 76, 
 
 442, 12 N. Y. S. R. 402; 'Sew York 10 N. Y. Supp. 61; McDonald v. 
 
 Health Department v. O'Reilly, 17 Brass Goods Mfg. Co. 2 Abb. N. C. 
 
 •Jones & S. 524, 18 N. Y. Week. Dig. 434; Gates v. McDonald, 39 N. Y. S. 
 
 255; Flint v. Van Deusen, 24 Hun, R. 128, 14 N. Y. Supp. 907. 
 
 440. ^Wonncr v. Ogilvie, 12 N. Y. Civ. 
 
 ^Peck V. Phoenix Ins. Co. 2 Silv. Proc. Rep. 399. 
 Sup. Ct. 342, 24 N. Y. S. R. 646, 
 18 N. Y. Week. Dig. 505, 5 N. Y. 
 Supp. 543.
 
 1 
 
 318 THE LAW OF COSTS IN NEW YORK. 
 
 conditioTied for payment upon demand of the obligors, and not 
 on demand of tlie plaintiff/^ and should, in express terms, bind 
 his heirs, executors, and administrators.^^ If the bond leaves 
 out the words that suret}' will pay "on demand," this will be a 
 sufficient compliance, as this wording is more favorable to the 
 defendant than the statute, as under this the surety would be 
 liable immediately and without demand.*''^ A bond which does 
 not contain a penalty does not conform to the statute, but that 
 defect may be waived and the surety will be liable thereon to the 
 extent of the statutory amount,^"* or even in excess of that 
 amount.^^ The defendant must object to the undertaking within 
 the time allowed l)y law, or he will not afterward be heard to 
 object.-*^ 
 
 241. Deposit of money. — Where the plaintiff gives security 
 which is disapproved by the appellate division, he may deposit 
 m.oney in compliance with the original order.^'^ After the plain- 
 tiff obtains judgment, he may make a motion to withdraw the 
 money and it is no answer to such a motion that the defendant 
 intends to appeal or has appealed, because the presumption is 
 that tlie judgment will be upheld.^'* There is a special term de- 
 cision that an order allowing the plaintiif to mthdraw his cash 
 security cannot be granted until the time to appeal has expired, 
 holding that the court w^ould not grant an order directing the 
 surrender of the undertaking at that stage of the action."*^ 
 
 242. Deposit by third person. — There is a diversity of opinion 
 
 "Monfafjue v. Bassett, 18 Abb. Pr. ^'Winchester v. Browne, 27 N. Y. 
 
 13; Tallmndge v. 1TV///js, 1 Hrnv. Pr. S. R. 361, 8 N. Y. Supp. 82. 
 
 TOO. 'Ufoffman v. Lowell, 4 K. Y. Civ. 
 
 ^''Scheiikc V. Roirell, 1 Abb. N. C. Proc. Pvep. 103; Kokomo Straw 
 
 295. Board Co. v. Sachs, 4 Silv. Sup. Ct. 
 
 *^Smnth V. Norval, 2 Sandf. G.53, 2 Rep. 150 (note on "Security for 
 
 X. Y. Code Rep. 14. Costs.") 17 X. Y. Civ. Proc. Rep. 
 
 **Van Camp v. Ross, 9 Abb. N. C. 432. 26 N. Y. 8. R. 589, 7 N. Y. Supp. 
 
 390, note. 179. 
 
 *''Warner v. Ross, 9 Abb. X. C. 385. "/'irsf \at. Bank v. Hall, 19 Misc. 
 
 *^CasteUanos v. Jones, 4 Sandf. 278, 44 N. Y. Supp. 255. 
 (579.
 
 SECUIMTY FOli COSTS. 319 
 
 as to the ownership of money deposited bv a third person, in lieu 
 of security for the plaintiii". Sonic cases hold that the money 
 belongs to the third person and is subject onlj^ to the contingency 
 of being used to apply upon the costs of the defendant in suit/'" 
 This is the correct interpretation of the law on this point. Other 
 cases, how^ever, hold that the money belongs to the plaintiff, and 
 that the depositor is the creditor of the plaintiff."'^ 
 
 243. Appeal taken by plaintiff without staying proceedings 
 under the judgment. — If the defendant wins and the plaintiff ap- 
 peals, without giving security, the defendant may, upon motion, 
 have his costs paid out of the deposit.^^ But if the plaintiff ulti- 
 mately wins, he may make a motion for restitution, or he may 
 bring an action against the defendant for the money thus taken 
 out of the court. ^^ 
 
 244. Deposit upon obtaining order of arrest. — Where the plain- 
 tiff made a deposit upon having the defendant arrested in an 
 action, the costs of a motion for defendant's discharge and of the 
 appeals thereon ^^'hich were ultimately successful are properly 
 ordered paid out of the dejiosit, and should not be held to await 
 the outcome of the action. The defendant was entitled to com- 
 pensation when either of two things happened — his discharge 
 from arrest, or judgment in his favor."''^ 
 
 245. Liability of attorney for plaintiff of whom defendant could 
 demand security.— An attorney is liable to the extent of $100 
 for costs, where he commences an action for a plaintiff" of whom 
 the defendant can demand security as a right, under § 3268 of 
 
 '"Frascr v. Word, 13 Daly, 431, 9 ''-.McCnll v. Friih, 4 N. Y. Civ. 
 
 N. Y. Civ. Proc. Rep. 11, Affirming Proc. Rep. 102. 
 
 in efiect, 2 How. Pr. N. S. 47. '•"Badger v. Appleton, 14 Dilj, 192. 
 
 '^'Lyon V. Wilder, 24 Jones & S. 67, 12 N. Y. Civ. Proc. Rep. 93. K. Y. 
 
 28 N. Y. Week. Dig. 509, 16 N. Y. S. R. 288; Lott v. Sivezey, 29 P.arb. 
 
 S. R. 87.5, 1 N. Y. Supp. 421; Salter 87; Marvin v. Brewster Iron Mi>i. 
 
 V. Weiner, 6 Abb. Pr. 191; Herman Co. 56 N. Y. 671. 
 
 V. Anronson. 8 Abb. Pr. N. S. 155; ^^Tunstall v. Winton, 31 Hun, 231. 
 
 Commercial Warehouse Co.v.Graher, Affirmed in 96 N. Y. 660. 
 45 N. Y. 393.
 
 320 THE LAW OF COSTS IN NEW YOKK. 
 
 the Code of Civil Procedure, and the attorney does not cause 
 security to be filed ;^^ or where he brings an action for a cor- 
 poration that has ceased to exist ;^^ but only in the courts speci- 
 fied in subd. 4 of § 3347 of the Code of Civil Procedure, as lim- 
 ited by subd. 13 of § 3347. 
 
 If the liability once attaches it is not removed by the substi- 
 tution of another attorney,^'^ such substituted attorney being 
 also liable.^^ This liability can be removed only by causing the 
 plaintiff to file security."^ 
 
 The defendant does not waive his right to hold the plaintiff's 
 attorney for these costs by moving for security for costs, which 
 is either not granted on account of laches, or, if granted, is not 
 filed.^'^ If the plaintiff" of record is a nonresident, though the 
 leal plaintiff is a resident, the attorney is liable.^^ Such liabil- 
 ity may be enforced summarily by order. "^^ 
 
 Upon a motion to compel the attorney to pay costs the moving 
 party must show that the plaintiff conies within the terms of 
 §3268 of the Code of Civil Procedure.^^ An attomey is only 
 liable for costs in those cases where the plaintiff is a nonresident 
 at tlie time of the commencement of the action, and not where 
 he becomes a nonresident pending the action ; therefore, in order 
 to compel the attorney to pay the costs of the action, it must be 
 
 ''^Ilitlhiirt V. Neii-ell, 4 How. Pr. "^I'cuirick v. New York Central 
 
 03, 2 N. Y. Code Rep. 54; Code Civ. Coal Co. 23 Jones & S. 444, 14 N. Y. 
 
 Proc. § 3278; Lo7)(j v. Hall, 3 Sandf. Civ. Proc. Rep. 114, 14 N. Y. S. R. 
 
 729, N. Y. Code Rep. N. S. 114. 758. 
 
 '^'-Attlehoro Nat. Bank v. Wendell, ^"Re Levy, 10 Daly, 391, 2 N. Y. 
 
 64 Hun, 208, 22 N. Y. Civ. Proc. Rep. Civ. Proc. Rep. 108; Boyle v. Bates, 
 
 225, 46 N. Y. S. R. 140, 19 N. Y. 8 How. Pr. 495; Krom v. Kursheedt, 
 
 Supp. 45; Re Rasch, 26 Misc. 459, 28 19 Jones & S. 119, 6 N. Y. Civ. Proc. 
 
 N. Y. Civ. Proc. Rep. 98, 55 N. Y. Rep. 371, 1 How. Pr. N. S. 38; Cobb 
 
 Supp. 434. V. Robinson, 1 How. Pr. 235. 
 
 "i's/i/ V. Trowbridge, 1 Month. L. "^Jones v. Savage, 10 Wend. 621; 
 
 Bull. 55; Gillespie v. Stanless, 1 Waring v. Barret, 2 Cow'. 460. 
 
 How. Pr. 101. '-WiUniont v. Meserole, 48 How. 
 
 ^Utenwick v. Neio York Central Pr. 430, 16 Abb. Pr. N. S. 308; 
 
 CoaZ Co. 23 Jones & S. 444, 14 N. Y. Jones v. Savage, 10 Wend. 621; 
 
 Civ. Proc. Rep. 114, 14 N. Y. S. R. Sigourney v. Waddle, 9 Paige, 381. 
 
 758. ^^Moir v. Brown, 9 How. Pr. 270;
 
 SECURITY FOE COSTS. 321 
 
 made to appear affirmatively that the plaintiff was a nonresident 
 at the time the action was commenced. ^^ 
 
 A motion to compel the appellant's attorneys to pay costs per- 
 sonally after the dismissal of an appeal shonld be made in the 
 €onrt below, after judgment has been entered there. It cannot 
 be made in the appellate court. ^^ An attorney who becomes a 
 surety must be proceeded against in an action to enforce his lia- 
 bility upon his undertaking, and not summarily upon motion.^^ 
 
 246. Eight to security for costs lost by laches. — The absolute 
 right which the law gives the defendant to demand security for 
 costs may be waived by laches. Thereafter it rests in the discre- 
 tion of the court whether security shall be given or not In the 
 first department the absolute right is lost by the service of the 
 answer.^^ But extensions of time to answer are not waivers. ^'^ 
 The city court of ISTew York applies tlie same rule.^^ This view 
 is not adopted in the third department.'*' 
 
 In the other departments the question of this limitation has 
 not been passed on, but all hold that the defendant must move 
 promptly, as soon as he learns that he is entitled to security.'^^ 
 
 Long V. Hnll, 3 Saiidf. 729, N. Y. Supp. 670; Segal v. CauldiDeU, 22 
 
 Code Rep. N. S. 114. App. Div. 95, 47 K Y. Supp. 839. 
 
 '^Moir V. Broivn, 9 How. Pr. 270; "-Cooke v. Metropolitan Street R. 
 
 Long V. Hall, 3 Sandf. 729, K Y. Co. 59 App. Div. 1.54, 69 N. Y. Siipp. 
 
 ■Code Rep. N. S. 114. 4; Johnaon v. Metropolitan Street R. 
 
 ^^Struffman v. Muller, 74 N. Y. Co. 56 App. Div. 286, 9 N. Y. Anno. 
 
 594. Cas. 70, 67 N. Y. Supp. 855; Scandi- 
 
 '^Willmont v. Meserole, 48 How. navian American Bank v. Lentzy, 30 
 
 Pr. 430, 16 Abb. K S. 308; EuUard App. Div. 485, 52 IST. Y. Supp. 350. 
 
 v. Gicquel, 14 N. Y. Civ. Proc. Rep. '"Dwi/er v. McLaughlin, 27 Misc. 
 
 15. 15 N. Y. S. R. 397. 187, 57 N. Y. Supp. 220. 
 
 "'Henderson. B. d- Co. v. Mc\ally, ''"Wicker v. Elmira Heights, 42 
 
 33 App. Div. 132, 28 K Y. Civ. Proc. App. Div. 426, 59 N. Y. Supp. 130. 
 
 Eep. 178. 6 N. Y. Anno. Cas. 166, 53 ''Turell v. Erie R. Co. 46 App. 
 
 N. Y. Supp. 351; Corbett v. Bran- Div. 296. 61 N. Y. Supp. 308; Roh- 
 
 tingham, 65 App. Div. 335, 72 N. Y. ertson v. Barnum, 29 Hun, 657; Gif- 
 
 Supp. 763; Schwartz v. Scott, 25 X. ford v. Rising, 48 Hun, 128; Wolff 
 
 Y. Civ. Proc. Rep. 53. 70 K Y. S. R. v. Houston, W. Street d P. R. Co. 16 
 
 380, 35 N. Y. Supp. 607; Stevenson N. Y. Civ. Proc. Rep. 107, 19 N. Y. 
 
 V. yew York, L. E. & W. R. Co. 49 S. R. 762. 2 N. Y. Supp. 787; Wood 
 
 Hun, 169, 16 X. Y. S. R. 787, 1 N. Y. v. Blodgett, 49 Hun, 64, 15 K Y. Civ. 
 C0.5TS 21.
 
 322 THE LAW OF COSTS IN NEW YORK. 
 
 A defendant has a rio-ht to move whenever a new proceeding is 
 instituted, wherein he may become entitled to the benefits of the 
 provisions of the Code of Civil Procedure for the security of the 
 future costs, but not for the costs that have accrued, securit}-- for 
 which he has waived."^ But the court has power upon such an 
 application to order security for the costs of the entire proceed- 
 ings."^ 
 
 247. What is a sufficient excuse for laches. — It rests upon the 
 defendant to excuse his laches.'^^ The fact that the delay oc- 
 curred during the summer vacation has been considered suf- 
 cient."'' \\Tiere the fact of nonresidence first appeared on the 
 trial, a motion made three days after the trial was made in 
 time,'^" The fact that the plaintiff's attorney verified the com- 
 plaint, because the plaintiff was not within the county, does not 
 give notice of nonresidence, but implies, rather, that the absence 
 was temporary.''' A delay of three days after the discovery that 
 the plaintiff was a nonresident, before moving for security for 
 costs, has been held not to be laches."^ If the plaintiff obtains 
 an order as an absolute right, after he has been giiilty of laches^ 
 it will be set aside."^® 
 
 248. What is not a sufficient excuse for laches. — In the follow- 
 ing cases the laches of the defendant were such that the court, in 
 it^ discretion, denied a motion for security for costs : Where the 
 
 Proc. Rep. 114, 17 N. Y. S. R. 295, Proe. Rep. .384. 10 N. Y. S. R. 787, 
 
 2 N. Y. Siipp. .304; Florence v. Bulk- 1 N. Y. Supp. 670. 
 
 ley, 1 Duer, 706; Stevenson v. Xew ''^Segal v. Caiihliccll, 22 App. Div. 
 
 York, L. E. & W. R. Co. 49 Hun. 95, 47 K Y. Supp. 839: Hai/es v. 
 
 169, 14 N. Y. Civ. Proc. Rep. 384. Second Ave. /.'. Co. 5 Month. L. Bull. 
 
 16 N. Y. S. R. 787, 1 X. Y. Supp. 92. 
 
 670; Swan v. Mathews. 3 Duer. 613; ""Boucher v. Pia, 8 Bosw. 691. 14 
 
 Lewis V. Farrell, 14 Jones & S. 358. Abb. Pr. 1. 
 
 ''^Tvrell V. Erie R. Co. 46 App. Div. ^'Willson v. Eveline, 39 App. Div. 
 
 296, 61 N. Y. Supp. 308; Oifford v. 129. 56 X. Y. Supp. 632. 
 
 Risinff. 48 Hun, 128, 14 N. Y. Civ. ''Boucher v. Pia. 8 Bosw. 691, 14 
 
 Proc. Rep. 172. 28 N. Y. Week. Dig. Abb. Pr. 1. 
 
 327, 15 N. Y. S. R. 596. '^Bncldey v. Gutta Pcrcha d Rub- 
 
 '"Ranney v. Stringer, 4 Bosw. 663. her Mfg. Co. 3 N. Y. Civ. Proc. Rep. 
 
 "Stevenson v. New York. L. E. d 428. 17 N. Y. Week. Dip. 141. 
 W: R. Co. 49 Hun, 169, 14 N. Y. Civ.
 
 SECURITY FOE COSTS. 823 
 
 defendant examined tlie plaintiff before trial, and the case was 
 on the calendar and about to be reached f^ where the complaint 
 showed that the defendant was entitled to security, but he ob- 
 tained two extensions of time to answer, and afteru^ards an- 
 swered, and both parties noticed the case for trial ;^^ where an 
 action was commenced in December, two residents of the state 
 became plaintiffs in April, the complaint was served in May, 
 and the motion for security was served in July, before the an- 
 swer was served f- where an action was commenced in the first 
 department in July, the answer was served in October, and on 
 October 30 a motion was made for security f^ where an action 
 was commenced in February, and there had been two arguments 
 on the defendant's demurrers, and the defendant had examined 
 one of his witnesses before trial, the complaint was dismissed, 
 but the plaintiff was allowed to serve, in July, an amended com- 
 plaint upon his paying costs, when the motion for security was 
 made before the service of answer;^'* where the defendant knew 
 of his right to security from the time of the commencement of 
 the action on July 31, and his time to answer was extended to 
 December 6, when he demurred, and the case was placed on the 
 January and February calendars, but before the commencement 
 (if the February term he moved for security ;^^ where the de- 
 fendant served with his answer an order to file security, which 
 order was set aside, and two months elapsed before a motion was; 
 made for the plaintiff to file security ; the first order having 
 been set aside, could not aid the defendant on this motion f^ 
 
 ^"Boylan v. Mathexos, 3 N. Y. Civ. ^""Todd v. Marsily, 15 N. Y, Civ. 
 
 Proc. Rep. 38. Proc. Rep. 247, 7 N. Y. S. R. 872, 26 
 
 ^'Fearn v. Gelpcke, 13 Abb. Pr. N. Y. Week. Dig. 244. 
 
 i73; Boylmi y. Mathews, 3 'iJ.Y. Civ. ^*Fagan v. Strong, 19 N. Y. Civ. 
 
 Proc. Rep. 38; Smith d B. Brass Proc. Rep. 88, 11 N. Y. Supp. 766. 
 
 Works V. Kahn, 18 Misc. 597, 42 N. ^^McDonald v. Peet, 7 N. Y. Civ. 
 
 Y. Supp. 478; Bale v. Mason, 86 Proc. Rep. 200. 
 
 Hun, 499, 67 N. Y. S. R. 535, 33 N. «nFe6er- v. Moog, 12 Abb. N. C. 108, 
 Y. Supp. 789. 
 
 ^-Sims V. Bonner, 28 Jones & S. 63, 
 16 N. Y. Supp. 800
 
 324 THE LAW OF COSTS IN NEW YORK. 
 
 where the defendant does not demand security till after the com- 
 mencement of the trial f' where the action had been tried twice, 
 and the complaint was dismissed upon the third trial, and the 
 motion was made eleven days after that trial.**^ 
 
 A delay of nearly a year in moving for security has been held 
 fatal to the motion.^^ Also a delay of twenty years.^^ Where 
 the plaintiff removed from the state in September, and an inter- 
 locutor)^ judgment was entered in November, and after several 
 hearings before the referee the motion was made and denied. 
 CTnder the Revised Statutes the entry of the interlocutory judg- 
 ment was fatal to such a motion.^^ A defendant was held guilty 
 of such laches as to defeat his absolute right for security for 
 costs where he obtained, ex parte, an order requiring security for 
 costs, two years after the commencement of the action, when he 
 could have learned of the nonresidence of the plaintiff by in- 
 quiring of his attorney. In this case, however, tlie court re- 
 fused to set aside this order, because the plaintiff was guilty of 
 laches in moving to set aside the order.^^ 
 
 Where the defendant learned on September 1st that the plain- 
 tiff was a nonre^sident, but did not move until ISTovember 13th 
 for security, and the iNovember term was lost, he was denied 
 security on account of such delay.^" 
 
 249. Rights of the defendant to security when he is in default. — 
 Where the defendant is in default, he cannot move for security 
 where the plaintiff upon a writ of inquiry would be entitled to 
 nominal damages, and the defendant could not obtain costs f^ 
 and where he would not be entitled to costs in any event, — as 
 
 "Fitzsimmons v. Curley, 18 Jones ^^Abell v. Bradner, 15 N. Y. Civ. 
 
 & S. 429, 6 N. Y. Civ. Proc. Rep. 156. Proc. Rep. 24i, 17 N. Y. S. R. 859, 3 
 
 ^^Wolff V. Houston, W. Street & P. N. Y. Supp. 20. 
 
 R. Co. 16 N. Y. Civ. Proc. Rep. 107, "-Diinau-mj v. Terry, 37 Misc. 510. 
 
 19 N. Y. S. R. 762, 2 N. Y. Supp. 789. 75 N. Y. Snpp. 974. 
 
 ^"Jack V. Central Cross Town R. ^^Carpcnter v. Doicning, 6 Hill, 
 
 <7o. 28 N. Y. WeeK. Dig. 98; Lewis 234. 
 
 V. Farrell, 14 Jones & S. 358. ''^Butler v. Wood, 10 How. Pr. 313. 
 
 *V/.7/? v. Templeton, 3 N. Y. Week. 
 ms. 550.
 
 SECUKITY FOE COSTS. 325 
 
 where he has, by his pleadings, admitted that the plaintiff is en- 
 titled to such a judgment as would carry costs, — he cannot de- 
 mand security for costs when he is in default.^^ In a proper 
 case a defendant who is in default may require the plaintiff to 
 file security for costs, if the order is obtained before a judgment 
 is entered, because it is not certain but that the defendant may 
 be entitled to costs, which would be the fact if the plaintiff re- 
 covered less than $50.^*^ But if the defendant is let in to de- 
 fend after the default, and the judgment is allowed to stand as 
 a security, he may require, as a matter of statutory right, secur- 
 ity of the plaintiff.'*'^ If a judgment should be opened upon the 
 merits the defendant may apply for security.^^ 
 
 The discretion of the court in granting or refusing security 
 for costs will not be reviewed by the court of appeals.^^ 
 
 Where an order was granted upon insufficient affidavits, the 
 plaintiff should move to vacate the order upon the papers upon 
 which it was granted. If he moves to open it on affidavits, the 
 defendant may meet the alleged deficiency by new affidavits.'^^^ 
 
 250. How nonresidence is proved. — Whether a plaintiff is a 
 nonresident is determined by the ordinary rules of evidence.^^^ 
 Upon the return of an order to show cause why the j)laintiff 
 should not give security and he undertakes to show that he is a 
 resident, it rests with him to show everything possible to sup- 
 port such a contention, and he cannot object that the moving 
 affidavits are not sufficient.^ ''- 
 
 An allegation that the plaintiff is a resident of the city, county, 
 and state of ISTew York, is too vague, and upon a motion the 
 
 '^Butler V. Wood, 10 How. Pr. 313. ^'"Dieflin v. Egan, 22 N. Y. Civ. 
 
 ^"Abbott V. Smith, 8 How. Pr. 463. Proc. Kep. 398, 46 N. Y. S. R. 762, 
 
 ^'Gardner v. Kelly, 2 Sandf. 632, 19 N. Y. Supp. 392. 
 
 1 N. Y. Code Rep. 120. ^"-Hand v. iihaw, 13 Misc. 143, 68 
 
 "^Merchants' Bunk v. Mills, 3 E. D. N. Y. S. R. 99, 34 N. Y. Supp. 115; 
 
 Smith, 210. Mitchell v. Dick, 8 Misc. 98, 28 N. Y. 
 
 ^^Gedney v. Purdy, 47 N. Y. 676. Supp. 1003; Stephenson, v. Hanson, 
 
 ^""Flaherty v. Cary, 25 App. Div. 4 X. Y. Civ. Proc. Rep. 104. 
 
 195, 49 X. Y. Supp. 303.
 
 326 THE LAW OF COSTS IN NEW YORK. 
 
 plaintiff's attorney will be compelled to furnish the address of 
 the plaintiff.^*^^ The affidavit of a clerk that he called at a cer- 
 tain place and inquired for the plaintiff, and was informed that 
 the plaintiff' formerly resided there, but had removed on a cer- 
 tain date to another state, is not sufficient evidence to support an 
 order requiring security for costs.^*^* 
 
 251. What is nonresidence.— The statute requiring nonresi- 
 dents to give security for costs does not apply to resident aliens, 
 unless such residence is shown to be merely temporary,^ °^ A 
 plaintiff who is a nonresident at the time of the commencement 
 of the action is not excused from filing security, because he after- 
 wards becomes a resident of the state. The law looks to the sit- 
 uation at the time of the commencement of the action.^*^^ If 
 the plaintiff is a resident at the time of the coimnencement of the 
 action he cannot be compelled to give security, until he has actu- 
 ally removed. The law contemplates an actual, not an intended, 
 removal. •''^^ An order requiring security will not be vacated be- 
 cause, by a change of the law, security could not now be re- 
 quired.-^"^ A positive statement in the affidavit of the defend- 
 ant's attorney that the plaintiff is not a resident, when made 
 absolutely, and evidently from personal knowledge, is sufiicient 
 to sustain a judge's order requiring the plaintiff to give se- 
 curity.^^® By residence is meant legal residence, not domi- 
 cil.^^** A married man having his family fixed at one place 
 and doing business at another is deemed to have his residence 
 with his family, although he may have been absent such a length 
 
 ^'^Havana City R. Co. v. Ceballos, ^"''Morten v. Domestic Teleg. Co. 1 
 
 25 Misc. 660, 56 N. Y. Supp. 360. Abb. N. C. 290. 
 
 ^"Davidson v. Bose, 57 App. Div. ^'^Harrison v. yeivman, 14 Jones & 
 
 212, 68 N. Y. Supp. 316; McNeil v. S. 575; Wiley v. Arnoux, 60 How. 
 
 Merriam, 57 App. Div. 164, 68 N. Y, Pr. 137. 
 
 Supp. 165. ""IVicAer v. Elmira Heights. 42 
 
 ^"^N or ton v. Mackie, 8 Hun, 520. App. Div. 426, 59 N. Y. Supp. 130. 
 
 ^'^Arnbler v. Ambler. 8 Abb. Pr. ""Flaherty v. Carif. 25 App. Div. 
 
 340; Sims v. Bonner, 28 Jones & S. 195, 49 N. Y. Sujip. 303. 
 63, 16 N. Y. Supp. 800.
 
 SECUKITY FOR COSTS. 327 
 
 of time tliat he might be proceeded against by attachment.^ ^^ 
 
 The question of security will be settled only on the question of 
 
 residence. The fact that the plaintiff has personal property in 
 
 the state, under the control of one of the defendants, is imma- 
 terial.1^2 
 
 252. Special rule for the city court of New York. — By § 3160 
 of the Code of Civil Procedm-e, §§ 3268 and 3269 do not apply 
 to actions prosecuted in the ISTew York city court Section 3160 
 also pro\ddes that a plaintiff in an action in that court, who has 
 an ofEce for the regular transaction of business in person within 
 the city of JSTew York, is deemed a I'esident of that city witliin 
 the meaning of §§ 326S and 3269, even if he is not a resident of 
 the state.^^^ The moving papers in this court must affirmatively 
 show that the phiintiii has not such an offiee.^^'* But this pro- 
 ^dsion docs not apply to a foreigii corporation having a place of 
 business in said city;^^^ nor to an action commenced in any 
 other court^^® 
 
 253. Cases where nonresident need not give security. — In an 
 action where there are two or more plaintiffs the defendant is 
 not entitled to security for costs from one or more of them, unless 
 he is entitled to demand security from all the plaintiffs.-' ^'^ A 
 nonresident who unites vsdth a resident plaintiff who had brought 
 
 ^^Roherti v. Methodist Book Con- mack, 15 N. Y. Civ. Proc. Rep. 239, 
 
 ■cern, 1 Daly, 3. 18 N. Y. S. R. 287, 3 N. Y. Supp. 
 
 '^^-Churchman v. Merritt, 50 Hun, 214. Contra, Local Pub. Co. v. Post, 
 
 270, 19 N. Y. S. R. 171, 2 N. Y. N. Y. Daily Reg., April 16, 1884. 
 
 Supp. 843, Reversing 15 N. Y. Civ. ^'"Bolton v. Taylor, 18 Abb. Pr. 
 
 Proc. Rep. 245, 2 N. Y. Supp. 843. 385, 3 Robt. 647; Gardner v. Kelli/, 
 
 ^'^Beehe v. Parker, 16 N. Y. Civ. 2 Sandf. 632, 1 N. Y. Code Rep. 120; 
 
 Proc. Rep. 320, 22 Abb. N. C. 445, Blossom v. Adams, 7 N. Y. Legal 
 
 24 X. Y. S. R. 120, 4 N. Y. Supp. 97; Obs. 314. 2 N. Y. Code Rep. 59; Hicks 
 
 Wyckoff y. Devlin, 8 '^. Y. Civ. Vtoc. v. Payson, 7 Abb. Pr. 326; Phenix 
 
 Rep. 138, 2 How. Pr. N. S. 333; Glass v. Townshend, 2 N. Y. Code Rep. 2. 
 
 V. Place, 5 Daly, 110. ^''Sims v. Bonner, 21 N. Y. Civ. 
 
 ^"Stephenson v. Hanson, 4 K Y. Proc. Rep. 355, 42 N. Y. S. R. 10, 16 
 
 Civ. Proc. Rep. 104; Gnge v. Peetsch, X. Y. Supp. 800; Ten Broeck v. Rey- 
 
 12 Misc. 548, 67 X. Y. S. R. 875, 34 nold^, 13 How. Pr. 462; Gillespie v. 
 
 X. Y. Supp. 20. Pfister, Coleman & Cai. Gas. 120, 3 
 
 "'F. A. Kennedy Co. v. McCor- Johns. Cas. 470.
 
 328 THE LAW OF COSTS IN NEW YORK. 
 
 an action for the same cause and had been defeated with costs 
 cannot be compelled to give security, although tlie resident plain- 
 tiff has not paid the costs in the former action.^ ^^ A nonresi- 
 dent who brings an action in two capacities -will not be com- 
 pelled to give security, unless he should give security in both 
 capacities.-' ^^ A nonresident landlord cannot be compelled to- 
 give security in summary proceedings under § 3279 of the Code 
 of Civil Procedure.^ ^*^ ISTor should security be required of ai 
 nonresident relator in habeas corpus proceedings ;^^^ nor on ap- 
 peal from judgment of one of the inferior courts.-' ^^ \Vhere a 
 nonresident has given security for costs and has appealed from 
 an adverse judgment giving a bond, an action upon the bond 
 given in the trial court should not be brought until the appeal is 
 decided. If such an action is brought the plaintiff should move 
 in tlie original action for an order staying the prosecution of the 
 same until the decision of the appeal. ^^^ 
 
 254. Effect of removal of plaintiff from the state. — A plaintiff 
 who removes from the state before he recovers a judgment in his 
 favor may be compelled to give security.^ ^^ Under the Revised 
 Statutes this was not required in replevin actions, upon the 
 ground that the bond given in replevin was broad enough to cover 
 costs.^-^ But under tlie Code of Civil Procedure the bond given 
 upon replevin vnll not cover costs, and the defendant is there- 
 fore entitled to security in replevin actions the same as in any 
 other.^-^ But where the plaintiff recovers a judgment, and then 
 
 "'Ten Broech v. Reynolds, 13 How. '--Gardner v. Kelly, 2 Sandf. 632, 
 
 Pr. 462. ' 1 N. Y. Code Rep. 120. 
 
 ^^"Crowell V. Bills, 24 Misc. 411, ^"-^V an Vleck v. Clark, 3S Barh. 316^ 
 
 53 N. Y. Supp. 647. 24 How. Pr. 190. 
 
 ^"""Easier v. Johnston, 59 How. Pr. '-*LerAi v. :\IciroH-iiz, 16 Misc. 284, 
 
 432. 38 N. Y. Supp. 123; Gelch v. Bar- 
 
 ^-^People ex rel. James v. Society naly, 7 Abb. Pr. 19, 1 Bosw. 657; 
 
 for Prevention of Cruelty to Chil- Morten v. Domestic Teleg. Co. 1 Abb. 
 
 dren, 19 :\Iisc. 677, 44 N. Y. Supp. N. C. 290. 
 
 1100; People ex rel. Barry v. ^fer- "^Rogers v. Eitchcoclc, 9 Wend. 
 
 coin, 3 Hill, 399, 38 Am. Dec. 644: 462. 
 
 People ex rel. Young v. Siout, 10 '-"(lelcli v. Barnahy, 7 Abb. Pr. 19, 
 
 Misc. 247, 31 N. Y. Supp. 421. 1 Bosw. 657.
 
 SECURITY FOE COSTS. 329 
 
 removes from the state, tlie defendant cannot require securit}' 
 for costs mitil that judgment is reversed ;^^' or where judgment 
 is obtained bj default, until the defendant has the default 
 opened.^ ^^ 
 
 255. Effect of assignment of cause of action to a resident of the 
 state. — Where a claim has been assigned bj a nonresident to a 
 resident of the state, in order that he may bring an action there- 
 on, the assignee is a trustee of an express trust and may be 
 required to give security, in the discretion of the court ;^^^ but 
 where the plaintiff claims that he is the absolute o^vner of the 
 cause of action, which is denied by the defendant, the plaintiff 
 cannot be compelled to give security for costs, because the ques- 
 tion of o"v\Tiership is one of the issues to be determined upon the 
 trial.-' ^^ But where, after the defendant has moved for security, 
 the cause of action is transferred, the plaintiff will be compelled 
 U^ give security. •'^^ 
 
 256. Residence of a domestic corporation. — A domestic corpo- 
 ration is a person within the meaning of this title, and its resi- 
 dence is the county which is designated in its certificate of in- 
 corporation as its principal place of busino^^s.^-^- 
 
 257. Residence of a foreign corporation. — A foreign corpora- 
 tion is a nonresident.^^^ A national bank is a foreign corpora- 
 tion, although it has its principal place of business "udthin the 
 jurisdiction of the court.^^^ A foreign corporation suing in the 
 
 '"Flint V. Van Deusen, 24 Hun, 247, 67 N. Y. S. R. 419. 33 N. Y. 
 
 440, 12 N. Y. Week. Dig. 126. Supp. 417. 
 
 '"^ Merchants' Bank v. Mills, 3 E. '^Grant v. Crittenfon, 13 N. Y. 
 
 D. Smith, 210. Civ. Proc. Rep. 123: Henderson d Co. 
 
 '■'"Fish V. Wing, 1 N. Y. Civ. Proc. v. McXalli/, 33 App. Div. 132, 28 X. 
 
 Rep. 231. Y. Civ. Proc. Rep. 178. 6 X. Y. Anno. 
 
 """Horton v. Shepherd, 1 N. Y. Civ. Cas. 166, 53 N. Y. Supp. 351 ; Na- 
 
 Proc Ren 26 iional Exch. Bank v. HUliman, 4 
 
 ,31 „ A- ' TT ■ ^ -v V -^bb. X. C. 224; BanJr of Michigan v. 
 
 '^'Mc^amara v. Harris, 4 N. Y. ^ nn n- j -.n n j> n 
 
 -,. ^ ^ „ Jessup, 19 Wend. 10; Fersoe d B. 
 
 Civ. Proc. Rep. 76. ,,^^^^^^ ^^^,.^.^ ^ Willett, 14 Abb. Pr. 
 
 "-C. E. Sherin Special Agency v. ^IQ 
 Seaman, 49 App. Div. 33, 63 N. Y. ^^^Xailonnl Park Bank v. Gtinst, 1 
 
 Supp. 407; Edinird Thompson Co. v. Abb. X. C. 292; Boiren v. First Na' 
 
 Lobenthal, 24 X. Y. Civ. Proc. Rep. Bank, 34 How. Pr. 409.
 
 330 THE LAW OF COSTS IN NEW YORK. 
 
 New York city court will be required to give security, altJliough 
 it has an office in the city of New York for the transaction of 
 business. Such a corporation is not a person witliin the meaning- 
 of § 3160 of the Code of Civil Pocedure.-^^^ A foreign go vera- 
 rnent bringing an action in the courts of this state may be re- 
 quired to give security for costs the same as any other nonresi- 
 dent.i2« 
 
 258. Security required of an infant. — A defendant has an ab- 
 solute right to require security of an infant whose guardian ad 
 litem has not given security for costs, as provided in §§ 459 and 
 461) of the Code of Civil Procedure.-^^^ The plaintiff may bo 
 relieved from filing security for costs, by obtaining an order to 
 be allowed to sue as a poor person. ^^^ But such an order cannot 
 be obtained ex parte after the action is commenced.-' ^^ A guar- 
 dian ad litem of an infant, appointed as provided in § 469 of the 
 Code of Civil Procedure, cannot be required to file security, but 
 he is responsible for the costs.^^^ The papers, upon his appoint- 
 ment, should show his responsibility, and, where they fail to 
 do this, security should be required.^ *^ The judgment for costs 
 should be awarded against the infant, but they may be collected 
 
 "'Fenr7/ Huher Co. v. Warren, 29 Jones & S. 567; Dnn/er v. McLaugh- 
 
 Misc. 588, 61 N. Y. Supp. 247; F. A. lin, 27 Misc. 187, 57 N. Y. Supp. 406; 
 
 Kennedy Co. v. McCormack, 15 N. Y. Kleinpeter v. Klelnpeter, 2 N. Y. Civ. 
 
 Civ. Proc. Rep. 239, 18 N. Y. S. R. Proc. Rep. 21; ^Hchols v. Cammann, 
 
 287, 3 N. Y. Supp. 214; Edward 2 N. Y. Civ. Proc. Rep. 375. 
 
 Thompson Co. V. Lohenthal, 24: T!i.Y. "^ Code Civ. Proc. §§ 459, 469; 
 
 Civ. Proc. Rep. 247, 67 N. Y. S. R. Murphy v. Manhattan Brass Co. 28 
 
 419. Jones & S. 423, 44 N. Y. S. R. 834, 
 
 "'7/oH*<ras v. S-o^o, 112 N. Y. 310, 18 N. Y. Supp. 207; Shearman v. 
 
 2 L. R. A. 642, 16 N. Y. Civ. Proc. Pope, 106 X. Y. 664, 12 N. Y. Civ. 
 
 Rep. 270, 8 Am. St. Rep. 744, 20 N. Proc. Rep. 329, 27 N. Y. Week. Diji. 
 
 Y. S. R. 749, 19 N. E. 845; Mexico 1, 8 N. Y. S. R. 710, 12 N. E. 713; 
 
 v. Arrangois, 3 Abb. Pr. 470. Irving v. Garrity, 13 Abb. N. C. 182, 
 
 ^""'Lafrentz v. Mass, 23 N. Y. Civ. 4 N. Y. Civ. Proc. Rep. 105. 
 
 Proc. Rep. 238, 26 N. Y. Supp. 739; ^^Conhoy v. Ayres, 25 Misc. 52, 53 
 
 Healy v. Twenty-Third Street R. Co. N. Y. Supp. 1004. 
 
 1 N. Y. Civ. Proc. Rep. 15; Meredcth ^^Steinburg v. Manhattan R. Co. 
 
 v. Forly-Sccond Street tC- G. Street 14 Jones & S. 216: Wice v. Gommer- 
 
 R. Co. 1 N. Y. Civ. Proc. Rep. 15. clal F. Ins. Co. 8 Daly, 70. 
 
 note; Forty-Second Street d G. "'McDonald v. Brass Goods Mfg. 
 
 Street Ferry R. Co. v. Giintzer, 4 Co. 2 Abb. N. C. 434.
 
 SECURITY FOR COSTS. 331 
 
 of the guardian ad litem by execution, which may be issued as 
 of right.^^^ It is not necessary first to issue an execution against 
 the infant, though this is, perhaps, the better practice.^ "^^ Where, 
 pending an action, the plaintiff becomes of age and takes per- 
 sonal charge of the case, the guardian will not be compelled to 
 pay costs in case of his defeat,^ ^^ except where the order dis- 
 charging- the guardian retained his liability for the costs already 
 accrued, in which case the costs to that extent may be enforced 
 against him.'"*^ 
 
 A guardian ad litem for an infant defendant is not liable for 
 the costs of the action, unless specially charged therewith by the 
 order of the court for personal misconduct. Code Civ. Proc. 
 § 477. 
 
 259. Security required of executors, a. In general. — Under § 
 3271 of the Code of Civil Procedure security for costs may be 
 ordered in the discretion of the court in any action brought by an 
 executor or administrator.^^^ Formerly, executors and adminis- 
 trators were only required to give security for costs when they 
 had been guilty of bad faith or mismanagement in the commence- 
 ment or prosecution of the action. •^^" The court may now require 
 security for costs of an executor, although no bad faith is 
 claimed, if, in the judgment of the court, it is proper to do so 
 for the protection of the defendant.-''*^ The application for 
 
 ^*^Code Civ. Proc. § 3249; Grant- Proc. Rep. 59, 58 N. Y. Supp. 140; 
 
 man v. Thrall, 31 How. Pr. 464; Fagan v. Strong, 19 N. Y. Civ. Proc. 
 
 Linner v. Grouse, 61 Barb. 289. "Rep. 88, 11 N. Y. Supp. 706; Gaccavo 
 
 ^*^Grantman v. Thrall, 31 How. Pr. v. Rome, W. d 0. R. Go. 27 Jones & 
 
 464. S. 129, 13 X. Y. Supp. 884: Ruther- 
 
 ^**8parmann v. Keim, 6 Abb. N. C. ford v. Madrid, 77 Hun. 545, 60 N. Y. 
 
 353. S. R. 391, 28 N. Y. Supp. 923. 
 
 ^*^8chocn V. Schlessinger, 7 Abb. N. ^" Kimherly v. Stewart. 22 How. 
 
 C. 399, 57 How. Pr. 490. Pr. 281. 
 
 "^Fhpin V. Tinney, 60 N". Y. Supp. ^^'^Pfeifer v. Supreme Lodge of B. 
 
 791; Darbij v. Gondii, 1 Duor, 599, S. Benev. Soe. 54 App. Div. 200, 66 
 
 11 N. Y. Lejjal Obs. 154; Schmidt v. ISL y_ Supp. 604; Tolmau v. Syra- 
 
 Eiseman, 6 Misc. 264, 58 N. Y. S. R. cuse, B. d ^\ 1. R. Go. 92 X. Y. 353, 
 
 133, 26 N. Y. Supp. 766: Dunne v. 17 N. Y. Week. Dig. 32. 
 American Surety Co. 29 X. Y. Civ.
 
 332 THE LAW OF COSTS IN NEW YOEK. 
 
 seciiritv for costs is usually denied where the executor or admin- 
 istrator brings an action in good faith.^^^ But if the complaint 
 fails to state a cause of action the application will be granted.^ ^* 
 
 The provisions of § 3271 of the Code of Civil Procedure do 
 not apply to an action commenced by a decedent and re\dved by 
 his administrator or executor,^ ^^ The costs in such an action 
 are not a debt within the pur^dew of § 2749 of the Code of Civil 
 Procedure. If tlie action had been commenced by the executor, 
 and judgment rendered against him, the costs would not have 
 been a debt within the contemplation of § 2757, which provides 
 for the sale of decedent's real estate for the payment of debts.^^' 
 The fact that the action was commenced by the decedent doe? 
 not chano-e the rule.^^^ The enactment of § 3246 since the de- 
 cision of the last case cited does not change this rule, so far as it 
 applies to real estate, as appears from §§ 2756 and 2757, al- 
 though such costs are considered a debt, to be paid out of the 
 personal estate of the deceased.^^* 
 
 Such costs should be paid before legacies, even though the es- 
 tate is not large enough to pay the legacies in fuU.^^'' Upon a 
 motion by the executor to be substituted as a plaintiff in an 
 action in which his testator was sole plaintiff, the objection can- 
 not be urged that the executor should be stayed till the costs were 
 paid which were directed to be paid by the testator, because this 
 is not a proceeding within the meaning of § 779 of the Code of 
 CHvil Procedure. That objection can be urged after substitution, 
 if the plaintiff proceeds in the action.^^^ 
 
 ^^^Flynn v. Tinney, GO N. Y. Supp. X. Y. Supp. 131; Sanfordv. Granger, 
 
 791. 12 Barb. 897; Re Siowell, 15 Misc. 
 
 '=»(?. Maehle v. Eosenberfu 80 App. 533. 37 X. Y. Supp. 1127. 
 
 Div. 541, 80 X. Y. Supp. 705. ''^'Wood v. Byington, 2 Barb. Ch. 
 
 ^^'Demehy v. McCloud, 21 Misc. 387. 
 
 541, 47 X.Y. Supp. 714; Sullivan v. ^^*Re Foley, 39 App. Div. 248, 57 
 
 Remington Heioing Mach. Co. 27 X. Y. Supp. 131. 
 
 Hun, 270, 2 X\ Y. Civ. Proc. Rep. 58 ; "''7?e Casey, 2 Silv. Sup. Ct. 585, 
 
 Tindall v. Jones, 19 How. Pr. 469, 25 X. Y. S. R. 88, 6 X. Y. Supp. 608. 
 
 11 Abb. Pr. 258: Merritt v. Thomp- ''Ton Broeklin v. Tan Brocklin, 
 
 son, 27 X. Y. 225. 17 App. Div. 226, 45 N. Y. Supp. 541. 
 
 "=7?e Foley, 39 App. Div. 248, 57
 
 SECUEITY FOK COSTS. 333 
 
 h. Insolvent estate. — The majority of the decisions hold that 
 the fact that an estate is insolvent is not sufficient reason to com- 
 pel the executor to give security, when the action is brought in 
 good faith and upon a prima facie case.^^'^ The courts usually 
 deny the application for security for costs where the cause of 
 action constitutes the only asset, and to require the plaintiff to 
 give such security would he equivalent to denying to him the 
 right to Jiave his rights determined by the court.^^^ There are 
 a few decisions which hold that the insolvency of an estate is 
 sufficient to authorize the giving of security, but these are of very 
 doubtful authority.^ ^''' But if an action is brought in bad faith, 
 security will be required. ^^^ 
 
 c. Nonresident executors. — ITonresidence of an executor or 
 an administrator is no reason for requiring security for costs.-^^^ 
 A nonresident executor who has been substituted as plaintiff in 
 place of his testator, who had been required to give security for 
 costs, will also be required under the provisions of § 3276 of the 
 Code of Civil Procedure to give security.^ ^^ 
 
 ^"Rutherford v. Madrid, 77 Hun, S. Benev. Soc. 54 App. Div. 200, 
 545, GO N. Y. S. R. 391, 28 N. Y. ti6 N. Y. Supp. 604; Fish v. Wing, 1 
 Supp. 923: Caccavo v. Rome, W. d N. Y. Civ. Proc. Eep. 231. 
 0. R. Co. 27 Jones & S. 129, 13 N. Y. ^^'McXeil v. Merriam, 57 App. Div. 
 Supp. 884; Schmidt v. Eiseman, 6 164, 9 X. Y. Anno. Cas. 382, 08 N. Y. 
 Misc. 264. 58 N. Y. S. R. 133, 26 Supp. 165; Dunne v. American Sure- 
 ly. Y. Supp. 766; Tolman v. Syra- ty Co. 29 IST. Y. Civ. Proc. Rep. 59, 
 cuse, B. d N. Y. R. Co. 92 N. Y. 353; 58 N. Y. Supp. 140; Flynn v. Tinney, 
 Wassiger v. Fennell, 13 N. Y. Civ. 60 N. Y. Supp. 791 ; McDougal v. 
 Proc. Rep. 286; Ryan v. Potter, 4 N. Gray, 15 N. Y. Civ. Proc. Rep. 237, 
 Y'. Civ. Proc. Rep. 80, 2 N. Y. Civ. 4 N. Y. Supp. 74; Hall v. Waterhury, 
 Proc. Rep. (McCarty) 33; Heahj v. 5 Abb. N. C. 356; Pursley v. Rodgers, 
 Ticenty-Third Street R. Co. 1 N. Y. 44 App. Div. 139, 61 isT. Y. Supp. 
 Civ. Proc. Rep. 15; Podmore v. South 1015; Croioell v. Bills, 24 Misc. 411, 
 Brooklyn Sav. Inst. 27 Misc. 120, 57 53 K Y. Supp. 647; Carney v. Bern- 
 N. Y. Supp. 406; Drago v. Kavanagh, heimer, 1 N. Y. Civ. Proc. Rep. 233, 
 56 App. Div. 179, 67 isT. Y. Supp. 622. note; Eimberly v. Stewart, 22 How. 
 
 ^^Wassinger v. Fennell, 13 N. Y. Pr. 281; Podmore v. Seamen's Bank 
 
 Civ. Proc. rjep. 286; Koch v. Keller, for Savings, 30 Misc. 416, 62 N. Y. 
 
 2 INIonth. L. Bull. 97; Lyons v. Ca- Supp. 526; Pelkey v. Saranac, 67 
 
 hill. 12 N. Y. Civ. Proc. Rep. 72. App. Div. 337, 73 N. Y. Supp. 493. 
 
 ^^\Murphy v. Travers, 60 How. Pr. ^^-Tracy v. Dolan, 31 App. Div. 24, 
 
 501. 52 N. Y."^ Supp. 351. 
 
 ^^"Pfeifer v. Supreme Lodge of B.
 
 o34 THE LAW OF COSTS IN NEW YORK. 
 
 d. Notice of application. — The order, like all other orders 
 under § 3271 of tlie Code of Civil Procedure, is a court order 
 and must be made upon notice.^ ''^ 
 
 e. Security on appeal. — Where an executor is required to give 
 security for costs upon an appeal, security for past costs should 
 not be required.^ ^"^ 
 
 260. Security required of receivers. — A receiver will not be 
 required to give security unless it appears that the plaintiff has 
 no funds in his hands applicable to the payment of costs, and 
 also that the action was brought in bad faith or heedlessly or 
 without reasonable prospects of success.^ ^^ The carelessness or 
 negligence of a receiver in bringing an action upon a note for 
 which the defendant holds a receipt is such mismanagement or 
 bad faith on the part of the plaintiff that the defendant is en- 
 titled to security.^^*' A nonresident receiver of a national bank, 
 not situated in ]^ ew York, who sues in a capacity not defined by 
 § 3271 of the Code of Civil Procedure, should be required to 
 give security for costs.^*^" The plaintiff v^dll not be compelled to 
 give security in an action which he brings in his own right, al- 
 though he erroneously entitles it as brought by him as re- 
 ceiver. ^"^^ 
 
 A eeneral assio^nee for tJie benefit of creditors is not an official 
 
 o o 
 
 ^^\^inft V. Wheeler, 46 Hun. 580, "'HanUuff v. Field, 84 Hun, 540, 
 
 13 K Y. Civ. Proc. Rep. 343, 27 N. 65 N. Y. S. R. 875, 32 N. Y. Supp. 
 
 Y. Week. Dig. 512, 12 N. Y. S. R. 1143. 
 
 737; McNeil v. Merriam, 57 App. ^^^Ridgway v. Symons, 14 Misc. 78, 
 
 Div 164, 9 N. Y. Anno. Cas. 382, 68 25 N. Y. Civ. Proc. Rep. 23, G9 N. Y. 
 
 K Y. S\ipp. 165; Wood v. Blodgett, S. R. 552, 35 N. Y. Supp. 197; Ben- 
 
 49 Hun. 64. 2 N. Y. Supp. 304; Purs- nett v. Gohle, 43 Hun, 354; Riither- 
 
 ley V. Rodfiers, 44 App. Div. 139, 61 ford v. Madrid, 77 Hun, 545, 28 N. Y. 
 
 X. Y. Supp. 1015. Contra, Dunne Supp. 923: Hale v. Mason, 86 Hun, 
 
 V. American Surety Co. 29 N. Y. Civ. 499, 33 N. Y. Supp. 789. 
 
 Proc. Rep. 59, 58 N. Y. Supp. 140. ^^Kimberly v. Goodrich, 22 How. 
 
 This case is a special term decision Pr. 424. 
 
 in the first department, and is di- ^"Beclcham v. Hague, 44 App. Div. 
 
 rectly opposed to the obiter remark 146, 60 N. Y. Supp. 767. 
 
 of the appellate division in that de- ^'''^Vpson v. Hesselson, 60 App. DiV» 
 
 partment in Pursley v. Rodgcrs, 44 615, 69 N. Y. Supp. 684. 
 App. Div. 139, 61 N. Y. Supp. 1015.
 
 SECURITY FOR COSTS. 335 
 
 assignee within the meaning of § 3268 of the Code of Civil Pro- 
 cedure. An official assignee is one appointed by the court, and 
 has certain duties imposed upon him by the court.^^^ Such an 
 assignee is a trustee of an express trust within the meaning of 
 § 3271 of the Code of Civil Procedure, and security may be 
 demanded of him in the discretion of the court.^'" 
 
 261, Security required of receivers in supplementary proceed- 
 ings. — A receiver in supplementary proceedings may be re- 
 quired to give security for costs. -^"^^ A receiver should apply to 
 the court that appointed him, for leave to bring suit.^'^^ Even 
 then the court can order him to give security.^^^ In an action 
 to set aside a deed, where the receiver has no funds in his hands 
 the court will usually order security to be given, because the 
 judgment creditor can bring the action himself, and the court 
 will not allow him to put the defendant to the expense of defend- 
 ing his title for the benefit of a creditor who, in case of a defeat, 
 cannot be made to pay the costs. ^'^* 
 
 262. When trustees in bankruptcy are required to give security 
 for costs. — A trustee in bankruptcy is a trustee of an express 
 trust, and may be compelled to give security for costs. -^"^ But he 
 will not be compelled to file security for costs on the ground that 
 there are no funds in his hands to pay expenses.^^^ 
 
 Where a trustee in bankruptcy brings an action upon a claim 
 arising before the adjudication in bankruptcy, the defendant 
 
 ^^Lintner v. Long Island Mut. F. "^Velch v. Bogert, 3 N. Y. Week. 
 
 Ins. Co. 22 ilisc. 305, 5 N. Y. Anno. Big. 402. 
 
 Cas. 281. 49 N. Y. Supp. 1105: Fish ^^'*^Vrlrh \. Bogert, 3 N. Y. Week. 
 
 V. Wing, 1 N. Y. Civ. Proc. Rep. 231. Dig. 402. 
 
 Contra, Welch v. Gaffney, 1 How. Pr. ^""More v. Durr, 13 .Jones & S. 154: 
 
 N. S. 146. Hall v. Waferbury, 5 Abb. N. C. 356; 
 
 ""Fanney v. Stringer, 4 Bosw. 663. Reade v. Waterhotise, 52 N. Y. 587 ; 
 
 "^Gifford V. Rising, 48 Hun, 128, Todd v. Marsily, 26 N. Y. W'eek. Dig. 
 
 14 N. Y. Civ. Proc. Rep. 172, 28 N. 244. 7 N. Y. S. R. 872. 
 
 Y. Week. Dig. 327, 15 N. Y. S. R. ^'"WUhur v. White, 56 How. Pr. 
 
 596. 321. 
 
 ^'-Bolles V. Duff, 17 Abb. Pr. 448; 
 Welch V. Bogert, 3 N. Y. Week. Dig. 
 402.
 
 336 THE LAW OF COSTS IN NEW YORK. 
 
 is entitled, imder § 32 GS of the Code of Civil Procedure, to an 
 order requiring him to give security for costs.^'^' 
 
 But a trustee in bankruptcy will not be required to give secur- 
 ity for costs under that section, where he brings an action to set 
 aside, as fraudulent, conveyances made by the bankrupt, on the 
 ground that such conveyances constituted an unlawful prefer- 
 ence to creditors, in violation of the provisions of the bankruptcy 
 law. In such a case the cause of action did not arise till the ad- 
 judication in bankruptcy.^'^ If a creditor could have brought 
 an action to set aside a transfer before the adjudication of bank- 
 ruptcy, and the trustee brings an action to set aside the trans- 
 fer, on the same grounds uj)on which the creditor could have 
 maintained his action, security can be demanded under §3268 
 of the Code of Civil Procedure. 
 
 ^'"Frank v. Musliner, 29 Misc. '"^Kelley v. Kremer, 74 App. Div. 
 
 237, 60 X. Y. Supp. 332; Welch v. 456, 77 K Y. Supp. 515; Schreier v. 
 
 Gaffney, 1 Hoav. Pr. N. S. 146; Bofjan, 70 App. Div. 2, 74 N. Y. 
 
 Joseph V. Raff, 75 App. Div. 447, 78 Supp. 1051: Rielly v. Rosenberg, 57 
 
 N. Y. Supp. 310, Overruling Joseph App. Div. 408, 68 N. Y. Supp. 265. 
 V. Makley, 73 App. Div. 157, 76 N. Y. 
 Supp. 669.
 
 CHAPTER XXIIL 
 
 COSTS IN ACTIONS IN FORMA PAUPERIS. 
 
 263. Statute. 
 
 264. Who may apply for leave to sue as a poor person. 
 
 a. Nonresidents. 
 
 ft. Infants. 
 
 c. Other persons. 
 
 265. Who is a pauper. 
 
 266. When the application should be made. 
 
 267. What the petition must state. 
 
 268. Right to be thus allowed to sue. lost by laches. 
 
 269. Designation and duties of attorney assigned to conduct an action for 
 
 a poor person. 
 
 270. Stay for nonpayment of costs that have accrued at the lime of grant- 
 
 ing the order. 
 
 271. Efl'ect of order allowing a party to sue as a poor person. 
 
 272. Terms upon opening a default. 
 
 273. Power of the court to impose the payment of costs as condition of 
 
 granting a favor. 
 
 263. Statute. — The statute governing the rights of persons to 
 he allowed to prosecute or defend certain actions as poor person;?' 
 is contained in § 45 8-46 Y of the Code of Civil Procedure. 
 
 264. Who may apply for leave to sue as a poor person, a. Non- 
 residents. — The weight of authority is that a nonresident may 
 he allowed to sue as a poor person.^ But where the cause of 
 action arose in another state, where hoth parties reside, the mo- 
 tion will be denied, — especially where there has been a long 
 delay in making the application.^ 
 
 h. Infants. — Prior to 1891 there was a conflict of authority 
 
 'Hrckmnn v. Mac]:cif, 19 Abb. N. Y. S. R. .599, 13 N. Y. Supp. 71 R. 
 
 C. 394, 13 N. Y. Civ. Proc. Ren. 11: Contra. Christian v. Gouge. 58 How. 
 
 Harris Y. Mutual L. Ins. Co. 18 "i^.Y. Pr. 445, 10 Abb. N. C. 82; Anony- 
 
 Civ. Proc. Rep. 195, 10 N. Y. Supp. nums, 10 Abb. N. C. 80; Moore v. 
 
 473; Harris v. Mutual L. Ins. Co. Cooley, 2 Hill, 412. 
 20 N. Y. Civ. Proc. Rep. 192, 37 N. -Alexander v. Meyers. 8 Daly, 112. 
 COSTS 22. 337
 
 338 THE I.AW OF COSTS IN NEW YOKK. 
 
 as to the right of an infant to sue as a poor person. Since thr? 
 amendment to § 458 of the Code of Civil Procedure by the in- 
 sertion of tlie words "whether an adult or infant," and by tlie 
 amendment to § 459 at the same time, infants have a right to 
 thus sue,^ although the guardian has not given security for 
 costs.* An infant may thus sue, although his guardian ad litem 
 is a responsible person.^ An infant may be allowed to sue as a 
 poor person, altliough his father has ample means,*^ and has been 
 appointed guardian ad litem of the plaintiff.'^ The application 
 to sue in forma pauperis must be made in the action in which the 
 guardian ad litem was appointed. After a verdict in that action 
 the guardian's authority is at an end, except to review that judg- 
 ment by appeal. He has no authority to institute another 
 action.^ 
 
 c. Other persons. — The committee of a lunatic cannot sue as 
 a poor person.^ A husband or wife may be permitted to com- 
 mence an action for separation in forma pauperis}^ All the 
 jtarties plaintiif mu-t apply for leave to sue in forma pauperis, 
 and the order must bo granted to all. Permission to thus sue 
 cannot be granted to only one of several plaintiffs. ^^ 
 
 263. Who is a pauper. — It is not every person who is not 
 worth $100 tliat is entitled to the order, but it must appear that 
 the person would be unable to prosecute his action without this 
 
 Urviv(j V. Garritif, 13 Abb. N. C. Abb. N. C. 144, 23 N. Y. Civ. Proc. 
 
 ]82;Hotaling v. McKeyizie, 7 N. Y. Rep. 365, 58 N. Y. S. R. 479, 27 N. Y. 
 
 Civ. Proo. Rop. 320; Tobias v. Broad- Supp. 980; Gallagher v. Geneva, W. 
 
 may d S. Ave. R. Co. 39 N. Y. S. R. 8. F. & C. Lale Traction Co. 39 Misc. 
 
 183, 14 N. Y. Supp. 641 ; Erickson 637, 80 N. y. Supp. 606. 
 V. Poey, 5 N. Y. Civ. Proc. Rep. 379. H^osso v. Second Ave. R. Co. 13 
 
 'Trimble v. Kilgannon, 12 ISIisc. App. Div. 375, 43 X. Y. Supp. 216. 
 459 24 N. Y. Civ. Proc. Rep. 400, 68 ''Bcchtle v. Manhattan R. Co. 31 
 
 N. Y. S. R. 134, 34 N. Y. Supp. 256. Abb. N. C. 483, 62 N. Y. S. R. 120, 
 
 "Feier v. Third Ave. R. Co. 9 App. 30 N. Y. Supp. 410. 
 Div. 607, 75 N. Y. S. R. 1222, 41 ^"McAllen's Petition, 1 ISIontli. L- 
 
 M. Y. Supp. 821. Bull. 60: Robertson v. Roberfson, » 
 
 'Bonadna v. Third Ave. R. Co. 62 Paifje, 387. 
 X. Y. S. R. 120, 30 N. Y. Supp. 410. ^^Ostrander v. Harper, 14 IIow. Pr. 
 
 'Shapiro V. Burns, 7 Misc. 418, 31 16.
 
 COSTS IN ACTIONS IN FORMA PAUPERIS. 339 
 
 ordei"^^ A person need not be a pauper to be allowed to sue as 
 a poor person. It is sufficient if the plaintiff is not worth $100 
 besides wearing apparel.^ ^ The law does not deny its aid even 
 to paupers, and the order should be granted, where a denial 
 would be equivalent to a denial of the protection of the court. ■'^ 
 
 266. When the application should be made. — The application 
 to be allowed to sue as a poor person should be made at, or soon 
 after, the commencement of the action.^ ^ An infant cannot 
 make application for leave to defend as a poor person, until a 
 guardian ad litem has been appointed.-'*' It is a disputed ques- 
 tion whether this right may be lost by laches,^'^ or whether it is 
 an absolute right of the plaintiff upon complying with the statu- 
 tory requirements at any time during the action.^ ^ The latter 
 position is more consonant with reason and the statute than the 
 former. See § 268, infra. It has also been held that the grant- 
 ing of the order rests in the discretion of the court, which will 
 not be disturbed upon appeal unless there has been an abuse of 
 such discretion.^ '^ 
 
 267. What the petition must state. — Section 459 of the Code 
 of Civil Procedure: "The petition must state: 1. The nature 
 of the action brought, or intended to be brought. 2. That the 
 applicant is not worth $100, besides the wearing apparel and 
 furniture necessary for himself and his family, and the subject- 
 matter of the action. It must be vei'ified by the applicant's af- 
 fidavit, imless the applicant is an infant under the age of four- 
 
 "Gallcrstein v. Manhattan R. Co. '"Re Byne, 1 Edw. Ch. 41. 
 
 26 Misc. 853, 55 N. Y. Supp. 444; "Sweeney v. White, 10 Misc. 29, 
 
 Weinstein v. Frank, 56 App. Div. 6.3 N. Y. S. R. 242, 30 N. Y. Supp. 
 
 275, 67 N. Y. Supp. 746. 1051; Glashurg v. Dry Dock, E. B. 
 
 '^McNamara v. Nolan, 13 Misc. 76, c6 B. R. Co. 12 N. Y. Civ. Proc. Rep. 
 
 25 N. Y. Civ. Proc. Rep. 35, 68 N. Y. -50. 
 
 S. R. 229, 34 N. Y. Supp. 178. '\Shapiro v. Burns, 7 Misc. 418, 31 
 
 ^*Lyons v. CahiU, 12 N. Y. Civ. Abb. X. C. 144, 23 N. Y. Civ. Proc. 
 
 Proc. Rep. 72. Rep. 365, 58 N. Y. S. R. 479, 27 N. Y. 
 
 ^""Sweeney v. ^Yhite, 10 :\Iisc. 29, Supp. 980; Kuhn v. Singer Mfg. Co. 
 
 63 N. Y. S. R. 242, 30 N. Y. Supp. 18 Misc. 568, 42 N. Y. Supp. 461. 
 
 1051; Ostrander v. Harper, 14 How. ^^Steinierg v. Rosenthal, 17 Misc. 
 
 Pr. 16. 53, 39 N. Y. Supp. 1132.
 
 340 THE LAW OF COSTS IN NEW YORK. 
 
 teen years, and in that case by the affidavit of his guardian ap- 
 pointed in said action, and supported by a certificate of a coun- 
 selor at law, to the effect that he has examined the case, and is 
 of the opinion that the applicant has a good cause of action." 
 
 Section 464 of the Code of Civil Procedure: "The petition 
 must contain the same matters, respecting the ability of the 
 petitioner, required to be contained in a petition for leave to 
 prosecute as a poor person ; and it must be supported by a simi- 
 lar certificate, relating to the defense." 
 
 A petition upon an application to be allowed to sue as a poor 
 person, which alleges the facts upon which the action is to be 
 based, and the poverty of the petitioner, makes a prima facie 
 case for the granting of the order.^*' An application by an ad- 
 ministrator for leave to sue as a poor person must show the finan- 
 cial condition of the estate ; merely showing the poverty of the 
 petitioner is not sufficient.^^ The plaintiff must satisfy the court 
 that he has a good cause of action. This is not done by 
 setting forth in general terms in the complaint and the petition 
 the cause of action, upon information and belief, without giving 
 the sources of his information and the grounds of his belief, 
 when the defendant produces affidavits of eye-witnesses, which 
 show that the plaintiff cannot recover.-" 
 
 Upon his application the plaintiff' need not go into the merits 
 of the case, nor prove his right to recover.^^ The truth of the 
 facts alleged in the petition and the sufficiency of the plaintiff's 
 cause^of action can be controverted by affidavits only. The an- 
 swer cannot be used as an opposing affidavit, because that creates 
 the issues merely.-^ The plaintiff sufficiently states the nature 
 
 =*ro«M<7 V. ^^assau Electric R. Co. -^Kahn v. Singer Mfg. Co. 18 ]\Iisc. 
 
 34 App. biv. 126, 54 N. Y. Supp. fiOO. 568, 42 N. Y. Supp. 461 : McXamara 
 
 ^Daus V. \itssberger, 25 App. Div. v. Nolan, 13 Misc. 76, 25 N. Y. Civ. 
 
 185, 49 N. Y. Supp. 291. Proc. Rep. 35. 68 N. Y. S. R. 229, 
 
 ^^SaUzman v. Northrop, 18 Misc. 34 N. Y. Supp. 178. 
 
 353, 41 N. Y. Supp. 547 ; Beyer v. "Kahn v. Singer Mfg. Co. 18 Misc. 
 
 Clark, 29 Abb. N. C. 338, 22 N. Y. 568, 42 X. Y. Supp. 461 ; Beyer v. 
 
 Supp. 540. Clark, 29 Abb. N. C. 338, 22 N. Y.
 
 COSTS IK ACTIONS IN FORMA PAUPJililS. 341 
 
 of the action by a reference to the complaint, which has already 
 been served. ^^ When the defendant has moved for security for 
 costs and the plaintiff makes a motion to be allowed to sue as a 
 poor per>^on, the granting of the plaintiff's motion is a denial of 
 the defendant's by which he is bound, unless he appeals.^*^ If 
 the defendant has obtained an order compelling the plaintiff to 
 give security for costs, the plaintiff can make a motion to vacate 
 that motion and to be allo^ved to sue as a poor person.^'' But a 
 judge who has granted an order ex parte, allowing the plaintiff 
 to sue as a poor person, cannot set aside such an order, unless it 
 is made to appear that some material fact was misstated, or some 
 fact has been suppressed which, if brought to the attention of 
 the court, would have required the judge to refuse such applica- 
 tion.^^ The fact that the plaintiff has been defeated in a former 
 action upon the same cause is properly considered by the court 
 uiDon the question whether the plaintiff has a meritorious cause 
 of action, but the fact of the adverse decision of the former case 
 is not a bar to the application for leave to sue as a poor person.^® 
 268. Right to be thus allowed to sue, lost by laches. — In those 
 courts where it is held that the right to sue in forma pauperis 
 may be lost by laches, it has been held that a motion for leave to 
 prosecute as a poor person, where there has been unreasonable 
 delay in making the application, has been denied for laches 
 under the following conditions : Where the application was not 
 made till one year after the joinder of issue ;^^^ where the appli- 
 cation was not made till three years after the joinder of issue f^ 
 
 Supp. .540; McGUIicuddy v. Kings Rep. 36.5, 58 N. Y. S. R. 479. 27 N. Y. 
 
 County Elev. R. Co. 10 Misc. 21, 62 Siipp. 980. 
 
 N. Y. S. R. 648, 30 N. Y. Supp. 833. "^P^^^" v. Second Ave. R. Co. 20 
 
 ^'McGilUcuddy V. K\nqs County -^PP" ^^''- ^^^' ^6 N. Y. Supp. 807. 
 
 Elev. R. Co. 10 Misc. 21, 62 N. Y. S. , 'Z''''y "";.• ^"^*"" Electric R. 
 
 R. 648, 30 N. Y. Supp. 833. ^^'o ^^^' ''"' "" ""■ ^' ^"^'■ 
 
 ^Hays V. Knickerbocker Ice Co. 20 ^Alexander v. Meyers. 8 Daly, 112. 
 
 N. Y. Week. Dig. 61. ^Sweeney v. White, 10 Misc. 29, 
 
 Abb 
 
 Shapiro v. Burns, 7 Misc. 418, 31 63 N. Y. S. R. 242, 30 N. Y. Supp 
 .. X. C. 144, 23 N. Y. Civ. Proc. 1051.
 
 34-2 THE LAW OF COSTS IN NEW YOEK. 
 
 and where the case had been referred and iioticed for trial."^ 
 The application of an infant by his guardian ad litem, who has 
 been ordered to give security for costs, and the trial actually com- 
 menced, Avill be denied for laches.^^ 
 
 If the plaintiff neglects to serve a copy of the order, he must 
 present it to the clerk upon the taxation of costs ; otherwise, he 
 will lose all his rights under the order.^* 
 
 A person suing in forma pauperis may appeal from the judg- 
 ment or order, but he will be liable for the costs of the appeal if 
 he is beaten, because the immunity from costs does not apply 
 to the costs of an appeal unless the person suing in forma pau- 
 peris is the respondent.'"^^ 
 
 269. Designation and duties of attorney assigned to conduct an 
 action for a poor person. — The order should contain the name of 
 the counsel who is assigned as required by § 460 of the Code of 
 Civil Procedure, and also the provision that he should serve 
 without compensation.^® If tiie order does not contain this pro- 
 vision it is fatally defective.^'^ 
 
 The court is not required to assign an attorney designated by 
 the party, ^^ and should assign an attorney w^ho makes applica- 
 tion to be the attorney in tlie action only in exceptional cases, 
 and then only wdien it clearly appears that the party knows that 
 the attorney is bound to act without compensation, and tJie at- 
 torney agrees to so act.^^ An agreement whereby the attorney 
 
 ^Tlorence v. Bulldey, 1 Duer, 705, 21Z;0strander v. Harper, 14 How. 
 
 12 N. Y. Legal Obs. 28. Pr. 16; Moore v. Coolcy, 2 Hill, 412; 
 
 ^Glasberg v. Dry Dock E. B. d B. McDonald v. Banlc for Savings, 2 
 
 R. Co. 12 N. Y. Civ. Proc. Rep. 50. How. Pr. 35. Contra, Whelan v. 
 
 ^Neugrosche v. Manhattan K. Co. Whelan, 3 Cow. 537. 
 
 1 N. Y. S. R. 302; Oales v. High, 11 """Daus v. Nussberger, 25 App. Div. 
 
 Misc. 313, 05 N. Y. S. R. 497, 32 N. 185, 49 N. Y. Supp. 291. 
 
 Y. Supp. 289; Johnston v. Green, 3 ^'Rutlousky v. Cohen, 74 App. 
 
 Abb. Pr. N. S. 342. Div. 415, 77 N. Y. Supp. 546. 
 
 ^Uayden v. Hayden, 8 App. Div. ^Hehnprecht v. Bowen, 87 Hun, 
 
 547, 40 N. Y. Supp. 865; Morse v. 362, 34 N. Y. Supp. 1141. 
 
 Troy, 38 Hun, 301; Code Civ. Proc. ^niarris v. Mutual L. Ins. Co. 20 
 
 § -166; Lyons v. Murat, 54 How. Pr. N. Y. Civ. Proc. Rep. 192, 37 N. Y. 
 
 24, 368; Bolton v. Gardner, 3 Paige, S. R. 599, 13 N. Y. Supp. 718; Cahill
 
 COSTS liS' ACTIONS IX FOUMA PALTEKIS. -34:3 
 
 is to receive a part of the recovery is fatal to the application.'*'' 
 The attoniey is, however, entitled to any costs awarded in the 
 actioii, subject to the power of the court to distribute them.*^ 
 If he retains anything beyond that, his client may compel him 
 to pay it over.^- When the plaintiff suing as a poor person re- 
 covers a judgment which does not cany costs, he can enter a 
 judg-ment for the amount of the recovery without the addition 
 of an}' costs.^^ The motion for leave to sue as a poor person 
 will be denied wliere it appears that the attorney has agreed to 
 conduct the case without expense to the plaintiff, because then 
 the plaintiff does not need statutory assistance in defraying the 
 expenses of the litigation.^'* 
 
 270. Stay for nonpayment of costs that have accrued at the time 
 of granting the order. — Liability for costs in a fonner suit did 
 not prevent the plaintiff from obtaining the order under the Re- 
 vised Statutes,'*^ nor under § 461 of the Code of Civil Proced- 
 ure.'*^ But such an order does not relieve him from paying 
 costs that have already accrued in tliis action, and he would be 
 stayed for the nonpayment thereof, the same as in any other 
 case.^^ 
 
 271. Effect of order allowing a party to sue as a poor person. — 
 Sec. 461 of the Code of Civil Procedure : "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 the 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." 
 
 V. Manhattan R. Co. 38 App. Div. **Doicns v. Farley, 18 Abb. N. C. 
 
 314, 57 N. Y. Supp. 10. 464. 12 X. Y. Civ. Proc. Eep. 119. 
 
 "C'o/ti'H V. Manhattan R. Co. 38 ^'Roherti v. Carlton, 18 How. Pr. 
 
 App. Div. 314, 57 N. Y. Supp. 10; 466. 
 Joyce V. Cooper, 17 Jones & S. 115. ^'^Rosa v. Second Ave. R. Co. 20 
 
 " Code Civ. Proc. § 407. App. Div. 334, 46 N. Y. Supp. 807. 
 
 *'Re Kelly, 12 Daly, 110. *'Lyo)is v. Miirat, 54 How. Pr. 24, 
 
 *^WeJtman v. Posenecker, 19 Misc. 368; Broion v. Story, 1 Paige, 588. 
 592, 44 N. Y. Supp. 406.
 
 344 THE LAW OF COSTS IN NEW YORK. 
 
 272. Terms upon opening a default.— Where a person suing 
 in forma pawperis allows his complaint to be dismissed by de- 
 fault the case will not be restored until the plaintiff pays costs of 
 the trial, and motion costs, $40.^^ 
 
 273. Power of the court to impose the payment of costs as con- 
 dition of granting a favor. — The court can impose costs upon a 
 party suing in forma pauperis, as a condition of granting a 
 favor, — such as allowing an amendment to the complaint after a 
 reversal by the appellate court of a judgment in favor of the 
 plaintiff. This may be imposed, although the costs, as taxed, 
 and which the plaintiff is directed to pay as a condition of 
 amending his complaint, are larger than the judgment re- 
 versed.^^ The court may also impose terms upon allowing the 
 plaintiff' to discontinue after he has been allowed to sue as a poor 
 person.*^" , He may also be charged with costs incurred in set- 
 ting aside his proceedings for irregularity, or for a contempt, or 
 for striking out scandalous or impertinent matter.''^ 
 
 ^Elioin V. JRouth, 1 N. Y. Civ. '^"Parkinson v. f^cntt, 5 Misc. 261, 
 
 Proe. Rep. 131; Neugrosche v. Man- 25 N. Y. Supp. 102, .31 Abb. X. C. 44. 
 
 hattan It. Co. 1 N. Y. S. R. 302. '^^ Richardson v. Richardson, 5 
 
 "Coi/ie V. Third Ave. R. Co. 19 Pnige, 58. 
 Misc. 345, 43 N. Y. Supp. 499.
 
 CHAPTER XXIV. 
 
 ADDITIONAL ALLOWANCES. 
 
 274. Statute. 
 
 275. In general. 
 
 276. When the application for an additional allowance should be made. 
 
 277. Defense must be interposed. 
 
 278. Allowance when the complaint is dismissed. 
 
 279. — upon the discontinuance of an action. 
 
 280. — upon offer of judgment. 
 28L — upon overruling a demurrer. 
 
 282. To whom application must be made. 
 
 283. Power of referee to grant an additional allowance. 
 
 284. Upon what papers the application should be made. 
 
 285. Allowance when both parties succeed. 
 
 28(3. — when the court of appeals renders judgment absolute upon a 
 stipulation. 
 
 287. Number of allowances in an action. 
 
 288. What determines the fact that an action is difficult and extraordinary. 
 
 a. In general. 
 
 6. Dillicult question of law. 
 c. Dilhcult question of fact. 
 (J. Length of time of triaL 
 
 e. More than one trial. 
 
 f. Eminence of counsel. 
 
 g. Other considerations. 
 
 289. What determines the fact that the action is not difficult and 
 
 extraordinary. 
 
 a. Simple question of law or fact. 
 
 b. Length of time of trial. 
 
 c. Difficult and extraordinary question decided against the prevail- 
 
 ing party. 
 
 d. Other considerations. 
 
 290. How the allowance can be reviewed. 
 
 291. Discretion in making allowance reviewed by what courts. 
 
 292. Necessity of general costs. 
 
 293. By what statute governed. 
 
 294. Power of the court over the allowance. 
 
 295. Amount claimed in the pleadings. 
 
 29(3. Jlotive of plaintifl' in commencing the action. 
 
 297. Allowance in taxpayer's action. 
 
 298. Actions to apportion a tax or assessment. 
 
 345
 
 346 THE LAW OF COSTS IN NEW YOKK. 
 
 299. Real actions. 
 
 a. Basis of an allowance in an action on a lease. 
 6. — in injunction actions. 
 
 c. — in actions for specific performance. 
 
 d. — in ejectment actions. 
 
 e. — in actions to restrain nuisances. 
 ^. — in actions for trespass. 
 
 g. — in actions against railroads. 
 
 h. — in partition actions. 
 
 t. — in mortgage foreclosures. 
 
 j. — in actions to set aside transfers as fraudulent. 
 
 300. Allowance in actions against corporations. 
 
 301. — in actions relating to a fund. 
 
 302. — in actions relating to wills. 
 
 303. ■ — actions upon insurance policies. 
 
 304. — in actions in relation to annuities. 
 
 305. — in actions relating to the capital stock of corporations. 
 30G. — in actions to recover damages for negligently causing death. 
 
 307. — in partnership accountings. 
 
 308. — in actions to restrain use of trademarks. 
 
 309. — when the defendant sets up a counterclaim. 
 
 310. Effect of the defendant winning by pleading the statute' of limitations. 
 
 311. Actions in which there is no basis for an additional allowance. 
 
 a. In general. 
 6. Quo warranto. 
 
 c. Actions to restrain the use of a trademark. 
 
 d. Real actions. 
 
 e. Actions for injunctions. 
 
 f. Actions in relation to wills. 
 
 g. Actions for an accounting. 
 h. Matrimonial actions. 
 
 t. Actions in forma pauperis, 
 j. Various cases. 
 
 312. Wliat is a proper allowance. 
 
 o. In general. 
 
 6. Allowances to guardians ad litem. 
 
 c. — ^in taxpayer's actions. 
 
 d. — in actions in relation to wills. 
 
 e. — various cases. 
 
 313. Allowances in special proceedings. 
 
 314. Additional allowances as a matter of right. 
 
 315. Additional allowances in attachment actions. 
 
 274. statute. — The statute governing these allowances Is con- 
 tained in §§ 3253 and 3254 of the Code of Civil Procedure. 
 Sec. 3253 : ''In an action brought to foreclose a mortgage upon
 
 ADDITIONAL ALI,OWANCES. 347 
 
 real property, or for the partition of real property, or in a dif- 
 ficult and extraordinary case (where a defense has been inter- 
 posed, in an action) ; or, except in the first and second judicial 
 districts, in a special proceeding by certiorari to review an as- 
 sessment, under ai-ticle 11 of chapter 908 of the Laws of 1896, 
 and the acts amending the same, the court may also, in its dis- 
 cretion, award to any party a further sum, as follows : 
 
 "1. In an action to foreclose a mortgage, a sum not exceeding 
 2y2 per cent upon the sum due or claimed to be due upon the 
 mortgage, nor the aggregate sum of $200. 
 
 "2. In any action or special proceeding specified in this sec- 
 tion where a defense has been interposed, or in an action for 
 the partition of real property, a sum not exceeding 5 per cent 
 upon the sum recovered or claimed, or the value of the subject- 
 matter involved." 
 
 Sec. 3254: ^'But all the sums awarded to the plaintiff, as 
 prescribed in § 3252 of this act, or to a party, or two or more 
 pr.rties on the same side, as prescribed in the last sentence of 
 § 3251 of this act, and in subdivision 2 of the last section, can- 
 not exceed, in the aggregate, $2,000." 
 
 Rule 45 of the General Rules of Practice provides that the 
 "applications for an additional allowance can only be made to 
 the court before which the trial is had, or the judgment rendered, 
 and shall in all cases be made before final costs are adjusted." 
 
 It will be seen that an allowance may be made under this 
 section in three classes of actions. 
 
 1. In an action brought to foreclose a mortgage upon real 
 property. 
 
 2. In an action for the partition of real property. 
 
 3. In any difficult and extraordinaiy case, where a defense 
 has been interposed. 
 
 275. In general. — It is the policy of the law in granting an 
 additional allowance, to prevent them from being infiicted by 
 way of penalties upon parties in needy or even moderate circum-
 
 348 THE LAW OF COSTS IN NEW YORK. 
 
 stances. This would close the doors of the courts to many of 
 tliis class of people, because tlie risk of being made to pay such 
 an allowance would deter many from bringing an action, on what 
 they considered a good cause of action. To people of affluent 
 circumstances this is of little consequence, but to the others, 
 who are much the larger class, it is not only discouraging, but 
 also impoverishing.-^ The question of whether an additional al- 
 lowance will be granted or not, and, if granted, how much, will 
 be decided on the facts of each case. The amount will be what 
 would be a moderate counsel fee for tliat case. Some courts 
 have refused to grant it for the purpose of paying counsel feei^ 
 to lawyers from abroad.- It is given for the trouble incurred 
 in the trial of an action, and not for appeals.^ The court in 
 exercising its discretion will take into account the fact that the 
 defeated party has been compelled to pay more than the ordi- 
 nary costs, — as, where two defendants in good faith severed their 
 defense ;"* or that the granting of an allowance will be to practi- 
 cally compel a third person to pay it,- — as in case of granting an 
 additional allowance against an insolvent sa\angs bank.'^ 
 
 An allowance cannot be made upon the stipulation that it 
 will be waived if the defeated party does not take an appeal, be- 
 cause that is practically a fine of that amount, imposed upon 
 the defeated party for apjiealing from the judgment.® 
 
 276. When the application for an additional allowance should 
 be made. — Application for an additional allowance must be 
 
 Wan Brunt v. Van Brunt, 14 X. Y. 'Tillman v. Powell, 13 How. Pr. 
 
 S. R. 887. 117; Mattheicson v. Thompson, 9 
 
 -Schvartz v. Poiighlcepsie Mut. Ho\v. Pr. 231. 
 
 F. Ins. Co. 10 How. Pr. 93. 'Hurd v. Farmers' Loan d- T. Co. 
 
 Hlormet v. Merz, 30 Abb. N. C. 16 N. Y. Week. Dig. 480; Kelly v. 
 
 281, 54 X. Y. S. R. 322, 24 N. Y. Chenango Valley Sav. Bank, 45 N. Y. 
 
 Supp. 485; Wolfe v. Van Nostrand, Supp. 658. 
 
 2 N. Y. 570: Eldridge v. Strenz, 7 "Thames Loan d- T. Co. v. Haye- 
 
 Jones & S. 295; Parrott v. Sawyer, meyer, 38 App. Div. 449, 50 N. Y. 
 
 26 Hun, 466 ; People v. New York C. Supp. 689. 
 R. Co. 29 N. Y. 418, Further Appeal, 
 30 How. Pr. 148.
 
 ADDITIONAL ALLOWANCES. 349 
 
 made "before the entry of final judgment,^ except in partition 
 actions, when the application should not be made until after the 
 €11 try of final judgment.^ It is nsually made at the close of the 
 trial, and, when granted, the additional allowance is included 
 in the bill of costs and inserted as a part of the judgment.^ If 
 not made at that time, it mnst be made on notice. Upon such 
 motions it is not usual to hear affidavits of counsel.-^*' 
 
 The court may, when the verdict is rendered grant an addi- 
 tional allowance to the successful party, although the attorney 
 for the defeated party is not in court at the time.^^ "Wliere the 
 judge at the trial takes the question of such an allowance under 
 consideration, and does not make his decision thereon till the 
 attorney for the defeated party, and one of his clients, are dead, 
 tjie court will not disturb the allowance granted and entered in 
 ignorance of such deaths.^ ^ On a motion properly noticed for 
 final judgment in a foreclosure action the court may grant the 
 moving party a further allowance.-'^ But an order in such an 
 action, made before a reference to compute the amount due has 
 been had, directing that the plaintiff have an additional allow- 
 ance, without further notice upon the coming in of the referee's 
 report, is unauthorized and should be reversed.^ ^ In equity 
 cases it is usual to allow or disallow an additional allowance in 
 
 ^General Rules of Prcactice. 45; 3 N. Y. Code Eep. 192; Hoive v. 
 
 Williams v. Western V. Teleg. Co. Muir, 4 How. Pr. 252, 3 N. Y. Code 
 
 61 How. Pr. 305; Martin v. McCor- Eep. 21; Woodriiff v. Netv York, L. 
 
 mack, 3 Sandf. 755, N. Y. Code Rep. E. d- W. R. Co. 31 N. Y. S. R. 7, 10 
 
 N. S. 214; Clarke v. Rochester, 29 X. Y. Supp. 305. 
 
 How. Pr. 97; Beats v. Benjamin, 29 ^^Gillespy v. Bilbrough, 15 App. 
 
 How. Pr. 101. Div. 212, 44 K Y. Supp. 260; Mit- 
 
 ^Wimne v. Fanning, 19 Misc. 410, chell v Hall, 7 How. Pr. 490; Van 
 
 44 N. Y. Supp. 262; Saffron v. Saff- Rensselaer v. Kidd, 5 How. Pr. 242, 
 
 ron. 11 N. Y S. R. 471. 3 N. Y. Code Rep. 294. 
 
 ^People V. New York C. R. Co. 29 "Arthur v. Schrici-er, 28 Jones & 
 
 X. Y. 418, Further Appeal, 30 How. S. 59, 16 N. Y. Supp. 610. 
 
 Pr. 148. ^^Walsh v. Weidenfeld, 3 Daly, 334. 
 
 ^"Mitchell V. Hall, 7 How. Pr. 490; ^'Citizens' Sav. Bank v. Bauer, 49 
 
 Mann v. Ti/ler, 6 How. Pr. 235, N. Y. Hun. 238, 14 N. Y. Civ. Proc. Rep. 
 
 Code Rep. N. S. 382; Saratoga d- W. 340, 28 N. Y. Week. Dig. 541, 17 N. 
 
 R. Co. V. McCoy, 9 How. Pr. 339; Y. S. R. 81. 1 X. Y. Supp. 450. 
 2fiver v. Rossman, 5 How. Pr. 153,
 
 350 THE LAW OF COSTS IN NEW YORK. 
 
 tho conclusions of law.^^ An application for an additional al- 
 lowance, made after final costs have been adjusted, but before 
 the adjustment of other costs awarded upon an application to 
 open a default, is made too late.^^ A long delay in moving for 
 an additional allowance will be deemed a waiver of the right to 
 such an allowance, ^^ 
 
 The court has power to set aside a taxation of costs, so that 
 an application for an additional allowance can be made before 
 the taxation of costs, when it is alleged that costs were taxed in- 
 advertently;^^ or where the successful party taxed his costs 
 under the impression that he was entitled to the additional al- 
 lowance granted on a former trial, and, upon the discovery of 
 his mistake, moved to set aside the taxation.^^ But where the 
 plaintilt deliberately taxed, by consent 5 per cent of his recov- 
 ery as an additional allowance, the court will not set aside the 
 taxation of costs, so that he may make an application for an al- 
 lowance upon the counterclaim which he defeated. He has made 
 his election and must abide by it.^° AATiere a party desires a re- 
 argument in the appellate court after judgment absolute has 
 been entered upon the remittitur, and the new remittitur is sent 
 tf) the appellate court and again returned to the court of original 
 jurisdiction, the prevailing party, before again entering judg- 
 ment, may make a motion for an additional allowance.^^ 
 
 277. Defense must be interposed. — There can be no allowance 
 under § 3253 of the Code of Civil Procedure, unless a defense 
 has been interposed in the action. ^^ This was so under the Code 
 
 ^^Gurney v. Unwn Transfer & -"Mattheics v. Maison, 3 X. Y. Civ. 
 
 Storage Co. 25 .Tones & S. 444, 29 Proc. Rep. 157. 
 
 N. Y. S. R. 274, 8 N. Y. Supp. 549. -'Trimm v. Marsh, 2 Hun, 383, 4 
 
 "Jones V. Wakefield, 21 N. Y. Thomp. & C. 577. 
 
 Week. Dig. 287. --Kritm v. Steele, 7 N. Y. Week. 
 
 "Co7n7nissio7iers of Pilots v. Spof- Dig. 472; Citizens' Sav. Bank v. 
 
 ford, 49 How. Pr. 28. Bauer, 49 Hun, 238, 14 N. Y. Civ. 
 
 ''Dietz V. Parish, 11 Jones & S. 87. Proc. Rep. 340, 28 N. Y. W^eek. Dig. 
 
 '"Thompson v. 8t. Nicholas Nat. 541, 17 N. Y. S. R. 81, 1 N. Y. Supp. 
 
 Bank. 54 Hun, 393, 27 X. Y, S. R. 450. 
 ISO. 7 N. Y. Supp. 491.
 
 ADDITIONAL ALLOWANCES. 351 
 
 of Procedure.^' Prior to the amendment of tlic Code of Pro- 
 cedure by chap. 615 of the Laws of 1865, an allowance could be 
 granted by the court in difficult and extraordinary cases, only 
 where a trial had been had. Code Proc. § 309, as amended 
 by Laws 1857, chap. 723, § 14. But now an allowance may 
 be granted in such cases if a defense has been interposed in the 
 action. 
 
 An allowance can be granted where there has been no trial. 
 The allowance is not given as a counsel fee for trying the 
 cause,^^ but on account of the difficult and extraordinary charac- 
 ter of the case.^'' The only effect of want of litigation on the 
 trial would be to reduce the amount of the allowance, not to de- 
 feat it altogether.^*^ 
 
 278. Allowance when the complaint is dismissed. — Therefore 
 an allowance can be granted when the complaint is dismissed 
 upon the call of the calendar,^''' or for nonprosecution,^^ or upon 
 a regular default,^^ or where the plaintiif submits to a nonsuit 
 on the ruling by the judge upon his opening,^*^ or where the 
 plaintiff submits to a nonsuit while the defendant's attorney is 
 addressing the jury.'^^ Bat where an equity case is put on the 
 trial term calendar for the trial of certain issues, and is stricken 
 from the calendar as on a default, costs are not allowed the de- 
 fendant ; neither can an additional allowance be granted.^^ 
 
 279. — upon the discontinuance of an action. — An allowance 
 can be granted where the action has been discontinued either 
 
 ^^Rmidolph V. Foster, 3 E. D. -^Mora v. Great ^Ycstern Ins. Co. 
 
 Smith, 648, 4 Abb. Pr. 262. 10 Bosw. 622. 
 
 ""nrQiiade v. 'New York & E. R. -'"Wood v. Illinois C. R. Co. 20 
 
 Co. 5 Duer, 613, 11 How. Pr. 434. How. Pr. 285; Shiels v. Wortmann, 
 
 ""^Dodd V. Curri/, 4 How. Pr. 123; 30 N. Y. S. R. 173, 8 N. Y. Supp. 
 
 Laiprence v. Davis, 7 How. Pr. 354; 199. 
 
 Shannon v. Broiccr, 2 Abb. Pr. 377. ^'Allaire v. Lee, 4 Duer, 609, 1 
 
 "Rogers v. Degen, 4 Bosw. 669, 19 Abb. N. C. 125. 
 
 How. Pr. 119, 10 Abb. Pr. 313. "'Toch v. Toch, 9 App. Div. 501, 41 
 
 "Rogers v. Degcn, 4 Bosw. 669, 19 N. Y. Supp. 353. 
 How. Pr. 119. 10 Abb. Pr. 313. 
 
 ""Mills V. Watson, 13 Jones & S. 
 .->91.
 
 352 THE LAW OF COSTS IN NEW YOKK. 
 
 upon stipulation, which leaves the matter of an allowance to be 
 disposed of by the court, or upon an order obtained ex parte,^^ or 
 upon an order obtained upon notice.'"^^ An additional allowance 
 can be granted upon the discontinuance by the plaintiff after 
 serving an amended complaint, and before the service of the de- 
 fendant's answer thereto, an issue having been joined by answer 
 to the original complaint.^ ^ 
 
 An additional allowance can be granted where an order per- 
 mitted the plaintiff to discontinue on payment of costs, to be 
 taxed by the clerk f^ or where the parties agreed to discontinue 
 an action upon the payment of costs.^^ An additional allowance 
 may be granted as a condition of discontinuance, where there is 
 an objection to the jurisdiction of the court.^^ Receiving taxa- 
 ble costs, up to the time of the discontinuance obtained ex parte, 
 does not prejudice a pending motion for additional allowance.^^ 
 The receiving of disbursements and costs, without reserving the 
 right to move for additional allowances, will be a bar to such an 
 application.^" 
 
 280. — upon offer of judgment. — An allowance can be gi-anted 
 upon a judgment entered upon an offer of judgment.^^ The 
 
 ^^Angier v. Hager. 51 App. Div. "^'ew York Hospital Soc. v. Coe, 
 
 171, 64 N. Y. Siipp. 092; Folsom v. 15 Hun, 440; Coffin v. Coke, 4 Hun, 
 
 Vmi Wagner, 14 Abb. Pr. N. S. 44, 616. 
 
 7 Lans. 309. ^^Broicn v. Safeguard Ins. Co. 7 
 
 ^*Hoivell V. Miller, 12 Daly, 277; Abb. Pr. 345. 
 
 Harlem, M. & F. R. Co. v. West- -moult on v. Beeclier, 11 Hun, 192, 
 
 Chester, 143 N. Y. 59, 60 N. Y. S. R. 53 How. Pr. 86, Affirming 52 How. 
 
 349, 37 N. E. 634; Lockwood v. Sal- Pr. 230, 1 Abb. N. C. 193. 
 
 mon River Paper Co. 49 N. Y. S. R. ^"Lockman v. Ellis, 58 How. Pr. 
 
 303, 20 N. Y. Supp. 974; StaUman 100. 
 
 V. Kimherly, 33 N. Y. S. R. 813, 11 ^'Safety Steam Generator Co. v. 
 
 X. Y. Supp. 518. Dickson Mfg. Co. 61 Hun, 335, 21 N. 
 
 ^nioulton V. Beecher, 11 Hun, 192, Y. Civ. Proc. Rep. 329, 40 N. Y. S. 
 
 53 How. Pr. 86. Affirming 52 How. R. 601, 16 X. Y. Supp 32; Coates v. 
 
 Pr. 230, 1 Abb. X. C. 193. Goddard, 2 Jones & S. 118; Wing v. 
 
 ''"Brown v. Safeguard Ins. Co. 7 De Laliionda, 126 N. Y. 680, 28 N. 
 
 Abb. Pr. 345; Bright v. Mihvauker & E. 223. 
 St. P. R. Co. 1 Abb. X. C. 14; Roiins 
 V, Gould, 1 Abb. X. C. 133; Bryan V. 
 Dtirrie, 6 Abb. X. C. 135.
 
 ADDITIONAL ALLOWANCES. 353 
 
 contrary has been held at special term, hut this must he deemed 
 U. have been overruled by the subsequent decisions.'*^ 
 
 281. — upon overruling a demurrer.— Upon overruling a de- 
 murrer, with leave to the party to plead over upon payment of 
 costs, the majority of cases hold that an additional allowance 
 cannot be granted.*^ Where the court of appeals has held that 
 the demurrer to the complaint was insufficient, and ordered judg- 
 ment for the plaintiff, with leave to the defendant to answer 
 upon payment of costs, the court below cannot grant an addi- 
 tional allowance and compel the defendant to pay that.^^ But 
 where there has been a final decision upon a demurrer, an allow- 
 ance can be granted.'*'' Or where a demurrer has been overruled, 
 with privilege to the defendant to answer, and no answer is 
 served, an allowance can be granted upon the final judgment. ^^ 
 An additional allowance can be granted upon a judgment ren- 
 dered upon a motion for judgment, made on the ground that the 
 demurrer was frivolous."*'^ The entry of an interlocutory judg- 
 ment upon the decision of the demurrer is not a bar to the 
 successful party moving for an additional allowance. The judg- 
 ment referred to in General Rule 45 is the final judgment.^* 
 But where a demurrer to a complaint is sustained on the ground 
 rhat the court has no jurisdiction, and further investigation is 
 
 "Pool V. Oshorn, 8 N. Y. Civ. Proc. S. 58 ; Merchants' Exch. Nat. Bank 
 Rep. 232, note; Dadison v. Waring, v. Commercial Warehouse Co. 3 
 fl How. Pr. 254. .Jones & S. 214. 
 
 *^Faij V. Muhllcer, 13 Daly, 314; *^Lowry v. In7nan, 37 How. 'Pr.2S6, 
 Merchants' Exch. Nat. Bank v. Com- 6 Abb. Pr. N. S. 394; Victor v. Ilal- 
 mercial Warehouse Co. 3 Jones & S. stead, 38 N. Y. S. R. 407, 14 N. Y. 
 214; Hauselt v. Taussig, 3 N. Y. Supp. 516; Kingsland v. New York, 
 Code Rep. 23G; De Sf tickle v. Te- 52 Hun, 99, 16 N. Y. Civ. Proc. Rep. 
 huantepec R. Co. 30 Hun, 34, 65 323, 22 N. Y. S. R. 497, 4 N. Y. Supp. 
 How. Pr. 288, 3 N. Y. Civ. Proc. Rep. 685 ; New York Elev. R. Co. v. Har- 
 410; Eackett v. Equitable Life old, 30 Hun, 466. 
 Assur. /S'oc. 30 Misc. 530, 63 N. Y. ^'Darling v. Brewster, 55 N. Y. 
 Supp. 853; Winne v. Fanning, 19 667; Small v. Ludlow, 1 Hilt. 307. 
 Misc. 410, 44 N. Y. Supp. 262. Con- "First Nat. Bank v. Bush, 47 
 tra, Williams v. Kiernan, 4 Month. How. Pr. 78. 
 L. Bull. 41. ^Abbey v. Wheeler, 57 App. Div. 
 
 "McDonald v. Mallory, 14 Jones & 417, 68 N. Y. Supp. 252. 
 COSTS 23.
 
 354: THJi LAW Oi-' COSTS liSI NEW YORK. 
 
 necessary to fix the amount, no allowance can be granted, be- 
 cause the court cannot inquire into a matter over which it hat^ 
 no jurisdiction.'*^ 
 
 An allowance cannot be granted till all the issues of the case 
 are settled, where some defendants answ^er and some demur, and 
 then only on notice to all the defendants, because only $2,000 
 additional allowance can be gTanted to all of the parties on the 
 same side of a f^ase.^° 
 
 282. To whom application must be made. — The allowance must 
 be made by the court, and not by the justice in chambers.^^ The- 
 provisions of § 769 of the Code of Civil Procedure must pre- 
 vail over the provisions of Rule 45. Where the judge who pre- 
 sided at the trial of the case makes an allowance upon a motion 
 made contrary to the provisions of § 769, the attorney for the- 
 defeated party objecting to the jurisdiction of the court, the al- 
 lowance will be set aside.^^ The application for additional al- 
 lowance must be made to the court before which the trial is 
 had.^^ Where the motion is not thus made, it is an irregularity 
 which w'ill be deemed waived unless objection is made at the time 
 of the application.^^ The application should be made at the 
 term at which the case is tried, or before the justice who pre- 
 sided.^'^ Where a complaint is dismissed on motion, and the 
 judge W'ho granted the motion has had presented to him only the 
 facts upon which the motion was based, the reason for the rule 
 
 "•"Genet v. Delaware d- H. Canal Co. "Wi7ei/ v. Long Island R. Co. 88 
 57 Hun. 174, 19 N. Y. Civ. Proc. Rep. Fun, 177, 68 N. Y. S. E. 425, 34 N". 
 82, 32 N. Y. S. R. 209, 10 N. Y. Y. Supp. 415. 
 Siipp. 467. "'Osborne v. Betts, 8 How. Pr. 31; 
 
 '"Bush V. O'Brien. 52 App. Div. Saratoga & W. R. Co. v. McCoy, 9 
 452, 65 N. Y. Supp. 131. How. Pr. 339; Dyclcman v. MeDon- 
 
 "Code Civ. Proc. § 3253; General aid, 5 How. Pr. 121; Van Rensselaer 
 Rules of Practice, 45 ; Mann v. Tyler, v. Kidd, 5 How. Pr. 242, 2 N. Y. 
 6 How. Pr. 235. Code Rep. 224 ; Saclcett v. Ball, 4 
 
 ^-II%in V. Salter, 92 N. Y. 651; Bear How. Pr. 71; Flint v. Richardson, 2 
 V. American Rapid Teleg. Co. 36 N. Y. Code Rep. 80; Toch v. Toch^ 
 Hun, 400. 9 App. Div. 501, 41 N. Y. Supp. 353.. 
 
 "Rule 452; Hun v. Salter, 92 N. 
 Y. 651.
 
 ADDITIONAL ALLOWAA' CKS. 355 
 
 that the application must be made to the judge who presided at 
 the trial ceases, and the motion may be made before any other 
 jiidge.^® 
 
 Where the justice who presided at the trial passes upon the 
 question of an additional allowance, another judge at the special 
 term has no power to set aside or reverse it. That can only be 
 done by appeal. ^^ A party is not entitled to an additional allow- 
 ance unless he is also entitled to costs, either by statute or l^y a 
 decision of the court; and where, in an equity action, the trial 
 justice does not award costs, an additional allowance cannot be 
 granted by another justice.^'^ Such justice would not have power 
 to grant an additional allowance, although the trial justice had 
 granted costs. Where costs have been granted by the trial jus- 
 tice and another justice has entertained a motion for an addi- 
 tional allowance, the latter may vacate his order, whether he 
 gTanted or refused an additional allowance, and direct the mo- 
 tion for additional allowance to be heard before the trial jus- 
 tice. ^^ 
 
 283. Power of referee to grant an additional allowance. — 
 A referee awards costs in an action referred to him to hear, try, 
 and determine, and his discretion can be reviewed only by ap- 
 peal from the judgment; but an additional allowance in such 
 an action is gTanted by the court, the referee making a certifi- 
 cate that the case is difficult and extraordinary.^'' 
 
 284. Upon what papers the application should be made. — It is 
 
 ''Wilher v. Williams. 4 App. Div. Co. 70 Hun, 374, 23 N. Y. Civ. Proc. 
 
 444, 38 N. Y. Supp. 893: HotaUng v. Rep. 180. .54 KY. S. R. 286, 24 N. Y. 
 
 V. Marsh, 14 Abb. Pr. 161. Supp. 422; Couch v. Millard, 3 How. 
 
 "■'Fisher v. Hepburn, 48 N. Y. 41 ; Pr. N. S. 22, 8 N. Y. Civ. Proc. Rep. 
 
 Dresser v. Jennings, 3 Abb. Pr. 240, 431 ; Main v. Pope. 16 How. Pr. 271 ; 
 
 ^Kahn v. Schmidt. 83 Hun, 541, Howe v. Muir, 4 How. Pr. 252, 3 N. 
 
 05 N. Y. S. R. 190, 32 N. Y. Supp. 33. Y. Code Rep. 21; Gould v. Chapin, 
 
 ""Lottimer v. Livermore, 6 Daly, 4 How. Pr. 185, 2 N. Y. Code Rep. 
 
 .lOl. 107. Contra, Gurney v. Union 
 
 ^"Proctor V. Soulier, 8 App. Div. Transfer d- Storage Co. 25 Jones & 
 
 09, 40 N. Y. Supp. 459; Pinsker v. S. 444, 29 N. Y. S. R. 274, 8 N. Y. 
 
 Pinsker, 44 App. Div. 501, 60 N. Y. Supp. 549, 
 Supp. 902: Dode v, Manhattan R.
 
 356 THE LAW or COSTS IN NEW YORK. 
 
 usual to ask for the allowance upon tlie coming in of the verdict, 
 without any other papers than those already in the case. It may 
 be made later in that term without notice to the opposite party, 
 and he need not be in court.^^ Where an application is not made 
 at that term, it should be made on papers showing some specific 
 facts, — such as money expended, time and labor consumed on 
 the trial, the number of trials and postponements and arguments 
 on appeal, whether a long account was involved, and whether a 
 reference was had, so that the court may form an adequate idea 
 of the case, and if an appeal is taken, so that the appellate court 
 may form some idea of the facts.^^ The clerk need not have a 
 written order to authorize him to tax an additional allowance, 
 where he has the minutes of the deputy clerk kept on the trial, 
 together with his affidavit that an additional allowance was 
 granted. That is sufficient authority for him to tax the allow- 
 ance.^^ Where no sura is mentioned in the complaint for which 
 judgment is demanded, and the relief is not in money damages, 
 the value of the subject-matter of the action may be shown by 
 affidavits upon an application to the court by the successful 
 party for an additional allowance;®^ but the clerk has no power 
 to take proof of such value for the purpose of fixing the amount 
 of allowance.^^ 
 
 285. Allowance when both parties succeed. — An allowance 
 may be made when both parties succeed as to a part of the con- 
 tention. The defendant, if he wishes to avoid costs and addi- 
 tional allowance, should mnke an offer of judgment.^' 
 
 288. — when the court of appeals renders judgment absolute 
 
 "Hlantner v. rile, .32 Misc. 500, Sunn. 905. Affirmed 158 N. Y. 735, 
 
 66 N. Y. Supp. 3S7; Mitchell v. Hall, 53 N. E. 1126; Coleman v. Chauncetj, 
 
 7 How. Pr. 490. 7 Pnbt. 578. 
 
 '^Gori V. Smith, 6 Robt. 563, 3 "^Newton v. Rcid, 24 N. Y. Week. 
 
 x\bb. Pr. N. S. 51 ; People v. New Birr. 472. 
 
 York C. R. Co. 30 How. Pr. 143. ""Stale Bank v. Smith, 85 Hun, 
 
 *\^mith V. Coe, 7 Robt. 477. 200. 66 N. Y. S. R. 483, 32 N. Y. 
 
 '^*T(ay<]rn v. Mattheirs. 4 App. Div. Supp. 999. 
 338, 74 N. Y. S. R. 589, 38 N. Y.
 
 ADDITIONAL ALLOWANCES. 357 
 
 upon a stipulation. — Where tlie court of appeals renders judg- 
 ment absolute upon the usual stipulation of the parties, and 
 the successful party has not had an opportunity to ask for 
 an additional allo^Aance, the court below has power to grant such 
 an allowance.^^ This allowance must be granted upon an ap- 
 plication to the court, on notice after the usual order is obtained 
 upon the remittitur ''that the judgment of the court of appeals 
 be and hereby is made the judgment of tliis court," but before 
 finaJ judgment is entered upon the order.^^ The court of origi- 
 nal jurisdiction has no power to make any order in the case until 
 tJie case is brought back to tliat court, which is done by obtain- 
 ing the usual order. General Rule of Practice 45 provides that 
 the application for an additional allowance shall be made be- 
 fore the final costs are adjusted. There are cases which hold 
 that the trial court has no power to make any allowance,^^ while 
 other cases hold that the courts have power to grant the allow- 
 ance even after final judgment has been entered upon the remit-, 
 titur.^^ The trial court certainly has power to grant costs in 
 such a case where the costs are in the discretion of the court, 
 unless the court of appeals has passed upon and disposed of that 
 question. If the trial court can grant the general costs of the 
 action it certainly has tlie power to grant an additional allow- 
 ance in a proper case. The trial court has power to set aside 
 the taxation of costs and open the judgment uj)on an applica- 
 tion to it. This the court must do when it grants an allowance 
 after final judg-ment is entered. See § 279, supra. 
 
 Where exceptions are ordered heard at the appellate division 
 in the first instance, it has no power to award an additional al- 
 lowance upon overruling the exceptions. In such a case, after 
 
 "Jerrnai7i v. Lake Shore & M. S. '"Parrott v. Smcijer, 26 Hun, 46G; 
 R. Co. 31 Hun, 558. Brovm v. Farmers' Loan d T. Co. 24 
 
 '^Clarke v. Rochester, 29 How. Pr. Abb. N. C. 160. 18 N. Y. Civ. Proe. 
 97; General Rules of Practice, 45. Rep. 131, 9 N. Y. Supp. 337. 
 
 ""Eldridge v. Strenz, 7 Jones & S. 
 295 ; Mcfrregor v. Buell, 1 Keyes, 
 153, 3 Abb. App. Dec. 86.
 
 358 THE LAW OF COSTS IN NEW YORK. 
 
 obtaining the order the successful party should a[)ply upon no- 
 tice for an allowance.'''^ 
 
 287. Number of allowances in an action. — When the judgment 
 is reversed the additional allowance based thereon falls."^ If 
 on a new trial, the same party succeeds, a new allowance must 
 be granted. The former allowance cannot be taxed.'^^ There is 
 one case that holds otherwise, but it is now of very doubtful 
 authority. ''^^ 
 
 In an ejectment action where a new trial is had pursuant to 
 § 1525 of the Code of Civil Procedure, an additional allowance 
 may be granted on the second trial, although one was granted on 
 the former trial which was paid in order to entitle the party to a 
 new trial, and although the sum of the two allowances exceed 5 
 per cent of the value of the property in cpiestion.'^^ 
 
 288. What determines the fact that an action is difficult and 
 extraordinary, a. In general. — Wbether a case is difficult and 
 extraordinary is determined by the facts transpiring in the 
 trial court. The labor and expense involved in an appeal is not 
 considered. Therefore an allowance cannot properly be made 
 in a controversy upon an agreed case under § 1279 of the Code 
 of Civil Procedure.'^^ This case overrules several general term 
 cases."^' Whether a case should be regarded as difficult and ex- 
 
 ''^Moslotoitz V. Hornherger, 20 ^^Howell v. Van SlcJden, 70 N. Y. 
 
 Misc. 558, 46 N. Y. Supp. 462. 595, 4 Abb. N. C. 1. 
 
 ''-Hides V. Waltermire, 7 How. Pr. '^Bolton v. Scliriever, 135 N. Y. 
 
 370; Sleight v. Hancock, 4 Abb. Pr. 65, 18 L. R. A. 242, 29 Abb. N. C. 
 
 245; M'Quade v. New York d E. R. 300, 47 N. Y. S. E. 870, 31 N. E. 
 
 Co. 5 Duer, 613, 11 How. Pr. 434; 1001; Wing v. De La Rionda, 39 N. 
 
 Monnet v. Merz, 30 Abb. N. C. 281, Y. S. R. 119, 15 N. Y. Supp. 533. 
 
 54 N. Y. S. R. 322, 24 N. Y. Supp! '^People v. Fitchhurg R. Co. 133 
 
 485. N. Y. 239, 44 N. Y. S. R. 907, 30 N. 
 
 ''HIeeker v. C. R. Remvngt07i d Son E. 1011. 
 
 Co. 62 App. Div. 476, 70 N. Y. Supp. '"Kingsland v. Neio York, 52 Hun, 
 
 1072; Fhinn v. Equitable Life Assur. 98, 16 N. Y. Civ. Proc. Rep. 323, 22 
 
 Soc. 18 Hun, 212; Union Trust Co. N. Y. S. R. 497, 4 N. Y. Supp. 685; 
 
 V. Whiton, 17 Hun, 594; De Stuckle Neilson v. Mutual L. Ins. Co. 3 Duer, 
 
 V Tehuantepec R. Co. 3 N. Y. Civ. 683; New York Elev. R. Co. v. 
 
 Proc. Rep. 411; Bank of Mobile v. Harold, 30 Hun, 466. 
 Phoenix Ins. Co. 8 N. Y. Civ. Proc. 
 Rep. 212,
 
 ADDl'I'JOXAT. ALLOWANCES. 359 
 
 traordiiiaiy rests substantially in the judginent and discretion 
 of the judge to whom the application is made, and the determi- 
 nr.tion of the question usually involves so many considerations 
 which are addressed to the discretion of the judge that the ap- 
 pellate court rarely interferesJ^ Each case must be decided on 
 its own circumstances."^® 
 
 A case may be difficult and extraordinary although no trial 
 is had, and the plaintiff discontinues upon payment of costs.^^ 
 
 b. Difficult question of law. — A case is difficult and extraor- 
 dinary when it involves the expenditure of considerable time in 
 the examination of a vexed question of law, although the trial 
 occupied but a short time,^^ or judgment is granted upon the 
 ground that the demurrer is frivolous.^^ 
 
 c. Difficult question of fact. — A case is difficult and extraor- 
 dinary where the proof requires a great deal of work, — as, the 
 proof of the sale and delivery of a great many items f^ or many** 
 or expert witnesses are necessary f^ or the examination of a long 
 account.^^ 
 
 d. Length of time of trial. — The fact that the trial of the case 
 takes an unusually long time is an element in deciding that a 
 
 ^Meycr Ruhher Co. v. Lester Shoe v. Fox, 24 How. Pr. 385; Lane v. 
 Co. 92 Hun, 52, 71 N. Y. S. R. 740, Van Orden, 11 Abb. X. C. 228, 63 
 ?6 N. Y. Supp. 729; Mutual L. Ins. How. Pr. 237; National Tradesmen's 
 Co. V. CranwcU, 32 N. Y. S. Pv. 37 G, Bank v. Wetmore, 10 N. Y. S. R. 
 10 N. Y. Supp. 404; Hanover F. Ins. 640, Reversed in 124 N. Y. 241, 35 N. 
 Co. V. Germania F. Ins. Co. 138 N. Y. S. R. 316, 26 X. E. 548. 
 Y. 252, 33 N. E. 1065; Downing v. ^-National Dank v. Bush, 47 How. 
 Marshall, 37 N. Y. 380; Bryon v. Pr. 78. 
 
 Durrie, 6 Abb, N. C. 135; Morss v. ^^National Lead Co. v. Dauchy, 22 
 Bashrouck, 13 N. Y. Week. Dig. 393; Misc. 372, 49 N. Y. Supp. 379; Fox 
 Hurd V. Farmers' Loan d T. Co. 16 v. Fox, 24 How. Pr. 385. 
 X. Y. Week. Dig. 480. ^^McCulIoch v. Dohson, 39 N. Y. S. 
 
 '^Sackett v. Ball, 4 How. Pr. 71, R. 908, 15 X. Y. Supp. 002. 
 2 N. Y. Code Rep. 47 : Fox v. Gould, ^Uotcard v. Rome & T. PI. Road 
 5 How. Pr. 278, 3 X. Y. Code Rep. Co. 4 How. Pr. 416, 3 X. Y. Code 
 209. Rep. 41. 
 
 ^"Coffin V. Coke, 4 Hun, 616. ^^Dorsett v. Ormiston, 53 Ai)p. Div. 
 
 "^Vnndei-veer v. Yanderveer, 17 X. 629, 65 X. Y. Supp. 931. 
 Y. S. R. 648, 1 N. Y. Supp. 897; Fox
 
 360 THE LAW OF COSTS IN NEW YORK. 
 
 cast is difficult and extraordinary,^^ but does not itself constitute 
 a case difficult and extraordinaiy.^* 
 
 e. More than one trial. — The fact that there has been more- 
 than one trial is a pertinent fact.*^ 
 
 /. Eimnence of counsel. — The eminence of counsel engaged 
 in the trial is a pertinent fact,®^ but is not a sufficient reason for 
 allowing a large sura.'*^ The fact that upon the first trial an al- 
 lowance was denied is no ground for denying it upon the second 
 trial.^^ But where the first trial was difficult and extraordinary^ 
 and the second trial was neither difficult nor extraordinary, an 
 allowance may be made to the party who was successful on both 
 trials.^^ 
 
 g. Other considerations. — The amount involved in the liti- 
 gation is also to be considered. '^^ An extra allowance has beeu' 
 granted when the complaint was dismissed upon the failure of 
 tlie plaintiff to appear,^^ or upon a trial where the plaintiff has 
 demanded a large sum,''^ or where the defendant unnecessarily 
 defends,®'^ or where the defendants unnecessarily severed their 
 defense, thereby increasing the labor of the plaintiff.^^ 
 
 In the first and second departments the statute is construed 
 much more liberally than in the rest of the state. The fact that 
 
 "Foa? V. Fox, 24 How. Pr. 385; ^'Sclncarlz v. Ponghlceepsie Mut 
 
 Dorsett v. Ormiston, 53 App. Div. F. Ins. Co. 10 How. Pr. 93; Sackett 
 
 629, 65 N. Y. Supp. 931; Fort v. v. B(jU, 4 How. Pr. 71, 2 N. Y, Corlc 
 
 Gooding, 9 Barb. 388. Rep. 47. 
 
 ^'Sands v. Sands, 6 How. Pr. 453 ; "-Fox v. Fox, 24 How. Pr. 385. 
 
 Dexter v. Gardner, 5 How. Pr. 417, ^^Hoircll v. Van Bidden, 70 N. Y. 
 
 N. Y. Code Rep. N. S. 80; Hoioard 595, 4 Abb. N. C. 1. 
 
 V. Rome d T. PI. Road Co. 4 How. "^Fox v. Fox, 24 How. Pr. 385 r 
 
 Pr. 416, 3 N. Y. Code Rep. 41; Fox Cornioell v. Parke, 52 Hun, 596, 2.3- 
 
 V. Fox, 24 How. Pr. 385. N. Y. S. R. 829, 5 N. Y. Supp. 905. 
 
 ^''Hoicell V. Van Siclen, 8 Hun, 524, Affirmed with no opinion in 123 N. 
 
 54 How. Pr. 264, Affirmed in 70 N. Y. 657, 25 N. E. 955; Gooding v. 
 
 Y. 595, 4 Abb. N. C. 1 ; Comins v. Brown, 35 Hun, 153. 
 
 Jefferson County, 3 Tliomp. & C. 296, "•'Mills v. Watson, 13 Jones & S. 
 
 Affirmed in 64 N. Y. 626; Lahey v. 591. 
 
 Kortright, 26 -Jones & S. 576, 19 N. ""'-Morrison v. Agate, 20 Hun, 23. 
 
 Y. Civ. Proc. Rep. 80, 32 N. Y. S. R. "'Livingston v. Gidiiey, 25 How- 
 
 112, 11 N. Y. Supp. 47. Pr. 1. 
 
 "^Fox V. Fox, 24 How. Pr. 385. "^Fort v. Gooding, 9 Barb. 388.
 
 ADDITIONAL ALLOWANCES. 361 
 
 an injunction had been granted in a case In wliich tlie plaintiff 
 had agreed to indemnify the defendant is not an answer upon the 
 application of the latter for an additional allowance, although 
 the court would take into consideration upon that part of tlie 
 case an allowance made on the trial of the main issne.^^ 
 
 289. What determines the fact that the action is not difficult and 
 extraordinary, a. Simple question of law or fact. — A party has 
 been held not entitled to an additional allowance when the ques- 
 tion of law was simple,^ *^^ or judgment was given on a frivolous 
 answer,^^^ or the question of fact was easy, although witnesses 
 were brought a long distance,^^^ or the party had never been 
 called upon to meet the question upon a trial/ °^ or tlie contest 
 v.'as between defendants, and no disj)ute of the plaintiff's claim 
 was made.^°^ 
 
 h. Length of time of trial. — An allowance is sometimes re- 
 fused because the trial occupied but a short time,^^^ or was pro- 
 tracted because the party who succeeded claimed too much.^*^^ 
 
 c. Difficult and extraordinary c[aestion decided against the 
 prevailing party. — If the questions in a case are difficult and ex- 
 traordinary, they must be decided in favor of the successful 
 party, to entitle him to an extra allowance.^"" If tlie action is 
 difficult and extraordinary^ because the plaintiff advanced claims 
 which he aftei-wards abandoned, he should not be granted an 
 additional allowance.^"* 
 
 ^^WilUams v. Western V. Teleg. 472; Knauth v. Weatheim, 26 Abb> 
 
 Co. 61 How. Pr. 305. K C. 369, 14 N. Y. Supp. 391. 
 
 ^""Williamson v. Newhall, 15 N. Y. ^"*Foillon v. Cudlipp, 50 How. Pr. 
 
 Week. Dig. 352; Lozier v. Saratoga 366. 
 
 Gas d E. L. cG P. Co. 59 App. Div. ^"'^Gillespy v. Bilbrough, 15 App, 
 
 300, 69 N. Y. Supp. 247; Powers v. Div. 212, 44 N. Y. Siipp. 260; Dex- 
 
 Wolcott, 12 How. Pr. 565. ter v. Gardner, 5 How. Pr. 417, N. 
 
 ^"^Hale V. Prentice, 1 N. Y. Code Y. Code Rep. N. S. 80. 
 
 Pep. 81; Beers v. Squire, I N. Y. "'"Sands v. Sands, 6 How. Pr. 453. 
 
 Code Rep. 84. ^"''Commissioners of Pilots v. Spof- 
 
 ^"-Gould V. Chapin, 4 How. Pr. 185, ford, 4 Hun, 74. 
 
 2 N. Y. Code Rep. 107. '"^Hinman v. Ryder, 12 Jones & S- 
 
 ^"^Duncan \. Dewitt, 7 Hun, 184; 330. 
 Erum V. Steele, 7 N. Y. Week. Dig.
 
 <J62 THE LAW OF COSTS IN iSTEW YOKIC. 
 
 d. Other considerations. — Otlier considerations that have in- 
 ilnenced courts in refusing an additional allowance are that the 
 plaintiff recovers on a mere technicality, when justice was 
 ;against him,^°^ — as, where executors failed in an action for 
 doAver, brought by their testator and revived in their names, in 
 Avhich she would have succeeded ;^^*' or that the attorney has a 
 -contingent interest in a large recovery ;^^^ or where the plaintiff 
 claimed $300 and recovered $100;^^^ or where the plaintiff 
 failed in sustaining his claim and the defendant his counter- 
 claim, and the complaint was dismissed i''^^ or where the action 
 is not extraordinary, although it is difficult ;^^* or where the suc- 
 ■cessful party abandoned the only question that made the case 
 •difficult and extraordinary ;^^^ or where, in an action to set aside 
 a conveyance as fraudulent, the defendant succeeded on account 
 of the inadequacy of the property to satisfy the liens upon it, 
 and his conduct was such that it justified the plaintiff in bring- 
 ing tlie action ;^^^ or where two actions were brought, when all 
 the questions could have been disposed of in one action ;^^'^ or 
 where two defendants unnecessarily defended separately and 
 succeeded ;^^^ or where the defendant was surety only;^^^ or 
 where the plaintiff made an affidavit which made it proper for 
 the defendant to contest tlie action, and upon the trial the only 
 question was the truth of the affidavit, which the plaintiff ex- 
 plained so that he recovered.^^^ Commissioners apj^ointed under 
 the Laws of 1897, chap. 378, to assess damages in a street open- 
 
 ^'^Schultze V. New York, 11 N. Y. "'Bahlirin v. Eeardon, 16 Jones & 
 
 €iv. Pioc. Rep. 54. S. 1G6. 
 
 "M/cTTeen v. Fish, 33 Hun, 28. ^''SacJcett v. Ball, 4 How. Pr. 71, 
 
 ">J//en V. Albany R. Co. 22 App. 2 N. Y. Code Rep. 47. 
 
 Div. 222, 47 N. Y, Supp. 1017. ^"^^ Matthew son v. Thompson, 9 
 
 "-Fish V. Forrance, 5 How. Pr. 317. How. Pr. 231; Tillman v. Powell, 13 
 
 ''^Hall V. United Slates Reflector How. Pr. 117. 
 
 Co. 5 Month. L. Bull. 1. '^"Gould v. Chapin, 4 How. Pr. 185, 
 
 "*Smith V. Lehigh Valley R. Co. 2 N. Y. Code Rep. 107; Rice v. 
 
 77 App. Div. 47, SO N. Y. Supp. 390. Wright, 3 How. Pr. 405. 
 
 "'"•Rinman v. Ryder, 12 Jones & S. ^'^"Kelly v. Chenango Valley Sav* 
 
 330. Bank, 45 N. Y. Supp. 658..
 
 ADDITIONAL AI,T.O\VANCKS. 363 
 
 ing proceeding are not entitled to an additional allowance, nnless 
 the proceeding is nnusnally difficult and extraordinary.^ ^^ 
 
 290. How the allowance can be reviewed. — When an allow- 
 ance is made, it becomes a part of the judgment. The propriety 
 of the allowance may be reviewed by an appeal from the judg- 
 ment, no fonnal exception being necessary to enable the appel- 
 late division to review the discretion or the legal right of the 
 court to make the award.^^^ The court of appeals can pass upon 
 the question of the legal right involved. ^^^ Earlier cases held 
 that the question would not be brought up on appeal from the 
 judgment,^^^ but these cases must now be considered overruled 
 by the case of Hanover F. Ins. Co. v. Germania F. Ins. Co. But 
 if the appeal is not taken from the whole judgment, but from 
 certain portions of it, not including the additional allowance, 
 the court cannot review the question of allowances.-^^^ The bur- 
 den is on the appellant to show the error.^^** If the papers do 
 not show the am.ount involved, the court will presume that the 
 allowance does not exceed the legal amount.^ ^^ Usually the 
 entire order should be presented to the appellate court, although 
 the appeal is taken from only a part of it.^^^ Where counsel is 
 surprised upon a motion for an additional allowance, he should 
 move upon affidavits to vacate the award, and, upon denial of 
 the motion, appeal therefrom. ^^'^ Wliere a motion for an addi- 
 tional allowance has been denied, another motion for the same 
 
 '■^/'e street Opening, 33 App. Div. ^-^Sprague v. Bartholdi Hotel Co. 
 
 137, 53 N. Y. Supp. 354. 3 N. Y. Supp. 828. 
 
 '"Black V. Brooldyn Heights R. ^'^Everinghani v. Vanderbilt, 12 
 
 Co. 32 App. Div. 468, 53 N. Y. Supp. Hun, 75. 
 
 312. ^^Hamilton v. Manhattan R. Co 
 
 ''^Hanover F. Ins. Co. v. Germania 25 Jones & S. 491, 24 Abb. N. C. 156, 
 
 F. Ins. Co. 138 N. Y. 252, 52 N. Y. 18 N. Y. Civ. Proc. Rep. 164, 29 N. 
 
 S. R. 334, 33 N. E. 1065. Y. S. R. 28, 8 N. Y. Supp. .^40. 
 
 ^-^People V. Nero York d S. I. ^'^Bancroft v. Home Benefit .isso. 
 
 Ferry Co. 7 Hun, 105. 26 -Tone.s & S. 492. 35 N. Y. S. R. 
 
 '■''New Yo^-k Life Ins. <£- T. Co. v. 459, 12 N. Y. Supp. 718. 
 Baker, 38 App. Div. 417, 56 N. Y. 
 Supp. 618.
 
 36-i THE LAW OF COSTS IN NEW YORK. 
 
 thing is irregular and will be denied, unless leave of the court 
 to make such an application has been obtained. ^^'^ 
 
 291. Discretion in making allowance reviewed by what courts. — 
 The trial court in its appellate tenii is the last tribunal to re- 
 view the discretion of the trial judge in making an allowance. ^'^^ 
 
 If tliere is no appellat-e term of that court, — as, the countv 
 court, — there can be no review of the discretion of the judge who 
 made the award. But the award will be reviewed by any court 
 to which an apjieal from the judgment lies, if some rule of law 
 is violated, or an allowance is denied on tlie ground of want of 
 authority.^^^ Where, through inadvertence, the allowance i& 
 slightly in excess of the sum allowed by statute, the remedy is 
 by motion to correct the judgment, not by appeal.^"^'^ 
 
 292, Necessity of general costs. — An allowance can be granted 
 only to the party entitled to tax general costs. ^^^ If costs ar& 
 granted neither by statute nor judgment an allowance cannot be 
 granted.^ -"^ The right to tax costs on appeal is not sufficient ;^^*' 
 liut the defendant's right txD tax costs because the plaintiff re- 
 covers less than $50 is snffioient,^^^'^ or the defendant's right to. 
 
 ^""Manhattan R. Co. v. Klipstein, ly Bank, 92 N. Y. 401; Southwick v. 
 
 84 Ilun, 579, 65 N. Y. S. R. 850, 32 HoiUhiolck, 49 N. Y. 510; Krekeler 
 
 N. Y. Su])p. 729. V. Rifter, 62 X. Y. 375; Noycs v. 
 
 '",Sf/n'eZs V. Wortmann, 120 N. Y. Children's Aid Soc. 70 N. Y. 481. 
 
 650, 37 N. Y. S. R. 134, 27 N. E. 379; '''Kraushaar v. Meyer, 72 N. Y.. 
 
 Krekeler v. Ritter, 62 N. Y. 372; 602. 
 
 Clarke v. Rochester, 34 N. Y. 355; "'Jordan v. Hess, 54 N. Y. S. R. 
 
 McCulloch V. Dobson, 133 N. Y. 114, 326, 24 N. Y. Supp. 489. 
 
 44 N. Y. S. R. 19, 30 N. E. 641; '-^Kahn v. Schmidt, 83 Hnii, 541,. 
 
 Woodhridge v. First Nat. Bank, 166 65 N. Y. S. R. 190, 32 N. Y. Supp. 
 
 N. Y. 238, 59 N. E. 836; Carney v. 33. 
 
 Reilly, 18 Misc. 11, 75 N. Y. S. R. ""Savage v. Allen, 2 Tlionip. & C. 
 
 440, 40 N. Y. Supp. 1123; Mills v. 474; Clarke v. Rochester, 34 N. Y. 
 
 Watson, 13 Jones & S. 591; Gooding 355; Bcals v. Benjamin, 29 How. Pr. 
 
 V. Brown, 35 Hun, 153; Peojjle v. 101; People v. Central R. Co. 30 
 
 Neio York C. R. Co. 29 N. Y. 418; How. Pr. 148; Van Rensselaer v. 
 
 Ogdensburgh & L. C. R. Co. v. Ver- Kidd, 5 How. Pr. 242, 3 N. Y. Code 
 
 mont (£• C. R. Co. 63 N. Y. 176; Gori Rep. 224; 2[artin v. McCormick, 3 
 
 V. Smith, 6 Robt. 563; Gorham v. Sandf. 755; M'Quade y. Neio York d 
 
 Tnnis. 115 N. Y. 87, 21 N. E. 722. E. R. Co. 5 Duer, 613, 11 How. Pr. 
 
 "-Shiels V. Wortmann, 126 N. Y. 434; Wolfe v. Van Nostrand, 2 N. Y. 
 
 650, 37 N. Y. S. R. 134, 27 N. E. 570; Couch v. Millard, 41 Hun, 212. 
 
 379; Conanghty v. Saratoga Conn- "'United Press v. New York Press
 
 ADDITIONAL ALLOWANCES. 365 
 
 tax costs because he made an offer more favorable than the plain- 
 tiff's recovery. ^^^ 
 
 293. Ey what statute governed. — An additional allowance is 
 governed by the law in force at the time of the rendition of the 
 verdict, not by that of tlie time of the entry of the judgment.^^^ 
 
 294. Power of the court over the allowance. — Judgment may 
 be entered nunc pro tunc as of the day of the verdict, under 
 § 763 of the Code of Civil Procedure, where, after the hearing, 
 but before the decision of a motion for additional allowance, one 
 of the opposing parties and their attorney dies.^^** 
 
 Where a plaintiff brings an action for money damages and the 
 ■defendant succeeds, the referee who heard the case cannot limit 
 the right of the defendant to apply to tlie court for an additional 
 allowance.-^ ■^^ The trial judge does not exhaust his power over 
 the granting of an additional allowance, where, in granting the 
 plaintiff tlie injunction prayed, he sends the question of damages 
 to a referee, and orders that upon the coming in of his report 
 the plaintiff shall have final judgment for damages, costs, and 
 additional allowance to be fixed by the court. If the plaintiff 
 decides not to go on with the reference and waives his claim for 
 damages, an additional allowance may be granted or refused. ■'^^ 
 
 Where an additional allowance has been inadvertently made 
 in excess of the amount allowed by law, the court has the power 
 to order the attorney who has received it to return the excess of 
 tlie legal amount.-' '^^ Where one additional allowance is made to 
 
 €o. 164 N. Y. 406, 53 L. R. A. 288, Contra, Magnin v. Dinsmore, 47 
 
 58 N. E. 527. in effect overruling How. Pr. 11, 15 Abb. Pr. N. S. 331. 
 
 Murray v. Uohinson, 9 Hun, 137; ^^^CooJc v. New York Floating Dry 
 
 Finder v. ^ioolhoff, 7 Abb. Pr. N. S. Dock Co. 1 Hilt. 556. 
 
 433. ^'"Arthur v. Schriever, 42 N. Y. S. 
 
 ^^"Landon v. Van Etten, 57 Hun, R. 12, 16 N. Y. Supp. 610. 
 
 122, 19 N. Y. Civ. Proc. Rep. 78. 32 ^"Ract v. Duviard-Dhne, 21 N. Y. 
 
 N. Y. S. R. 439, 10 N. Y. Supp. 802; S. R. 736, 4 N. Y. Supp. 156. 
 
 Commisfiwriers of Pilots v. Spofford, '^^-Raiclinson v. Brninerd d A. Co. 
 
 3 Hun, 57, 5 Tlionip. & C. 453; Brady 53 App. Div. 147, 65 N. Y. Supp. 762. 
 
 V. Durhrow, 2 E. D. Smith, 78; ^^^Coofter v. Cooper, 51 App. Div. 
 
 lUrsr.h spring v. Boe, 20 Abb. N. C. 595, 64 N. Y. Supp. 901. 
 402, 13 N. Y. Civ. Proc. Rep. 124.
 
 366 THE i.A^V OF COSTS IJT :XEW YORK. 
 
 several defendants, and upon appeal the judgment is affirmed as 
 to some and reversed as to others, the court can order that the 
 successful defendants tax their proportional share of the entire 
 allowance.-^^'^ 
 
 295. Amount claimed in the pleadings. — Where an averment 
 of value contained in one pleading is denied bj the pleading of 
 the opposite party the averment of the value is neutralized for 
 the purpose of making an award, and extrinsic proof thereof 
 must be given to give the court as a basis on which to make an 
 award. -^^^ Where the amount claimed in the complaint is larger 
 than the recovery the additional allowance must be computed 
 upon the amount of the recovery. ^^^ Where the plaintiff is de- 
 feated the basis of an additional allowance is the amount claim- 
 ed.-' ^'^ Upon the report of a referee who finds for plaintiff, with 
 interest from a certain day, interest should be computed on the 
 principal to the date of the report, to obtain the basis for an al- 
 lowance. ^^^ The statement of counsel in his opening address^ 
 that plaintiff' was entitled to a cextain sum, has, in the absence 
 of any other evidence of the amount involved, been held suf- 
 ficient to sustain an allowance to the defendant.^^^ When the 
 plaintiff commences an action with a summons and notice which 
 contains a statement of the amount for which judgment will 
 be taken upon default, and he is defeated in the action, he is 
 bound by the statement as to the amount involved in the 
 action.^^® When there is no counterclaim, and the defendant 
 
 ^**Metropolitan Elev. R. Co. v. Co. 89 Hun, 316, 70 N. Y. S. R. 226, 
 
 Duggin, .58 Hun, 156, 19 N. Y. Civ. 35 N. Y. Supp. 566; Carpenter v. 
 
 Proc. Rep. 255, 33 N. Y. S. R. 836, Shook, 43 N. Y. S. R. 226, 17 N. Y. 
 
 11 N. Y. Supp. 353. Supp. 257. 
 
 ^*'TIanover F. Ins. Co. v. Germania ^*^Clegg v. Aikens, 17 Abb. N. C. 
 
 F. Ins. Co. 138 N. Y. 252, 33 N. E. 88, 8 N. Y. Civ. Proc. Rep. 249. 
 
 1065; Israel v. Metropolitan It. Co. '^'^Ihitty v. Person, 6 N. Y. Civ. 
 
 10 Misc. 722, 64 N. Y. S. R. 638, 31 Proc. Rep. 25. 
 
 N. Y. Supp. 816. ^''^Adams v. Arkenhurgh, 106 N. Y. 
 
 ^^^Yilkinson v. Tiffany, 4 Abb. Pr. 615, 27 N. Y. Week. Dig. 132, 11 N. 
 
 98: ^yoor1hridge v. First Nat. Bank, Y. S. R. 121, 13 N. E. 594; Sentenis 
 
 45 App. Div. 166, 61 N. Y. Supp. 258. v. Laden; 140 N. Y. 463, 37 Am. St. 
 
 '''Hart V. OftdniHhurg & L. C. R. l^ep. 569, 55 N. Y. S. R. 831, 35 N.
 
 ADDITION A I, ALl.OWAACKS. 36T 
 
 admits that the plaintiff is entitled to recover for a certain por- 
 tion of the claim sned upon, and the plaintiff recovers judgment,, 
 the amount of tjie judgment is always the basis of an additional 
 allowance, not the amount in dispute. ^''^ 
 
 296. Motive of plaintiff in commencing the action. — An addi- 
 tional allowance cannot be granted to the defendant on the 
 ground that the plaintiff brought the action in bad faith and for 
 the pui'pose of embarrassing the defendant so that negotiations 
 could not be completed to raise money to pay off the indebted- 
 ness.^^^ l^or is the motive of the plaintiff in purchasing the- 
 notes sued upon a proper reason for granting tlie defendant an 
 additional allowance.^^^ jSTor should such an allowance be 
 gi-anted to the successful defendant, when his actions were so- 
 suspicious that the plaintiff was justified in bringing the 
 action. ^^^ The defendant should not be compelled to pay an ad- 
 ditional allowance, where the conduct of the plaintiff misled him- 
 so that he interposed a defense.-'''^ 
 
 297. Allowance in taxpayer's action. — In a taxpayer's action, 
 when the plaintiff is defeated, an additional allowance can be 
 granted to the defendant. ^""^ An allowance can also be granted 
 to the plaintiff in such a case, where he is successful. •^^'^ Where 
 a taxpayer seeks to restrain the performance of a contract, the 
 basis of an additional allowance is the contract price, not the 
 profits thereon.^^^ In an action to have bonds declared void, the 
 
 E. 650; Proctor v. Soulier, 8 App. ferson County, 3 Thomp. & C. 296. 
 
 Div. 69, 40 N. Y. Supp. 459. Affirmed in 64 N. Y. 626; Barker v. 
 
 ^""Austin V. Eartwig, 17 Jones & Oswegatchie, 62 Hun, 208. 41 N. Y. 
 
 S. 256. S. E. 831, 16 N. Y. Supp. 734; Hart 
 
 ^^■McConnell v. Manhattan Constr. v. Xew York, 16 App. Div. 227, 44 
 
 Co. 16 N. Y. Civ. Proc. Rep. 310. 21 N. Y. Supp. 767; Gordon v. Strong, 
 
 N. Y. S. R. 870, 4 N. Y. Supp. 226. 15 App. Div. 519, 44 N. Y. Supp. 481. 
 
 ^-'^Burnett v. Westfall, 15 How. Pr ^^''Chase v. Syracuse, 34 Misc. 144,. 
 
 420. 69 N. Y. Supp. 469; People ex rel. 
 
 ^^*Baldioin v. Reardon, 16 Jones & Morgan v. Westchester County, 39' 
 
 S. 166. X. Y. S. R. 798, 15 N. Y. Supp.\580. 
 
 ^^''Kelly V. Chenango Valley Sav. ^^Barker v. Oswegatchie, 62 Hun. 
 
 Bank, 45 N. Y. Supp. 658. 208, 41 N. Y. S. R. 831. 16 N. Y. 
 
 ^^Freeman v. Brooks, 33 Misc. 450, Supp. 734 ; Mingay v. Holly Mfg. Co.. 
 
 68 N. Y. Supp. 437 ; Comins v. Jef- 99 N. Y. 270, 1 K E. 785.
 
 368 THE LAW OF COSTS IN NEW YORK. 
 
 basis of an allowance is the value of the bonds.^^'' But where 
 tlie action is brought to recover the interest upon the bonds, the 
 amount of interest sought to be recovered, and not the value of 
 the bonds, is the basis of an additional allowance ;^*^" or, in an 
 action to restrain the laying out of a street, the cost of laying it 
 cut in the cheapest way provided in the ordinance.^ ^^ 
 
 298. Actions to apportion a tax or assessment. — Under the old 
 Code, in an action to apportion a tax or assessment upon certain 
 parcels of land, where the entire parcel was liable to be sold for 
 taxes and one owner \vished to pay his share, it was held that 
 there was no authority for granting an additional allowance.^ ^^ 
 
 299. Ileal actions, a. Basis of an allowance in an action on a 
 lease. — When the subject-matter of an action is a lease, the 
 basis of an additional allowance is the value of the lease. This 
 is not measured by the amount of rent reserved, but is the value 
 of the use of the premises for the term, less the amount of rent 
 tliat must be paid to occupy them.^*^^ Where the plaintiff owns 
 a fractional share of the lease, the additional allowance must be 
 computed only upon that fractional part of the entire value.^*^* 
 An addit(jnal allowance may be granted to a successful defend- 
 ant in an action brought for damages to a long lease held by the 
 plaintiff, on the alleged ground that the defendant caused the 
 tenants of the plaintiff to leave.-' ''^ 
 
 h. — in injunction actions. — In an action to restrain a 
 gi'antee from carrying on business contrary to the covenants in 
 a deed, an additional allowance must be computed upon the 
 amount of damages recovered, not on the value of the real es- 
 
 ^^''SicJcles V. Richardson, 14 Hun, 072, 65 How. Pr. 05, 12 Ahb. N. 0. 
 
 110. 19; Conies v. Ooddnrd, 2 Jonos & S. 
 
 '«"For//7 V. GrecDirich, 133 N. Y. 118; Koehler v. Brady, 22 Apn. Div. 
 
 152. 44 N. Y. S. R. 519, 30 N. E. 842. 624, 47 N. Y. Supp. 98* : Ondens- 
 
 ^"RocJicsfer d H. Vallej/ R. Co. v. hurqli & Jj. C. R. Co. v. Vermont d 
 
 Rochester, 17 App. Div. 257, 45 N. C. R. Co. 63 N. Y. 176. 
 
 Y. Supp. 687. ^"^Slruthers v. Pearce, 51 N. Y. 
 
 i^Laws of 1855, chap. 327; Pow- 3G5. 
 
 ers V. Barr, 24 Barb. 142. ^'^'^ Morrison v. Agate, 20 Hun, 23. 
 
 ^''^Heihnan v. Lazarus, 90 N. Y.
 
 ADDITIONAL ALLOWANCES. 369 
 
 tate.*^^ The basis upon which an additional allowance must be 
 computed in an action to restrain the removal of bark before the 
 close of the peeling season, is the value of the right to remove 
 tlie bark before the close of the season.^ '^^ 
 
 Where it is sought to enjoin the defendant from using a cer- 
 tain ap]3aratus over a portion of its road, the basis of an allow- 
 ance is the value of the use of the apparatus which is sought to 
 be enjoined.-'®^ In an action to restrain the defendant from 
 draining impure water into an artificial lake, and for damages 
 for past acts, where the question of damages has been tacitly 
 abandoned, and the question litigated was the title to the land 
 under the water, the basis of an additional allowance is the value 
 of the land, not the amount of damages claimed in the com- 
 plaint.i«9 
 
 c. — in actions for specific performance. — In an action for 
 the specific performance of a contract for the conveyance of real 
 property or the transfer of personal property the basis of an ad- 
 ditional allowance is the value of the property, to compel the 
 transfer of which the action is brought.^"* Where a title is de- 
 fective and the purchaser brings an action to recover back the 
 money advanced on the contract and his expenses incurred in the 
 examination of the title, the basis is the amount of the recovery, 
 not the value of the proiierty.-^"^^ In an action to compel the de- 
 fendant, who took title in his own name for the benefit of the 
 plaintiff, as well as himself, to convey to the plaintiff, an addi- 
 tional allowance can be made, based upon the plaintiff's interest 
 
 "'Mtlmitic Dock Co. v. JAlhij, 45 279, 67 X. Y. S. R. 741, 33 N. Y. 
 
 N. Y. 499. Supp. 1055. 
 
 ^"''Lyon V. Belchford, 8 N. Y'. Civ. ''^^Deuierman v. Gainsborg. 54 App. 
 
 Proc. Rep. 229, note. Div. 577, G6 JST. Y. Supp. 1009. 
 
 ^^Hudson Elver Teleph. Co. v. ^''"Gurnet/ v. Union Transfer d- 
 
 Waiervllet Tump, d R. Co. 135 N. Y Storage Co. 25 Jones & S. 444, 29 N. 
 
 393, 17 L. R. A. 674, 31 Am. St. Rep. Y. S. R. 274, 8 N. Y. Supp. 549. 
 
 SS8, 48 N. Y. S. R. 417, 32 N. E. ^''Moore v. Appleby, 108 N. Y. 237, 
 
 148; Empire City Subway Co. v. 15 N. E. 377. 
 Broadicay & 8. A. R. Co. 87 Hun, 
 COSTS 24,
 
 •370 TlIK LAW OF COSTS IN ISTKW VOKK. 
 
 in tlie premises.-^'- In an a(*tion to conijx-l the specific perform- 
 ance of a land contract the basis is the value of the property 
 which the purchaser is adjudged to accept. The basis is the 
 same when the purchaser brings an action to be relieved of his 
 contract, and the defendant asks that the plaintiff be compelled 
 to fulfil, which the court grants.^"" Under the old Code an 
 additional allowance could not be made in these cascs.^"* 
 
 d. — in ejectment actions. — Where the plaintiff seeks to re- 
 cover property from the defendant, which the court decides be- 
 longs to the defendant, the basis is the value of the property in 
 dispute.^"'" The value of the property affected is the proper 
 basis of an allowance in an action to have deeds declared mort- 
 gages.-^^® Where the plaintiff seeks to recover real property, 
 and damages for the occupation of the same, the basis of an ex- 
 tra allowance is the value of tlie real estate, and the amount of 
 damages recovered or sought to be recovered. If the defendant 
 won, the basis would be the value of the real property and the 
 amount of damages claimed in the complaint.^'^'^ An objection 
 tliat the value of the real estate has not been shown must be 
 taken at the time the allow^ance is made.^"^ 
 
 e. — in actions to restrain imisances. — Where the plaintiff 
 obtains an injunction restraining the defendant from oveiHlow- 
 ing his lands the basis of an allowance is the damages recovered, 
 and not the value of the land.^'^ 
 
 /. — in actions for tn'spass. — The value of the real property 
 eaimot be considered in an action for trespass, where there is no 
 contest as to that; but only the damages can be considered. But 
 
 '"()«w(>j V. Quinn, 69 App. Div. ^"Eanlc v. Grote, 18 Jones & S. 
 
 598, 75 N. Y. Supp. 83. 275, Affirmed in 110 N. Y. 12, 17 N. 
 
 "U.ahe)/ V. Kortrif/ht, 2G Jone.s & E. (505; Dresser v. Jennings, 3 Abb. 
 
 S 57G 32 N. Y. S. R. 112, 11 N. Y. Pr. 240; Burton v. Tremper, 27 N. 
 
 Supp. 47. Y. Week. Dig. 246, 10 N. Y. S. R. 
 
 '"irce/Vs V. Hoiilhwick, 12 How. 029. 
 
 Pr. 170. ^'"Dresser v. Jennings, 3 Abb. Pr. 
 
 i"iri«ia?/xs V. Wrslrni U. Teleg. 240. 
 
 Co. 61 How. Pr. :?0.">. ^'"Rolhcru v. .Ycip York Rubber Co. 
 
 ""Burke V. Cau'lrr, 63 Jlnrb. r,:y>. 90 X. Y. 30.
 
 ALiJ)rilONAI. AI.I.UWA^CKS. 371 
 
 where tlie paramount question is the title of the real property 
 the basis is the value of such property, and not tlie damages re- 
 covered.^^'* While the pleadings furnish the sole evidence as to 
 what is the subject-matter involved,^ ^^ yet the value thereof, 
 when it has not been shown by the pleadings or the evidence in 
 the case, may be shown by affidavits upon the motion for an ad- 
 ditional allowance.^ ^^ The clerk upon the taxation of costs can- 
 not take evidence of the value of the real property involved in 
 the action. ^''^■'' In an action for damages for trespass on lands 
 outside the state where the plaintiff makes default, the supreme 
 court has power to grant an additional allowance, and it can be 
 computed upon the amount of damages claimed.^ ^* 
 
 Where the plaintiff succeeds in restraining the completion of 
 a pier and in causing the removal of what had been erected, the 
 basis of an additional allowance is the right to erect the struc- 
 ture, and not the title to the materials, or the value of the struc- 
 ture. ^'^•^ 
 
 g. — in actions against railroads. — Where the plaintiff 
 brings an action to compel the defendant to repair and operate 
 its road the basis is the value of the road.^^*^ In an action for 
 damages to an abutting o^vner from the constrtiction of the de- 
 fendant's road, an additional allowance can be had, not only for 
 past damages, but also for damages for the easements taken, 
 called fee damages. The "fee damages"' represent the subject- 
 uintter involved.'^" An additional allowance can be made in 
 
 "^"Warren v. Buckley, 2 Abb. N. C. 463, 37 Am. St. Rep. 569, 5.5 N. Y. 
 
 323; Powers v. Conroy, 47 How. Pr. S. R. 831, 35 N. E. 650. 
 
 84; Ehle v. Quackenboss, 6 Hill, 537. ^^'Teople v. Neic York cG 8. I. Ferry 
 
 ^^Conaughty v. Saratoga County Co. 68 N. Y. 71. 
 
 Bank, 92 N. Y. 401, 404. ''"People v. Albany d V. R. Co. 16 
 
 ^-flayderi v. .Matthews, 4 App. Abb. Pr. 465. 
 
 Div. 338, 38 N. Y. Supp. 905; Con- "^'Dode v. Manhattan R. Co. 70 
 
 aughty v. Saratoga County Bank, 28 Hun, 374, 23 N. Y. Civ. Proc. Rep. 
 
 Hun, 374. 180, 54 N. Y. S. R. 286, 24 N. Y. 
 
 '^XeiDton V. Reid, 24 N. Y. Week. Supp. 422, Affirmed in 140 N. Y. 637, 
 
 Big. 472. 55 N. Y. S. R. 931. 35 N. E. 892; 
 
 "^Sewfems v. Ladew. 140 N. Y. .Johnson v. Shelter Island Grove d
 
 372 THK I.AW OF COSTS IN NEW YORK. 
 
 such an action, when the phiintiff succeeds, to the codefendants, 
 who were necessary parties, but who refused to unite as plain- 
 tiffs,^** The amount that the plaintiff claims that his premises 
 have been damaged is the basis of an allowance, when the de- 
 fendant succeeds in an action for damages to rental value.^*^ In 
 an action to restrain the defendant from erecting buildings and 
 thus interfering with the plaintiff's light and air, the value of 
 the easement is the basis of an additional allowance.^^^ 
 
 li. — in 'partition actions. — In partition actions the basis 
 upon which the allowance is granted is the entire property, not 
 the plaintiff's share. The rents that have been collected by the 
 receiver pending the action are not to be considered real estate 
 for the purpose of computing allowances.^ ^^ An allowance 
 shoiild not be made to the plaintiff's wife, who has only an in- 
 choate right of dower; nor to his infant daughter, whose guard- 
 ian ad litem is entitled to taxable costs; nor to the mortgagee of 
 plaintiff's share.^^^ An allowance can be made to both plaintiff 
 and defendant, but not to exceed $2,000 to the plaintiff and 
 $2,000 to all the defendants.^^^ Under § 3253 of the Code of 
 Civil Procedure as amended in 1899, the court has power to al- 
 low the defendant an extra allowance, even where there has been 
 an actual partition.^®* A defense is not interposed so as to en- 
 title the plaintiff to an additional allowance, where one of the 
 defendants alleges that another defendant is indebted to her. 
 The issue thus raised does not tend to defeat the plaintiff's re- 
 Camp Meeting Asso. 122 N. Y. 330. d Camp Meeting Asso. 122 N. Y. 330, 
 33 N. Y. S. Pv. 514, 25 N. E. 484: 33 N. Y. S. R. 514, 25 N. E. 484. 
 Roberts v. 'Neio Yorlc Elev. R. Co. 12 '^^^Doremns v. Crosby, 66 Hun, 125, 
 Misc. 345, 67 N. Y. S. R. 386, 33 N. 49 N. Y. S. R. 808, 20 N. Y. Supp, 
 Y'. Supp. 685. 906. 
 
 ^^^Roherts v. Neto York Elev. R. Co. '^^-Doremus v. Crosby, 66 Hun, 125, 
 12 Misc. 345, 67 N. Y. S. R. 386, 33 49 N. Y. S. R. 808, 20 N. Y. Supp. 
 N. Y. Supp. 685. 906. 
 
 "=7srrrpZ v. Metropolitan R. Co. 10 ^^''Weed v. Paine, 31 Hun, 10, 13 
 Misc. 722, 64 N. Y. S. R. 638, 31 N. Abb. N. C. 200. 
 Y. Supp. 816. ^^%'rossman v. WycJcoff, 64 App. 
 
 '"^Lat timer v. Livermore, 72 N. Y. Div. 554, 72 N. Y. Supp. 337. 
 174; Johnson v. Shelter Island Grove
 
 ADDITIONAL ALLOWANCES. 373 
 
 liei.^^^ Where an allowanr'.e has been made in a decree for a 
 partition and sale, a further allowance cannot be made on mak- 
 ing the decree, confirming tlie sale, and directing the distribution 
 of the proceeds. ^'^'^ 
 
 L — in rnortgage foreclosures. — An additional allowance can 
 l>t; made in a mortgage foreclosure the same as in any other case, 
 where there has been a trial.^^^ An allowance may be made 
 where defendant unnecessarily defends a mortgage foreclos- 
 ure. -^^^ 
 
 In a mortgage foreclosure the allowance cannot exceed 21/^ 
 per cent of the sum in controversy, or $200, although the case is 
 difficult and litigated.^''^ The reason of this is that another per 
 eentage is always recovered, as a matter of course.^^*^ An addi- 
 tional allowance of $100 to the defendant in dismissing a com- 
 plaint to foreclose a $5,000 mortgage is not excessivc.^'^^ The 
 limitation imposed by § 3252 of the Code of Civil Procedure as 
 to mortgag*^ foreclosures does not apply to foreclosures upon 
 leasehold estates, as they are personal properfy.-'^^ ISTor can an 
 allowance be made under subd. 1 of § 3253 of the Code of Civil 
 Prccedure.^^^ See section 120, subd. j., ante. 
 
 j. — in actions to set aside transfers as fraudulent. — In ac- 
 tions to set aside conveyances or mortgages as made in fraud of 
 creditors, the basis upon which the additional allowance, if 
 
 ^^Defemlorf v. Defendorf, 42 App. 1 N. Y. Week. Dig. 15; O'Neill v. 
 Div. 16G, 59 N. Y. Supp. 163. Gray, 39 Hun, 566; Ferris v. Hard, 
 
 '^Brewer v. Brewer, 11 Hun, 147, 15 N. Y. Civ. Proc. Ecp. 171, 17 N. 
 Affirmed, it seems, as Bremer v. Pen- Y. S. R. 364, 4 N. Y. Supp. 9. 
 niman, 72 N. Y. 603, without opin- "^O'Neill v. Gray., 39 Hun, 566; 
 ion. Rosa v. .Jenkins, 31 Hun, 384. Con- 
 
 ^^Bockes V. Kilmer, 8 N. Y. Week, tra, Bockes v. Hathorn, 17 Hun, 87- 
 Dig. 156; Hunt v. Chapman, 62 N. -"Wunf? v. IFc^wa)/, 13 N. Y. Supp. 
 Y.'^SSS, 1 N. Y. Week. Dig. 15, which 527. 
 
 is explained by chap. 431 of Laws of '"-nuntingion v. Moore, 59 Hun, 
 1876; Mui-ray v. Church, 1 Him, 49. 351, 20 N. Y. Civ. Proc. Rep. 160, 36 
 3 Thomp. & C. 145. N. Y. S. R. 541, 13 N. Y. Supp. 97. 
 
 ^"^Gidney v. Livingston, 25 How. -"^Barnes v. Meyer, 25 N. Y. Civ. 
 Pr. 1. ' Proc. Rep. 372, 75 N. Y. S. R. 649, 
 
 '^ Code Civ. Proc. § 3253, subdiv. 41 N. Y. Supp, 210. 
 1; Hunt V. Chapman, 62 N. Y. 333,
 
 374 TJIE LAW OF COSTS IN NEW iOKK. 
 
 granted, miist be computed, is the sum of the judgincMits which 
 the plaintiff represents, and not the value of the real estate.^** 
 This is the basis, whichever party wins."**'^ Where an action is 
 brought to set aside a transfer of a mortgage as fraudulent, on 
 behalf of the plaintiff and other creditors whose claims are set 
 out in the complaint, the amount of the allowance must be com- 
 puted upon the total of the debts.^*'^ 
 
 300. Allowance in actions against corporations. — In an action 
 to restrain a corporation from issuing its bonds the basis of an 
 additional allowance is the market value of the bonds, not their 
 par value.-*'" In an action to restrain the defendant from the 
 further exercise of its corporate functions the basis upon which 
 the allowance must be computed is the value of its franchise, not 
 the value of its assets.-"^ 
 
 301. — in actions relating to a fund. — In an action by a stock- 
 holder against a corporation in reference to a fund in which the 
 plaintiff has, or claims, a share, the basis of an additional allow- 
 ance must be the amount of the plaintiff's share of the fund/"^ 
 except where he brings the action for the benefit of others inter- 
 ested in the fund, when an additional allowance can be computed 
 upon the amount recovered.^^*^ If the action is not so brought, 
 and the other parties entitled to share are made parties defend- 
 
 ""^Potter V. Farrington, 24 Hun, Bank, 92 N. Y. 401 ; People v. Roch- 
 
 551, 12 N. Y. Week. Dig. 283; Hoos ester Dime Sav. d L. Asso. 7 App. 
 
 V. Person, 15 N. Y. Week. Dig. 530; Div. 350, 39 N. Y. Supp. 939; Peo- 
 
 Nalional Tradesmen's Bank v. Wet- pie v. Ulster & D. R. Co. 58 Hun, 
 
 more, 10 N. Y. S. R. 640 ; McConnell 266, 34 N. Y. S. R. 983, 12 N. Y. 
 
 V. Manhattan Constr. Co. 16 N. Y. Supp. 303, Affirmed in 128 N. Y. 240, 
 
 Civ. Proc. Rep. 310, 21 N. Y. S. R. 40 N. Y. S. R. 280, 28 N. E. 635; 
 
 870, 4 N. Y. Supp. 226; Remington People v. Rockaway Beach Improv. 
 
 Paper Co. v. O'Douglierty, 18 N. Y. Co. 28 Hun, 356. 
 
 Week. Dig. 190. -°^Parish v. 'Neio York ^^roduce Ex- 
 
 -"'^T. Neio Mfg. Co. v. Calway, 23 ehange, 54 App. Div. 323, 66 N. Y. 
 
 N. Y. Civ. Proc. Rep. 239, 26 N. Y. Supp. 613; Mills v. Ross, 39 App. 
 
 Supp. 950. Div. 563, 57 N. Y. Supp. 680; Dev- 
 
 -'^Iloos v. Person, 15 N. Y. Week, lin v. New York, 15 Abb. Pr. N. S. 
 
 Diir. 530. 31. 
 
 -"'Wood v. Tory, 47 Hun, 550, 15 '-'"Riley v. Eulhert, 13 N. Y. Week. 
 
 N. Y. S. R. 209. Dig. 101. 
 
 ^'^Conaughty v. Saratoga County
 
 ADDITIONAL AIXOWANCES. 375 
 
 ant and come in and prove tlieir claims, they are not entitled to 
 f'osts nor to an additional allowance.^ ^-^ 
 
 302. — in actions relating to wills. — In an action to set aside 
 the probate of a mil the amount involved is the amount of the 
 estate. If the plaintiff defaults, the defendant can prove his 
 case and is then entitled, in a proper case, to an additional al- 
 lowance.-^^ 
 
 303. — in actions upon insurance policies. — In an action t-o re- 
 instate a life insurance policy the basis is the surrender value of 
 the policy, not the amount of the policy.- ^^ In an action against 
 ' 'ne of several indemnitors in a Lloyds insurance the basis of an 
 additional allowance is the amount sought to be recovered of this 
 defendant, and not the amount of the loss.-^"* 
 
 304. — in action in relation to annuities. — In an action to 
 charge an annuity upon a fund the basis of an additional allow- 
 ance is the amount due upon the annuity at the time of the trial 
 and the value of the future instalments, based upon the North- 
 ampton tables.^^^ 
 
 305. — in actions relating to the capital stock of corpora- 
 tions. — In the absence of proof the court may, in making an 
 additional allowance, assmne that bank stock is worth par, but 
 not more.^^^ 
 
 In an action to restrain the defendant from selling, without 
 notice, stock pledged by the plaintiff as collateral security, the 
 basis of an additional allowance is the value of this right, not 
 the value of the stock pledged or sold.^^' In an action to redeem 
 stock upon paying an unpaid assessment the basis of an addi- 
 
 ''"Devlin v. Neio York, 15 Abb. Pr. ^'Arthur v. Dalton, 14 App. Div. 
 
 N. S. 31. 115. 43 TSr. Y. Supp. 581. 
 
 •^^Delmar v. Dehnar, 65 App. Div. ""Smith v. Baker, 42 Hun, 504. 
 
 582, 72 N. Y. Supp. 959. -"Sinalhcood v. Scluoleferinq, 10 
 
 ^^Strauss v. Union Cent. L. Ins. Misc. 103, 63 N. Y. S. R. 504, 31 N. 
 
 Co. 33 Misc. 571, 67 N. Y. Supp. 931. Y. Supp. 149. 
 
 ''*Laird v. Lit tie field, 34 App. Div. 
 43, 53 N. Y. Supp. 1082.
 
 376 THE LAW OF COSTS IN A^EW YOKK. 
 
 tional allowance is the value of the stock in question, less the 
 amount of assessments unpaid.^^^ 
 
 306. — in actions to recover damages for negligently causing 
 death. — Where, upon the coming in of a verdict in a negligence 
 action, the plaintiff moves for an extra allowance, which is 
 granted by way of a stated percentage, but witli no direction or 
 intimation that the percentage was allowed upon anything be- 
 yond the verdict, the computation should be based upon the ver- 
 dict, and not upon the verdict plus the interest which the clerk 
 is required to add to the damages by § 1904 of the Code of Civil 
 Procedure.^^^ But where the allowance is granted, expressly 
 covering the verdict and interest, the computation must be made 
 upon the verdict plus the interest.^^^ 
 
 307. — in partnership accountings. — A plaintiff in a partner- 
 ship accounting can be granted an allowance only upon his share 
 of the partnership assets.^^^ In an action by one partner to set 
 aside a transfer of property on the ground that it is partnership 
 assets, he cannot be granted an allowance, in case of his success,, 
 because the plaintiff's interest therein cannot be ascertained un- 
 til after a partnership accounting.^^" Upon a partnership ac- 
 counting, where it appears that there is not enough to pay the 
 creditors in full, neither of the parties should be granted an 
 allowance, because it would be taking their creditors' money to 
 pay a claim of their debtor.^^^^ Where the plaintiff submits tO' 
 
 '"Wee/.-s V. 8ilver Islet Consol. buckle v. Schultz, 69 Hun, 183, 53 N. 
 
 Min. & Lands Co. 26 Jones & S. 247, Y. S. E,. 598, 23 N. Y. Supp. 611; 
 
 32 N. Y. S. E. 417, 11 N. Y. Supp. Adams v. Arl:enhurf)li, 106 N. Y. 615, 
 
 48. 27 N. Y. Week. Dis?. 132, 11 N. Y. 
 
 ""^Seifter v. Brooklyn Heights R. S. R. 121, 13 N. E. 594. 
 
 Co. 53 App. Div. 443, 65 N. Y". Supp. —Maloy v. Associated Lace-Mak- 
 
 1123; Sinne v. New York, 8 N. Y. crs' Co. 28 N. Y. S. R. 735, 7 N. Y. 
 
 Civ. Proc. 252, note; 3 Month. L. Supp. 958; Spits v. Tousey, 22 N. Y. 
 
 Bull. 51. Week. Dic^. 446. 
 
 ^Bord V. New York C. <& H. R. R. "=a Smith v. Green, 8 N. Y. Civ. 
 
 Co. 1 How. Pr. N. S. 1, 14 Abb. N. Proc. Rep. 163; Struthers v. Chris- 
 
 C. 496, 6 N. Y. Civ. Proc. Rep. 222. lal, 3 Daly, 327. 
 
 ^-^Hashrouck v. Marks, 58 App. 
 Div. 33, 68 N. Y. Supp. 510; Hagen-
 
 ^UJDITIOIS^AI. A1.LOWANCES. 37T 
 
 a nonsuit in an action for an accounting, after the defendant 
 makes his account an additional allowance to the defendant is 
 proper."^" Sometimes in an action for an accounting an allow- 
 ance is made to all the parties, payable out of the fund.^-^ 
 
 The plaintiff should not be granted an allow^ance where he ha& 
 been defeated on a large portion of his claim,^^^ or where the 
 trial is occupied with the defendant's counterclaim, upon which 
 the defendant was successful.^^*' 
 
 308. — in actions to restrain use of trademark. — The basis of 
 an allowance in an action to restrain the use of a trademark and 
 for damages for use of the same is the value of the trademark, 
 and the amount of damages recovered.^^^ If there is no proof 
 of the value of the trademark, it can be computed only on the 
 amount of damages recovered.^^® "Where the defendant wins- 
 and the plaintiff has asked for no sum as damages in his com- 
 plaint, there is no basis upon which to gTant the defendant an 
 additional allowance.^^^ But if the plaintiff has demanded a 
 certain sum as damages in his complaint, an allow^ance based on 
 such demand can be allowed the defcndant.^^^ 
 
 309. — when the defendant sets up a counterclaim. — Where an 
 answer sets up a counterclaim the basis upon which an allowance 
 is granted is the sum of the amount claimed in the complaint^ 
 and the amount of the coimterclaim.^^^ 
 
 ^"^Shiels V. Wortmann, 30 N. Y. S. ^Collins v. liexjnoUs Card Mfg. 
 
 R. 173, 8 N. Y. Supp. 799. Co. 2 Month. L. Bull. 45. 
 
 ^^Chesler v. Jumel, 2 Silv. Sup. ''•'Jaeger's Sanitary Woolen 8ys- 
 
 Ct. 179, 24 N. Y. S. R. 230, 5 N. Y. tern Co. v. Le Boutillier, 63 Hun,. 
 
 Supp. 823. 297, 22 N. Y. Civ. Proc. Rep. 6, 43 
 
 -'Hands V. Sands, 6, How. Pr. 453. N. Y. S. R. 381, 17 N. Y. Supp. 786. 
 
 ==«A'ew York, L. E. & W. R. Co. v. ""J/wwro v. Smith, 36 N. Y. S. R. 
 
 Carhart, 39 Hun, 363. 841, 13 N. Y. Supp. 708. 
 
 ^^Perkins v. Heert, 14 IMisc. 425, ^^Barclay v. Culver, 66 How. Pr. 
 
 71 N. Y. S. R. 485, 36 N. Y. Supp. 342, 4 N. Y. Civ. Proc. Rep. 365; 
 
 434; Waterman v. Shipman, 47 N. Woonsocket Rubber Co. v. Rubber 
 
 Y. S. R. 418, 19 N. Y. Supp. 976; Clothing Co. 62 How. Pr. 180, 1 N. 
 
 Munroe v. Smith, 23 Abb. N. C. 275, Y. Civ. Proc. Rep. 350, 4 Month. L. 
 
 17 N. Y. Civ. Proc. Rep. 158, 25 N. Bull. 3; Vihnar v. Schall, 61 N. Y. 
 Y. S. R. 624, 6 N. Y. Supp. 426; 
 Coales V. Coddnrd. 2 Jones & S. 118.
 
 378 THE LAW OF COSTS IN NK\\ VOJJK. 
 
 Where no amount is claimed either in the comphiint or in the 
 counterclaim the allowance must be computed on the amount of 
 the recoverj."^'^ But where the defendant sets up a counter- 
 claim for an unliquidated amount and recovers any sum thereon, 
 tlie plaintiff, who recovers judgment, cannot be allowed any ad- 
 ditional allowance for any amount on the counterclaim.^^^ The 
 plaintiff is not entitled to an allowance where the defendant con- 
 cedes his claim, but asserts a counterclaim upon which he obtains 
 a substantial recovery, and thus, in reality, is the successful 
 party, although the plaintiff may be entitled to judgment.^^* 
 Nor is he entitled to an allowance based on the defendant's coun- 
 terclaim, w^hcn there has been no judgment in favor of the plain- 
 tiff upon it.^^^ 
 
 310. Effect of the defendant winning by pleading the statute of 
 limitations. — An extra allowance may be granted to a defendant 
 who w^ins by pleading the statute of limitations. ^^*^ If the action 
 is not difficult and extraordinary in other respects, an allowance 
 should be denied.-'^^ 
 
 311. Actions in which there is no basis for an additional allow- 
 ance, a. In general. — Though a possible money value may 
 accrue incidently, it does not warrant the granting of an 
 additional allowance to the successful party.^^^ Thus, where 
 the plaintiff succeeds in restraining the common council of a 
 city from arbitrarily setting aside the report of commissioners 
 
 564; Williams v. Western V. Teleg. ^^'"Hamirutmi v. Jordan, 27 Jones & 
 
 Co. 61 How. Pr. 305; Barnes v. Dens- S. 95, 36 N. Y. S. R. 434, 13 N. Y. 
 
 low, 30 N. Y. S. R. 315, 9 N. Y. Supp. Siipp. 803. 
 
 53, Affirmed without opinion in 130 ""'"People v. Clarke, 9 N. Y. 349. 
 
 N. Y. 687, 30 N. E. 67; Lissberger ■'^'' Adams v. Htern, 29 Hun, 280. 
 
 V. Sclioenberg Metal Co. 2 N. Y. City ■''^Schneider v. Rochester, 50 App. 
 
 Ct. Rep. 158. Div. 22, 63 N. Y. Supp. 360; People 
 
 -''Tolan V. Carr, 12 Daly, 520, 19 ex rel. Winans v. Adams, 128 N. Y. 
 
 N. Y. Week. Bi^. 484. 129, 21 N. Y. Civ. Proc. Rep. 159, 38 
 
 "^Uates V. Fish Bros. Wagon Co. N. Y. S. R. 880, 27 N. E. 1075; Hus- 
 
 50 App. Div. 38, 63 N. Y. Supp. 649. ted v. Thomson, 38 App. Div. 315, 57 
 
 ^^Commercial Nat. Bank v. Hand, N. Y. Supp. 9. 
 27 App. Div. 145, 50 N. Y. Supp. 
 515; Neio York, L. E. & W. R. Co. 
 v. Carhart, 39 Hun, 363.
 
 ADDITIONAL AIJ.OWANOES. 379 
 
 in a condenmatlon proceeding, an allowance cannot be made, 
 based upon the amount of the award, as the common council may 
 pass upon the matter judicially, and set it aside.^^^ 
 
 h. Quo warranto. — Where an action is brought to try the title 
 to a public office, there is no basis for an additional allowance. 
 The principal subject of the action is the office, not the salary.^'*^* 
 In an action to remove an officer of a corporation the subject- 
 matter involved is the conduct of the defendant, which can have 
 no money value,^'^^ or the title to the office, which has no money 
 value. "^^ 
 
 c. Actions to restrain the use of a trademark. — When the de- 
 fendant succeeds in an action to restrain the use of a trade- 
 mark, and the court decides that there is no trademark right, 
 there is no basis for an extra allowance.^^^ The court has no 
 power to ascertain, by reference or otherwise, tlie value of the 
 trademark. In such a case an allowance made by the court 
 witliGut any allegation in the complaint of the amount of dam- 
 ages for which judgment is asked, nor of any proof thereof upon 
 the trial, -will be set aside.^^* If the complaint asked for a cer- 
 tain sum as damages, then an allowance could be made to the 
 successful defendant, because the action would be, not only to 
 restrain the use of the trademark, but also for damages. An 
 allowance mil be refused to the plaintiff in such an action, 
 where his trademark is sustained, but no danuiges awarded him. 
 The subject-matter involved was the damage to the trade- 
 mark."*^ 
 
 ^Schneider v. Rochester, 50 App. -*^Dr. Jaeger's Sanitary Woolen 
 
 Div. 22, 6.3 N. Y. Supp. 360. System Co. v. Le Boutillier, 63 Hun, 
 
 -'^People ex rel. Giles v. Flagg, 25 297, 22 N. Y. Civ. Proc. Rep. 6, 43 
 
 Barb. 652, 15 How. Pr. 36; Voorhis N. Y. S. R. 381, 17 N. Y. Supp. 786. 
 
 V. French, 15 Jones & S. 364, 61 How. ^"Z)e Long v. Ve Long Hook & Eye 
 
 Pr. 161; Wilkinson v. Tiffany, 4 Co. 89 Hun, 399, 70 N. Y. S. R. 16J. 
 
 Abb. Pr. 99. 35 N. Y. Supp. 509. 
 
 -"People V. Giroiix, 29 Hun, 248. -*''Volger v. Force, 63 App. Div. 
 
 ^People ex rel. Winans v. Adams, 122, 71 N. Y. Supp. 209; Coaies v. 
 
 128 N. Y. 129, 21 N. Y. Civ. Proc. Goddard, 2 Jones & S. 118; Spofford 
 
 Rep. 159, 38 N. Y. S. R. 880, 27 N. v. Texas Land Co. 9 Jones & S. 228 
 E, 1075.
 
 380 THE J-AW OF COSTS IN NEW YORK. 
 
 d. Real actions. — Where the lessee brings an action to compel 
 the lessor to name an umpire to fix the value of buildings erected 
 by the lessee, or to fix the rental value of a new lease, no addi- 
 tional allowance can be granted, as the subject of the action is- 
 not capable of a money valuation.-'*^ No allowance can be 
 granted to set aside a deed given for convenience,^^ '^ nor in an 
 action to restrain the defendant from proceeding in dispos- 
 session proceedings,-^^ nor to restrain him from increasing the 
 height of a j)arty wall f'^''* nor to restrain him from erecting 
 buildings within a certain line of the street, although damages 
 were claimed in the complaint, but none were recovered f""^ nor 
 to restrain the erection of a building upon land adjoining the 
 plaintiff's premises, in which the plaintiff claimed an easement, 
 unless the value of that easement is proved f^'^ nor in an action to 
 reform a contract and restrain the defendant from running cars 
 over plaintiff's road, where the defendant w^on f^^ nor in an ac- 
 tion to restrain the maintenance of a street railway ;^^^ nor in 
 an action to restrain the execution of a final determination in 
 the proceedings for a forcible entry and detainer ;^^^ nor in an 
 action to restrain the foreclosure of a mortgage ;-'^^ nor on a sunt 
 fixed as the value of easements in an action to restrain the 
 operation of a railroad f'^^ nor in an action to restrain a rail- 
 road from building upon the route laid out by it, and to compel 
 
 ^^''Smith V. St. Fhillp's Church, "-^-Christopher d Tenth 8t. R. Co. 
 
 107 N. Y. 610, 14 N. E. S25. v. Txcenty-third St. R. Co. 48 N, Y. 
 
 ^^'Donovun v. Wheeler, 67 Hiin, 68, S. R. 805, 20 N. Y. Supp. 556. 
 
 51 N. Y. S. R. 411, 22 N. Y. Supp. 54. "-^^Black v. Brooklyn Heights R. Co.- 
 
 "^^Grissler v. Stuyvesant, 67 Barb. 32 App. Div. 468, 53 N. Y. Supp. 312. 
 
 81. -"^Sheehy v. Kelly, 33 Hun, 543. 
 
 -"'Musgrave v. Sherwood, 29 Hun, '-'Sprong v. Snyder, 6 How. Pr. 11. 
 
 475. -■•'''Bolger v. Metropolitan Elev. R. 
 
 "■^Bradley v. Walker, 28 Jones & Co. 29 Jones & S. 459, 48 N. Y. S. R.- 
 
 S. 324, 22 N. Y. Civ. Proc. Rep. 1, 399, 20 N. Y. Supp. 430; Bhimenthal 
 
 44 N. Y. S. R. 23, 17 N. Y. Supp. 383. v. \ew York Elcr. R. Co. 42 N. Y-_ 
 
 -^^Johnson v. Shelter Island Grove S. R. 683, 17 X. Y. Supp. 481. 
 <€ Camp Meeting Asso. 47 Hun, 374. 
 28 N. Y. Weak. Dig. 59, 14 N. Y. S. 
 R. 576.
 
 ADDITIONAL ALLOWANCES. 381 
 
 it to take aiiotLev ixmte;"^^ nor in an action In- tlio people to com- 
 pel the defendant to remove a dam, the subject-matter of tiie 
 litigation being the right of the state to have the Avater flow iin- 
 ■obstrnct^d ;^'''^ nor in an action to restrain the continuance of a 
 nuisance in diverting and polluting the water of a stream, 
 where the plaintiif does not seek to recover damages. The only 
 measure of damages iu such a case is the damage to the plaintiff, 
 not the difference in the value of the defendant's property as it 
 was at the commencement of the action, and its value should 
 jilaintiff succeed.^''" I^^or should an allowance be granted in an 
 action to restrain the operation of a railroad, where damages to 
 the easement are nominal and the injimction can be obviated by 
 the payment of a gross sum. An allowance cannot be based on 
 this sum.-^^ Nor should an allowance be gTauted in an action 
 to have a resulting trust declared as to a leasehold interest in 
 property, and the complaint is dismissed.^^^ 
 
 e. Actions for injunctions. — The same rule applies where the 
 •subject-matter of the action is injunctive relief in relation to 
 personal property.^^^ 
 
 /. Actions in relation to ivills. — In an action to construe a 
 will, where the demurrer of a defendant is sustained there is no 
 liasis of an additional allowance. If the defendant had won 
 upon a trial of an issue of fact, there would be a basis. The 
 •decision upon the demurrer is simply that the plaintiff has not a 
 right to have the will construed.^"^ An allowance was refused to 
 
 -■'People V. Genesee Valley Canal 49 App. Div. 423, G3 N. Y. Supp. 383. 
 
 i?. Co. 95 N. Y. 060. 29 N. Y. Civ. Proc. Rep. 272. 
 
 "^People V. Page, 39 App. Div. 110, -^^Diamond Match Co. v. Roeher, 35 
 
 56 N. Y. Supp. 834, 58 N. y. Supp. Hun, 421 : Contes v. Goddard, 2 
 
 ■239. Jones & S. 118; Spofford v. Texas 
 
 ■'^Godley v. 7\>i r f^alt Co. 3 App. Land Co. 9 Jones & S. 228 : Hanover 
 
 Div. 17, 7.3 N. Y. S. R. 530, 37 N. Y. F. his. Co. v. Gennania P. Ins. Co. 
 
 ■Supp. 988. 63 Hun, 275, 43 N. Y. S. R. ^5i, 18 
 
 ^'Gray v. Manhattan R. Co. 3 N. Y. Supp. 50. 
 
 Misc. 239, 51 N. Y. S. R. 905. 22 N". -"'Opit- v. Ham men. 41 Arp. Div. 
 
 Y. Supp. 771. 468. 58 N. Y. Supp. 987. 
 
 "'Werner v. Franklin Kal. lianl;
 
 382 THE LAW OF COSTS IJM .XKW VOltK. 
 
 the various parties in an action to pi-ovo a Avill, the original not 
 being in the jurisdiction of the court, where all the parties asked 
 for the same judgment."^' In an action for the construction of 
 a will, where he is successful the plaintiff is the only person en- 
 titled to an additional allowance.^^*' The allowance of counsel 
 fees rests in the discretion of the trial court.^^''^ Nor can 
 an allowance be granted in an action to construe a will, where 
 the c(;iii])]aint is dismissed upon the defendant's motion, no evi- 
 denc-o having been taken, ^^^ 
 
 g. Actions for an acconiding. — There is no basis for an addi- 
 tional allowance where the plaintiff asks for no sum in his com- 
 ])]aint, but asks for an accounting and judgment for such sum 
 as may be found his due, and it appears that there is nothing- 
 due him,^"" or that he is not entitled to an accounting,^^^ or 
 that the estate is insolvent,^^^ or where there is no dispute as to 
 the amount due the ])laintiff.^'^" An additional allowance cannot 
 be granted in an action in wdiich the trustees ask to be relieved 
 from their trust, and subsequently discontinue the action ;-'^* 
 nor in an action to remove a general assignee, and for the ap- 
 pointment of a receiver of the pro2:)erty of the assignor, when 
 the action was discontinued before the trial.^'^^ 
 
 h. Matrimonial actions. — The court has no power to grant an 
 additional allowance in a divorce action. ^^^ 
 
 '^U-Yilh V. Camphell, 53 Barb. 32.5. -'-Weaver v. Ely, 83 N. Y. Sfl ; Pat- 
 
 "^■Wcst V. Place, 4 Misc. 19, 23 N. leyson v. Burnett, 1 Silv. Sup. Ct. 
 
 Y. Supp. 1089; Downing \. Marshall, 166, 17 N. Y. Civ. Proc. Rep. 115, 
 
 37 N. \'. 380; Brinckerhoff v. Farias, 23 N. Y. S. R. 363, 4 N. Y. Supp. $121. 
 
 52 Aj.p. Div. 256, 65 N. Y. Supp. """Hitiman V. Ryder, 12 Jones & S. 
 
 358. 3.30. 
 
 -^m'etmorc v. Parker. 52 N. Y. -'"Kttapp v. Hammersley. 13 N. Y. 
 
 450. Civ. Proc. Rep. 258. 
 
 "^^Perkim v. V.liitney, 34 N. Y. S. -"•Meyer v. Hasquin, 20 N. Y. 
 
 R. 951, 12 N. Y. Supp. 184. Week. Dig. 98. 
 
 """Ahell V. Eolden, 39 N. Y. S. R. -'•"Aiherlon v. Atherton. 82 Hun. 
 
 5, 15 N. Y. Supp. 64. 179, 64 N. Y. S. R. 798, 31 N. Y. 
 
 "^Coleman v. Chauncey. 7 Robt. Supp. 984; Yan Vleck v. Van Vleek^ 
 
 578; Adams v. ^vlliran, 42 Hun. 21 App. Div. 274. 631, 47 N. Y. Supp. 
 
 278. 470, 472; Xeivion v. Newton, 8 N. Y>
 
 AJ)1)JT10NAI. ALl.OWA^^CES. 383 
 
 i. Actions in fornui pauperis. — An allowance Avill be refused 
 a plaintiff sning as a poor person, where he has mac>3 an agree- 
 ment with his attorney that he is to have a reasonable compensa- 
 tion.^"' 
 
 j. Various cases.— Is or can an allowance be granted in an 
 action to reform a contract f''^ nor in an action brought to obtain 
 some sort of relief in respect to a release, including an injunction 
 against its use;^"^ nor to vacate an award, where the only con- 
 troversy is whether the award shall stand. ^*^" 
 
 312. What is a proper allowance, a. In general — The allow- 
 ance should be a reasonable and moderate counsel fee under the 
 circumstances of each case. Where the plaintiff sued on nine- 
 teen causes of action and recovered over $3,000, and tlie de- 
 fendant had judgment for over $11,000, an allowance to the 
 plaintiff of 5 per cent of his recovery, and an allowance to the 
 defendant of $500, was held proper.-^'*^ In a taxpayer's action 
 to restrain the levying of a tax for the payment of $300,000 of 
 railroad bonds an allowance of $700 was held proper.^^^ Where 
 the plaintiff was allowed $1,000 in an action to restrain the 
 levA'ing of a tax of $2,5,000, this was held proper.^^^ In an 
 action upon on assigned claim for $7,500 the defendant set up 
 a counterclaim for $20,000 and was allowed $9,000, but as the 
 plaintiff sued as assignee, no aflimiative judgment could be ren- 
 dered, and an allowance of $750 was held proper.'^^'* 
 
 6. Allowances to guardiaiis ad litem. — An allowance granted 
 
 Civ. Proe. Rep. 224, note; Benfley v. '-^Boffnuin v. Be Graaf, 39 Hun. 
 
 Beiitleif.?i Moiiih.Jj.BnU. 76: Pounf- 648. 
 
 ney v.Pountneif, 32 N. Y. R. R. 335, -^'Diiranf v. Ahendroth, 15 N. Y. 
 
 10 N. Y. Snpp. 192; McCarthy v. Civ. Proc. Rep. 36, 16 N. Y. S. R. 
 
 McCarthy, 137 N. Y. 500, 33 X. E. 263. 1 N. Y. Supp. 537. 
 
 550. -"-Caniins v. Jefferson County, 3 
 
 ^'Marx V. Manhattan R. Co. 3 N. Tliouip. & C. 269. 
 
 Y. Supp. 113. ^^Morgan v. Westchester County, 
 
 '"'Heert v. Cruyer, 14 Misc. 508, 70 39 N. \^ S. R. 798, 15 N. Y. Supp. 
 
 N. Y. S. R. 68S. 35 N. Y. Supp. 1063. 580. 
 
 ^"Rusted V. Thomson, 38 App. Div. -'^*Zahr!sl-ie v. Central Vermont B. 
 
 315, 57 N. Y Supp. 9. Co. 13 K Y. Supp. 735.
 
 ^84 THE LAW OF COSTS IK jMEW YOKIv. 
 
 to a guardian ad litem is independent of the allowance given 
 under § 3253 of the Code of Civil Procedure, and must not be 
 included in the sum of the allowances in ascertaining whether 
 the allowances exceed the statutory limit of 5 per cent upon the 
 amount involved.^®^ 
 
 c. — in taxpayer's actions. — In a ta:spayer's action which 
 charged fraud, of which no proof was offered upon the trial, and 
 the complaint was dismissed at the close of the plaintiff's case, 
 -an allowance of $2,000 was reduced to $500, because the trial 
 was short.^^^ 
 
 d. — in actions in relation to wills. — An allowance of $1,000 
 to a defendant was reduced to $250 in an action to declare in- 
 valid the probate of a will disposing of an estate of $200,000, 
 where the complaint was dismissed upon the motion of the de- 
 fendant. The defendant had not prepared for the trial, but had 
 simply engaged counsel.^**^ 
 
 e. — in various cases. — An allowance will be striclcen out 
 where the conduct of the party does not commend itself to tlie 
 court.^^^ An additional allowance has been denied a defendant 
 who did not succeed upon the answer first interposed, but upon 
 an amended answer served after an adverse decision in tlie ap- 
 pellate court.^^^ Where a servant failed in her action against 
 lier master for false arrest, an allowance of $1,000 was set aside 
 as savoring of a punishment for the temerity displayed by the 
 plaintiff in suing the defendant.^^'^ 
 
 An allowance should not be made to a defendant because the 
 cause of action does not survive the death of the plaintiff, who 
 
 ^'Roherfs v. New York Elev. R. Co. "^Colion v. Morrissy, 6 N. Y. 
 
 12 Misc. 345, 67 N. Y. S. R. 386, 33 Week. Big. 165. 
 
 N. Y. Supp. 685; Weed v. Paine, 31 -^"Genet v. Delavare d H. Canal 
 
 Hun, 10, 13 Abb. N. C. 200; Union Co. 49 App. Div. 645, 63 N. Y. Supp. 
 
 Ins. Co. V. Van Rensselaer, 4 Paige, 230. 
 
 85. ^^"Dann v. Wormser, 38 App. Div. 
 
 ^^'Gorilnn v. F^tronfj, 15 App. Div. 400, 56 N. Y. Supp. 474. 
 519, 44 N. Y. Supp. 481. 
 
 ^^''fJcar/rist v. Sigrist. 20 App. Div. 
 536, 46 N. Y. Supp. 949.
 
 ADUITIONAL AIJ.OWANCES. 385 
 
 had a good cause of action.-^^ A trustee ought not to be made 
 to pay an additional allowance, where he defends an action in 
 the interest of others r''- or to settle the right to the fund.^^^ An 
 allowance to all the parties, which exceeds 5 per cent of the sum 
 involved, will be reduced to the legal amount of 5 per cent upon 
 the sum involved. ^^* 
 
 313. Allowances in special proceedings. — The same limit as to 
 allowances applies in special proceedings as in actions. An al- 
 lowance in excess of the legal limit ^vill be reduced by the appel- 
 late court.^^^ 
 
 An extra allowance cannot be made in a special proceeding,^^® 
 where tlie costs are fixed by § 3240 of the Code of Civil Proced- 
 ure.^^^ Except in the first and second judicial district in a 
 special proceeding by certiorari to review an assessment under 
 chap. 269 of the Laws of 1880, and acts amending the same, 
 the court may allow an additional allowance. Under § 3372 of 
 the Code of Civil Procedure an additional allowance may be 
 granted to a defendant in a proceeding instituted under the con- 
 demnation law. A proceeding taken under other acts, although 
 for the condemnation of property, do not come within the pur- 
 view of § 3372 of the Code of Ci^^l Procedure, and an allowance 
 cannot be made therein. ^^^ 
 
 314. Additional allowances as a matter of right. — In certain 
 actions the plaintiff is entitled to certain percentages if he re- 
 
 ^'McKeen v. Fish, 33 Hun, 28. ""^Re Grade Crossing Comrs. 20 
 
 '^GraJiam v. New York Life Ins. £ App. Div. 271, 46 N. Y. Supp. 1070; 
 
 T. Co. 46 Him, 261. Re IJolden, 126 N. Y. 589, 26 N. Y. 
 
 =»'FieW V. New York, 38 Hun, 590. S. R. 507, 27 N. E. 1063; Re Simp- 
 
 '"^Neio York Breiceries Co. v. son, 26 Hun, 459. 
 
 Nichols, 55 N. Y. S. R. 179, 25 N. Y. '"'"Re Brooklyn, 148 N. Y. 107, 42 
 
 Supp. 425; Eraser v. McNaughton, N. E. 413. 
 
 58 Hun, 30, 33 N. Y. S. R. 347, 11 '''/?e Brooklyn, 148 N. Y. 107, 42 
 
 N. Y. Supp. 384: Moore v. Appleby, N. E. 413. 
 108 N. Y. 237, 15 N. E. 377. 
 
 ^^''Hynes v. McDermott, 14 Daly, 
 104, 3 N. Y. S. R. 582. 
 COSTS 25.
 
 oSG THE LAW OF COSTS IN JNEW YORK. 
 
 covers costs. These allowances are contained in § 3252 of the 
 Code of Civil Procedure, which is as follows : ''Wliere the action 
 is brought to foreclose a mortgage upon real property, or for 
 tJie partition of real property, or to procure an adjudication 
 upon a will or other instrument in writing, or to compel tJie 
 determination of a claim to real property, or where, in any 
 action, a warrant of attachment against property has been issued, 
 the plaintiff, if a final judgment is rendered in his favor, and he 
 recovers costs, is entitled to recover, in addition to the costs pre- 
 scribed in the last section, the following percentages, to be es- 
 timated upon the amount found to be due upon the mortgage ; 
 or the value of the property partitioned, affected by the adjudi- 
 cation upon the will or other instrument, or the claim to which 
 is determined; or the value of the property attached, not ex- 
 ceeding the sum recovered or claimed ; as the case may be : 
 
 "Upon a smn not exceeding $200, 10 per cent. 
 
 "Upon an additional sum not exceeding $400, 5 per cent. 
 
 "Upon an additional sum not exceeding $1,000, 2 per cent. 
 
 "Where such an action is settled before judgment, the plaintiff 
 is entitled to a percentage upon the amount paid or secured 
 upon the settlement, at one half of those rates. In an action to 
 foreclose a mortgag-e upon real property, where a part of the 
 mortgage debt is not due, if the final judgment directs the sale 
 of the whole property, as prescribed in § 1637 of this act, the 
 percentages specified in this section must be computed upon the 
 whole sum unpaid upon the mortgage. But if it directs the sale 
 of a part only, as prescribed in § 1636 of this act, they must be 
 computed upon the sum actually due ; and if the court thereafter 
 grants an order, directing the sale of the remainder, or a part 
 thereof, the percentages must be computed upon the amount 
 then due : but the aggregate of the percentages shall not exceed 
 the sum which would have been alloAved if the entire sum se- 
 cured by the mortgage had been due when final judgment was
 
 ADDITIONAL ALLOW AX CJ:S. 387 
 
 rendered." These allowances are a matter of right to die plain- 
 tiff if he recovers conts. i^o motion or order is necessary, and 
 the clerk must tax these allowances as of course."'^""* These al- 
 lowances can be taxed only by the plaintiff.^"" But he must re- 
 cover costs to be entitled to tax these allowunces.^'^^ 
 
 These allowances cannot be taxed in any cases other than 
 those mentioned in the statute. The words "'to compel the de- 
 tennination of a claim to real property" have a definite meaning, 
 and refer only to an action in which the parties must assert their 
 claim to the real property or be barred from asserting any claim 
 to that property in the future."-'^ An allowance cannot be taxed 
 in an action to foreclose a mechanic's lien,^^^ nor to compel the 
 specific performance of a land contract,"*^^ nor to restrain the 
 foreclosure of a mortgage,^''^ nor to set aside a conveyance as 
 fraudulent.^"^ 
 
 315. Additional allowances in attachment actions. — The allow- 
 ance granted in attachment actions under § 3252 of the Code of 
 Civil Procedure can be taxed only when the property is at- 
 tached,^*^'^ or where the attachment is issued and is not set aside 
 pending the action.^"^ Where an attachment is vacated upon 
 the defendant giving a bond, the allowance is properly computed 
 upon the amount of the bond, which tfjok the place of the prop- 
 erty.309 
 
 The amount of the recovery is not the value of tlic property 
 
 ^Bunt V. Middleirook, 14 How, ^"8proiuj v. Snyder, 6 How. Pr. 11, 
 
 Pr. EOO. N. Y. Code Eep. N. S. 178. 
 
 ^Devlin v. New York, 15 Abb. Pr. '-^Buchanan v. Morrell, 6 Duer, 
 
 N. S. 31. 658, 13 How. Pr. 296. 
 
 ^^Williams v. Eernon, 13 Abb. Pr. "^Tisher v. English, 4 Month. L. 
 
 297; Eotaling v. Marsh, 14 Abb. Pr. Bull. 37. 
 
 161, Eeversing 13 Abb. Pr. 297; '"Hselin v. Graijdon, 26 How. Pr. 
 
 Downing v. Marshall, 37 N. Y. 380. 05. 
 
 ""^-Wright V. Reusens, 39 N. Y. S. ^''Hannover yat. Bank v. Linne- 
 
 R. 802, 15 N. Y. Supp. 590. worth, 7 Hun, 235; Woodward v. 
 
 ^"'Randolph v. Foster, 3 E. D. Grier, 2 E. D. Smitli, 51, 2 N. Y. 
 
 Smith, 648, 4 Abb. Pr. 262. Code Rep. 13 : Jackson v. Figanlcre, 
 
 "^Weeks v. Southwick, 12 How. Pr. 15 How. Pr. 224: Pratt v. Conkey, 15 
 
 170. How. Pr. 27.
 
 388 THE LAW OF COSTS IN NEW YOKK. 
 
 attached within § 3252 of the Code of Civil Procedure. Wliere 
 the sheriff does not make a return with customary appraisal of 
 "value, the defendant should show, by affidavit or otherwise, tlie 
 value of the property attached. Where the property attached ex- 
 ceeds in value the amount of the recovery, the allowance should 
 be computed upon the amount of the recovery.^^*^ Discontinu- 
 ance upon the payment of costs in an attachment action entitles 
 the plaintiff to include a full allowance.^^^ The plaintiff has 
 no right to this allowance in attachment, unless he recovers a 
 judgment, or there is a settlement which recognizes that he 
 would be entitled to a judgment.^^^ 
 
 ^"Fetchman v. Davenport, 8 N. Y. ^^-Pratt v. Conkey, 15 How. Pr. 27; 
 
 Civ, Proc. Rep. 220, note; Brace v. Bosttmck v. Tioga R. Co. 17 How. 
 
 Beatty, 5 Abb. Pr. 221. Pr. 456. Contra, Gelpeck v. Leather 
 
 "^Broion v. Saferjuard Ins. Co. 7 Cloth Co. 12 Abb. Pr. 3G1, note. 
 Abb. Pr. 345.
 
 CHAPTER XXV. 
 
 SEVERAL CAUSES OF ACTION; DIFFERENT PLAINTIFFS OR DE- 
 FENDANTS ENTITLED TO DIFFERENT RELIEF. 
 
 316. When several causes are united in one action. 
 
 a. Statute. 
 
 b. What recovery the defendant must have to entitle him to costs. 
 
 c. Action in conversion to recover several chattels. 
 
 d. When the action is in equity. 
 
 317. Where two actions are tried together. 
 
 3 IS. Where the plaintiff wins against some of the defendants and loses as 
 to others. 
 a. In general. 
 h. Wliere all the defendants have the same attorney. 
 
 c. W'here the defendants appear by different attorneys. 
 
 d. Costs on appeal. 
 
 319. When costs are allowed upon the successful plea of infancy. 
 
 320. When costs are allowed against a codefendant. 
 
 321. Rights and liability of codefendants when one suffers default and the 
 
 other contests the action. 
 
 322. Costs where plaintiff recovers judgment against all the defendants. 
 
 316. When several causes are united in one action, a. Stat- 
 ute. — Section 3234 of the Code of Civil Procedure is as fol- 
 lows: "In an action specified in § 322S 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 of the issues, and the defendant upon the other 
 or others, each party is entitled to costs against the adverse party, 
 unless it is certified tliat the substantial cause of action was the 
 same upon 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 offsetting them 
 against, the sum awarded to the prevailing party, or otherwise, 
 as the case requires, but this section does not entitle a plaintiff 
 to costs in a case specified in subd. 4 of § 3228 of this act, where 
 
 he is not entitled to costs, as prescril^ed in tliat subdivision." 
 
 389
 
 390 THE LAW OF COSTS IN NEW YOKK. 
 
 I. What recover;! the defendant must have to entitle him to 
 costs. — To entitle the defendant to costs in an action where tlie 
 complaint sets up two or more causes of action, and the plaintiff 
 does not recover on all, but the defendant recovers on one or 
 more, there must be an affirmative verdict on the merits for the 
 defendant, so tliat it will be a bar to another action on the same 
 cause of action. A failure of proof on the part of the plaintiff^ 
 or a direction of nonsuit by the court is not sufficient.^ If an 
 action is brought to recover two different things, for each of 
 which an action might be maintained, but the complaint states 
 but one cause of action, and the plaintiff succeeds as to one or 
 more and the defendant succeeds as to one or more, the plain- 
 tiff alone is entitled to costs. The complaint must set forth 
 separately two or more causes of action to permit the defendant 
 to recover costs when he succeeds as to a part of the matter at 
 issue.^ Where the defendant has an affirmative verdict or find- 
 ing in his favor on the merits upon any of the causes of action 
 set forth in the complaint, he is entitled to costs, although the 
 plaintiff is entitled to judgment on other causes of action.* 
 
 ^Reilly v. Lee, .33 App. Div. 201, Supp. 508; McCarthy v. Innis, 61 
 
 28 N. y. Civ. Proc. Rep. 170. G N. Y. Hun, 354, 21 N. Y. Civ. Proc. Rep. 
 
 Anno. Gas. 136, 53 N. Y. Supp. 336. 333, 40 N. Y. S. R. 682, 15 N. Y. 
 
 ^Bnrvs v. Delaware, L. d W. R. Co. Supp. 855. 
 135 N. Y. 268, 48 N. Y. S. R. 106, ^Newell Universal Mill Co. v. Mux- 
 31 N. E. 1080; Heath v. Forhes, IS low, 115 N. Y. 170, 17 N. Y. Civ. 
 N. Y. Civ. Proc. Rep. 207, 11 N. Y. Proc. Rep. 238, 24 N. Y. S. R. 545, 
 Supp. 87: Cooper v. Jolly, 30 Hun, 21 N. E. 1048. In eflfect overruling 
 224, Affirmed in 96 N. Y. 667 ; Briygs Coon v. Diefendorf, 8 N. Y. Civ. Proc. 
 V. Allen, 4 Hill, 538: Williard v. Rep. 293, 2 How. Pr. N. S. 389. The 
 Sirachan, 3 N. Y. Civ. Proc. Rep. latter case was based very largely 
 452; Crosley v. Cobb, 42 Hun, 166; upon Aclcerman v. De Lude, 36 Hun, 
 Reed v. Batten, 17 N. Y. Civ. Proc. 44, which was expressly overruled in 
 Rep. 272, 6 N. Y. Supp. 708, not the priiieipal ease. Barlow v. Bar- 
 following Blufthfield v. Blashficld, 41 low, 35 Hun, 50; Bull v. Ketchum, 2 
 Him, 249; Durant v. Abendroth, 13 Denio, 188. 
 
 N. Y. Civ. Proc. Rep. 434 ; Crittenden ■^Welling v. Ivoroyd Mfg. Co. 15 
 
 V. Crittenden, 1 Hill, 359; People v. App. Div. 116, 4 N. Y. Anno. Cas. 
 
 Feeler, 12 Wend. 480; Qiiinby v. 145. 44 N. Y. Supp. 374; McCarthy 
 
 Clafiin, 39 N. Y, S. R. 793, 15 N. Y. v. Innis, 61 Hun, 354, 15 N. Y. Supp.
 
 SEVERAI, CAUSES OF ACTION". 391 
 
 Costs awarded to both parties in the same action should be set 
 off against each other and judgment entered for the difference.* 
 "Where a plaintiff set forth in her complaint three causes of 
 action to recover the same premises, claiming a dower interest 
 in the first count, and in fee in the other two, and she won on the 
 first, the defendant was held entitled to costs.® Where a plain- 
 tiff sets forth three causes of action, claiming a different frac- 
 tional part of the same property in each count, and each count 
 requires the same proof, but they differ from one another to 
 meet the uncertain views of the jury upon a conflict of the evi- 
 dence, or the opinion of the court upon some question of law, the 
 defendant is not entitled to costs where the plaintiff recovers on 
 only one of the counts."^ Section 3234 of the Code of Civil Pro- 
 ■cedure is substantially the same as 2 Rev. Stat. 617, § 26 (2 
 Edm. 641) ; therefore cases decided under the Revised Statute 
 are applicable to the law at the present time. When the Code 
 of Procedure was enacted, this provision was repealed, and was 
 not incorporated therein. Decisions rendered while the Code of 
 Procedure was in force are, therefore, not now applicable.* 
 Where the complaint is amended at the trial so that the plaintiff 
 may recover on all the causes of action set forth, the defendant 
 is not entitled to costs, although he would have succeeded upon 
 the issues presented by the original pleadings.^ 
 
 c. Action in coiiversion to recover several chattels. — Where an 
 
 8.55; Cooper v. Jolly, 30 Hun, 224, Hudson v. Guttenberg, 9 Abb. N. C. 
 
 Affirmed in 9G N. Y. 667 ; Dougherty 415. 
 
 V. Metropolitan L. Ins. Co. 3 App. ^Genet v. Delmoare d- H. Canal Co. 
 
 Div. 314, 38 N. Y. Supp. 258; Crane 136 N. Y. 217, 49 N. Y. S. R. 201, 
 
 V. Miller, 27 App. Div. 630, 50 N. Y. 32 K E. 851. 
 
 Supp. 675: Browning v. New York, '^Crittenden v. Crittenden, 1 Hill, 
 
 L. E. d ^Y. R. Co. 64 Hun, 513, 22 359. 
 
 N. Y. Civ. Proc. Rep. 193, 46 N. Y. 'Martin v. Martin, 3 How. Pr. 202. 
 
 S. R. 505, 19 N. Y. Supp. 453; Blash- ^Watson v. Gardiner, 50 N. Y. 671 ; 
 
 field V. Blash field, 41 Hun, 249; Ury Stoddard v. Clarice, 9 Abb. Pr. N. S. 
 
 V. Wilde, 15 N. Y. Civ. Proc. Rep. 310. 
 
 451, 19 X. Y. S. R. 674, 3 N. Y. Supp. 'Dougherty v. Metropolitan L. Ins. 
 
 791; Mooshrngger v. Kaufman, 7 Co. 3 App. Div. 313, 73 N. Y. S. R. 
 
 App. Div. 380, 40 N. Y. Supp. 213; 739, 38 N. Y. Supp. 258.
 
 392 THE LAW OF COSTS IN NEW YOIIK. 
 
 action is brought to recover several cliattels, and tlie complaint 
 states but one cause of action, if the plaintiff recovers property 
 of the value of more than $50, the defendant is not entitled to 
 costs. The complaint must set forth separately two or more 
 causes of action, to permit the defendant to recover costs when he 
 succeeds as to a part of the property.^*^ The defendant is not 
 without protection in such a case, as he can make an offer of 
 judgment which will protect him as to future costs.^^ 
 
 d. When the action is in equity. — In equity, costs may be re- 
 fused to both parties, where each party recovers on one or more 
 causes of action.^^ The certificate mentioned in § 3234 of the 
 Code of Civil Procedure is meant to cover those cases where the 
 pleader has set forth the same cause of action in several differ- 
 ent ways, and not two distinct causes of action in which the same 
 legal conclusion arises.^^ 
 
 317. Where two actions are tried together. — Where two actions 
 at law are tried together, and it is stipulated that one action 
 shall abide the event of the other a full bill of costs can be taxed 
 in each case, including a trial fee.^^ It was held that, where 
 parties stipulated tliat a certain action be stayed till the determi- 
 nation of another action, and that the result in the latter case 
 be adopted as final in the former case, and that either party 
 have a right to enter judgment therein the same as if a trial had 
 been had therein, the successful party was entitled to costs up 
 
 ^"KUhurn v. Lowe, 37 Hun, 237; McDonald, 9 Hun, 23; Hudson v. 
 
 Newell Universal Mill Co. v. Mux- OiUtenierg, 9 Ahh. "N. C. il5; Barker 
 
 low, 115 N. Y. 170, 17 N. Y. Civ. v. Laney, 7 App. Div. 352, 40 N. Y. 
 
 Proe. Rep. 238, 24 N. Y. S. R. 545, Supp. 66. 
 
 21 N. E. 1048, Overruling Ackerman "Teator v. Neic York Mut. Sav. & 
 
 V. De Ludc, 36 Hun, 44. Loan Asso. 32 Misc. 542, 67 N. Y. 
 
 "A'eetZ V. Batten, 22 Abb. N. C. 69, Supp. 15. 
 
 17 N. Y. Civ. Proe. Rep. 272, 6 N. Y. "A'oc/i. v. Koch, 1 City Ct. Rep. 
 
 Supp. 708, 255; Eildehrant v. Crawford, 6 Lans. 
 
 ^^Tucker v. Utica, 35 App. Div. 502; Hauselt v. Godfrey, 3 '^. Y. Civ. 
 
 173, 54 N. Y. Supp. 855; West v. Proe. Rep. 116; Law v. Jackson ex 
 
 Utica, 71 Hun, 540, 54 N. Y. S. R. dem. Lansing, 2 Wend. 209. 
 Oil, 24 N. Y. Supp. 1075; Law v.
 
 SEVERAL CAUSES OF ACTIo:X. 393 
 
 to tlie time of the stipulation, and a trial feo.^-'' Costs in such 
 cases follow the right to a judgment, unless the parties, by stip- 
 ulation, have waived their right to costs. "Where a plaintiff 
 brings several actions to recover for the same cause of action, 
 and recovers damages, he is entitled to a full bill of costs in one 
 action and his disbursements in the others.-'^ In equity the court 
 will make such an allowance of costs as justice requires, in spite 
 of the stipulation of the parties. In such actions there is no 
 absolute right to costs, and parties cannot, by stipulation, take 
 away from the court its right to exercise its discretion. Where 
 four tenants in common brought four separate actions for an 
 injunction, or damages to their property, which actions were 
 tried as one, and but one record upon appeal was made, but 
 one bill of costs was allowed, because they could all have joined 
 in one action.-^' 
 
 A plaintiff was allowed two bills of costs where he brought two 
 actions upon two separate judgments to set aside a transfer as 
 being in fraud of creditors, and succeeded in his actions. ^^ 
 
 Where several plaintiffs brought an action against the de- 
 fendant for damages which acciiied to them severally, the plain- 
 tiff who won was held entitled to costs, and the defendant was 
 held entitled to costs against the plaintiffs he defeated. The de- 
 fendant should enter one judgment against all of the unsuccess- 
 ful plaintiffs. The remedy where he fails to do this is to apply 
 to the court to correct this irregularity, and not to move to set 
 the judgment aside. ^'^ 
 
 318. Where the plaintiff wins against some of the defendants 
 and loses as to others. a. In general. — In an action at law 
 against several defendants, wdiere the plaintiff succeeds against 
 
 ''Wmlenreid v. WUson, 2 N. Y. Co. 22 App. Div. 501, 48 N. Y. Siipp. 
 
 Wpok. Die:. 108. 80. 
 
 ^"ifooshrvofjer v. Kaufman, 7 App. ^'Clark v. MacDonald, G2 Hun. 149, 
 
 Div. 380, 40'n. Y. Supp. 213; QuhiY. 41 N. Y. S. R. 753, 16 N. Y. Supp. 
 
 Bowe, 11 Abb. N. C. 115, 10 Daly, 493. 
 
 505. ^^KnoivUon v. Pierce, 41 How. Pr. 
 
 "^YoodtoortJl V. Brool-hjn Elev. R. 361.
 
 394 THE LAW OF COSTS IK NEW YORK. 
 
 one or more defendaiits, but not against all, lie is entitled to 
 costs, as of course. In such a case costs may be awarded to the 
 successful defendants in the discretion of tlie trial court, in 
 actions at law or in equity, and upon application to it.^" The 
 application must be made to the court, although the action is 
 tried before a referee.^^ 
 
 To entitle a defendant to costs against the plaintiff in such 
 cases it must apjDoar that he did not unite in an answer and was 
 not united in interest with a defendant against whom the plain- 
 tiff was entitled to costs.^^ 
 
 b. Where all the defendants have the same attorney. — It is 
 fatal to the rights of a successful defendant that he has united 
 in an answer with an unsuccessful defendant.^' In such a case 
 the direction of the court that he have costs is of no avail. The 
 court has no power to award him costs.^^ It has been held that 
 if they answer separately, setting up different defenses, but by 
 the same attorney, it is sufficient to allow the successful defend- 
 ant costs.^'' Where the summons is served on the defendants at 
 such long intervals that the attorney for both defendants is com- 
 pelled to serve separate answers, it is proper to allow the de- 
 fendants, upon their succeeding in the action, two bills of 
 cost-s.^^ Where the successful defendant is alloAved costs, he can 
 
 """Tan Gelder v. Van Gelder, 84 N. N. Y. Week. Dig. 390; Churchill v. 
 
 Y. 658; Williams v. Blnmer, 49 How. Wagner, 23 Misc. .595, 52 N. Y. Supp. 
 
 Pr. 12; Marks v. Bard, 1 Abb. Pr. 252. 
 
 63 ; Williams v. Eorgan, 13 How. Pr. ^^Krafft v. Wilson, 3 How. Pr. N. 
 
 138; Code Civ. Proc. § 3229; Allis S. 18, 8 N. Y. Civ. Proc. Rep. 359; 
 
 V. Wheeler, 56 N. Y. 50; Busted v. Downing v. Marshall, 37 N. Y. 380; 
 
 Van Ness, 1 App. Div. 120, 72 N. Y. Allis v Wheeler, 56 N. Y. 50; Park 
 
 S. R. 28, 36 N. Y. Supp. 1043; Fix- v. Spaulding, 10 Hun, 128. 
 ley V. Rockioell, Sheldon, 267; Eau- -"Pierce v. Broivn, 8 Jones & S. 
 
 self V. Vilmar, 76 ISl. Y. 630. 398; Eodgkins v. Mead, 17 K Y. Civ. 
 
 "iYeto York Elev. R. Co. v. PhUa- Proc. Rep. 16, 25 N. Y. S. R. 937, 5 
 
 d-elphia Architeciural Iron Co. 18 N. X. Y. Supp. 435; Wheeler v. Eeer- 
 
 Y. Week. Dig. 325. mans, 3 Sandf. Ch. 597 ; Zeisler v. 
 
 "^Code Civ. Proc. § 3229; Allis v. SSicinmann, 21 Jones & S. 184; 
 
 Wheeler, 56 N. Y. 50; Park v. Walker v. Russell, 16 How. Pr. 91, 
 
 Spaulding, 10 Hun, 128. 7 Abb. Pr. 452, note. 
 
 ^^^awyer v. Thurher, 14 N. Y. Civ. ""Mazet v. Grow, 24 Abb. N. C. 374, 
 
 Proc. Rep. 204: Frazer v. Eunf, 18 18 X. Y. Civ. Proc. Rep. 178, 31 N.
 
 SEVEIJAJ. CAI SICS OF ACTION. 395 
 
 tax a full bill of costs, althougli the plaintiff is limitod in the 
 amount of his costs against the unsuccessful defendant to a sum 
 equal to the verdict.^^ 
 
 If one bill of costs is awarded to two successful defendants, 
 and upon the appeal the judgnnent is affirmed, as to one, without 
 costs, but reversed as to the other, with costs to abide the event, 
 tlie successful defendant may collect the costs awarded to both 
 defendants, and may maintain an action on the bond given to 
 both upon appeal.^^ The defeated defendant is not a necessary 
 party to such an action. When the judgment was reversed, the 
 defeated defendant ceased to have any interest in the costs or 
 to the undertaking on appeal.-^ There can be no doubt what- 
 ever that these costs are not given as of course, and there seems 
 to be no good reason why they should not be awarded to a suc- 
 cessful defendant, who is not united in interest and does not 
 unite in an answer with an unsuccessful defendant, but employs 
 the same attorney. Under the Code of Procedure the successful 
 defendants were entitled to costs against the plaintiff, as of 
 course.^'^ The old Code also allowed costs to each successful de- 
 fendant who put iu a separate answer, although they all had the 
 same attorney.^^ 
 
 c. Where the defendants appear hy different attorneys. — ^A 
 defendant who is not united in interest with the other defend- 
 ants, and appears by separate attorney, will usually be allowed 
 his costs in case he succeeds, whether the other defendants suc- 
 ceed or not.^^ If the attorney for one of the defendants with- 
 
 Y. S. R. 972, 10 K Y. Supp. 743; ^"Daniels v. Lyon, 9 N. Y. 549; 
 
 Lindslay v. Deafendorf, 43 How. Pr. Gardner v. Waller, 22 How. Pi-. 405. 
 
 W. ^'Pierce v. Broicn, 8 Jones & S. 
 
 ""Stone V. Duffy, 3 Sandf. 761, N. 398. 
 
 Y. Code Rep. N. S. 129. -Forrest v. Thompson, 8 N. Y. S. 
 
 ^Fritchie v. EoJden, 19 N. Y. Civ. R. 345; Lane v. Van Orden, 11 Abb. 
 
 Proc. Rep. 84, 32 N. Y. S. R. 276, 11 N. C. 228, 63 How. Pr. 237; Royce 
 
 N. Y. Supp. 171. V. Jones, 23 Hun, 452; Delaware, L. 
 
 "^Johnstone v. Conner, 13 N. Y. rf- W. R. Co. v. Burlcard, 40 Hun, 625, 
 
 Civ. Proc. Rep. 19, 10 N. Y. S. R. 702. 2 jST. Y. S. R. 184; Hinds v. Myers,
 
 396 THE LAW OF COSTS I^' ^'E\V YOKIC. 
 
 draws from the case upon appeal, he will not be allowed costs 
 after such withdrawal."" The right to separate bills of costs- 
 on the part of the defendants is determined bv the manner in 
 which they answer the complaint. The fact that they appear 
 by diiferent attorneys upon an appeal cannot change their right 
 to costs, as determined by their appearance in the trial court^* 
 
 If separate bills of costs are awarded, only one judgment 
 should be entered and the disbursements in the bills of costs 
 should not be duplicated.^^ There can be only one judgment if 
 tlie plaintiff wins as to one defendant and loses as to the other.^*^ 
 
 Costs will not be awarded to several defendants who have ap- 
 peared by separate attorneys, when the severance is made for 
 the purpose of increasing costs.^'^ Where a complaint is dis- 
 missed upon tlie call of the calendar on the ground that it does 
 not state a cause of action, only one bill of costs will be allow^ed 
 to several defendants who appeared by separate attorneys. The 
 complaint being clearly insufficient the court could have passed 
 upon the question upon a joint demurrer. '^^ The burden rests 
 upon the plaintiff to show that the severance w^as made for the- 
 purpose of increasing the costs.^^ It is usually fatal to an al- 
 lowance to the successful defendant of a separate bill of costs 
 to the several defendants, that the attorneys who appear for the 
 several defendants are partners,^" or that one of the attorneys 
 
 4 How. Pr. 35G, 3 N. Y. Code Rep. Lindslay v. Deafendorf, 43 How. Pr. 
 
 48; Decker v. Gardiner, 8 X. Y. 29; 90; New York & N. II. R. Co. v. 
 
 Neio York & IV. E. R. Co. v. Schuyler, Schuyler, 29 How. Pr. 89 ; Slater 
 
 29 How. Pr. 89; Olifiers v. Belmont, Bank v. Sturdy, 15 Abb. Pr. 75. 
 
 15 Misc. 120, 71 N. Y. S. R. 836, 36 ^Bailey v. Johnson, 1 Daly, 61. 
 
 N. Y. Supp. 813; Eequembourg v. ^"Delaicare, L. d- W. R. Co. v. Burk- 
 
 Bookstaver, 54 Hun, 88, 26 N. Y. S. nrd, 40 Hun, 625; Wolf v. Di La- 
 
 R. 479, 7 N. Y. Supp. 217. renzo, 22 Misc. 323, 49 N. Y. Supp. 
 
 ""^Wheatland v. Taylor, 20 X. Y. 191; Pickert v. Windecker, 73 Hun, 
 
 Week. Dig. 33. 476, 56 N. Y. S. R. 12, 26 N. Y. Supp. 
 
 ^^Wilhur V, ^Yil1sey, 13 How. Pr. 437; Forrest v. Thompson, 8 N. Y. S, 
 
 506. R. 345. 
 
 ^Ten Broeclc v. Paifje, 6 Hill, 267. "^Crofts v. Rockefeller, 6 How. Pr. 
 
 ^•"Wehh V. Bulger, 4 Hill, 588. 9, N. Y. Code Rep. N. S. 177; Brooh- 
 
 ^'Royce v. Jones, 23 Hun, 452; icay v. Jeioett, 16 Barb. 590.
 
 SEVERAL CAUSES OF ACTION. 397 
 
 is a clerk for the other attorney,^^ or that the attorneys occupy 
 the same office,^^ or that one attorney was retained by the attor- 
 ney for another defendant.**^ Defendants who are partners, or 
 who were partners at the time the liability was incurred, will 
 not usually be allowed separate bills of costs; but where their 
 relations are now hostile, or they reside at a distance from each 
 other and the court can see that their appearance by different 
 attorneys is not made to oppress the plaintiff, but to protect their 
 own interests, separate bills of costs will usually be allowed.** 
 The fact that the defendants ceased to be partners before the 
 liability was incurred is usually sufficient to place the burden 
 on tlie plaintiff to show that the severance was collusive."*^ Where 
 one bill of costs is allowed to tvvo defendants, and one of the 
 defendants enters up judgment taxing the entire bill of costs, 
 the other defendant cannot enter up judgment taxing another 
 bill of costs. Only one final judgment can bo entered in an 
 action. If the one already entered is not proper, it should be 
 corrected on motion.*^ 
 
 Where, after service of the answer, one attorney withdraws 
 and another attorney appears for his client and all the other 
 defendants, costs will usually be allowed to the client whose at- 
 torney witlidrew, up to such withdrawal, and a full bill of costs 
 will be allowed for the services of the other attorney."*^ The 
 plaintiff' can tax but one bill of costs where he succeeds as to 
 all the defendants, although they have appeared by different at- 
 torneys.*^ Where the plaintiff accepts separate offers of judg- 
 
 *^Ilowell V. Veith, 2 N. Y. City Ct. ^""Arnow v. Fergnson, 50 N. Y. S. 
 
 Rep. 405; Perry v. Livingston, G E.. 509, 21 N. Y. Supp. 195. 
 
 How. Pr. 404. ^X'usteUanos v. Beauville, 2 Sandf. 
 
 ^"Slater Bank v. Sturdy, 15 Abb. 670; Harper v. Vhamherlain, 14 Abb. 
 
 Pr. 75. Pr. 408. 
 
 ^^Yilliams v. Cassady, 22 Hun, 180, '"Latham v. BUss, 13 How Pr. 416: 
 
 59 How. Pr. 490. Codding v. Scott, 1 Misc. 485, 49 N. 
 
 "^Bridgeport F. tf- M. Ins. Co. v. Y. S. R. 884, 21 N. Y. Supp. 473; 
 
 Wilson, 7 Bosw. 699, 12 Abb. Pr. 209. Mechanics' & T. Nat. Bank v. Wi- 
 
 20 How. Pr. 511. riant, 16 N. Y. S. R. 904, 1 N. Y. 
 
 "''Milligan V. Jtobinson, ^S How. Fr. Supp. 659; Phipps v. Van Cott, 15 
 
 380. How. Pr. 110; Everson v. Gehrmnn,
 
 o9S THE LAW OF COSTS IN NEW YOKK. 
 
 ment made by tlie defendants, and tlien obtains an order sever- 
 ing the action, he is only entitled to one bill of costs. "^^ Under 
 the old civil damage act, judgments could be taken against the 
 defendants in different amounts, and separate bills of costs could 
 be taxed against them.^*^ The order of the judge granting or 
 refusing separate bills of costs, or awarding costs to certain de- 
 fendants and refusing them to others, is final until reversed, and 
 a judgment entered contrary to such order will be set aside as 
 irregular,^^ Costs may be awarded to tbe several defendants at 
 any time after judgment, and where the plaintiff moves to set 
 aside the costs taxed by the separate defendants on the ground 
 that none had been allowed, the court, upon the hearing of the 
 motion, has power to finally dispose of the question of costs.^^ 
 
 d. Costs on appeal. — Where all the defendants unite in one 
 appeal and the judgment is reversed, with costs to the appellants,, 
 only one bill of costs can be taxed,^^ although the court below 
 had granted the defendants separate bills of costs.^^ 
 
 319. When costs are allowed upon the successful plea of in- 
 fancy. — A defendant who succeeds in establishing his plea of 
 infancy is entitled to the same costs as if he had succeeded upon 
 any other defense where costs are a matter of right, and in an 
 action where costs are in tJie discretion of the court he may be 
 allowed costs if he establishes that fact on the trial. ^^ If the 
 plaintiff had wished to avoid paying costs, he should have moved 
 to discontinue when the answer was served, and not forced the 
 defendant to establish his defense."^ If the plaintiff is allowed 
 
 2 Abb. Pr. 413; Buell v. Gay, 13 ^V on Keller \. Schulting, ^f> 'iio\r. 
 
 How. Pr. 31. Pr. 139. 
 
 ^''Codding v. Bcott, 1 ]\Iisc. 485, 49 ^^Siveet v. Mowry, 49 N. Y. S. R- 
 
 N. Y. S. R. 884, 21 N. Y. Supp. 473. 262, 20 N. Y. Siipp. 294, Affirmed in 
 
 ^Mclntyre v. Wyjme, 21 N. Y. Civ. 138 N. Y. 650, 53 N. Y. S. R. 87, 34 
 
 Proc. Rep. 208, 16 N. Y. Supp. 540; N. E. 388; Fischer v. Langhcin, 31 
 
 Comstock V. Ealleck, 4 Sandf. 671; Hun, 272. 
 
 Buell V. Gay, 13 How. Pr. 31, contra. ^'Willdow v. BelL 18 How. Pr. 397; 
 
 '^Arnoro v. Ferguson, 5 Silv. Sup. Bank of Attica v. Wolf, 18 How. Pr. 
 
 Ct. 237, 8 N. Y. Supp. 715. 102; Zink v. Attenhurg, IS How. Pr. 
 
 ^•'And^-pirs v. M oiler, 20 N. Y. 108. 
 
 Week. Di". 377. ^Cnyler v. Coats, 10 How. Pr. 14U
 
 SEVKEAL CAUSES OF ACTION. 399 
 
 to proceed to trial -without notice of infancy the court may well^ 
 where costs are in its discretion, refuse to allow costs,^^ or it 
 may refuse costs where the defendant escapes a moral liability 
 upon such a plea.^^ 
 
 320. When costs are allowed against a codefendant. — Costs will 
 not be awarded to one defendant against a codefendant, unless 
 he is a necessary party to the action,^^ and it becomes necessary 
 in the adjustment of the ultimate rights of the parties.^'' 
 
 321. Rights and liability of codefendants when one suffers de- 
 fault and the other contests the action. — A defendant who suc- 
 cessfully defends an action at law, while his codefendant makes 
 default, is not entitled to costs, as of course, but his costs are 
 discretionary with the court under § 3229, of the Code of Civil 
 Procedure. This has been the law since 1851. Before that time 
 he would have been entitled to costs, as of course. *^^ A defend- 
 ant who makes default is liable for the costs incurred by his co- 
 defendant in his unsuccessful efforts in defending the action. ^^ 
 Where one of two or more defendants suffers default, the plain- 
 tiff may enter up judgment against him, with costs; but if the 
 plaintiff does not do this, but waits until tlie issues of the action 
 have been determined, and enters up judgment against all the 
 defendants, his rights against the defaulting defendant under 
 that judgment cease upon the reversal of that judgment by the 
 appellate court. The plaintiff, however, may, upon propei* 
 proof, enter up against the defaulting defendant the same judg- 
 
 Hinds V. Myers, 4 How. Pr. 35G, 3 N. 1 N. Y. Anno. Cas. 18, 63 N. Y. S. 
 
 Y. Code Rep. 48. R. 149, 30 N. Y. Supp. 895; Allis v. 
 
 "Irwin V. O'Connor, 15 N. Y. ^Yheeler, 5Q N. Y. 50; Koijce v. Jones, 
 
 Week. Dig. 124. 23 Hun, 453; Yamaio Trading Co. v. 
 
 ^Yamato Trading Co. v. Hoexter, Hoexter, 44 Hun, 491; Daniels v. 
 
 44 Hun, 491. Lyon, 9 N. Y. 549 (commenced be- 
 
 ^^Roberts v. ^^ew Yorh Elev. R. Co. fore 1851). 
 155 N. Y. 31, 49 N. E. 262. "-Cailvn v. Billings, 4 Abb. Pr. 248,. 
 
 ""People V. Albany £ S. R. Co. 5 13 How. Pr. 511; Warner v. Ford, 
 
 Lans. 25; Bndd v. Munroe, 18 Him, 17 How. Pr. 54; Delatour v. Bricker,. 
 
 316. 2 N. Y. City Ct. Rep. 22. 
 
 '^Eastman v. Gray, 81 Hun. 362,
 
 400 THE LAW OF COSTS IIS' XEW YOItK. 
 
 ment that he might have entered up as soon as the default oc- 
 curred. He may do this at any time, even after the contesting 
 defendants liave obtained final judgment against him.^^ Where 
 one of two or more defendants pays the judgment and costs 
 taken against all the defendants, and the other defendant upon 
 appeal subsequently obtains a new trial, with costs to the defend- 
 ant to abide the event, all questions of accrued costs is at an 
 end. If the successful defendant obtains leave of the court to 
 set up payment by his codefendant, he will, upon proving pay- 
 ment, be entitled to the entire costs of the action.^* Where one 
 defendant demurs and one answers, and the plaintiff is success- 
 ful in both cases, he is entitled to but one bill of costs, with dis- 
 bursements, in the trial court, but to two bills of costs in the ap- 
 pellate court. ^^ 
 
 322. Costs where plaintiff recovers judgment against all the de- 
 fendants. — Where there are two or more defendants who appear 
 by different attorneys, and the plaintiff recovers judgment 
 against all of them, he is entitled to tax but one bill of costs.^** 
 There are two decisions to the contrary. One was decided in 
 1851 under the Code of Procedure and is now of very little 
 authority.^^ The other case was an action under the civil dam- 
 age act, where the action was brought against the liquor dealer 
 and his landlord. The jury was instructed that they might 
 bring in a verdict in different amounts against the two defend- 
 ants. Such a verdict was rendered, and tlie court held that sepa- 
 rate judgments, \vith full costs against each, might be entered.^^ 
 These cases do not change the rule as above stated. 
 
 '^HoioJc V. Bishop, 10 Hun, 509. nanf, 16 X. Y. S. R. 002, 1 N. Y. 
 
 ^Broicn v. Richardson, 7 Eobt. 57. Supp. 659; Pratt v. Allen, 19 How. 
 
 "'rratt V. Allen, 19 How. Pr. 450. Pr. 450. 
 
 ^^iiell V. Gay, 13 How. Pr. 31; "Comstoch v. nalleck, 4 Sandf. 
 
 Codding v. Scott, 1 Misc. 485, 49 671. 
 
 N. Y. S. R. 884, 21 N. Y. Supp. 473; "'Mclnfijre v. Wi/nne, 21 N. Y. Civ. 
 
 Mechanics' d T. Nat. Bank v. Wi- Proc. Rep. 208, 16 N. Y. Supp. 540.
 
 CHAPTER XXVI. 
 
 VARIOUS PROVISIONS IN RELATION TO COSTS. 
 
 323. Costs on consolidation of two or more actions. 
 
 324. Costs on severance of an action. 
 
 a. Statute. 
 
 6. In general. 
 
 c. Severance after answer. 
 
 325. Costs upon granting an order of interpleader. 
 
 326. Costs as affected by lack of jurisdiction. 
 
 327. Costs as governed by stipulation. 
 
 328. Commencement of an action without authority. 
 
 329. When the judge informs the jury of the efiect of their verdict upon 
 
 the question of costs. 
 
 330. Costs after entry of judgment. 
 
 331. Costs upon an accounting. 
 
 332. When costs are made payable out of a fund. 
 
 333. Costs payable a guardian ad litem. 
 
 a. Costs allowed to a guardian ad litem. 
 
 b. Amount. 
 
 334. Costs allowed against a general guardian. 
 
 335. Costs in various cases. 
 335a.Voluntary appearance. 
 
 323. Costs on consolidation of two or more actions. — Wlien two 
 or more actions are consolidated under the provisions of § 817 
 of the Code of Civil Procedure, thev are at an end, and only the 
 consolidated action remains. No costs in those actions can be 
 taxed upon the final judgment, unless it is so provided in the 
 order of consolidation.^ If the order does not provide for the 
 costs already accrued, the party feeling aggrieved should ap- 
 peal; otherwise, he is concluded by the order.^ If a consoli- 
 dated action is settled after the amended, complaint and answer 
 
 ^Blale V. Michigan S. & 2V. /. R. ^Train v. Davidson, 11 App. Div. 
 
 Co. 17 How. Pr. 228; German Exch. 027, 42 N. Y. Supp. 1133; Wm. H. 
 
 Bank V. Kroder, 14 J.Iisc. 179, 35 N. Frank Brewing Co. v. New York, 19 
 
 Y. Supp. 380; Ualsey v. McGallum, App. Div. 628, 46 N. Y. Supp. 24. 
 2 N. Y. City Ct. Rep. 338. 
 
 costs 26. 401
 
 402 THE LAW OF COSTS IN NEW YOKK. 
 
 have been served, and before it is placed upon the calendar^ 
 only costs before notice of trial can be taxed, although the origi- 
 nal actions may have been on the calendar.^ Costs of tae mo- 
 tion of consolidation should be granted, unless a satisfactory 
 reason is shown for bringing two actions.* 
 
 324. Costs on severance of an action, a. Statute. — Section 
 3231 of the Code of Civil Procedure provides for costs when the 
 plaintiff brings several actions upon the same claim, and is as 
 follows : "Where two or more actions are brought, in a case speci- 
 fied in § 454 of this act, or otherwise for the same cause of 
 action, against persons who might have been joined as defend- 
 ants in one action, costs, other than disbursements, cannot be re- 
 covered upon the final judgiuent, by the plaintiff, in more than 
 one action, which shall be at his election. But this prohibition 
 does not apply to a case where the plaintiff joins, as defendants,, 
 in each action brought, all the persons liable, not previously 
 sued, who can, with reasonable diligence, be found within the 
 state ; or if the action is brought in the city court of the city of 
 Kew York, or a county court, within the city or county, as the 
 case may be, where the court is located." 
 
 &. In general. — Where the plaintiff brings several actions 
 against several defendants, when one action would have sufficed, 
 he can recover costs, other than disbursements, in but one 
 action.^ This applies to actions for torts, as well as to actions 
 on contract.*^ It does not apply to a case where, upon the motion 
 of one defendant, the complaint is dismissed as to him, but the 
 plaintiff succeeds in reversing that order and ultimately obtains 
 judgment against both defendants in separate actions.'^ Where 
 a plaintiff brings two actions upon two separate judgments to 
 
 ^Hiscox V. New Yorker Staats- Haas, 25 Iliin, 266; Pratt v. Allen,. 
 
 Zeitmui, 3 Misc. 110, 30 Abb. N. C. 19 How. Pr. 450. 
 
 131, 23 X. Y. Civ. Proc. Rep. 87, 52 "Quin v. Bowe, 10 Daly, 505, 11 
 
 N. Y. S. R. 212, 23 N. Y. Supp. 682. Abb. X. C. 115. 
 
 ^Banh of Uniled States v. Strong, Lihhott v. Johnstoxo-n, G. & K. 
 
 Wend. 451. Horse R. Co. 24 Hun, 135. 
 
 'Code Civ. Proe. § 3231; Levin v.
 
 VARIOUS PROVISIONS IN RELATION TO COSTS. 403 
 
 reach tlie same property, and both cases are tried together and 
 he succeeds only as to a part of the property sought to be reach- 
 edj he may be allowed costs in both actions.* 
 
 c. Severance after ansiuer. — AVliere the plaintiff enters up 
 judgment under the provisions of § 511 of the Code of Civil 
 Procedure for the part admitted, and continues the action, he is 
 not entitled to costs upon such entry of judgment. He is only 
 entitled to costs in case he recovers enough on the balance to en- 
 title him to costs.^ If he elects not to continue the action for the 
 balance he is entitled to the same costs as upon the final judg- 
 ment in any other case. 
 
 325. Costs upon granting an order of interpleader, — Costs upon 
 granting an order of interpleader under § 820 of the Code of 
 Civil Procedure 'are in the discretion of the court. The origi- 
 nal defendant, if free from fault p^nd making no claim upon the 
 fund, is not usually compelled to pay costs,^^ but is usually 
 allowed motion costs and costs before notice of trial ($20) out 
 of the fund.-^^ In an action of interpleader the unsuccessful 
 claimant may be compelled to pay, not only the costs of the 
 plaintiff, but also the costs of his codefendant.-'^ By the order 
 of interpleader and service of the supplemental complaint and 
 answer, the action becomes an equitable action, although it was 
 a legal action before, and costs are in the discretion of the court, 
 as in most equitable actions.^^ Section 820 of the Code of Civil 
 
 "Clark V. MacDonald, 62 Hun, 149, "Miller v. De Peyster, 1 Abb. Pr, 
 
 41 N. Y. S. R. 753, 16 N. Y. Supp. 234; Richards v. Salter, 6 Joluis Ch. 
 
 493. 448. 
 
 ^Waite V. F. J. Kaldenherg Co. 68 ^^Yindecler v. Mutual L. Ins. Co. 
 
 Fun, 528, 52 N. Y. S. R. 595, 22 N. 12 App. Div. 73, 43 N. Y. Supp. 358; 
 
 Y. Supp. 1006. Dinley v. McCullar/h, 92 Hun, 454, 
 
 "*S,")Ze?/ V. Equitahle JAfe Assur. 72 N. Y. S. R. 416, 36 N. Y. Supp. 
 
 Soc. 24 Jones & S. 274, 15 N. Y. Civ. 1007; Cronin v. Cronin, 3 How. Pr. 
 
 Proe. Rep. 316, 18 N. Y. S. R. 834, N. S. 184. 9 N. Y. Civ. Proc. Rep. 
 
 3 N. Y. Supp. 8. 137; Bedell v. Hoffman, 2 Paige, 
 
 "Broyer v. Ritter, 34 N. Y. S. R. 199; Clark v. Mosher. 107 N. Y. 118, 
 
 688, 13 N. Y. Supp. 574; Bowery Sav. 1 Am. St. Rep. 798, 14 N. E. 96. 
 Bank v. Mahler, 13 Jones & S. 619, 1 
 Month. L. Bull. 30.
 
 404 THE LAW OF COSTS IN NEW YORK. 
 
 Procedure is substituted for the old action of interpleader and 
 is governed by the same principles.^* 
 
 326. Costs as affected by lack of jurisdiction. — The defendant 
 is entitled to costs upon the dismissal of a complaint because the 
 court has no jurisdiction, when the lack of jurisdiction is not 
 apparent upon the face of the complaint/^ whether such lack 
 is raised by the answer or appears upon the trial.^° The rule 
 that costs cannot be allowed upon the dismissal of a complaint 
 for want of jurisdiction only applies when the lack of jurisdie- 
 tion appears upon the face of tlie summons and complaint.^' 
 
 The plaintiff in bringing the action submits himself to the 
 jurisdiction of the court, and the court has power to award costs 
 against him, although it decides that it has not jurisdiction of 
 the action. ^^ 
 
 327. Costs as governed by stipulation. — The right that parties 
 have or may have to the costs in an action may be waived by a 
 stipulation between the parties. Where the parties stipulate that 
 neither shall have costs of the action, none will be awarded.^* 
 Where the parties upon an appeal stipulated that costs on appeal 
 were to be allowed in the event of the court deciding a certain 
 question, but the case was decided on another point, no costs 
 were allowed to either party.^*^ If a party te an action agrees 
 to pay the costs and disbursements of another party to the action, 
 
 ^*Windecker v. Mutual L. Ins. Co. "Harriott v. "New Jersey R. & 
 
 12 App. Div. 73, 43 N. Y. Supp. 358 : Transp. Co. 1 Daly, 377 ; Malone v. 
 
 Scliell V. Lowe, 75 Hun, 43, 26 N. Y. Clarlc, 2 Hill, 657 ; Humiston v. Bal- 
 
 Siipp. 991; Wenstrom Electric Co. v. lard, 40 How. Pr. 40, 63 Barb. 9; 
 
 Bloomer, 85 Him, 389, 32 N. Y. Supp. GormJy v. Mcintosh, 22 Barb. 271. 
 
 903; Pustet v. Flannelly, 60 How. ^''Day v. Sun Ins. Office, 40 App. 
 
 Pr. 67. Div. 305, 57 N. Y. Supp. 1033; Thiem 
 
 ^'•"Cumherland Coal d I. Co. v. Eoff- v. Madden, 27 Hun, 371; Simmons v. 
 
 man Steam Coal Co. 39 Barb. 16, 15 Simmons, 32 Him, 551 ; Donnelly v. 
 
 Abb. Pr. 78; Hunt v. Genet, 14 Daly, Lihhy, 1 Sweeny, 259. 
 
 225, 6 N. Y. S. R. 275; Xin^r V. Poo ie, ^"Simon v. O'Brien, 87 Hun, 160, 
 
 36 Barb. 242. 67 N. Y. S. R. 460, 33 N. Y. Supp. 
 
 "McMalwn v. Mutual Ben. L. Ins. 815. 
 
 Co. 3 Bosw. 044, 8 Abb. Pr. 297; ^"Moses v. McDivitt, 2 Abb. N. C. 
 
 Harriott v. Neir Jersey R. & Transp. 47. 
 Co. 1 Daly, 377.
 
 VAKIOUS PROVISIONS IN RELATION TO COSTS. 405 
 
 as a consideration for the second party's doing or refraining 
 from doing certain acts in that action, the court can enforce that 
 stipulation by a motion in tlie action. The promisee will not be 
 compelled to bring an action to enforce his rights under the 
 stipulation.^^ A party may bar himself of costs in the action, 
 when, by his acquiescence, the record of the case is changed 
 in open court, so that it appears that he is not entitled to costs.^^ 
 WTiere a judgment in an action at law is rendered for a party 
 under a stipulation, which is silent on the question of costs, the 
 prevailing party is entitled to enter up a judgment for the 
 amount mentioned in the stipulation, together with costs, be- 
 cause costs follow as a matter of course, and if the defendant 
 wished to protect himself from them, he should have inserted 
 that provision in his stipulation.^^ The plaintiff is sometimes 
 allowed costs and an additional allowance, where the judgment 
 is entered by a stipulation which is ambiguous on that ques- 
 tion.^* A trustee "\vill not be allowed to make an improvident 
 stipulation as to costs and disbursements, and the court will re- 
 lieve him from such a stipulation upon his motion for that re- 
 lief, but will not grant him costs of the motion, although it is 
 contested and he succeeds.^^ Parties will not be allowed to stip- 
 ulate that the successful party should tax costs in excess of the 
 rate allowed by law.^^ 
 
 328. Commencement of an action without authority. — Where 
 attorneys commence an action without authority, they will be 
 compelled to pay the costs awarded against the plaintiff.^'^ This 
 relief Avill be obtained on a motion made in the action. ^^ 
 
 "Kelsei/ V. Sargent, 40 Hun, 150. -^O'Keefe v. Shipherd, 23 Hun, 
 
 2 N. Y. S. R. 669. 171. 
 
 ^-Topliff V. Freeman, 25 N. Y. S. -''Post v. Charlesicorth, 66 Hun, 
 
 R. 102, 5 N. Y. Supp. 304. 256. 21 N. Y. Supp. 168. 
 
 "iri?i(7 V. 'New York & E. R. Co. "Tost v. Charlesicorth, 66 Hun, 
 
 1 Hilt. 235. 256, 21 N. Y. Supp. 168; Vilas v. 
 
 ""'Horgan v. Ricker, 15 N. Y. S. Plattsbiirgh d M. R. Co. 123 N. Y. 
 
 R. 330. 450. svh nam. VUas v. Butler, 9 L. 
 
 '^Cowen V. King, 54 App. Div. 331. R. A. 844, 20 Am. St. Rep. 771, 25 
 
 66 N. Y. Supp. 621. N. E. 941.
 
 406 THE LAW OF COSTS IN NEW YOKK. 
 
 329. When the judge informs the jury of the effect of their ver- 
 dict upon the question of costs. — It is not reversible error for the 
 judge to infonn a jury in actions where punitive damages are 
 given, of the effect of their verdict upon the question of costs, 
 since the measure of such damages is in the discretion of the 
 jury, and costs are themselves punitive.^^ But in actions on con- 
 tract it is reversible error to instruct the jury as to the right of 
 the parties as to costs upon the amount of their verdict, because 
 in these actions the recovery is to be determined on fixed prin- 
 ciples.^^ But a mere reference to the effect of their verdict upon 
 the question of costs in an action on contract, with a direction 
 that they "must find a verdict upon the evidence, and that 
 alone," is not reversible error.^^ Objection must be made to 
 such instruction at the time it is given ; if not then taken, it 
 cannot be raised later.^^ The judge is not bound to give these 
 instructions in any case.^^ But where he attempts to inform the 
 jury of the law on this point and misstates the law, this is such 
 an error that a new trial will be granted.^^ 
 
 330. Costs after entry of judgment. — All proceedings subse- 
 quent to the enti-y of a final judgment are motions, and only mo- 
 tion costs can be taxed for such proceedings.^^ The usual terms 
 imposed upon the opening of a judgment are all the costs taxed 
 in the judgment and the costs of opposing the motion to open 
 the judgment.^ ^ Where a judgment was reversed upon an ap- 
 
 "Munson v. Curtis, 15 N. Y. Civ. Big. 290; Kanna v. Kester, 15 N. Y. 
 
 Proc. Rep. 131, 17 N. Y. S. R. 349, Week. Dig. 119. 
 
 1 N. Y. Supp. 828; Waffle v. Dillen- ^'Elliott v. Brown, 2 Wend. 497, 
 
 hack, 38 N. Y. 53, 4 Abb. Pr. N. S. 20 Am. Dec. 644; Waffle v. Dillen- 
 
 457; Nolton v. Moses, 3 Barb. 31; hack, 38 N. Y. 53, 4 Abb. Pr. N. S. 
 
 Elliott V. Broicn, 2 Wend. 497, 20 457; Betvcy v. Riley, 17 N. Y. Week. 
 
 Am. Dec. 644. Dig. 573. 
 
 ^Munson v. Curtis, 15 N. Y. Civ ^'Smith v. Ferris, 2 N. Y. Week. 
 
 Proc. Rep. 131. 17 N. Y. S. R. 349, Dig. 163. 
 
 1 N. Y. Supp. 828; Lattimer v. Hill, ^'Bishop v. Hendrich, 82 Hun, 333, 
 
 8 Hun, 171. 64 N. Y. S. R. 100, 31 N. Y. Supp. 
 
 ^Tucker v. Ely, 37 Hun, 565, 20 502, Affirmed on this opinion in 146 
 
 N. Y. Week. TH^. 380. N. Y. 398, 42 N. E. 542. 
 
 "Andretos v. Miles, 15 N. Y. Week. ^Born v. Schrenkeisen, 20 Jones &
 
 VARIOUS PROVISIOA-S IN RELATION TO COSTS. 40 Y 
 
 peal because the plaintiff was held bound by the recitals in an- 
 other judgment between the same parties, he was allowed to 
 amend the recitals in the judgment in the fonner action upon 
 the payment of all the costs in the latter action, including the 
 costs of the motion to make the amendment, and costs of the ap- 
 peal from the order refusing him the right to make the amend- 
 ment.^^ The special term has no power upon a motion to alter 
 a judgment as to costs. Such a change can only be made after 
 a rehearing before the trial judge, when the case. has been sent 
 back to him by a reversal of the judgment by the appellate 
 court.^^ The special term has a right to set aside a judgment 
 Avith the costs of motion, when, in its discretion, justice will be 
 promoted thereby. ^^ 
 
 331. Costs upon an accounting. — Costs and allowances upon 
 an accounting cannot be awarded till final judgment."^*^ The 
 plaintiff will not be charged with costs upon an accounting, be- 
 cause it appears that there is a small sum due to the defendant, 
 where the action was necessary to close up a matter.^^ For al- 
 lowances in these actions, see § 307, a)ite. 
 
 332. When costs are made payable out of a fund. — Costs will 
 not be awarded out of a fund to each claimant, as of course, but 
 the allowance of costs rests in the discretion of the court. If the 
 fund is not large enougli to pay all claimants in full, each party 
 will usually be compelled to pay his own costs, except the plain- 
 tiff" who instituted the action and has had the burden of carrying 
 it on. A mere custodian of a fund has no claim to costs unless he 
 has done something to aid the court in tlie proper disposition of 
 
 S. 219, Affirmed in 110 N. Y. 55, 16 ^"Rudd v. RoUnson, 54 Hun, 339, 
 
 N. Y. S. R. 412, 17 N. E. 339. 27 N. Y. S. R. 98, 7 N. Y. Supp. 
 
 ^^Jones V. NeiDton, 47 N. Y. S. R. 535, Reversed on other grounds in 
 
 217, 19 N. Y. Supp. 786. 126 N. Y. 113, 12 L. R. A. 473, 22 
 
 ''McLean v. Stewart, 14 Hun, 472, Am. St. Rep. 816, 36 N. Y. S. R. 500, 
 
 Distinguishing Rogers v. Ivcrs, 23 26 N. E. 1046. 
 
 Hun, 424; Roclcivell v. Carpenter, 25 ^^Garvey v. Owens, 35 N. Y. S. R. 
 
 Hun, 529. 133, 12 N. Y. Supp. 349. 
 
 '^Mutual L. Ins. Co. v. Kroehle, 
 29 Misc. 481, 61 N. Y. Supp. 944.
 
 -108 THE LAW OF COSTS IN NEW YORK. 
 
 the quest.ion.'*^ The depositary will not be charged with costs^ 
 where there has been no default or breach of contract on his 
 part.^^ But where there is no other claimant, costs will be 
 awarded against the depositary the same as in any other action.** 
 The costs of the motion and the appeals therefrom can be or- 
 dered paid out of an attached fund upon the attxjrneys for the 
 different claimants signing a stipulation to that effect.*^ 
 
 333. Costs payable to a guardian ad litem, a. Costs allowed a 
 guardian ad litem. — A guardian ad litem, in an action in equity 
 or in a proceeding in surrogate's court can only be awarded 
 taxable costs, including an extra allowance in a proper case, pay- 
 able out of the fund. The court may award him a sum in excess 
 thereof, but such sum must be payable out of the estate of the 
 infant*^ The court will refuse an allowance to a guardian ad 
 litem, when the fund from which it is to be paid is small and the 
 action needless.*' And it may order tbat the guardian be paid 
 out of the fund a gross sum less than the taxable disburse- 
 ments.*^ But where the plaintiff succeeds against the infant, 
 and the fund is not large enough to pay the plaintiff's costs, he 
 is not personally liable for the costs allowed to the guardian ad 
 litem.'^^ Where a defendant is appointed guardian ad litem, for 
 a codefendant, and his answer is practically the same in both 
 capacities, he should be allowed, in case of his success, costs per- 
 sonally, and not as guardian.^*^ 
 
 ^Collins V. Oceanic Steam Nav. Co. Doremus v. Croshy, 66 Hun, 125, 20 
 
 1 N. Y. Week. Dig. 12; Pierson v. N. Y. Supp. 906. Contra, Roberts 
 
 Drexel, 11 Abb. N. C. 150. v. A'eio York Kiev. R. Co. 12 Misc. 
 
 ^Bushnell v. Chaittauqua County 345, 33 N. Y. Supp. 685 ; Neio York 
 
 Nat. Bank, 74 N. Y. 290. Life Ins. cC- T. Co. v. Sands, 26 Misc. 
 
 **Darenport v. Bank for Savings, 252, 56 N. Y. Supp. 741. 
 
 36 Hun, 303. "Sands v. Sands, 30 Misc. 338, 63 
 
 ^'Re Huliert Bros. & Co. 29 Misc. N. Y. Supp. 481. 
 
 484, 61 N. Y. Supp. 959. ^'Eivell v. Hubbard, 46 App. Div. 
 
 *'Re Robinson, 40 App. Div. 30, 57 283, 61 N. Y. Supp. 790. 
 
 N. Y. Supp. 523; Union Ins. Co. v. *''niU v. Lee, 4 App. Div. 154, 74 
 
 Van Rensselaer, 4 Paige, 85; Gott v. N. Y. S. R. 506, 38 N. Y. Supp. 641. 
 
 Cook, 7 Paige, 521; Downing v. '"Browne v. Murdock, 12 Abb. N,. 
 
 Marshall, 37 N. Y. 380; Re Eolden, C. 360. 
 126 N. Y. 589, 38 N. Y. S. R. 504;
 
 VARIOUS PROVISIONS IN RELATION TO COSTS. 40^ 
 
 h. Amount. — Where tlie general answer of an infant compels 
 the plaintiff to prove his case, the guardian is entitled to costs 
 after notice of trial, and trial fee.*^-^ 
 
 334. Costs allowed against a general guardian. — A guardian is 
 properly chargeable with the costs of any proceedings brought to 
 compel him to account for the property of his ward, or any pro- 
 ceedings caused by his failure to properly administer his ward's 
 estate and properly account therefor.^^ 
 
 335. Costs in various cases. — Where an action was brought to 
 restrain a common council from entering into a contract contraiy 
 to law, the costs, upon tlie plaintiff's succeeding, should be al- 
 lowed against those members of the common council whose con- 
 duct made the action necessary.^" 
 
 In an action against the mayor of a city to recover the award 
 for property taken, allowed to unknown owners, the mayor can 
 stop the running of interest by a payment of tlie amount to the 
 city treasurer, but such payment does not relieve the mayor of 
 costs, since the action must be tried to settle the issues.^* 
 
 Costs should be allowed against a Seneca Indian the same as 
 against any other person, when he sues for a personal claim. 
 General Laws, chap. 5, § 55, which provides that the costs- 
 awarded in an action against a Seneca Indian are to be paid by 
 a warrant of the comptroller upon the state treasurer, applies 
 only to actions in relation to the real property belonging to the 
 tribe.-^^ 
 
 In an action for conversion or replevin, where the property is 
 in the possession of a warehouseman, he is not a necessary or 
 proper party defendant, unless he claims some right, title, or 
 interest in the chattel other than a lawful lien for lawful 
 charges growing out of the care and custody of such chattel. If 
 
 ^Ufoosevelt v. Schermerliorn, 32 ^^Bradhurst v. New York, 20 Jones 
 
 Misc. 287, 66 N. Y. Supp. 366. & S. 51. 
 
 ^^Spehnan v. Terry, 74 N. Y. 448; '■''Grouse v. Neio York, P. & 0. R. 
 
 Knothe v. Kaiser, 2 Hun, 515, 5 Co. 49 Hiin, 576, 18 N. Y. S. R. 711.. 
 
 Thonip. & C. 4. 2 N. Y. Supp. 453. 
 
 ^Booti V. Utica, 5 Misc. 391, 26 
 N. Y. Supp. 932.
 
 410 THE LAW OF COSTS lA' NEW YORK. 
 
 tlie lega.lity or amount of such charges be disputed, the ware- 
 houseman may be made a party to the action for the purpose of 
 determining that issue only, and shall recover costs if his claim 
 be substantially sustained. Laws of 1892, chap. G08, § 2. 
 
 335a. Voluntary appearance. — The voluntary appearance of 
 a defendant in an action is, for all the purposes of the action, 
 the equivalent of personal service of the summons upon him, and 
 entitles the plaintiff to the same costs, under Code Civ. Proc. 
 § 3251, subd. 1, for each additional defendant served with the 
 summons, as he would have been entitled to had the summons 
 been personally served.''" 
 
 ^Schwinger v. Eickox, 46 How. Pr. 
 lU.
 
 CHAPTEE XXVJL 
 
 LIABILITY OF SL'RETIEfS AND PERSONS BENEFICIALLY INTER- 
 ESTED. 
 
 336. Liability of sureties upon an appeal to the appellate division of the 
 supreme court. 
 
 o3V. to the court of appeals. 
 
 338. — upon a bond given for the arrest of a party. 
 
 339. upon an appeal in an ejectment action. 
 
 340. in an attachment action. 
 
 341. ^ in a replevin action. 
 
 342. upon the granting of an injunction. 
 
 343. Eight of sureties to be reimbursed. 
 
 344. Right of municipalities to enforce liability of sureties. 
 
 345. Extent of liability of surety. 
 
 346. — upon an appeal from a justice's court to a county court. 
 
 347. — on undertakings given in a surrogate's court. 
 
 348. Statutory liability of persons beneficially interested. 
 
 349. How this liability is enforced. 
 
 350. Liability of absolute assignee of a cause of action. 
 
 351. — of person to whom a cause of action is assigned as collateral 
 
 security. 
 
 352. — of attorney who is to receive a contingent fee. 
 
 353. — of assignor. 
 
 354. When a receiver in supplementary proceedings is liable for costs. 
 
 355. Liability of a general assignee for the benefit of creditors. 
 
 356. When a person is beneficially interested. 
 
 357. Liability for commencing an action in the name of a nonexistent 
 
 plaintiff. 
 
 358. When a person is not beneficially interested. 
 
 359. Liability for defending an action in ejectment. 
 
 360. Liability outside of statute, 
 
 336. Liability of sureties upon an appeal to the appellate divi- 
 sion of the supreme court. — An action cannot be maintained upon 
 an undertaking given upon an appeal to the appellate divi- 
 sion of the supreme court, until ten days have expired after 
 the service upon tlie attorney for the appellant and upon the 
 sureties upon such undertaking, of a written notice of entry of 
 
 411
 
 412 THE I. AW OF COSTS IK NKW YOKK. 
 
 a jiidg-nicnt or order affirming the judgment or order appealed 
 from or dismissing the appeal.^ This provision only applies to 
 undertakings given in the cases enumerated. In other cases no 
 notice of tlie entry of judgment is necessary, before bringing an 
 action upon the undertaking.^ After an appeal to the court of 
 appeals has been perfected and security given thereupon to stay 
 the execution of the judgment or order appealed from, an action 
 cannot be maintained upon the undertaking given upon the pre- 
 ceding appeal until tlie final determination of the appeal to the 
 court of appeals.^ 
 
 A surety upon an appeal to the appellate division is not re- 
 lieved from liability upon a reversal by that court, but he is 
 liable if the court of appeals affirms the original judgment.* 
 Interest beyond the penalty is always recoverable.^ 
 
 S37. to the court of appeals. — The sureties upon an ap- 
 peal to the court of appeals are primarily liable for all the costs 
 of the action.^ The liability for costs in the court below rests 
 primarily upon them, and their release by a judgment creditor 
 releases the sureties upon the undertaking given below. "^ Where 
 an appeal is dismissed because the appellant did not give a new 
 undertaking as required by the court of appeals, the sureties 
 are liable only for the costs in the court of appeals.^ The sure- 
 ties upon an appeal to the court of appeals from a judgment of 
 the appellate division reversing a judgment of the trial court and 
 directing a new trial are liable, upon the affirmance by the cx)urt 
 of appeals of the judgment appealed from, only for costs in the 
 
 *Code Civ. Proc. § 1300. ^^caman v. McReynolds, 50 How. 
 
 ^Gali7iger v. Engelhardt, 2fi Misc. Pr. 421; Lijon v. Clark, 8 N. Y. 148; 
 
 49, 55 N. Y. Supp. 334; Barber v. Brainard v. Jones, 18 N. Y. 35. 
 
 h'ufherford, 12 Misc. 33, 06 N. Y. S. "Culliford v. Walser, 158 N. y. 65, 
 
 E. 000, 33 N. Y. Supp. 89; Weil v. 70 Am. St. Rep. 437, 52 N. E. 648; 
 
 Kempf, 12 N. Y. Civ. Proc. Rep. 379. Chester v. Broderick, 131 N. Y. 549,. 
 
 ' Code Civ. Proc. § 1309. 30 N. E. 507. 
 
 *Ii'obinson v. Plimpton, 25 N. Y. 'Hinckley v. Kreitz, 58 N. Y. 583, 
 
 484; Traver v. Nichols, 7 Wend. 434; Rathhone v. Wa--ren, 10 Johns. 586. 
 
 Ball V. Gardner, 21 Wend. 270; ^Galinger v. Engelhardt, 26 Misc. 
 
 Smith V. Grouse, 24 Barb. 433. 49, 55 N. Y. Supp. 334.
 
 LIABIT.ITY OF SURETIES AND PERSONS^ ETC. 413 
 
 •court of appeals, because the undertaking- is given merely to per- 
 fect an appeal to the court of appeals, and not to operate as a 
 staj.^ 
 
 A surety is liable for the costs of an action to enforce his lia- 
 bility, in addition to the amount of damages which the plaintiff 
 may recover, and these costs may exceed the amount of the 
 bond.^*^ The damages may be equal to the full amount of tlie 
 penalty of the bond,^^ but the amount of costs awarded the plain- 
 tiff in a judgment against the principal alone cannot be included 
 in the damages because the sureties could have been sued with- 
 out bringing an action against the principal.-*^ A surety cannot 
 be made to pay the costs awarded in an action brought to set 
 aside a settlement made by the assured with the principal.^ ^ 
 When a surety has the option of not paying a claim till the lia- 
 bility of the principal is determined by a suit, he cannot be made 
 to pay the costs of the action which determined the liability, al- 
 though the action was defended at his request. ^"^ In an action 
 against the sureties upon an undertaking upon an appeal to the 
 court of appeals, a complaint which alleges that the court of ap- 
 peals affirmed the order appealed from, with costs, and that a 
 specific sum was duly awarded as costs and disbursements, is 
 sufficient to allow proof of all the necessary facts to entitle the 
 plaintiff to recover.^ ^ 
 
 338. — upon a bond given for the arrest of a party. — The un- 
 dertaking given on an order of arrest under § 559 of the Code of 
 Civil Procedure does not cover the general costs of the action, 
 
 ^Burden v. Lowe, 85 N. Y. 2-il; N. Y. 109, 63 N. E. 1073; Douglass 
 
 Post V. Doremus, 60 N. Y. 371; Ben- v. Howland, 24 Wend. 35. 
 
 nett V. American Surety Co. 73 App. ^^Douglass v. Ferris, 138 N. Y. 192, 
 
 Div. 468, 77 N. Y. Supp. 207. 34 Am. St. Rep. 435, 52 N. Y. S. R. 
 
 "A-ew? York v. Ryan, 9 Daly, 316. 138, 33 N. E. 1041. 
 
 "]\'ei(7 York v. Sibberns, 10 N. Y. ^*Fernald v. Providence Washing- 
 Week. Dif?. 294. ton Ins. Co. 27 App. Div. 137, 50 N. 
 
 ^^Brooklyn ex rel. Stadlmair v. Y. Supp. 838. 
 
 Willard, 16 N. Y. Week. Dig. 315; ^'^Baxter \. Lancaster. i)S A]}^. Jiiv. 
 
 Thomson v. American Surety Co. 170 380, 68 N. Y. Supp. 1092.
 
 414 THE LAW OF COSTS IN NEW YORK. 
 
 but only sucli costs as are awarded as accruing directly from tlie 
 arrest.-'*' Therefore, it is no answer to an action upon such an 
 undertaking to allege that the costs in the action have been 
 paid,-*' Sureties upon an undertaking given on an order of ar- 
 rest of the defendant, cannot be made, by proceeding under 
 § 3247 of the Code of Civil Procedure, to pay the costs of an 
 unsuccessful action, wliicli tliey have carried on to protect them- 
 selves from liability. The defendant's leraedy is by an action 
 on the undertaking.^^ 
 
 339. upon an appeal in an ejectment action. — Sureties 
 
 on the bond of the defendant on appeal in an action in ejectment 
 are not liable for the costs of the second trial, where the defend- 
 ant paid the costs of the first trial, but they are liable for the 
 use and occupation, according to their undertaking.^® In an 
 action against an heir or devisee the defendant is liable only for 
 his proportionate share of the debt, but he may be compelled to 
 pay a full bill of costs in an action in which he is the sole dc- 
 fendant.^° 
 
 340. in an attachment action. — Sureties on attachment 
 
 are entitled to all payments made by their principal, and they 
 are not liable for the costs of an appeal taken by their principal 
 when the attachment was dissolved at special term.^^ They are 
 liable for the costs of the action where the attaching creditor suf- 
 fers default.^^ The surety upon an attachment is liable for an 
 unsuccessful attempt to remove tlie attachment, and also for the 
 
 ^'Sutorius V. North, 20 N. Y. Civ. ^^Clason v. Kehoe, 87 Hun, 368, 68 
 
 Proc. Rep. 162, 36 N. Y. S. R. 873, N. Y. S. R. 336, 34 N. Y. Supp. 431. 
 
 13 N. Y. Supp. 557. -"Code Civ. Proc. § 1839; Fink v. 
 
 ^-■Sperry v. Hellman, 20 N. Y. Civ. Berg, 50 Hun, 211, 19 N. Y. S. R. 
 
 Proc. Rep. 218, 37 N. Y. S. R. 258, 322, 2 N. Y. Supp. 851. 
 
 13 N. Y. Supp. 899; Sutoriiis v. Dun- -'Jktere v. Armstrong, 26 Hun, 19, 
 
 stati, 27 Jones & S. 166, 13 N. Y. 62 How. Pr. 515. 
 
 Supp. 601. "Lee v. Homer, 37 Hun, 634; 
 
 ^'Metropolitan Concert Co. v. Currie v. Riley, 14 N. Y. Week. Dig. 
 
 Sperry, 58 Hun, 470, 35 N. Y. S. R. 407; Edvmrds v. Jiodine, 11 Paige, 
 
 611, 12 N. Y. Supp. 494, AfTirmed 223; Aldrick v. Reynolds, 1 Barb, 
 
 without opini/m in 125 N. Y. 750, 27 Cli. 613. 
 N. E. 408.
 
 LIABILITY or SURETIES AND PEKSONS^ ETC. 415 
 
 costs of the action when tlie defendant wins."^ Where the de- 
 fendant makes reasonable efforts to vacate the attachment, he 
 may recover of the sureties the costs of the trial, which was nec- 
 essary to vacate the attachments^ 
 
 341. in a replevin action. — The undertaking given by 
 
 the plaintiff in a replevin action covers the costs of the defend- 
 ant,^^ and also the costs of an appeal from the judgment ren- 
 dered in the action. ^^ Likewise the undertaking given by the 
 defendant in such an action, in order that he might retain the 
 chattel, covers the costs of the plaintiff if he succeeds.^'^ 
 
 342. upon the granting of an injunction. — The sureties 
 
 upon a bond given upon the granting or continuing of an in- 
 junction are liable, in addition to the special damage provided 
 for in the bond, for the costs and disbursements in procuring an 
 order of reference to assess the damages caused by the injunc- 
 tion, and for the services of counsel upon such reference, to- 
 gether with the fees of the referee and stenographer upon such 
 reference,^^ and for the counsel fees upon a successful motion to 
 dissolve the injunction.^^ But they are not liable for counsel 
 fees in opposing the motion for, or the continuance of, an in- 
 junction, because the surety agrees to respond for damages re- 
 sulting to him because of the granting of the injunction.^" 
 Where on the service of the answer an injunction was dissolved 
 and a reference was had to compute tlie amount of damages, it 
 was held that the defendant was entitled to charge costs before 
 
 ^^Tpng V. American Surety Co. 69 112.3; O'Connor v. New York d Y. 
 
 App. Div. 137, 74 N. Y. Siipp. 502. Land Improv. Co. 8 Misc. 243. 59 N. 
 
 -^Tyng v. American Surety Co. 69 Y. S. R. 218, 28 N. Y. Supp. 544. 
 
 App. Div. 137, 74 N. Y. Supp. 502. "-"Hovey v. Rubber-Tip Pencil Co. 
 
 ■'"Wisconsin M. d F. Ins. Co. Bank 3 Jones & S. 81, 12 Abb. Pr. N. S. 
 
 V. Hobbs, 22 How. Pr. 494. 360. Affirmed in 50 N. Y. 335. 
 
 '^Tibbies v. O'Connor, 28 Barb. 538. ^"Youngs v. McDonald, 56 App. 
 
 "John Church Co. v. Dorsey, 38 Div. 14^8 N. Y. Anno. Cas. 461, 67 
 
 Misc. 542, 77 N. Y. Supp. 1065. N. Y. Supp. 375; Whiteside v. Notjac 
 
 ^Youngs v. McDonald, 56 App. Cottage Asso. 84 Hun, 555, 32 N. Y. 
 
 Div. 14, 8 N. Y. Anno. Cas. 461, 67 Supp. 724; Randall v. Carpenter, 88 
 
 N. Y. Supp. 375,. Affirmed without N. Y. 294. 
 opinion in 166 N. Y. 639. 60 N. E.
 
 416 THE LAW OF COSTS IN NEW YORK. 
 
 notice of trial, costs of a motion to dissolve the injunction, and 
 counsel fee for drawing up the answer and preparing to argue 
 the motion for dissolution.^^ 
 
 The sureties are not liable for the costs of an unsuccessful 
 motion to dissolve an injunction, which is denied upon the merits 
 or for irregularity,^" nor for the costs of an unsuccessful appeal 
 from the order denying the motion to dissolve the injunction. 
 If tlie party had been successful the surety would have been 
 liable.^"^ But where such a motion is denied, not upon the mer- 
 its nor for an irregularity, but in the discretion of the court, the 
 successful defendant may recover the costs of such a motion 
 against the sureties.^'* The sureties given upon an order to 
 show cause why an injunction pendente lite should not issue, 
 which order restrained the defendants until the further order of 
 tlie court, are not liable for the counsel fee in opposing the mo- 
 tion to gTant the injunction pendente lite, when the injunction 
 is denied, and, as the temporary injunction would have expired 
 upon the return day, counsel fees were not necessary to dissolve 
 it.^^ They are not liable for counsel fees incurred by the de- 
 fendant for the trial of the action. To render them liable it 
 must appear that the defendant had made all reasonable and 
 proper efforts to obtain a dissolution of the injunction, and had 
 failed, so tliat the trial of the action was necessary to get rid of 
 the preliminary injunction.^^ Where an additional allowance 
 has been granted to cover the expenses of a motion to dissolve 
 
 *^Willett V. Scovil, 4 Abb. Pr. 405. ^^Youngs v. McDonald, 56 App. 
 
 ''Allen V. Brown, 5 Lans. 511. Con- Div. 14, 8 N. Y. Anno. Cas. 4G1, 67 
 
 tra, Harrison v. Harrison, 75 Hun, N. Y. Supp. 375, Affirmed without 
 
 191, 58 X. Y. S. R. 106, 20 N. Y. opinion in 166 N. Y. 639, 60 N. E. 
 
 Supp. 905. 1123; Andrews v. Glenville Woolen 
 
 ^Childs V. Lyons, 3 Robt. 704. Co. 50 N. Y. 282; Nortlirup v. Gar- 
 
 "^Andreics v. Glenville Woolen Co. rett, 17 Hun, 497; Whiteside v. 
 
 50 N. Y. 287; Disbrow v. Garcia, 52 Xoyac Cottage Asso. 84 Hun, 555, 32 
 
 N. Y. 654; Rose v. Post, 56 N. Y. N. Y. Supp. 724. See Allen v. Broicn, 
 
 603. 5 Lans. 511; Newton v. Russell, 87 
 
 "'-Su-eet V. Mowry, 71 Ilun. 381, 25 N. Y. 531. 
 N. Y. Supp. 32.
 
 LIABILITY OF SURETIES AND PERSONS^ ETC. 417 
 
 the injunction and connsel fees npon the trial, the defendant 
 shoidd not be allowed those expenses npon a reference to ascer- 
 tain the damages sustained by the in j unction. ^'^ 
 
 But a denial of an additional allowance is not a bar to recov- 
 ery for such services upon the reference.'^^ Where the trial is 
 not principally in consequence of the injunction the expenses of 
 the trial cannot be recovered of the sureties.^'' ^STor are the}' 
 liable for the counsel fees incurred upon the trial of the action, 
 where tlie injunction was granted upon notice and the defendant 
 did not oppose it, and no motion was made to vacate it.^'^ A de- 
 fendant will be denied costs upon the dissolution of an injunc- 
 tion where the action sought to be restrained is the use of a 
 trademark which practises a deception upon the people. While 
 the plaintiif might justly be required to pay costs the defendant 
 ought not to receive them,'*^ A defendant cannot be allowed to 
 prove, upon the motion to dissolve an injunction, facts which 
 occurred after the commencement of the action, except upon 
 terms which are usually all of the plaintiff's costs to date and 
 the releasing of the plaintiff and his sureties from all liability 
 upon the bonds given to procure the injunction.'^^ 
 
 343. Right of sureties to be reimbursed. — A surety is entitled 
 to be reimbursed out of the security given to him by his princi- 
 pal for his costs, disbursements, and counsel fees in an action 
 "brought to hold him liable for the default of his principal, and 
 which he successfully defends.^^ A surety or giiarantor cannot 
 recover of the principal debtor the amount of costs which he has 
 "been compelled to pay in an unsuccessful attempt to avoid pay- 
 ing the claim for which he became surety.'*^ A grantee in a 
 
 ^Wishroic v. Garcia, 52 N. Y. 655. *^Smith v. Syracuse d G. R. Co. 4 
 
 ^Park V. Miisgrave, 6 Hun, 223. Month. L. Bull. 75. 
 
 ^"Neivton v. Russell, 87 N. Y. 531. *^Allany v. Andrews, 29 App. Div. 
 
 *'>Phoovix Bridge Co. v. Keystone 20, 52 N. Y. Supp. 1129. 
 Bridge Co. 10 App. Div. 176, 41 N. ^Peet v. Kent, 5 N. Y. S. R. 134; 
 
 Y. Supp. 891; Hovey v. Rubber-Tip Sturdevnnt v. Riley, 28 N. Y. S. R. 
 
 Pencil Co. 50 N. Y. 336. 896, 8 N. Y. Supp! 281. 
 
 *^Fetridge v. Wells, 4 Abb. Pr. 144, 
 13 How. Pr. 385. 
 COSTS 27.
 
 418 THE LAW OF COSTS IN NEW YOEK. 
 
 deed may recover of the grantor the taxable costs, disbursements, 
 and his own coimsel fee, incurred in an action bronght to enforce 
 a restriction in the grantor's deed, of which the grantee was 
 ignorant.*^ Sureties on an undertaking have no right to compel 
 the creditor to sell a pledge of the principal debtor in his hands 
 because they liave unconditionally promised to pay the debt.^^ 
 
 And upon a mortgage foreclosure they are not entitled to have 
 the costs of the action first paid out of the proceeds of the sale,, 
 even if the judgment provides that the costs shall be so paid,'*'^ 
 
 344. Right of municipalities to enforce liability of sureties. — 
 ^Vhere the costs awarded in an action or special proceeding, to 
 public officers become, by force of a statute, the property of a 
 municipality, tlie municipality may maintain an action in its 
 own name against the sureties given to its officers in such action 
 or special proceeding, and the officers are not necessary parties 
 to an action against the sureties upon their undertaking.^^ 
 
 345. Extent of liability of surety. — Where a sui-ety has given 
 a bond to save another harmless from certain demands, and the 
 assured has been sued thereon, the surety is liable only for the 
 costs incurred up to the time papers were served on the assured, 
 unless he at once informs the surety of that fact and requests the 
 surety to take care of the action. The costs accruing after the 
 service of the summons are unnecessar)^'^^ 
 
 346. — upon an appeal from a justice's court to a county 
 court. — An undertaking given uj^on an appeal from a judgment 
 of a justice's court to a county court covers the costs of a de- 
 murrer which the plaintiff interposes to an answer that the de- 
 fendant is allowed to interpose in the county court. The fact 
 that an appeal has been taken from the order overruling the de- 
 
 ^Charman v. Hibbler, 31 App. Div. Div. 191, 58 N. Y. Supp. 1031; Suth- 
 
 477, 52 N. Y. Supp. 212. erland v. Carr, 85 N. Y. 105; Au- 
 
 *^8terne v. Talhott, 89 Hun, 308, 35 burn Bd. of Edu. v. Quick, 99 N. Y. 
 
 N. Y. Supp. 412. 138, 1 N. E. 533. 
 
 "Leopold V. Epstein, 54 App. Div. *^8teinhart v. Doellncr, 2 Jones & 
 
 133, 66 N. Y. Supp. 414. S. 218. 
 
 "IVeu? York v. Bannan, 42 App.
 
 LIABILITY OF SUKETIES AND PERSONS, ETC. 419 
 
 miirrcr is no answer to an action on the undertaking, until a stay 
 is obtained. ^^ 
 
 347. — on undertakings given in a surrogate's court. — The 
 surety on the bond of an administrator is not liable for the costs 
 which the surrogate, upon an accounting, makes payable directly 
 to the attorneys, because the surrogate has no power to make 
 such an allowance. The allowances should have been made to 
 Khe client.^-^ The sureties are as much liable for the costs 
 awarded upon the removal of a guardian as for the amount of 
 the infant's money in the hands of the removed guardian. ^^ If 
 an allowance is made upon an accounting which is computed 
 upon a wrong basis or any other excess of jurisdiction the sure- 
 ties can raise the question in an action against them to recover 
 such allowance.^'^ An attorney for an assignee for the bene- 
 fit of creditors cannot maintain an action against the assignee's 
 sureties, when the assignee fails to pay him the amount directed 
 by the court to be paid to the attorney, unless the surety was a 
 party to the proceedings and is bound thereby, or there is an ad- 
 judication that the attorney lias a claim against the assigned 
 estate.^'* 
 
 348. Statutory liability of persons beneficially interested. — 
 The liability of third persons for costs is now regulated by 
 § 3247 of the Code of Civil Procedure, which is a re-enactment 
 of the corresponding provision in the Revised Statutes.^^ Under 
 § 321 of the Code of Procedure, with a different wording it was 
 held that a person defending in the name of another could be 
 
 "Trandell v. Bicker, 32 Misc. 258, Div. 128, U N. Y. Supp. 1020; Doug- 
 
 66 N. Y. Supp. 352; Rice v. Whit- lass v. Ferris, 138 N. Y. 192, 34 Am. 
 
 lock, 16 Abb. Pr. 225; Channing v. St. Eep. 435, 33 N. E. 1041. 
 
 Moore, 11 N. Y. S. R. 670; Eeehner '•'^Brotcning v. Vanderhoven, 55 
 
 V. Townsend, 8 Abb. Pr. 234. How. Pr. 97. 
 
 "McMahon v. Smith, 20 Misc. 305, ^Wan Slyck v. Bush, 24 Jones & S. 
 
 45 N. Y. Supp. 665; Wiicoajv. /Smif^, 478, 4 N. Y. Supp. 710; Mars/i v, 
 
 26 Barb. 316; Devin v. Patchin, 26 Avery, 81 N. Y. 29. 
 
 N. Y. 441-449. ''2 Rev. Stat. 619, § 44, 2 Ed- 
 
 "Fhillijys V. Liebmann, 10 App. moiids' Stat. 515, § 41.
 
 420 THE LAW OF COSTS IN NEW YORK. 
 
 charged with costs.''^ The Code of Civil Procedure has taken 
 the phraseology of the Uevised Statute instead of the Code of 
 Procedure. Under the Revised Statutes it was held that the pro- 
 visions applied to one prosecuting an action, not one defend- 
 ing/''^ and the same construction has been placed on the present 
 statute.^* 
 
 Where the statute provides that the gi^antee may maintain an 
 action in ejectment in the name of his grantor, because the con- 
 veyance under which he claims is void on the ground that the 
 property was held adversely to his grantor, the defendant, in the 
 event of his success, cannot tax costs against the nominal plain- 
 tiff, but may be allowed to tax costs against the grantee,^^ 
 
 349. How this liability is enforced. — The liability of a third 
 person is enforced by an order of the court, under § 3247 of the 
 Code of Civil Procedure.^*^ Where the court decided that a 
 third party should pay costs of an action, his liability was, un- 
 der the old Code, enforced by attachment.^^ Where it has been 
 adjudged that a third party is liable for costs of an action, as 
 being the party beneficially interested, and certified copies of the 
 orders are served upon him and a demand made for the payment 
 of the costs, application may be made and an order thereon 
 granted to punish him for contempt for failing to pay costs as 
 directed, and fining him the amount of the costs, and no further 
 proof is necessary to show that his refusal to pay costs did de- 
 feat, impair, impede, or prejudice the rights of the opposite 
 party. The fact that the order directs payment of the costs to 
 the defendant's attorney is iramaterial.^^ 
 
 ^Wolcott V. Holcomh, 31 N. Y. 126. E. 508, 17 N. Y. Siipp. 237; Bovrdon 
 
 "Miller V. Adsit, 18 Wend. 672; v. Martin, 74 Hun, 246, 56 N. Y. S. 
 
 Rijers V. Hedges, 1 Hill, 646; Bender- R. 314, 26 N. Y. Supp. 378; Wolcott 
 
 nagle v. Cocks, 19 Wend. 151. v. Holcomb, 31 N. Y. 125. 
 
 ^Peetsch v. Quinn, 12 Misc. 61, 1 ^'Marvin v. Marvin, 78 N. Y. 541; 
 
 N. Y. Anno. Cas. 282, 24 N. Y. Civ. Morrison v. Lester, 11 Hun, 618, 15 
 
 Proc. Rep. 394, 66 K Y. S. R. 689, Hun, 538. Contra, Remington Paper 
 
 33 N. Y. Supp. 87. Co. v. O'Doughertij, 6 N. Y. Civ. 
 
 »Code Civ. Proc. § 1501. Proc Rep. 70. 
 
 "Henrictis v. Englert, 43 N. Y. S. "'Tucker v. Gilman, 20 N. Y. Civ.
 
 LIABILITY OF SUKETIES AND PERSONS^ ETC. 421 
 
 It is within the discretion of the court to deny a motion to 
 compel a j)crson to pay the costs of an action in which he was 
 beneficially interested, as having been prematurely made, if an 
 appeal is pending undetermined, although the appellant has not 
 given an undertaking on the appeal, and no stay of proceedings 
 has been granted.®^ The notice of motion must be served on the 
 party sought to be charged. It is not enough to serve it upon the 
 attorney who has appeared for the plaintiff in the action, as 
 his authority ceased with the entry of the judgment, and the 
 very question in issue is whether the attorney for the plaintiff 
 is the attorney for the third party.*^^ 
 
 350. Liability of absolute assignee of a cause of action. — 
 Where a party takes an absolute assignment of a pending action, 
 be becomes liable for the whole costs the same as if he were 
 originally a party.**^ The same liability also attaclies where a 
 judgment is assigned, which is reversed on appeal.^® 
 
 351. — of person to whom a cause of action is assigned as col- 
 lateral security. — If he takes an assignment of a cause of action 
 as collateral security, he is not liable for the costs of the ac- 
 tion.^^ But where an assignee prosecutes the action himself he 
 is liable for costs.*^^ 
 
 Proc. Rep. 397, 37 N. Y. S. R. 958, v. Fowler, 14 Jones & S. 351; Re 
 
 14 N. Y. Supp. 392. Tymt, 17 N. Y. Week. Dig. 234. 
 
 ^^Slauson v. Watkins, 14 Jones & ""Tucker y. GUman, 58 Hun, 167, 
 
 S. 172. 33 N. Y. S. R. 9G2, 11 N. Y. Supp. 
 
 "^Henry v. Derby, 21 Jones & S. 555, Affirmed in 125 N. Y. 714, 26 
 
 125, 11 N. Y. Civ. Proc. Rep. 106. N. E. 756. 
 
 '^Genet \. Davenport, 58 N. Y. 607; ^Teck v. Yorks, 75 N. Y. 421; Mil- 
 
 Columbia Ins. Co. v. Stevens, 37 N. ler v. Franklin, 20 Wend. 630; Wol- 
 
 Y. 536; Jordan v. Sherwood, 10 cott v. Holeomh, Z\ ^. Y. 124:-, Dowl- 
 
 Wend. 622; Miller v. Adsit, 18 ingr v. Bnc/.wfif, .52 N. Y. 658, 15 Abb. 
 
 Wend. 672; Creighton v. Ingersoll, Pr. N. S. 190; Thorn v. Beard, 139 
 
 20 Barb. 541 ; Carnahan v. Pond, 15 N. Y. 482, 54 IST. y. g. r. 807, 34 N. 
 
 Abb. Pr. 194; Tticker v. GUman, 58 E. 1100. 
 
 Hun, 167, 33 N. Y. S. R. 962, 11 N. "^Whitney v. Cooper, 1 Hill, 629; 
 
 Y. Supp. 555, Affirmed in 125 N. Y. Schoolcraft v. Lathrop, 5 Cow. 17; 
 
 714, 26 N. E. 756; Ohnstead v. Murray v. Hendricksmi, 6 Abb. Pr. 
 
 Keyes, 2 How. Pr. N. S. 1 ; Wolcott 96, 1 Bosw. 35; People ex rel. Bailey 
 
 V. Ilolcoinh, 31 N. Y. 125; Merceron v, Albany Mayor's Court Judges, 9
 
 422 THE LAW OF COSTS IN NEW YORK. 
 
 "Wliere the cause of action is not transferable and the judg- 
 ment is afterwards vacated or reversed the assignee is not liable 
 for costs.*^^ The assignment of a claim pending the action will 
 not prejudice the defendant in offsetting against any recovery 
 the costs that may be awarded him in the action. 
 
 352. — of attorney who is to receive a contingent fee. — An 
 attorney is not liable for the costs as an assignee, where he has an 
 agreement to receive a certain per cent of the recovery for his 
 services in the action.'^ Where an attorney moved to dismiss 
 the complaint on the ground that the parties had collusively set- 
 tled the case to deprive him of his costs, and after the motion 
 had been denied he made a motion for leave to renew it, he is 
 properly charged with the costs of the last motion, upon its re- 
 fusah"^^ 
 
 353. — of assignor. — A person cannot escape liability for the 
 costs of an action when the assignment is merely colorable, al- 
 though such assignment was made before the action was com- 
 menced.'^^ The decision of the trial court directing a verdict foj' 
 the defendant on the ground that the plaintiff is not the real 
 party in interest establishes the fact of the beneficial interest of 
 the pretended assignor for the purpose of charging him with the 
 costs of the action.'^^ A person who assigns a cause of action 
 for the purpose of avoiding giving security for costs may be com- 
 pelled to pay the costs of an unsuccessful action brought by his 
 assignee.'^^ A party who assigns his cause of action pending the 
 action is still liable for the costs of the action.'^^ 
 
 Wend. 480; Carnahan v. Pond, 15 '-Winanfs v. Blanchard, 12 N. Y. 
 
 Abb. Pr. 194. S. R. 3S4. 
 
 "^Tucker v. Oilman, 58 Hun, 167, '='i?e Tynrj, 17 N. Y. Week. Dig. 234. 
 
 33 N. Y. S. R. 962, 11 N. Y. Supp. ''Pendleton v. Johnson, 21 N. Y. 
 
 555, Affirmed in 125 N. Y. 714, 26 Civ. Proc. Rep. 272, 18 N. Y. Supp. 
 
 N. E. 756. 211. 
 
 ''"Green v. Lee, 8 N. Y. Week. Dig. 'Hlrosfent v. Tallman, 2 How. Pr. 
 
 131 ; Banta v. Naughton, 7 N. Y. S. 147. 
 R. 384; Code Civ Proc. § 3247. 
 
 ''Eisner v. TJnmel, 6 Hun, 234, Af- 
 firmed in 06 N. Y. 046.
 
 LIABILITY OF SURETIES AND PERSONS, ETC. ^ 423 
 
 354. When a receiver in supplementary proceedings is liable for 
 costs. — A judgment creditor will not be liable for costs awarded 
 against a receiver in supplementary proceedings,''^'^ unless the 
 action was brought at the sole suggestion and urgency of such 
 party and was virtually conducted by him, especially where it 
 was not brought by the direction or leave of the court.'^'^ This 
 is so, even as to costs awarded against him as a defendant. '^^ A 
 receiver in supplementaiy proceedings must either file the writ- 
 ten request of the creditor to bring an action which makes the 
 judgment creditor liable personally or a bond.'^^ Motion costs 
 awarded against a receiver may be ordered paid by the judg- 
 ment creditors when the receiver acts at the instigation of the 
 ■creditors and for their benefit.^*^ 
 
 355. Liability of a general assignee for the benefit of cred- 
 itors. — Wliere a general assignee refuses to continue the defense 
 in a replevin action brought against his assignor, but the plain- 
 tiff obtains an order bringing him in unless he make an offer of 
 judgment with costs to date, and the defendant makes such an 
 offer, the plaintiff cannot recover his costs out of the fund, be- 
 cause the assignee has not intermeddled in the action nor claimed 
 the goods.^^ 
 
 ''^Cutter V. ReiJh/, 5 Robt. 637, 31 441 ; Wheeler v. Wright, 23 How. Pr. 
 
 HoTV. Pr. 472; Whitnei/ v. Cooper, 1 228, 14 Abb. Pr. 353. 
 
 Hill, 632; Colvardv. Oliver, 7 Wend. "Rule 79; M'Hench v. M'Hench, 
 
 497; Miller v. Franklin, 20 Wend. 7 Hill, 204; Thompson v. BleCloskey, 
 
 «30; Bliss v. Otis, 1 Denio, 6.56; 5 Month. L. Bull. 19; Wheeler v. 
 
 Giles V. Halbert, 12 N. Y. 32; Mc- Wright, 23 How. Pr. 228, 14 Abb. Pr. 
 
 Harg v. Donelhj, 27 Barb. 100; Gal- 353. 
 
 lation V. Smith, 48 How. Pr. 477. ^"Interior Conduit & Insulation Co. 
 
 "Cutter V. Reilly, 5 Bobt. 637, 31 v. Alexander, 27 Misc. 598, 59 N. Y. 
 
 How. Pr. 472; Wheeler v. Wright, Siipp. 126; Ward v. Roy, 69 N. Y. 
 
 23 How. Pr. 228, 14 Abb. Pr. 353; 96; Bourdons. Martin, 84 Hun, 179, 
 
 Ward V. Roy, 69 N. Y. 96; O'Conner 32 N. Y. Supp. 441. 
 
 V. Merchants' Bank, 64 Hun, 624, 22 ^^McCarthy v. Wright, 56 Hun, 
 
 N. Y. Civ. Proc. Rep. 393, 19 N. Y. 387, 31 N. Y. S. R. 371, 10 N. Y. 
 
 Supp. 319; Droegev. Baxter, 77 App. Supp. 824; Taylor v. Bolmer, 2 De- 
 
 Dlv. 78, 79 N. Y. Supp. 29. nio, 193; Miller v. Franklin, 20 
 
 '"■Bourdon v. Martin, 84 Hun. 179, Wend. 630; Heather v. Isleil, 14 N. 
 
 €5 N. Y. S. R. 716, 32 N. Y. Supp. Y. Week. Dig. 46.
 
 424 THE LAW OF COSTS IN NEW YORK. 
 
 356. When a person is beneficially interested. — A pcarty who 
 agrees to can-j on a suit for another and to have a share of the 
 proceeds is beneficially interested and is liable for the costs re- 
 covered against the nominal plaintiff.^^ But where he has trans- 
 ferred his interest, and takes no part in the action, he is not 
 liable.^^ An assignor of a cause of action, who is to receive a 
 portion of the expected recovery, is beneficially interested and is 
 liable for the costs of the action, although he did not employ the 
 attorney nor furnish funds to carry on the action.^^ A party 
 is liable for costs where he lu'ings an action in the name of an- 
 other, without authority. This applies to a case where the action 
 is brought in the name of the people or of an officer, where the 
 party has not complied with the statutory requirements.^^ 
 
 357. Liability for commencing an action in the name of a non- 
 existent plaintiff. — A party is liable for the costs of an action 
 which he has instituted in the name of a nonexistent plaintiff,^* 
 or by persons claiming to be trustees of a coi*poration, and it is 
 adjudged that ihej are not trustees and have no authority to 
 bring the action.^^ 
 
 358. When a person is not beneficially interested. — It is not 
 enough that, had the action succeeded, the recovery would have 
 been for the exclusive benefit of a third person. He must be 
 chargeable with having brought the action.^ ^ ^Miere a third 
 
 "^nUes V. Halbert, 12 N. Y. 32. Pcrrigo v. Doivdall, 25 Hun, 234 ; 
 
 *^Br(i(Ucy v. Van Buren, 22 N. Y. Slauson v. Watlcins, 95 N. Y. 369; 
 
 Week. Dig. 568. Winants v. Blanchard, 12 N. Y. S. R. 
 
 ^Merceron v. Foivler, 14 Jones & 384; Waring v. Barret, 2 Cow. 460; 
 
 S. 351 ; Wheeler v. Wright, 14 Abb. Pendleton v. Johnston, 21 N. Y. Civ. 
 
 Pr. 353, 23 How. Pr. 228; Voorhces Proo. Rep. 272, 18 K Y. Supp. 211. 
 
 V. McCartney, 51 X. Y. 387; Bliss v. ^'Baptist Soc. v. Loomis, 49 Hun, 
 
 Otis, 1 Denio, 650; Giles v. Halbert, 414, 22 N. Y. S. R. 485, 3 N. Y. Supp. 
 
 12 N. Y. 32; Whitney v. Cooper, 1 572. 
 
 Hill, 629. ^"Greenu-ood v. Marvin, 11 N. Y. S. 
 
 '^Jobbitt V. Giles, 10 X. Y. Week. R. 235; Whitney v. Cooper, 1 Hill, 
 
 Dig. 523. 629; McHarg v. Donelly, 27 Barb. 
 
 ^Metropolitan Addressing & Mail- 100; Hone v. De Peyster, 106 N. Y. 
 
 ing Co. v. Goodenongh. 21 N. Y. Civ. 645, 13 N. E. 778; Elliot v. Lewicky, 
 
 Proc. Rep. 208, 18 X. Y. Supp. 212; 19 Jones & S. 51, 7 X. Y. Civ. Proc.
 
 LIABILITY OF SURETIES AND PERSONS^ ETC. 425' 
 
 party advises a plaintiff that he has a good cause of action, and 
 furnishes him money to prosecute the action, because he thinks 
 that the plaintiff has a righteous cause, he is not beneficially 
 interested so as to be liable for costs in case the plaintiff fails.^* 
 
 359. Liability for defending an action in ejectment. — A land- 
 lord who defends an action in ejectment brought against his 
 tenant,^" or a grantor who defends such an action against his 
 grantee,^^ or a mortgagee who defends such an action against 
 his mortgagor, may be compelled to pay costs.^^ 
 
 360. Liability outside of statute. — A party who has fraudu- 
 lently procured the execution of a will is a proper party in an 
 action to set aside such will that he may be charged with costs.^^ 
 It is proper to make a person a party defendant in an equity 
 action, although he only signed the agTcement upon which th& 
 action was based, as agent, where he defied the orders of the 
 court in relation to the agreement. In such a case costs may be 
 properly imposed upon him.^^ Where parties are brought in on 
 their own aj)plication in a proceeding to punish a receiver for 
 contempt, and fail in their contention, they are properly charge- 
 able with the costs of the proceeding.^'* 
 
 Rep. 82; Slauson v. Watkins, 95 N- 27 N. Y. Civ. Proc. Eep. 405, 52 N. 
 
 Y. 369. Y. Supp. 854. 
 
 "/(•e Harwood, 50 N. Y. S. R. 114, ^'Bradt/ v. McCosker, 1 N. Y. 214. 
 
 21 N. Y. Supp. 572. ^'Cooper v. Toionsend, 37 N. Y. S. 
 
 '"I'errigo v. Dowdall, 25 Hun, 234. R. 122, 13 N. Y. Supp. 760. 
 
 "^Farmers' Loan <& T. Co. v. ^'"Pierce v. Lees, 17 App. Div. 346, 
 
 Kursch, 5 N. Y. 558. 45 N. Y. Supp. 294. 
 
 "^Sand V. Church, 32 App. Div. 139,
 
 CHAPTER XXVIII 
 
 STAY FOR NONPAYMENT OF COSTS. 
 
 361. In general. 
 
 362. Procedure to obtain stay. 
 
 363. When the actions are 'brought in different courts. 
 
 364. Stay when the cause of action is assigned. 
 
 365. Party seeking stay must be interested in collecting the unpaid costs. 
 
 366. Different actions arising from the same cause. 
 
 367. Party suing in forma pauperis. 
 308. When an infant will be stayed. 
 
 369. Wlien a party is entitled to a stay. 
 
 370. When the stay becomes operative. 
 
 371. What proceedings are stayed. 
 
 372. How the stay may be waived. 
 
 373. How the stay is terminated. 
 
 361. In general. — The court lias an inherent power to stay the 
 vexatious and annoying proceedings of a party, until he pays the 
 costs of a former proceeding/ which power it wall exercise upon 
 application to it. The Code of Civil Procedure also provides 
 for a stay of proceedings for the nonpayment of motion costs. 
 iSTo application is necessary to invoke this statutory stay, except 
 the service upon the adverse party of the order requiring the 
 payment of the costs. Upon the expiration of ten days after 
 such service the stay is in operation.^ 
 
 362. Procedure to obtain stay.— The motion for a stay should 
 be made in the action sought to he stayed,^ and should be based 
 on affidavits showing all the facts upon which a stay is asked.* 
 Such a motion may be made at any time before the trial of the 
 
 ^Foley V. Baihhorne. 12 Hun. 5S9, ^Dederick v. TJoysradt, 4 How. Pr. 
 ileyer v. Brid, 2 Month. L. Bull. 72. 350, 3 X. Y. Code Pvep. 86. 
 
 -Code Civ. Proc. § 779; Thaule v. ^IJUderhrand v. Ogden, 1 Monlli. 
 Frost, 1 Abb. N. C. 298; Lyo72S v. L. Bull. 74. 
 Murat, 54 How. Pr. 23, 4 Abb. N. C. 
 13; Hazard v. Wilson, 3 Abb. N. C. 
 50. See how waived, § 372. infra. 
 
 42G
 
 STAY FOK NONPAYMENT OF COSTS. 427 
 
 second action/'' or even during the litigation of that action.^ But 
 such a motion cannot be made after judgment is perfected in the 
 second action.'^ In the district courts of ISTew York the applica- 
 tion should be made before the joinder of issue.^ To entitle the 
 defendant to such an order he must show a good defense, either 
 by an answer served or by an affidavit of merits,^ Upon a mo- 
 tion for a stay the court may compel the plaintiff to pay not 
 only the costs in the first action, but also the costs of the motion 
 for a stay, before he is allowed to proceed.^ ^ The granting of 
 the stay is not an absolute right, but depends upon the discretion 
 of the court.^^ The failure to pay costs of a former action is a 
 mere irregTilarity, and does not deprive the court of jurisdiction 
 of a second action for the same cause, unless such adjudication 
 was upon the merits. -^^ The defendant is not bound to issue an 
 execution to collect costs, nor can he be defeated, upon his appli- 
 cation for a stay, on the ground of laclies.^^ 
 
 363. When the actions are brought in different courts. — It 
 makes no difference that the second action is brought in a dif- 
 ferent court,^^ although the former action was brought in a Fed- 
 
 ^Cuyler v. Vanderioerk, 1 Johns. 380; Barton v. gjieis, 73 N. Y. 133; 
 
 Cas. 247. Morgenstern v. Zinli, 6 Misc. 418, 27 
 
 '^Jackson ex deni. Williamson v. N. Y. Supp. 299. 
 
 Miller, 3 Cow. 57. ^-Patchen v. Delatvare d- H. Canal 
 
 ''Fifield V. Brown, 2 Cow. 503; Sal- Co. 62 App. Div. 543, 71 N. Y. Supp. 
 
 ters V. Ralph, 15 Abb. Pr. 273. 122; JVesseJs v. Boettcher, 142 N. Y. 
 
 Woullaire v. Wise, 19 Misc. C59, 212, 36 N. E. 883; Foster v. Bowen, 
 
 44 N. Y. Supp. 510; iVoe v. Gregory, 1 Code Rep. N. S. 236; Barton v. 
 
 ■8 N. Y. Week. Dig. 21. Speis, 73 N. Y. 133. 
 
 ^Faulkner v. Cody, 28 Misc. 66, 59 ^"Doyle v. Fecorder Printing Co. 30 
 
 N. Y. Supp. 807. Hun, 645. 
 
 ^"Edwards v. Ninth Ave. R. Co. 22 ^-^Farrell v. Neio York Juvenile 
 
 How. Pr. 444. Asylum, 2 App. Div. 496, 3 N. Y. 
 
 ^^Dare v. Murphy, 18 Abb. N. C. Anno. Cas. 13, 74 N. Y. S. R. 414, 37 
 
 466, 12 N. Y. Civ. Proc. Rep. 388; N. Y. Supp. 1118; Sprague v. Bar- 
 
 McMahon v. Mutual Ben. L. Ins. Co. tholdi Hotel Co. 68 Hun, 555, 52 N. 
 
 12 Abb. Pr. 28; Drake v. New York Y. S. R. 663, 22 N. Y. Supp. 1000; 
 
 Iron Mine, 71 Hun, 211, 54 N. Y. & Morgenstern v. Ziiik, 6 Misc. 418, 27 
 
 R. 211, 24 N. Y. Supp. 518; Griffin N. Y. Supp. 299; Edwards v. Ninth 
 
 V. Round Lake Camp Meeting Asso. Ave. R. Co. 22 How. Pr. 444; Thomp- 
 
 26 Hun, 314; Ex parte Stone, 3 Cow. son v. Burchell, 16 Jones & S. 537;
 
 428 TJIK J. AW OL" COSTS IN NEW YORK. 
 
 eral court. -"^ But this rule does not apply if the former action 
 was brought in the courts of another state. ^^ It makes no differ- 
 ence that the action is one for divorce, separation, or annulment 
 of a marriage, nor that it is brought by the husband or by the 
 wife.^^ A receiver will be stayed in an action for the same 
 cause, until the costs of the former action are paid, when the 
 first action was dismissed because of the irregularity of his ap- 
 pointment.^^ The district courts of New York have the same 
 power as the supreme court to grant a stay in the second action 
 till the costs in the former are paid.-^^ A justice of the peace has 
 not that power.^*^ The payment of the costs of the former action 
 is a sufficient answer to the defendant's motion for a stay.^^ 
 
 364. Stay when the cause of action is assigned. — An unsuccess- 
 ful plaintiff cannot, by assigning his cause of action confer upon 
 his assignee any other or different rights than he himself had, 
 and the assignee will be stayed in the second action till the costs 
 of the former action are paid.^^ A plaintiff' who has become 
 such by substitution cannot appeal from a judgment against his 
 predecessor dismissing the complaint, until the costs of a motion 
 by the former plaintiff to set aside the judgment are paid.^^ 
 
 365. Party seeking stay must be interested in collecting the un- 
 
 Perkins v. Hinman, 19 Johns. 237; Co. 8 N. Y. Week. Dig. 272; Garde- 
 Griffin V. Round Lake Camp Meeting nier v. Osioego Mut. Sav. d Aid Asso. 
 Asso. 26 Hun, 314; Bush v. Lathrop, 41 N. Y. S. R. 30, 17 N. Y. Supp. 
 22 N. Y. 535; Totmg v. Guij, 12 Hun, 394; Richardson v. White, 27 How. 
 325. Pr. 155; Sponld'mg v. Amcricnn 
 
 ^Jackson ex dem. Allen v. Carpen- Wood Board Co. 58 App. Div. 314, 
 
 ter, 3 Cow. 22. 68 N. Y. Supp. 945; Murray v. Cam- 
 
 ^Mulio V. Ingalls, 15 Abb. Pr. 429. eron, 38 N. Y. S. R. 793, 15 N. Y. 
 
 ^''Eephurn v. Hepburn, 54 How. Pr. Supp. 13; Hill v. Grant, 2 Tliomp. 
 
 466, 2 Month. L. Bull. 90; I\Hchols v. & C. 467; Barton v. Speis, 73 N. Y. 
 
 Nichols, 18 Jones & S. 251. 133; MacWhinnie v. Cameron, 57 
 
 ^Baies v. Dlckerson, 35 N. Y. S. Hun, 463, 19 N. Y. Civ. Proc. Rep. 
 
 R. 928, 12 N. Y. Supp. 773. 168, 32 N. Y. S. R. 985, 11 N. Y. 
 
 "Leicis V. Davis, 8 Daly, 185. Supp. 20. 
 
 ^Youle V. Brotherton, 10 Johns. -^Gardenier v. Eldred, 21 N. Y. Civ. 
 
 363. Proc. Rep. 221, 40 N. Y. S. R. 225, 
 
 '^Lewis V. Davis, 8 Daly, 185. 15 N. Y. Supp. 819. 
 
 -'Hebbard v. United States L. Ins.
 
 STAY FOR :N^0NPAYMENT OF COSTS. 429 
 
 paid costs. — A second action for the same cause will not be stayed 
 where the defendant in the second action has not, at the time 
 the application for a stay is made, an interest in the collection of 
 the costs of the first action. A second action will not be stayed 
 imtil the costs in the first action are paid, where it is brought 
 against the same defendant, but the first action was against the 
 •defendant personally and the second against him in a repre- 
 sentative capacity.^"* 
 
 Where, after the first action, the defendant has transferred 
 liis interest in the disputed property to another, the second action 
 against the assignee will not be stayed until the costs of the 
 former action are paid, because the defendant in the second ac- 
 tion has no interest in enforcing the payment of the costs in the 
 first action.^ ^ But where the second action is brought against the 
 ■defendant in the first action and his assignee, the plaintiff will 
 1)6 stayed in the second action as to botli defendants. ^*^ So, a sec- 
 ond action mil not be stayed against the defendant in the first 
 action where he has assigned the costs in that action and has no 
 interest in the application.^'^ 
 
 A stay will not be granted in an action where the parties seek- 
 ing the stay were not parties to the former action.-^ jSTor will 
 an action be stayed for the nonpayment of costs, where the plain- 
 tiff in the second action claims under the same title as the plain- 
 tiff in the former action, but was not a party to that action. ^^ 
 The court can grant a stay in the second action, although new de- 
 fendants have been included in that action. ^"^ 
 
 366. Different actions arising from the same cause. — Where 
 
 "Vetterlein v. Barnes, 43 Hun, -^Sinrpsoi v. Brcirster, j Paige, 
 
 437; Beemer v. McCoy, 2 City Ct. 24.5. 
 
 Hep. 29G; Jackson ex dem. Livings- '"^Bolton v. Corse, 15 Jones & S. 
 
 ton V. Edwards, 1 Cow. 138; Rich- 493; Jackson ex dem. Clark v. Clark, 
 
 ■ardson v. White, 27 How. Pr. 155. 1 Cow. 140. 
 
 """■Bolton V. Corse, 15 -Jones & S. ^"Ten Broeck v. Reynolds, 13 How. 
 
 493. Pr. 462. 
 
 '"^Kentish v. Tatham, 6 Hill, 372; ^"Kentish v. Taiham, 6 Hill, 372; 
 
 Hill V. Grant, 2 Thomp. & C. 467. Pierson v. Lydecker, 1 Law. Rec. 177.
 
 430 THE LAW or COSTS IN NEW YORK. 
 
 the second action involves the same title, but relates to different 
 land, the action will not be stayed/'^ Where the plaintiff has a 
 cause of action in tort, and one ex contractu arising from the 
 same cause, the causes of action are distinct, and where he has 
 been defeated in one he will not be stayed in the second till the 
 costs of the first are paid.^^ Where the plaintiff in the first 
 action claimed to be a factor, and sought to foreclose his lien, 
 and the court held that he was the owner, taking under a war- 
 ranty, the defendant will be stayed in an action upon the war- 
 ranty until the costs of the first action are paid. Both actions 
 are brought upon the same contract and relate to the same sub- 
 ject-matter.^^ 
 
 367. Party suing in forma pauperis.— A plaintiff suing in 
 forma pauperis will not be stayed till the costs in a fonner action 
 for the same cause are paid."^^ But motion costs incurred in the 
 same action, before the plaintiff had obtained leave to sue as a 
 poor person, will act as a stay.^^ 
 
 368. When an infant will be stayed. — An appeal by an infant 
 by a guardian ad litem who has become insolvent will not be 
 stayed until the costs of the trial are paid.^® 
 
 369. When a party is entitled to a stay. — Where an equity ac- 
 tion is dismissed without prejudice to an action at law upon the 
 same contract, which was sought to be reformed in the former 
 action, the action at law will not be stayed because of the 
 nonpayment of costs of the equity action. The words "without 
 prejudice" mean that the plaintiff is at liberty to prosecute an 
 action at law the same as if no previous action had been brought 
 
 ^Stewart v. Hilton, 27 Misc. 239, "Code Civ. Proc. § 461; Herbert 
 
 58 N. Y. Supp. 415. v. Drake, 2 X. Y. City Ct. Rep. 175; 
 
 ^-Arnold v. Clark, 9 Daly, 259. Harris v. Mutual L. Ins. Co. 18 N. 
 
 '■''Spaidding v. American Wood Y. Civ. Proc. Rep. 195, 10 N. Y. 
 
 Board Co. 58 App. Div. 314, 68 N. Y. Supp. 473. 
 
 Supp. 945; Spraguc v. Bartlioldi Ho- ^I.yons v. Murat, 4 Abb. N. C. 13. 
 
 tel Co. 68 Hun, 555, 22 N. Y. Supp. '"Wice v. Commercial Ins. Co. 7 
 
 1090; Thompson v. Burchell, 16 Daly, 258, 2 Abb. N. C. 325. 
 Jones & S. 537.
 
 STAY i<'OR ^NOJMPAYMEKT OF COSTS. 431 
 
 tliereon.^''' There is no presumption tliat costs are paid, and 
 when the defendant moves for a stay the burden is on the plain- 
 tiff to prove that they have been paid.^*^ It must appear from 
 the record that the actions are identical, and that the relief 
 sought in each is similar.^^ 
 
 A stay will not be granted until the first action is ended, be- 
 cause until that time the defendant is not entitled to costs. An 
 action is not ended till an order of discontinuance is entered. It 
 cannot be discontinued on mere notice."*^ Wliere a motion for 
 a stay is denied on the ground that the former action is not 
 ended the defendant may make another motion without obtain- 
 ing leave of the court, after the final judgment has been entered 
 in the former action.^^ The imprisonment of the judgment 
 debtor is a satisfaction of the judgment as long as it continues. 
 Therefore, a new action for the same cause will not be stayed 
 while the plaintiff is imprisoned under a body execution issued 
 in the former action.^^ 
 
 370. When the stay becomes operative. — The stay for non- 
 payment of the costs required to be paid by an order mentioned 
 in § 779 of the Code of Civil Procedure does not commence until 
 the expiration of ten days after the personal service of a copy of 
 the order, or twenty days, if the service is by mail.*^ Costs im- 
 posed as a condition of the discontinuance of an action must be 
 taxed by the defendant before the nonpayment thereof will oper- 
 
 '"8leels V. Bodhie, 68 App. Div. mer, 32 Misc. 388, 66 N". Y. Supp. 
 
 217, 73 N. Y. Supp. 1093; Davis v. 721; Wellman v. Frost, 38 Hun, 3S9; 
 
 Duffie, 3 Abb. Pr. 363, 5 Duer, 688. Feeder v. Lockivood, 30 Misc. 531, 62 
 
 ^Acjer V. Ager, 1 Month. L. N. Y. Supp. 713; Pettibone v. Dralce- 
 
 Bull.2. ford, 1 How. Pr. N. S. 141; Canavel- 
 
 ^Wrnold v. Clark, 9 Daly, 259. lo v. Michael & Co. 31 Misc. 170, 63 
 
 *°Bishop V. Bislwj}, 7 Robt. 194. N. Y. Supp. 967; Verplank v. Ken- 
 
 ^Noonan v. Neio York, L. E. & W. dall, 15 Jones & S. 513; Margulies 
 
 R. Co. 68 Hiui, 387, 52 N. Y. S. R. v. Damrosch, 23 Misc. 77, 51 N. Y. 
 
 203. 22 N. Y. Supp. 860. Supp. 833; Rohinson v. Klein, 31 
 
 ^Eaton V. Wpckoff, 4 Wend. 203. Abb. N. C. 481. 62 N. Y. S. R. 73, 3a 
 
 "Marks v. King, 66 How. Pr. 453, N. Y. Supp. 262. Contra, Hazard v. 
 
 13 Abb. N. C. 374; Austi^i v. Wit- Wilson, 3 Abb. N. C. 50.
 
 432 THE i-A\V OK COSTS IX XEW YOUK. 
 
 ato as a stay to tlio comiiiciiccinont of a soeond action for tlic same 
 ■caiise.'*^ Where bv stipulation of the ])arties a new order is sub- 
 stitnted in pLace of a former order, there must be a service of a 
 copy of tlie second order to entitle the party to a stay.^"* 
 
 371. What proceedings are stayed. — A star for nonpayment of 
 motion costs is regnlatc^l by the Code of Civil Procednre and 
 the court has no power to grant a stay more extensive than that 
 provided by law^■*° A party under a stay which has not been 
 waived cannot move the case, when it is reached on the call of 
 the calendar. If he does move the case, any judgment obtained 
 by him will be set aside.'*^ ISTor can he make a motion in the 
 case."*^ Nor enter up judgment because the answer is not prop- 
 erly verified.'*'^ The nonpayment of motion costs will not stay 
 any proceedings necessary to enable the party in default to re- 
 view the order by motion''*^ or by an ap]'»eal r'^ nor a motion for 
 retaxing the costs of such an appeal ;^- nor to set aside a body 
 execution issued to collect the judgment entered ;^^ nor a motion 
 by an administrator to be substituted as a party in the place of 
 the deceased, whose proceedings were stayed, because only a 
 party can be stayed, and the administrator will not be a party 
 till the motion is granted.^'* A third party will not be restrained 
 till the costs of a party to the action are paid f^ nor Avill a party 
 be stayed from making a motion to compel the opposite party to 
 enter the judgment in the action. ^^ A failure to pay costs in a 
 
 **PeopIe V. Ticeed, 5 Hun, 382. hocher Cool Co. 25 Misc. 309, 54 N. 
 
 *'^Thalceimer v. Hays, 6 N. Y. S. Y. Riipp. 566. 
 
 R. 125, 26. N. Y. Week. Dig. 209. '•-Thalceimer v. Tlni/s. 6 N. Y. S. 
 
 *^Feist V. ^^ew York, 15 App. Div. R. 125, 26 N. Y. Week. Dig. 209. 
 
 495, 44 N. Y. Siipp. 497. "'Knoft v. EUsirorth, 8 N. Y. S. R. 
 
 *'Bron:n v. GrisicoJd, 23 Hun, 618. 568; National Bank v. Honsee. 15 
 
 *mational Bank v. Honsee. 15 Abb. Abb. N. C. 488. 2 How. Pr. N. S. 200, 
 
 X. C. 488. 2 How. Pr. N. S. 200, 7 N. 7 N. Y. Civ. Proc. Rep. 350. 
 
 Y. Civ. Proc. Rep. 350. '-^Chiie v. Emerich, 16 N. Y. Civ. 
 
 *mooney v. liyerson, 8 N. Y. Civ. Proc. Rep. 123. 19 N. Y. S. R. 710, 
 
 Proc. Rep. 435. 2 N. Y. Supp. 874. 
 
 "'Marsh v. Woolsey, 14 Hun. 1. '^'- Foley v. liathbone, 4 N. Y. Week. 
 
 "-4)?o«;v»i07/.s, 4 Abb. N. C. 11: Die. 55. 
 
 Weehaicken Wharf Co. v. Knicker- "^Ten Eyck v. Wanoick, 24 N. Y.
 
 STAY FOK NONPAYMENT OF COSTS. 433 
 
 supplementary proceeding stays only the supplementary pro- 
 ceedings, and not the proceedings in the action. ^^ A motion for 
 the same relief as the motion in which the unpaid costs were 
 incurred will be stayed till the costs of the former motion are 
 paid.^^ A party under a stay cannot place the cause on the 
 short cause calendar,^^ but placing it on that calendar before the 
 costs are paid is not a contempt of court. ^° Where a party un- 
 der a stay is ready to proceed with the trial whenever it is moved 
 by the opposite party, the latter cannot take a default or an in- 
 quest. His only right is to insist upon his stay, and demand 
 that the opposite party shall not move the case. If he moves the 
 case the party under a stay can assert all his rights as though 
 he had not been under a stay. The moving of the cause for trial 
 is a waiver of the stay,^^ 
 
 A party under a stay cannot take an onward movement in the 
 action. He cannot serve a reply to a counterclaim set up in the 
 answer, but he has the right to serv^e a defensive pleading. He 
 may serve an answer although he has not paid motion costs. He 
 is not the aggressor in the action.^^ A party to whom motion 
 costs are ordered paid may serve an answer setting up a counter- 
 claim, before the stay becomes effective, and such service is not 
 a waiver of the stay. The defendant may insist upon his stay 
 when the plaintiff serves his reply to the counterclaim.®^ 
 
 Costs awarded upon an appeal to the appellate division of the 
 
 Civ. Proc. Rep. 6, 63 N. Y. S. R. 165, "'Kisenlord v. Clum, 52 Hun, 461, 
 
 30 N. Y. Supp. 859. 17 N. Y. Civ. Proc. Rep. 147, 24 N. 
 
 "'Godfrey v. Pell, 5 Month. L. Bull. Y. S. R. 102, 5 N. Y. Supp. 512. 
 
 69. '^'■Randell v. Ahrisqueta, 20 Abb. N. 
 
 ^Thaule v. Frost, 1 Abb. N. C. 298. C. 292, 2 N. Y. City Ct. Rep. 303. 
 
 "'^McHnqh v. Astroplie, 2 Misc. 478, ^^RoUnson v. Klein, 31 Abb. N. C. 
 
 51 N. Y.'S. R. 142, 22 N. Y. Supp. 481, 62 N. Y. S. R. 73, 30 N. Y. Supp. 
 
 79. 262; Lyons v. Murat, 4 Abb. N. C. 
 
 "^Powell V. Schenck, 6 App. Div. 13, 54 How. Pr. 23; Thaule v. Frost, 
 
 130, 39 N. Y. Supp. 877. 1 Abb. N. C. 298. 
 COSTS 28.
 
 434 THE LAW OF COSTS IN NEW YORK. 
 
 supreme court on an appeal from an order aet as a stay under 
 § 779 of the Code of Civil Procedure. The amendment to this 
 section by chap. 181 of the Laws of 1884 settled the conflict of 
 authority upon this poiut.^* 
 
 372. How the stay may be waived, — The party who is entitled 
 to the stay may waive the same by taking an onward movement 
 in the case, — as, by serving a notice of trial,^^ or by not insist- 
 ing upon it when the opposite party makes a movement in the 
 action, — as, by accepting the notice of trial from the party in de- 
 fault,^^ or arguing a motion on its merits and taking an appeal 
 therefrom f' or by proceeding with the case without further ob- 
 jection, after the court has held that the stay can be determined 
 by payment of the costs at that time f^ or by arguing a motion 
 upon its merits A\dthout claiming a stay.^^ A party does not 
 waive the stay by serving a pleading. '^^ 
 
 373. How the stay is terminated. — As soon as the costs are 
 paid, either to the attorney of the opposite party ,'^^ or to the 
 sheriff upon an execution, the stay is terminated. '^^ It has been 
 
 "Co/ien V. Krulewitch, 81 App. 531, 62 N. Y. Supp. 713; Verplanck 
 
 Div. 147, 80 N. Y. Supp. 689; Hunt v. Kendall, 15 Jones & S. 513. 
 
 V. Sullivan, 79 App. Div. 119, 79 N. ^Verplanck v. Kendall, 15 Jones & 
 
 Y. Supp. 708; Mclntyre v. German S. 513. 
 
 Sav. Bank, 59 Hun, 536, 13 N. Y. "'Ally. Gen. v. Continental L. Ins. 
 
 Supp. 674; McEugh v. Astrophe, 2 Co. 38 Hun, 521. 
 
 Misc. 478, 51 N. Y. S. R. 142, 22 N. ^Moore v. Moore, 44 App. Div. 253, 
 
 Y. Supp. 79; Cohu v. Eusson, 25 60 N. Y. Supp. 653. 
 
 Jones & S. 222, 17 N. Y. Civ. Proc. '^Kiefer v. Grand Trunk R. Co. 37 
 
 Rep. 434, 25 N. Y. S. R. 811, 6 N. Y. N. Y. S. R. 306, 13 N. Y. Supp. 860; 
 
 Supp. 512; Phipps v. Carman, 26 Re Loftus, 41 N. Y. S. R. 357, 16 N. 
 
 Hun, 518. The cases rendered obso- Y. Supp. 327. 
 
 lete by the amendment of 1884 are '"'Robinson v. Klein, 31 Abb. N. C. 
 
 Verplanck v. Kendall, 15 Jones & S. 481, 62 N. Y. S. R. 73, 30 N. Y. Supp. 
 
 513; Eisenlord v. Clum, 52 Hun, 461, 262; Lyons v. Murat, 4 Abb. N. C. 
 
 17 N. Y. Civ. Proc. Rep. 147, 24 N. 13, 54 How. Pr. 23; Marks v. King, 
 
 Y. S. R. 402, 5 N. Y. Supp. 512. Con- 13 Abb. N. C. 374, 66 How. Pr. 453. 
 
 tra, Tan Woert v. Ackley, 56 Hun, '"^Moore v. Moore, 44 App. Div. 253, 
 
 375, 10 N. Y. Supp. 673. 60 N. Y. Supp. 653. 
 
 '^Reeder v. Lockwood, 30 Misc. ^^Brown v. Kahn, 17 Hun, 599.
 
 STAY FOE NONPAYMENT OF COSTS. 435 
 
 held at special term that a party who has not paid motion costs 
 may make a motion in the action, and if the opposite party upon 
 the argument objects to the hearing of the motion on the ground 
 that the former costs are not paid, the moving party may ob- 
 viate that objection by then paying the costs of the former mo- 
 tion.^^ 
 
 ^^Moore v. Moore, 44 App. Div. 253, 
 60 N. Y. Supp. 653.
 
 CHAPTEE XXIX. 
 
 TAXATION OF COSTS. 
 
 374. In general. 
 
 375. Notice of taxation. 
 
 376. Hetaxation. 
 
 377. Power of the clerk upon the taxation of costs. 
 
 378. Duty of the clerk upon the taxation of costs. 
 
 o. In general. 
 
 b. Entering judgment upon a remittitur. 
 
 c. Upon special proceedings. 
 
 379. Procedure upon a review of taxation of costs. 
 
 a. In general. 
 
 6. Papers used upon appeal from the taxation of the clerk. 
 
 c. How the discretion of the court or referee in awarding costs is 
 
 reviewed. 
 
 d. E.ight to review the taxation of costs lost by laches. 
 
 e. Right to review the taxation of costs waived by apix-al. 
 
 f. Procedure upon appeal from the order of the special term. 
 
 g. Appeal lies to what courts. 
 
 380. Kow costs are taxed upon the decision of an appeal. 
 
 374. In general. — The statute governing the taxation of costs 
 is found in §§ 3262-3267 of the Code of Civil Procedure. 
 
 Costs may be taxed upon notice, as required in § 3263 of the 
 Code of Civil Procedure; or, where it is important that the 
 judgment he entered at once, the costs may be taxed ex parte 
 and notice of retaxation given as provided by § 3264 of the Code 
 of Civil Procedure. All the parties interested in the question 
 of costs may stipulate that the costs be taxed at a certain sum. 
 Then no notice of taxation or retaxation is necessary. Where 
 both parties are entitled to costs, or one party is entitled to the 
 recovery and tlie other to the costs, only one judgment should be 
 entered. If the plaintiff does not enter judgment, the defend- 
 
 43G
 
 TAXATION OF COSTS. 
 
 437 
 
 ant can obtain leave from the court to do it.^ If one of several 
 defendants has not paid interlocutory costs awarded against him, 
 but not against the other defendants, only one judgment can be 
 entered, but different sums may be taxed against the different 
 parties, and the interlocutory costs may be taxed against the 
 proper party.^ 
 
 There is no authority for severing an action after judgment 
 for the purpose of taxing such costs.^ The clerk should tax the 
 costs, where a case is put over the term and the parties cannot 
 agree upon the amount of costs.^ 
 
 375. Notice of taxation. — It is no objection to a notice of ad- 
 justment of costs that it was given before the right to recover 
 costs was established, provided that the right to such costs as 
 were taxed, existed at the date for which the notice was given.^ 
 A letter proposing to tax a bill of costs at a certain time is not 
 a notice of taxation, and a taxation of costs on such notice is 
 irregular.^ A party who does not appear before the taxing offi- 
 cer waives his right to object to the amount.'^ Where it is sworn 
 positively that no notice of adjustment of costs has been re- 
 ceived, the opposite party must show the time and manner of 
 serving such notice.^ If the notice is not served the required 
 time before the taxation, such taxation is irregular.^ If the op- 
 posite party does not appear on the day for which the taxation 
 w^as noticed the costs may be taxed on a subsequent day without 
 any further notice.^'' An assignee for creditors should give no- 
 tice of taxation of his costs and expenses to all the parties who 
 
 ^Johnson v. Farrell, 10 Abb. Pr. "Brown v. Ferguson, 2 How. Pr. 
 
 384; Reilly v. Lee, 85 Hun, 315, 66 128. 
 
 N. Y. S. R. 460, 32 N. Y. Supp. 976; 'Uitickley v. Boardman, 3 Cai. 134. 
 
 Runnell v. Griffin, 8 Abb. Pr. 39. ^Van Wyck v. Reid, 10 How. Pr. 
 
 ^Code Civ. Proc. §§ 779, 1246. 366. 
 
 ^Fox V. Muller, 31 Misc. 470, 64 N. ^Bissell v. Dayton, 2 How. Pr. 80. 
 
 Y. Supp. 388. ^"Cooper v. Astor, 1 Johns. Cas. 32. 
 
 *0'Loughlin v. Hammond, 12 N. Y. Contra, Bissell v. Dayton, 2 How. Pr. 
 
 Civ. Proc. Rep. 171. 80. 
 
 'Anonymons, 4 Sandf. 693.
 
 438 THE LAW OF COSTS IN NEW YORK. 
 
 have appeared.^ ^ A defendant who appears is entitled to notice 
 of adjustment of costs, although he omits to answer, and the 
 judgment without notice to him is irregular.^^ A person who 
 will eventually be compelled to pay the costs of an action may, 
 by motion, have the costs therein taxed at the proper amount, 
 although he is not a party to that action,^^ 
 
 376. Retaxation. — Where costs are taxed without notice, the 
 amount, as adjusted at that time, is final. If, upon retaxation, 
 the amount of costs is reduced, the judgment is not changed, but 
 the amount of the reduction is credited upon the execution.^* 
 Where costs are inserted in a judgrtient without taxation, this is 
 a mere irregularity which should be cured by a motion. The 
 objection cannot be taken upon appeal from the final judg- 
 ments^ Where costs have been taxed -without notice the rem- 
 edy is by motion, as provided in § 3264 of the Code of Civil Pro- 
 cedure, and not by an appeal from the judgment. -^^ Upon such 
 a motion the affidavit of the moving party should show to what 
 items objection is made.-''^ WTiere one of two defendants enters 
 up a judgment with costs, a codefendant who objects to the tax- 
 ation of costs should move to have the judgment opened and cor- 
 rected, and then tax his costs and enter the proper judgment.-^^ 
 The court will not order a retaxation of costs, where the judg- 
 ment debtor has paid the costs previous to the motion.-'^ 
 
 377. Power of the clerk upon the taxation of costs. — The clerk 
 
 "72e Boiolhy, 34 Misc. 311, G9 N. ''^Hecla Consol. Gold Min. Co. v. 
 
 Y. Supp. 783. O'Neill, 23 N. Y. Civ. Proc. Rep. 143, 
 
 ^Elson V. Sew York Equitable Ins. 51 N. Y. S. R. 43Q, 22 N. Y. Supp. 
 
 Co. 2 Sandf. 6.54, 2 N. Y. Code Rep. 130. 
 
 30; Gilmartin v. Smith, 4 Sandf. '"/le Plattsbiirgh, 27 App. Div. 353, 
 
 684. 50 N. Y. Supp. 356. 
 
 "Keelcr v. Keeler, 102 N. Y. 30, 1 ",/ermain v. Lake Shore d- M. S. 
 
 N. Y. S. R. 673, 6 N. E. 678. R. Co. 5 Month. L. Bull. 58. 
 
 ^*netoitt V. City Mills, 136 N. Y. "Haiiselt v. Bonner, 17 N. Y. Civ. 
 
 211, 49 N. Y. S. R. 335, 32 N. E. Proc. Rep. 320, 25 N. Y. S. R. 36, 6 
 
 768: Baker v. Codding. 3 Misc. 512, N. Y. Supp. 473, Affirmed in 117 N. 
 
 52 N. Y. S. R. 416, 23 X. Y. Supp. 5; Y. 634, 22 N. E. 1129. 
 
 Dix V. Palmer, 5 How. Pr. 233. "Day v. Beach, 1 IIow. Pr. 236.
 
 TAXATION OF COSTS. 439 
 
 can tax costs only as allowed by the Code of Civil Procedure.^'' 
 The costs and disbursements which may be taxed are confined to 
 business done in court in the progress of a cause.^^ 
 
 The certificate of the trial judge as to any fact is conclusive 
 upon the clerk, and he cannot disregard it.^^ If the certificate 
 is incorrect it should be corrected on motion, not by retaxation of 
 costs.^^ The clerk has no power to refuse to tax separate bills 
 of costs, proposed by defendants who answered separately, on 
 the ground that such separation was unnecessary and collusive. 
 The remedy of the plaintiff is by a motion in court for the relief 
 to which he deems himself entitled.^* The clerk must follow 
 the order or judg-ment, and if that is not right the remedy is to 
 appeal therefrom, or by an application to the court for that re- 
 lief, not to move for a retaxation of costs.^^ Where there is no 
 verdict, report of a referee, or order of the court awarding costs 
 the clerk should refuse to tax costs. If the party thinks that he 
 is entitled to costs he should apply to the court for an order re- 
 quiring the clerk to tax his costs.-^ 
 
 The clerk should decide questions of fact raised by conflicting 
 affidavits. The special term should pass on questions of law.^'^ 
 The only way of presenting legal evidence before the clerk is by 
 affidavits.^^ The clerk exhausts his powers on one hearing be- 
 fore him.^^ After the clerk has once taxed costs, he cannot, in 
 the absence of both parties, again retax costs.^*^ 
 
 ^Neioman v. G-reiff, 3 N. Y. Civ. !N". Y. Supp. 566; Schum v. Roches- 
 
 Proc. Rep. 362. ter, 16 N. Y. Civ. Proc. Rep. 218, 20 
 
 *^Lynch v. Meyers, 3 Daly, 256. N. Y. S. R. 547, 3 N. Y. Supp. 512; 
 
 "Cooley V. Cumminys, 24 Jones & Beam v. Sullivan, 13 Abb. N. C. 371 ; 
 
 S. 521, 17 N. Y. Civ. Proc. Rep. 145, Olcott v. MacLean, 11 Hun, 394. 
 
 24 N. Y. S. R. 172, 4 N. Y. Supp. -"Bailey v. Stone, 41 How. Pr. 346. 
 
 531. ^Crosley v. Cohb, 37 Hun, 271, 9 
 
 '^Van G elder v. Hallenheck, 15 N. N. Y. Civ. Proc. Rep. 322. 
 
 Y. Civ. Proc. Rep. 333, 18 N. Y. S. ^Lyman v. Young Men's Cosmo- 
 
 R. 19, 2 N. Y. Supp. 252. poUtan Cluh. 38 App. Div. 220, 56 
 
 '■'^Williams v. Cassady, 22 Hun, N. Y. Supp. 712. 
 
 180, 59 How. Pr. 490. -"Larlcin v. Steele, 25 Hun, 254. 
 
 ^Manhattan R. Co. v. Youmans, *^Murdock v. Adams, 10 Hun, 566. 
 81 Hun, 82, 62 N. Y. S. R. 562, 30
 
 440 THE ],AW OF COSTS IN NEW YOKK. 
 
 378. Duty of the clerk upon the taxation of costs, a. Tn gen- 
 eral. — T]ie duty of tlie clerk upon the taxation of costs is defined 
 by § 3206 of the Code of Civil Procedure. He sliould examine 
 the charges,^^ and should correct all errors.'^^ If the affidavit of 
 a disbursement shows that the item is not properly taxable, he 
 should disallow it, although there is no opposing alfidavit.^^ In 
 taxing the referee's fees, he should be satisfied that the number 
 of days for which a charge is sought to be taxed was necessarily- 
 spent on the reference.^* 
 
 h. Entering judgment upon a remittitur. — Generally, where 
 a judgment is affirmed with costs, the clerk has power to tax the 
 costs upon entering judgment upon the remittitur.^ ^ If the 
 clerk has not the power to adjust the costs the court has power 
 to so adjust them.^^ 
 
 c. Upon special proceedings. — The clerk may tax costs on a 
 mandamus,^'^ but not in special proceedings, — as, in street open- 
 ing cases.^^ 
 
 379. Procedure upon a review of taxation of costs, a. In gen- 
 eral. — "Where the costs are improperly taxed the remedy is not 
 by an appeal from the judgment, but by a motion to readjust 
 costs, and the deduction, if any, should be taken from the judg- 
 ment.^^ An action in equity will not lie to correct the error. '*'^ 
 
 h. Papers nsed upon appeal from the taxation of the clerh. — 
 Upon an appeal from the taxation by the clerk, only those papers 
 can be used which were used before the clerk, as this is in the 
 nature of an appeal from the clerk's rulings.''^ Where oral ob- 
 
 "^Beldinq v. Conlclin, 4 How. Pr. "^KcJh/ v. Plum, 50 How. Pr. 236. 
 
 196, 2 N. Y. Code Rep. 112; Stimson ^Cochran v. Ingersoll, 11 Hun, 342. 
 
 V. Hvfjgins. 16 Barb. 658, 9 How. Pr. "'People ex rel. Sanders v. Gol- 
 
 86. bortie, 20 How. Pr. 378. 
 
 •^-Rogers v. Rogers. 2 Paige, 458. ^^Re Fourth Ave. 11 Abb. Pr. 189. 
 
 "/?ic/.: V. /,'ee.sc, 52 Him, 125, 17 N. "''Watson v. Gardiner, 50 N. Y. 
 
 Y. Civ. Proc. Rep. 110, 23 N. Y. S. 671; Beattie v. Qua, 15 Barb. 132; 
 
 R. 404, 5 N. Y. Supp. 121; Delcomyn Andrews v. Cross, 17 Abb. N. C. 92. 
 
 V. Chamberlain, 48 How. Pr. 409. *°Neic York v. Cornell, 9 Hun, 215. 
 
 "Broicn v. Windmuller, 4 .Tones & "Remington Paper Co. v. O'Brien, 
 
 S. 75, 14 Abb. Pr. N. S. 359. 18 N. Y. Week. Dig. 209; Evans v.
 
 TAXATION or COSTS. . 441 
 
 jections are made and sustained, the oi^posite party ean present 
 affidavits sli owing what toolv place before the clerk, and this does 
 not allow the opposite party to submit an affidavit on the mer- 
 its.^^ An affidavit of what took place before the clerk is not 
 necessarv when the clerk ffives his reasons for his decision.^* 
 The papers thus used nec^d not be filed if they are presented to 
 the clerk and he is appraised of their contents.*^ AVhere costs 
 have been taxed by default, which is properly excused, the court 
 may send the matter back to the clerk to act on de novo.'^^ 
 
 The appellant should show by affidavit that the taxation was 
 opposed, and that the items objected to were taxed by the taxing 
 officer over his objection.'*'' The special term has a right to re- 
 view the question of costs before the entry of judgment.^'^ The 
 appellate division of the supreme court may make an original 
 order of retaxation when the matter is brought before it, al- 
 though it usually refrains from so doing until the matter has 
 been passed on by the special term.^^ It may do this althoug'h 
 no appeal has been taken from the taxation of the clerk.*^ 
 
 c. How the discretion of the court or referee in awarding 
 costs is revieived. — In equity actions where the discretion as to 
 costs has been exercised by the court or referee, such discretion 
 cannot be reviewed at special term, but only by an appeal from 
 
 Silbermnnn, 7 App. Div. 139, 40 N. *'\]Iattheics v. Mafson, 3 N. Y. Civ. 
 
 Y. Supp. 298; Li/on ex dem. Eden v. Proc. Rep. 157. 
 
 Wilkes, 1 Cow. 591; Smith v. Kerr, ^Constantine v. Ymi ^^'inkle, 2 
 
 15 N. Y. Civ. Proc. Pvep. 126; Wehh How. Pr. 273; Cuyler v. Coats, 10 
 
 V. Croshy, 11 Pai^e, 193; Shultz v. How. Pr. 141; Lotti v. Krakauer, 1 
 
 Whitney, 9 Abb. Pr. 71, 17 How. Pr. N. Y. City Ct. Rep. 60, 1 N. Y. Civ. 
 
 471; Varnum v. Wheeler, 9 N. Y. Proc. Rep. 312, note; People v. 
 
 Civ. Proc. Rep. 421; Comly v. 'New Oakes, 1 How. Pr. 195; Wilder v. 
 
 York, 1 N. Y. Civ. Proc. Rep. (Mc- Wheeler, 1 How. Pr. 136; Cutter v. 
 
 Carty) 306. Morris, 41 Hmi, 575, 7 N. Y. S. R. 
 
 *^Lyman v. Young Men's Cosmo- 426, 26 N. Y. Week. Disf. 254. 
 
 politan Club, 38 App. Div. 220, 56 N'. "Mooshrugficr v. Kaufman, 7 App. 
 
 Y. Supp. 712; Weio v. Crosby, 11 Div. 380, 40 N. Y. Supp. 213. 
 
 Paiere, 193. ^''Anonymous v. Anonymous, 10 
 
 *^yeio York v. Best, 19 App. Div. How. Pr. 353. 
 
 68. 45 N. Y. Supp. 970. "CoTiw v. Husson, 13 Daly, 334; 
 
 **Evans v. Silbermann, 7 App. Div. Whipple v. Williams, 4 How. Pr. 28. 
 139, 40 N. Y. Supp. 298.
 
 442 THE I.AW OF COSTS IN NEW YORK. 
 
 the judgment upon proper exceptions/^'* Where one of the par- 
 ties enters a judgment for costs not warranted by the decision, 
 the opposite party should move to correct the judgment in that 
 respect at special term,^^ or call the attention of the appellate 
 court to that fact upon an appeal from the judgment. ^^ 
 
 d. Right to review the taxation of costs lost by ladies. — The 
 motion to review the taxation of costs should be made promptly 
 and before the costs are paid,'^'^ as the right may be lost by 
 laches. ^^ 
 
 e. Right to revleiv the taxation of costs xuaived by appeal.^ 
 A party who appeals from a judgment waives his objection to its 
 regularity. ^'^ But where a party appeals from a judgment be- 
 fore he learns that the clerk has decided who was entitled to 
 costs, he is not estopped from reviewing the clerk's taxation of 
 costs.^^ IS^or does a party, by appealing from a judgment en- 
 tered upon the report of a referee, which gave costs to neither 
 party, waive his right to move for a correction of the judg- 
 ment.^' But a party waives his right to review the allowance of 
 costs when he enters the judgment himself.^^ 
 
 '^"Kiernan v. Agricultural his. Co. Dresser v. Wiokes, 2 Abb. Pr. 460; 
 
 3 App. Div. 26, 74 N. Y. S. E. 417, Gvckenhcimer v. Angevine, 16 Hun, 
 
 37 N. Y. Supp. 1070; Marshall v. 453; Mooers v. f^otmders, 6 Ch. Sent. 
 
 Boyer, 52 Hun, 181, 23 N. Y. S. R. 75; Morris v. Mullctt, 1 Johns. Ch. 
 
 302, 5 N". Y. Supp.. 150; Rosa v. Jen- 44; McLean v. Forivard, 1 Cow. 49. 
 
 Ji-ins, 31 Hun, 384. '^'Slecman v. Ilotchkiss, 45 N. Y. S. 
 
 ^^Marshall v. Boi/er, 52 Hun, 181, R. 749. 18 N. Y. Supp. 533; Pfaudler 
 
 23 N. Y. S. R. 302, 5 N. Y. Supp. Barm Extracting Bunging Apparatus 
 
 150; Jones v. Jones, 71 Hun, 519, Co. v. Sor^eHf, 43 Hun, 154, 25 N. Y. 
 
 54 N. Y. S. R. 885, 24 N. Y. Supp. Wock. Dig. 483, 5 N. Y. S. R. 413; 
 
 103; Briggs v. Hilton, 99 N. Y. 517, Stevens v. Neio York Elev. R. Co. 26 
 
 52 Am. Rep. 63, 3 N. E. 51; Sahater Jones & S. 569, 18 N. Y. Civ. Proc. 
 
 V. Sahnter, 7 App. Div. 70, 39 N. Y. Rep. 350, 31 N. Y. S. R. 404, 9 N. Y. 
 
 Supp. 958. Supp. 707 ; Guckenheimer v. Ange- 
 
 ^Marshall v. Boi/er. 52 Hun, 181, vine. 16 Hun, 453. 
 
 23 N. Y. S. R. 302. 5 N. Y. Supp. 150. ^Le Roy v. Broxcne, 54 Hun, 584, 
 
 "^Collomh V. Ca.ldirell, 5 How. Pr. 18 N. Y. Civ. Proc. Rop. 125. 28 N. 
 
 336, N. Y. Code Rep. N. S. 41; Scher- Y. S. R. 210, 8 X. Y. Supp. 82. 
 
 merhorn v. Van Voast, 5 How. Pr. ^''Marshall v. Boyer, 52 Hun, 181, 
 
 458: Day v. Beach, 1 How. Pr. 236. 23 N. Y. S. R. 303, 5 X. Y. Supp. 150. 
 
 '-^Penfield v. James, 4 Hun, 69; ''^Burrows v. Butler, 38 Hun, 121.
 
 TAXATION OF COSTS. 
 
 443 
 
 f. Procedure upon appeal from the order of the special term. 
 ' — Upon an ap])eal from an order resettling costs the recitals in 
 the order will be conclusive, where none of the papers are before 
 the appellate court. '^^ AVhere it does not appear just what items 
 were allowed and what objections were made by the appellant, 
 the court will not examine the matter, but will affirm the order.^'' 
 A party cannot raise the point that the affidavits before the 
 <;lerk were insufficient, when he did not object to the affidavits at 
 the special term. If he had objected at special term the judge 
 could have sent the matter back to the clerk with instructions 
 to tax the costs upon the filing of proper affidavits. ^^ Where an 
 order has been made in the allowance of costs, the party feeling 
 aggrieved exhausts his remedies upon appealing from that order, 
 and that question is never, after the decision upon appeal, an 
 open one.*^^ Oral statements made on the appeal, and which 
 w^ere not before the clerk upon the taxation, cannot control the 
 decision of the court. ^^ 
 
 g. Appeal lies to ivhat courts. — An appeal does not lie to the 
 court of appeals from an order of the appellate division of the 
 supreme court, readjusting the costs in an action.^^ But upon 
 an appeal from the judgment in the action, the question as to 
 which party is entitled to costs is a matter of strict legal right, 
 and may be reviewed by that court.^^ Where the question is, 
 which party is entitled to costs, the court of appeals will re"\dew 
 that question upon appeal from an order. ^° 
 
 ^^Atkivson V. Truesdell, 28 N. Y. 41 N. Y. 362; 7706 v. Sanhorn. .Se N. 
 
 S. R. 585, 7 N. Y. Supp. 801. Y. 93, 3 Abb. Pr. N. S. 189, 35 How. 
 
 "^Matthews v. Mattheivs, 14 N. Y. Pr. 197; Clarle v. Rochester. 34 N. 
 
 Civ. Proc. Eep. 399, 17 N. Y. S. R. Y. 355; McGregor v. McGreqor, 32 
 
 994, 1 N. Y. Supp. 222. IST. Y. 479. 
 
 ^'Rieger v. Svmn, 2 Misc. 467, 51 «Wop v. Sanhorn. 36 X. Y. 93. 3 
 
 N. Y. S. R. 140. 21 N. Y. Supp. 1037. Abb. Pr. N. S. 189, 35 How. Pr. 197: 
 
 '^Brofher^'on v. ConsauUis, 5 N. Y. 8t. John v. West, 4 How. Pr. 329, 3 
 
 S. R. 105. N. Y. Code Rep. 85; Tallman v. Hin- 
 
 "^Wolff V. Horn, 9 Misc. 100, 29 N. maji, 10 How. Pr. 89. 
 
 Y. Supp. 75. "^Slurgis v. Spofford, 58 N. Y. 103. 
 
 '^People ex rel. Clute v. Boardman,
 
 444 tup: t.aw of costs in >kw yokk. 
 
 380. How costs are taxed upon the decision of an appeal. — 
 
 Where a respondent charges too much costs upon tlie dismissal 
 of an ajipeal, the appellant's remedy is by a motion in the court 
 below. "^ A judgment of affirmance should not contain costs 
 included in a previous judgment, but should contain only the 
 costs of that appeal. Where previous costs are included in a 
 judgment of affimiance, the error sliould be corrected on motion 
 in the court below. ''^ Where the judgment below diflers from 
 the remittitur in respect to costs, the remedy is by a motion in 
 the court below to correct the judgment.^*^ The appellant is 
 bound by the judgment entered upon the remittitur, if he does 
 not seek to have it corrected.'^*^ Where an order is reversed a 
 judgment cannot be entered upon the remittitur, as the costs are 
 interlocutory and do not authorize the entry of a judgment. If 
 such a judgment is entered, the proper practice is to move in the 
 court below to set it aside.'^^ Where the appellate division 
 grants special motion costs, no taxation is necessary. The ordei* 
 is sufficient in itself. Where disbursements, to be taxed by the 
 clerk, are also granted, this is authority to the clerk to tax the 
 disbursements. The clerk of the supreme court, and not the 
 clerk of the appellate division, should tax such costs and dis- 
 bursements."^^ Upon the decision of an appeal from a decision 
 of a surrogate, it is proper to enter a judgment and to tax the 
 cost.''^^ 
 
 "Dresser v. Brooks, 2 N. Y. 559, 4 Bouton v. Welch, 59 App. Div. 288, 
 
 How. Pr. 207, 2 N. Y. Code Rep. 130. 69 N. Y. Supp. 407. 
 
 ^^Beardsleif ticythe Co. v. Foster, ''^Brown v. Leigh, 50 N. Y. 427, 1.? 
 
 36 N. Y. 561, 34 How. Pr. 97. Abb. Pr. N. S. 305; Code Civ. Proc. 
 
 ^'Patten v. Stitt, 50 N. Y. 591. § 311. 
 
 ""'Lesster v. Lawyers' Surety Co. 50 ''^Margulies v. Damrosch, 23 Misc. 
 
 App. Div. 181, 189, .30 N.Y. Civ. 77, 51 N. Y. Snpp. 833. 
 
 Proc. Kep. 388, 63 N. Y. Supp. 804; '^Vadley v. Davis, 38 Hun, 186.
 
 CHAPTER XXX. 
 
 COSTS ON APJ'EALS, 
 381. Statute. 
 582. In general. 
 
 383. Costs when appeal is taken from tlie judgnient and order. 
 
 384. Meaning of the word "argument."' 
 
 385. Costs as affected by irregularities. 
 
 386. Several appeals in the same case. 
 
 387. Appeal to correct an error of computation. 
 
 388. Right to appeal lost by accepting costs. 
 
 389. Costs of a reargument. 
 
 390. Costs in tlie court of appeals. 
 
 a. Meaning of the vsrords "with costs." 
 
 b. How the order of the court is interpreted or corrected. 
 
 c. Meaning of the words "with costs to abide the event." 
 
 d. Meaning of the words "without costs." 
 
 e. When the costs are a matter of right. 
 
 f. When the court of appeals has power to review the question of 
 
 costs. 
 
 g. When the decision of one appeal makes the consideration of an- 
 
 other appeal useless. 
 
 h. When the question was not presented to the court below. 
 
 i. When there are several parties on tlie side entitled to costs. 
 
 j. Amount of costs in the court of appeals. 
 
 k. Punitive costs. 
 I. Costs allowed upon withdrawing appeal. 
 
 m. Terms imposed upon opening a default. 
 
 n. Waiver of right to appeal from the interpretation of the court be- 
 low of the order of the court of appeals. 
 
 o. Allowances to counsel in cases where the offense charged is pun- 
 ishable with death. 
 
 391. Cost in the appellate division. 
 
 a. In general. 
 
 6. Meaning of the words "v\dth costs." 
 
 c. Costs of an order. 
 
 d. Meaning of the words "with costs to abide the event." 
 
 e. Meaning of the words "with costs to the appellant to abide the 
 
 event." 
 
 f. Meaning of the words "without costs." 
 
 g. E.xceptions ordered heard at the appellate division in the first in- 
 
 stance. 
 h. Verdict directed, subject to the opinion of the appellate division. 
 
 445
 
 446 Tiir: i.aw of costs in new york. 
 
 392. Costs when a judgment is rcvorsed. 
 
 393. Allowance of separate bills of oosts. 
 
 394. When costs will be denied to the succe.*sful party. 
 
 395. Costs upon appeals from orders. 
 
 c. Statute. 
 6. In general. 
 
 396. Costs upon orders overruling or sustaining demurrers. 
 
 397. Costs upon the dismissal of an appeal. 
 
 398. Costs upon appeals from order of county court granting a new trial. 
 
 399. Costs upon appeals in bastardy proceedings. 
 
 381. Statute. — Costs upon appeals are governed by § 3238 of 
 the Code of Civil Procedure, which is as follows: 
 
 "Upon an appeal from the final judgment in an action, the 
 recovery of costs is regulated as follows : 
 
 "I. In an action specified in § 3228 of this act the respondent 
 is entitled to costs upon the afilrmance, and the appellant 
 upon the reversal, of the judgment appealed from; except that, 
 where a new trial is directed, costs may be awarded to either 
 party, absolutely or to abide the event, in the discretion of the 
 court. 
 
 "II. In every other action, and also where the final judgment 
 appealed from is affirmed in part and reversed in part, costs may 
 be awarded in like manner, in the discretion of the court." 
 
 It wall be noticed that unless the action is one of those speci- 
 fied in § 3228 of the Code of Civil Procedure, the costs of the 
 appeal is in the discretion of the appellate court, although one of 
 the parties succeeds wholl}' in liis contention. 
 
 382. In general. — The party who .succeeds on the main issue 
 is entitled to the costs of the appeal.^ A party must be success- 
 ful upon all the main issues of the appeal to be entitled to costs.^ 
 Costs will not be allowed to either party if the appellant fails 
 
 ^People ex rcl. Ryder v. Kiiu/s X. Y. 444; Anonymous, 12 Johns. 
 
 County, 76 Mun, 71, 27 N. Y. Supp. 340: Pickett v. Barron, 29 Barb. 505; 
 
 857. Duffy v. Dimcan, 32 Barb. 587; 8taf- 
 
 ^WilUams v. Fitshugh, 44 Barb, ford v. Molt, 3 Paige, 100. 
 321, Modified on another point in 37
 
 COSTS ON APrKAT.S. 447 
 
 partly because lii"? appeal is too broad. ^ Costs will be allowed to 
 neither when both succeed, and the order or judgment appealed 
 from is modified ;^ or both appeal and do not succeed f or one 
 abandons his appeal and the other fails in his appeaP or suc- 
 ceeds only in part;^ or where both parties appeal and the judg- 
 ment is reversed because of errors committed by both parties.* 
 
 Where an appellant takes two appeals to review the same ques- 
 tion, the appeal that is improperly brought will be dismissed 
 with costs against the appellant.^ A respondent who took an ap- 
 peal to secure an expression of the appellate court in case of 
 reversal will be compelled to pay costs of his appeal upon an 
 affirmance of the judgment. The fact that he only argued for 
 an affirmance does not change this rule.^^ 
 
 If costs are discretionary upon the decision of an appeal, and 
 the order is silent as to costs, none are awarded to either party. -^^ 
 
 If the appellate court makes an erroneous direction in regard 
 to costs, the party feeling aggrieved thereby should move in that 
 court for a modification of the order in that respect, and not 
 make a motion in the court of original jurisdiction to correct the 
 alleged error. ^ - 
 
 383. Costs when appeal is taken from the judgment and order. — 
 Costs cannot be taxed upon an appeal from the judgment and 
 also from the order denying a motion for a new triaP^ Subdi- 
 
 'IVewton V. Russell, 87 N. Y. 527. ^"TompHns County v. Bristol, 58 
 
 'Re Scholle, 14 Hun. 14. How. Pr. 3. 
 
 'Smith V. Savin, 69 Hun, 311, 30 "Pennell v. Wilson, 5 Robt. 674, 2 
 
 Abb. N. C. 192, 53 N. Y. S. R. 378, Robt. 505, 2 Abb. Pr. N. S. 466: Nel- 
 
 23 N. Y. Supp. 568; Delafield v. lis v. DeForrest, 6 How. Pr. 413; 
 
 Westfield, 41 App. Div. 24, 58 N. Y. Savage v. Darroio, 4 How. Pr. 74, 2 
 
 Supp. 277 ; Tompkins County v. Bris- N. Y. Code Rep. 57. 
 
 tol, 58 How. Pr. 3; Salter v. XJtica, & ^-ClarJc v. Sullivan, 19 N. Y. Civ. 
 
 B. River R. Co. 86 N. Y. 401. Proc. Rep. 147, 31 N. Y. S. R. 756, 
 
 'Leftioich v. Clinton, 4 Lans. 176. 10 N. Y. Supp. 397; but see Gray v. 
 
 ^Kiah V. Grenier, 1 Thomp. & C. Hannah, 3 Abb. Pr. N. S. 183. 
 
 388. "Van Alen v. American Nat. Bank, 
 
 'Sander v. Neio York d H. R. Co. 10 Abb. Pr. N. S. 331 ; West v. 
 
 42 App. Div. 618, 59 N. Y. Supp. 127. Lynch, 1 N. Y. City Ct. Rep. 174; 
 
 \A bhey v. Wheeler, 170 N. Y. 122, Bullard v. Pearsall, 46 How. Pr. 383, 
 
 62 N. E. 1074. Affirmed in Court of Appeals, 46
 
 448 THE LAW OF COSTS IX XEW YORK. 
 
 vision 2 of § 3239 of the Code of Civil Procedure does not apply 
 to an appeal from an interlocutory judi^ient and also from an 
 order denying a new trial made under § 1010 of the Code of 
 Civil Procedure, which latter section raises questions entirely 
 distinct from those raised under the interlocutory judgment. 
 The order and judgment referred to in § 3239 of the Code is an 
 order refusing a new trial upon the merits, in which case appeals 
 from both judgment and order are unnecessar)\^* An appeal 
 from a judg-ment and also from an order denying a motion for a 
 new trial upon the ground of newly discovered evidence is not 
 within the provisions of § 3239 subd. 2, and costs on each appeal 
 •can be allowed.^ ^ If the appeal from the judgment is heard and 
 decided, and later a separate appeal is taken from the order de- 
 nying a new trial, costs upon both appeals may be allowed.^ ^ 
 
 384. Meaning of the word "argument." — The word "argu- 
 ment" in § 3251 of the Code of Ci^al Procedure is not to be con- 
 strued to mean an oral argument only, but it means the submis- 
 sion to the court of a printed brief. The successful party is 
 entitled to tax costs for argument, not^^'ithstanding that the case 
 was submitted without oral argument.^''^ 
 
 385. Costs as affected by irregularities. — '^o costs will be al- 
 lowed where the respondent consents to a reversal to correct an 
 irregularity in the report of the referee.^ ^ Nor will costs be 
 allowed a successful appellant, even to abide the event, where he 
 ■does not print his case as required by the court rules, but prints 
 in small capitals or italics all evidence favorable to hini.^*^ 
 
 How. Pr. 530; Syms v. Neio York, 18 Abb. N. C. 459, 12 X. Y. Civ. 
 
 105 N. Y. 15.3, 6 N. Y. S. R. 830, 26 Proc. Rep. 121. 
 
 N. Y. Week. Dig. 135. 11 N. E. 369; "Malcolm v. Hamill, 65 How. Pr. 
 
 r^ ^ n- V s -^o-^o 506, 4 N. Y. Civ. Proc. Rep. 221. 
 
 ■Code Civ. Proc. § 3239. ' „ , rr-n ^Q xxt^^a 
 
 ,,: , „, , ^:„ Contra, People v. Txlton, 18 Wend. 
 
 "Garrett v. Vi^ood. 61 App. Div. 
 
 514. 
 
 293, 70 N. Y. Siipp. 358. ^^Rchultheis v. Mclnermi, 27 Abb. 
 
 ^'■Streep v. McLougJdiu, 36 Misc. -s- q ^^3 24 X. Y. Civ. Proc. Rep. 
 
 165, 72 N. Y. Supp. 1061. 157, 37 N y. S. R. 537, 13 X. Y. 
 
 "iv'ee/er v. Barrett's P. d- E. Dye- Supp. 684. 
 
 ♦np-^sfoths/imertf, 22 Jones & S. 550, ^^Fuchs v. \Vm. H. Sweeney Mfg.
 
 COSTS ON APPEALS. 449 
 
 386. Several appeals in the same case. — The parties to two or 
 more actions can stipulate that tliey be tried together, and if 
 they so stipulate only one bill of costs will be allowed f*^ or they 
 may stipulate tliat costs may be taxed in each.^^ On the other 
 hand, if there is more tlian one appeal in tlie same case, altliough 
 all are embraced in one notice of appeal, costs will be allowed in 
 each case, and disbursements in one.^^ 
 
 387. Appeal to correct an error of computation. — Where a 
 mistalvc has been made in computation, and the attention of the 
 court below has not been called to it and a chance given to that 
 court to correct the mistake, and the judgment is modified only 
 in that respect, costs will be given to the respondent.^'' The re- 
 spondent, in such a case, will relieve himself of all liability for 
 costs if he serves upon his opponent a written offer tO' allow a 
 deduction of the amount of the error.-"* After such an offer a 
 judgment was modified, Avitli costs to the respondent, where the 
 error was shared by the referee and counsel on both sides and 
 consisted in rejecting certain items which were supposed to be 
 barred by the statute of limitations.^^ Where the plaintiff gives 
 evidence of matter not embraced within his complaint and the 
 defendant objects, without stating the grounds of his objection, 
 a new trial will be granted, costs to abide the event, or the judg- 
 ment will be reduced that amount, vnth costs to the plaintiff. 
 The defendant cannot defeat the plaintiff's right to costs, because 
 he did not direct the attention of the trial court to the exact ob- 
 jection to the evidence.-^ 
 
 Co. 34 N. Y. S. R. 925, 12 N. Y. Supp. 13 Jones & S. 1, Affirmed in 82 N. Y. 
 
 870. 1 ; B(tnh of Stfracuse v. Wisconsin 
 
 ^"King v. Brush, 5 Alb. L. J. 137. M. d F. Ins. Co. Bank, 36 N. Y. S. 
 
 ^mausclt V. Godfrey, 3 N. Y. Civ. R. 584, 12 N. Y. Supp. 952. 
 
 Proc. Rep. 116. -*KempIe v. Darroio, 7 .Jones & S. 
 
 "'^Brassington v. Rolirs, 3 Misc. 447. 
 
 262, 52 N". Y. S. R. 252, 22 N. Y. "'■Perrine v. Hoichkiss, 2 Tliomp. & 
 
 Supp. 1053; Hianton v. King, 76 N. C. 370. . 
 
 Y. 5S5 ; Goodridge v. Connor, 66 -'^Zimmerman v. Lo7ig Island R. 
 
 How. Pr. 143. Co. 14 App. Div. 562, 43 N. Y. Supp. 
 
 "'Clark V. Geerij, 8 .Jones & S. 227; 883. 
 Thomson \. Bank of British N. A. 
 COSTS 20.
 
 450 THE LAW OF COSTS IN KEW YORK. 
 
 388. Right to appeal lost by accepting costs. — It is well settled 
 that a party who accepts the part of an order favorable to him- 
 self is thereby bound by the whole order, and cannot appeal 
 therefrom. A party who receives the costs wliich the opposite 
 party is directed to pay as the condition of a favor cannot appeal 
 from the order granting the favor.^^ If the money is received 
 before the appeal is taken, the right to appeal is waived ; if after 
 the appeal is taken, the ajopeal is waived.^^ But where the pay- 
 ment of costs is absolute, and is not made dependent upon the 
 accepting of the favor asked, the party may appeal after receiv- 
 ing the costs.^^ A party who is coerced into paying costs by an 
 execution is not thereby deprived of his right to appeal.^" The 
 acceptance by the attorney of the costs allowed in the judgment 
 precludes the party from appealing from the judgment.^^ 
 
 389. Costs of a reargument. — Where a case is reargued at thr 
 instance of the court by reason of the disqualification of one or 
 more of its members, or because of an even division of the court 
 as constituted at the time of the argument, and, on account of the 
 change of the personnel of the court, an opportunity is given to 
 bi'eak the deadlock, or whatever the reason, so long as no blame 
 attaches to the party claiming the costs, he is entitled to as many 
 argument fees as he makes arguments. But he is not entitled 
 to have the item of $20 before notice of argument taxed more 
 than once."'^ 
 
 "Taussig v. Hart, 1 Jones & S. 198, 38 N. Y. Supp. 1112; Enapp v. 
 
 157; Platz v. Cohoes, 8 Abb. N. C. Broivn, 45 N. Y. 207. 
 
 392; Lewis v. Irving F. Ins. Co. 15 -"Farmers' Loan & T. Co. v. Bank- 
 
 Abb. 140. note; Lupton v. Jewett, 1 ers d M. Teleg. Co. 109 N. Y. 342, 
 
 Robt. 639, 19 Abb. Pr. 320; f^mith 16 N. E. 539; Re Amsterdam Water 
 
 V. Savin. 69 Hun, 311, 30 Abb. N. C. Co7nrs. 36 Hun, 534. 
 
 192, 53 N. Y. S. R. 378, 23 N. Y. ""Burch v. Keicbunj, 4 How. Pr. 
 
 Supp. 568. 145. 
 
 "^Radway v. Graham, 4 Abb. Pr. ^'Carll v. Oaldey, 97 X. Y. 633; 
 
 468; Wood v. Richardson, 91 Hun, Bennett v. Van Si/ckel, 18 N. Y. 481. 
 
 3.32, 72 N. Y. S. R. 103, 36 N. Y. ^-Roherson v. Rochester FoUino 
 
 Supp. 1001 ; Lewis v. Irving, F. Ins. Box Co. 68 App. Div. 528, 73 N. Y. 
 
 Co. 15 Abb. Pr. 140, note; Logeling Supp. 898: }fiUer v. King, 32 App. 
 
 V. New York Elev. R. Co. 5 App. Div. Div. 349, 52 N. Y. Supp. 1041; Sweet
 
 COSTS ON APPEALS. 451 
 
 390. Costs in the court of appeals, a. Meaning of the words 
 "with costs." — The words ''with costs," when used by the court 
 of appeals in an order of affirmance or reversal, where the allow- 
 ance of costs is discretionary, means costs in that court only.^^ 
 If the successful party is entitled under the order to a final judg- 
 ment, he can tax only the costs that have theretofore been 
 awarded him, in addition to the costs in the court of appeals. If 
 the courts below have awarded costs to his opponent, they have 
 not exercised their discretion in his favor, and therefore he is 
 not entitled to costs in those courts. "* In an equity action the 
 trial court, in entering up judgment upon a remittitur from the 
 court of appeals, which orders judgment absolute, "with costs," 
 for a party who lias not been allowed costs theretofore, may 
 grant the successful party costs in the trial court and an addi- 
 tional allowance."^ If the court of appeals assumes to deal with 
 the whole subject of costs, and wipes out and reverses the judg- 
 ment or decree appealed from, with costs, that includes all the 
 costs in the inferior courts."'^ In an equity action the trial court, 
 in entering up judginent absolute upon a remittitur from the 
 court of appeals for a party, "with costs," may, where he had 
 been allowed by the court of appeals costs in the trial court, also 
 give him an additional allowance. ^^ In an action at law the trial 
 court may, upon entering judgment absohite for a party upon a 
 remittitur from the court of appeals, grant an additional allow- 
 ance for the first time.^^ In equity actions, if the successful 
 
 V. Chapman, 53 How. Pr. 253; 13 K Y. Week. Dig. 128; People ex 
 
 O ucJcenheimer v. Angevine, 16 Hun, i-el. Morris v. Randall, 8 Daly, 81. 
 
 453. ^*Thomas v. Erans, 50 Hun, 441, 
 
 ^Re Amsterdam Water Comrs. 104 20 N. Y. S. R. 884, 3 N. Y. Supp. 
 
 N. Y. 677, 1 Silv. Ct. App. 351, 25 297; People ex r el. Morris v. Randall, 
 
 N. Y. Week. Dig. 393, 5 N. Y. S. R. 8 Daly, 81 ; Re Protestant Episcopal 
 
 744, 10 N. E. 545; Sisters of Charity Piihlic School, 86 N. Y. 396. 
 
 V. Kelly, 68 N. Y. 628; Re Hood, 17 '^''Barnard v. Hall, 143 N. Y. 339, 
 
 N. Y. S. R. 705, 1 N. Y. Supp. 833; 38 N. E. 301. 
 
 People V. Mercantile Credit Guaranty ^'^Rc Hood, 30 Hun, 472. 
 
 ro. 35 Misc. 755, 72 N. Y. Supp. 373; ^Hascall v. Kinrj, 165 N. Y. 288, 
 
 Hurley v. Bronm, 55 App. Div. 8, 59 N. E. 132. 
 
 67 N. Y. Supp. 279; Byrnes v. Baer, ^Jeniiaiii v. Lale Shore d M. S.
 
 452 THE LAW OF COSTS IN NEW YORK. 
 
 part}' has not been allowed costs in the appellate division npon 
 the original appeal he cannot tax the costs in that court.^'' The 
 only remedy of the party in such event is by motion in the court 
 of appeals to amend the remittitur to allow him costs in the ap- 
 pellate division, or else for permission to apply to that court for 
 costs, so that it may exercise its discretion in his favor.^® After 
 a final verdict in favor of a party who has had successive defeats, 
 or a reversal which vacates all previous orders respecting costs, 
 the successful party has a right to apply to the court for the 
 proper order for costs in the proceedings in which he has been 
 unjustly vexed. ^^ 
 
 b. Ho IV the order of the court is interpreted or corrected. — 
 There is no power in the courts below to award costs in those 
 courts, after the court of appeals has passed upon the whole 
 question of costs. The court below must enter up the judgment 
 directed by the court of appeals, without changing it in any par- 
 ticular.'*^ It cannot allow separate bills of costs to different de- 
 fendants for the first time.^'" Where the court of appeals afRnu'^ 
 the judgments of the special term and the appellate division, the 
 costs adjudicated in those courts become the judgment of the 
 court of appeals. The courts below cannot alter the judgment 
 of this court in that respect any more than in any other respect. 
 If the appellant wishes to have the costs at special term and the 
 appellate division reduced, he should return the remittitur to the 
 court of appeals and make his motion to amend it in that re- 
 
 R. Co. 31 Hun, 558; Savage v. Allen, *^Bcnjamin v. Ver Nooy, 36 App. 
 
 2 Tliomp. & C. 474; Burdett v. Lowe, Div. 581, 29 N. Y. Civ. Proe. Rep. 
 
 22 Hun, 588; Parrott v. Sawyer, 26 120, 55 N. Y. Supp. 790; Brown v. 
 
 TJun. 466, T\eii\sing to ioWow Eldridge Farmers' Loan d- T. Co. 24 Abl). N. 
 
 V. Sirens, 7 Jones & S. 295; Mc- C. 100, 18 N. Y. Civ. Proc. Rop. 131, 
 
 Gregor v. Buell, 1 Keyes, 153, citing 9 X. Y. Supp. 337. 
 
 Yon Keller v. Schulting, 45 How. Pr. *-People v. Mercantile Credit Guar- 
 
 139. anty Co. 35 Misc. 755, 72 N. Y. Supp. 
 
 ^"Thomofi V. Evans, 50 Hun, 441, 373; Re Hood. 17 N. Y. S. R. 705, 
 
 20 N. Y. S. R. 884, 3 N. Y. Supp. 297. 1 N. Y. Supp. 833. 
 
 "/ZeZc/;- V. h'einheiiner, 28 N. Y. "Re New York, W. S. & B. R. Co. 
 
 Week. Dig. 347, 14 N. Y. S. R. 405. 28 Hun, .505.
 
 COSTS ON APPEALS. 453 
 
 spect.'** A defendant may be allowed costs in different actions, 
 where there is a stipulation that but one set of papers be made 
 up, and that the other actions abide the result of that one, — 
 especially where the plaintiff had entered up separate bills of 
 costs in each case upon the decision in the trial court and in the 
 general term, because this shows how the stipulation was con- 
 strued.^^ If there was any doubt in the mind of the successful 
 litigants, they should have moved in the court of appeals to 
 amend the remittitur.'*^ The court below cannot modify the 
 costs granted in that court to the successful party, after judg- 
 ment absolute has been rendered in the court of appeals. If any 
 change is desired the application must be made to the court of 
 appeals.'*^ The appellate division cannot modify the decision 
 of the court of appeals by deducting its costs after the latter has 
 reversed the judgment of the former, unless the plaintiff stipu- 
 lates to deduct certain sums from the judgment ; but if the stip- 
 ulation is given, the judg-ment is affirmed. The court of appeals 
 could have made that deduction if it had desired.^^ The danger 
 of appealing from a judgment of the appellate division ordering 
 a new trial is well illustrated in a case where the plaintiff' sued 
 for an accounting, and the complaint was dismissed, the general 
 term ordered a new trial, and the defendant appealed to the 
 court of appeals with the usual stipulation. That court 
 ordered judgment absolute for the plaintiff, 'Svith costs." Upon 
 the reference ordered upon the accounting, it was found that 
 there was a balance due the defendant, but that he was not en- 
 titled to judgTnent for damages, nor coiild he tax his disburse- 
 ments ; but that the plaintiff was entitled to a judgment for his 
 costs.'*^ 
 
 **8heridan v. Andrews, 80 N. Y. ^'SHcoll v. Burlce, 13 Jones & S. 
 G48, 10 N. Y. Week. Dig. 117. 526. 
 
 *'Hauselt v. Godfrey, 11 Daly, 276. '^Rust v. Hauselt, 14 Jones & S. 
 
 "^Isola V. Weier, 12 App. Div. 267, 38, 8 Abb. N. C. 148. 
 42 N. Y. Supp. 615. 
 
 "^heridiui v. Andrews, 80 N. Y. 
 648, 10 N. Y. Week. Dig. 117.
 
 454 THE I.AW OF COSTS IN NEW YORK. 
 
 c. Meaning of the words "with costs to abide the event." — 
 Under § 3238 of the Code of Civil Procedure the court of ap- 
 peals on the reversal of a judgment and the granting of a new 
 trial has power to award costs absolutely to either party, or to 
 abide the event. "To abide the event" means, in legal or equit- 
 able actions, all the costs of the action up to and including this 
 court.^"^ Where the court of appeals reverses a judgment, with 
 costs to abide the event, the party who is finally successful upon 
 all the main issues is entitled to tax all the costs of the action, 
 including the costs in the court of appeals, and, if the trial court 
 so directs, the costs of the last trial. ^^ But where neither party 
 is entirely successful upon the final trial, the costs of the entire 
 action rests in the discretion of the trial court.'^" If it is an ac- 
 tion where the prevailing party is entitled to costs as a matter of 
 right, he can tax all the costs of the action, including those of the 
 last trial, without any direction of the trial court.^^ But in an 
 action at law where, upon a reversal, the costs are given to one 
 party to abide the event, and the other party is eventually suc- 
 cessful, the costs in the court of appeals cannot be taxed by any- 
 one. The other costs, however, can be taxed by the successful 
 party.^'* 
 
 d. Meaning of the words "without costs." — The words "with- 
 out costs'' apply only to the costs in the court of appeals.^^ 
 Where the court of appeals reverses a judgment, "without costs,'' 
 the court below cannot for the first time add the costs of the 
 
 ^Franey v. Smith, 126 N. Y. 658, '■■■Isaacs v. Neio York Plaster 
 
 37 N. Y. S. R. 480, 27 N. E. 559; Works, 11 Jones & S. 397, 4 Abb. N. 
 
 First Nat. Bank v. Fourth Nat. C. 4; IJowell v. Van Siclen, 8 Hun, 
 
 Bank, 84 N. Y. 469. 524, AfTirmed without opinion in 70 
 
 'KMott V. Consumers Ice Co. 8 N. Y. 595, 4 Abb. N. C. 1. 
 
 Daly, 244; Thomas v. Evans, 50 Hun, ^*Belt v. American Cent. Ins. Co. 
 
 441 i 20 N. Y. S. R. 884, 3 N. Y. Supp. 33 App. Div. 239, 53 N. Y. Supp. 363. 
 
 297; Poicers v. Manhattan R. Co. 20 ^'McGregor v. Buell, 1 Koyes, 153, 
 
 N. Y. Civ. Proc. Rep. 78, 14 N. Y. 3 Abb. App. Dec. 86, 33 How." Pr. 450. 
 Supp. 130. 
 
 '■■Mandeville v. Avert/. 44 N. Y. S. 
 R. 1, 17 N. Y. Supp. 429.
 
 COSTS ON APPEALS. 455 
 
 general term.^^ Where the court of appeals reverses a judgment, 
 "without costs/' and sends the case back for the court of original 
 jurisdiction to proceed upon according to the law as laid down 
 by the court of appeals, the court below has a right to pass upon 
 the question of costs de novo.^'^ 
 
 Where the defeated party in the court of appeals, appeals to 
 the United States Supreme Court, which reverses, with costs to 
 the appellant in that court, several remedies given by the state 
 courts, and leaves the judgment in other respects unchanged, and 
 the court of appeals sends the remittitur from the United States 
 Supreme Court to the special term, "without costs," the court of 
 appeals has disposed of the question of costs in the state courts, 
 and the special term has no right to allow costs to any party 
 when it enters up judg-raent upon the remittitur.^^ The burden 
 is on the party against whom costs were given in the lower courts 
 to prove that the court of appeals has exempted him from the 
 payment of those costs when it modifies a judgment, "without 
 costs." This can be determined upon a motion in the trial 
 court, and the evidence must be found in the opinion and the 
 remittitur of the court of appeals.^" 
 
 When the court of appeals in an equity action affirms a judg- 
 ment and orders judgment absolute, "without costs to either 
 party," that means all the costs in the action, including those in 
 that court.^^ 
 
 e. When the costs are a matter of right. — An altogether dif- 
 ferent question is presented when the plaintiff seeks to recover 
 a money judgment, or a judgment that entitles him to costs, as 
 of covirse. Then the successful party is entitled, upon entry of 
 final judgment, to costs for all regular proceedings in the trial 
 
 '^McGregor v. Btiell, 1 Kej'es, 153, -'^Callanan v. Gilman, 23 Jones & S. 
 
 3 Abb. App. Dec. 8G, 33 How. Pr. 450. 511, 18 N. Y. S. R. 397, 28 N. Y. 
 
 "Hognn v. Kavanaugh, 139 N. Y. Week. Dig. 406, 2 N. Y. Supp. 702. 
 
 620, 34 N. E. 1046. ^"Patten v. Stitt, 50 N. Y. 591, 
 
 ^Stevens v. Central Nat. Bank, 168 Affirming 2 Jones & S. 346. 
 N. Y. 560, 61 N. E. 904.
 
 456 THE LAW OF COSTS IN NEW YORK. 
 
 court, except motion costs that may have been awarded to his 
 opponent, either absolutely or to abide the event,®^ also to all 
 tlie costs of all the appeals, unless they were awarded to his op- 
 ponent, either absolutely or to abide the event, and the judgment 
 or order thus awarding costs stands unreversed. If the judg- 
 ment or order has been reversed, costs of that appeal will be de- 
 termined by the final issue of the action. ^^ The court of appeals 
 in such an action has discretion as to costs only when the judg- 
 ment is reversed in part and affirmed in part, or where a new 
 trial is granted. The addition to a judgment in that court of 
 the words "with costs" or "without costs" cannot affect the right 
 of the prevailing party.^^ A plaintiff is entitled to tax the costs 
 in the appellate division, although they were awarded to the de- 
 fendant to abide the event, when the court of appeals orders 
 judgment for the plaintiff, "with costs," and the prevailing party 
 is entitled to costs, as of course.''* 
 
 /. When the court of appeals has power to review the question 
 of costs. — The court of appeals will review the determination of 
 the courts below, even upon a discretionary order as to costs, 
 where it appears that the decision was based on the ground of 
 lack of power to grant the application,^^ An appeal lies to the 
 court of appeals from the conditions imposed in an order of re- 
 versal that the appellant should not bring an action against the 
 respondent. Such a condition attached to the order cannot 
 stand, but such a condition attached to the allowance of costs is 
 
 '^Prioe V. Price, 61 Hun, 604, 16 49 N. Y. 660; McJniyre v. German 
 
 N. Y. Supp. 359; Murtha v. Curley, Sav. Bank, 59 Hun, 536, 20 N. Y. Civ. 
 
 92 N. Y. 360; Re Protestant Episco- Proc. Rep. 209, 37 N. Y. S. R. 545, 
 
 pal Public School, 86 N. Y. 397; 13 N. Y. Supp. 674. 
 
 Murtha v. Curley, 92 N. Y. 359. '^Murtha v. Curley, 92 N. Y. 359, 
 
 ^Donovan v. Vandemark, 22 Hun, 65 How. Pr. 807, 3 N. Y. Civ. Proc. 
 
 307. Contra. Bigler v. Pinkney, 24 Rep. 366; Explained in Re Amster- 
 
 Hun, 224. The latter case is not a dam Water Comrs. 104 N. Y. 677, 
 
 well-considered case and is at vari- 10 N. E. 545; Revere Copper Co. v. 
 
 ance with the trend of decisions. Dimmock, 29 Hun, 299. 
 
 '^Tompkins County v. Bristol, 58 '^'Tolman v. Syracuse, B. & N. Y. 
 
 How. Pr. 3; Combs v. Combs, 25 R. Co. 92 N. Y. 353. 
 Hun, 279; Ayers v. Western R. Corp.
 
 COSTS ON APPEALS. 457 
 
 proper.^^ An appeal lies to the court of appeals from an order 
 reversing an order of the special term and imposing costs abso- 
 lutely upon the respondent, because in this respect it is a final 
 determination.'^'^ The court of ap})eals can adjust the payment 
 of costs where the plaintiff failed in liis appeal against two re- 
 spondents, and therefore would have to pay to both, and one of 
 these respondents failed as to the other, by simply ordering the 
 plaintiff to pay one bill of costs to the respondent who succeeded 
 as to all parties, instead of ordering the plaintiff to pay costs to 
 the successful respondent, and he to the other. ^^ 
 
 g. When the decision of one appeal makes the consideration 
 of another appeal useless. — In an action for the constrviction of 
 u will and an accounting, where both parties appeal, the appeal 
 on the accounting was not considered, as it could not be until it 
 was settled that the plaintiff was entitled to a construction of the 
 will. When this was decided adversely to him, costs were ad- 
 justed as if there had been but one appeal.^^ 
 
 h. ^Yhen the queslion was not presented to the court helow. — 
 The court of appeals in modifying a judgment will not allow the 
 appellant costs in the appellate division, when he succeeds in the 
 court of appeals upon a point not raised below, '^^ And it has re- 
 fused to allow either party costs in any court, where one party 
 was right on the pleading, but in default upon the payment.'^ ^ 
 
 i. When there are several parties on the side entitled to costs. 
 — The court of appeals may award one bill of costs to several de- 
 fendants who have answered separately and have been allowed 
 separate bills of costs below. In such case "costs to respond- 
 ents" means one bill of costs. Upon an affirmance of a judg- 
 ment in an equity action the court of appeals cannot review the 
 
 ''Chapin v. Foster, 101 N. Y. 1, '"'Griswold v. Metropolitan Elev. R. 
 3 N. E. 786. Co. 122 N. Y. G40, 3 Silv. Ct. App. 
 
 ^'Bergen v. Carman. 70 X. Y. 146. 126. 33 N. Y. S. R. 642, 25 N. E. 361. 
 
 '^Merchants cC- T. Nat. Bank v. New ''^Morris v. Wheeler, 45 N. Y. 708. 
 Toric, 97 N. Y. 355. 
 
 "^Chipman v. Montgomery, 63 N. 
 Y. 221.
 
 458 THE LAW OF COSTS IN NEW YORK. 
 
 discretion of the court Lelow.'^^ wiiere the court of appeals 
 reverses a judgTuent wholly as to one of two defendants, and 
 orders judgment absolute for him, costs are properly awarded to 
 him.'^^ Even in legal actions one of two defendants, who suc- 
 ceeds in reversing a judgment as to him, is not entitled to costs, 
 as of course, because the afRrmance was only in part and costs 
 were in the discretion of the court, under subd. 2, of § 3238 of 
 the Code of Civil Procedure.^* Where one attorney appears for 
 a plaintiff in partition, and also for the guardian of an infant, 
 two bills of costs will not be taxed in the absence of explicit di- 
 rections to that effect. "^^ 
 
 Where the court of appeals affirms a judgment with costs to 
 the respondents, and there are two respondents, one the plaintiff 
 and the other defendant, and the issue between the defendants 
 had no relation to the main issue, two bills of costs may be 
 awarded,'^® The successful party may tax two bills of costs 
 where the appeal was from two orders, and the remittitur says 
 that "the appeals from the orders of the appellate division of the 
 supreme court herein be, and the same are, dismissed with 
 costs."" 
 
 y. Amount of costs in the court of appeals. — Upon an appeal 
 from an order to the court of appeals, full costs are allowed.''^ 
 A defendant who is prosecuted for an act done as a public officer 
 is entitled to double costs in the court of appeals, as well as in 
 the court below.^^ 
 
 '"Van Gelder v. Van GeJder, 84 N. ''^Lesster v. Lawyers' Surety Co. 29 
 
 Y. 658: Herrington v. Robertson, 71 Misc. 779. 62 N. Y. Supp. 430. 
 
 N. Y. 280; Taylor v. Koot, 48 N. Y. "Code Civ. Proc. § 3239; Hall v. 
 
 687; Von Keller v. Schultmg, 45 Emmons, 40 How. Pr. 137, 9 Abb. 
 
 How. Pr. 139. Pr. N. 8. 453, note; White v. An- 
 
 ''^Montgomery County Bank v. thony, 23 X. Y. 164; Webb v. Norton, 
 
 Albany City Bank, 7 N. Y. 459. 10 How. Pr. 117; Tauton v. Groh, 9 
 
 ''*MetropoUtan Elev. R. Co. v. Dug- Abb. Pr. X. S. 453; Broun v. Leigh, 
 
 gin, 33 X. Y. S. R. 992, 11 X. Y. 52 N. Y. 78. 
 
 Supp. 819. '"Barkle v. Luce, 1 X. Y. 239, 3 
 
 '"■HaJslcad v. Halstead, 2 Thomp. How. Pr. 236. 
 & C. 673. 
 
 '"Reynolds v. .Etna L. Tns. Co. 30 
 Misc. 152, 61 X. Y. Supp. 901.
 
 COSTS ON APPEALS. 459 
 
 h. Punitive costs. — Where there is no merit in tlie appeal by 
 die defendant the court will add 10 per cent to the amount of the 
 judgment under § 3251 of the Code of Civil Procediire.^^ This 
 is comj)nted upon the judgment of the trial court and upon that 
 ■of the appellate division, but not upon the interest on the judg- 
 ments.^^ Punitive costs of 5 per cent were allowed to the plain- 
 tiff against the defendants for a delay caused by their appeal, 
 •which had no merit, where the action was to recover money out 
 of which the defendants had tried to defraud the plaintiff.^^ 
 Punitive costs are properly awarded where the appeal has no 
 merit and tlie appellant submits no points and points out no 
 error in the judgment of the court below.^^ But they will not be 
 awarded against a defendant, where he has appealed from an er- 
 roneous exclusion of evidence, and upon the new trial granted 
 upon his appeal the evidence given by him falls far short of his 
 ■offer upon the former trial, because he has caused no delay by his 
 appeals, although his last appeal had very little merit.^^ Where 
 the same question has been decided against the appellant 
 in another case, and the appellant still persists in its ap- 
 peal, punitive costs are properly awarded under § 3251 of the 
 Code of Civil Procedure.^^ But where the appeal presents de- 
 batable questions that have not been settled at the time the ap- 
 peal is taken, the appellant should not be punished by way of 
 increased costs. ^'^ 
 
 Z. Costs alloiced upon ivithdrawinrj appeal. — An appellant 
 ■was allowed to withdraw an appeal "upon payment of all costs 
 
 *^Cohen v. "New York, 128 N. Y. ^'Doij v. Eoth, 18 N. Y. 448. 
 
 594, 3 Silv. Ct. App. 501, 21 N. Y. ^*Warjier v. Lrssler, 33 N. Y. 29fi. 
 
 Giv. Proc. Rep. 124. 38 N. Y. S. R. ^"Blazy v. McLean, 146 N. Y. 390, 
 
 846, 27 N. E. 1074; Peterson v. 40 N. E. 733. 
 
 Diclcel, 8 Abb. Pr. 259. ^Jackson v. Rochester, 124 N. Y. 
 
 ^-Adnms v. PerUns, 25 How. Pr. 624, 3 Silv. Ct. App. 341, 35 N. Y. 
 
 .368; Degener v. TJndenvood, 31 Abb. S. R. 73, 26 N. E. 326. 
 
 IJ. C. 479, 62 N. Y. S. R. 121, 30 N. "Tisdale v. Delaware d H. Canal 
 Y. Siipp. 399 ; Becler v. Metropolitan 
 Elev. R. Co. 30 N. Y. Supp. 400.
 
 4G0 THE LAW OF COSTS IN NEW YORK. 
 
 before notice of arguniont." Tlie respondent moved to amend 
 the remittitur and decision so that it woukl read ''upon payment 
 of all costs in this action in all courts, incurred before the notice 
 of argument in this court." The court held that the decision 
 meant costs in this court.^^ 
 
 m. Terms imposed upon opening a default. — A default regu- 
 larly taken was opened upon payment of taxable costs of the 
 term, of opposing the motion, and a counsel fee of $50 for at- 
 tending, prepared to argue the case.^^ Where an appeal is dis- 
 missed after an argument on its merits, general costs are al- 
 lowed, and not motion costs,^*^ except where the respondent 
 should have moved to dismiss the appeal, instead of noticing it 
 for argument.^^ If the appeal is dismissed upon a motion for 
 that purpose, only motion costs can be collected.'^^ 
 
 71. Waiver of right to appeal from the interpretation of the 
 court helow of the order of the court of appeals. — A party waives 
 his right to have the question of the amount of costs allowed to 
 him by the court of appeals reviewed by the court, where he 
 enters up judgment which is satisfied, and then appeals from the 
 order. He must refrain from entering the judgment, but must 
 appeal from the decision of the court as to the amount of costs, 
 in order that all which he may be entitled to may form part of 
 the judgment for all time. There can be but one final judgment 
 in an action.^"^ 
 
 0. AUoivanccs to counsel in cases where the offense charged is 
 punishable with death. — Upon an appeal from a sentence of 
 death, the court of appeals can allow counsel a sum for compen- 
 sation, not exceeding $500 besides disbursements for services in 
 
 Co. 116 N. Y. 416, 26 N. Y. S. R. ^'Williams v. Fitch, 15 Barb. 654; 
 
 857, 22 N. E. 700. Webb. v. Norton, 10 How. Pr, 117. 
 
 ^Broadwav Sav. hist. v. Pelham, ^-Webb v. Norton, 10 How. Pr. 117. 
 
 148 N. Y. 737, 42 N. E. 722. ^^Prentiss v. Boivden, 14 Misc. 185, 
 
 '"f^Iade V. Warren, 1 N. Y. 431. 2 N. Y. Anno. Cas. 163, 25 N. Y. Civ. 
 
 ^White V. Anthont/, 23 N. Y. 164; Proc. Pep. 144, 70 N. Y. S. R. 517, 
 
 Webb V. Norton, 10 How. Pr. 117. 35 N. Y. Supp. 653.
 
 COSTS ON APPEALS. 461 
 
 that court, although the trial court had made an allowance of 
 $500 and disbursements for the serv^ice of counsel there.^^ Sec- 
 tion 458 of the Code of Criminal Procedure requires a case to be 
 made the same as in civil actions. Counsel must aid the court 
 by preparing a case, and the failure to do this is properly taken 
 into consideration in passing upon his application for compensa- 
 tion.^^ 
 
 391. Costs in the appellate division, a. In general. — Every 
 court has a right to interpret its own orders, and therefore the 
 different appellate divisions may interpret the same order differ- 
 ently, because different things were meant, although they used 
 the same words. It must be borne in mind that where a party 
 is entitled to costs, of course, as specified in § 3228 of the Code 
 of Civil Procedure, no court can take away from him those costs. 
 The party finally successful is entitled, upon the entry of a final 
 judgment, to tax costs for all regular proceedings in the trial 
 court, except such motion costs as may have been awarded to his 
 opponent, either absolutely or to abide the event, and to tax 
 costs of all appeals imless the court had power, under §§ 3238 
 and 3239 of the Code of Civil Procedure, to award, and did actu- 
 ally award, the costs of the appeal to his opponent, either abso- 
 lutely or to abide the event. This right to costs the courts can- 
 not take away. If the judgment is affirmed or reversed in such 
 an action, and no mention is made of the costs, the prevailing 
 party is entitled to tax a full bill of costs of the appeal.^^ In all 
 equity actions except where a money judginent is demanded, the 
 costs of all the courts is in the discretion of the court, and it is 
 this class of cases where the difficulty arises in interpreting the 
 orders of the court. 
 
 b. Meaning of the words "with costs/' — In the old general 
 
 "'People V. Ferraro, 1G2 N. Y. 545, ^Combs v. Combs, 25 Hun, 279. 
 57 N. E. 167. 
 
 "'People V. Barone, 161 N. Y. 475, 
 65 N. E. 1091.
 
 462 THE LAW OF COSTS IN NEW YORK. 
 
 term, where a judgment was reversed "with costs," which was, 
 in eifect, a dismissal of the coinphaint, as a new trial was not 
 granted, it was held that this meant costs in the trial court, as 
 well as in the general term. If the trial court had dismissed the 
 complaint 'Svithout costs," and the general term affirmed "with 
 costs," that would only mean costs in the general term.^^ On 
 the other hand it has been held in the appellate division, first 
 and second departments, that where the plaintiff wins in an 
 equity action, without costs, and the appellate division reverses, 
 with costs, and the complaiot is dismissed, that the defendant is. 
 not entitled to costs of the trial. If that had been meant, the 
 court would have said "judgment reversed, with costs, and com- 
 plaint dismissed, with costs." '^^ 
 
 c. Costs of an order.— Th.Q proper sum to be taxed by the pre- 
 vailing party on a decision of the appellate division affirming an 
 order, "with costs," is $10 and disbursements. The allowance 
 of costs is enough authority for the clerk to tax disbursements.^* 
 But if this is an interlocutory order, disbursements are inci- 
 dental and must be expressly allowed, to be taxed.^"*' But no 
 judgment should be entered for these costs; they are to be col- 
 lected like motion costs.-^^^ Where an order is affirmed, "with 
 costs," and the party to whom they are allowed is afterwards de- 
 feated on the trial, these costs must be deducted from the costs 
 of the party ultimately successful. ^^~ If these costs had been al- 
 lowed to the party finally successful, he could include these as 
 well as all other unpaid costs in his final judginent. 
 
 ^^Schoonmal-er v. Bonme, 51 Hun, N. Y. S. R. 199, 21 N. Y. Supp. 585; 
 
 84, 16 N. Y. Civ. Proc. Rep. G4, 20 Jones v. Sherman, 8 N. Y. S. R. 344; 
 
 N. Y. S. R. 428, 3 N. Y. Supp. 492. Phipps v. Carman, 20 Hun, 518. 
 
 ^Hurley v. Brown, 55 App. Div. 8, ^""Burnell v. Coles, 26 Misc. 378, 
 
 67 N. Y. Supp. 279; Von Keller v. 56 N. Y. Supp. 208. 
 
 Schulting, 45 How. Pr. 139; Ke ^"'Jie Brasier, 13 I)si]y, 245, 2 Row. 
 
 Street Opening, 34 App. Div. 500, 54 Pr. N. S. 154. 
 
 N. Y. Supp. 516. ^"-Stevenson v. Pusch, 40 How. Pr. 
 
 ""Cassidy v. MeFarland, 2 Misc. 91. 
 189, 23 N. Y. Civ. Proc. Rep. 65, 50
 
 COSTS Oisr APPEALS. 463 
 
 d. Cleaning of the words "with costs to ahide the event." — 
 Where a judgment is reversed, with costs to abide the event, it 
 means that the party ultimately successful may tax all costs up 
 to that time.^"'"' It makes no difference whether the successful 
 party ultimately obtains judgment upon a new trial or by an 
 appeal to the court of appeals.^"^ The successful party may tax 
 the costs of the appeal and of both trials in an action at law, and 
 also in an action in equity if the trial court gives him the 
 costs of the last trial. ^^^ The costs of the appeal are his, 
 because they were made to abide the event, and that is with 
 hira.^'^'^ But if he is limited in the amount of costs that 
 he can tax to the amount of his recovery, that limitation 
 applies to all the costs in the action.^'^^ If the verdict is 
 more than $50, although it reaches that figure only by 
 computing interest to the day of the last trial, still the verdict 
 carries, in an action at law, the costs of the appeal and the two 
 trials.^^'' On the other hand, some courts have construed the 
 words "with costs to abide the event" in their own orders to 
 mean "costs to the appellant to abide the event," holding that 
 the appeal was caused by the error of the respondent and he 
 should not be allowed to profit by his o^vn mistake ;^^" nor could 
 
 ""Co?«/i/ V. New York, 1 N. Y. Civ. '"'Sanders v. Townshcnd, 11 Abb. 
 
 Proc. Rep. 306; Lotti v. Krakauer. 1 N. C. 217, 63 How. Pr. 343. 
 
 N. Y. City Ct. Eep. 60, 1 N. Y. Civ. ^"'Smith v. Smith, 22 App. Div. 
 
 Proc. Rep. 312, note; Miller v. King, 319, 5 N. Y. Anno. Cas. 47, 47 N. 
 
 32 App. Div. 349, 52 N. Y. Supp. Y. Supp. 987. 
 
 1041 ; Union Trust Co. v. Whiton, 78 '"Traneij v. Smith, 126 N. Y. 658, 
 
 N. Y. 491; First Nat. Bank v. Fourth 27 N. E. 559; Koon v. Thurman, 2 
 
 Nat. Bank, 84 N. Y. 469, 60 How. Pr. Hill, 357. 
 
 436; Loring v. Morrison, 25 App. '^'^Snydcr v. Collins, 12 Hun, 383. 
 
 Div. 139, 5 N. Y. Anno. Cas. 151, 48 ''^Loring v. Morrison, 25 App. Div. 
 
 N. Y. Supp. 975; Koon v. Thurman, 139, 5 N. Y. Anno. Cas. 151, 48 N. Y. 
 
 2 Hill, 357; Iferbst v. Vacuum Oil Supp. 975. 
 
 Co. 50 N. Y. S. R. 555, 22 N. Y. ''"Union Trust Co. v. Whiton, 78 
 Supp. 42 ; Van Bussum v. Metropoli- 
 tan L. his. Co. 16 Misc. 40, 73 N. 
 Y. S. R. 285, 37 N. Y. Supp. 665.
 
 464 THE LAW OF COSTS IN NEW YORK. 
 
 he tax tlie costs of the first trial, as that had heen done away 
 
 with.^^^ The contrary has been liehl as to the costs of the first 
 triaLii2 
 
 e. Meaning of the luords "ivitli costs to tlie appellant to abide 
 the event." — Where "costs are awarded to the appellant to abide 
 the event" that means the costs of the trial as well as of the ap- 
 peal, and if the respondent again wins, he cannot tax the costs 
 of the first trial, nor of the appeal.^ ^^ On the other hand, it has 
 been held that such a disposition of the costs by the appellate 
 court referred only to the costs in that court.-^^^ See subd. a, 
 supra. 
 
 f. Meaning of the words "without costs." — The words "with- 
 out costs" in an order of reversal mean without costs of the 
 appeal. The successful party in such a case will, in an action 
 at law, tax all costs, except those in the appellate court.^^^ 
 
 g. Exceptio7is ordered heard at the appellate division in the 
 first instance. — Full costs are allowed in the appellate court 
 upon the decision of exceptions ordered heard at the appellate 
 division in the first instance, even if that court reduces the 
 amount of the verdict, but not below $50.^^^ If the appellant 
 also appeals from the order of the trial court denying a new trial, 
 
 N. Y. 491, Affirming 17 Hun, 593; "WoiceiJ v. Van Siclen, 8 Hun, 
 
 Abendroth v. Durant, 9 N. Y. Civ. 524, Affirmed in 70 N. Y. 595, 4 Abb. 
 
 Proc. Rep. 44G, Affirmed in 48 Hun, N. C. 1 ; Bueb v. Geraty, 31 Misc. 22, 
 
 16; Sheridan v. Genet, 1 N. Y. Civ. 62 N. Y. Supp. 1125; Belt v. Ameri- 
 
 Proc. Eep. 309 note. can Cent. Ins. Co. 33 App. Div. 239, 
 
 ^^Lydd V. Kenny, 1 N. Y. Civ. 53 N. Y. Supp. 363; Marx v. Mc- 
 
 Proc. Eep. (McCarty) 310, note; Cloud, 21 N. Y. S. R. 957, 3 N. Y. 
 
 Starr Cash Car Co. v. Relnhardt, 6 Supp. 74; Donovan v. Board of Edu- 
 
 Misc. 365, 56 X. Y. S. E. 404, 26 N. cation, 1 N. Y. Civ. Proc. Eep. 311, 
 
 Y. Supp. 746. note; Bannerman v. Quackenhush, 2 
 
 ^'Wurant v. Ahendroth, 48 Hun, N. Y. City Ct. Eep. 172, 2 How. Pr. 
 
 16, 1 N. Y. Supp. 538 ; House v. Lock- N. S. 82, 7 N. Y. Civ. Proc. Eep. 428. 
 
 wood, 48 Hun, 550, 1 N. Y. Supp. ^^'^Sander v. Nevy York & E. R. Co. 
 
 540. 56 App. Div. 273, 67 N. Y. Supp. 809. 
 
 ^""Elliott V. Luenr/ene, 19 Misc. 428, ''"Duff v. Wardell, 10 Abb. Pr. N. 
 
 43 N. Y. Supp. 1140; Cochran v. S. 84; Code Civ. Proc. § 3251, 
 
 Gottwald, 10 Jones & S. 214. subd. 4,
 
 COSTS ON APPEALS. 465 
 
 full costs will be allowed on both appeals. ^^''^ In an old case, be- 
 fore the Code, only motion costs were allowed.^ ^^ 
 
 /i. Verdict directed, sid)ject to the opinion of the appellate 
 division. — Where a verdict is directed by the trial court, sub- 
 ject to the opinion of the appellate division, and a case is made 
 and an argument had there, the party successful at the trial and 
 in the appellate division is entitled to tax the same costs as upon 
 an appeal from a judgment.-^^® 
 
 392. Costs when a judgment is reversed. — The court has no 
 discretion, in an action specified in § 3228 of the Code of Civil 
 Procedure, as to costs, when it affirms or reverses a judgment. 
 The order of affirmance or reversal must be with costs,^-° ex- 
 cept where the plaintiff appeals from a judgment dismissing his 
 complaint and there has been no appearance by the defendant on 
 the trial or on the appeal, in wliich case the reversal or affirmance 
 must be without costs, as there is no respondent.^ ^^ 
 
 393. Allowance of separate bills of costs. — The appellate divi- 
 sion mil not aAvard separate bills of costs to separate defendants, 
 where from the nature of the case the affirmance or reversal of 
 the judgment must be for all. The fact that the defendants had 
 separate bills of costs below is a strong reason why they should 
 have but one bill of costs on the appeal.^ ^^ The fact that but 
 one notice of appeal was served and the same counsel argued the 
 case for all is a good reason for allowing but one bill of costs 
 upon the appeal.^^^ But the ap])ellate court has the jDower to 
 grant separate bills of costs.^'^^ Where two or more defendants 
 
 «^Code Civ. Proc. §§ 131G, 3239, ^-'Katz v. Diamond, 16 Misc. 577, 
 
 3251, subdiv. 4; Reichel v. ^'ew 74 X. Y. S. R. 174, 38 N. Y. Siipp. 
 
 York C. d E. R. R. Co. 18 N. Y. Civ. 766. 
 
 Proc. Rep. 248. 29 N. Y. S. R. 843, '"De Lamater v. Carma)i, 2 Daly, 
 
 9 N. Y. Supp.'414. 182. 
 
 ^^Felloivs V. Sheridan, 6 How. Pr. ^'""Fischer v. Langhein, 31 Hun, 
 
 419. 272; Everson v. Gehrman, 2 Abb. Pr. 
 
 "'Code Civ. Proc. § 3251, sub- 413; .S'frecf v. Jfoirn/, 49 N. Y. S. R. 
 
 div. 4. 262, 20 N. Y. Supp. 924. 
 
 ^-"Hahn v. Van Daren, 1 E. D. ^"^De Lainater v. Carman, 2 Daly, 
 
 Smith, 411; Code Civ. Proc. § 3238. 182. 
 COSTS 30
 
 466 THE LAW OF COSTS IN NEW YORK. 
 
 join in the same answer or demurrer, they are entitled to but one 
 bill of costs, altliougli upon the appeal they employ different at- 
 torneys.^-^ But where they have answered or demurred sepa- 
 rately, and unite upon the appeal, tliough they are usually al- 
 lowed but one bill of costs upon the appeal, the court may allow 
 separate bills of costs /^** Where two or more defendants appear 
 separately and a judgment in their favor is affirmed, "with costs- 
 to the respondents," only one bill of costs can be taxed.^^^ But 
 where it is affirmed, "with costs to the respondents who appeared 
 on this appeal," separate bills of costs are awarded,^ ^^ 
 
 A defendant may be allowed costs upon an appeal where the 
 judgment is reversed as to him, but affirmed as to his codefend- 
 ant; but if he joins in an answer with his codefendant he can- 
 not recover the costs of the trial. That fact would have pre- 
 cluded his having costs had he won on the trial. Such successful 
 defendant cannot recover the printing disbursements where there 
 was but one appeal book and one set of points, unless he can 
 prove that he paid for them.^-^ 
 
 Separate bills of costs are properly allowed to the plaintiff ^ 
 and to some of the defendants who are similarly situated, where 
 the defendants are compelled to argue additional questions to 
 those presented by the plaintiff.-' ^° 
 
 394. When costs will be denied to the successful party. — 
 Costs will not be allowed to a party who appeals unnecessarily^ 
 when he could have obtained the relief to which he was entitled 
 by a motion in the trial court. A plaintiff will not be allowed 
 
 >=*WiZ6«r V. Wiltsey, 13 How. Pr. ^""Kane v. Metropolitan Elev. R. 
 
 506. Co. 15 Daly, 366, 28 N. Y. S. R. 399, 
 
 ^^Von Keller v. Schulting, 45 How. 7 N. Y. Supp. 653. Contra, Metro- 
 
 Pr. 139. politan Elev. R. Co. v. Duggin, 33 
 
 ^""Van Gelder v. Van Gelder, 84 N. N. Y. S. R. 992, 11 N. Y. Supp. 819. 
 
 Y. 658 ; Fischer v. Langhein, 31 Hun, ""Knapp v. T^ew York Elev. R. Co. 
 
 272; Re New York, W.S. & B. R. Co. 4 Misc. 408, 53 N. Y. S. R. 571, 24 
 
 28 Hun, 505. N. Y. Supp. 324. 
 
 »»A"eio York d N. H. R. Co. v. 
 Schuyler, 29 How. Pr. 89,
 
 COSTS ON APPEALS. 467 
 
 the costs of an appeal from a judgment entered by the defendant 
 upon the dismissal of the complaint, which the latter entered up 
 as a dismissal "upon the merits." His remedy was to move to 
 correct the judgment for irregularity.'^^^ It is the usual prac- 
 tice in all appeals to deny the appellant costs when he succeeds 
 upon a point not raised in the court below. A party who suc- 
 ceeds in having the amount of the verdict reduced upon an ap- 
 peal, but who did not call the attention of the court below, upon 
 his motion for a new trial, to the fact that the verdict was exces- 
 sive, may not only not receive the costs, but they may be awarded 
 to the respondent.^ "^ Costs are sometimes not granted to the suc- 
 cessful party, because the point involved is one of practice and is 
 presented for the first time on appeal. ^^^ 
 
 Costs will not be imposed upon a plaintiff where he is de- 
 feated by the repeal of the law under which he was proceeding, 
 after the commencement of the action. A plaintiff, as trustee 
 in bankruptcy, brought an action to set aside a transfer of prop- 
 erty as having been made in violation of the bankruptcy law. 
 Upon appeal his complaint was dismissed without costs, because 
 the law under which he was acting had been repealed, but- costs 
 of the appeal were not awarded against him.^^'* 
 
 395. Costs upon appeals from orders, a. Statute. — " Upon an 
 appeal from an interlocutory judgment or an order in an action, 
 costs are in the discretion of the court, and may be awarded abso- 
 lutely, or to abide the event, except as follows: 
 
 1. Where the appeal is taken from an order granting or re- 
 fusing a new trial, and the decision upon the appeal refuses a 
 new trial, the respondent is entitled, of course, to the costs of the 
 appeal. 
 
 "'r/o/mson V. Lord, 35 App. Div. ^^^Hesse v. Briggs, 13 Jones & S. 
 
 325, 54 N. Y. Supp. 922. 417. 
 
 ^^Seidenhach v. Riley, 6 N. Y. S. "'Olcott v. Maclean, 11 Hun, 394, 
 
 R. 104; Wilson v. Lester, 64 Barb. Appeal dismissed in 73 N. Y. 603. 
 434.
 
 468 THE LAW OF COSTS IN NEW YOKK. 
 
 2. Wliere an appeal is taken from an order refusing a new 
 trial, and an appeal is also taken from the judgment rendered 
 upon the trial, neither party is entitled to the costs of the ap- 
 peal from the order."^^^ 
 
 h. In general. — Costs are not in the discretion of the court 
 where it ajffirms an order denying a motion for a new trial, made 
 upon a case and exceptions. The respondent is entitled to costs 
 absolutely, and as they are motion costs they can be collected un- 
 der the provisions of § 779 of the Code of Civil Procedure. Sec- 
 tion 1005 provides for a motion for a new trial after the entry 
 of final judgment, and in such a case these costs could not be in- 
 cluded therein.^^^ The costs on an appeal from an order dis- 
 missing supplementary proceedings commenced by a county 
 treasurer to collect a tax are regulated by § 3239 of the Code of 
 Civil Procedure, and not by § 3240, providing for costs of an 
 appeal in a special proceeding.^^'^ The costs of an appeal from 
 a decision on a certiorari to review a tax or assessment under the 
 Laws of 1880, chap. 269, are the same as costs on an appeal 
 from an order. ^^** 
 
 396. Costs upon orders overruling or sustaining demurrers. — 
 Upon an appeal from an order overruling or sustaining a de- 
 murrer, full costs are allowed, the order being substantially a 
 judgment ;^^^ and where the order appealed from was made upon 
 a motion for judgment on account of the frivolousness of the de- 
 murrer, costs of that motion are also allowable. ^'^'^ But where 
 leave is granted to amend a defective pleading or to withdraw 
 
 "=Code Civ. Proc. § 3239. "*Fan Gelder v. Fan Gelder, 13 
 
 ^^Mcliityre v. Germa^i Sav. Bank, Hun, 118; Wright v. Flemming, 18 
 
 59 Hun, 536, 20 N. Y. Civ. Proc. Rep. Hun, 360; Van Schaick v. Winne, 8 
 
 209, 37 N. Y. S. E,. 545, 13 N. Y. How. Pr. 5; Sutherla^id v. Tyler, 11 
 
 Supp. 674. How. Pr. 251. 
 
 "''Re Prt/or, 67 App. Div. 316, 73 ^^Whittnau v. T,^icol, 49 How. Pr. 
 
 N. Y. Supp. 961. 88, 16 Abb. Pr. N. S. 329. 
 
 ^^^People ex rel. Bleecker Street & 
 F. Ferry R. Co. v. Barker, 90 Hun, 
 253, 35 N. Y. Supp. 803.
 
 COSTS ON APPEALS. 469 
 
 a demurrer, it becomes an interlocutory order till the leave ex- 
 pires, and upon the decision of an appeal from such an order 
 only $10 costs are allowable. The same costs are allowable upon 
 an appeal from an order sustaining or overruling a demurrer to 
 a part of the pleading.^ ^^ 
 
 397. Costs upon the dismissal of an appeal. — A respondent is 
 entitled to only $10 motion costs when he moves to dismiss an 
 appeal on account of the failure to make and serve a case, which 
 motion is granted, unless the appellant make and serve a case. 
 The appellant luay abandon the case, and the respondent cannot 
 tax full costs by placing the case on the calendar and having it 
 dismissed^ '^^ 
 
 The decision of the appellate division dismissing an appeal is 
 an order upon a motion, and that court can grant motion costs. 
 There is no authority for taxing an argument fee.^'*^ 
 
 398. Costs upon appeals from order of county court granting a 
 new trial. — Full costs are awarded upon the reversal of an order 
 of the county court granting a motion for a new trial made upon 
 the judge's minutes. The first clause of subd. 4 of § 3251 of 
 the Code of Civil Procedure applies. ^^^ The order of the appel- 
 late division ordering judgment absolute and reversing the 
 county court and the justices' court must order a restitution of 
 all that the ap^jellant has lost, and that means the costs in the 
 justice's court and in the county court. ■'^^ 
 
 399. Costs upon appeals in bastardy proceedings. — Under §§ 
 850-873 of the Code of Criminal Procedure, costs must be al- 
 lowed to the successful party upon an appeal in bastardy pro- 
 ceedings. The costs are analogous to the costs upon an appeal 
 from a justice's judgment, and those costs should govern.^ '^^ 
 
 ^*^Hoffman v. Barry, 2 Hun, 52, 4 ^^^Estus v. Baldwin, 9 How. Pr. 80. 
 
 Thomp. & C. 253. ^"^Mayham v. Allen, 50 Hun, 343, 
 
 ^"^Malion V. Malion, 64 App. Div. 19 N. Y. S. R. 811, 3 N. Y. Supp. 
 
 262, 72 N. Y. Supp. 102. Contra, 100; 'Neary v. Robinson, 98 N. Y. 
 
 Sprague v. Richards, 30 Hun, 246. 81 ; Superintendents of Poor v. 
 
 "Wunseith v. Stark, 3 Month. L. Moore, 12 Wend. 273; Rivenburgh v. 
 
 Bull. 42. Henness, 4 Lans. 208. 
 
 "*Ciisick V. Adams, 47 Hun, 455.
 
 CHAPTER XXXI. 
 
 ITEMS. 
 
 400. Disbursements; in general. 
 
 401. Disbursements for abstracts of title. 
 
 402. Disbursements for fees of clerk. 
 
 403. Disbursements in obtaining witnesses. 
 
 a. Expense of serving subpoena. 
 
 6. Not necessary that witness be subpoenaed. 
 
 c. Fees of parties. 
 
 d. Fees of stockholders and officers of a corporation and of attomeya. 
 
 e. Fees of witnesses not sworn. 
 /. Traveling fees. 
 
 (1) Where witness resides out of the state. 
 
 (2) Where witness resides in the state. 
 g. Fees when witness did not attend the trial. 
 
 li. Terms for which fees of witnesses may be taxed, 
 t. Days for which fees of witnesses may be taxed. 
 j. When a witness is entitled to fees in two cases. 
 k. Departure of witnesses before the trial. 
 I. Expert witnesses. 
 
 404. Jurors' fees. 
 
 405. Proving genuineness of paper. 
 
 406. Trial fee. 
 
 a. In general. 
 
 6. More than one trial. 
 
 c. Only one trial fee taxable. 
 
 d. Withdrawal of a juror. 
 
 e. Inquest or default. 
 
 f. New trial had pursuant to an order. 
 
 407. When the trial occupies more than two days. 
 
 408. Term fees. 
 
 a. Statute. 
 
 6. In the court of appeals. 
 
 c. Case must be in a condition to be disposed of. 
 
 d. Term fees for terms before the amendment of the complaint. 
 €. Effect of referring a case. 
 
 f. Where the successful party did not notice the case. 
 
 g. Effect of consenting that case go over the term. 
 h. Term fees paid for privilege of putting case over. 
 ♦• Terms when case was on the wrong calendar. 
 
 470
 
 ITEMS. 471 
 
 /. Stipulation as to term fees. 
 k. On appeal from justices' courts to county courts. 
 
 I. Limit fixed by law. 
 m. For what terms taxable upon a discontinuance. 
 
 409. Interrogatories. 
 
 410. Examination of a party before trial. 
 
 411. Printing papers on appeals. 
 
 412. Advertising sales of property. 
 
 413. Fees of referees. 
 
 0. Statute. 
 
 b. Stipulation that fees may be larger than the statutory rzte. 
 
 c. Proof of the number of days occupied upon the reference. 
 
 d. Two actions tried before the same referee. 
 
 e. How the referee's fees can be collected. 
 
 f. Extension of time to report. 
 
 g. When the court has no power to refer the action. 
 h. Misconduct of referee. 
 
 i. Reference ordered upon a motion. 
 
 y. Reference not completed. 
 
 k. Referee to sell upon a mortgage foreclosure. 
 
 1. Referee to sell in a partition action. 
 
 414. Fees of stenographer. 
 
 a. In general. 
 
 6. Incurred upon a reference. 
 
 c. Obtained to prepare case on appeal. 
 
 d. Minutes of former trial for use upon the trial. 
 
 e. Minutes obtained in the trial of another action. 
 
 f. Minutes used on motion for a new trial in the county court. 
 
 g. Minutes ordered by the court for its own use. 
 h. Power of surrogate's court to order minutes. 
 
 t. Allowance for stenographer's minutes in the municipal court of 
 New York. 
 
 400. Disbursements ; in general. — The statute governing dis- 
 bursements generally is found in § 3256 of the Code of Civil 
 Procedure. 
 
 The necessary disbursements and fees of officers allowed by 
 law cannot be recovered by the prevailing party, where he is not 
 allowed to recover costs.^ They cannot be allowed till final judg- 
 
 ^Belding v. Conklin, 4 How. Pr. Taylor v. Gardner, 4 How. Pr. 67, 
 196, 2 N. Y. Code Rep. 112; 2 N. Y. Code Rep. 47. Contra, New- 
 Wheeler V. Westgate, 4 How. Pr. ion v. Sweet, 4 How. Pr. 134, 2 N. Y. 
 269; Rust v. Eauselt, 8 Abb. N. C. Code Rep. 61. 
 149; Peet v. Warth, 1 Bosw. 653;
 
 472 THE LAW OF COSTS IN NEW YORK. 
 
 meut,^ and must be specified in the bill of costs. It is not suf- 
 ficient that they be specified in the afiidavit which the paj*ty 
 reads upon the taxation, and which the opposite party has not 
 seen till that tinie.^ Where the amount of costs is limited, the 
 costs and disbursements cannot exceed that sum.* The amount 
 paid by the plaintiff in reple\dn to a surety company for a bond 
 is not a taxable disbursement. The defendant need not file an 
 aflSdavit opposing the taxation of such an item, as the plaintiff's 
 papers show that the item is not taxable.^ The legal fee for 
 serving a summons is $1, and 6 cents per mile going and return- 
 ing.^ The plaintiff cannot charge for serving defendants, and 
 $2 for extra defendants, unless they are necessary parties. A 
 defendant need not take this objection by answer or demurrer, 
 but may raise the question upon the taxation of costs.'^ In a 
 mortgage foreclosure action, each of three judgment creditors 
 nmst be served where there is nothing upon the record to show 
 that they are partners. The plaintiff" is justified in serving one 
 by publication, when he could not serve him personally.^ 
 
 401. Disbursements for abstracts of title. — Money paid for an 
 abstract made by a county clerk or by a title insurance, abstract, 
 or searching company doing business under the laws of the state, 
 where the ofiice of the county clerk is a salaried one, is a taxable 
 disbursement.*^ Amounts paid for other unofficial abstracts are 
 not taxable. Until the amendment to the Code of Civil Proced- 
 ure in 1895, money jDaid for unofficial abstracts was not a tax- 
 able disbursement.^" Surveyor's fees, as regulated by § 3299 of 
 
 ^Weeks v. Cornicell, 38 Hun. 577. ^Brown v. Maplceson, 2 X. Y. City 
 
 ^Shannon v. Broicer, 2 Abb. Pr. Ct. Rep. 404; Code Civ. Proe. § 3307. 
 
 377. 'Cdse V. Price, 9 Abb. Pr. Ill, 17 
 
 ^Warren v. Chase, 8 Misc. 520, 59 How. Pr. 348. 
 
 X. Y. S. R. 41G, 28 N. Y. Supp. 765; ^CJievers v. Damon, 37 X. Y. S. R. 
 
 Keating v. Anthony, X. Y. Code Rep. 904, 13 X. Y. Supp. 452. 
 
 N. S. 233. ^-Code Civ. Proc. § 3256. 
 
 'IHck V. Reese, 52 Hun, 125, 17 X. ^"Equitable JAfe Assiir. Soc. V. 
 
 Y. Civ. Proc. Rep. 110, 23 X. Y. S. Olyphant, 57 Hun, 414, 19 X. Y. Civ. 
 
 R. J04, 5 X. Y. Supp. 121. Proo. Rep. 20, 32 X. Y. S. R. 704,
 
 ITEMS. 473 
 
 the Code of Civil Procedure, are a taxable disbiirsemeiit only 
 when a survey is a part of the proceedings, as in admeasurement 
 of dower. ^^ The fees of a county treasurer for receiving money 
 are not taxable disbursements; they must be deducted from the 
 fund.i2 
 
 402. Disbursements for fees of clerk. — The fees of the clerk of 
 the court are regulated by §§ 3301 and 3302 of the Code of Civil 
 Procedure. Where the clerk is also the county clerk, he is en- 
 titled in addition thereto to the fees prescribed in § 3304 of the 
 Code of Civil Procedure. 
 
 Sec. 3301 is as follows: "Except as otherwise prescribed in 
 the next section, each clerk of a court of record is entitled for 
 his services in an action or a special proceeding brought in or 
 transferred to the court of which he is clerk, to the following 
 fees : Upon the trial of the action, or the hearing upon the merits 
 of the special proceeding, from the party bringing it on, $1. 
 
 ''For entering final judgment in the action, or entering a final 
 order in the special proceeding, including the filing of the judg- 
 ment roll, and a copy of the judgment to insert therein, 50 cents ; 
 and 10 cents in addition for each folio, exceeding ten, contained 
 in the order or judgment. 
 
 "For entering any other order or an interlocutory judgment, 
 10 cents for each folio, exceeding five. 
 
 "For a certified or other copy of an order, record, or other 
 paper, entered or filed in his office, 5 cents for each folio. 
 
 "Where, on an appeal from a judgment or order, a party shall 
 present to the clerk a printed copy of the judgment roll or order 
 appealed from, it shall be the duty of the clerk, as required, to 
 compare and certify the same, for which service he shall be en- 
 titled to be paid at the rate of 1 cent per folio. 
 
 10 N. Y. Supp. 659; Erjtiitnhle Life "Code Civ. Proc. § 3299; Eaijnes 
 
 Assur. Soc. V. Bughes, 125 N. Y. 106, v. Mosher, 15 How. Pr. 216. 
 
 19 N. Y. Civ. Proc. Rep. 326, 11 L. ^-yeeder v. Mudfjeit. 27 Hun, 519, 
 
 R. A. 280, 34 X. Y. S. R. 591, 26 Modified in 95 N. Y. 295. 
 
 N. E. 1.
 
 474 THE LAW OF COSTS IN NEW YOEK. 
 
 "For a certified transcript of the docket of a judgment, 12 
 cents. 
 
 "For filing a transcript and docketing or redocketing a judg- 
 ment thereupon, 6 cents. 
 
 "He is not entitled to any fee or other compensation for any 
 other service, in an action or a special proceeding in the court, 
 except that where he is also county clerk, he may charge fees as 
 prescribed in § 3304 of this act, subject to the limitations there- 
 in contained. 
 
 "Where the attorneys for all the parties interested, other than 
 parties in default, or against whom a judgment or a final order 
 bas been taken and is not appealed from, stipulate in writing 
 that a paper is a copy of any paper whereof a certified copy is 
 required by any provision of this act, the stipulati/)n takes the 
 place of a certificate as to the parties so stipulating, and the 
 clerk is not required to certify the same, or entitled to any fee 
 therefor. 
 
 "And the paper so proved by stipulation shall be received by 
 the clerks of all the courts and by the courts, and shall be used 
 or filed with the same force and effect as if certified by a clerk 
 of the court." 
 
 Sec. 3302 is as follows : "The last section does not apply to the 
 clerk of a surrogate's court, of the city court of the city of New 
 York, of the city court of Yonkers, of the justices' court of the 
 city of Albany, or of a mayor's or recorder's court." 
 
 The clerk or any other officer authorized to administer an oath, 
 except where another fee is specially prescribed by statute, is 
 entitled to the sum of 12 cents, for administering an oath or af- 
 firmation and certifying the same. Code Civ. Proc. § 3298. 
 
 The fees of the clerk of the court of appeals are prescribed by 
 § 3300 of the Code of Civil Procedure, which is as follows:
 
 ITEMS. 475 
 
 "The clerk of the court of appeals is entitled, for the services 
 specified in this section, to the following fees : 
 
 "For filing a notice of appeal to that court, and all the papers 
 transmitted therewith, 50 cents. 
 
 "For filing any other paper, 10 cents. 
 
 "For drawing an order, 20 cents for each folio. 
 
 "For entering an order, 20 cents ; and for each folio more than 
 two, 10 cents. 
 
 "For drawing a judgment, 25 cents; and for each folio moro 
 than two, 10 cents. 
 
 "For entering a judgment, 25 cents; and for each folio more 
 than two, 10 cents. 
 
 "For a certified copy of an order, record, or other paper en- 
 tered or filed in his office, 10 cents for each folio. 
 
 "For engrossing a remittitur, 10 cents for each folio. 
 
 "For a certificate, other than that a paper, for the copying 
 of which he is entitled to a fee, is a copy, 25 cents. 
 
 "For sealing any paper, when required, 50 cents." 
 
 A clerk may demand his pay for any service before he per- 
 forms it. If he does not, he gives credit to the party at whose 
 request the service was performed. The clerk is bound to per- 
 form each service required of him on being paid his fee therefor. 
 He cannot insist that, before performing some service, he shall 
 first be paid his fees for some previous service rendered to the 
 same party for which he has given credit.^^ Under the old Code 
 he was entitled to $1 on trial fee, where the case was tried by a 
 referee. ^^ 
 
 403. Disbursements in obtaining witnesses, a. Expense of serv- 
 ing suhpcena. — The expense of ser\'ing subpoenas could not be 
 ullowed under the Revised Statute or the Code of Procedure.^* 
 
 "Purdy V. Peters, 23 How. Pr. 328, '^Case v. Price, 9 Abb. Pr. Ill, 17 
 15 Abb. Pr. 160. How. Pr. 348; Rogers v. Rogers, 2 
 
 ^*Benton v. Sheldon, 1 N. Y. Code Paige, 460, 464. 
 Rep. 134.
 
 476 THE LAW OF COSTS IN NEW YORK. 
 
 There is a uniform current of opinion rec<ignizing such charges 
 as improper. ^^ 
 
 Code Civ. Proc. § 3307, subd. 1, exempts the service of a 
 subpcEna from the list of mandates for serving which the sher- 
 iff is entitled to $1. A charge for such a disbursement has no 
 authority. The requisites, of an affidavit upon the taxation of 
 witness fees are contained in § 32 G7 of the Code of Civil Pro- 
 cedure. 
 
 h. Not necessary that witness he subpoenaed. — A party can 
 tax fees for a witness who has attended the trial at his request. 
 It is not absolutely necessary that the witness be subpoenaed in 
 order to tax his fees. It is sufficient if he attend the trial at 
 the request of the party.^^ The party at whose request he at- 
 tended is liable for his fees, but the payment of fees by a party 
 after a case is disposed of in his favor, when he is not legally 
 liable for them, does not entitle him to have such fees allowed.^'* 
 
 c. Fees of parties. — A party is not entitled to tax witness fees 
 for his own attendance.-^ ^ If he desires to have the testimony 
 of his adversary, he must subpoena him as he would any other 
 witness, thus creating a duty on his part to attend and be sworn 
 as a witness.^*^ If his adversary is present in court, he can com- 
 pel him to be a witness by subpoenaing him and paying him his 
 fees therefor. The affidavit need not show in the first instance 
 that the witness was material, and need not be made by the party 
 or his attorney, but may be made by a third party.^^ 
 
 d. Fees of stockholders and officers of a corporation and of 
 attorneys. — It is no objection to the taxation of the fees of a wit- 
 ness that he is a stockholder of the corporation that is seeking 
 
 ^^Burnett v. Wcatfall, 15 How. Pr. ^Agricitltural Ins. Co. v. Bean, 45 
 
 430; Wheeler v. Lozee, 12 How. Pr. How. Pr. 444. 
 
 446; Pierrepont v. Lovelass, 4 Hun, "Code Civ. Proc. § 3288. 
 
 681. -"Hewlett v. Broion, 1 Bosw. 655, 
 
 ^''Wheeler v. Ruckman, 5 Robt. 7 Abb. Pr. 74. 
 
 702; Wheeler v. Lozee, 12 How. Pr. ^^Willink v. Reekie, 19 Wend. 82. 
 446; Vence v. Speir, 18 How. Pr. 168.
 
 ITEMS. 477 
 
 to tax that disbursement.^^ An attorney in an action or special 
 proceeding is not entitled to witness fees.^^ Fees for officers of 
 a corporation which is a party cannot be taxed nnless the affi- 
 davit distinctly shows not only that they attended as witnesses, 
 but also that their fees have been or will be paid.^* 
 
 e. Fees of witnesses not sworn. — It is presumptive evidence 
 that a witness is not necessary'', when he is not sworn. That pre- 
 sumption must be overcome before his fees can be taxed.^^ If 
 the witnesses are not paid in advance or daily, that is a strong 
 ■circumstance against the allowance of their fees.^*^ Fees for 
 witnesses to impeach a supposed adverse -udtness cannot be taxed 
 without showing sufficient grounds for believing that such wit- 
 ness would attend court and be sworn ; and where he did not 
 attend, and was not sworn, it must further appear that such wit- 
 nesses would have impeached him had he been sworn.^^ 
 
 A defendant who had been sued on three notes, and had inter- 
 posed the defense of forgery in each case, was held justified in 
 subpoenaing seventeen ■^^dtnesscs on that point in the second case 
 tried, where he had called twelve on the first case and had been 
 defeated, although the court on the second trial limited him to 
 five.^^ The court has power to limit the number of witnesses 
 upon any one point, and where thirty-three witnesses are 
 subpoenaed to impeach the plaintiff, the court has a right to re- 
 strict the number for which fees may be allowed to the number 
 which he would allow to testify. In one case it was five.^^ The 
 plaintiff was allowed to tax the fees of ten witnesses, where he 
 
 ^Medhurp v. Butternuts & S. 37G; Mead v. Mallonj, 27 How. Pr. 
 
 Turnp. Co. 1 How. Pr. 231. 32. 
 
 " Code Civ. Proc. § 3288. -"Agrictdfural Ins. Co. v. Bmn, 45 
 
 "Cheever v. Pitisiurgh, S. tC L. E. How. Pr. 444. 
 
 R. Co. 74 Hun, 539, 57 N. Y. S. R. "Agricultural his. Co. v. Becm, 45 
 
 188, 2G N. Y. Svipp. 829. How. Pr. 444. 
 
 ^''Eayncs v. Uosher, 15 How. Pr. ^Loiverre v. Vail, 5 Abb. Pr. 227; 
 
 216; Kohn v. Manhattan li. Co. 8 Irioin v. Deyo, 2 Wend. 285. 
 
 Misc. 421, 59 N. Y. S. R. 34, 28 N. Y. -''Kley v. Eealey, 18 N. Y. S. R. 
 
 Supp. 663; Dean v. Williams, 6 Hill, 174, 2 X. Y. Supp. 231.
 
 478 THE LAW or COSTS IN NEW YORK. 
 
 had subpoenaed forty to support his general character in an 
 action for slander, and swore only two.^*^ 
 
 The clerk should adjourn the taxation to give a party an op- 
 portunity to procure affidavits showing that certain persons 
 whose expenses were sought to be taxed were not material or nec5- 
 essary, or had not been subpoenaed or paid their fees.^^ The tax- 
 ing party should show what was expected to be proved by each 
 witness, and why he was not called.^ ^ 
 
 /. Traveling fees. (1) Where witness resides out of the state, 
 — A witness who lives out of the state will be allowed traveling 
 fees from the state line, by the nearest usually traveled route.** 
 But if subpoenaed at the place of trial, he is not entitled to trav- 
 eling fees, and they cannot be taxed, if paid.^^ 
 
 (2) Where witness resides in the state. — A witness residing 
 in the state is only entitled to traveling fees from his residence to 
 the place of trial, unless it appears that he went to the place of 
 trial solely for the purpose of attending the same, and that he 
 returned to the place where he was subpoenaed after the trial.'^^ 
 Fees in such cases are allowed, unless it appears that the party 
 was negligent in not subpoenaing him before he left home. The 
 necessity of showing the negligence, or want of it, has been held 
 to be upon the taxing party.^*' A witness is entitled to his trav- 
 
 ^Irwin V. Deyo, 2 Wend. 285. Abb. Pr. 152; Wheeler v. Lozee, 12 
 
 ^^Agricultural Ins. Co. v. Bean, 45 How. Pr. 446. 
 
 How. Pr. 444. ^*DoicUnq v. Bush, 6 How. Pr. 410; 
 
 ^Kohn V. Manhattan R. Co. 8 Misc. Bank of Niagara v. Austin, 6 Wend. 
 
 421, 59 N. Y. S. R. 34, 28 N. Y. 548. 
 
 Supp. 663; Haynes v. Mosher, 15 ^''■Pfandler Barm Extracting Bung- 
 How. Pr. 216; Mark v. Buffalo, 87 ing Apparatus Co. v. Pfandler, 39 
 N. Y. 189; Rohitzek v. Hect, 3 N. Y. Hun, 191, 3 How. Pr. N. S. 253; 8ar- 
 Civ. Proc. Rep. 156; Agricultjiral gent v. Warren, 41 Hun, 103, 11 N. 
 Ins. Co. V. Bean, 45 How. Pr. 444. Y. Civ. Proc. Rep. 160-, Mitchell v. 
 
 *^Hicks V. Brennan, 10 Abb. Pr. Westcrvelt, 6 How. Pr. 205. 
 
 304; Moulton v. Toivnsend, 16 How. '^'t^argent v. Warren, 41 Hun, 103, 
 
 Pr. 306; Howland v. Lenox, 4 Johns. 11 N. Y. Civ. Proc. Rep. 160; Mead 
 
 311; Clarks v. Staring, 4 How. Pr. v. Mallory, 27 How. Pr. 32. Contra, 
 
 243; Hinds v. Schenectady County Pfandler Barm Extracting Bunging 
 
 Mut. Ins. Co. 7 How. Pr. 142; Taaks Apparatus Co. v. Pfandler, 39 Hun, 
 
 v. Schmidt, 25 How. Pr. 340; Dun- 191, 3 How. Pr. N. S. 253. 
 ham V. Sherman, 19 How. Pr. 572, 11
 
 ITEMS. 47^' 
 
 eling fees, going and returning, every time he is compelled to 
 return home on accomit of the adjournment of the court, or the 
 setting of a case down for a future day;^'^ but not for returning 
 borne over Sunday.^* Traveling fees will not be allowed simply 
 because the witness lives at a distance from the place of the trial. 
 [t must be shown that the Avitness traveled the number of miles 
 3harged, for the sole purpose of attending the trial,^^ and that 
 by the usually traveled route.^° 
 
 Where witnesses have been subpoenaed for a term of court^ 
 and they are prevented from coming because of a telegram stat- 
 ing that the court would not be held, their fees can be taxed ins 
 the judgmenf*^ When a case is put over the term upon the con- 
 dition that the expenses of the term be paid, the fees paid wit- 
 nesses for mileage and attendance must be paid.*^ 
 
 g. Fees when witness did not attend the trial. — A party can 
 recover back the fees that he has paid a witness who did not at- 
 tend the trial. Therefore, the fees of a witness are not taxable^ 
 where he did not attend the trial,^^ or where he did not arrive 
 till after the trial. ^^ But a plaintiff was allowed to tax the fees 
 of witnesses who left home in time to attend the opening of th& 
 term of court, but, on account of an accident, did not arrive till 
 the opening of the second day, where no case had been tried and 
 the case for which they were subpoenaed had been put over the 
 term upon the motion of the defendant at the opening of the 
 court on the first day.^^ 
 
 A party has three remedies against a witness who does not at- 
 tend the court after being legally subpoenaed : 
 
 *^Moulton V. Toionsend, 16 How. *^Roth v. Meads, 20 How. Pr. 287. 
 
 Pr. 306; Miller v. Huntington, 1 *-Ford v. Monroe, 6 How. Pr. 204^ 
 
 How. Pr. 218. 10 N. Y. Le^ral Obs. 155. 
 
 ^Muscott V. Runge, 27 How. Pr. *^Ehle v. Bingham, 4 Hill, 595. 
 
 85; Hoffman v. 'Neio York, L. E. d: **Bootli v. Smith, 5 Wend. 107. 
 
 W. R. Co. 18 Jones & S. 512. *^ Anonymous, 3 Hill, 457. 
 
 "^Wheeler v. Ruckman, 5 Robt. 702. 
 
 ^^Agricultural Ins. Co. V. Bean, 45 
 How. Pr. 444.
 
 480 THE LAW OF COSTS IN NEW YORK. 
 
 1. An notion at common law for damages. 
 
 2. By attachment proceedings. 
 
 3. By bringing an action against liim for the statutory pen- 
 alty. If he brings an action against a witness he must prove 
 that the defendant was a material witness and that he suffered 
 damages by such nonattendancc. The omission to pay the wit- 
 ness his fees, day by day, is a reasonable excuse for nonattend- 
 ancc, as the witness is not obliged to trust the party for his legal 
 fees.^'' 
 
 h. Terms for v'liich fees of witnesses may he taxed. — Witness 
 fees can be charged only for the terms of court when the taxing 
 party was ready to try the case.'*^ He is not justified in subpoe- 
 naing witnesses for a term of court at which it was certain that 
 the case would not be tried, but would be sent to a referee.'*^ A 
 party who has a default opened, upon paying to the opposite 
 party the costs of that term, has, upon ultimately succeeding in 
 the action the right to tax his disbursements for witnesses for 
 the term at which the default was taken. '^^ 
 
 i. Days for which fees of witnesses may he ^Mxed. — Generally 
 a party can tax witness fees only for the days that the case was 
 on the day calendar and the witnesses were in attendance.^° The 
 fact that the trial closes so late that a ^vitness cannot reach home 
 that night, but is compelled to remain till the next day, does not 
 entitle him to fees for the day that he is compelled to remain at 
 the place of trial.^^ But if it can be shown that it was necessary 
 to subpoena witnesses earlier, in order to insure their attendance 
 when wanted, the fees for the time that the \vitnesses were under 
 subpoena can be taxed.^^ A witness will be granted an allowance 
 
 *^Couriucy v. Baker, 3 Denio, 27. ^"Vence v. Rpeir, 18 How. Pr. 168; 
 
 'Uiohn V. Manhattan R. Co. 8 Misc. -l"^^ v. Mahon, 1 Abb. N. C. 468. 
 
 421 59 K Y. S. R. 34, 28 N. Y. ^' Evans v. Ferguson, 10 N. Y. Civ. 
 
 o" ' onn rl 7 ' /^7 7 Proc. ReD. .57. 
 
 Supp. 663; Delcomyn v. Chamber- , t , _ -r,„K+ 
 
 ' t^ ' ;" -Whecier v. uuckman, 5 Kobt. 
 
 lain, 48 How. Pr. 411. ^^g; Curtis v. Button, 4 Sandf. 719; 
 
 "^Pike V. 'S'ash, 16 How. Pr. 53. Crummer v. Huff, 1 Wend. 24: Allen 
 
 *mudson V. Erie It. Co. 57 App. v. Mahon, 1 Abb. N. C. 468 ; Ehle v. 
 
 "Div. 98, 68 N. Y. Supp. 28. Bingham, 4 Hill, 595.
 
 ITEMS. 481 
 
 for the time that the court is in session, when the distance from 
 his home to the court is so great that it is impracticable for him 
 to go home and return upon the day for which the case is set 
 do^ai for triah^^ A witness is entitled to fees for Saturday 
 and Sundav,^^ If the witness lives where the trial is held and 
 attends at the courthouse only on the day of trial, fees for only 
 one day can be taxed. '-^ If the court has a day calendar and the 
 witness actually attends court each day that the case is on the day 
 calendar, he is entitled to fees for those days.^^ If the witness 
 resides without the state the time of his attendance can be com- 
 puted only from the time that he crosses the boundary line of 
 the state, until he reaches the same place upon his return.^'^ 
 
 j. When a witness is entiiled to fees in tivo cases. — A witness 
 is entitled to full fees in each of two cases if he is in attendance 
 at the court, although the parties to both actions are the same.^^ 
 But where both actions are tried together, he is entitled to but 
 one fee.^® 
 
 At. Departure of witnesses hefore the trial. — A party who al- 
 lows his witnesses to go before trial is no. more entitled to tax 
 fees for their traveling and attendance than he would be for mt- 
 nesses who came after the trial was over. In neither case can 
 they be taxed.'^*' A defendant attended court with his witnesses, 
 and then left with them when he thought that his case could not 
 be reached that term. The case was reached and the plaintiff 
 took a default, which was afterwards opened, and the defendant 
 
 ^^ilotiUon V. Toirnsend, 16 How. 304; T>»ce v. Speir, 18 How. Pr. 
 
 Pr. 306. 168; Lyman v. Young Men's Cosmo- 
 
 "•^Movlton V. ToivusohI, 16 How. politan Club, 38 App. Div. 220, 56 N. 
 
 Pr. 306; Wheeler v. Huckman, 5 Y. Supp. 712; Willink v. Reekie, 19 
 
 Robt. 702; Museott v. Runge, 27 Wend. 82; TaaliS v. Schmirlt, 25 
 
 How. Pr. 85. How. Pr. 340. 
 
 ^^Agricultural Ins. Co. v. Bean, 45 •''^Handers v. Failing, 3 Thoiiip. & 
 
 How. Pr. 444. C. 64. Contra, Wilder v. Wheeler, 1 
 
 "■^Mead v. Mallory, 27 How. Pr. 32; How. Pr. 136. 
 
 Allen \\ Mahon, \ Ahh.'S. C. AQ9>. ^"DowUng v. Bvsh, 6 How. Pr. 
 
 ^''Hoii-land v. Lenox, 4 Johns. 311. 410; Booth v. Smith, 5 Wend. 107. 
 
 ^Hicks V. I'rennan, 10 Abb. Pr. 
 COSTS 31.
 
 482 THE LAW OF COSTS IN NEW YORK. 
 
 won, but he was not allowed to tax the witnesses' fees for the 
 term that the default was taken. "^ If a witness departs before 
 the trial, his fees may be recovered from him.^^ AVhere the ad- 
 versary charges in an affidavit, upon infonnation and belief, that 
 some of the witnesses charged for in the bill of costs had de- 
 parted for home before the trial, an ordinary affidavit will not be 
 sufficient to sustain those charges.''^ 
 
 L Expert witnesses. — The fees of experts, beyond the fees 
 fixed by statute for witnesses, are not taxable disbursements.^* 
 
 Section 308 of the Code of Criminal Procedure does not 
 cover the fees of expert witnesses called on the part of the pris- 
 oner, under the head of incidental expenses, or personal ex- 
 penses.^"" Fees of expert witness cannot be taxed in the dis- 
 trict courts of New York. Fees of witnesses in that court are 
 fixed by § 1370 of the consolidation act.*^*^ 
 
 404. Jurors' fees.— The plaintifl' cannot tax jurors' fees where 
 the defendant suffers default upon the calling of the case at the 
 trial term, because the defendant thereby waives a jury trial.^^ 
 
 The successful party can charge the amount paid to each jury, 
 where there has been more than one trial, even if the jury dis- 
 agrees, or its verdict is set aside for their misconduct. ^*^ 
 
 405. Proving genuineness of paper. — The attorney for a party 
 may, at any time before the trial, exhibit to the attorney for the 
 adverse party a paper, material to the action, and request a writ- 
 ten admission of its genuineness. If the admission is not given 
 within four days after the request, and the paper is proved or 
 
 *^Purdr/ V. Morgan, 2 How. Pr. 149. '^^People ex rel. Cant well v. Coler, 
 
 "-Ehle V. Bingham, 4 Hill, 595. CI App. Div. 51)8, 70 N. Y. Supp. 755. 
 
 "^Dowling v. Bush, 6 How. Pr. 410; ^'^Rundnll v. Morning Journal Asso. 
 
 Dean v. Williams, G Hill, 376. 22 Misc. 715, 49 N. Y. Supp. 1064. 
 
 "^Mark v. Buffalo, 87 N. Y. 184, 13 "Goodyear v. Baird, 11 How. Pr. 
 
 N. Y. Week. Dig. 415; Randall v. 377. 
 
 Morning Journal Asso. 22 Misc. 715, '^Hudson v. Erie R. Co. 57 App. 
 
 49 N. Y. Supp. 1064; Re Grade Cross- Div. 98, 78 N. Y. Supp. 28. 
 ing Comrs. 19 Misc. 230, 43 N. Y. 
 Supp. 1073; Rogers v. Rogers, 2 
 Paige, 458.
 
 ITEAIS. 483 
 
 admitted on the trial, the expense incnrred by the party exhibit- 
 ing it, in order to prove its genuineness, must be ascertained at 
 the trial, and paid by the party refusing the admission, unless 
 it appears, to the satisfaction of the court, that there was a good 
 reason for the refusal.*'^ 
 
 406. Trial fee. a. In general. — A trial fee cannot be taxed un- 
 less there is a trial, which means a judicial examination of the 
 issues raised, either by the pleadings or by the evidence. There- 
 fore, if the plaintifP moves to discontinue when the case is reach- 
 ed on the call of the calendar, which motion is granted, with 
 costs, the defendant cannot tax a trial fee."^*^ A trial fee has been 
 allowed when the case was discontinued, when it was on the day 
 calendar, although not actually reached. '^^ But if the complaint 
 is dismissed upon the default of the plaintiff and the motion of 
 the defendant, a trial fee is taxable.^^ When a plaintiff accepts 
 an offer of settlement, made by the defendant after the case is 
 on the day calendar, he cannot tax a trial fee.''^^ He is entitled 
 to a trial fee where the defendant insists upon his defense till 
 the plaintiff moves the case for trial.'^* But where a defendant, 
 two days before the case was on the day calendar, would not ac- 
 cept the plaintiff's offer to discontinue upon the payment of costs, 
 because he wished to move for an additional allowance, he can- 
 not, after the decision of that motion, tax up a trial fee, al- 
 though the case had, in the meantime, appeared on the day cal- 
 endar.'^^ 
 
 A defendant is entitled to a trial fee when the case is dis- 
 missed at the trial before any evidence is taken."^^ Where a mo- 
 
 "Code Civ. Proc. § 735. 23 N. Y. Civ. Proc. Rep. 113, 23 N. 
 
 '"'Studwell V. Baxter, 33 Hun, 331 ; Y. Siipp. 674. 
 
 Sutphen v. Lash, 10 Hun, 120. '''Kronslerg v. Mayer, 20 N. Y. 
 
 Contra, Ehlers v. Willis, 63 How. Pr. Civ. Proc. Rep. 80, 15 N. Y. Supp. 
 
 341 ; Jones v. Case, 38 How. Pr. 349. 328. 
 
 ""Duperey v. Phoenix, 1 Abb. N. C. ''"Jones v. Case, 38 How. Pr. 349. 
 
 133 note. '"McComh v. Kellogg, 13 N. Y. Civ. 
 
 ^""Dodd V. Curry, 4 How. Pr. 123, Proc. Rop. 150. 
 
 2 N. Y. Code Rep. 60; Cole v. Lowry, '"'Dodd v. Curry, 4 How. Pr. 123,
 
 484 TlIK l.A\V 01<' COisTS IK AKW VOJaC. 
 
 tion is made in the special terra wlien the case is called for trial, 
 for the dismissal of the complaint on the ground that the facts 
 stated therein do not entitle the plaintiff to relief in equity, 
 and the case is sent to the trial term and there disposed of, the 
 procee;lings in the special terra do not constitute a trial, and the 
 successful party can not tax a fee therefor. '^^ But if the court 
 at trial term finally disposes of the issues upon a motion to dis- 
 miss the complaint because it did not state a cause of action, a 
 trial fee is taxable/* No issue is raised by the pleadings, where 
 no ansAver or demurrer is served, or when the answer does not 
 deny the indebtedness set forth in the complaint, but sets up a 
 counterclaim, to which no reply is served. In such cases the 
 plaintiff is not entitled to tax the costs for proceedings subse- 
 quent to the notice of trial, nor for a trial fee.'^'* There is no 
 trial when the court, of its own motion, sends the case to a 
 referee, after one witness is sworn. ^*^ 
 
 h. More than one trial. — A trial fee is chargeable for every 
 time the case is tried, whether there is a verdict or not. The 
 labor is just as great where the jury disagree as where they 
 agree.^^ The successful party may also, in the first department, 
 tax for each trial the amount allowed when a case takes more 
 than two days ; also the charge for all proceedings after notice 
 and before trial,^^ and the term fees for the term, if it is on the 
 
 2 N. Y. Code Rep. 69; Shannon v. N. Y. Supp. 28; Friedheim v. Metro- 
 
 Brower, 2 Abb. Pr. 377. politaii Street R. Co. 35 Misc. 199, 
 
 '"Evans v. Ferguson, 10 N. Y. Civ. 71 N. Y. Supp. 485; La fond v. 
 
 Proe. Rep. 57. .fetzlcoiDitz, 17 Abb. N. C. 87; Faher 
 
 ''^Shannon v. Brewer, 2 Abb. Pr. v. Van Tassel! , 4 Month. L. Rep. 30. 
 
 377; Mora v. Great Western Ins. Co. ^"Gilroy v. Badger, 28 Misc. 143. 
 
 10 Bosw. 622. 58 N. Y. Supp. 1106; Friedheim v. 
 
 ''^Pardee v. Schenck, 11 How. Pr. Metropolitan Street R. Co. 35 Misc. 
 
 500; Coften V. CoZiPx, 72 Hun, 393, 55 199, 71 N. Y. Supp. 485; Zehnavo- 
 
 X. Y. S. R. 463, 25 N. Y. Supp. 387. vitz v. Manhattan R. Co. 24 N. Y. 
 
 ^"Third Nat. Bank v. McKinstry, 2 Civ. Proc. Rep. 402, 67 N. Y. S. R. 
 
 Hun, 443, 5 Thomp. & C. 52. 405, 33 N. Y. Supp. 583; Spring v. 
 
 ^^Hamilton v. Butler, 30 How. Pr. Day, 44 How. Pr. 390; Kummer v. 
 
 36, 19 Abb. Pr. 446, 4 Robt. 654; Christopher Street R. Co. 12 Misc. 
 
 Spring v. Do;/, 44 How. Pr. 390; Hud- 387, 24 N. Y. Civ. Proc. Rep. 404. 67 
 
 .son V. Erie R. Co. 57 App. Div. 98, 68 N. Y. S. R. 404. 33 N. Y. Supp. 58L
 
 ITEMS. 485 
 
 calendar.^^ But the item for all proceedings after notice and 
 before trial is not allowed in the second department where the 
 calendar practice requires but one notice of trial.*'* Where there 
 are issues of fact as well as of law, and the court has passed on 
 the issue of law, and sent the facts to a referee, two trial fees 
 may be charged.**^ 
 
 Tavo trial fees may also be taxed where a referee dies before 
 the case is finished, and a new trial is necessary. ^^ A party is 
 entitled to tax the costs of a trial, where it was commenced be- 
 fore a judge who was disqualified to hear the case, and also an- 
 other trial fee when the case was disposed of.*^ Where the plain- 
 liff puts the case on the short cause calendar and it is not tried 
 in an hour, and is sent to the general calendar, the defendant is 
 entitled to two trial fees and two items of costs after notice of 
 f rial.*^ 
 
 c. Only one trial fee ta.iahle. — ^But one trial fee can be taxed 
 where the plaintiff was nonsuited at the trial, and the appellate 
 division reversed the trial term, but the court of appeals ren- 
 •lered judginent absolute, and the amount of the recovery was 
 determined by an assessment of damages at the trial term. The 
 [daintilf, however, can recover his disbursements upon the assess- 
 ment of damages, under §§ 3228 and 3256 of the Code of Civil 
 Procedure.^^ But one trial fee can be taxed when, at the 
 
 ^^Spring v. Day, 44 How. Pr. 390. ^'Wiggins v. Arkenhurgh, 4 Sandf. 
 
 ^Seifter v. Brooldyn Heights R. 688: Evans v. Ferguson, 10 N. Y. 
 
 Co. 53 App. Div. 443, 65 N. Y. Supp. Civ. Proc. Rep. 57. 
 
 1123; Hudson, v. Erie R. Co. 57 App. ^-Kleg v. Healeg, 18 N. Y. S. R. 
 
 Div. 98. 68 N. Y. Supp. 28; Bank 174, 2 N. Y. Supp. 23. 
 
 of Mobile V. Phoenix Ins. Co. 8 IST. Y. ^''Cregin v. Bronkh/n Cross Town 
 
 C,iv. Proc. Rep. 212; Arent v. Eisen- R. Co. 19 Hun, 349. 
 
 iiann, decided by the same court as ^^(filroy v. Badger, 28 jMisc. 143, 
 
 Spring v. Day, is said to liave over- 58 N. Y. Supp. 1106; Barry v. Win- 
 
 ruled the latter case in 9 Abbott's kle, 36 Misc. 171, 73 N. Y. Supp. 188. 
 
 Digest (Rev. ed. 2d. Supp. ) Title ^Young v. f^yracuse, B. & N. Y. 
 
 "Costs" par. 359; Hudson v. Erie R. R. Co. 35 Misc. 114, 71 N. Y. Supp. 
 
 Co. 57 App. Div. 98, 68 N. Y. Supp. 221. 
 28; Tlakonson v. Metropolitan Street 
 R. Co. 40 Misc. 182. 81 N. Y. Supp. 
 662.
 
 486 THE LAW OF COSTS IN NEW YOEK. 
 
 trial, before the impaneling of a jnry, the plaintiff made a mo- 
 tion for judgment on the pleadings, and after argument, briefs 
 were submitted, and later the court handed down a decision de- 
 nying the motion and ordering the case on the calendar, and the 
 case was tried. AVhat took place the first time was simply a pre- 
 liminary motion. ^^ 
 
 d. WitJidrawal of a juror. — Where a trial has duly com- 
 menced and the court allows its discontinuance upon the with- 
 drawal of a juror, the party finally successful can tax a trial fee 
 for such procedure.^^ But where a juror is withdrawn after the 
 plaintiff has moved for judgment upon the pleadings, upon tho 
 condition of the defendant paying $30 costs, or all costs to date, 
 the plaintiff', upon succeeding upon a new trial, cannot tax two 
 trial fecs.^^ 
 
 e. Inquest or clefauU. — An inquest is such a trial that it en- 
 titles the plaintiff to a trial fee.^^ The defendant^'* or tht; 
 plaintiff^^ who takes a judgment by default, which is opened 
 without terms, is entitled to a t'^ial fee therefor, if he succeeds 
 upon the new trial. In such a case he may tax two trial fees, 
 unless the court in its order expressly limits the amount of costs 
 to be taxed for the favor of opening the dcfault.^^ 
 
 If two inquests have been opened and upon a trial the plain- 
 
 '^Pach V. Gilherf, 29 N. Y. S. R. Supp. 10S6; Candee v. Jones, 13 N. 
 
 833, 9 N. Y. Supp. 546. Y. Civ. Proc. Rep. 160; Wessels v. 
 
 ^^Mott V. Consumers Ice Co. 8 Carr, 22 Abb. N. C. 464, 6 N. Y. 
 
 Daly, 244; Dcicey v. Stewart, 6 IIow. Supp. 535. 
 
 Pr. 465. "X'ole v. Loicry, 23 N. Y. Civ. Proc. 
 
 ^^Starr Cash Car Co. v. Reinliardt, Eep. 113, 23 N. Y. Supp. 674. 
 
 3 Misc. 625, 23 N. Y. Supp. 733; "'Lcnnon v. Macintosh. 19 Abb. N. 
 
 Byrne v. Brooklyn City & N. R. Co. C. 175. 
 
 6 Misc. 6, 58 N. Y. S. R. 121, 26 N. "'■Candee v. Jones, 13 N. Y. Civ. 
 
 Y. Supp. 65. Proc. Rop. 100; Baker v. McMullen, 
 
 ^^Vexss v. Morrell, 7 Misc. 541, 58 2S ]Misc. 128, 58 N. Y. Supp. 1086; 
 
 N. Y. S. R. 319, 28 N. Y. Supp. 61; Jacob Hoffman Brewing Co. v. Volpe, 
 
 Haivley v. Davis, 5 Hun, 642; Pome- 4 Misc. 261, 23 N. Y. Supp. 812; 
 
 roy V. Hnlin, 7 How. Pr. 161; Iler- Cole v. Loicry, 23 N. Y. Civ. Proc. 
 
 man v. Lyons, 10 Hun, 111; Baker Rep. 113, 23 N. Y. Supp. 674. 
 V. McMidlcn, 28 Misc. 128, 58 N. Y.
 
 ITEMS. 487 
 
 tiff recovers a judgment, he is entitled to tax three trial fees,^'^ 
 Whether the successful party may tax the costs that were paid 
 by the defeated party to open the inquest or default depends 
 upon the construction that the different courts place upon their 
 own order. ^* 
 
 jSiO trial fee is allowable in a divorce action where there is no 
 •demurrer or answer, and the plaintiff obtains a decree upon 
 application to the court after proving his case.^^ 
 
 /. Neiv trial had pursuant to aji order. — The provisions of 
 subd. 3 of § 3251 of the Code of Civil Procedure, allowing $25 
 to be taxed for proceedings after the granting of and before a 
 new trial, are not applicable to the proceedings after the opening 
 of an inquest and before a new trial,^°*^ nor to the proceedings 
 after the withdrawal of a juror by one of the parties, and a new 
 trial pursuant to an order of the judge restoring the case to the 
 calendar ;^'^^ but these jirovisions only apply to those cases where 
 the trial is actually completed, and a new trial is granted by an 
 order setting aside the verdict, or the judgment entered thereon, 
 and granting a new triaP"^ or a reversal of the judgment on ap- 
 peal. This sum can be taxed on eveiw new trial where the ap- 
 pellate court awards a new trial. ^''^ Where the defeated party 
 moved for a reargument, but gave no security for a stay, the suc- 
 cessful party was held entitled to tax $25 costs after the grant- 
 ing of a new trial, and a trial fee where he placed the case on the 
 calendar and held it till the motion for reargument was de- 
 cided. ^'^"* Whether the costs of the first trial can be included in 
 
 ^Wesself^ V. Carr, 22 Abb. N. C. ^'"Hamilton v. Butler, 30 How. Pr. 
 
 464, 6 N. Y. Supp. 53.5. 36, 19 Abb. Pr. 44G, 4 Robt. 654; 
 
 "^Andrews v. Cross, 17 Abb. N. C. Hudson v. Erie R. Co. 57 App. Div. 
 
 92; l.cnnon v. Macintosh, 19 Abb. N. 98, 68 N. Y. Supp. 28; Kummer v. 
 
 C. 175. Christopher d T. Street R. Co. 12 
 
 ^^Cohen v. Cohen, 72 Hun, 393, 55 IMisc. 387. 24 N. Y. Civ. Proc. Rep. 
 
 X. Y. S. R. 463, 25 N. Y. Supp. 387. 404, 67 X. Y. S. R. 404, 33 N. Y. 
 
 ^""Wessels v. Carr, 22 Abb. N. C. Supp. 581. 
 
 464, 6 X. Y. Supp. 535. '"^Faher v. Tan Tassell. 4 Month. 
 
 '■"'Bloch V. Linsley, 40 Misc. 184, L. Bull. 30. 
 
 81 N. Y. Supp. GGl. ^'^Van Gelder v. HallenheQlc, 15 N.
 
 488 THE LAW OF COSTS IN NEW YOKK. 
 
 the second trial, which has been granted by the judge, depends 
 upon that order. They cannot be taxed, as of course. \Vlien 
 they have been wrongly inchided, the party aggrieved should 
 move to set aside the judgment for irregularity. These irregu- 
 larities cannot be reached and brought up by exceptions upon an 
 appeal from the judgment. -^^^ 
 
 407. When the trial occupies more than two days. — A trial is 
 completed and hnished as regards the allowance for a case which 
 occupies more than two days, when the case is finally submitted 
 to the jury and they have retired to deliberate upon their ver- 
 dict. ^^^ A trial occupies more than two days when the plaintiff 
 finishes his case at the close of the second day, and the complaint 
 is dismissed at the opening of court on the third day upon the 
 defendant's motion, without the introduction of any further ev- 
 idence.^ ""^^ The law takes no notice of fractions of days.'^'^'^ 
 This charge may be included for every trial had, when it occu- 
 pies more than two days.^^^ The fact that counsel is given addi- 
 tional time to submit briefs is not to be considered in deciding 
 whether the trial occupied more than two days.^*^^ 
 
 408. Term fees. a. Statntr. — The statute governing term fees 
 is contained in § 3251, subds. 3, 4, 5, of the Code of Civil Pro- 
 cedure. 
 
 b. In tlie court of appeals. — The court of appeals holds but 
 one term each year. Therefore, but one term fee can be 
 
 V. Civ. Proe. Rep. 333, 18 X. Y. S. R. loeaj/off v. Consumers' Ice Co. 8 
 
 1 "J, 2 N. Y. Supp. 252 ; Faber v. Van Daly, 244. 
 
 Tassell, 4 Month. L. Bull. 30. ""Mott v. Coiiswner.<i' Ice Co. 8 
 
 ^"'^CocJiran v. Gotttcald, 9 Jones & Daly, 244. Contra, Washburne v. 
 
 S. 317; Johnson v. Carnley, 10 N. Y. Oliver, 62 How. Pr. 482. 
 
 570, 61 Am. Dec. 762; Inxjersoll v. "^Sprinfi v. Bay, 44 How. Pr. 390. 
 
 Bostwick, 22 N. Y^. 425; Fitzhugh v. ^"^Evans v. Ferguson, 10 N. Y. Civ. 
 
 Wiman, 9 N. Y'^. 559. Proc. Rep. 57. 
 
 ^'^Mi/gatt V. Willcox, 35 How. Pr. 
 410: Washburne V. Oliver, 62 How. 
 Pr. 482.
 
 ITEIMS. 
 
 489 
 
 charged for each year, excluding the term at which the case Avas 
 disposed of.^^^ 
 
 c. Case 7iivst he in a condilion to he disposed of. — No term feo 
 can be taxed by anyone until the case is at issue as to all par- 
 ties/^ ^ although it is put on the calendar by a defendant who 
 was ready for trial.^^^ A party is not entitled to term fees for 
 those terms at which the case could not be moved on account of a 
 stay granted therein.^^^ Term fees cannot be charged in the ap- 
 pellate division wdien the case is not in a condition to be consid- 
 ered by that court."''' 
 
 d. Term fees for terms hefore the araendment of the coin- 
 plaint. — Term lees accruing before an amendment to a com- 
 plaint are not taxable, because the amendment destroys the 
 ii^sue.^^^ 
 
 A party who obtains judgment because of the frivolousness of 
 an answer interposed cannot tax term fees for the terms that the 
 case was on the calendar, because he could have obtained the 
 same relief without putting it on the calendar.^^'^ 
 
 c. Effect of refcrrouj a case. — Where a case is referred upon 
 motion before it is reached on the calendar, no term fee can be 
 charged for that term, because it could have been referred with- 
 out putting the case on the calendar.^^^ But when the case is 
 
 ^"Dcgcner v. Underwood. 31 Abb. Z\no Min. Co. 4 Duer, 681, 2 Abb. 
 
 y. C. 479, 62 N. Y. S. R. 121. 30 N. Pr. 2o.3. 
 
 Y. Supp. 399; Becker v. Melropoli- ^^"'Jloiren v. fiireeney. 66 Hun. 42. 
 
 ian Elev. R. Co. 30 K Y. Sui)p. 400 ; 49 N. Y. S. R. 003, 20 N. Y. Supp. 
 
 Palmer v. De Witt, 42 How. Pr. 466 ; 733. 
 
 FoiceU V. /Yp)p York C. & H. R. R. Co. ^'*8hufelt v. Powers, 13 How. Pr. 
 
 14 N. Y. Civ. Proe. Rep. 125, 3 N. Y. 89. Contra, Simpson v. Roiran, 13 
 
 Supp. 763; ^Yhiteman v. Leslie, 1 N. Y. Civ. Proc. Rep. 206. 
 
 Month. L. Bull. 50; Simpsoii v. ^^'Xohis v. Pollock, 18 N. Y. Civ. 
 
 7?oirou, 13 N. Y. Civ. Proc. Rep. 206; Proc. Rep. 1, 13 N. Y. Supp. 837: 
 
 Kahn v. Coen, 31 Abb. N. C. 478, 62 Van Gelder v. Hallenheck, 15 X. Y. 
 
 N. Y. S. R. 107, 30 N. Y. Supp. 347. Civ. Proc. Rep. 333, 18 N. Y. S. R. 
 
 {Carpenter v. Willett, 28 How. Pr. 19, 2 N. Y. Supp. 252. 
 
 376; 7^aZ/Hcr v. De ll'i/^ 42 How. Pr. "''Her:;feld v. Reinach, 2fi Misc. 
 
 466, and Maey v. Xelson, 49 How. Pr. 489, 57 N. Y. Supp. 669. 
 
 204, were decided before tlie adoption "''Candee v. Ogilvic. 5 Duer, 658. 
 
 of the Code of Civil Procedure.) ^^^Pcrry v. Livingston, How. Pr. 
 
 "^Livingston v. Yieille Monhigne 404.
 
 490 THE LAW OF COSTS IN NEW YORK. 
 
 referred by consent when it is reached on the call of the calen- 
 dar, the snccessful party is entitled to a term fee for the term 
 at which it was so referred.^ ^^ Term '"ees cannot be charged for 
 terms after the case has been referred. ^^^ 
 
 /■', ^Vhere the successful party did not notice the case. — A 
 cause is ^'necessarily on the calendar" within the meaning of 
 subd. 3 of § 3251 of the Code of Civil Procedure, when it is at 
 issue, and in readiness for trial.^^^ The successful party in an 
 action is entitled to tax term fees for all the terms not exceeding 
 five, exclusive of the term at which it is tried, that the case was 
 on the calendar, although he never noticed it for trial. ^^^ Where 
 the condition has been imposed upon a party asking for a favor, 
 that the case shall be placed on the calendar for those terms of 
 court where there is no jury, fees for those terms may be taxed 
 as though a jury was present.^ -^ 
 
 g. Effect of consentinrj tliat case go over the term. — Term 
 fees can be taxed for all terms that the case Avas put over by mu- 
 tual con sent. ■'^^ 
 
 h. Term fees paid for privilege of putting case over. — 
 • Whether a part}^ who has been compelled to pay term fees for 
 the privilege of putting a case over the term can be compelled 
 to pay the costs for that term, if he is defeated, or can tax the 
 fees for that term, if he is successful, depends upon the order 
 made at the time the application for postponement was made. 
 If the court grants the favor upon the payment of a sum equal 
 to the term fees for that term, the successful party can tax the 
 
 ^^"Sipperlj/ V. Warner. ITow. Pr. ^-^Prhn v. Drain, 64 App. Div. .581, 
 
 332; Fisher v. Hunter, 15 How. Pr. 10 N. Y. Anno. Cas. 227, 72 N. Y. 
 
 156. Supp. 298. 
 
 ""Anovj/uwris, 1 Duor. 051. '-'EUsivorih v. Partes, 13 N. Y. 
 
 ^'"Sipperh/ V. Warner, How. Pr. Civ. Proc. Pep. 208, note; Fisher v. 
 
 332; Dcjfo v. Morss, 21 Misc. 497, 48 Hunter, 15 How. Pr. 156; Deifn v. 
 
 N. Y. Supp. 171. Morss, 21 Misc. 497, 48 N. Y. Supp. 
 
 ^"^-Vandcreer v. Warren, 11 N. Y. 171. Contra, Crawford V. Kelly, 10 
 
 Civ. Proc. Pep. 319; Andreirs v. Bosw. CU7. 
 I^chvi frier, Hi Jones & S. 173, 2 N. Y. 
 Civ. Pioc. Pep. 18.
 
 ITEMS. 491 
 
 costs for that term. If, on the other hand, the case is postponed 
 ujion the payment of the costs of that tenn, those costs cannot be 
 again taxed bj either party. Such tenn fees are $10, and such 
 disbursements as the opposite party has incurred, as shown by 
 his affidavit. In the absence of a proper affidavit the clerk can 
 tax no disbursements.^-^ 
 
 t. Terms when case ivas on the larong calendar. — Where a 
 case has been put on the Avrong calendar for several terms by 
 both parties, and the case is finall}' placed on the proper calendar 
 and tried, the term fees for the terms the case was on the wTong 
 calendar can be taxed because the defeated party, having noticed 
 the case for trial, is estopped from denying that it was properly 
 there.' ^"^ Where a judge refuses to decide a demurrer, and the 
 parties withdraw their papers and both serve new pleadings, the 
 successful party upon the issues raised by the new pleadings is 
 not entitled to tax the costs of arguing the demurrer, because by 
 withdrawing their papers from the court after the argument the 
 parties waived their right to costs arising upon the demurrer.' ^^ 
 
 y,v stipulation as to term fees. — Where parties stipulate that 
 a case be put on the calendar for a certain term,'^^ or that the 
 costs of a certain term abide the event of the action, although it 
 is in excess of the legal limit, the court will enforce the stipula- 
 tion.'^^ The parties inay stipulate that the costs of a term, at 
 which the case could not be heard because of the lack of jurisdic- 
 tion of the court, abide the decision of the case, and the courts 
 will enforce such a stipulation.'^^ 
 
 l\ On appeal from justices' courts to county courts. — The 
 provisions of § 3251 of the Code of Civil Procedure, relating to 
 term fees in county courts, applies only to cases originally 
 
 ^'^''Sipperly v. Wcif-ner, 9 How. Pr. ^^Putney v. Tyng, 1 N. Y. S. R. 
 
 332 ; Perry v. Livingston, 6 How. Pr. 760. 
 
 404. ""Emmons v. Neiv York d E. R. 
 
 "°Stanswood v. Benson Chenntng Co. 17 How. Pr. 490. 
 
 €o. 2 ]\Ionth. L. Bull. 39. ^^"Eager v. Danforth, 8 How. Pr. 
 
 "'Losee v. Bullard, 54 How. Pr. 448. 
 319.
 
 492 THE LAW OF COSTS ].\ NEW YORK. 
 
 brought tliorcnn, and not to cases bronglit there by appeal from 
 a justice's court, either upon questions of law or for a new 
 trial.^''^^ Term fees on such appeal are regulated by § o073 of 
 the Code of Civil Procedure. The same limit as to term fees is 
 fixed by both sections. 
 
 l. Limit fixed h;/ lain. — Where there is a limit as to the num- 
 ber of term fees that are taxable, this number cannot be in- 
 creased because there are several trials.^ "^^ Term fees are al- 
 lowed for all terms within the legal limit that the case w^as nec- 
 essarily on the general calendar awaiting trial. ^^^ Likewase^ 
 upon a motion for a new trial, term fees can be taxed for every 
 term it is on the calendar and not reached.^ ^'^ But they are not 
 taxable for a Saturday special term that has no calendar.^ •"'''* 
 jS^or are they chargeable where a party has noticed a demurrer 
 before a judge at his chainbers.^^^ 
 
 m.s For what terms taxable upon a discontinuance. — A plain- 
 tiff may discontinue upon the day before the term opens,^^^ or 
 during the first term the case is on the calendar,^^^ without be- 
 ing compelled to pay tenn fees. 
 
 ISTo term fee can be charged where the case was settled be- 
 fore the opening of the term, although the case had been noticed 
 for that term and a note of issue filed.^^^ A term fee upon an 
 ajjpeal from an order is not allowable.^"*" 
 
 409. Interrogatories. — Under Code Proc. § 307, subd. 6. 
 
 ^^^Eormnci v. Bmith, 19 N. Y. Civ. "'•Wvitiht v. Reusens, 39 X. Y. S. R, 
 
 Proc. Ecp. 142. ] I N. Y. 8upp. 790. S02, 15 X. Y. Supp. 504. 
 
 ^^-HamiUon v. Butler, 19 Abb. Pr. '^'''Losee v. Bullard, 54 How. Pr. 
 
 446, 30 How. Pr. 36, 4 Robt. 654. 319. 
 
 "''Kahn v. Coen, 31 Abb. N. C. 478, '"Dreic v. ConistocI:, 17 How. Pr. 
 
 62 N. Y. S. R. 107, 30 N. Y. Supp. 469. 
 
 347; Sipperly v. Warner, 9 How. Pr. ^"^Erans v. Silbermaiui, 7 App. Div. 
 
 332; Goioing v. Leoi/. 43 N. Y. S. R. 139, 40 N. Y. Supp. 298. 
 
 767, 17 N. Y. Supp. 771; -Siw/>.so» V. ''^Latham v. Bliss, 13 How. Pr. 
 
 Rowan, 13 N. Y. Civ. Proc. Rep. 206. 416, 6 Duer, 661. 
 
 "^Malam v. Simpson, 12 Abb. Pr. ^*"Ennis v. Wilder, 14 N. Y. Week. 
 
 225, 20 How. Pr. 488; Moore v. Cock- Dig. 211. 
 roft, 9 How. Pr. 479; Jackett v. 
 Judd, 18 How. Pr. 388. not followed.
 
 ITEMS. 493 
 
 only $10 could be allowed for drawing interrogatories to he at- 
 tached to a commission, althongh more than one witness was to 
 be examined.^ ^^ This is still the rule under § 3251 of the Code 
 of Civil Procedure. The disbursements upon the commission 
 must be shown to be necessary to be taxed. If the commission 
 was issued in good faith, although it did not substantiate what 
 it was intended to, or if taken in a cause of action in which the 
 plaintiff failed, jet, if he is entitled to general costs, he is en- 
 titled as a matter of right to tax the costs of the commission.^ ^^ 
 
 A party is entitled to this charge, although the interrogatories 
 have never been served. ^^^ The expense of a commission issued 
 at the request of a party, to take his testimony, when he could 
 have attended the trial, cannot be allow^ed.^^* But the exj)ense 
 of taking a party's testimony when it is absolutely necessary, 
 and he is prevented by sickness from attending, is a taxable 
 disbursement.^ ^^ 
 
 If the commission is issued to take the testimony of the party 
 and other Avitnesses, the expense is a taxable disbursement,^'*® 
 although tlie party could have attended the trial. 
 
 When the commission is executed outside the state, the fees of 
 the commission and of the witnesses are properly taxable at the 
 same rate as under our statute, unless it appears that the fees 
 of witnesses were different where the commission was executed, 
 and that the attendance of the witnesses could not have been com- 
 pelled without the paying of such fees. The expense of an at- 
 torney upon the taking of the evidence cannot be taxed, anv 
 more than it could be here.^^^ The expense of taking testimony 
 
 '"Johnson y. CJiappeU, 7 Balj, 43; '^Delcomyn v. Chamberlain, 7 
 O'Brien v. Commercial F. Ins. Co. Jones & S 359 
 
 6 Jones & S. 4, r ^ ^ i, "'^^"^ ^^^ ^^t^onal S. 8. Co. 44 N. 
 
 ^'-Burjis V. Delaware, L. <€ W. 72. ^ c- t. ^m lo ^t -<r ^ -^^ 
 
 Co. 135 N. Y. 2G8, 48 N. Y. S. R. 106, ^f" ^- '^^' ^^ ^- ^- ^"PP- 166. 
 
 31 N. E. 1080, Overruling in effect Stmpson v. Rowan, 13 N. Y. Civ. 
 
 Marston v. Hebert, 60 How. Pr. 490. ^^'°^- ^^P- ^06. 
 
 '"Evans v. Silbeniiann, 7 App. Div. '"Finch v. Calvert, 13 How. Pr. 13; 
 
 139, 40 N. Y. Supp. 298. Dunham v. iiherman, 11 Abb, Pr.
 
 494 THE LAW OF COSTS IN NEW YOKK. 
 
 by stipulation cannot be taxed, as it comes under no provisions 
 of the Code of Civil Procedure.^*^ Where the parties stipulate 
 under § 879 of the Code of Civil Procedure to take the evidence 
 of witnesses as though it had been taken under §§ 872 and 873, 
 the prevailing party is entitled to tax $10 for each witness.^** 
 To entitle a party to tax the expenses of obtaining exemplified 
 copies of foreign documents, he must show by affidavit that the 
 documents were actually and necessarily used or obtained for 
 use.^^" 
 
 410. Examination of a party before trial. — Where two parties 
 having the same attorney obtain an order to examine the same 
 defendant before trial, but only one examines him, costs of $10 
 in each case will be allowed the defendant upon a discontinuance 
 of both actions.^^^ 
 
 411. Printing papers on appeals. — The successful party on an 
 appeal can tax, as a disbursement, the costs of printing the case, 
 in the absence of evidence that the sum charged was fraudu- 
 lently or coUusively exaggerated, or more than the usual charge 
 at the place of his residence.^°^ The court can refuse to allow 
 the successful party to tax the full amount of his disbursements 
 for printing his points, when they contain irrelevant matter, — 
 such as an argument in extenso.^^^ Where an appellant to the 
 appellate division has enough copies printed so that he will have 
 enough books to go to the court of appeals, and the appellate di- 
 vision affirms, and the appellant appeals to the court of appeals, 
 adding a few pages to his appeal book, he can tax, in case he is 
 successful, for his disbursements in the court of appeals, only 
 
 152, 19 How. Pr. 572. Contra, Perry How. Pr. 216; De Witt v. Swift, 3 
 
 V. Griflln, 7 How. Pr. 263. How. Pr. 2S2. 
 
 ^*^Newman v. Greiff, 3 N. Y. Civ. ^'^^Steiner v. Ainsworth, 53 How. 
 
 Proc. Rep. 362. Pr. 31. 
 
 '*''8mith V. Servis, 59 Hun, 552, 36 ^''Halter v. Utica & B. River R. Co. 
 
 N. Y. S. R. 917, 13 N. Y. Supp. 941. S6 N. Y. 401. 
 
 ^'^lianel v. Baare, 9 Bosw. 6S2; ^^HJorbett v, DcComeau, 13 Jones 
 
 Case V. Price, 9 Abb. Pr. Ill, 17 & S. 5S7. 
 How. Pr. 348; Eaynes v. Mosher, 15
 
 itp:ms. 495 
 
 what he paid for printing the additional pages.^^^ Where the 
 appellant prints enough cases to go to the court of appeals, and 
 wins at the appellate division, and the appellant to the court of 
 appeals i:)urchases enough cases of him to make his appeal, and 
 the court of appeals affirms, the successful party need not deduct 
 from his printing bill the amount realized from his opponent 
 upon the sale of his extra cases. ^^* 
 
 A party who prints more cases than are necessary cannot 
 charge the extra expense against his opponent.^^^ Where it ap- 
 pears that by special agreement a case could be printed for less 
 than $1 per page, but in the absence of a special agreement the 
 usual charge was $1 per page, and the successful party had 
 agreed to pay $1 per page if he won, it was held that he could 
 tax his printing at that figure. -^'^'^ A respondent who obtains 
 leave of the court to print all papers improperly omitted will not 
 be allowed for printing papers not mentioned in the order. -^^^ 
 Where certain papers are printed at the request of some of the 
 parties, and by the direction of the referee, the expense of this 
 printing is a proper disbursement.-'^^ Upon an appeal from an 
 order the court may allow the successful party, in addition to 
 the costs, the disbursements of printing the papers and points,^^® 
 but if the affirmance or reversal is "with costs," and no mention 
 is made of disbursements, none can be taxed. ^^^ Where several 
 parties unite in an appeal, and some are successful and some are 
 not, the successful parties will not be allowed to tax the charge 
 for printing, without proof that they incurred the expense.-' ^^ 
 
 ^■'^Poiter V. Carpenter, 50 How. Pr. ^^Weeder v. JnfJson, fll N. Y. 374. 
 
 89. ^""Erie JR. Co. v. Ramsey, 10 Abb. 
 
 ^^'"Consalus v. Brotherson, 54 How. Pr. N. S. 109. 
 
 Pr. 62. ""Cassirly v. McFarJand, 139 N. Y. 
 
 ''•"Byrves v. Lnlagh, 12 N. Y. Civ. 201, 34 N. E. 893; Re SfeeneJcen, 58 
 
 Proc. Pvpp. 417, 10 N. Y. S. R. 728. App. Div. 85, 9 N. Y. Anno. Cas. 413, 
 
 "Wnn Celder v. HnUenhecJc, 15 N. G8 N. Y. Supp. 444. 
 
 Y. Oiv. Proc. Pep. 333, 18 N. Y. S. R. "-Kane v. MefropnUfnn Elev. R. 
 
 19. 2 N. Y. Supp. 252. Co. 15 Dnly. 30fi. 28 N. Y. S. R. 399, 
 
 ''\<^liihh.s V. Ripley. 7 N. Y. S. R. 7 N. Y. Snpp. 653; Schoonmalcer v. 
 
 478, 28 N. Y. Week. Dig. 508. Bonnie, 51 Hun, 34, 16 N. Y. Civ.
 
 496 THE LAW OF COSTS IN KEW YORK. 
 
 412. Advertising sales of property. — Tlie amoimt of fees of a 
 printer for advertising the sale of property, or for publishing a 
 summons, notice, order, citation, or other advertisement required 
 by law, is fixed by § 3317 of the Code of Civil Procedure at 75 
 cents per folio for the first insertion, and 50 cents for each sub- 
 sequent insertion, except that in counties containing wholly or 
 partly cities of the first class, the charge may be $1 per folio for 
 the first insertion, and 75 cents for each subsequent insertion. 
 
 A sheriff who is stopped by an injunction obtained by the de- 
 fendant, from selling real estate upon a judgment, after adver- 
 tising it, and who adjourns the sale, may deduct his bill for ad- 
 vertising from the proceeds, when they are large enough to cover 
 the judgment and this expense.^®* In an action in partition the 
 plaintiff was allow^ed to tax telegrams and the expenses of litho- 
 graphing the summons and complaint, there being a special affi- 
 davit of the necessity of these disbursements, and no opposing 
 affidavits.^ ^^ The expense of adjourning a sale, including ad- 
 vertising, may be taxed, though it was incurred after the notice 
 of appeal was served, but before the sureties had justified. ^^^ 
 
 413. Fees of referees, a. Statute. — The fees of a referee are 
 fixed at $10 per day, unless the court or judge fixes a smallci- 
 amount or the parties stipulate that he may have a larger sum.^*"'" 
 The fees of a referee appointed to take testimony under § 873 of 
 the Code of Civil Procedure are not embraced within the pro- 
 visions of § 3206, but are taxable under the provisions of § 3250, 
 which provides that the reasonable compensation of commission- 
 ers for taking depositions are a taxable disbursement.^^''' 
 
 h. Stipulation that fees may he larger than the statutory rate. 
 
 Proc. Rep. 64. 28 IST. Y. S. R. 428. 3 ^'•'V/ard v. James, 8 Him, 526. 
 
 N. Y. Supp. 492. '«" Code Civ. Proc. § 3296. 
 
 '^Wan Gelder v. Van Gelder, 26 ^^^Reichel v. T\^ew York C. & H. R. 
 
 Hun. 356. /?. Co. 18 IST. Y. Civ. Proc. Pvcp. 2.56. 
 
 '"'Douglift.'! V. Afn-eU. 3 N. Y. Civ. 29 X. Y. S. R. 841, 9 N. Y. Supp. 
 
 Proc. Rep. 80. 2 N. Y. Civ. Proc. Rep, 415. 
 (]\TcCarty) 390.
 
 ITEMS. 497 
 
 • — In the absence of an agreement the referee is entitled to 
 charge no more than the legal fee, $10 per day. The parties or 
 their attorneys may sign an agreement that the referee have a 
 larger amonnt/^^ or the amount may be inserted in the minutes 
 before the commencement of the reference.-^ ^^ It is not suffi- 
 cient that the parties agree orally that the referee may fix his 
 own fees, which agreement is afterwards noted in the min- 
 utes.^ '^^ If one of the parties agrees orally that the referee may 
 charge a sum in excess of the legal rate, but, after the reference 
 and before the report is made, refuses to sign a stipulation to 
 that effect, the referee is only entitled to charge the legal rate.-^'^^ 
 A stipulation that the referee should charge a certain sum for 
 ^'every hearing" does not entitle him to charge for days appoint- 
 ed for hearings when in advance of the time appointed 
 the parties had countermanded such appointment.^ '^^ The court 
 will, in the absence of fraud, collusion, or deceit, enforce an 
 agreement made by the attorneys of the parties that the referee's 
 fees be in excess of that allowed by law.^"^ A receiver will not 
 be allowed to consent to such an increase of the fees of a referee 
 without the permission of the court.^"^^ A stipulation in writ- 
 ing as to fees of the referee, and that each party should pay one 
 half, will be enforced.^ '^^ 
 
 c. Proof of the number of days occupied upon the reference. 
 
 ^^Marlc V. Buffalo, 87 N. Y. 183; 21 N. Y. Supp. 451; Be Hurd, 6 
 
 Code Civ. Proc. § 3296. Misc. 171, 31 Abb. N. C. 109, 56 N. 
 
 ^""Tovmsend v. Pei/ficr, 14 Abb. Pr. Y. S. R. 694, 26 N. Y. Supp. 893; 
 
 N. S. 324, 45 How. Pr. 211; Philbin Broion v. Sears, 23 Misc. 559, 52 N. 
 
 V. Patrick, 22 How. Pr. 1 ; Shultz v. Y. Supp. 792. 
 
 Whitney, 9 Abb. Pr. 71; Thurman ^""^Dickinson v. Earle, 63 App. Div. 
 
 V. Fiske, SO How. Pr. 397; Brown v. 140, 71 N. Y. Supp. 231. 
 
 Windmuller, 4 .Jones & S. 71, 14 Abb. ^'-Mead v. Tuckerman, 105 N. Y. 
 
 Pr. N. S. 359; Code Civ. Proc. § 3296. 557, 8 N. Y. S. R. 182, 12 N. E. 64. 
 
 ""Devlin V. TSiew York, 7 Daly, 466; "nVolff v. 77om, 9 Misc. 100, 59 
 
 First Nat. Bank v. Tama jo, 77 N. Y. N. Y. S. R. 719, 29 N. Y. Supp. 75. 
 
 476 1 Chase v. James, 16 Hun, 14; ^'^ People \. Continental L. Ins. Co. 
 
 Griggs v. Day, 135 N. Y. 469, 32 15 N. Y. Week. Dig. 569. 
 
 N. E. 238 ; Grif7f7s V. Gwinn, 23 N. Y. "'Brick V. Fowler, 61 How. Pr. 
 
 Civ. Proc. Rep. 46, 29 Abb. N. C. 144, 153. 
 COSTS 32.
 
 498 THE LAW Oi^' COSTS IN NEW YORK. 
 
 — Before a referee's fees can be taxed, a statement sliowing the 
 time occupied bv the reference is required.^ '^ If the questioiL 
 of the number of days for which a referee has received pay is to 
 be raised on appeal, it should be pointed out upon a motion for 
 readjustment of costs, pointing out the errors, or by procuring 
 a return of the facts showing that the referee has overcharged.^'^'^ 
 In all cases where objection is made to a disbursement for ref- 
 eree's fees, that disbursement should be supported by affidavit. 
 A general affidavit by the attorney is not sufficient. The affida- 
 vit of the referee would be the best evidence, or the parties 
 might waive his affidavit and accept his certificate.^ '^^ The affi- 
 davit should show that the time for which a charge for fees of a 
 referee is made was necessarily required and spent in the busi- 
 ness of the reference. ^'^^ He is entitled to fees for a full day, 
 for every day that he Avas present, ready to take testimony, but 
 adjourned the hearing at the request of the parties, made at that 
 time.^"*^^ But where the hearing was adjourned before the day 
 set for the hearing arrived, he cannot charge for that day.^^^ 
 JSTor can he charge for a day's time upon the mere filing of one 
 paper,^^^ nor for examining the testimony and exhibits, in ad- 
 dition to a general study of the case ; but he can charge for the 
 preparation of his opinion and rei^ort,^^^ and he is entitled to 
 charge for the time reasonably spent in the investigation and 
 consideration of the case after its submission.^ ^"^ 
 
 ''"Gilbert v. Deshon, 40 X. Y. S. R. 33 X. Y. S. R. 823, 11 X. Y^ Supp. 
 
 799, 16 N. Y. Supp. 36. 510; Finkel v. Kohn, 24 Misc. 367, 
 
 "'Kearney v. McKeoti, 85 N. Y. 53 N. Y. Supp. 694; Brush v. Kelsey, 
 
 136; Hannahs v. Hannahs, 5 Him, 47 App. Div. 270, 62 N. Y. Supp. 
 
 644; First Nat. Bank v. Tamajo, 77 214; Fay v. Muhlker, 13 Daly, 316. 
 
 N. Y. 476. ^"^Mead v. Tuckerman, 105 N. Y. 
 
 "Wroicn V. Windrmdler, 4 Jones & 557, 8 N. Y. S. R. 182, 12 N. E. 64; 
 
 S. 75, 14 Abb. Pr. N. S. 359; Shtiltz Brush v. Kelsey, 47 App. Div, 270, 
 
 V. Whitney, 9 Abb. Pr. 71; Duhrkop 62 N. Y. Supp. 214. 
 
 V. White, 13 App. Div. 293, 43 N. Y. ^^-Jones v. Neioton, 33 X. Y. S. R. 
 
 Supp. 190. 823, 11 N. Y. Supp. 510. 
 
 ""Re Plata, 26 Misc. 434, 56 X. Y. ^^^Finkel v. Kohn, 24 Misc. 367, 53 
 
 Supp. 132. N. Y. Supp. 694. 
 
 ^^"Blanek v. f^pies. 31 jMisc. 19. 02 ^^^Herschell v. Rofjers, 2 Month. L. 
 
 X. Y. Supp. 1039; Jones v. Newton, Bull. 14; Broicn v. Windmuller, 14
 
 ITEMS. '499 
 
 d. Two actions tried before the same referee. — Where two 
 actions between the same parties are tried before the same ref- 
 eree, a stipulation may be made that one half of the fees be 
 charged in each case. Upon the dismissal of the complaint in 
 one action, only one half of the fees of the referee to that time- 
 can be charged in that case.^^^ But the costs will not be thus ap- 
 portioned in the absence of such a stipulation, especially where 
 the cases are in different courts.^ ^^ Where two actions are tried 
 together, the evidence being applicable to each, only one fee can 
 be charged for each da3^^^^ A referee who decides several cases 
 on the same day can charge fees in but one case.^^* 
 
 e. How the referee's fees can be collected. — A referee, until 
 he is paid his fees, is not bound to deliver his report to the suc- 
 cessful party or file it with the clerk. But if he does not do one 
 or the other the reference may be terminated, under § 1019 of 
 the Code of Civil Procedure, at any time after sixty days from 
 the time when the cause or matter was finally submitted to him, 
 and before the report had been filed with the clerk or delivered 
 to the attorney for one of the parties. 
 
 If the reference is thus terminated the referee is not entitled 
 to his fees.^^^ Any notice is sufficient to end the reference if 
 it informs the opposite party that the party serving the notice 
 elects to end the reference.^^^ The referee's report must actu- 
 ally be delivered to one of the parties or filed with the clerk, to 
 
 Abb. Pr. N. S. 366; Shultz v. Whif- '^^People v. Continental L. Ins. Co. 
 
 ney, 9 Abb. Pr. 77; Rothschild v. 15 N. Y. Week. Dig. 569; Disoswmj 
 
 Werner, 4 Month. L. Bull. 28. v. Winant, 3 Keyes, 412, 1 Abb. App. 
 
 '^^Colton V. Simntons, 14 Hun, 75, Deo. 508, 33 How. Pr. 460. 
 
 6 N. Y. Week. Dig. 530; Byrne v. '^'Donghis v. Smith, 65 Hun, 11, 47 
 
 (Jroot, 5 Month. L. Bull. 56; Broion N. Y. S. R. 54, 19 N. Y. Supp. 630; 
 
 V. Sears, 23 Misc. 559, 52 N. Y. Supp. Niles v. Mnynard, 28 How. Pr. 390; 
 
 792. Birdseye v. Goddard, 17 N. Y. Week. 
 
 ^"•"Holmes d G. Mfy. Co. v. Morse, Dig. 228. 
 
 28 Abb. N. C. 133, 19 N. Y. Supp. '•■"'Orer/ory v. Crydcr, 10 Abb. Pr. 
 
 190. N. S. 289. 
 
 '^'Byrne v. Groot, 5 Month. L. Bull. 
 56.
 
 600 THE LAW OF COSTS IN NEW YOKK, 
 
 prevent a termination of the references, as provided In § 1019 of 
 the Code of Civil Procedure.^ ^^ He cannot protect himself by 
 delivering the report to one of the attorneys, unless it is deliv- 
 ered to him nnconditionally,-^^^ If he delivers his report to one 
 of the attorneys or files it before his fees are paid, he can main- 
 tain an action against all the parties to recover his fees, upon 
 the ground that he was employed by all the parties,^ ''^ or he may 
 sue the prevailing party. -^^^ The attorneys are not liable for 
 his fees, as they are the known agents of their clients.-^ ^^ IsTor 
 can the supreme court, by order, compel the successful party to 
 pay the referee's fees and take up his report.^^*^ The court will 
 not compel, by contempt proceedings, the payment by a receiver 
 of the fees of a referee who passes upon his accounts, where the 
 order requiring the payment was made by a judge other than the 
 one before whom the motion was first made, and the order does 
 not recite regular adjoumments.^^'^ Upon a motion to compel a 
 referee to file his report, which is resisted on the ground that his 
 fees have not been paid, the court has not the power to deter- 
 mine the amount of his fees when neither party request such de- 
 termination.^^* A referee to take the account of a fund in court 
 may have his fees paid in the first instance out of the fund, in 
 the discretion of the court.^^^ A stipulation that the successful 
 party may pay part of the fees of the referee and that the bal- 
 
 ^^Liitle V. Lynch, 99 N. Y. 112, 1 ^"mowell v. Kinney, 1 How. Pr. 
 
 N. E. 312; Phipps v. Carman, 2^ lOH; Jitdson v. Gray, 11 !>!. Y. 4QS. 
 Hun, 150, Affirmed without opinion ^^'^Geib v. Topping, 83 N. Y. 46; 
 
 in 84 N. Y. 650, disregarding Waters Bishop v. Bishop, 30 Abb. N. C. 296, 
 
 V. Shepherd, 14 Hun, 223, which is 24 N. Y. Supp. 888. 
 now overruled hj the above cases; ^^Perkins v. Taylor, 19 Abb. Pr. 
 
 Thornton v. Thornton, 66 How. Pr. 146. 
 
 119; Bishop v. Bishop, 30 Abb. N. C. ^"^Brush v. Kelsey, 47 App. Div. 
 
 296, 24 N. Y. Supp. 888. 270, 62 N. Y. Supp. 214. 
 
 ^''-Doufflas V. Smith, 65 Hun, 11, 47 lS'\Atty. Gen. v. Continental L. Ins. 
 
 N. Y. S. R. 54, 19 N. Y. Supp. 630. Co. 93 N. Y. 45; Clapp v. Clapp, 33 
 
 ^'^Russcll V. Lyth, 66 App. Div. Hun, 540; Re Merry, 11 App. Div. 
 
 290, 10 N. Y. Anno. Cas. 287, 72 N. 597, 42 N. Y. Supp. 617; Re Hurd, 
 
 Y. Supp. 615. 6 Misc. 171, 31 Abb. N. C. 109, 56 
 
 "*hi1ile v. Ltjnch, 99 N. Y. 112, 1 N. Y. S. R. 094, 26 N. Y. Supp. 893. 
 N. E. 312.
 
 ITEMS. 501 
 
 ance be a lien on the judgment will be enforced.-'^^ A refereo 
 wlio has collected more fees than is allowed on the taxation may 
 be comi^elled by an order of the court made in that action, to 
 refund the excess collected by him.-*^^ 
 
 /. Extension of time to report. — The parties may, by agree- 
 ment, extend the time beyond sixty days, in which to file tlie re- 
 port. If the extension is for a definite time, either party may 
 terminate the reference upon the expiraJ:ion of the stipulated 
 tirae.^"^ If the time has been extended indefinitely, the party 
 wishing to terminate the reference should serve a notice upon the 
 opposite party and the referee, that, unless the report is filed 
 within a specified and reasonable time, the reference will be 
 deemed ended.^''^ Where a stipulation was made after the 
 death of one of several referees, that the remaining referees 
 make the report, the statutory time within which the report must 
 be filed runs from the time of that stipulation.^"'* The statu- 
 tory time may be extended without* a formal stipulation. The 
 time may be extended when the report is withheld at the request 
 of the parties who were making arrangements to settle j the ac- 
 tion."°^ It may also be extended by any conduct that in fair- 
 ness estops the litigant from taking advantage of the strict letter 
 of the law, — such as requesting a report in the near future.-''^ 
 
 If neither party elects to terminate the reference the report 
 of the referee, though filed after the sixty days have expired, is 
 sufiicient.^'^^ The objection that the referee did not file his 
 
 ^Birdseye v. Goddard, 17 N. Y. ""'Dwyer v. Hoffman, 39 Hun, 360, 
 
 Week. Dig. 238. Affirmed in 102 N. Y. 725. 
 
 '""Duhrkop V. White, 13 App. Div. ^"^Gill v. Clark, 31 Misc. 337, 65 
 
 293, 43 N. Y. Supp. 190. N. Y. Supp. 406. 
 
 ^"^Patterson v. Kmapp, 83 Hun, 492, ""''Nealis v. Meyer, 21 Misc. 344, 47 
 
 24 N. Y. Civ. Proc. Rep. 251, 05 N. Y. N. Y. Supp. 156; O'Neill v. Howe, 
 
 S. R. 188, 32 N..Y. Supp. 32. 16 Daly, 181, 9 N. Y. Supi>. fl6; 
 
 ^^Ballou V. Pardons, 55 N. Y. 673; Foster v. Bryan, 26 How. Pr. 164, 16 
 
 gproull V. Star Co. 45 Apip. Div. 575, Ahb. Pr. 396; Mantles v. Myle, 26 
 
 61 N. Y. Supp. 404. How. Pr. 409; Livingston v. Oidney, 
 
 ^Berls V. Metropolitan Elev. R. 25 How. Pr. 1; Parker v. Baxter, 19 
 
 Co. 37 N. Y. S. E. 608, 15 N. Y. Supp. Hun, 410. 
 155.
 
 602 , TIM'; r,AW of costs in jskw vouk. 
 
 report witliiii llio tiiiio liuiilcd by law caniiol be raised for the 
 first time iqjori appeal"'^** 
 
 g. When the court lias no poiuer to refer the action. — Where 
 the court has no power to refer an action' the prevailing party 
 cannot recover the fees of the referee and stenographer.^"'"^ 
 
 h. i][-i$co7iduct of referee. — Where the special term sets aside 
 the report of the referee and the judgment ent(?red thereon, on 
 account of the misconduct of the referee, and orders a new trial 
 before another referee, the costs of the reference fall with the 
 judgment. ^^'^ - , - 
 
 i. Iteference ordered upon a motion. — The court may send a 
 motion to a referee to determine a disputed question of fact. 
 His fees are a taxable disbursement.^^ ^ 
 
 j. Reference not completed. — Disbursements for referee's 
 fees when incurred in the regular prosecution of an action are 
 taxable. Thus, where a plaintiff obtains a reference to ascer- 
 tain his damages upon the defendant's default, and the default 
 is opened and no mention is made of the referee's fees, the 
 plaintiff, upon succeeding in the action, can tax the referee's 
 fees.^^^ The defendant in an equity action will be compelled 
 to pay the costs of a reference caused by his own wilfulness, al- 
 though the plaintiff recovers but 6 cents damages.^^^ 
 
 Tc. Referee to sell uporf a mortgage foreclosure. — The fees of 
 a referee upon a sale of mortgaged premises are l-egulated by § 
 3207 of the Code of Civil Procedure and are the same as are al- 
 lowed to a sheriff' under subds. 7, 11, of § 3307 of the Code. 
 
 ^'^'Nealis v. Meijer, 21 IV^isc. 344, 47 =" Code Civ. Proc. § 3251; Brown 
 
 N. Y. Supp. 156. V. GaUaudet, 19 Alb. L. J. 97; ISHcht- 
 
 ^'^Barher v. Lane, 60 App. Div. 87, ouser v. Lehmatin, 15 Misc. 447, 72 
 
 69 N. Y. Supp. 739; Godding v. Por- N. Y. S. R. 788, 37 N. Y. Supp. 208. 
 
 ter, 17 Abb. Pr. 374. ^^'Neio York Bank Note Co. v. 
 
 ""Dickinson v. Earle, 63 App. Div. Hamilton Bank Note Engraving &^ 
 
 140, 71 N. Y. Supp. 231; New York Friniing Co". 56 App. Div. 488, 67 N. 
 
 Bank Note Co. v. Hamilton Bank Y. Supp. 827. 
 
 Note Engraving d Printing Co. 71 ^^^Bowe v. Brown, 4 N. Y. S. R. 
 
 App. Div. 611, 75 N. Y. Supp. 520. 456, 26 N. Y. Week. Dij?. 47.
 
 ITEMS. 503 
 
 ' He is entitled to Iiis di.sbnr.seinciits and to $2 for posting notice 
 of sale, and 3 per cent upon the first $250 and 2 per cent upon 
 the balance, except in tbe counties of Xew York, Kings, and 
 Westchester, in which counties he is entitled to 214 per cent 
 upon the first $250 and 1^/4 per cent on the balance. The fees 
 •of the referees are fixed by the Code of Civil Procedure, and the 
 fact that they are the same as the fees of the sheriffs in the va- 
 rious counties will not cause the fees to vary to meet the change 
 in the compensation of the different sheriffs, when that change is 
 made bv an independent act, and not by an amendment to § 
 '3307 of the Code of Civil Procedure.^^'* But where the referee 
 is required to take security upon a sale, or to distribute or apply, 
 or ascertain and report upon the distribution or application of, 
 •any of the proceeds of sale, he is also entitled to one half of the 
 commissions upon the amount so secured, distributed, or ap- 
 plied, allowed by law to an executor or administrator for receiv- 
 ing and paying out money. The referee is entitled to these com- 
 missions when he pays out the money to parties entitled thereto, 
 or makes payments upon encumbrances, as directed by the 
 t;ourt.^^^ The fees cannot exceed $50,"^*^ unless the property 
 sells for $10,000 or upwards, in which event he may receive 
 such additional compensation as to the court may seem 
 proper.-'^ This additional compensation is not granted to the 
 Teferee unless he has actuallv received and become accountable 
 for the sum of $10,000 or more.^^* They cannot exceed that 
 sum, although, on account of defects, he has been compelled to 
 «ell the property more than once.^^^ Under the Revised Stat- 
 
 ^^*Keim v. Keim, 43 App. Div. 88, ^'^Hosmer v. Gano, 14 Misc. 229, 
 59 N. Y. Supp. 3G6, in effect over- 25 N. Y. Civ. Proc. Rep. 100, 70 N. 
 ruling Schierloh v. Schierloh, 22 Y. S. R. 169, 35 N. Y. Supp. 471; 
 Misc. G37, 49 N. Y. Supp. 1062. Metropolitan L. Ins. Co. v. Bend- 
 
 ^^'^Race V. Gilbert, 102 N. Y. 298, heim, 59 N. Y. Supp. 793; Dime Sav. 
 10 N. Y. Civ. Proc. Rep. 1, 1 N. Y. Bank v. Petit, 59 N. Y. Supp. 794. 
 S. R. 661, 6 N. E. 592. ■'■'Caryl v. Stafford, 69 Hun, 318, 
 
 '• ^'"Maher v. O'Conner, 1 N. Y. Civ. 53 N. Y. S. R, 426, 23 N. Y. Supp. 
 Proc. Rep. 158, 61 How. Pr. 103. 534. 
 
 "'Code Civ. Proc. § 3297.
 
 50-i THE LAAV OF COSTS IN NEW YORK. 
 
 nte he was held entitled to 50 cents for receiving and entering 
 the decree in his book, and $2 for advertising the property for 
 ssle.^^^ The fees should be taxed when there is a dispute as to 
 the amount.-^^ In the absence of express authority in the judg- 
 ment, he has no right to alloAV the purchaser to deduct from his 
 bid the costs taxed in a judgment on the foreclosure of a prior 
 mortgage.^^^ 
 
 I. Referee to sell in a partition action. — A referee cannot tax, 
 as a disbursement, advertisements of the sale in the daily pa- 
 pers,^^^ and the court has not the power to authorize such an 
 expenditure.^^* Under the Revised Statute the referee's fees 
 could be computed only upon the amount of money received and 
 paid out, and not upon the encumbrances, subject to which the 
 property was sold.^"^ These decisions are, doubtless, in point 
 now. 
 
 The fees of a referee in a partition action, an action for 
 dower, or any judicial sale, are the same as in an action brought 
 to foreclose a mortgage, except that the limitation of the amount 
 of fees is $500 instead of $50. See preceding subdivision of 
 this section. ^^® Where the court orders the money paid into 
 court and makes its own distribution under §§ 1563, 1568, and 
 1570 of the Code, the referee will not be entitled to commis- 
 sions. A referee receives more than a sheriff, because in paying 
 money his duty requires that he shall be able to follow the judg- 
 ment.^^^ 
 
 414. Fees of stenographer, a. In general. — The authority 
 for taxing fees of stenographers as a disbursement is found in 
 
 ^Wallridge v. James, 16 Hun, 8. Allen v. Williamson, 21 Abb. N. C. 
 
 ^^Ward V. James, 8 Hun, 526; 391. 
 
 Tnnes v. Purcell, 1 Hun, 318, 2 '"'Strauss v. Eellman, 58 How. Pr. 
 
 Thomp. & C. 538, 541. 377. 
 
 ^Termansen v. Matthews, 49 App. ^"-^Maher v. O'Conner, 61 How. Pr. 
 
 Div. 163, 63 N. Y. Supp. 115. 103, 1 N. Y. Civ. Proc. Rep. 158. 
 
 -"^Stewart v. Paton, 23 N. Y. Civ. -""Race v. Gilbert, 102 N. Y. 298, 
 
 Proc. Rep. 286, 29 N. Y. Supp. 770. *10 N. Y. Civ. Proc. Rep. 1, 1 N. Y. 
 
 --*Baldioin v. Baldwin, 23 N. Y. S. R. 661, 6 N. E. 592. 
 Civ. Proc. Rep. 287, note. Contra,
 
 ITEMS. 505 
 
 the last part of § 32 5 G of the Code of Civil Procedure, wMch 
 says that a party entitled to costs may tax as a disbursemeut 
 '•'such other reasonable and necessary expenses as are taxable 
 according to the course and practice of the court, or by express 
 provision of law," 
 
 This section was amended by chap. 185 of the Laws of 1895, 
 which added the provision that stenographers' fees for minutes 
 of testimony before a court, judge, or referee should constitute a 
 taxable disbursement. This amendment never w^ent into effect, 
 because, during the same session of the legislature, § 3256 of the 
 Code of Civil Procedure was again amended by chap, 595, which 
 omitted the provision as to stenographers' fees, and went into 
 effect the same day that the first amendment did. 
 
 b. Incurred upon a reference. — The fees of a stenographer 
 for taking testimony upon a reference is not a taxable disburse- 
 ment, in the absence of a stipulation to that effect,^^^ This is 
 true, although the parties agree to employ a stenographer to take 
 minutes, and to share the expense equally, because the stenog- 
 rapher before the referee is not an officer of the court. ^^'^ But 
 where there is a stipulation between the parties that the success- 
 ful party should pay the stenographer's bill and tax the sum 
 thus paid as a disbursement in the action, the courts will enforce 
 the stipulation.^^" The attorney can bind his client by such a 
 stipulation,"^^ 
 
 ^^Griggs v. Guinn, 29 Abb. N. C. Bull. 56; Sebley v. Nichols, 32 How. 
 
 144, 23 N. Y. Civ. Proc. Rep. 46, 21 Pr. 182. 
 
 N. Y. Supp. 451; Seasongood v. New "^Seasongood v. New York Elev. R. 
 
 York Elev. R. Co. 22 N. Y. Civ. Proc. Co. 22 N. Y. Civ. Proc. Rep. 100, 46 
 
 Rep. 100, 46 N. Y. S. R. 832, 18 N. Y. N. Y. S. R. 832, 18 N. Y. Supp. 775. 
 
 Supp. 775; Gallagher v, Baird, 60 ""Wolff v. Horn, 9 Misc. 100, 59 
 
 App. Div. 29, 10 N. Y. Anno. Cas. 58, N. Y. S. R. 719, 29 N. Y. Supp. 75; 
 
 69 N. Y. Supp. 676; Nugent v. Clegg v. Aikens, 17 Abb. N. C. 88, 8 
 
 Keenan, 21 Jones & S. 530; Colton v. N. Y. Civ. Proc. 249; Brown v. Sears, 
 
 Simmons, 14 Hun, 75; Anderson v. 23 Misc. 559, 27 N. Y. Civ. Proc. Rep. 
 
 E. De Braekeleer & Co. 25 Misc. 343, 412, 52 N. Y. Supp. 792; Blanck v. 
 
 28 N. Y. Civ. Proc. Rep. 306, 55 N. Y. Spies, 31 Misc. 19, 62 N. Y. Supp. 
 
 Supp. 721; Newhall v. Appleton, 4 1039. 
 
 Month. L. Bull. 6; Mark v. Buffalo, "-^'Query v. Cooney, 34 Misc. 161, 68 
 
 87 N. Y. 184, 13 N. Y. Week. Dig. N. Y. Supp. 800. 
 415; Byrne v. Groot, 5 Month. L.
 
 506 TilK LAW OF COSTS IN NKW V()I{I<:. 
 
 TLc (lefoiitcd ]);irt_v iiuiy (picstion the amount of this disburse- 
 ment in the same way that he would any other disbursement.^^^ 
 
 If the stipulation provides that both parties shall pay a por- 
 tion of the fees of the stenographer, and the successful party can 
 lax the amount thus ])aid in his bill of costs as a disbursement, 
 the successful ]iarty may include in his bill of costs the part 
 thus paid by him,-^'^ although the party against whom he taxes 
 his costs succeeds as to all the other parties. ^^"* Before the fees of 
 a stenographer can be taxed, a statement of the time occupied 
 by the reference and the extent of services of the stenographer 
 should be required.-^^ 
 
 c. Ohtamed to prepare case on appeal. — Wliere a party ob- 
 tains a copy of the stenographer's minutes to prepare a case and 
 exceptioiis, the expense of such a copy is properly taxed by him 
 as a disbursement.^"^^ The amount paid by the successful party 
 for a copy of the stenographer's minutes is a proper disburse- 
 ment, when it appears that it was necessary for him to procure 
 such copy to enable him to prepare amendments to his oppo- 
 nent's case, as required by Ilule 32 of the General Rules of Prac- 
 tice."^ ^ Under the Code of Procedure such a disbursement was 
 taxable.^^^ There is a class of earlier cases which hold that, 
 under no circumstances, can stenographers' fees be a taxable dis- 
 bursement.^^^ But this class of cases have now very little au- 
 thority in the face of the recent decisions. 
 
 ■''-WoJff V. Horn, 9 Misc. 100. 59 20 Jones & S. 569, J8 N. Y. Civ. Proc. 
 
 N. Y. S. R. 719, 29 N. Y. Supp. 75. Rep. .350, 31 N. Y. 6. R. 404, 9 N. Y. 
 
 -^^Broicn v. Sears, 23 Misc. 559, 27 Supp. 707 ; Park v. ISiew York C. d 
 
 N. Y. Civ. Proc. Rep. 141, 52 X. Y. H. K. R. Co. 57 App. Div. 569, 68 
 
 Supp. 792. X. Y. Supp. 460, 1145; Ridahock v. 
 
 ^^'Cler/g V. Aikens, 17. Abb. N. C. Metropolitan Elev. R. Co. 8 App. Div. 
 
 88, 8 X. Y. Civ. Proc. Rep. 249. 309, 75 X. Y. S. R. 336, 40 X. Y. 
 
 "^Gilbert v. Deshon, 40 X^". Y. S. R. Supp. 938; Cutter v. Morris, 41 Hun, 
 
 799, 16 X. Y. Supp. 36. 575, 26 X. Y. Week. Dig. 254, 7 X. Y. 
 
 "Tarmtjn v. Wheeler, 9 X. Y. Civ. S. R. 426. 
 
 Proc. Rep. 421; Cutter v. Morris, 41 -''^Scbley v. Nichols, 32 How. Pr. 
 
 Hun, 575, 26 X. Y. Week. Dig. 254, 182. 
 
 7 N. Y. S. R. 426. ^^^Pfaudler Barm Extracting Bung- 
 
 "^Sievens v. New York Elev. R. Co. ing Apparatus Co. v. Sargent, 43
 
 ITiaiS. 
 
 507 
 
 d. Minutes of former trial for vse upon the trial. — Under the 
 'Code of Procedure it was held that the disbursement for a copy 
 of the minutes of a former trial in the same action, procured for 
 use on the second trial, could not be taxed as a "necessary" dis- 
 bursement under § oil of that Code,^^^ although there is a later 
 case which held that they could be so taxed. -^^ The present 
 Code allows reasonable, as well as necessary, disbursements. 
 The tendency is to hold, as reasonable, what is useful, and what 
 prudence would suggest as a requisite in the way of the prepara- 
 tion, and an item for the fees of the stenographer for tlie min- 
 utes of a former trial of the same case has been held to be a tax- 
 able disbursement.-*^ The contrary has been held by the sec- 
 ond department.-*^ 
 
 e. Minutes obtained in the trial of anotJter action. — But 
 wdiere the minutes have been procured and paid for in one ac- 
 tion, that expense cannot be taxed in another action, where the 
 evidence thus taken was read by stipulation in the second 
 action.^** 
 
 f. Minutes used on motion for a new trial in tJie county court. 
 — Upon a motion made for a new trial in a county court, the 
 court ordered the minutes of the former trial for its own use. 
 This outlay by the moving party was held not to be a taxable 
 disbursement, because they were not taxable according to the 
 practice of the county court where the trial was had.-*^ 
 
 g. Minutes ordered hij the court for its own use. — The fees 
 
 Hun, 154, 5 N. Y. S. R. 413. 25 N. Y. 24 N. Y. Civ. Proc. Rep. 402. 67 N. Y. 
 
 Week. Di^. 483 ; tihaver v. Eklred, 86 S. R. 405, 33 N. Y. Supp. 583 ; Kum- 
 
 Hun, 51, 66 N. Y. S. R. 783, 33 N. Y. mer v. Christopher d T. Street R. Co. 
 
 Supp. 158; CoUon v. Simmons, 14 12 Misc. 387, 24 N. Y. Civ. Proc. Rep. 
 
 Hun, 75; Hamilton v. Butler, 19 Ahh. 404, 67 N. Y. S. R. 404, 33 N. Y. 
 
 Pr. 446, 30 How. Pr. 36, 4 Robt. 654; Supp. 581. 
 
 Spring v. Daij. 44 How. Pr. 390; -*--nridson v. Erie R. Co. 57 App. 
 
 Provost V. Farrell, 13 Hun, 303. Div. 98, 68 N. Y. Supp. 28. 
 
 ^*^Eamilton v. Butler, 19 Abb. Pr. '"7?e Metropolitan Elev. R. Co. 46 
 
 446, 30 How. Pr. 36, 4 Robt. 654; N. Y. S. R. 138, 18 N. Y. Supp. 899. 
 
 Spring V. Day. 44 How. Pr. 390. -*'Whitneij v. Roe. 75 Hun, 508, 57 
 
 '""Flood V. Moore, 2 Abb. N. C. 91. N. Y. S. R. 683, 27 N. Y. Supp. 511. 
 
 ^^Zelmancvitz v. Manhattan R. Co.
 
 508 THE LAW OF COSTS IN NEW YORK. 
 
 for the minutes of the stenographer, when furnished by the di- 
 rection of the trial judge, are paid for in the first instance by 
 the plaintiff, and if he succeeds in the action, he can tax theni 
 as a disbursement.^^^ Under § 289 of the Code of Civil Proced- 
 ure, the judges of the superior city courts were empowered to 
 order the minutes of the stenographer written out in full, and 
 order the expense thereof to be borne equally by both parties. 
 When these courts were abolished, this provision was repealed 
 with all other provisions relating to those courts. 
 
 h. Power of surrogate's court to order minutes. — The surro- 
 gate courts have power upon a will contest to order a copy of the 
 stenographer's minutes to be furnished to the contestant's coun- 
 sel, and that the expense thereof be charged against the estate.^'*'^ 
 But such an order of the surrogate must be made upon notice to 
 the proponent.-"^^ And the surrogate must make the order be- 
 fore the contestant orders the minutes of the stenographer.^^^ 
 
 i. Allowance for stejiographer's minutes in the m^unicipal 
 court of New Yorh. — The municipal court of ISTew York has no 
 power to allow a party to tax, as a disbursement, the expense of 
 obtaining a transcript of the stenographer's minutes, furnished 
 to the court.^^^ 
 
 ^**Johnston v. New York Elev. R. "^Re Byron, 61 Hun, 278, 40 N. Y. 
 
 Co. 10 Misc. 136, 62 N. Y. S. R. 491, S. R. 845, 16 N. Y. Supp. 760. 
 
 30 N. Y. Supp. 920. ^"Cohen v. Weill, 33 Misc. 764, 67 
 
 "'Code Civ. Proc. § 2558. N. Y. Supp. 917. 
 
 '^Re Budlong, 33 Him, 235.
 
 CHAPTEE XXXII. 
 
 HOW COSTS ARE COLLECTED. 
 
 415. In general. 
 
 416. Motion costs. 
 
 417. By mandamus. 
 
 418. By execution against the person. 
 
 419. By proceedings to pundsh for contempt. 
 
 415. In general. — Where tliere is a judgment for money dam- 
 ages the costs become merged in, and a part of, the entire judg- 
 ment, and are collected with it. If the judgment is discharged 
 by bankruptcy proceedings the costs are also discharged. -"^ 
 When there are no money damages, the general costs of the ac- 
 tion are collected by execution. 
 
 Supplementary proceedings may be maintained on a judg- 
 ment for costs only, if the amount of the judgment is $25, 
 When the Code of Civil Procedure was first enacted, these pro- 
 ceedings could not be maintained upon a judgment wholly for 
 costs. But by amendments made since that time, they are al- 
 lowed upon these judgments with the limitation as to amount as 
 above noted.^ 
 
 A party may be denied the privilege of amending an interloc- 
 utory decree so as to award costs, when the party has delayed a 
 long time without attempting to collect his costs.^ 
 
 The court will correct the erroneous taxation and collection of 
 costs upon the application of any person interested therein, al- 
 though he is not a party to the action. Thus, where two attach- 
 
 ^Clark V. Rowling, 3 N. Y. 210, 53 43; Re Birrett, 25 Misc. 89, 54 N. Y. 
 Am. Dec. 290. Supp. 666. 
 
 ■Burke V. Burke, 27 Misc. 684, 58 ^IJalnes v. Patterson, 87 Hun, 109, 
 N. Y. Supp. 670; Davis v. Herrig, 65 67 N. Y. S. E. 459, 33 N. Y. Supp. 
 How. Pr. 290, 8 N. Y. Civ. Proc. Rep. 814. 
 
 509
 
 510 THE LAW OF COSTS IN NEW YORK.* 
 
 ment actions were brought against the same defendant, and the 
 first attaching creditor charged more costs than he was entitled 
 to, which left the fimd too small for the second attaching cred- 
 itor, the court, upon the application of the second attaching 
 creditor, compelled the first creditor to return the excess of costs 
 thus collected. It was further held that ser^^ice of the motion 
 papers upon the attorney for the first attaching creditor was reg- 
 ular, although the attorney had settled with his client."* 
 
 416. Motion costs. — Motion costs are also collected by exe- 
 cution issued against the personal property of the party required 
 to pay the same.^ Where there are several defendants, and, 
 after the death of one, the rest make a motion in the name of all, 
 without any reference to such death, the plaintiff, if he is suc- 
 cessful upon the motion, may issue an execution to collect his 
 costs against all of the defendants. This execution cannot af- 
 fect the estate of the deceased defendant, and the other defend- 
 ants cannot complain, because they instituted the motion with 
 that title. "^ The party has ten days after the personal service 
 upon him of the order, before such execution can issue, '^ and 
 twenty days if the service is by mail.'^ There is no distinction 
 between motion costs awarded in an action and in a special pro- 
 ceeding, as to method of collection.^ Supplementai-y proceed- 
 ings may be maintained to collect motion costs awarded by the 
 appellate division upon the decision of an appeal from an 
 order.^*^ 
 
 417. By mandanms. — Where a party or an attorney has been 
 awarded costs in an action, which a town or a municipality has 
 been directed to pay, the party to whom the costs have been 
 awarded is entitled to a mandamus to compel the town or mu- 
 
 *Goodman v. Guthman, 2 X. Y. ^Wellman v. Frost, 38 Hun, 389. 
 Week. Dig. 338. °VaUe7ite v. Bryan, 65 How. Pr. 
 
 = Code Civ. Proc. § 779. 203, 3 N. Y. Civ. Proc. Rep. 358. 
 ^Lucas V. Johnson, G How. Pr. 121. "/?e tiirreti., 25 Misc. 89, 54 N. Y. 
 
 'Code Civ. Proc. § 779. Supp. 666.
 
 HOW COSTS ARE COT.LKCTK]). 511 
 
 nicipality to provide for the p.'ynient of the costs thus- 
 awarded.-^^ 
 
 Where the statute provides a method for the determination of 
 the amount of costs to be allowed to an attorney for his services,, 
 the deteraiination of the amount in the manner provided by stat- 
 ute is final, and cannot be attacked collaterally, although the 
 board which is compelled to pay the sum thus determined had 
 no notice of such settlement.^ ^ 
 
 418. By execution against the person. — The plaintiff is enti- 
 tled to an execution against the person for costs in an action tO' 
 set aside an instrument as obtained by fraud.^^ The defendant 
 is entitled to an execution against the person for the collection 
 of costs awarded to him in an action, where the plaintiff would 
 have been entitled to one to enforce his judgment, had he been 
 successful,'^ as, in conversion,^ "^ or for negligence.-^^ It makes 
 no difference that the plaintiff recovers a small verdict, not large 
 enough to carry costs. The defendant is still entitled to an exe- 
 cution to collect the balance of his costs.^''^ And he is entitled 
 to this remedy, although he recovers on a mere technicality.-^* 
 
 ^'^People ex rel. Grouse v. Fulton firnipd in 64 N. Y. 025; Miller v. 
 
 County, 70 Hun, 560, 53 N. Y. S. R. ^cherder, 2 N. Y. 262; Knapp v. 
 
 796, 24 N. Y. Supp. 397, Affirmed in Murphy, 20 App. Div. 83, 46 N. Y. 
 
 139 N. Y. 65G, 54 N. Y. S. R. 934, Supp. 1047: Bahcock v. Smith, 47 
 
 35 N. E. 208; People ex rel. Allison N. Y. S. R. 118, 19 N. Y. Supp. 817; 
 
 V. Neio York Bd. of Edu. 26 App. Farrelly v. Hubbard, 148 N. Y. 592, 
 
 Div. 208, 49 N. Y. Supp. 915. 43 N. E. 65; Carrigan v. ^Vashhurn, 
 
 ^""People ex rel. Allison v. A^eio York 14 N. Y. Civ. Proc. Rep. 350, 17 N. Y. 
 
 Bd. of Edu. 26 App. Div. 208, 49 N. S. R. 850, 2 X. Y. Supp. 616; Roeher 
 
 Y. Supp. 915. V. Dawson, 14 N. Y. Civ. Proc. Rep. 
 
 ^^Finkmaur v. Dempsey, 8 N. Y. 354. 
 Civ. Proc. Rep. 418; Smith v. Duffy, ^"Miller v. Woodhead, 52 Hun, 127, 
 
 37 Hun, 506, 8 N. Y. Civ. Proc. Rop. 17 N. Y. Civ. Proc. Rep. 102, 23 N. Y. 
 
 191. S. R. 412, 5 N. Y. Supp. 88. 
 
 "Broivn v. Brockett, 55 How. Pr. ^''Philbrook v. Kellogg, 21 Hun, 
 
 32; Code Civ. Proc. § 1487; Klop- 238. 
 
 penberg v. Neeftis, 4 Sandf. 655; Cor- ^^Parker v. 8 peer, 17 Jones & S. 1, 
 
 v-in V. Freeland, 6 N. Y. 560. 16 N. Y. Week. Dig. 417, Affirming- 
 
 '^^CnfUn v. Adirondack Co. 20 Hun, 4 Month. L. Bull. 29, 62 How. Pr. 
 
 19; Duncan v. Katen, 6 Hun, 1, Af- 394.
 
 612 THE LAW OF COSTS IN NEW YOKK. 
 
 But he is not entitled to a body execution where the plaintiff is 
 a woman.-' ^ 
 
 A woman who employs three girls to assist her in a room 
 rented by her is not an employee within the meaning of the con- 
 solidation act, and is not entitled to a body execution to enforce 
 a judgment obtained by her in a municipal court of New York, 
 for work done.^*^ 
 
 Where an execution against the person has been set aside on 
 a motion, but upon an appeal therefrom the order is reversed, 
 the judgment debtor cannot be again arrested under the former 
 execution, as that is discharged, but the judgment creditor is en- 
 titled to a new process.^^ 
 
 419. By proceedings to punish for contempt. — A party caimot 
 punish the attorney for the opposite party, as for a contempt, 
 because he refuses to refund motion costs which the court has 
 ordered refunded. His only remedy is by execution under § 
 V79 of the Code of Civil Procedure.^^ Nor can an attorney be 
 comj)elled, by like proceedings, to pay the costs of a motion by 
 a substituted attorney for an order compelling him to furnish 
 entries in his register, showing what had been done in the 
 action.^^ 
 
 The fine imposed upon a trustee for his failure to obey in- 
 structions cannot include counsel fees of the moving party.^^ 
 A surrogate has not the power under § 2555 of the Code of Civil 
 Procedure to enforce the collection of costs only, by contempt 
 
 ^'Parker v. ,Sfpeer, 17 Jones & S. 1, -mack v. Colin, 15 N. Y. Week. 
 
 16 N. Y. Week. Dig. 417, Affirming Dig. 136. 
 
 4 Month. L. Bull. 29, 62 How. Pr. "Z?e Morris, 45 Hun, 167, 13 N. Y. 
 
 394; Code Civ. Proc. § 148S. Civ. Proc. Rep. 56. 10 N. Y. S. R. 50, 
 
 ""Berr/er v. Mandel, 25 Misc. 7G6, 27 N. Y. Week. Dig. 161; Ludlow v. 
 
 54 N. Y. Supp. 987. Knox, 7 Abb. Pr. N. S. 412; People 
 
 ^^Carrigan v. Washhurn, 18 N. Y. ex rel. Woolf v. Jacobs, 5 Hun, 428, 
 
 Civ. Proc. Rep. 79, 28 N. Y. S. R. Affirmed in 66 N. Y. 8; Poicer v. 
 
 156, 9 N. Y. Supp. 541. Atheyis, 19 Hun, 165, 171. Contra, 
 
 ^Forstman v. Scliulting, 42 Hun, Van Valkenburgh v. Doolittle, 4 Abb. 
 
 643, 25 N. Y. Week. Dig. 293, 4 N. Y. N. C. 72. 
 S. R. 463.
 
 "lOW COSTS ARE COLLECTED. 513 
 
 proceedings. If the decree directed the payment of a sum of 
 money and general costs, it could undoubtedly be enforced by 
 imprisonment.^^ 
 
 Costs awarded in a judgment in an action for a divorce cannot 
 be collected by proceedings to punish as for a contempt,^^ but 
 alimony and counsel fees may be collected by such proceed- 
 ings.^^ 
 
 For nonpayment of the costs awarded by a final order made in 
 a special proceeding instituted by a state writ, except where a 
 peremptory writ of mandamus is awarded after the issuing of 
 an alternative mandamus, the person required to pay the same 
 may be punished for a contempt of the court awarding them, or 
 of which the judge awarding them is a member, as if the final 
 order was a final judgment of the court.^^ The court has a dis- 
 cretion as to the exercise of this power, and the successful party 
 m^y not demand as a right that such power be exercised. The 
 court will be guided by the facts in each case, and particularly 
 by the ability of the defeated party to pay the costs.^^ 
 
 The order directing that a precept issue must contain an ad- 
 judication that the accused has committed the offense charged 
 and that the ofi'ense was calculated to, or did actually, defeat, 
 impair, or prejudice the rights of the moving party.'*'' The or- 
 der to show cause may be served on the attorney.^ ^ 
 
 Where a party has been ordered to pay certain costs the non- 
 payment of which the court has power to punish by fine and im- 
 
 »2?e Humfreville, 154 N. Y. 115. 73 Hun, 192, 56 N. Y. S. R. 117, 25 
 
 47 N. E. 1086. N. Y. Supp. 867. 
 
 ^nVeill V. Weill, 18 N. Y. Civ. Pioc. -' Code Civ. Proc. § 2007. 
 
 Rep. 241, 10 N. Y. Supp. 627; Jac- -"People ex rel. Meyers v. Masonio 
 
 quin V. Jacquin, 36 Hun, 378, 7 N. Y. Guild & Mut. Ben. Asso. 22 N. Y. 
 
 Civ. Proc. Rep. 327, 2 How. Pr. N. S. Civ. Proc. Rep. 74, 18 N. Y. Supp. 
 
 206; Lansing v. Lansing, 41 How. 806. 
 
 Pr. 248, 4 Lans. 377. Contra, Cock- ^"Malion v. Mahon, 18 Jones & S. 
 
 efair v. CocJcefair, 23 Abb. N. C. 219, 92, 5 N. Y. Civ. Proc. Rep. 58. 
 
 7 N. Y. Supp. 170. ^'Pitt V. Davison, 37 N. Y. 235; 
 
 '"Flor V. Flor, 73 App. Div. 262, 76 Mahon v. Mahon, 18 Jones & S. 92, 5 
 
 N. Y. Supp. 813; Mercer v. Mercer, N. Y. Civ. Proc. Rep. 58. 
 • COSTS 33.
 
 514 THE LAW OF COSTS IK AKW VOKK. 
 
 prisonment, or either, the court, upon proof that a personal de- 
 mand has been made for the same, and payment has been re- 
 fused or neglected, may issue, without notice, a warrant to com- 
 mit tlie offender to prison until the costs and the costs and ex- 
 penses of the proceedings are paid, or until he is discharged ac- 
 cording to law. Code Civ. Proc. § 22G8. This summary pro- 
 ceeding can only be used when an execution cannot be issued to- 
 collect the costs.^^ 
 
 A judgment debtor who refuses to pay costs of a supplemen- 
 tary proceeding may be punished for contempt of court.^^ 
 
 "Whenever actions are brought by direction of the commis- 
 sioners of the land office, pursuant to law, and the plaintiffs iu 
 such actions fail to recover therein, or the defendant is unable 
 to pay the costs adjudged against him, the comptroller may 
 audit and settle the amount of the taxable costs in such actions,, 
 and direct the payment thereof out of the treasury to the dis- 
 trict attorneys or other persons entitled to the same." Section 
 17 of Chapter 11 of the General Laws (The Public Lands 
 Law). 
 
 ^-Re Hess, 48 Hun, 586, 16 N. Y. ^^Holton v. Robinson, 59 App. DiVc- 
 S. R. 255, 1 N. Y. Supp. 811. 45, 69 N. Y. Supp. 33.
 
 rORMS. 
 
 (The nmiibers in tlie following forms refer to sections in the Code of Civil 
 
 Procedure. ) 
 
 Section 420. — a. Respondent's bill of costs on appeal from a judg- 
 ment rendered in a justice's court, where a new trial was not 
 had. 
 
 County Court. 
 
 Jojix Hkdgks 
 
 V. 
 
 (tko]jge Sno\y. 
 
 Costs by statute (§ 3067) 
 
 Clerk's trial fee (§ 3301, t 2) 
 
 Clerk entering judgment (§ 3301, 1[ 3j 
 
 .Vffidavits (§ 3298) 
 
 Sheriff's fee on execution (§ 3307, subds. 6, 10) 
 
 
 $25 00 
 
 1 00 
 
 50 
 
 62 
 
 $ 
 
 
 State of New Yoiuc, 
 
 County or 
 
 of . . . 
 
 ss. 
 
 J 
 
 , being duly sworn, says that he is 
 
 the attorney. . in the above-entitled action; that the items of 
 disbursements above mentioned are, as deponent believes, cor- 
 rect and true, are reasonable in amount, and have been or will 
 
 51.5
 
 516 THE LAW OF COSTS IN NEW YOKK. 
 
 be actually and necessarily incurred in this action on the part 
 of the , as deponent verily believes. 
 
 Sworn to before me this day 
 
 of , 1*J. .. 
 
 Taxed at $ this day of , 19 
 
 Clerk. 
 Retaxed at $ this day of , 19 
 
 Clerk. 
 
 b. Appellant's bill of costs on appeal from a judgment rendered in 
 a justice's court, where a new trial was not had upon reversal 
 of the judgment. 
 
 (Numbers refer to sections of the Code of Civil Procedure.) 
 
 County Court. 
 
 John Hedges 
 George Snow. 
 
 Costs by statute (§ 3067) $30 00 
 
 Clerk's trial fee (§ 3301, 1[ 2) 1 00 
 
 Clerk entering judgment (§ 3301, ^3) 50 
 
 Affidavits (§ 3298) 
 
 Sheriff's fee on execution (§ 3307, subds. 6, 10) . . . 62 
 
 Paid to perfect appeal (§ 3000) 
 
 Costs which should have been allowed appellant by 
 
 justice (§ 3060) 
 
 (Add afjfidavif as in form a.)
 
 FOKiMS. 517 
 
 Taxed at $ this day of , 10 . . . 
 
 J 
 
 Clerk. 
 
 Eetaxed at $ this day of , 19 . . , 
 
 Clerk. 
 
 c. Bill of costs on appeal from a judgment rendered in a justice's 
 court where a new trial was not had, and the judgment was 
 affirmed in part only. 
 
 (Numbers refer to sections of the Code of Civil Procedure.) 
 County Court. 
 
 John Hedges 
 
 V. 
 
 Geoege Snow. 
 
 1 
 
 CostB as allowed by court (§ 3006, snbd. 5) 
 
 Clerk's trial fee (§ 3301, 12) 1 00 
 
 Clerk entering judgment (§ 3301, ^ 3) 50 
 
 Affidavits (§ 3298) 
 
 Sheriff's fees on execution (§ 3307, subds. 6, 10) . . 62 
 
 To be taxed by the appellant only. 
 
 Paid to perfect appeal (§ 3060) 
 
 Costs which should have been allowed the appellant 
 
 by the justice (§ 3060) 
 
 $ 
 
 (Add affj.darit as in form a.)
 
 518 TllK i.AVV OF C08TS I.\ XKW VoK'K. 
 
 Taxed at $ iliis day of 19 . .. 
 
 > 
 
 Clerk. 
 
 Retaxed at $ this day of , 19 . .. 
 
 ) 
 
 Clerk. 
 
 d. Bill of costs on appeal from a judgment rendered in a justice's 
 court, where a new trial is had in the county court. 
 
 (Numbers refer to sections of the Code of Civil Procedure.) 
 CouisTTY Court. 
 
 John Hedges 
 
 V. 
 
 Geokge Sa'ow. 
 
 Costs before notice of trial (§ 3073) $15 00 
 
 Costs after notice and before trial (§ 3073) 
 
 Trial, issue of fact (§ 3073) 
 
 ■"J'rial, issue of laAv (§ 3073) 
 
 Motion for a new trial on a case (§ 3073) 
 
 Term fees (§ 3073) 
 
 Filing note of issue (§ 3oU7, subd. i) 
 
 Clerk entering judgment (§ 3301, ^T 3) 
 
 ^Clerk trial fee (§ 3301, ^ 2) 
 
 ^Jurors' fees (§ 3313) 
 
 Witness fees (§ 3318) 
 
 Sheriffs' fees on execution (§ 3307, subds. G, 10) . . 
 
 Affidavits (§ 3298) 
 
 ^Paid to perfect appeal (§ 3060 j 
 
 ^ Costs which should have been allowed by the jus- 
 tice (§ 3060) 
 
 To be paid and taxed by the party bringing action on. 
 "To be paid and taxed by the party bringing the action on. 
 ''To be taxed by the appelhint in case he succeeds. 
 
 10 
 
 00 
 
 20 
 
 00 
 
 15 
 
 00 
 
 15 
 
 00 
 
 
 50 
 
 1 
 
 00 
 
 3 
 
 00 
 
 62 
 

 
 
 FOliMS. 
 
 SState oy Xew York, 
 
 1 
 
 OoiNTY or 
 
 >.«, 
 
 of 
 
 1 
 
 .19 
 
 , being- duly sworn, says tliat lie is , 
 
 •ibe attorney. . in tbis action, "wbicb action was 
 
 iit issue and necessarily ttpon the calendar for trial at the sev- 
 
 •eral terms held in and for the Connty of , at the 
 
 •conrthonse in the city of ; one cornnienced on the 
 
 day of 1 i> . . ; one conmienced on the 
 
 •day of , 15). . ; that the cause was referred to 
 
 , Esq., and was brought to trial before 
 
 ;at the courthouse in the city of , ^. Y., on the 
 
 day of , 10 . . ; that each of the persons 
 
 aiamed in Schedule A hereto annexed, and which is made a part 
 hereof, actually attended the several trials therein named, pur- 
 suant to a subpoena, or upon special request of the , 
 
 ■as a witness for the the numher of days set oppo- 
 
 •site their respective names; that the residences of said witnesses 
 •aespectively, and the distances therefrom according to the usu- 
 siUy traveled route to the place of said trial, and the distances 
 'for which travel fees are respectively allowed, are correctly 
 stated in said Schedule A, o|)posite their respective names; 
 hat each and every one of said witnesses was a necessary and ma- 
 terial witness on the part of the , on the trial of this 
 
 ■iiction. That the following witnesses named in said Schedule 
 were not called ; that the expected to prove the fol- 
 lowing facts by the said witnesses: (state fully 
 
 what was expected to he proved hy the said witnesses) ; that the 
 reason why the said -witnesses were not called upon the trial of 
 the said action are: (state fully why the witnesses were not 
 ■called.) 
 
 Sworn to before me this dax- 
 
 of 10. ..
 
 520 THE LAW OF COSTS IN NEW YOKK. 
 
 State of New York, 1 
 
 County of , \ss. 
 
 of J 
 
 , being duly SAvorn, says that he is 
 
 the attorney. . in the above-entitled action; that the said action- 
 was necessarily upon the calendar for argument at the several 
 
 terms held at the city of , one commenced on the 
 
 day of , 10 . . ; one commenced on the 
 
 day of , 19 . . ; that the items of disburse- 
 ments above mentioned are, as deponent believes, correct and 
 true, are reasonable in amount, and have been or will be neces- 
 sarily incurred in this action on the part of the 
 
 as deponent verily believes. 
 
 Sworn to before me this day 
 
 of li». .. 
 
 Taxed at $ this day of ,19. 
 
 Clerk. 
 Retaxed at $ this day of , 19 
 
 Clerk. 
 
 e. Bill of costs taxable in an action, commenced in a court of 
 record, upon the entry of judgment after a verdict, report, ot 
 decision. 
 
 (Numbers refer to sections of the Code of Civil Procedure.) 
 
 SuPEEME Court, Coua ty. 
 
 John Hedges 
 
 George Snow. j 
 
 J 
 
 Costs taxable by the plaintiff only. 
 Costs before notice of trial (§ 3251, subd, 1, ^ 1) 
 ($15.00 or $2.5.00") 
 
 I
 
 FORivrs. 521 
 
 Additional defendants served (§ 3251, siibd. 1, 
 
 1^2) 
 
 Appointment of guardian for infant defendant 
 
 (§ 3251, subd. 1, H 3) 10 00 
 
 Procuring order of publication (§ 3251, subd. 1, 
 
 T[ 4) 10 00 
 
 Procuring injunction order (§ 3251, subd. 1, ![ 5). 10 00 
 Procuring order of arrest (§ 3251, subd. 1, ^ 5) . . 10 00 
 Allowance as a matter of right in attacliment, mort- 
 gage foreclosure, partition, adjudication of will, 
 or other instrument in writing, to compel deter- 
 mination of a claim to real property (§ 3252) 
 
 Costs taxable by the defendant only. 
 
 Costs before notice of trial $10 00 
 
 Allowance to defendant (§ 3258) 
 
 Costs taxable by either party. 
 Costs after notice and before trial (§ 3251, subd. 3, 
 
 ^1) $15 00 
 
 Trial fee issue of law (§ 3251, subd. 3, ^ 4) 20 00 
 
 Trial fee issue of fact (§ 3251, subd. 3, i 5) 30 00 
 
 Trial fee more tlian two days (§ 3251, subd. 3, 
 
 15) 10 00 
 
 Allowance by court (§ 3253) 
 
 Costs of motions (§ 3251, subd. 3, II 9) 
 
 New trial pursuant to an order (§ 3251, subd. 3, 
 
 t 10) 25 00 
 
 Taking deposition of witness (§ 3251, subd. 3, ^ 2) 10 00 
 
 Drawing interrogatories (§ 3251, subd. 3, ^ 3) . . . 10 00 
 
 Term fees (§ 3251, subd. 3, 1 11) 
 
 Disbursements (general authority, § 3256). 
 Taxable by the plaintiff only. 
 
 Serving summons and complaint (§ 3307, subd. 1) 
 
 Publication of summons (§ 3256) 
 
 Filing and recording lis pendens (§ 3304, ^ 6) 
 
 Taxable by either party. 
 
 Referee's fees (§§ 3256, 3296) 
 
 Commissioner's fees (^ 3256)
 
 522 'flllK l.AW OF COSTS IN NKW YO]:K, 
 
 Sheriffs calendar fee (§ 3307, subd. 4) 
 
 Clerk's trial fee (§ 3301, 1i 2) 1 00 
 
 Clerk's minutes of trial (§ 3301, 1[ 5) 
 
 Clerk's fee, entry of judgniient (§ 3301, li 3) 
 
 Commissioner in partition or dower (§§ 3250, 
 
 3299) 
 
 Paid for searches (§ 3256) 
 
 Surveyor in partition or dower f §^ 3256, 3299) 
 
 Paid for affidavits (§ 3298) 
 
 Certified copies of orders (§ 3301, ^i 5) 
 
 Transcript and docketing in another county 
 
 (§ 3301, T[^ 7, 8) . ../. 18 
 
 Sheriff's fees on execution to another county 
 
 Sheriff's fees on execution (§ 3307, subds. 6, 10) . . 62 
 
 (§ 3307, subds. 6, 10.) 62 
 
 Jurors' fees (§ 3313) 3 00 
 
 Witness fees (§ 3318) 
 
 Postage incurred and to be incurred (§ 3256) 
 
 If further proceedings are had after verdict, report, or de- 
 cision, before entry of judgment, add proper costs from form f. 
 
 (Add affidavits as In form d.) 
 
 Taxed at $ tins day of , 19... 
 
 Clerk. 
 Relaxed at $ this dav of 19 
 
 Clerk. 
 f . Costs incurred after trial and before appeal. 
 
 (Numbers refer to sections of the Code of Civil Procedure.) 
 Supreme Court, Count v. 
 
 John Hedges 
 
 V. 
 
 Geojjge Snow. 
 
 Motion for new trial without a case C§ 3251, 
 
 subd. 3, ^ 9) $10 00
 
 FORMS. 523 
 
 Motion for a new trial upon a case before argument 
 
 (§ 3251, subd. 3, 1[ 8 ; subd. 4, f 2) 20 00 
 
 Motion for a new trial upon a case, for argument 
 
 (§ 3251, subd. 3, 1[ 8 ; subd. 4, T[ 3) 40 00 
 
 Making and serving case not exceeding 50 folios 
 
 (§ 3251, subd. 3, If 6) 20 00 
 
 Making and serving case exceeding 50 folios 
 
 (§ 3251, subd. 3, f 6) nO 00 
 
 Making and serving amendments to case (§ 3251, 
 
 subd. 3, 1" 7) 20 00 
 
 Application for judgment upon a special verdict, 
 before argument (§ 3251, subd. 3, ^ 8 ; subd. 4, 
 t 2) 20 00 
 
 Application for judgment upon a special verdict, 
 for argument (§ 3251, subd. 3, If 8; subd. 4, 
 •[3) 40 00 
 
 Application to appellate division for new trial, be- 
 fore argaiment (§ 3251, subd. 4, "f^ 1, 2) 20 00 
 
 Application to appellate division for new trial, for 
 
 argimient (§ 3251, subd. 4, Tfli 1, 3) 40 00 
 
 Application for judgment rendered subject to opin- 
 ion of the court before argument (§ 3251, subd. 
 4, Iflfl, 2) : 20 00 
 
 Application for judgment upon verdict rendered 
 subject to opinion of court, for argument (§ 3251, 
 subd. 4, ^1^ 1, 3) 40 00 
 
 Exceptions ordered heard at appellate division in 
 first instance before argument (§ 3251, subd. 4, 
 Ifli 1, 2) 20 00 
 
 Exceptions ordered heard at appellate division in 
 first instance for argument (§ 3251, subd. 4, 
 lllf 1, 3) ^ 40 00 
 
 Term fees (§ 3251, subd. 4, ^ 4j 
 
 DiSBURSEM ENTS. 
 
 Clerk's fee on argument (see note heloio) 
 
 Clerk's fee for remittitur (see note below) 
 
 Clerk's fee, entry of judgment (§ 3301, ^3) 50 
 
 Paid for affidavits (5j 3298)
 
 524 TJIK I-AW OK COSTS 1>: NEW YOKK. 
 
 Transcript and docketing in another county 
 
 ^ (§ 3301, nT, 8).. 18 
 
 Sherilf's fees on execution (§ 3307, subds. 6, 10) . . 62 
 
 Sheriff's fees on execution in another county 
 
 (§ 3307, subds. 6, 10 ". 62 
 
 Postage incurred and to be incurred ( § 3256 j 
 
 Printing case (§ 325G) 
 
 Printing points (§ 3250) 
 
 Stenographer's fees, copy ( § 3311) 
 
 State of ISTew York, ] 
 
 County op , ^ss. 
 
 of J 
 
 , being duly sworn, says that he is , 
 
 the attorney . . in the above-entitled action ; that 
 
 the items of disbursements above mentioned are, as deponent be- 
 lieves, correct and true, are reasonable in amount, and have 
 been or will be actually and necessarily incurred in this action 
 
 on the part of the , . as deponent veri.ly believes ; 
 
 that the copies of docuiiK-nts and papers for certified copies, of 
 wliich charges are herein made, were actually and necessarily 
 used (or were necessarily obtained for use) ; that the cause was 
 necessarily on the calendar the terms above named. 
 
 Sworn to beforo me this da\ 
 
 of ,19. .. 
 
 Taxed at $ this day of ,19 
 
 Clerk. 
 lletaxed at $ this day of ,19 
 
 Clerk. 
 
 Note. — There is no authority for the chargijig of any fee 
 by the clerk of the appellate division. In the old general term, 
 fees were charged for various services, and in the present ap- 
 pellate divisions that custom has been continued in some and 
 discontinued in others. 
 
 Section 1355 of the Code of Civil Procedure refers to the 
 fees f'f the clfrk of the appellate division, but there is no statute
 
 FOKMS. 525 
 
 which gives chem any fees outside of §§ 3301, 3304, and 3306. 
 Authority is sought in § 3301, which is a re-enactment of 
 § 311:3 of the Code of Procedure, under which fees Avere charged 
 by the clerks of the old general term. Section 3301 refers to 
 services rendered by the clerk of a trial court, because there are 
 many services therein enumerated which cannot be performed 
 by a clerk of the appellate division ; and the charge for argu- 
 ment fee is arrived at only by a very strained construction, and 
 by relying upon the construction of § 252 of the Code of Pro- 
 cedure (Wilcox V. CnrtisSj 10 How. Pr. 91, Chenango special 
 term 1854; Clerk's Fees, 5 How. Pr. 11, general term 1850). 
 That section defined a trial as a judicial examination of the 
 issues between the parties. It was therefore argued that the 
 issues between the parties were examined at general term upon 
 appeal, just as much as at the circuit. The Code of Civil Pro- 
 cedure omits that section, and by § 976 it regulates the trial of 
 an issue of law and of fact before one judge. There is a plain 
 distinction, all through the Code of Civil Procedure, between 
 a trial and an appeal. 
 
 A charge is made in some of the appellate divisions for the 
 fees of the clerk. In others no charge is made. In the fourth 
 department when § 221 of the Code of Civil Procedure was 
 amended so that a deputy clerk could be appointed, an amend- 
 ment was also added which provided that the clerk of that de- 
 partment should make no charge for his fees, and further pro- 
 vided that his disbursements should be paid in the same man- 
 ner as his salary. 
 
 g. Costs incurred on appeal to the appellate division. 
 
 (Numbers refer to sections of the Code of Civil Procedure.) 
 
 Supreme Court^ County. 
 
 John Hedges 
 
 V. 
 
 Geokge Snoav. 
 
 } 
 
 J 
 
 Making and serving case not exceeding 50 folios 
 
 (§ 3251, subd. 3, ^ 6) $20 00
 
 526 
 
 THE 1>A\V OF COSTS J.\ NEW YOKIC. 
 
 Making and serving cas^e exceeding -"^O foiiog 
 
 (§ 3251, subd. 3, 1 6) 30 00 
 
 Making and serving amendments to case (§ 3251, 
 
 subd. 3, Tf 7) 
 
 Costs before argument (§ 3251, subd. 4, ^j* 1,2). 
 
 Costs for argument ( § 3251, subd. 4, t<[ 1, 3) 
 
 Term fees (^ 3251, subd. 4, •[ 1) 
 
 Appeal from interlocutory judgment or order of 
 the city court of ISTew York (§ 3251, subd. 4, 
 ^ 4, § 3189) 10 00 
 
 20 
 
 00 
 
 20 
 
 00 
 
 40 
 
 00 
 
 DiSB URSBMENTS. 
 
 Clerk's fee on argument (see note to form f) 
 
 Clerk's fee for remittitur (see note to form /').... 
 
 Clerk's fee, entiy of judgment (§ 3301, ^3) 
 
 Paid for affidavits (§ 3298) 
 
 Transcript and docketing in another county 
 
 (§ 3301, 1[1[7, 8) : 
 
 Sheriff's fees on execution (§ 3307, subds. 6, 10) . . 
 Sheriff's fees on execution in another county 
 
 (§ 3307, subds. 6, 10) \ 
 
 Postage incurred and to be incurred (§ 3250 ) . . . . 
 
 Printing case (§ 3256) 
 
 Printing points (§ 3250) 
 
 Stenographer's fees, copy (§ 3311 ) 
 
 (Add affidavits as in form f.) 
 
 Taxed at $ this dav of 
 
 $0 50 
 
 18 
 62 
 
 62 
 
 19 
 
 Clerk. 
 
 Retaxed at $ thi? 
 
 day of 19 
 
 Clerk.
 
 FORMS. ,52T 
 
 h. Costs incurred on appeal to the court of appeals. 
 
 (Numbers refer to sections of tlie Code of Civil I'locedure.) 
 SuPKEME Court County. 
 
 John Hedges 
 
 V. 
 
 George Snow. 
 
 Costs before argument (§ 3251, subd. 5, ^1) $30 00 
 
 Oosts for argument (§ 3251, subd. 5, ^ 2) 60 00 
 
 Term fees (§ 3251, subd. 5, f 3) 
 
 Damages for delay (§ 3251, subd. 5, ^ 4) 
 
 Disbursements. 
 
 Filing notice of appeal (§ 3300, ^f 2) $0 50- 
 
 Paid for remittitur (§ 3300 ) 
 
 Clerk for certificate of judgment, etc. (§ 3301, 
 
 1[6) . .. 
 
 Paid for printing case (§ 3256) 
 
 Paid for printing points (§ 3256) 
 
 Postage (§ 3256) 
 
 (Add affidavits as in form f.) 
 
 Taxed at $ this day of ,19 
 
 Clerk. 
 
 Ketaxed at $ this day of , 19 . . .. 
 
 ' J 
 
 Clerk.
 
 INDEX. 
 
 (References are to sections,) 
 
 A. 
 
 ACCOUNTANT, 
 
 expert, liability of attorney for fees of, 46. 
 
 ACCOUNTING, 
 
 at what time costs are awarded, 331. 
 
 costs of, small sum due defendant, action necesrsary, 331. 
 
 ACCOUNTS OF BOTH PARTIES, 
 exceed $400, 104, b. 
 
 conclusiveness of adjudication of justice, 104, b. 
 recovery of less than $50, 104, b, d, f. 
 
 necessity of first bringing action in justice court, 104, b. 
 action first brought in court of record; proof, 104, b. 
 difference between claims contested and claims proved, 104, b, 
 trial by court or referee; determination claims are proved, 104, b. 
 trial before jury; determination claims are proved, 104, b. 
 submission to jury of question of amount of claims, 104, b. 
 finding by jury on question of amount of claims, 104, b. 
 finding for plaintiff various sums, for defendant various sums, 10 ^, b. 
 admission that claims of one party exceed that sum, 104, b. 
 how the amount is computed, 104, c. 
 eflect of payment on claim, 104, e. 
 effect of payment out of fund, 104, c. 
 effect of payment on action for ser^ ices, 104. c. 
 meaning of word "accounts" in statute, 104, c. 
 applicability of cases decided under Revised Statutes, 104, c. 
 •claims that are conceded, effect of, 104, c. 
 filaiming more than $400, recovery less than $50, 104, c. 
 verdict for plaintiff' in any amount; costs, 104, d. 
 accounts examined exceed $400, verdict for plaintiff, 104, <!. 
 verdict for defendant in any amount; costs, 104, e. 
 <letermination accounts do not exceed $400, costs, 104, e, f. 
 disbursements; Avhen not entitled to costs, 104, f. 
 ■equity action, money damages less than $50. 104, f. 
 COSTS 34. 529
 
 630 INDEX. 
 
 (References are to sections.) 
 ACTION, 
 
 unauthorized costs of, 356. 
 
 liability of plaintiffs attorney for costs of. .'>28. 
 
 how such liability is determined, 328. 
 
 to compel attorney to share compensation. 10. 
 
 proposed, lien of attorney on, 14. 
 
 on nonassignable cause; lien of attorney, 14. 
 
 for assault and battery, lien of attorney on, 14. 
 
 settlement of, efTect on attorney's lien, 19, a. 
 
 to determine amount of attorney's lien, 40, a. 
 
 pendency of, eRect on proceedings on attorney's lien. 40. f. 
 
 proceedings on attorney's lien, after judgment in, 40, f. g. 
 
 in tort, instead of proceedings on attorney's lien, 41. 
 
 ACTION AT LAW, 
 
 power of court as to costs in, 7, a. 
 pflfect of court granting general costs, 7, a. 
 effect of court withholding general costs, 7, a. 
 (effect of court granting motion costs, 7, a. 
 (jffeet of court withholding motion costs, 7, a. 
 power of court as to costs on appeal, 7, a. 
 power of court as to additional allowances, 7, a. 
 
 ADDITIONAL ALLOWANCE, 
 statute, 274. 
 
 classes of actions in which granted, 274. 
 policy of law in granting, 275. 
 defeated party in affluent circumstances. 275. 
 defeated party in moderate or needy circumstances. 275. 
 decisiveness of facts of each case, 275. 
 granting, to pay lawyers from abroad, 275. 
 compensation for trial or appeal, 275. 
 power of supreme court to award, on appeal from surrogate's court, 
 
 189. 
 defeated party paying more than usual costs, 275. 
 out of fund belonging to third persons, 275. 
 waiver of, if no appeal be taken from judgment, 275. 
 application for, when made, 274, 276. 
 usual practice on application for, 276. 
 practice when not made at the trial, 276. 
 affidavits on motions for, 276. 
 
 application for at trial; absence of opposite attorney, 276. 
 motion for, not decided till after death of attorney, 276. 
 application for, on final judgment in foreclosure, 270.
 
 INDEX. 631 
 
 (References are to sections.) 
 A DDITI ONiiL ALLOWANCE— ( continued ) . 
 
 application for, on reference to compute amount due, 276, 
 
 insertion of, in conclusions of law ; equity actions, 270. 
 
 application for after final costs adjusted, other costs nut, 276. 
 
 long delay in application for, as waiver of, 276. 
 
 setting aside taxation, to allow application for, 276. 
 
 when final costs were taxed inadvertently, 276. 
 
 impression that former, applied, 276. 
 
 deliberate taxation of, opening to allow new application for, 276. 
 
 reargument aftei* judgment upon remittitur, application for, 276. 
 
 where there has been no trial, 277. 
 
 applicability of decision under Code, prior to 1-S05, 277. 
 
 Avhere there has been no trial, 277. 
 
 effect of absence of a trial, 277. 
 
 complaint dismissed on call of calendar, 278. 
 
 complaint dismissed for nonprosecution, 278. 
 
 complaint dismissed upon a regular default, 278. 
 
 plaintiif submits to nonsuit, 278. 
 
 striking equity case from trial calendar, 278. 
 
 di.scontinuance ; granting upon, 66, 279. 
 
 stipulation that court pass on allowance, 279. 
 
 ex parte order of, 60, 279. 
 
 upon order on notice, 279. 
 
 what facts determine granting of, 60. 
 
 before answer to amended complaint, 279. 
 
 on order, costs to be taxed, 279. 
 
 on stipulation, on payment of costs, 279. 
 
 on objection to jurisdiction of court, 279. 
 
 receiving costs on, pending motion for allowance, 279. 
 
 receiving costs, not reserving right to move for, 279. 
 
 granting, wlien defendant does not apply for, 06. 
 on judgment entered upon oiler, 215. 280. 
 when recovery is less than offer of judgment, 215. 
 overruling demurrer, privilege to plead over, 28 L 
 overruling demurrer, by appellate court, privilege to plead, 281. 
 on final decision on demurrer, 281. 
 
 on final judgment, privilege to plead not accepted, 281. 
 on judgment upon frivolous demurrer, 281. 
 
 interlocutory judgment as bar, privileged to plead not accepted, 281. 
 on demurrer, lack of jurisdiction, 281. 
 when some defendants answer, and some demur, 281. 
 necessity of notice in such case, 281.
 
 532 INDEX. J 
 
 (References are to sections.) 
 A DDITIONAL ALLOWANCE— ( continued ) . 
 application; to whom made, 282. 
 
 to court or judge, 282. 
 
 when § 769 and Rule 45 conflict, 282. 
 
 waiver of irregularity, objection, when made, 282. 
 
 at term where tried, or before justice, 282. 
 
 complaint dismissed on motion, 282. 
 
 review of allowance by another judge, 282, 
 
 in equity actions, 282. 
 
 when the trial is before a referee, 283. 
 
 papers used, upon coming in of verdict, 284. 
 
 later in term, presence of opposing attorney, 284. 
 
 motion after trial term; papers should show what, 284. 
 
 minutes of trial clerk as authority to taxing oflScer, 284. 
 
 value not shown in complaint, alHdavits on application, 284. 
 power of clerk to take proof of value, 284. 
 when both parties succeed, 285. 
 judgment absolvite upon stipulation, 286. 
 
 power of court below to grant, 286. 
 
 necessitj' of notice of application, 286. 
 
 application after obtaining usual remittitur, 286. 
 
 application before entry of judgment thereon, 286. 
 after exceptions heard at the appellate division, 286. 
 power of appellate division to grant, 286. 
 application for, to special term on notice, 286. 
 number of allowances in an action, 287. 
 effect of reversal of judgment, after grantinii. 287. 
 in ejectment, new trial under § 1525, 74, 2S7. 
 when action is difficult and extraordinary, 288. 
 
 facts in trial court or on appeal, 288, a. 
 
 submitted controversy on agreed facts, 233, 288, a, 
 
 review by appellate court that action is, 288, a. 
 
 when no trial is had, 288, a. 
 
 difiicult question of law, 288, b. 
 
 difficult question of fact, 288, c. 
 
 proof of sale and delivery of many items, 288, c 
 
 examination of many witnesses, 288, c. 
 
 examination of expert witnesses, 288, c. 
 
 examination of a long account, 288, c. 
 
 length of time of trial, 288, d. 
 
 more than one trial, 288, e. 
 
 eminence of counsel engaged in trial, 288. f. 
 
 I
 
 INDEX. 533 
 
 (References are to sections.) 
 ADDITIONAL ALLOWANCE— (continued) . 
 
 denial on first trial, as res adjudicaia on second, 288, f. 
 
 first trial difficult, second not, 288, f. 
 
 amount involved in the litigation, 288, g. 
 
 complaint dismissed, plaintiff not appearing, 288, g. 
 
 complaint dismissed on trial, large amount involved, 288, g. 
 
 defendants unnecessarily severed in defense, 288, g. 
 
 giving of a bond in action for injunction, 288, g. 
 when action is not dilTieult and extraordinary, 289. 
 
 simple question of law, 289, a. 
 
 simple question of fact, 289, a. 
 
 judgment on frivolous answer, 289, a. 
 
 question of fact easy, witnesses from distance, 289, a. 
 
 difficult question not raised, 289, a. 
 
 plaintiff's claim admitted, contest between defendants, 289. a. 
 
 trial occupies but a short time, 289, b. 
 
 trial protracted, successful party claimed too much. 289, b. 
 
 difficult question decided against prevailing partj', 289, c 
 
 diilicuit claims abandoned by successful party, 289, c. 
 
 recovery on mere technicality, 289, d. 
 
 action for dower, where plaintiff dies, 289, d. 
 
 attorney has contingent fee in large recovery, 289, d. 
 
 large reduction of amoimt claimed, 289, d. 
 
 plaintiff' fails on claim, defendant on counterclaim, 289, d. 
 
 extraordinary, but not difficult, 289, d. 
 
 difficult question abandoned by successful party, 289, d. 
 
 successful defendant's action, justifying suit, 289, d, 296. 
 
 fraudulent conveyance; inadequacy of property, 289. d. 
 
 action unnecessary, 289, d. 
 
 successful defendants unnecessarily sever defense, 289, d. 
 
 defendant is surety only, 289, d. 
 
 defense induced by plaintift''s affidavit, 289, d. 
 commissioners to assess damages, opening street, 289. d. 
 how reviewed,. 290. 
 
 necessity of exceptions to enable court to review, 290. 
 
 on appeal from judgment merely, 290. 
 
 extent of review by the court of appeals, 290. 
 
 on appeal from a portion of the judgment, 290. 
 
 upon whom burden rests to show error, 290. 
 
 presumption, papers not showing amount involxed, 290. 
 
 on appeal from a portion of an order, 290. 
 
 remedy of counsel surprised on motion, 290. 
 second motion for, after denial of first, 290.
 
 634 ijn^dex. 
 
 (References are to sections!.) 
 ADDITIONAL ALLOWANCE — ( continued ) . 
 discretion reviewed, by what courts, 29L 
 
 power of appellate term of trial court, 20L 
 
 no appellate term of trial court, 29L 
 
 award by a county court, 291. 
 
 violation of a rule of law, 29L 
 
 denial of, on ground of lack of authority, 291. 
 
 slight excess by inadvertence, 29L 
 necessity of general costs, 282, 292. 
 
 general costs, as a matter of right, 292. 
 
 general costs, as a matter of discretion, 292. 
 
 sufficiency of costs allowed on appeal, 292. 
 
 defendant's costs; recovery of less than *50, 292. 
 
 defendant's costs, on oiler of judgment, 292. 
 by what statute governed, 293. 
 power of court over, 294, 
 
 entering judgment mine pro tunc under § 763, 294. 
 
 power of referee, limiting right to apply, 294. 
 
 waiver of damages on injunction, 294. 
 
 ordering attorney to return excess of legal amount, 294. 
 
 division of, all not succeeding on appeal, 294. 
 amount claimed in pleadings, 295. 
 
 denial in one pleading of value contained in another. 295. 
 
 amount in complaint larger than the recovery, 295. 
 
 basis when the plaintiff is defeated, 295. 
 
 verdict for certain amount and interest, basis. 295. 
 
 statement of plaintiff's counsel in opening, 295. 
 
 amount claimed in notice attached to summons, 295. 
 
 which controls, amount in dispute, or recovery, 295. 
 motive of plaintiff in commencement of action, 296. 
 
 action commenced in bad faith, 290. 
 
 action commenced to embarrass defendant, 29G. 
 
 motive of plaintiff in purchasing cause of action, 296. 
 
 action induced by suspicious action of defendant, 296. 
 taxpayer's action, 297. 
 
 to the defendant in, 297. 
 
 to the plaintiff in, 297. 
 
 basis, restraining performance of contract, 297. 
 
 basis, declaring bonds void, 297. 
 
 basis, restraining collection of interest. 297. 
 
 basis, restraining laying out of street, 297. 
 action to apportion a tax or assessment, 298. 
 basis, action on a lease, 299, a.
 
 INDEX. 635 
 
 (References are to sections.) 
 ADDITIONAL ALLOWANCE— (continued) . 
 
 value, how ascertained, 299, a. 
 
 only a portion of lease in dispute, 299, a. 
 basis, action for damages to a leaseholder, 299. a. 
 injunction actions, basis, 299, b. 
 
 restraining carrying on of business, 299, b. 
 
 restraining the removal of property, 299, b. 
 
 restraining use of apparatus, 299, b. 
 
 abandoning damages, continuing action to try title, 299, b. 
 specific performance, basis in action for, 299, c, 314. 
 
 title defectiA'e, recovery of damages, 299, c. 
 
 only a portion of the title involved, 299, c. 
 
 purchaser compelled to accept property, 299. e. 
 ejectment action, basis, 299, d. 
 
 under Code of Procedure, 299, d. 
 
 when title only is involved, 299, d. 
 
 when title and damages are involved, 299, d. 
 
 objection that value not showTi, when taken, 299, d. 
 deed declared a mortgage, action for, basis, 299, d. 
 overflowing lands, action for damages, basis, 299, e. 
 trespass, action for, basis, 299, f. 
 
 where the title is not contested, 299, f. 
 
 where the title is contested, 299, f. 
 
 pleadings and evidence not showing value, 299, f. 
 
 poAver of the clerk to take evidence of value, 290, f. 
 
 on lands outside of the state, 299, f. 
 
 restraining the completion of a structure, 299, f. 
 railroads, action against, basis, 299, g. 
 
 compelling completion and operation of, 299, g. 
 
 damages to abutting o^niers by construction of, 299, g. 
 
 to defendant who refused to unite as plaintiff, 299, g. 
 
 damages for rental value, 299, g. 
 
 interfeience with light and air, 299. g. 
 partition, action for, basis, 299, h. 
 
 application for, when made, 276. 
 
 entire property or plaintiff's share, 299, h. 
 
 consideration of rents collected by a receiver, 299, h. 
 
 inchoate right of dower of plaintiff's wife, 299, li. 
 
 to infant child of plaintiff, 299, h. 
 
 to mortgagee of plaintiff's share, 299, h. 
 
 granting to all parties, 299, h. 
 
 amount of, when granted to both parties. 299, h. 
 
 to defendant in actual partition, 299, h.
 
 536 mDKx. 
 
 (References are to sections.) 
 ADDITIONAL ALLOWANCE— (continued) . 
 
 when the issue lias been between the defendants. 299, h^ 
 
 one on sale, another on distiibution, 299, h. 
 mortgage foreclosure, granting in, 209, i. 
 
 when the defense was unnecessary, 120, j, 299, i. 
 
 limit of amount in difficult case, 120, j, 299, i. 
 
 on dismissal of complaint, 299, i. 
 
 limit of amount, foreclosure of leasehold. 299. i, 
 
 mortgage on chattels and lands, 120, j. 
 
 mortgage on chattels, 120, j. 
 fraudulent conveyances, setting aside, basis, 299, j. 
 fraudulent transfer of mortgage, setting aside, basis, 299, j. 
 mechanic's lien foreclosure, 131, e. 
 
 corporation, restraining from issuing bonds, basis, 300. 
 corporation, restraining from exercising functions, basis, 300. 
 fund, action in relation to, basis, 301. 
 fimd, action brought for benefit of others, 301. 
 fund, allowance to a defendant entitled to sharp in, 301. 
 construction of will, basis, 302. 
 alloAvanee to others besides plaintiff, 311, f. 
 when plaintiff suflTers default, 302. 
 discretion of court in gi'anting, 311. f. 
 insurance policy, action on, basis. 303. 
 against executors, 174, h. 
 
 on statutory reference, disputed claim against, 174, q. 
 life insurance policy, action to reinstate, 303. 
 Lloyd insurance policy, against one indemnitor, basis, 303. 
 in action for divorce, 136, a. 
 charging an annuity upon a fund, basis, 304. 
 assumption of court that capital stock of bank is at par, 305. 
 restraining sale of pledged stock, without notice, basis, 305. 
 action to redeem stock upon paying assessments, basis, 305, 
 negligently causing death, basis, 306. 
 addition of interest under § 1904, as a basis, 300. 
 
 partnership accountings; gross assets or assets of party, as basis^ 
 for, 307. 
 
 to set aside transfer of property, 307. 
 
 assets not enough to pay debts, 307, 311, g. 
 
 nonsuit after defendant makes account, 307. 
 
 no sum demanded in com.plaint, complaint dismissed, 311, g» 
 
 allowed to all parties, 307. 
 
 no dispute as to sum due plaintiff, 311, g. 
 
 plaintiff loses large part of claim, 307. 
 
 defendant loses large part of counterclaim, 307.
 
 INDEX. 537 
 
 (References are to sections.) 
 ADDITIONAL ALLOWANCE— ( continued ) . 
 trademarks, restraining use of, o08. 
 
 restraining use and recovery of damages, basis, 308, 
 
 no proof of value of, 308. 
 
 defendant wins, no sum demanded in complaint, 308. 
 
 defendant wins certain sum demanded in complaint, 308. 
 counterclaim, when defendant sets up, basis, 309. 
 no amount claimed in complaint or answer, basis, 309. 
 plaintifT recovers, defendant setting up unliquidated counterclaim, 
 
 basis, 309. 
 defendant concedes plaintiff's claim, recovers on counterclaim, 309. 
 plaintiff wins, no judgment on coimterclaim, 309. 
 defendant wins, pleading statute of limitations, 310. 
 when there is no basis for, 311. 
 
 money value, accruing only incidentally, 311, a. 
 
 restraining the setting aside of an award, 311, a. 
 
 in quo warranto proceedings, 311, b. 
 
 removal of officer of a corporation, 311, b. 
 
 restraining use of trademark, defendant wins, 311, c. 
 
 restraining use of trademark, plaintiff wins, 311, c. 
 
 compelliiig lessor to name umpire to fi.K values, 311, d. 
 
 setting aside deed given for convenience, 311, d. 
 
 restraining proceedings in dispossession, 311, d. 
 
 restraining increase in height of party wall, 311, d. 
 
 restraining building within certain line of street, 311, d. 
 
 restraining building, plaintiff claims easement, 311, d. 
 
 reforming contract restraining running of cars, 311, d. 
 
 restraining maintenance of street railway, 311, d. 
 
 lestraining proceedings for forcible entry and detainer, 311, d^ 
 
 restraining the foreclosure of a mortgage, 311, d. 
 
 restraining operation of railroad, value of easements, 311, d_ 
 
 restraining railroad from building road, 311, d. 
 
 action by the people to remove a dam, 311, d. 
 
 restraining pollution of stream, no damages, 311, d. 
 
 restraining operation of railroad, nominal damaifos, 311, d. 
 
 injunction therein obviated by payment, 311, d. 
 
 to declare a resulting trust on leasehold, 311, d. 
 
 injunctive relief as to personal property, 311, e. 
 
 to construe a will, demurrer sustained, 311, f. 
 
 to construe a will, outside of jurisdiction, 311, f. 
 
 to construe a will, allowance to the defendants, 311, f. 
 
 to construe a will, complaint dismissed, no evidence, 311, f. 
 
 discretion of the court in granting, 7, a.
 
 538 IKDEX. 
 
 (References are to sections.) 
 ADDITIONAL ALLOWANCE— (continued) . 
 
 accounting, no sum demanded, nothing due, 311, g. 
 
 accounting, plainliff held not entitled to, 311, g. 
 
 accounting, when estate is insolvent, 311, g. 
 
 accounting, no dispute as to sum due, 311, g. 
 
 trustee asks to be relieved, then discontinues, 311, g. 
 
 discontinuance of action to remove general assignee, 311, g. 
 
 divorce, action foi% 136, a, 311, h. 
 
 forma 'pauperis, action in, contingent fee, 311, i. 
 
 reform contract, action to, 311, j. 
 
 action to obtain relief as to a release, 311, j. 
 
 award, action to vacate, 311, j. 
 construction of will, inherent power of court, 130, c. 
 construction of will, reviewed by court of appeals, 130, c. 
 construction of will, allowance to all parties, 130, c. 
 construction of will, under Code, Knit of, 130, c. 
 on demurrer, appellate court allowing amended pleading, 96. 
 discretion of trial court in granting, in such case, 96. 
 payment upon amending complaint, 49, d. 
 payment upon amending answer, 49, e. 
 trial court granting, after Judgment absolute by court of appeals. 
 
 "with costs," 390, a. 
 trial court granting, judgment absolute, court of appeals allowing costs 
 
 in trial court, 390, a. 
 in actions against an executor, 174, h. 
 on contested claim presented to assignee, 164, c. 
 proper allowance, what is, 312. 
 
 various cases, amount of, considered, 312, a. 
 
 to guardian ad litem, inclusion of, ascertaining statutory 
 limit, 312, b. 
 
 statutory limit, application to receivers, 172, c. 
 
 in taxpayer's action, trial short, 312, c. 
 
 construction of will, complaint dismissed, 312, d. 
 
 conduct of party not commendable, 312, e. 
 
 defendant succeeding on answer amended after appeal, 312, e. 
 
 servant imsuccessfully suing ma.ster for false arrest, 312, e. 
 
 cause of action not surviving plaintiff, 312, e. 
 
 trustee defending in interest of others, 312, e. 
 
 exceeding 5 per cent of sum involved, 312, e. 
 
 exceeding 5 per cent, in special proceeding, 312, e. 
 special proceedings, allowance in, 313. 
 
 when the costs are fixed by § 3240, 150, a, 313. 
 
 certiorari to review an assessment, 159, d, 313.
 
 INDEX. 639 
 
 (Refei'ences are to sections.) 
 ADDITIONAL ALLOWANCE— (continued) . 
 
 under the condemnation law, 150, b, c, 313. 
 condemnation proceedings not under that law, 313. 
 on discontinuance, under condemnation law, 151, d. 
 mandamus, 149, e. 
 as a matter of right, 314. 
 statute, 314. 
 
 necessitj' of motion or order for, 314. 
 duty of clerk to tax, 314. 
 right of defendant to these allowances, 314, 
 necessity that plaintiff recover costs, 314. 
 
 "to compel the determination of a claim to real property," 314. 
 in mechanic's lien foreclosure, 131, e, 314. 
 to compel specific performance of a land contract, 314. 
 to foreclose a land contract, 121. 
 to restrain the foreclosure of a mortgage, 314. 
 to set aside a fraudulent conveyance, 314. 
 in attachment actions, 315. 
 
 necessity that property be attached, 315. 
 
 necessity that attachment continue, 315. 
 
 bond given in place of property, as basis, 315. 
 
 amount of recovery as a basis, 315. 
 
 procedure when return does not show value, 315. 
 
 property attached exceeds recovery, basis, 315. 
 
 discontinuance upon payment of costs, 315. 
 
 necessity that plaintiff recover judgment, 315. 
 
 settlement in favor of plaintiff, equivalent to, 315. 
 construction of will, to plaintiff, 130, e. 
 limit of allowance under §§ 3252, 3253, 130, c. 
 in foreclosure of land contract, 121. 
 
 ADDITIONAL DEFENDANTS, 
 
 voluntary appearance, as additional defendant served with sumnious, 
 335. 
 
 ADJOURNING TRIAL, 
 
 terms on, 72, 
 
 what is, 72. 
 
 disbursements on, 72. 
 
 taxation of disbursements on, 72. 
 
 witness fees on, 72. 
 
 disbursements, after order, 72. 
 
 disbursements not rendered useless by, 72. 
 
 costs on, when paid, 72.
 
 540 INDEX. <^ 
 
 (References are to sections.) t 
 
 ADJOURNING TRIAI^- { continued ) . -J 
 
 costs on, taxed in judgment, 72. ^ 
 excessive terms on, review of, 72. 
 dismissal of complaint, nonpayment of costs of, 72. 
 
 ADMINISTRATOR. See also Executob. 
 costs awarded to, not to attorney, 17. 
 
 enforcing attorney's lien after settlement of action, 19, b. 
 personal liability for fees of attorney, 28. 
 liability in representative capacity, 28. 
 allowance for services of attorney, conclusiveness of, 28, 
 attorney's lien, action causing death of intestate, 28. 
 lien of individual attorney on estate, 28. 
 an attorney, charging for own services, 28. 
 an attorney, employing his partner, 28. 
 emploj'ing attorney by contingent retainer. 28. 
 enforcing such lien, 28. 
 
 ADMISSION OF GENUINENESS OF PAPER. 4(i.5. 
 
 AFFIDAVIT, 
 
 fee for administering, 402. 
 
 "AFTER NOTICE OF TRIAL AND BEFORE TIM A I.," 
 meaning of, 83. 
 as including term fees, 83. 
 
 dismissal of complaint, when defendant can tux, 52. 
 payment of, as terms of opening default. .56. 
 
 ALIENATION OF AFFECTIONS, 
 
 amount of costs as afTected by .amount of verdict, 103, c 
 
 ALIMONY, 
 
 attorney's lien on, 16. 39. 
 
 AilENDMENT, 
 
 to leave out a defendant, terms, 58. 
 
 costs on, discretion of court. 49, a. 
 
 costs on, general rule, 49, a. 
 
 of complaint before trial, 49, a. 
 
 formal, of complaint before trial, 49, a. 
 
 formal, of complaint at trial, 49, b. 
 
 of complaint after withdrawal of juror, 49, b. 
 
 formal, after evidence is all in, 49, b. 
 
 of complaint, changing theory of action, 49, b. 
 
 of complaint, substantia], at ."special term, 49, b.
 
 INDEX. 541 
 
 (References are to sections.) 
 AM ENDIMENT— ( con t inued ) . 
 
 terms of, by wliom determined, 49, b. 
 
 of comi^Iaint, after judgment, amount of damages, 49, c 
 
 of complaint, after appeal, new issues, 49, d. 
 
 of complaint of poor person, 49, d. 
 
 of complaint, defendant a public oflBcer, 49, d. 
 
 of complaint, answer also amended, terms, 49, d. 
 
 of complaint from harboring son, to wages, 4!), d. 
 
 of answer; usual terms, after appeal, 49, e. 
 
 no costs were allowed on trial or on appeal, 49, e. 
 
 allowing plaintiff to discontinue, 49, e. 
 
 upon payment of all costs to date, 49, e. 
 
 upon pajanent of part of costs to date, -)!». e. 
 
 rule in superior and New York city courts, 49, e. 
 
 upon payment of additional allowance, 49, e. 
 
 upon payment of a lump sum, 49, e. 
 
 upon payment of motion costs merely. 49, e. 
 
 application for, before trial, 49, e. 
 
 application for, case on day calendar, 4!i, e. 
 
 retaxation of costs paid on, 49. h. 
 
 ANSWER, 
 
 amendment of, see Amendment of Answer, supra. 
 
 moving that, be made more definite, terms of order. 40. g. 
 
 serving supplemental, terms of, 49, f. 
 
 serving supplemental, terms of, in equity, 49, f. 
 
 serving supplemental, laches in moving, 49, f. 
 
 serving supplemental, facts existed when answer served, 49, £. 
 
 APPEAL, 
 
 statute governing costs on, 381. 
 
 discretion of court, action not specified in § 3228. 381. 
 
 necessity of success upon main issues, 382. 
 
 necessity of success upon all the main issues, 382. 
 
 partial success, appeal too broad, 382. 
 
 when both parties succeed, costs, 382. 
 
 when question is novel, 7, a. 
 
 when both parties appeal and fail, costs, 382. 
 
 when question of law is imsettled, 7, a. 
 
 both appeal, one abandons appeal, other fails, 382. 
 
 both appeal, succeed in part only, costs, 7, a, 382. 
 
 both appeal, judgment reversed, mutual errors, 382. 
 
 two a])peals, same question, costs of, improper, 382. 
 
 by respondent to secure expression of court upon reversal, 382.
 
 542 INDKX. 
 
 (Refeiefues are to sections.) 
 APPEA]>— { coni inued ) . 
 
 silence as to costs, when tliey are discretionary, 382. 
 
 correction of erroneous direction as to costs, 382. 
 
 separate costs on appeal from judgment and order, 383. 
 
 from judgment and order denying new trial, under § 1010, 383. 
 
 judgment and order, newly discovered evidence, 383. 
 
 from order after decision on appeal from judgment, 383, 
 
 "argument," meaning of, in § 3251, 384. 
 
 respondent consenting to reversal to correct error, 385. 
 
 successful appellant violating rules as to printing case, 385. 
 
 several appeals embodied in one notice, 386. 
 
 judgment modified, error in computation not called to attention of 
 
 court below, 387. 
 written offer to allow deduction of amount of error, 387. 
 judgment modified after such offer, error made by attorneys and 
 
 court, 387. 
 reversal when objection was not definite, 387. 
 accepting part of order, appealing from balance, 388. 
 receiving costs for favor, appealing from order, 388. 
 costs received before appeal taken, effect, 388. 
 costs received after appeal taken, effect, 338. 
 iiccepting costs payable absolutely, not dependent upon accepting favor, 
 
 388. 
 after payment of costs coerced by execution, 388, 
 after attorney has accepted costs, 388. 
 reargument not caused by party claiming costs, 380. 
 fee "before notice of argument" in such case. 389. 
 
 court of rippeals, "with costs;'' meaning of the words '"with costs," 
 390, a. 
 ^^'llat costs can be taxed in such case, 390, a. 
 0(iuity court granting costs for first time, judgment upon re- 
 mittitur, 390, a. 
 equity court granting an allowance, first time, 390, a, 
 assuming to denl with whole subject of costs, 390, a. 
 equity action, costs in trial court allowed, trial court granting 
 
 an allowance. 390, a. 
 action at law, judgment upon remittitur, trial court granting 
 
 an allowance, 390, a. 
 equity action, costs not allowed in appellate division, judg- 
 ment upon remittitur, "witli costs," 390, a. 
 how costs in appellate division obtained in such case, 390, a. 
 application on final judgment for costs, successful party uni- 
 formly defeated, 390, a.
 
 INDKX. 543 
 
 (References are to sections.) 
 APPEAL— (continued) . 
 
 court ot appeals, interpretation and correction of order ; lower 
 
 court awarding, court of appeals having passed on whole 
 
 subject, 390, b. 
 lower court allowing separate bills of costs, 390, b. 
 trial court allowing costs in that court, after affirmance, 300, b. 
 how costs in lower court reduced after affirmance, 390, b. 
 construction of stipulation by parties, 390, b. 
 etipulation, one set of papers, several actions, 390, b. 
 remittitur ambiguous as to costs, remedy, 390, b. 
 trial court reducing costs, judgment absolute, 390, b. 
 appellate diA'ision deducting its costs, judgment absolute, 390, b. 
 danger of appealing from order granting new trial, 390, b. 
 eourt of appeals, "with costs to abide event;" meaning of "with 
 
 costs to abide eA'ent," 390, c. 
 what costs taxable in equity; new trial, 390, c. 
 discretion of trial court, in equity, neither party successful, 
 
 390, c. 
 what costs taxable on new trial ; action at law, 390, c. 
 to party who is finally unsuccessful, what costs taxable, action 
 
 at law, 390, e. 
 court of appeals, "without costs;" meaning of "without costs," 390, d. 
 adding costs below for first time, 390, d. 
 to proceed according to law, power of trial court, 390, d. 
 United States Supreme Court reverses, with costs; efTect of 
 
 court of appeal remitting "without costs," 390, d. 
 modifying judgment, burden on whom, 390, d. 
 exemption of costs below, how determined, 390, d. 
 equity action, judgment affirmed, "without costs to eilVier 
 
 party," 390, d. 
 court of appeals, costs as a matter of right; action for money 
 
 judgment, 390, e. 
 when costs are in discretion of court, 390, e. 
 discretion, judgment reversed or affirmed in part. 390, e. 
 discretion as to costs, new trial granted, 390, e. 
 efTect of adding "with costs" in such action, 390, e. 
 eflfect of adding "without costs" in such action, 390, e. 
 appellate division gives costs to defendant to abide event, 
 
 court of appeals judgment for plaintiff", "with costs," 390, e. 
 court of appeals reviewing costs; discretionary order; based on lack 
 
 of power, 390, f. 
 condition of reversal, not to bring action, 390. f, 
 allowance of costs upon such condition. 390, f.
 
 544 
 
 liVUEX. 
 
 (References are to sections.) 
 APPEAL— ( continued ) . 
 
 order reversing order of special term, costs absolutely, 390, f. 
 adjusting costs payable by different parties. 390, f. 
 8ourt of appeals; decision of one appeal makes consideration of 
 another useless, 390, g. 
 modification on point not raised below, 390, h. 
 party right on pleading, in default of payment, 390, h. 
 one bill of costs, several awarded below, 390, i. 
 afiRrming judgment, equity action, power as to costs, 390, i. 
 reversing and ordering judgment for one defendant, 390, i. 
 reversal as to one of two defendants, right to costs, action at 
 
 law, 390, i. 
 same attorney for plaintiff and guardian. 390, i. 
 two respondents, one plaintiff, one defendant, different issues, 
 
 390, i. 
 two orders, "appeals dismissed with costs," 390. i. 
 amount of costs, appeal from order, 390, j. 
 double costs to public officer, 390, j. 
 <M}UTt of appeals, punitive costs; no merit in appeal, percentage 
 allowed, 390, k. 
 on what computed, 390, k. 
 allowance in action for fraud, 390, k. 
 appeal without merit, no points submitted, 390, k. 
 evidence on new trial falls short of offer, 390. k. 
 little merit in appeal, but no delay, 390. k. 
 same question decided against appellant in another action. 
 
 390, k. 
 debatable qtiestion not settled at time of appeal, 390, k. 
 court of appeals, costs imposed upon withdrawing appeal, 390. 1. 
 terms imposed upon opening a default, 390, m. 
 appeal dismissed after argument on merits, 390, m. 
 arguing on merits, instead of moving to dismiss, 390, ni. 
 appeal dismissed on motion, 390, m. 
 review of construciion of order by court below, 390, n. 
 waiver of review, entering judgment, satisfied, 390, n. 
 amount of allowance in murder case, 390, o. 
 effect of not preparing case, on allowance, 390, o. 
 appellate division; when the court has no discretion as to costs, 391, a. 
 costs, as a matter of right, effect of silence, 391, a. 
 in what case the court has a discretion as to costs, 391. a. 
 exceptions heard at. in first instance, 391, g. 
 discretion of court, new trial granted in such case, S7. 
 including appeal from order denying new trial, 391. g. 
 verdict subject to opinion of. 391. h.
 
 INDEX. 545 
 
 (Refeieuces are to sections.) 
 APPEiiL— ( continued ) . 
 
 appellate division, "witli costs;" rule in the first and second de- 
 l»artnients, complaint dismissed, 391, b. 
 direction when costs of trial are granted, 391, b. 
 rule in general term, complaint dismissed, 391, b. 
 appellate division, costs of an order; Avhen disbursement can be 
 taxed, 195, 391, c. 
 allowance of disbursement on interlocutory order, 391, c. 
 how these costs are collected, 391, c. 
 inclusion of these costs in final judgment, 391, c. 
 .appellate division, "with costs to abide event;" meaning of "with 
 costs to abide event," 391, d. 
 costs of first trial, as interpreted by some courts, 391, d. 
 successful on new trial or by appeal, 391, d. 
 what taxable, new trial, legal action, 391, d. 
 what taxable, new trial, equity action, 391, d. 
 effect of order on previous costs, equity action, 391, d. 
 costs taxable; costs limited to amount of recovery, 391, d. 
 verdict of $50, including interest to last trial, 391, d. 
 appellate division, "with costs to appellant to abide event;" mean- 
 ing of "with costs to appellant to abide event," 391, e. 
 appellate division, "without costs;" meaning of "without costs," 391, f. 
 .appellate division, separate bills of costs; allowance of, when de- 
 cision must be for all, 393. 
 efl'ect of allowance below of separate bills in such case, 393. 
 effect of one notice of appeal and one argument, 393. 
 power to grant separate bills, 393. 
 defendants join in answer, separate on appeal, 393. 
 separate answers, unite on appeal, 393. 
 
 separate answers, judgment affirmed, with costs to respond- 
 ents, 393. 
 affirmed, "with costs to respondents who appeared on this 
 
 appeal," 393. 
 unite in answer; judgment reversed as to one affirmed as to 
 
 another, 393. 
 disbursement for printing in such case, 393. 
 when plaintifl' and one defendant are similarly situated, 393. 
 successful party could have obtained relief below, 394. 
 judgment improperly entered "upon the merits," 394. 
 reversal on point not raised below, 394. 
 verdict reduced, not asked for on motion for new trial, 394. 
 novel point of practice, 7, a, 394. 
 
 •COSTS 35.
 
 646 iNUEX. 
 
 (References are to sections.) 
 APPEAL-- ( continued ) . 
 
 plaintiff defeated, because law was repealed, 394. 
 
 motion costs in, supplementary proceedings thereon, 416. 
 
 orders, costs on appeal from ; statute, 395, b. 
 
 allirming order denying new trial, made on case, 395, b. 
 
 costs of, how collected^ 395, b. 
 
 reviewing merits of, on appeal from taxation, 50. 
 
 right to appeal from order granting costs, 51, b. 
 
 dismissing supplementary proceedings by county treasurer,. 
 
 395, b. 
 certiorari to review a tax or assessment, 395, b. 
 orders overruling or sustaining a demurrer; what amount of costs- 
 is allowed on, 396. 
 appeal from judgment, frivolous demurrer, 396. 
 with leave to plead over, terms, 396. 
 demurrer to only part of pleading, 396. 
 dismissal of appeal; failure to make case, 3!)7. 
 
 placing such case on calendar, then dismissing, 397. 
 argument fee, on, 397. 
 order of coimty court; reversal of; granting a new trial, 398. 
 
 judgment absolute by appellate division; appeal from justice 
 court, 398. 
 bastardy proceedings; allowance of costs to successful party in, 399. 
 
 APPEARANCE, 
 
 what is sufficient, by attorney; allowance of costs, 3. 
 
 costs on, discontinuance before, 57. 
 
 discontinuance before, but after retaining of attorney, 57. 
 
 ARBITRATION, 
 
 statute governing costs on, 234. 
 
 discretion as to costs, 234. 
 
 amount of costs on, 234. 
 
 liability of party revoking, for costs, 234. 
 
 ARGUMENT, 
 
 costs, when statute is changed after, 6. 
 
 .\RGUMENT FEE, 
 
 upon dismissal of appeal, 397. 
 
 motion for new trial, heard by one judge, sent to another who decides,- 
 87. 
 
 ASSAULT AND BATTERY, 
 
 action for, unnecessary allegation of title, 101, a. 2, 101, o.
 
 INDEX. 
 
 647 
 
 (Uefereuces are to sections.) 
 ASS A ULT AND BATTERY— ( continued ) . 
 
 certificate that title to real estate arose, 101, o. 
 
 costs, as limited by amount of verdict, 103, a, b. 
 
 two defendants, one successful, one not, 103, b. 
 
 costs of appeal to plaintiff to al)i(le event; costs limited by verdict, 
 
 103, b. 
 removal to county, where local law changes general law, 103, b. 
 joined with another cause, verdict less than $50, 103, b. 
 lien of attorney in action for, 14. 
 
 ASSESSMENT, 
 
 costs on proceedings to vacate, 156. 
 
 ASSESSORS, 
 
 proceedings against, see Ci^KiroRABl. 
 
 ASSIGNEE FOR THE BENEFIT OF CREDITORS, 
 as official assignee, within § 32G8, 260. 
 as trustee of an express trust, 260. 
 See also Asstgnjient for Bknefit of Creditors. 
 
 ASSIGNEE OF CAUSE OF ACTION, 
 
 liability for costs of absolute assignee 350. 
 
 judgment reversed after assignment. 350. 
 
 liability, when assigned as collateral, 351. 
 
 assigned as collateral, assignee prosecuting, 351. 
 
 absolute assignment of judgment; judgment reversed, cause not a8sig^ 
 
 able, 351. 
 light of defendant to offset costs ngaiiist recovery. 351. 
 rights of, 40, c. 
 
 costs awarded to, not to attorney, 17. 
 right of attorney to costs thus a\varded, 17. 
 payment of attorney's lien by, 18. 
 
 ASSIGNMENT, 
 
 of attorney's lien, as affected by acts of attorney, 30. 
 
 of attorney's lien, assignee a party to determination of lien, 30. 
 
 of attorney's lien, delivery of security to, 30. 
 
 .A,SSIGNMENT FOR BENEFIT OF CREDITORS, 
 
 allowance for services of attorney to assignee, 164, a. 
 allowance when services are worthless or fraudulent, 164, a. 
 liability of assignee to his attorney, 164, a. 
 allowance to assignee for his services as attorney, 164, a. 
 allowance to assignee for services of his firm, 164, a. 
 creditors not objecting to such allowance, 164, a.
 
 548 jNDKx. 
 
 (References are to sections.) 
 ASSIGNMENT FOR BENEFIT OF CREDITORS— ( con tinuo.l). 
 charge for drawirifj tlie assignment, 164, a. 
 assignee an attorney, allowance of counsel fee, 164, a. 
 assignee as trustee of an express trust, KU, a. 
 assignment set aside, allowance to assignee, 1(54, b. 
 ob jecLion of assignor to such allowance, 1 ()4, b. 
 assignment set aside; costs paid by whom, 104, 1). 
 acts which make assignee a party to fraud, 104, b. 
 assignee a party to fraud, allowances to, 104, b. 
 assignee a party to fraud, liability for costs, 164, b. 
 assignee successfully defending assignment, costs to, 164, b. 
 assignee retaining costs to which he is not entitled, 164, b. 
 allowance to assignee on contested claim, 164, e. 
 costs to successful claimant on such claim, 164, c. 
 additional allowance on contested claim, 164, e. 
 proof of value of attorney's services, on such claim. 164, c. 
 efioct of inclusion of claim in schedules, 164, c. 
 allowance of retaining fee paid by assignee, 164, c. 
 allowance to attorney of assignee purchasing claim, 164, c. 
 costs of unsuccessful defense, charged on final accounting, 164. c. 
 allowance in excess of costs and commissions, 164, c. 
 action brought by a.ssignee; liability of assignee for costs, 164, d. 
 
 liability of assignee, when he has no assets, 164, d. 
 
 liability for costs; assignment successfully attacked, 164, d. 
 
 allowance of counsel fees in protecting estate, 164, d. 
 
 efl'oct of mismanagement or bad faith, 16-1, d. 
 
 bad faith in px'osecuting action, 164, d. 
 
 paying all money to his attorney, as bad faith, 164, d. 
 
 cflTect of charging costs against him as assignee, 164, d. 
 action for aceoLmting; costs to assignee in, 164, e. 
 
 right of creditor to compel others to share expense, 164, c. 
 
 costs to assignee, whose actions were suspicious, 164, e. 
 
 property sold in bulk without notice to creditors, 164, e. 
 
 proceedings taken by creditors, as special proceedings, 164, e. 
 
 stay for nonpayment of motion costs therein, 164, e. 
 final accounting; allowance for service of attorney of assignee on, 
 104, f. 
 
 allowance for service of attorney of creditor on, 164, f. 
 
 allowance to attorney for preparing the schedules, 164, £ 
 
 allowance to assignee for general advice of attorney, 164, f. 
 
 allowance for accoimting, same as trial of issue of fact, 164, f. 
 
 no objections; trial fee, and costs before notice of trial, 164, f. 
 
 assignee defeated on all material issues; allowance, 164, f.
 
 INDEX. 549 
 
 (Rc-rerenccs are to sections.) 
 ASSIGNMENT FOR BENEFIT OF CREDITORS— (coni inucd). 
 notice of taxation of costs, to whom given, 1(54, f. 
 costs on, paid by whom, 164, g. 
 costs paid by whom; assignee resigns, 1G4, g. 
 costs, by Avhom paid; assignee guilty of bad faith, 104, g. 
 costs to creditoi's, upon removal of assignee, 164, g. 
 how costs against assignee are collected, 164, h. 
 issuing execution to collect such costs, 164, h. 
 supplementary proceedings to collect such costs, 164, h. 
 costs from fund, upon offer, ordered by the court, 355. 
 
 ASSIGNOR OF CAUSE OF ACTION, 
 
 liability for costs: assignment merely colorable. 353. 
 dismissal of assignee's complaint, res adjudicatu, 353. 
 liability for costs; assignment to avoid giving security, 353. 
 liability for costs; assignment pending action, 353. 
 liability for costs; to receive share of proceeds, 356. 
 
 ATTACHMENT, 
 
 lien of attorney on luulertaking given on, 16. 
 
 reducing costs, on application of subsequent attaching creditor, 415. 
 
 service of papers upon such application, 415. 
 
 additional allowance, as a matter of right, see Additional Aixowancb. 
 
 ATTORNEY, 
 
 what is a sufficient appearance by; allowance of costs, 3. 
 
 appearing in person; right to tax costs, 3. 
 
 power of, over amount of costs, 8. 
 
 ]!Ower of, over amount of fees of referee, 8. 
 
 as executor, receiving compensation rendered estate, 185. 
 
 employed by his partner, who is an executor, 28. 
 
 items considered in ascertaining value of services, 235, d. 
 
 for poor person, right to costs, 269. 
 
 for poor person, designation and duties, 269. 
 
 protection of, upon substitution of attorneys, 22, a. 
 
 protection by court, when he has no lien, 26. 
 
 protection of, when fund taken to another court, 27. 
 
 contingent retainer by an administrator, 28. 
 
 protection of, upon discontinuance, 69. 
 
 ])rotection of, contingent fee, on discontinuance, 60. 
 
 protection of, as to costs and allowances; discontinuance, 69. 
 
 protection of, serving answer after settlement, 69. 
 
 proceedings against, to determine lien; acting as agent, 40, e. 
 
 proceedings against to determine lien, as debtor, 40, e.
 
 550 INDEX. 
 
 (Refoi-ences are to sections.) 
 ATTORNEY— ( continued ) . 
 
 not practising; proceedings against, to determiue lien, 40, c. 
 proceedings to determine lien, against counsel, 40, e. 
 proceedings to determine lien, promises not fulfilled, 40, c. 
 proceedings to determine lien, by counsel, 40, e. 
 rights against counsel, costs to be returned, 40, e. 
 
 liability of; for costs when defendant is eirtitled to security, see 
 Secukity for Costs. 
 for interest on money collected, 42. 
 how such interest is computed, 42. 
 
 duty to pay client; money collected in in.stalnients, 40, a. 
 for interest; claims un]i<juidated, 42. 
 for misconduct, 44. 
 
 for disobeying order of court, contempt, 44. 
 for money received from executor, who is removed, 47. 
 commencing unauthorized action, 328. 
 how this liability is fixed, 328. 
 for costs, receiving contingent fee, 352. 
 
 motion for leave to renew motion to set aside settlement, 352. 
 costs of reference to ascertain suppressed facts, 44. 
 costs of unauthorized appeal, 44. 
 for disbursements, 45. 
 for official fees, 45. 
 for clerk's fees, 45. 
 for sheriff''s fees, 45. 
 f)H execution, 45. 
 
 on execution, collection hindered, 45. 
 on execution, judgment reduced, 45. 
 on execution, judgment assigned, 45. 
 on execution, judgment discharged, 4.5. 
 on execution, countermanded, 45. 
 on execution, property inadequate, 45. 
 on execution, against the piTson. 45. 
 for calendar fees, 45. 
 proof to establish such liability, 45. 
 for fees of referee, 46, 413, e. 
 
 for fees of stenographer, testimony taken in action, 46. 
 for fees of stenographer, copy of minutes, 4G. 
 for fees of commissioner in partition, 40. 
 for fees of expert accountant, 40. 
 for printing brief, 46. 
 
 for disbursements contracted in his name, 46. 
 for counsel fees. 46.
 
 IJVDEX. 551 
 
 (References are to sections.) 
 ATTORNEY— (continued) . 
 
 repayment of costs, upon reversal, 47. 
 
 repayment of costs, obtained by fraud, 47. 
 
 repayment of money received from opponent, 47. 
 
 for costs improperly allowed, 47. 
 
 for costs improperly allowed, paid to client, 47. 
 to share compensation with third person, 10. 
 imposition of motion, costs on, 48, h. 
 ijt what time entitled to receive compensation, 42. 
 light to liave lien determined, before paying client, 43. 
 right to compensation for unauthorized action, 10. 
 right to counterclaim costs, 17. 
 right to enter judgment or order; client dead, 17. 
 right to issue execution; client dead, 17. 
 riglits, costs to be offset, in same action, 17. 
 rights, costs to be offset, different actions, 17. 
 rights when costs are claimed by anyone, 17. 
 city, sharing in costs; how share determined, 10. 
 title to costs, 17. 
 
 costs awarded to, or to client, 17. 
 
 enforcing judgment to protect lien, title of action, 17. 
 when equitable assignee of costs, 17. 
 for assignee, title to costs in action, 17. 
 power to bind client for fees of st<'nographer, 414, b. 
 
 -ATTORNEY'S LIEN, 
 kinds of, 9, a. 
 retaining lien, 9, a, b. 
 charging lien, 9, a. 
 at common law, 9, a, 20. 
 based on what principle, 9, b. 
 
 given for what, 9, b. * 
 
 effect of agreement as to compensation, 9, c. 
 oil judgment, when retaining, when charging, 9. c. 
 on money in the hands of a receiver, kind of, 9, c. 
 retention by firm, lien by one member, 9, c. 
 who entitled to, 10. 
 right of attorney of record to, 10. 
 right of attorney not forjnally substituted, 12. 
 right of counsel to, 10. 
 
 right of counsel for agreed share of contingent fee, 10. 
 loss of, through negligence, 10. 
 in unauthorized action, 10.
 
 552 INDEX. 
 
 (References are to sections.) 
 ATTORNEY'S LIEN— (continued) . 
 
 on judgment, asserted by client, 10. 
 
 in what courts, 11. 
 
 in courts not of record, 11. 
 
 in justices' courts, 11. 
 
 in municipal covirt of Buffalo, II. 
 
 in municipal court of New York, 11, 
 
 in surrogates' courts, 11. 
 
 loss of, on failure to proceed with action, 12. 
 
 loss of, nonprosecution, services unpaid, 12. 
 
 loss of, by misconduct, 24. 
 
 loss of, nonprosecution, disbursements unpaid, 12. 
 
 loss of, retention of papers after, 12. 
 
 title of proceedings to recover papers from attorney. 12. 
 
 loss of, on failure to carry out contract, 12. 
 
 loss of, release of one joint tort feasor, 12. 
 
 loss of, by waiver, 12. 
 
 waiver of; how made, 12, 23. 
 
 chattels delivered to owner. 12. 
 
 by silence, 12. 
 
 by allowing court to assume that client is owner. 12. 
 
 refusing to pay client; not claiming lien, 12. 
 
 not asserting it, when sued for conversion, 12. 
 
 not moving promptly on fraudulent settlement, 12. 
 
 delivery of property, with notice of lien, 12. 
 enforced. ont of lien by attorney not forum lly substituted, 12, 
 statute of limitations as to, 12, 20. 
 enforced by action after statute has run. 2!). 
 necessity of notice? to protect* 13. 
 extent of protection by statutory notice, 13. 
 in action on contract, 14. 
 in action for tort, 14. 
 
 in supplementary proceedings, before allowance, IGl. b. 
 for costs and agreed compensation, 14. 
 defendant's, answer containing no counterclaim, 14. 
 in proposed action, 14. 
 when cause of action is nonassignable, 14. 
 in action for assault and battery, 14. 
 in special proceedings, 15. 
 in proceedings to disbar an attorney, 1.1. 
 atl aches to what; to right to issue execution against the person, 16_ 
 
 imdertaking given on attachment, 16. 
 
 undertaking given for bail, 16.
 
 iNDiix. 553 
 
 (References are to sections.) 
 ATl^ORNEY'S LIEN— ( continued ) . 
 
 warrant of attachment for contempt. 16. 
 
 papers in criminal prosecution, 16. 
 
 bond and mortgage, in foreclosure, 16. 
 
 commitment proceedings against luisband to enforce, 39. 
 
 on wife's inchoate right of dower, 16. 
 
 on security for future alimony, 39. 
 
 on alimonj'^, 16, 39. 
 
 on property purchased by executor of client, 18. 
 
 on defense which is not a counterclaim, 16. 
 
 on proceeds of assigned judgment, 18. 
 
 on costs granted in action, 17. 
 
 in ejectment, for permanent improvements, 16. 
 when lien on, becomes title, 17. 
 effect of attorney's receiving costs, 17. 
 effect of attorney's asserting dominion over costs, 17. 
 effect of assignment of cause of action, 18. 
 effect of assignment of judgment, 18. 
 effect of settlement of action on, 19, a. 
 entry of judgment after settlement, 10, a. 
 issuance of execution after settlement of action, 19. a. 
 existence after settlement, client insolvent, 19, b. 
 existence after settlement, client an executor, 19, b. 
 in action in forma pauperis, 19, c. 
 after fraudulent settlement, client insolvent, 19, d. 
 costs and disbursements after fraudulent settlement, 19, d. 
 costs and allowance, insolvent client, 19, d. 
 intent of parties on settlement, 19. e. 
 under Code of Procedure, 20. 
 
 before amendment, in 1879, to the Cotle of Civil Procedure, 20. 
 setting aside satisfaction of jiulgincnt; extent, 21. 
 on proceeds of judgment, 21. 
 on actual cause of action, 21. 
 
 judgment after settlement, on what cause of action. 21. 
 for contingent fee, 21. 
 
 settlement after judgment, contingent fee, 21. 
 terminated by payment, upon substitution, 22. b. 
 extent of, on substitution, 22, b. 
 substitution of attorneys after waiver of, 23. 
 existence when services are valueless, 24. 
 
 existence of, determined on reference on substitution, 24, 44. 
 proceedings to determine; may be determined by action, 40, a. 
 
 determined by proceedings under § 66, 40. a.
 
 551: INDEX. 
 
 (References are to sections.) 
 ArrORKEY'S LIEN— (continued). 
 
 are special proceedings, 25. 
 
 when thej'^ may be instituted, 40, a. 
 
 necessity of reference, facts appearino;, 40, b. 
 
 termination of reference on, 40, b. 
 
 power of court over, 40, a. 
 
 power of New York city court over. 40, a. 
 
 power of marine court over, 40, a. 
 
 right to jury trial, as to lien, 40, a. 
 
 wlien facts are disputed, how determined. 40, b. 
 
 when client has assigned interest, 40, c. 
 
 when client has died, 40, c. 
 
 against one member of a firm only, 40, c. 
 
 verification of petition, 40, d. 
 
 instituted, pending action for same relief, 40, f. 
 
 after judgment for same relief, 40, f. 
 
 after accepting attorney's note, 40, f. 
 
 answer, claim made in good faith. 40, g. 
 
 answer, petitioner not entitled to receive money, 40, g. 
 
 proof of value of services on, 40, g. 
 
 value of services, how established, 40, g. 
 
 showing services and disbursements in detail. 40. g. 
 
 money paid on debt due by attorney, 40, g. 
 
 in what action proceedings should be instituted, 40, g. 
 
 wlio is prevailing party on, 25. 
 
 tinder in sucli proceedings, 25. 
 
 eJl'ect of inviting court to pass on lien. 40, b. 
 
 final order in such proceedings, 25. 
 
 execution for collection of costs of proceeding-;. 25. 
 
 to be determined before fund is paid, 43. 
 
 to compel attorney to share compensation, 10. 
 
 to enforce lien, petition by attorney or client, 32. c. 
 
 third parties may submit to, 32, c. 
 
 in what court instituted, lien in surrogate's court. 32, c. 
 determination by action: action in conversion to determine, 41. 
 
 lien a defense, not counterclaim: necessity of reply, 41. 
 in equity actions, 26. 
 on costs due on offer of judgment, 213. 
 defense, not termed counterclaim, 26. 
 effect of supplementary proceedings against client. 27. 
 determined by court ; money in sheriff's hands, 27. 
 action brought in representative capacity, 28. 
 action to recover damages for causing death. 28.
 
 iNDisx. 555 
 
 (References are to sections.) 
 ATTORNEY'S LIEN— (continued) . 
 
 on estate, services to executor individually, 28. 
 
 on estate, services beneficial to estate, 28. 
 
 for contingent fees against estate, 28. 
 
 protection of lien in surrogates' courts, 28. 
 
 surrogate setting aside satisfaction of decree. 28. 
 
 surrogate bound by judgment for services, 28. 
 
 surrogate retaining fund till determination of, 28. 
 
 determination of, by surrogate; no cause before liini, 28. 
 
 assignment of, 30. 
 
 delivery of security on assignment of, 30. 
 
 lost by attorney, effect on assignee, 30. 
 
 assignee as a party to such determination, 30. 
 
 enforcement of; upon securities, 31. 
 
 bj' issuing execution upon the judgment. 31. 
 
 by issuing execution against the person, 31. 
 
 right of client to discharge imprisoned debtor, 31. 
 
 siiing sheriff for amount of execution, 31. 
 
 right of client to settle such action, 31. 
 
 action on securities, 31. 
 
 action on undertaking given in action, 31. 
 
 by supplementary proceedings, judgment satisfied, 32, a. 
 
 by supplementary proceedings, judgment assigned. .■>2, a. 
 
 affidavit in such proceedings, 32, a. 
 
 consent of court before instituting such proceedings, 32, a. 
 
 after honest settlement, 32. b. 
 
 against judgment debtor, after honest settlement, 32, b. 
 
 when settlement is for nothing, 32, b. 
 
 against judgment debtor, client insolvent, 32, b. 
 
 attorney injured, settlement honest, 32, b. 
 
 client receiving money, attorney has contingent fee, 32, b. 
 
 by summary proceedings, imder § G6, 32, c. 
 
 rights of third parties in such proceedings. 32. c. 
 
 right to a jury trial, 32, c. 
 
 in what court, lien in surrogate's court. 32, c. 
 
 by foreclosure of, 32, d. 
 
 foreclosure of, parties defendant, 32, d. 
 
 foreclosure of, judgment in, 32, d. 
 
 motion to compel adversaiy to pay, as agreed, 32, d. 
 
 paid out of fund, notice to client, 32, e. 
 
 fund from award for land, 32, e. 
 
 setting aside collusive settlement; when settlement is, 32, f.
 
 o56 I A' HEX. 
 
 (References are to sections.) 
 ATTUKKEY'S LJ KN— ( conthmed) . 
 
 facts necessary to be shown. 32, f. 
 
 continuino: action, 32, f. 
 
 contingent fee in specific property, 32, f. 
 
 right to proceed witli action, 32, g, 1. 
 
 notice of application for leave to proceed, 32, g. 1. 
 
 liability of attorney, continuing action, 32, g, 1. 
 
 ■what must be sho^\^l on application to continue, 
 
 32, g, 1. 
 discretion of tlie court upon such application, 32, g, 2. 
 continuing matrimonial actions. 32, g, 2, 39. 
 payment by defendant of contingent fee, 32, g, 2. 
 contingent fee, client retaining right to settle, 32, g, 2. 
 continuing action, proof on trial, 32, g, 3. 
 motion to allege settlement in answer, 33. 
 Betting cside satisfaction of judgment; right to issue exe- 
 cution after satisfaction of judgment, 34. 
 motion to set aside satisfaction, 34. 
 such motion as a special proceeding, 34. 
 appeal lies therefrom to court of appeals, 34. 
 to what extent satisfaction is set aside, 34. 
 ])r()cedure when attorney claims contingent fee, 34. 
 motion denied, action foi- .same purpose, 34. 
 a]>peal from denial of such motion, 34. 
 justice's court, po^er In. ;>.i. 
 municipal court, power to, ?>'>. 
 liability of third persons for, 36. 
 condemnation proceedings, liability of grant (■?■ 30. 
 compelling judgment debtor to satisfy, 36. 
 ]iroof by counsel claiming share in, 37. 
 
 set oft': right of set off in difi'erent actions, eft'ect of, ?3. 
 right of set oft" in same action, effect of. 38. 
 right of set off, interlocutory costs, 38. 
 set off, costs of special proceedings arising out of same 
 
 action, 38. 
 costs again.st wife, set off of alimony, 39. 
 
 judgment for costs only, set off against another judgment, 38. 
 affected by set off of claim not in judgment, 38. 
 affected by set off of judgment on appeal, 38. 
 costs of order set off against damages and costs, 38. 
 costs on offer of judgment set off against verdict, 38, 213. 
 with assignment of costs to accrue, right of set off. 38.
 
 INDEX. 557 
 
 (References are to sections.) 
 ATTORNEY'S LIEN— ( continued ) . 
 
 with assignment of judgment, right of set oflF, 38. 
 uncollected motion costs at time of judgment, 38. 
 matrimonial actions; right to, in, 39. 
 
 protection of, by continuing action, 39. 
 
 protection upon settlement of action, 39. 
 
 on costs allowed to wife in separation, 137, e. 
 
 B. 
 
 BAIL, 
 
 lien of attorney on undertaking given for, 16. 
 
 BANKRUPTCY, 
 
 effect of discharge in, on costs, 415. 
 
 discharge of defendant in; discontinuance of action, 58. 
 
 BASTARDY TROCEEDINGS, 
 
 costs to successful party on appeal, 397. 
 
 BENEFICIALLY INTERESTED, 
 
 statute, 348. 
 
 applicability of decisions under the Revised Statutes, 348. 
 applicability of decisions under the Code, 348. 
 ejectment by grantee in name of grantor, 348, 
 liability of defending in name of another, 348. 
 how liability is enforced, 349, 
 
 how liability was enforced imder Code of Procedure, 349. 
 contempt proceedings to collect costs, 349. 
 discretion of court entertaining motion, pending appeal, 349. 
 service of notice on party or on attorney, 349. 
 absolute assignee of cause, pending action, 350. 
 absolute assignee, after judgment, 350. 
 assignee taking as collateral security, liability, 351. 
 assignee taking as collateral security, prosecuting action, 351. 
 judgment reversed after assignment, cause not assignable, 351. 
 right of defendant to offset costs against recovery, 351. 
 liability of attorney who is to receive contingent fee, 352. 
 motion to renew motion to set aside settlement, 352. ^ 
 liability of assignor; assignment merely colorable, 353. 
 dismissal of assignee's complaint, res adjudicata, 353. 
 assignment to avoid giving security, liability of assignor, 353. 
 assignment pending action, liability of assignor, 353. 
 action by receiver in supplementary proceedings, liability of judgment 
 creditor, 354.
 
 658 INDEX. 
 
 (References are to sections.) 
 BENEFICIALT.Y INTERESTED— ( continued ) . 
 
 when action is brouglit at suggestion of creditor, .154. 
 action virtually conducted by creditor, 354. 
 costs awarded against receiver as defendant, 354. 
 filing written request of judgment creditor, effect of, 354. 
 motion costs against receiver, acting for creditor, 354. 
 compulsory offer of judgment by general assignee. 355. 
 when person is beneficially interested; by agreeing to carry on action 
 and share in proceeds, 356. 
 such assignee transferring his interest, 356. 
 assignor to receive share of proceeds, 356. 
 commencing action witliout authority, 356. 
 commencing action, not complying with .statute, 356. 
 commencing action, nonexistent plaintiff, 357. 
 commencing action, as trustees of a corporation. 357. 
 person exclusively benefited not bringing action, 358. 
 advising action and advancing money to aid therein, 358. 
 grantee bringing ejectment in name of grantor, 348. 
 landlord defending ejectment against tenant, 359. 
 grantor defending ejectment against grantee, 359. 
 mortgagee defending ejectment against mortgagor, 359. 
 liability outside of statute; fraudulently procuring execution of will, 
 360. 
 defying orders of court, although an agent, 360. 
 voluntarily becoming parties in contempt proceedings. 360. 
 
 BILL OF PARTICULAES, 
 costs of motion for, 53. 
 
 BODY EXECUTION. See Executiox against thk Person. 
 
 BONDS AND MORTGAGES, 
 
 in process of foreclosure, lien of atloiiuy on, 16. 
 
 BONUS, 
 
 costs as, 1. 
 
 BREACH OF PROMISE TO MARRY, 
 
 costs, when recovery is less than $50. 104, j. 
 
 c. 
 
 CALENDAR FEES, 
 
 liability of attorney for, 45. 
 
 ]» oof to establish such liability, 45.
 
 INDEX. 569 
 
 .References are to sections.) 
 CERTIORARI, 
 
 discretion as to costs on final order, 159, a. 
 
 amount of costs on final order, 159, a. 
 
 specification in order, of amount of costs, 159, a. 
 
 authority of clerk to tax costs on, 159, a. 
 
 application of § 3240, 159, a. 
 
 allowance of double costs to officers, 159, a. 
 
 to review comptroller's assessment of state taxes, 159. a. 
 
 against assessors; what statute governs, 159, b. 
 
 when the relator is defeated, 159, b. 
 
 deciding question of law wrongly, 159, b. 
 
 presumption of law as to intent of assessors. 159, b. 
 
 proof of dereliction, 159, b. 
 
 who have all facts, and true rule of law, 159, b. 
 
 acting with gross negligence, 159, b. 
 
 assessing property after it has been held exempt, 159, b, 
 
 absence of ruling as to fault of, 159, b. 
 
 appealing from adverse decision, 159, b. 
 
 amount of costs on appeal, 159, b. 
 
 increased costs on appeal, 159 b. 
 
 application for certificate for increased costs, 159, b. 
 
 right to costs upon denial of petition for, 159, b. 
 costs on appeal, against others than assessors, 159, b. 
 amendment after return, terms of, 159, c. 
 amount of costs at common law, 159, c. 
 additional allowance in, 159, d. 
 double costs in, 132, b. 
 
 CHANGE OF PARTIES. See Parties. 
 
 CHARGING LIEN. See Attorney's Lie?t. 
 
 CHAITELS, ACTION FOR, 
 
 one cause of action, both parties succeed, 102, a. 
 
 ofiPer of judgment in, 102, a. 
 
 two causes of action, both parties succeed, 102, a. 
 
 amount of plaintiff's costs in, 102, b. 
 
 value of chattels and amount of damages, 102, b. 
 
 verdict not fixing value of chattels, 102, b. 
 
 verdict awarding return of goods, value not determined, 102, b. 
 
 showing value of goods by affidavits, 102, b. 
 
 verdict that plaintiff may retain goods; no value fixed, 102, b. 
 
 either conversion or replevin, verdict less than $50, 102, b. 
 
 lost property, action by finder against depositary, 102, c. 
 
 amount paid suretv for bond, as a disbursement, 400.
 
 560 INDEX. 
 
 (References are to sections.) 
 CITATION, 
 
 fee of jjiinter for publishing, 412. 
 
 CITY, 
 
 action to recover award to unknown owners; costs, 335. 
 See also Municipal Coeporations. 
 
 CIVIL DAMAGE ACl^ 
 
 costs to plaintifT under, 322. 
 
 CLERK, 
 
 fees of, 402. 
 
 duty to adjourn taxation to allow procuring of affidavits, 403, e. 
 
 CLERK, COURT OF APPEALS, 
 fees of, 402. 
 
 CLIENT, 
 
 right to assert lien of attorney upon judgment, 10. 
 
 discharging debtor from arrest, lien of attorney unpaid, 16, 31, 
 
 title to costs, 17. 
 
 action to recover costs, 17. 
 
 right to change attorneys, 22, a. 
 
 right to discontinue proceedings to change attorneys, 22, c. 
 
 right to change attorneys, not fixing amount of lien, 22, d. 
 
 waiver of jury trial by application to change attorneys, 22, d. 
 
 proof of irresponsibility of; execution returned unsatisfied, 23. 
 
 riglit to settle action against sheriff, sued for amount of execution, 31. 
 
 right to settle action, in spite of attorney's lien, 31. 
 
 receives attorney's contingent fee, in what capacity, 32, e. 
 
 retaining right to settle, attorney having contingent fee, 32, g, 2. 
 
 right of action against attorney who asserts lien, 40, a. 
 
 right to institute procedings to determine attorney's lien, 40, a. 
 
 right of jury trial, as to attorney's lien, 40, a. 
 
 right to settlements with attorney' from time to time. 40, a. 
 
 effect of inviting court to pass on attorney's lien, 40, b. 
 
 effect on attorney's lien of client assigning claim, 40, c. 
 
 right to proceed against one member of a firm of attorneys, 40, c 
 
 verification of petition in proceedings to determine lien, 40, d. 
 
 when relation of client and attorney does not exist, 40, e. 
 
 liability for repayment of costs upon reversal, 47. 
 
 liability for costs improperly allowed, 47. 
 
 how repayment of costs upon reversal or modification, enforced, 47. 
 
 CLOUD ON TITLE. 
 
 defendant forcing plaintiff into court to protect right, 125.
 
 INDEX. 561 
 
 (Ueferences are to sections.) 
 CI^UD ON TITLE— (continued). 
 
 defendant unsuccessfully den3'ing plaintiff's riglit ot way, 125 
 defendant's description covering plaintiff's land. 12.j. 
 <lefendant refusing to join iius'.>:ir.d in deed. 125. 
 
 CODEFENDANTS, 
 
 when costs allowed to one against another. 320. 
 
 right of one to costs, when others suffer default. .■i21. 
 
 applicability of decisions previous to 1851. 321. 
 
 liability for costs of imsuccessful defense by another, '''ll. 
 
 entry of judgment against defaulting defendant, 321. 
 
 entiy of one judgment against all; effect of reversal by one, 321. 
 
 procedure against defaulting defendant after such reversal, 321. 
 
 judgment against all paid by one; set up in answer, 321. 
 
 one answers, one demurs; plaintiff succeeds against both, 321. 
 
 <ODE OF PllOCEDURE, 
 
 attorney's lien under, 20. 
 
 COLLECTION OF COSTS. 
 
 by execution against property, 415. 
 
 by execution against the person, 418. 
 
 by discharge in bankruptcy, 415. 
 
 by supplementary proceedings. 415. 
 
 long delay in amending interlocutory decree awarding costs, 415. 
 
 ■correcting erroneous taxation and collection on application of third 
 
 parties, 415. 
 attaching creditor's costs, reduced on application of subsequent attach- 
 ing creditor, 415. 
 service of papers in such proceedings, 415. 
 
 collection of motion costs; by execution against personal property, 416. 
 arising after death of one defendant ; execution entitled same 
 
 as motion, 416. 
 time before execution can issue. 4l(i. 
 in special proceedings, 416. 
 
 awarded in appellate division, supplementary proceedings on, 
 416. 
 against municipality, maintaining inandamus after direction to pay, 
 
 417. 
 collateral attack on costs awarded according to statute, 417. 
 in actions by connnissioners of land office, 419. 
 COSTS 36.
 
 563 INDEX. 
 
 (References are to sections.) 
 COMMISSIONER IN PARTITION, 
 
 amount of fees of, 46. 
 
 liability of attorney for fees of, 46. 
 
 COMMISSIONERS OF LAND OFFICE, 
 payment of costs in actions by, 419. 
 
 COMMON COUNCIL, 
 
 action to restrain making of illegal contract; costs, 335. 
 
 COlVtMON LAW, 
 costs at, 2. 
 attorney's lien under, 20. 
 
 COMPLAINT, 
 
 formal amendment of, before trial, 49, a. 
 
 substantial amendment before trial, 49, a. 
 
 formal amendment at trial, 49, b. 
 
 substantial amendment at trial, 49, b. 
 
 substantial .imendment at special term. 49, b. 
 
 terms on amendment, by whom determined, 49, b. 
 
 amendment, after withdrawal of juror, 49, b. 
 
 amendment increasing damages, after judgment. 49, c. 
 
 amendment changing issues after appeal, 49, d. 
 
 amendment of, of poor person, 49, d. 
 
 amendment of, defendant a public officer, 49, d. 
 
 amendment of; answer also amended, 49, d. 
 
 amendment of, changing from harboring son, to wages, 49, d. 
 
 dismissal of; neglect to prosecute, 52. 
 
 CONDEMNATION PROCEEDINGS, 
 by what statute governed, 150. a. 
 proceedings under special act, 150, a. 
 
 discretion of court as to amount of costs, and parties, 150, a, 
 additional allowances under § 3240, 150, a. 
 
 defendant's costs on preliminary hearing under general law, 150, a. 
 plaintiff's costs under general law, 150, a. 
 "costs of trial," meaning of, 150, a. 
 hearing before commissioners, as a trial, 150, a. 
 partners defending separately and unsuccessfully, 150. a. 
 plaintiff recovering "costs of trial." effect on other costs, 150, a. 
 offer of judgment, effect on costs, 150, a. 
 
 necessity of offer of judgment; defendant unable to convey, 150, a. 
 lack of allegation and proof of offer of judgment, 150. a. 
 several parcels of land, one petition, evidence taken only in one, 150. st.
 
 INDEX. 563 
 
 (References are to sections.) 
 CONDEMNATION PROCEEDINGS— ( continued) . 
 "costs of trial" include what, 150, a. 
 "costs of trial," right to, 150, a. 
 "costs of trial," taxed by whom, 150, a. 
 additional allowance; tipou what based, 150, b. 
 
 as a punishment, 150, b. 
 
 as dependent upon service of answer, 150, b. 
 
 as dependent on matter being difficult and extraordinary, 
 150, b. 
 
 for what granted, 150, b. 
 
 as limited by § 3254, 150, b. 
 
 granted against the United States, 150, b. 
 
 how reviewed, 150, c. 
 right of attorneys to be paid out of the fund, 150, d. 
 abandonment of proceedings, terms of, 150, d. 
 what are the costs and expenses upon abandonment, 150, d. 
 in villages; governed by what law, 157. 
 
 from what time costs are a matter of right, 157. 
 
 allowance of costs upon appointment of commissioners, 157. 
 
 CONFESSION OF JUDGMENT, 
 costs on, 224, a. 
 
 CONSOLIDATION OF TAVO OR MORE ACTIONS, 
 
 taxing in final judgment, costs of actions consolidated, 323. 
 order of consolidation silent as to accrued costs, 323. 
 costs on settlement of, 323. 
 costs of motion for consolidation, 323. 
 
 CONSTITUTIONAL LAW, 
 
 changing statute as to costs, as ex post facto law, 5. 
 
 CONSTRUCTION OF WILL, 
 
 costs, discretion as to, 130, a. 
 
 to whom costs can be allowed, 130, a. 
 
 to defendant, who is defeated, 130, a. 
 
 what principle govei'ns the allowance of costs, 130, b. 
 
 avowed intention of the testator thwarted, 130, b. 
 
 defendant defeated at trial, appellate division, and court of appeals, 
 
 130, b. 
 additional allowance; inherent power of court to allow to trustees, 
 130, c. 
 reviewed by tlie court of appeals, 130, c. 
 under § 3252, 130, c.
 
 564 INDEX. 
 
 (References are to sections.) 
 CONSTRUCTION OF WILL— (continued), 
 to all parties, under § 3253, 130, c. 
 limit under Code, previous to 1870, 130, e. 
 limit of allowance under the present Code. l.'iO. c. 
 review of discretion, by court of appeals, 130, d. 
 payable out of what fund, 130, e. 
 by whom payable, entire estate affected, 130, e. 
 by whom pajable, portion of estate aflfected, 130, e. 
 costs and allowances to guardian ad litem, by whom payable, 130, e. 
 payable to successful defendants, 130, e. 
 payable by successful defendants, 130, e. 
 payable by whom; action unnecessary, 130, e. 
 
 CONTEMPT PROCEEDINCS, 
 
 warrant of attachment in, lien of attorney on, 16. 
 costs in, governed by what statute, 162, a. 
 costs when party acted in good faith, 162, a. 
 costs in criminal contempt, 162, a. 
 amount of fine in, 162, a. 
 how amount of fine is determined, 162. a. 
 
 in supplementary proceedings; amount of fine imposed upon judg- 
 ment debtor, 162, b. 
 
 costs on refusal to adjudge debtor in contempt, 162. b. 
 costs on reversal of order of commitment, 162, b. 
 collection of costs by; enforcing repayment of motion costs by, 419. 
 
 motion by substituted attorney against former attorney, not 
 
 disclosing register entries, 419. 
 fine imposed upon trustee disobeying instruction, including 
 
 counsel fees, 419. 
 surrogate enforcing pajmient of costs only, 419. 
 surrogate enforcing payment of sum of money and costs, 419. 
 in divorce action, 419. 
 Btate writs; final order, proceedings instituted by state writ, 419. 
 peremptory mandamus issued after alternative writ, 419. 
 instituted before Avhom, 419. 
 discretion of court in issuing, 419. 
 
 discretion of court, considering ability of defeated party, 419. 
 order directing that precept issue, must contain what, 419. 
 service of this order upon the attorney, 419. 
 
 CONTRACTS, 
 
 impairing obligation of, by changing rate of costs, pending action. 5. 
 
 CONVERSION, 
 
 costs of defendant collected by e.^ecution against llie person. 41 S.
 
 iNUKX. 565 
 
 (Refereuces are lo seclions.) 
 CONVERSIOX— ( continued ) . 
 
 costs Avlieii lecoveiy is less tlian $50, ]0J, j. 
 
 cJient bringing action for. instead of proceeding under § 66, 41. 
 
 client bringing action for, necessity of claiming attorney's lien, 12. 
 
 necessity of tender to attorney in such action, 41. 
 
 necessity of payment to attornej^ in such action for services, 41. 
 
 lien as a counterclaim in such an action, 41. 
 
 lien as a defense in such an action, 41. 
 
 value of services as a defense in such an action, 41. 
 
 against warehouseman, 335. 
 
 "COSTS OF FORMER TRIAL," 
 what are, 81. 
 
 "COSTS TO ABIDE EVENT," 
 
 effect of discontinuance upon. (15. 
 
 COUNSEL, 
 
 liability of attorney for fees of, 46. 
 
 lien of, for services, 10. 
 
 lien of. for agreed share of contingent fee, 10. 
 
 loss of lien, by negligence of attorney, 10, 24. 
 
 bound by determination that attorney has lost lien. 25. 
 
 proof of, when claiming share of contingent fee, 37. 
 
 COUNTY. 
 
 proceedings to investigate afl'airs of, 155. 
 reimbursement by. of private person for expenses. 155. 
 necessity of authorization by attorney general, 155. 
 remedy when supervisors refu.se to audit claim, 155. 
 
 COURT MARTIAL, 
 
 reversal of judgment of, lack of jurisdiction, costs. 133. 
 constable collecting fines of, entitled to treble costs, 133. 
 
 COURT, POWER OF, 
 
 over attorneys, 40, a. 
 
 New York city court, over attorneys, 40, a. 
 
 Marine court, over attorneys, 40, a. 
 
 to examine facts in proceedings instituted under § 66, 40, b. 
 
 to impose condition on discontinuance, 66. 
 
 to dismiss complaint, nonpayment of costs on adjournment, 72. 
 
 to order judgment to be entered nunc pro tunc, 7, a. 
 
 over amount of costs in action in erjuity, 7, b. 
 
 over costs in actions at law, 7. a.
 
 566 INDKX. 
 
 (References are to sections.) 
 COURT, POWER OF— (continued). 
 
 to stay proceedings for nonpayment of costs, 361. 
 
 to protect attorneys who have no lien, 26. 
 
 to distribute money in sheriff's liands, 27. 
 
 to see that its otFicers are paid before transferring fund. 27. 
 
 to control substitution of attorneys, 22, b. 
 
 to review order of substitution of attorneys, 22, d. 
 
 discretion of, on motion for ncAV trial, 86. 
 
 CRIMINAL ACTIONS, 
 
 counsel assigned to defend capital crime; power of court to order pay- 
 ment to assigned counsel, 140. 
 
 coimsel assigned to defend capital crime, allowance to, 140. 
 
 time of assignment of such counsel, 140. 
 
 suggestion of attorney or prisoner upon assignment., 140. 
 
 more than one counsel, amount of allowance, 140. 
 
 allowance in excess of statute, 140. 
 
 remedy when allowance is in excess of statute, 140. 
 
 allowance, two persons jointly indicted; separate trials, 140. 
 
 allowance on commission to determine sanity of prisoner, 140. 
 
 what are personal and incidental expenses, 141. 
 
 fees of expert witness as personal expenses, 141. 
 
 daily transcript of evidence as personal expenses, 141. 
 
 expense of interviewing witnesses and taking their statements, 141. 
 
 expense of interpreter, as personal expenses, 141. 
 
 allowance on appeal, 142. 
 allowance to counsel appointed to aid the district attorney, 143. 
 certiorari to attorney who presents no certificate, 143. 
 liability of complainant for warrant, for costs of contempt proceedings 
 
 arising thereon, 144. 
 liability for malicious criminal prosecution, 144. 
 constitutionality of law compelling prisoner to pay costs, 144. 
 
 CRIMINAL CONVERSATION, 
 
 amount of costs as determined by the amount of the verdict, 103, a. 
 
 CRIMINAL PROSECUTION, 
 
 lien of attorney on papers in. 16. 
 
 D. 
 
 DAMAGES, 
 
 amending as to amount asked, after judgment; terms. 49, c.
 
 INDEX. 567 
 
 (References are to sections.) 
 DEATH, 
 
 amount of cost, in action for na using, 103, e. 
 
 DEED DECLARED A MORTGAGE, 
 
 when defendant is unsuccessful, 123. 
 
 husband claims property, and wife claims dower; costs, 123. 
 
 DEFAULT, 
 
 taxing costs at time of, 5. 
 
 in pleadings; opening, terms, general rule, 56, a. 
 
 sent to referee to ascertain facts, 56, a. 
 
 opening judgment, terms of, 56, a. 
 
 costs wiiicli cannot be charged against the defendant, 56, a. 
 
 moving case, instead of serving pleading, effect of, 56, a. 
 
 terms upon opening, to allow defendant to plead settlement, 56, a. 
 
 opening to allow reply; terms, 56, a. 
 ■opening judgment by; court seeking to discourage custom, 56, a. 
 opening judgment by; question as to good faith of attorney, 56, a. 
 ■default taken at the trial ; both parties answered ready, 56, b. 
 default taken at the trial ; attorney engaged in another court, 56, b. 
 payment of costs of previous unsuccessful efforts to open, 56, b. 
 within what time costs must be paid, 56, b. 
 •discretion to compel payment of previous motions, costs, 56, b. 
 reduction on appeal of terms of opening, 56, b. 
 default taken; case on day calendar; terms of opening, 56, b. 
 default taken; codefendant said case would be settled, 56, b. 
 on reference, opened, terms, 56, b. 
 neither party at fault, terms, 56, b. 
 
 opened by judgment creditor, after payment of judgment, 56, b. 
 refusal to accept costs when tendered; how collected thereafter, 56, e. 
 terms "costs to abide event;" when collectible, 56, d. 
 judgment irregularly entered, costs to moving party, 56, e. 
 when pleadings have been treated as a nulLty, 56, e. 
 on appeal, terms, 56, f. 
 
 DEFINITION OF COSTS, 1. 
 
 DEMURRER, 
 
 change of statute as to costs, after argument of, 6. 
 absolute right to costs, in action at law, 89. 
 issue of fact undisposed of, in action at law, 89, 90. 
 insufliciency of complaint raised at trial, 89.
 
 568 iNDKX. 
 
 (References are to sections.) 
 DEMURRER— ( continued ) . 
 
 amount of costs; issue of fact undisposed of, 90. 
 
 collection of costs on; issue of fact undisposed of, 90. 
 
 right to costs of, dependent upon issue of fact, 90. 
 
 when botli parties are successful, 91. 
 
 successful defendants appearing separately, 92. 
 
 unsuccessful defendants appearing separately, 5)2. 
 
 final judgment entered on, amount of costs, 93. 
 
 interlocutory judgment entered on, amount of costs, 93. 
 
 special rule, New York city court, several defenses, 93. '' 
 
 frivolous, judgment on, costs, 94. 
 
 application for judgment on frivolous, decision on merits; costs, 94. 
 
 "costs to aliide event," successful party finally defeated, 95. 
 
 defendant's denuirrer overruled, plaintiff has teclmical cause of action-. 
 95. 
 
 1 iglit to obviate defects pointed out by, 9G. 
 
 riglit to serve amended pleading after decision of. 9G. 
 
 terms usually imposed to allow service of amended pleading, 96. 
 
 overruled, privilege to plead over; additional allowance, 281. 
 
 overruled by appellate court, privilege to plead: additional allowance,. 
 
 281. 
 additional allowance upon final decision of, 281. 
 additional allowance on final judgment, privilege to plead not ac 
 
 cepted, 281. 
 additional allowance upon frivolous, 281. 
 
 interlocutory judgment as bar to additional allowance wlien privilege- 
 to plead is not accepted, 281. 
 interposed for lack of jurisdiction; additional allowance, 281. 
 some defendants demur, some answer; additional allowance, 281. 
 necessity of notice in such case, 281. 
 
 obtaining additional allowance, after permission to plead on terms, 96. 
 appellate court allows such application to be made to trial court, 96. 
 judgment to be entered upon decision of, 07. 
 final judgment, when demurrer is to all issues, 97. 
 interlocutory judgment, when demurrer is to part of the issues, 97.. 
 appeal from decision without stay; entry of final judgment, 97. 
 leave to plead over not given; judgment to be entered, 98. 
 leave to plead over not accepted ; judgment to be entered, 98. 
 final judgment after entry of interlocutory judgment, 98. 
 costs on, by whom taxed, 99. 
 
 D1SBAR]\IENT PROCEEDINGS, 
 lien of attorney in, 15.
 
 ]]\i»KX. 569 
 
 f Keffi-cnces are to sections.) 
 DISBURSEMENTS, 
 
 statute govorning, 400. 
 
 necessity of recovering costs to tax. 400. 
 
 at wliat time alloweil in the action. 400. 
 
 specification in bill of costs, 400. 
 
 amount of, when amount of costs are limited, 400. 
 
 amoimt paid surety for bond in replevin as, 400. 
 
 necessity of opposing affidavit, item clearly illegal, 400. 
 
 fee of printer for publishing, summons, order, or citation, 412. 
 
 fee for serving summons, 400. 
 
 fee for administering oath. 402. 
 
 cliarge for serving unnecessary defendants; objection, how taken, 400. 
 
 mortgage foreclosure; nothing to show that defendants were partners, 
 
 400. 
 abstract of title, taxability of, 401. 
 abstract of title made by county clerk, 401. 
 abstract of title made by title insurance, abstract, or searching com 
 
 panics, 401. 
 other unofficial abstracts, taxability of, 401. 
 when surveyor's fees are taxable, 401. 
 amount of surveyor's fees, 401. 
 
 fees of county treasurer for receiving money, as. 401. 
 amount of fees of clerk. 402. 
 right of clerk to demand fees in advance, 402. 
 amount of fees of clerk of court of appeals, 402. 
 effect of not demanding fees in advance, 402. 
 right to refuse to perform duty till paid for other services, 402. 
 trial fee under old Code, 402. 
 trial fee under present Code, 402. 
 for witness, see Witness. 
 for printing, see Printing. 
 
 on assessn>ent of damages, after judgment absolute, 406, c. 
 included in costs, 3. 
 when amount of costs is limited, 3. 
 on motion, for printing and fees of referees. 7, a. 
 
 DISCONTINUANCE, 
 
 right of party to, 57. 
 
 when substantial rights have accrued, 57. 
 
 when injustice will be done, 57. 
 
 order for, obtained ex parte, 57. 
 
 opening of order for, obtained ex parte, 57. 
 
 actions at law and in equity, 57.
 
 570 INDEX. 
 
 (References are to sections.) 
 DISCONTINUANCE— (continued) . 
 
 when counterclaim would be barred by statute, 57. 
 
 when action was brought for benefit of others, 57. 
 
 after examination of witnesses, 57. 
 
 in ejectment, plaintiff in possession, 57. 
 
 after failure to plead statute of limitations, 57. 
 
 when counterclaim is set up, 57. 
 
 when public have interest in action, 57. 
 
 in divorce action, 57. 
 
 in action to open or close a highway, 57. 
 
 terms when defendant has not appeared, 57. 
 
 when action is discontinued, entiy of order, 57. 
 
 defendant ordered to pay costs to a codefendant, 57. 
 
 discretion of court as to costs, in actions at law, 57. 
 
 excuse for; terms when excuse is satisfactory, 58. 
 
 when defendant has obtained release of claim, 58. 
 
 when defendant is discharged under insolvent laws, 58, 
 
 when defendant is discliarged in bankruptcy, 58. 
 
 by infant, guardian unable to give security, 58. 
 
 action for penalties, statute repealed, 58. 
 
 when defendant is an infant, 58. 
 
 action for nuisance, abated in part, 58. 
 
 action against person with same name as defendant, 58, 
 
 mistake as to members of defendants' firm, 58. 
 
 wrong action by executor, 58. 
 
 action against a trustee who has resigned, 58. 
 
 mistake as to effect of stipulation, 58. 
 
 poverty of plaintiff, 58. 
 
 removal of action to different court, 58. 
 
 court on appeal has declared law against plaintiff, 53. 
 
 plaintiff has sold cause of action, 58. 
 suing in forma pauperis, terms on, 58. 
 as to one defendant, by amendment, 58. 
 order on; ex parte, no counterclaim, or aflTirmative relief, 59, 
 
 time to reply to counterclaim, not expired, 59. 
 
 right of defendant to enter, 59. 
 amount of costs on; to formal party, 58. 
 
 two defendants, two answers necessary, 60. 
 
 two actions, one unnecessary, 60. 
 
 one action awaiting result of another, 60. 
 
 needless appearance by separate attorneys, 60. 
 
 two attorneys, one bill of costs, 60. 
 
 separate attorneys for city and common council, 60.
 
 INDEX. 571 
 
 (References are to sections.) 
 DISCON TINUANCE— ( continued ) . 
 
 defendants' interests demand separate attorneys, 60. 
 
 effect of order on accrued costs, 08. 
 
 notice of no personal claim, not served, 61. 
 
 after reversal, "costs to abide event," 65. 
 
 allovi'ance of motion costa, 01. 
 
 incurred after granting and before service of order, 63. 
 
 trial fee, case on the day calendar, 62. 
 
 where defendant moved for dismissal when case was reached, 62. 
 
 trial fee; defendant's attorney takes default after settlement, 62. 
 
 granting plaintiff motion costs on application, 68. 
 right of one defendant to refuse to accept, 61. 
 in actions in equity, 63. 
 where referee refuses to decide, 03. 
 by executor, upon revocation of letters, 63. 
 when representatives of plaintiff will not proceed, 63. 
 setting aside order of, to correct disbursements, 63. 
 in partition action, defendant made party at his request, 03. 
 unnecessary appearance by defendant, 63. 
 when injunction has been granted, 64. 
 when receiver has been appointed, 64. 
 additional allowance; action difficult and extraordinary, G6. 
 
 determination by facts at time of discontinuance, 66. 
 
 power of court; defendant makes no application for, 06. 
 
 when plaintiff obtains ex parte order, 66. 
 stipulation not to bring another action, as condition of, 66. 
 of special proceedings; terms; discretion of court, 07. 
 refusal of plaintiff to accept terms, 68. 
 
 protection of attorney on; power of court to refuse, till costs are paid 
 attorney, 69. 
 
 contingent fee; payment of, as condition of, 69. 
 
 payment of costs and additional allowance, 69. 
 
 serving answer with knowledge of settlement, 69. 
 order; judgment to be entered on, 70. 
 
 duty of defendant to have costs taxed, 70. 
 
 entry of, without payment of costs, 70. 
 
 right of defendant, or respondent; costs not paid, 70. 
 right of defendant to enter order and tax costs, 70. 
 necessity of taxation, when costs are understood, 70. 
 
 DISCOVERY AND INSPECTION, MOTION FOE, 
 usual rule as to costs, 54. 
 unreasonable refusal to exhibit; costs, 48, e, 4, 54.
 
 572 jA'iiKx. 
 
 (References are to sections.) 
 DISCOVERY OF DEATH OF TENANT FOR LIFE, 171, a. 
 
 DISCliETIONARY COSTS, 
 in what action s, 105. 
 ill what conrts, JOG. 
 power of court of appeals over. 105. 
 reviewed, when and how, 100. 
 power of appelhile division over, 100. 
 review by appellate court; general rule, 107. 
 one of the issues before the appellate court, 107. 
 refused below, allowed by appellate division, 107. 
 granted below, stricken out by appellate division, 107. 
 appellate division changing costs of trial court, review by court of 
 
 appeals, 107. 
 power of trial court upon reinittitiii, 107. 
 costs in trial court; general rule, 107. 
 right to appeal from denial of costs. 107. 
 decided on reasonable basis, review of, 107. 
 necessity of designating p;irty entitled to costs. 107. 
 action tried by referee; costs, by whom awarded. 108. 
 failure of referee to award costs, 108. 
 judgment on report of referee should contain. 108. 
 discretion of referee, how reviewed, 108. 
 discretion of referee, used unwisely, 108. 
 when discretion of referee will be reversed, 108. 
 referee failing to pass on question of costs; remedy. lOS. 
 referee ordering each party to pay part, 108. 
 
 one party successful on appeal, both succeeding on «( \\ trial, 103. 
 referee ordered to pass on question de novo, 108. 
 review of such order by the court of appeals, 108. 
 action tried by court; necessity of awarding costs. 100. 
 failure of court to pass on; remedy, 100. 
 appellate division striking otit costs improiierly taxed, sending case 
 
 back to trial court to pass on, 109. 
 meaning of silence a-s to, 109. 
 
 awarded in interlocutory jtidgment, changed in final. 109. 
 part of issues tried by jury, part by court, 110. 
 subject-matter ceasing to exist before trial. 111. 
 attittide of court toward litigation for costs, 111. 
 court examining merits after settlement, to determine costs, 111. 
 account paid, after action for accounting brought. 111. 
 complaint dismissed, by reason of events occurring since serving. 111. 
 when parties agree that question be settled in another proceeding. 111.
 
 INltEX. 67J^> 
 
 (References are to sections.) 
 DISC [lETlONARY COSTS— ( continued ) . 
 
 effect of defendant making offer in pleading, 112. 
 
 where plaintiff succeeds in part; no offer in answer. 112. 
 
 defendant compelled to defend to obtain rights, 11.3. 
 
 two causes of action, both parties succeed, 113. 
 
 plaintiff partly successful on trial, defendant on appeal, 113. 
 
 what pleading determines that action is in equity, 114. 
 
 defendant sets up counterclaim, becomes insolvent; plaintiff does not 
 
 prove his cause, defendant fails in his, 114. 
 out of fund, to unsuccessful administrator, 114. 
 several actions, one sufficient, 115. 
 contribution of costs among \vroiigiloers. IKJ. 
 liability of city for act of annexed village. 117. 
 novel question, law unsettled, 118. 
 
 advances of luisband made lien on wife's property. 118. 
 correction of will sig-ned by mistake, 118. 
 
 DISCRETION OF COURT. 
 
 as to costs on appeal. 7. a. 
 
 as to costs in equity, 7, b. 
 
 as to entertaining pr'oeoediiig to <letermiiie attorney's lien, 40, a. 
 
 entertaining proceedings, pending action, 40, f. 
 
 as to costs on motion, 7. a. 48. c 
 
 how exercised on motion, 48, c. 
 
 usage of courts on motion. 48, c. 
 
 justice of ease, on motion. 48. c. 
 
 as to allowing amendments, 49, a. 
 
 as to terms upon opening default, ."jfi. b. 
 
 as to terms on discontinuance, 57, 58. 
 
 on discontinuance, how reviewed, 58. 
 
 requiring security from executors., 259. 
 
 requiring security of receivers, 260, 261, a. 
 
 in staying second action till costs of first are paid, 362. 
 
 terms for new trial, wiiat discretion courts have as to, 86, 
 
 DISMISSAL OF COMPLAINT, 
 
 neglect to prosecute, co.sts on, 52. 
 infant without guardian ; costs, 52. 
 failure to serve all defendants. 52. 
 
 DIVORCE. See Matrimonial Actions. 
 
 DOCUM ENTARY EVIDl^^NCE, 
 
 expense of obtaining exemplified copies, foreign documents. 409.
 
 574 INDEX. 
 
 (References are to seclions.) 
 DOUBLE COSTS. See Increased Costs. 
 
 DOWER, 
 
 action for, amount of costs, 101, e. 
 
 effect of failure of referee to award costs, 101, e. 
 
 E. 
 
 EASEMENTS, DAMAGES TO. See Trespass. 
 
 EJECTMENT, 
 
 landlord defending for tenant, liability for costs, 359. 
 
 grantee bringing in name of grantor, 348. 
 
 grantor defending for grantee, liability for costs, 3.59. 
 
 mortgagee defending for mortgagor, liability for costs, 359. 
 
 discontinuance of, when plaintiff is in possession. 57. 
 
 location of division line, 101, b. 
 
 two parcels of land, each party successful, 101, b. 
 
 action by grantee, evicted by paramount title, 101, b. 
 
 per-manent improvements, attorney's lien on, 16. 
 
 ELEVATED RAILEOAD, 
 
 condemning right of way, general rule as to costs. 151, b. 
 
 EQUITABLE ASSIGNEE, 
 when attorney is, 17. 
 
 right to enter judgment or order: client dead, 17. 
 right to issue execution; client dead. 17. 
 
 EQUITY, 
 
 costs in, see also Discretionary Costs. 
 
 general rule as to allowance of costs, creditor recovers, 126. 
 
 in discretion of court, 7, b. 
 
 for money damages, recoveiy less than .$50, 104. f. 
 
 inherent power of court to award costs, 4. 
 
 power of court to award, derived from statute, 4. 
 
 double costs in, 132, d. 
 
 ■when neither party succeeds fully, 7. a. 
 
 when question is novel, 7, a. 
 
 when law is unsettled, 7, a. 
 
 discretion of court; money damages demanded, 7, b. 
 
 power of court as to amount of costs. 7, b. 
 
 motion costs in, discretion of court, 7, a. 
 
 EVIDENCE, 
 
 on proceedings as to attorney's lion. 40, b.
 
 INDEX. 675 
 
 (References arc to sections.) 
 EVIDENCE— ( continued ) . 
 
 as to value of services, attorney's lien, 40, g, 
 
 as to necessity of services, attorney's lien, 40, g. 
 
 competent, against client, attorney's lien, 40, g. 
 
 items of services and disbursonents, attorney's lien, 40, g. 
 
 EXAMINATION OF PARTY BEFORE TRIAL, 
 
 two parties; same attorney obtains two orders; one examination, 410. 
 
 EJXCEPTIONS, 
 
 heard at appellate division in first instance, 391, g. 
 
 appeal from order denying new trial, heard same time, 391, g. 
 
 EXECUTION AGAINST PROPERTY, 
 to collect costs, 415. 
 to collect motion costs, 415. 
 right of attorney to issue; client dead, 17. 
 issued by attorney after settlement, 19, a. 
 returned unsatisfied; proof of insolvency of client, 28. 
 
 EXECUTION AGAINST THE PERSON, 
 
 enforcement of attorney's lien by, 16, 31. 
 
 action to set aside instrument for fraud, collection of costs by, 418. 
 
 right of defendant to collect costs by; in conversion, 418. 
 
 in negligence action, 418. 
 
 action in tort; judgment for plaintitl', not carrying costs, 418. 
 
 winning on a technicality, 418. 
 
 where plaintifi' is a woman, 418. 
 
 Bet aside on motion, which is reversed; virtue of execution, 418. 
 
 right of judgment creditor to a new process in such case, 418. 
 
 EXECUTORS, 
 
 security for costs, see Secukity for Costs. 
 
 application of exemption as to costs, 174. a. 
 
 right of, to costs, when denied plaintiff, 174, a. 
 
 liability of, for services of attorney, 174, a. 
 
 on probate of will, 185. 
 
 when will makes such costs a charge on the estate, 185. 
 
 receiving pay for his own services as attorney, 185. 
 
 costs to, probate refused, 185. 
 
 action by attorney for services rendered an executor, 174, a. 
 
 in action against, for personal liability, 174, a. 
 
 on contract made by direction of will, 174, a. 
 
 cause of action arose before death of testator, 174, a. 
 
 cause of action arose after death of testator, 174, a.
 
 576 INDEX. 
 
 (Ueforencps are to sections.) 
 EXECUTORS— ( continued ) . 
 
 effect of bringing sucli action as executor, 174, a. 
 
 applicability of cases decided under the Revised Statutes, 174, a. 
 
 applicability of cases decided under the Code of Procedure, 174, a. 
 
 conversion after death of testator and before letters, 174, a. 
 
 contract made by executor, 174, a. 
 
 allowance upon accounting for costs, paid personally, 174, a. 
 
 allowance upon final accounting, for services of attorney, 174. a. 
 
 ownership of costs awarded to, 174, a. 
 
 right of defendant to costs; action in personal capacity, 174, a. 
 
 necessity of application to court for such costs, 174, a. 
 
 liability for costs; action in representative capacity, 174, a. 
 
 mismanagement; loss occasioned by unauthorized investment, 174, b. 
 
 loss occasioned by misappropriation, 174, b. 
 
 liability of executor's real estate for such costs, 174, 1). 
 
 right of executor, after judgment against deceased, 174, b. 
 
 seeking to retain property of estate, 174, b. 
 
 unsuccessful action for personal benefit. 174, b. 
 
 unsuccessful defense of .statute of fravuls, 174, b. 
 
 im successful action to recover property of estate, 174. b. 
 piocedure to charge executor personally; application to court on notice, 
 174, c. 
 
 motion not heard by trial judge; certificate, 174, c. 
 
 power of appellate court, question not raised below. 174, c. 
 
 entry of judgment after court has refused, 174, c. 
 
 remedy when all facts were not before the court, 174, c. 
 
 collateral attack on decision. 174, c. 
 
 effect of charging costs "as executor," 174, c. 
 
 power of special term, after appellate court has passed on ques- 
 tion, 174, c. 
 
 wliere decided how costs of appeal shall be paid, 174, c. 
 
 effect of executor being benefited by action, 174, c. 
 when costs are allowed against executor in his representative capacity; 
 when he is plaintiff, and fails, 174, d. 
 
 judgment to be entered thereon, 174, d. 
 
 imsuccessful appeal by executor, 174, d. 
 
 successful appeal by executor, 174, d. 
 
 exemption as to costs exists up to wliat time. 174, d. 
 
 entitled to one lawful trial, 174, d. 
 
 necessity of application to court for costs, 174, d. 
 
 from what costs are collected, 174, d. 
 
 presumption that executor has funds, 174, d.
 
 INDEX. 57T 
 
 (References are to sections.) 
 
 ICKECUTORS— ( continued ) . 
 
 defendant qualifying as executor, after action commenced, 174, c. 
 
 surrogate allowing execution for costs, 174, d. 
 costs upon disputed claims; power of referee over, previous to 1893, 
 174, e. 
 
 power of referee over, since amendment in 1893, 174, e. 
 
 necessity of certificate of judge or referee, 174, e. 
 
 evidence on, and results of trial; effect of, 174, e. 
 
 what tlie certificate must contain, 174, e. 
 
 report for plaintiff "with usual costs," as certificate, 174, e. 
 
 right to disbursements, costs refused, 174, e, h. 
 
 necessity of application for, 174, e. 
 
 what the application should contain, 174, e. 
 
 right of defendant to be heard thereon, 174, e. 
 
 etYect of taxing costs without certificate, 174, e. 
 
 court correcting judgment, on motion to strike out, 174, e. 
 
 Avaiver of irregularity; nonappearance on taxation, 174, e. 
 
 costs on appeal from refusal to strike out costs, 174, e. 
 
 appeal from judgment, without motion to strike out, 174, e. 
 
 review of discretion of trial judge, 174, e. 
 equity action tried before referee; costs allowed by whom, 174, f. 
 
 how discretion of referee is reviewed, 174, f. 
 
 power of special term to review discretion, 174, f, 
 action against testator continued by executor, 174, g. 
 right of plaintiff to costs in such a case, 174, g. 
 application of §§ 1835 and 1836, 174, g. 
 what costs and disbursements allowed, 174, h, 
 additional allowances, 174, h, 
 presentation of claims to executor; necessity, action at law, 174, i. 
 
 necessity, action in equity, 174, i. 
 
 necessity of; contingent claim, 174, i. 
 
 before advertising for claims, 174, i. 
 
 v\hen executor never advertises, 174, i. 
 
 unduly resisting claim not presented, 174, i. 
 
 identity of claim presented and recovered on, 174, i. 
 
 identity of claim for services, and compensation by will, 174, i. 
 
 costs given plaintiff as res judicata on presentation, 174, i. 
 
 disputed, what affidavits should contain, 174, i. 
 
 necessity that claim be in writing, 174, i. 
 
 necessity that claim be verified, 174, i. 
 
 absolute rejection of unverified claim, 174, i. 
 
 presenting claim of which executor has knowledge, 174, i. 
 
 to whom claim must be presented, 174, j. 
 COSTS 37.
 
 578 INDEX. 
 
 (Keferenoes are to sections.) 
 EXECUTORS— (continued) . 
 
 presentation to one of two executors, 174, j. 
 
 presentation to executor substituted as defendant, 174, j. 
 
 protection to executor by publishing, 174, k. 
 
 where creditor does not know of publication, 174, k. 
 
 liability of executor not publishing, 174, k. 
 when claim is reasonably resisted; right to consider matter before- 
 acting, 174, 1. 
 
 resisting claim nearly barred by statute, 174, 1. 
 
 presenting larger claim to executor than to testator, 174, 1. 
 
 $5,000 for nursing, 174, 1. 
 
 estate of referee in partition, money not distributed, 174, 1. 
 
 winning on two trials, losing on third, 174, I. 
 
 recovery of same amount as claim presented, 174, 1. 
 
 liability as indorser, note maturing after death, 174, 1, 
 
 recovering nominal damages, 174, 1. 
 
 defense failing; unable to procure witnesses, 174, L 
 
 credit originally given to third person, 174, 1. 
 
 reducing interest from 10 to 6 per cent, 174, 1. 
 
 advice of counsel after partial payment, 174, L 
 
 reduction of amount claimed, 174, .m. 
 
 material reduction in amount claimed, 174, m. 
 
 reduction of claim for board, 174, m. 
 
 various instances of reduction in amount, 174, m. 
 refusal to refer, 174, n. 
 change of statute; refusal to refer, 174, n. 
 unreasonable resistance; costs on, 174, o. 
 
 proving, on trial of action, 174, o. 
 
 proving by matters outside of the action, 174, o. 
 
 bringing action within one year after letters, 174, o. 
 
 effect of failure to make inquiries, 174, o. 
 
 testator ordering payment in will, 174, o. 
 
 testator ordering payment; papers outside of will, 174, o. 
 
 will ordering care-takers to be well paid, 174, o. 
 
 unsuccessful objection, not promptly raised, 174, o. 
 
 unsuccessful objection as to amount of interest, 174, o. 
 
 small reduction of amount of claim, 174, o. 
 failure to file consent that claim be heard on settlement, 174, p. 
 beginning action within five months and twenty days after rejection,- 
 
 174, p. 
 statutory reference; right to settle question by, 174, q. 
 
 right of referee to pass on costs, 174, q. 
 
 reference is an action, 174, q.
 
 INDEX. 5*79 
 
 (References arc to sections.) 
 EXECUTORS— (continued) . 
 
 judgment to be entered thereon, 174, q. 
 
 discretion as to costs when executor wins, 174, q. 
 
 inotion to confirm referee's report, 174, q. 
 
 power of court; referee not passing on costs, 174, q. 
 
 necessity of certificate under §§ 1835, 1830, 174, q. 
 
 certificate given after report filed, 174, q. 
 
 right to disbursement, costs denied, 174, q. 
 
 additional allow'ance, 174, q. 
 
 by whom granted, 174, q. 
 
 when recovery is less than $50, 174, r. 
 
 justice's court has not jurisdiction, 174, r. 
 
 claim more than $50, recovery less, 174, r. 
 
 payment of costs, estate insolvent, 174, r. 
 costs on appeal; successful appeal by executor, 174, s. 
 
 unsuccessful appeal by executor, 174, s. 
 
 appeal by executor for his own benefit, 174, s. 
 
 losing on new trial after successful appeal, 174, s. 
 costs against, as a debt, 259. 
 
 sale of real estate to pay ; action commenced by testator, 259. 
 sale of real estate to pay; action by executor, 259. 
 payment from personal property, 259. 
 priority of payment of costs as compared with legacies, 2r)9. 
 
 EXEMPLIFICATION, 
 
 of foreign documents, expense of, 409. 
 
 EX PARTE, 
 
 motion costs of, 48, e, 5. 
 
 EX POST FACTO LAW, 
 
 statute changing riglits of parties to costs as, 5. 
 
 EXTRA ALLOWANCE. See Auditional Allowakce. 
 
 P. 
 
 FALSE IMPRISONMENT, 
 
 costs, as limited by amount of verdict, 103, a. 
 
 FAVOR, 
 
 terms and conditions upon granting, 48, h. 
 rights of party dissatisfied with terms of, 48, h. 
 costs of motion payable absolutely, 48, h. 
 costs of motion payable conditionally, 48, h.
 
 580 INDEX. 
 
 (References are to sections.) 
 FEE BILL, 
 
 abolished by Code, 3. 
 
 FIFTY DOLLARS, 
 
 costs when recovery is less than, 104, a. 
 
 when verdict reaches, by addition of interest to day of last trial, 391, d, 
 
 104, i. 
 addition of interest accruing after default, 104, j. 
 recovery of less than, on Lloyd insurance, 104, a. 
 recovery of less than, accounts exceed $400, 104, b. 
 recovery of less than, equity action for money damages, 104, f. 
 recovery reduced below, by counterclaims, 104, g. 
 plaintiff fails on cause of action, defendant on counterclaim, 104, g. 
 recovery reduced below, by agreed application, 104, g. 
 recovery of less than, action for money, united with foreclosure, not 
 
 sustained, 104, g. 
 recovery of less than, after judgment entered by order of court, 104, g. 
 recovery reduced below; payment after action commenced, 104, h, 
 recovery increased above, by addition of interest, 104, i. 
 offer of judgment "with costs," for less than, 104, j. 
 recovery of less than, breach of promise to marry, 10 1, j. 
 recovery of less than, conversion, 104, j, 
 recovery of less than, negligence, 104, j. 
 
 FINE, 
 
 imposed on trustee, not obeying instructions, costs. 419. 
 
 FINE OR PENALTY, 
 
 action for, by people; costs, as limited by amount of verdict, 103, a. 
 
 FORECLOSURE, 
 
 of attorney's lien, parties defendant, 32, d. 
 of attorney's lien, judgment in, 32, d. 
 
 FORECLOSURE OF CHATTEL MORTGAGE, 
 
 defendant unsuccessfully claiming portion of property, 122. 
 
 additional allowance in, 120, j. 
 
 action to redeem after default and before foreclosure, 120. 
 
 FORECLOSURE OF LAND CONTRACT. 
 
 general rule as to payment of costs out of fund, 121. 
 additional allowance under § 3252, 121. 
 
 FORECLOSURE OF liIORTGAGE, 
 
 by advertisement; what disbursements are taxable, 119. 
 amount of costs and disbursements, 119.
 
 INDEX. 581 
 
 (References are to sections.) 
 FORECLOSURE OF MORTGAGE— ( continued ) . 
 by action; discretion as to costs, 120, a. 
 both parties succeed in part, 120, a. 
 
 defendant appearing and demanding service of papers, 120, b. 
 assignor admitting assignment by answer, liability of, 120, c. 
 answer by wife unnecessarily made a party, 120, d. 
 answer by wife necessarily made a party, 120, d. 
 striking out ansAver alleging payment pending action, 120, e. 
 what report makes defendant personally liable, 120, f. 
 judgment without costs, awarding costs without notice on report 
 
 of referee as to prior liens, 120, f. 
 unnecessary foreclosure of first mortgage after cominoncement of 
 
 action on second, 120, g. 
 default in paying interest, caused by plaintitl', 120, g. 
 election that mortgage become due, nonpayment of interest, 120, g. 
 right of defendant to make offer of judgment, 120, li. 
 form of offer of judgment by defendant, 120, h. 
 application by defendant that action be discontinued, 120, h. 
 purchasing mortgage and paying costs under protest, 120, h. 
 commissions on assigning mortgage to defendant, 120, i. 
 additional allowance, limit of, 120, j. 
 
 additional allowance, mortgage on chattels and land, 120, j. 
 additional allowance, unreasonable defense, 120, j. 
 application for, on final judgment, 276. 
 application for, on reference to compute amount due, 276. 
 liability for costs of, assuming and agi'eeing to pay, 120, k. 
 dismissal of complaint upon pajnnent of sum due and costs, 222, c 
 staying judgment upon ;);iyment of sum due and costs, 222, c. 
 surplus proceedings; amotmt of costs and disbursemoiils, 120, 1. 
 surplus of first mortgage paying costs of .second, 120, 1. 
 cost of reference; paid out of fund, 120^ 1. 
 paid by unsuccessful claimant, 120, 1. 
 discretion in, how reviewed, 120, 1. 
 reasonable grounds for investigation, 120, 1. 
 widow had agreed to accept gross sum, 120, 1. 
 action to ubolisli easement, costs of subsequen'. liens, 120, 1, 
 allowance tor attorney to receiver of rents, 120, m. 
 liability of referee not following judgment, 120, n. 
 discretion of trial court, how reviewed, 120, p. 
 discretion of trial court reviewed by court of appeals, 120, q. 
 discretion of trial court unjust, law correct, review by court of ap- 
 peals, 120, q. 
 defect of parties raised by answer, obviated before trial, 120, q.
 
 582 INDEX. 
 
 (References are to sections.) 
 FORECLOSURE OF MORTGAGE— (continued), 
 allowance to special guardian, 120, q. 
 
 action to redeem from mortgagee; general rule as to costs, 120, o. 
 unsuccessful appeal by mortgagee, 120, o. 
 necessity of tender by mortgagor before action, 120, o. 
 payment of costs ineffectual as to mortgagor, 120, o. 
 successful plea of statute of limitations, 120, o. 
 
 FORMA PAUPERIS, ACTION BROUGHT IN, 
 lien of attorney in, 19, c. 
 
 terms on amendment of complaint after appeal, 49, d. 
 statute governing costs, 263. 
 
 who may apply for leave to sue as pauper; application by nonresident, 
 264, a. 
 
 nonresident applicant, stale demand, 264, a. 
 
 nonresident; cause arose in foreign state, 264, a. 
 
 right of infant to apply, 264, b. 
 
 application by infant, guardian responsible, 264, b. 
 
 application by infant, father, who is guardian, responsible, 264, b. 
 
 application by committee of lunatic, 264, c. 
 
 husband commencing separation action, 204, c. 
 
 wife commencing separation action, 264, c. 
 
 several plaintiffs, not all joining application, 2()4, c. 
 
 in what action guardian should apply, 264, b. 
 
 guardian defeated in one action, application in anotht-r, 264, b 
 who is a pauper; every person not having $100, as, 265. 
 
 necessity of showing inabilitj' to prosecute, 265. 
 
 denial of order; denial of protection of court, 265. 
 when application should be made; as regards commencement of action, 
 266. 
 
 by infant, appointment of guardian, 266. 
 
 loss of right by laches, 266, 268. 
 review of order on appeal, 266. 
 what the application should contain; when prosecuting as, statute, 267. 
 
 when defending as, statute, 267. 
 
 facts of action and poverty of petitioner, 267. 
 
 when by administrator, should show condition of estate, 267. 
 
 allegations on information and belief, no source of, 267. 
 
 proving merits and right to recover, 267. 
 
 use of answer as opposing affidavit, 267. 
 
 stating nature of action by reference to complaint, 267. 
 
 defendant moves for security, plaintiff to sue as, 267. 
 
 efl'eet of granting plaintiff's motion in such ease, 267.
 
 INDEX. 683 
 
 (References are to sections.) 
 3'ORjMA pauperis, ACTION BROUGHT IN— ( continued ) . 
 
 motion to vacate order for security, and for leave to sue as, 267. 
 
 power of judge to set aside order made by him, 207. 
 
 adverse decision in former action, 267. 
 right lost by laches; application one year after joinder of issue, 263. 
 
 case referred and noticed for trial, 268. 
 
 guardian ordered to give security; trial commenced, 268. 
 
 neglect to serve copy of order after obtained, 268. 
 <Josts on appeal by person tiius suing, 268. 
 
 .attorney; designation and duties; order should contain name of 
 attorney, 269. 
 
 also provision that attorney is to have no compensation, 269. 
 
 assigning attorney making application, 269. 
 
 agreement for contingent fee, effect of, 269. 
 
 right of attorney to costs recovered, 269. 
 
 attorney retaining more than costs, 269. 
 
 recovery of judgment, not carrying costs, 269. 
 
 agreement before application, to conduct action gratis, 269. 
 liability for costs of former action, 270. 
 liability for costs of action accruing before application, 270. 
 stay for nonpayment of such costs, 270. 
 effect of granting permission to sue as, 271. 
 opening default after permission granted, 272. 
 terms imposed upon granting a favor, 273. 
 terms upon amending complaint after reversal, 273. 
 discontinuance after permission granted to sue as, 273. 
 costs upon setting aside irregular proceedings, 273. 
 costs upon striking out scandalous and impertinent matter, 273. 
 
 FORMER TRIAL, 
 
 right to tax costs of, 406, f. 
 
 correction of irregularity in taxing costs of, 406, f. 
 
 J'ORMS, 
 
 respondent's costs on appeal from justice's judgment; new trial not 
 
 had, 420, a. 
 appellant's costs on appeal from justice's judgment upon reversal; new 
 
 trial not had, 420, b. 
 costs upon affirmance in part, upon appeal from judgment of justice's 
 
 court; new trial not had, 420, c. 
 costs on appeal from justice's judgment, on new trial, 420, d. 
 costs upon entry of judgment after verdict; report or decision; action 
 
 commenced in a court of record, 420, e.
 
 584 INDEX. 
 
 (References ai-e to sections.) 
 
 FORMS — ( continued ) . 
 
 costs incurred after trial and before appeal, 420, f. 
 costs incurred on appeal to the appellate division, 420, g. 
 costs incurred on appeal to the court of appeals, 420, h. 
 
 FRAUD, 
 
 liability of attorney for money obtained by, 47. 
 
 liability of attorney for money obtained by and paid to client, 47. 
 
 collection of" costs in action to set aside instrument obtained by, 418- 
 
 FRAUDULENT CONVEYANCES, 
 
 discretion as to costs in actions to set aside, 124. 
 
 two actions on two judgments, costs, 317. 
 
 additional allowance; defendant succeeds; property inadequate, 289, d. 
 
 FUND, 
 
 satisfaction of attorney's lien from, notice, 32, e. 
 
 award for land, attorney's lien on, 32, e. 
 
 allowance of costs out of, discretionary, 332. 
 
 allowance of costs out of, fund small, 332. 
 
 allowance of costs to mere custodian, 332. 
 
 allowance of costs against depositary, 332. 
 
 stijiulation as to appeals and motions; attached fund, 332. 
 
 G. 
 
 GAME LAW, 
 
 amoimt of costs allowed to the people on recovery, 145. 
 right to execution against the person, to collect, 145. 
 amount of costs allowed to defendant, 145. 
 how defendant's costs are collected, 145. 
 
 GRANTOR, 
 
 liability for costs, defending ejectment against granter. 359. 
 
 liability for costs, action to restrict grantee, 124. 
 
 timely notice of action to grantor, 124. 
 
 notice to grantor, case in court of appeals, li2t. 
 
 GUARDIAN AD LITEM, 
 
 on construction of will ; costs payable by whom, 130, e. 
 
 on construction of will ; allowances payable by whom, 130, e. 
 
 partition; power of court to make allowances to, 129, d. 
 
 partition; power of court to grant costs to, 129, d. 
 
 partition: allowance paid by whom, 129, d. 
 
 partition; costs paid by wliom, 129, (L 
 
 I
 
 INDEX. 585 
 
 (References are to sections.) 
 GUAFvDTAN AD LITEM— ( contiiuied ) . 
 
 foreclosure of mortgage, allowance to, 120, q. 
 
 costs aud extra allowance, payable by whom, 333, a. 
 
 allowance in excess thereof, paid by whom, 333, a. 
 
 allowance, fund small, action needless, 333, a. 
 
 allowance, less than taxable costs, 333, a. 
 
 liability of successful plaintiff for costs of, 333, a. 
 
 allowance to a defendant, guardian for codefendant, 333, a. 
 
 amount of costs; general answer by guardian, 333, a. 
 
 for infant plaintitT, liability for costs, 258. 
 
 how such liability is enforced, 258. 
 
 for infant defendant, liability for costs, 258. 
 
 GUARDIAN, GENERAL, 
 
 liability for costs of compulsory accounting, 334. 
 costs upon accounting upon resignation, 182. 
 costs upon accounting upon removal, 182. 
 incorrect account filed, refusing explanation, 182. 
 
 GUARDIAN, SPECIAL, ALLOWANCE TO, 
 
 unsuccessful contestant on probate of will, 178. 
 
 where infant becomes of age pending probate proceedings, 178. 
 
 after infant becomes of age, on stipulation of proponent, 178. 
 
 amount of allowance to unsuccessful contestant, 178. 
 
 to special guardian or to attorney for infant, IS."). 
 
 limit on probate or revocation of probate, 190. 
 
 payable from what fund, 190. 
 
 beyond statutory limit, by whom paid, 190. 
 
 power of surrogate to make allowance, 190. 
 
 notice of application for such allowance, 190. 
 
 or general guardian, 190. 
 
 sei-vices subsequent to decision; infant has no interest, 100. 
 
 on reference, under § 2546, 191. 
 
 appointment by appellate court, 190. 
 
 appellate court recognizing guardian appointed below, 190. 
 
 construction of will; infant no interest, 190. 
 
 appellate court grants no costs on appeal; power of surrogate, 190. 
 
 allowance on proceedings to sell real estate to pay debts, 194. 
 
 allowance on tax appraisal; appointment unnecessary, 195. 
 
 H. 
 
 HABEAS CORPUS, 
 
 of a criminal nature, costs in, 160. 
 
 of a criminal nature, appeal by people, 160.
 
 586 INDEX. 
 
 (References are to sections.) 
 HABEAS CORPUS— ( coutinued ) . 
 
 in civil matter, discretion as to costs, 160. 
 
 what items are taxable, 160. 
 
 demurrer to return of sheriff, 160. 
 
 final order must show what, 160. 
 
 allowance to counsel of incompetent, 160. 
 
 HABITUAL DRUNKARD, 
 
 appointment of committee. See Incompetent Persons. 
 
 HIGHWAY, 
 
 proceedings to open, successful application, 154. 
 
 proceedings to open, application denied, 154. 
 
 extent of liability of petitioner, 154. 
 
 reassessment of damages, costs of, 154. 
 
 apportionment of costs of reassessment of damages, 154. 
 
 private road, costs of laying out, 154. 
 
 private road, costs of rehearing as to damages, 154. 
 
 trespass for laying out. See Teespass. 
 
 overseer of, as defendant, entitled to double costs, 132, a. 
 
 person working out tax, as defendant, entitled to double costs, 132, &.. 
 
 I. 
 
 IDIOT, 
 
 appointment of committee. See Incompetent Per.sons. 
 
 IMBECILE, 
 
 appointment of committee. See Incompetent Peksons. 
 
 INCHOATE RIGHT OF DOWER, 
 attorney's lien on, 16. • 
 
 INCOIVIPETENT PERSONS, 
 
 dismissal of petition; discretion as to costs, 158, a. 
 
 dismissal of petition; amount of costs, 158, a. 
 
 dismissal of petition; costs, by whom paid, 158, a. 
 
 good faith and probable cause of petitioner, 158, a. 
 
 allowance to imsuccessful petitioner, 158, a. 
 
 petition granted; costs paid from what fund, 158, b. 
 
 petition granted; amount of costs to petitioner, 158, b. 
 
 petition granted; amount of costs to adverse party, 158, b. 
 
 petition granted; amount of costs to attorney of, 158, b. 
 
 control of court over property of, 153, b. 
 
 death of, after inquisition, but before confirmation, 158, b.
 
 ixDKx. 587 
 
 (References are to sections.) 
 INCOMPETENT PERSONS— (continued) . 
 
 incompetent confined in a state institution, 158, b. 
 
 unsuccessful attempt to have committee removed; counsel fees of com- 
 mittee in defending, 158, c. 
 discretion of court on such allowance, 158, c. 
 review of such discretion, 158, c. 
 allowance to attorneys for incompetent, 158, c. 
 
 allowance to attorneys, proceeding groundless or vexatious, 158, c. 
 allowance to attorneys, where instituted in bad faith, 158, c. 
 allowance to attorneys, where instituted for benefit of third per- 
 son, 158, c. 
 allowance to attorneys, estate not large, 158, c. 
 allowance to attorneys, application not made by committee, 158, c. 
 allowance to attorneys, large estate, 158, e. 
 liability of third party for costs of, 158, c. 
 allowance to an attorney who is interested in, 158, c. 
 incompetent confined in a state institution, 158, b. 
 payment of attorney for committee, 158, d. 
 
 discretion of court as to amount of fees of such attorney, 158, d. 
 removal of committee for negligence, expense of, 158, d. 
 jurors, compensation of, 158, d. 
 
 INCREASED COSTS, 
 
 stipulation of parties for, 8. 
 double costs; what are, 132, a. 
 who are entitled to, 132, a. 
 increase of disbursements in, 132, a. 
 persons entitled to; overseer of the poor, 132, a. 
 sheriff, 132, a. 
 policeman, 132, a. 
 overseer of the highway, 132, a. 
 persons working out highway tax, 132, a. 
 collector of school district, 132, a. 
 trustee of school district, 132, a. 
 constable, 132, a. 
 surrogate, 132, a. 
 board of supervisors, 132, a. 
 waiver of; uniting in answer with person not entitled to, 132, b. 
 person benefited by process; right to, 132, b. 
 personal representatives of decedent, entitled to, 132, b. 
 indemnitors substituted for sheriff, 132, b. 
 
 indemnitors substituted for sheriff, under Revised Statutes, 132, b- 
 £nal judgment after return of alternative mandamus, 132, b.
 
 588 INDEX. 
 
 (References are to sections.) 
 INCREASED COSTS— ( continued ) . 
 
 in special proceedings, costs not regulated by § 3251, 132, b. 
 
 in certiorari proceedings, 132, b. 
 
 peremptory writ of mandamus denied, 132, b. 
 
 how obtained, 132 c. 
 
 certificate of judge or referee, 132, c. 
 
 conclusiveness of certificate on taxing oflicer, 132, c. 
 
 granting certificate, nunc pro tunc, 132, c. 
 
 application of statute to special proceedings, 132, c. 
 
 application of statute to actions in equity, 132, d. 
 
 restraining board from interference with business, 132, d. 
 
 action by sheriff on bond of under sheriff, 132, d. 
 
 when tlie defendant is respondent, 132, e. 
 
 when the defendant is appellant, 132, e. 
 
 on appeal to the county court, 132, e. 
 
 on appeal from county court, 132, e. 
 
 on reversal which is not final adjudication, 132. o. 
 
 necessity that appellate court award, 132, e. 
 
 allowance of, in court of appeals, 390. j. 
 treble costs; statute, 133. 
 
 members of the militia, 133. 
 
 constable collecting military fines, 133. 
 
 meaning of term, 133. 
 
 constitutionality of, 133. 
 
 INFANT, 
 
 discontinuance of action; guardian unable to give security, ^S. 
 
 discontinuance of action on plea of infancy, 58. 
 
 right of defendant to costs on plea of infancy; legal action, 319. 
 
 allowed to defendant upon plea of infancy: equity action, 31!). 
 
 procedure of plaintiff when answer is served, 319. 
 
 infancy first alleged on trial, 319. 
 
 as plaintiff, costs against, how collected, 258. 
 
 INHERENT POWER OF COURT, 
 
 to grant allowance; construction of will, 130, c 
 
 to stay proceedings for nonpayment of costs in former action, 361. 
 
 INHERENT RIGHT, 
 to costs, 3. 
 
 INJUNCTION, 
 
 discontiiiuance of action, after granting, 64. 
 order upon such discontinuance, 64.
 
 INDEX. 589 
 
 (Ueferences are to sections.) 
 INJUNCTION— ( continued ) . 
 
 remedies of defendant upon such discontinuance, 64. 
 additional allowance in, 299, b. 
 
 INSOLVENT, 
 
 discharging, from his debts, 171. 
 discharging, from imprisonment, 171. 
 discontinuance of action against, terms, 58. 
 
 INSOLVENT CORPORATION, 
 
 allowance to trustees in protecting existence of, 235, a. 
 
 by what court allowance is made, 235, a. 
 
 discretion of court as to amount of allowance, 235, ii. 
 
 right of trustees to this allowance, 235, a. 
 
 when allowance should be refused, 235, a. 
 
 allowance to a creditor, 235, b. 
 
 costs allowed to a creditor, 235, b. 
 
 allowance to special counsel for attorney general, 235, b. 
 
 allowance to unsuccessful claimant; court of appeals, 235, c 
 
 allowance to receiver for attorney's services, 235, d. 
 
 necessity of notice of application for such allowance, 235, d. 
 
 when objections to such allowance must be made, 235, d. 
 
 allowance for improper charges; no objection; reviewed on appeal, 
 
 235, d. 
 proper method of obtaining allowance, 235, d. 
 items considered in making allowance, 235, d. 
 costs of proceedings to compel receiver to pay notes, 235, d. 
 costs against receiver, when paid, 235, d. 
 
 INTENT, 
 
 of parties on settlement, as to attorney's lien, 19, e. 
 
 INTEREST, 
 
 accruing after action, making recovery $50, 104, i, 391, d. 
 accruing after default, making recovery $50, 104, j. 
 liability of attorney for, how computed, 42. 
 liability of attorney for; claim imliquidated, 42. 
 
 INTERPLEADER, 
 
 costs on granting order of, 325. 
 
 when costs allowed to original defendant, 325. 
 
 what costs to original defendant, 325. 
 
 costs in action of, 325. 
 
 after interpleader, new action in equity, 325.
 
 590 INDEX. 
 
 (References are to sections.) 
 I NTERROGATORIES, 
 
 attached to commission; several witnesses; under old Code, 409. 
 
 rule imder the Code of Civil Procedure, 409. 
 
 disbursements on commission, necessity of. 409. 
 
 issued in good faith, failing in object, 409. 
 
 issued, but never served, 409. 
 
 to take party's evidence, able to attend trial, 409. 
 
 to take party's evidence, unable to attend trial, 409. 
 
 to take evidence of party and other witnesses, 409. 
 
 disbursement for witness' fees, executed out of state, 409. 
 
 disbursement for attorney's fees, executed out of state, 409. 
 
 disbursement for attorney's fees, executed in state, 409. 
 
 expense of taking testimony by stiplation, 409. 
 
 stipulation that evidence taken under § 879, as taken mider §§ 872, 
 873, 409. 
 
 ISSUE OF FACT AND LAW, 
 
 tried by court and referee; trial fees taxable, 406, b. 
 
 J. 
 
 JOINT TORT FEASOR, 
 
 effect of release of one, on attorney's lien, 12. 
 
 JUDGE INFORMING JURY OF EFFECT OF VERDICT ON COSTS, 
 in actions where punitive damages are given, 329. 
 in action on contract, 329. 
 
 reference to, obviated by other parts of the charge, 329, 
 when objection thereto must be taken, 329. 
 duty of judge to inform jury, 329. 
 effect of misstating the law, 329. 
 
 JUDGMENT, 
 
 final, as entitling party to costs, 5. 
 
 opening of by judgment creditor after pajnnent; terms, 56, b, 
 
 interlocutory, upon decision of demurrer, 97, 98. 
 
 final, upon decision of demurrer, 97, 98. 
 
 motion for, on special verdict, 73. 
 
 motion for, on verdict, subject to opinion of the court, 73. 
 
 motion for; exceptions heard at appellate division, 73. 
 
 costs after entry of, 330. 
 
 proceedings after entry of, as motions. 330. 
 
 opening, usual terms imposed, 330. 
 
 amending recitals in another; terms, 330.
 
 INDEX. 691 
 
 (References are to sectious.) 
 JUDGMENT— ( continued ) . 
 
 how costs in, may be changed, 330. 
 
 power of special term to set aside, 330. 
 
 extent of attorney's lien on, before collection, 9, c. 
 
 extent of attorney's lien on, after collection, 9, c. 
 
 retention of, by firm, on lien of one member, 9, c. 
 
 lien of attorney on, asserted by client, 10. 
 
 lien of defendant's attorney; no counterclaim, 14. 
 
 assignment of, effect on attorney's lien, 18. 
 
 assignment of, attorney's lien on proceeds, 18. 
 
 entry of, by attorney after settlement, 19. 
 
 motion to set aside satisfaction of, 34, 35. 
 
 action to set aside satisfaction of, 34. 
 
 justice court, setting aside satisfaction of, 35. 
 
 municipal court, setting aside satisfaction of, 35. 
 
 JUDGMENT BY CONFESSION, COSTS ON, 224, a. 
 
 JUDICIAL SALE, 
 
 purchaser defending action to set aside lien under which he claim&„ 
 128. 
 
 ILIRISDICTION, LACK OF, 
 
 not appearing on face of the complaint, 326. 
 
 raised by answer, 326. 
 
 appears first on trial, 326. 
 
 not appearing on face of complaint, 326. 
 
 power of court to impose costs, 326. 
 
 JUROR, WITHDRAWAL OF, 
 taxing trial fee for, 406, d. 
 
 retaxing of trial fee paid for privilege of, 406, d. 
 upon payment of all costs to date; retaxing of, 406, d. 
 
 JUROR'S FEES, 
 
 taxing of, when defendant suffers default, 404. 
 
 taxing of; more than one trial, 404. 
 
 taxing of, when jury disagrees, 404. 
 
 taxing of, when verdict is set aside for misconduct of jury, 404> 
 
 JUSTICE OF THE PEACE, 
 
 no jurisdiction in certain actions, 103, a. 
 
 power to stay second action tiU costs of first are paid, 363. 
 
 JUSTICE'S COURT, 
 
 lien of attorney in, 11, 35.
 
 592 INDEX. 
 
 (References are to sections.) 
 JUSTICE'S COURT— ( continued ) . 
 
 power to set aside satisfaction of judgment, 35. 
 
 new trial ; verdict against the weight of evidence, 79. 
 
 appellate division reversing county court, and ordering judgment abso 
 
 lute, 397. 
 new action after plea of title in, 101, 1. 
 burden of proof in new action, 101, 1. 
 
 plaintiff succeeds as to part of title in new action, 101, 1. 
 necessity of certificate in new action, 101, 1. 
 failure of plaintiff's title in new action, 101, 1. 
 default of plaintiff in new action, 101, 1. 
 trespass not proved in new action, 101, 1. 
 unnecessary allegation of title in new action, 101, 1. 
 defendant proves title in new action, 101, 1. 
 when jurisdiction ends on plea of title, 101, m. 
 delivery of undertaking on plea of title, 101, m. 
 justification of sureties on such undertaking, 101, m. 
 disapproval of sureties on such undertaking, 101, m. 
 undertaking not delivered, 101, m. 
 proof in such a case before the justice, 101, m. 
 proof in the county court on new trial, 101, m. 
 plea of title to one of two causes of action, 101, m. 
 appeals from; necessity of pa.ying costs to perfect appeal, 225. 
 discretion of court to allow payment nunc pro tunc, 225. 
 review of this discretion, 225. 
 
 necessity of paying additional costs in city courts, 225. 
 necessity of paying stenographer's fees, 225. 
 right of the respondent to the costs thus paid, 225. 
 right of successful appellant to these costs, 225. 
 right to sue for the costs thus paid, 225. 
 what disbursements the successful appellant may tax, 225. 
 new trial not had in tlie appellate court; statute, 220, a. 
 when costs are discretionary, 226, a. 
 reversal for error of fact, not affecting merits, 226, a. 
 new trial is directed, 226, a. 
 judgment is affirmed in part, 226, a. 
 right of appellant to costs on reversal, 226, a. 
 right of respondent to costs upon affirmance, 226, a. 
 when return does not show judgment rendered, 226, a. 
 when defendant did not appear below, nor on appeal, 226, b. 
 both parties appeal, judgment affirmed, 226, c. 
 power of court over costs on affirmance or reversal, 226, a.
 
 INDEX. 593 
 
 (References are to sections.) 
 jrUSTlCE'S COURT— ( continued ) . 
 
 costs on appeal in summary proceedings by landlord, 226, a. 
 new trial is had in the appellate court; statute, 227. 
 
 amount of disbursements, 227. 
 
 offer to compromise after action is at issue, 227. 
 
 what costs taxable; offer after verdict is set aside, 227. 
 
 offer to compromise before return, 228. 
 
 by whom offer may be made, 228. 
 
 when neitlier party makes an offer, 228. 
 
 no offer; verdict of no cause of action, 228. 
 
 offer by one party; recovery larger than offer, 228. 
 
 application of § 3228 to these actions, 228. 
 
 application of § 3229 to these actions, 228. 
 
 acceptance of offer before return, 228. 
 
 notice of taxation of costs by party accepting, 228. 
 
 what is a more favorable judgment, 229. 
 
 verdict increased by new matter in complaint, 229. 
 
 verdict decreased by new matter in answer, 229. 
 
 Avlien appeal is hoard in the supreme court, 220. 
 
 new trial granted in supreme court, reversed by appellate 
 division, 229. 
 
 affirmance by appellate division, right to costs, 230. 
 
 reversal of judgment by default on defective verified com- 
 plaint, 230. 
 
 <lefault opened, respondent refusing to open on payment of 
 costs, 230. 
 
 order of district court opening default, reversed ; error in 
 papers, 230. 
 
 procedure when appellant pays, pending appeal, 230. 
 
 reversal of order of affiliation; bastardy proceedings, 231. 
 
 I. 
 
 I.ACHES, 
 
 in moving for leave to serve supplemental answer, 49, f. 
 in moving for security for costs. See Security for Costs. 
 
 LACK OF JURISDICTION, 
 
 See also Jurisdiction, Lack of. 
 
 on plea of title to real estate, 101, d. 
 
 1.AND CONTRACT, 
 
 costs in action for damages for nonperformance, 101, c. 
 COST.S 3S.
 
 594 INDEX. 
 
 (References are to sections.) 
 LAND COXTE ACT— (continued). 
 
 foreclosure of, 121. 
 
 additional allowance under § 3252, 121. 
 
 LANDLORD, 
 
 defending ejectment against tenant, liability for costs, 359. 
 action against tenant for damages; general denial, 101, j. 
 action for mesne profits? sjeneral denial, 101, j. 
 action for damages, defcaant tenant or trespasser, 101, j. 
 
 LEGATEE, 
 
 costs of action to collect debt of testator, 339. 
 
 LEGISLATURE, 
 
 power of, as to statutes, see Statutes. 
 
 LIBEL, 
 
 costs, as governed by the amount of the verdict, 103, a. 
 
 LICENSE, 
 
 plea of, in trespass, see. Trespass. 
 
 LIEN. See Attorney's Lien. 
 
 LIQUOR TAX LAW, 
 
 certiorari to revoke license, 147. 
 
 making case on appeal, waived by stipulation, 147. 
 
 allowance against county treasurer; proceeding under § 28, subd. 2, 147- 
 
 allowance against county treasurer; proceeding imder § 29, 147. 
 
 personal liability of county treasurer for not proceeding under § 28, 147. 
 
 discretion as to costs; revocation; lack of requisite consents, 147. 
 
 expiration of certificate before order of revocation, 147. 
 
 LLOYD INSLTIANCE, 
 
 recovery of less than $50, 104, a. 
 
 LOSS OF LIEN. See Attorney's Lien. 
 
 LUNATIC, 
 
 appointment of committee, see Incompetent Persons. 
 
 M. 
 
 \LiLICIOUS PROSECUTION, 
 
 costs, as limited by the amount of the verdict. 103, a, d. 
 
 MANDAMUS, 
 
 discretion as to costs, 149, a.
 
 INDEX. 595 
 
 (References are to sections.) 
 MANDAMUS— ( continued ) . 
 
 order silent as to costs, 14P, a. 
 
 review of discretion of trial court, 149, a. 
 
 imposition of costs on officer acting in good faith, 149, b. 
 
 writ against wrong party, acting on advice of proper party, 149, b. 
 
 against officers discharging judicial duties, 149, b. 
 
 judge makes return instead of obeying, 149, b. 
 
 proceedings to obtain certificate required by law, 149, c. 
 
 when law against relator is plain, 149, d. 
 
 third party requesting return, 149, d. 
 
 third party joining in demurrer, 149, d. 
 
 application premature; respondent had time to act, 149, d. 
 
 additional allowance in, 149, e. 
 
 amendment of alternative writ; terms, 149, f. 
 
 stay for nonpayment of costs of previous application, 149, g. 
 
 waiver of stay, 149, g. 
 
 amount of costs, alternative writ, 149, h. 
 
 amount of costs, peremptory writ, 149, h. 
 
 agreed statement of facts to obviate alternative writ. 149, h. 
 
 amount of costs on demurrer to alternative ^^rit, 149, li. 
 
 alternative writ; public officers succeed, 149, h. 
 
 peremptory writ; public officers succeed, 149, h. 
 
 application for peremptory writ denied, 149, h. 
 
 relator's position correct; court unable to grant relief, 149, h. 
 
 amount of costs on appeal, 149, i. 
 
 right of defendant to appeal after obeying writ, 149, i. 
 
 discretion as to costs, reviewed on appeal, 149, i. 
 
 reversal by court of appeals of demurrer sustained below, 149, L 
 
 appellate division affirming peremptory writ, with costs, 149, i. 
 
 reversal of peremptory writ by court of appeals, 149, i. 
 
 imposition of fine in adilition to costs and damages, 149, i. 
 
 collection of costs by contempt proceedings, 149, i. 
 
 double costs on final order on alternative writ, 132, b. 
 
 double costs on fiinal order on peremptory writ, 1.32, b. 
 
 MATRIMONIAL ACTIONS, 
 
 attorney's lien in; in general, 39. 
 on settlement, 39. 
 
 continuing action to protect lien, 39. 
 on alimony, 39. 
 
 agreement for lien on alimony, validity of, 39. 
 on security for future alimony, 39. 
 commitment proceedings to enforce, 39.
 
 596 INDEX. 
 
 (References are to sections.) 
 MATRIMONIAL ACTIONS— (continued) . 
 
 alimony, as set off against costs against wife, 30. 
 action for absolute divorce; discretion as to costs, 130, a. 
 amount of costs, 136, a. 
 allowance of costs against wife, 136, a. 
 additional allowance in, 13G, a. 
 power of referee over costs, 136, a. 
 remedy, finding as to costs not warranted, 136, a. 
 both parties obtained false testimony, 136, a. 
 
 motion for judgment on referee's report, as special verdict, 136, a. 
 liability of corespondent who fails in his defense, 136, a. 
 right of corespondent who succeeds in his defense, 136, a. 
 counsel fees; power of court to grant, 136, b, 1. 
 
 granted for what services, 136, b, 1. 
 
 when husband abandons action, 136, b, 1. 
 
 when wife abandons defense, 136, b, 1. 
 
 judgment entered before hearing of motion, 136, b, 1. 
 
 upon denial of adultery, 136, b, 1. 
 
 upon affirmative defense, 136, b, 1. 
 
 recrimination by wife, 136, b, 1. 
 
 ■when wife is plaintiff, 136, b, 1. 
 
 poverty of husband, when plaintiff, 136, b, 2. 
 
 poverty of husband, when defendant, 136, b, 2. 
 
 after disagreement of jury, 136, b, 2. 
 
 when ^^ife plaintiff; ability to establish marriage, 136, b, 2. 
 
 when success of husband is inevitable, 136, c, 
 
 when wife does not deny adultery, 136, c. 
 
 when wife denies adultery, but not incriminating fact.«<, 136, c 
 
 wife pleading divorce not recognized by court, 136, c. 
 
 wife plaintiff'; all allegations on information and belief, 136, c. 
 
 wife induced act, and has property, 136, c. 
 
 wife does not explain suspicious facts, 136, c. 
 
 imposed as punishment for not consenting to reference, 136, c. 
 
 paid for specific purpose, 136, c. 
 
 allowance of; reviewed when, and by what courts, 136, d. 
 
 upon appeal by husband, 136, e. 
 
 upon husband's appeal, including past expenses, 136, e. 
 
 upon M'ife's appeal, judgment against her, 136, e. 
 
 upon wife's appeal, judgment in her favor, 136, e. 
 
 when granted upon reversal of judgment against wife, 136, e. 
 
 reduction of, upon settlement, 136, f. 
 
 liability of husband to wife's attorney for, after settlement, 
 136, f.
 
 INDEX. 597 
 
 (Ueferences are to sections.) 
 MATRIMONIAL ACTIONS— ( continued ) . 
 
 appeal by attorney from order setting aside allowance, 136, f. 
 
 collection of, by contempt proceedings, 13G, g, 419. 
 
 for past services included in judgment, 136, g. 
 
 termination of action by settlement or death, 130, g. 
 
 order for commitment must contain what, 130, g. 
 
 striking out pleading, for nonpayment of, 130, g. 
 
 defective order for collection of, 136, g. 
 contempt proceedings to collect costs, 136, g. 
 action for separation; discretion as to costs, 137, a. 
 title to costs allowed to the wife, 137, e. 
 costs and counsel fees in final judgment, 137, a. 
 costs allowed against the wife, 137, a. 
 counsel fees; when allowed, and for what services, l.)7, a. 
 
 wife makes prima facie case, 137, a. 
 
 ability of wife to maintain action, 137, b. 
 
 failure to make out prima facie case, 137, b. 
 
 disagreement of jury; husband poor, 137, b. 
 
 new action, instead of appeal from adverse judgment, 137, b. 
 
 refusal to live in suitable qviarters, 137, b. 
 
 husband a bigamist, plaintifl" not defendant's wife, 137, b. 
 
 cause of action .stale, 137, b. 
 
 w'ife sent to police court for relief, 137, b. 
 
 husband appeals from adverse judgment, 137, c. 
 agreement that attorney should have part of alimony, 137, c. 
 liability of husband to wife's attorney, after settlement, 137, d. 
 when settlement is before allowance of counsel fees, 137, d. 
 when the husband is the plaintiff, and settles, 137, d. 
 procedure to enforce such liability, 137, d. 
 how costs are collected, 137, e. 
 
 contempt proceedings to collect alimony and costs, 137, e. 
 reduction of counsel fees; husband out of jurisdiction, 137, e. 
 for annulment of marriage; discretion as to costs, 138, a. 
 
 counsel fees; husband alleges that wife has another husband, 
 138, a. 
 
 admission by wife that she has a former husband, 138, a. 
 
 former husband living, fact known to both, 138, b. 
 
 marriage induced by fraud, 138, a. 
 
 marriage induced by duress and fraud, 138, a. 
 
 action commenced by wife, marriage void, 138, b. 
 
 action by wife, impotency of husband, 138, b. 
 
 action by wife, because she was under age of consent, 138, b. 
 
 liability of mother bringing action for son, 138, b.
 
 598 INDEX. 
 
 (References are to sections.) 
 JVIATRIjMONIAL actions— ( continued ) . 
 
 application by third party to have divorce set aside, 138, b. 
 
 action by wife to obtain support, 139. 
 
 action by wife for assault and battery, 139. 
 
 MECHANIC'S LIEN FORECLOSURE, 
 statute, 131, a. 
 on a vessel, 131, a. 
 
 discretion of court as to costs, 131, a. 
 lien paid before the service of summons, 131, a. 
 to defendant who succeeds, 131, a. 
 
 recovery less than demand; no offer of judgment, 131, a. 
 owner's payment into court, efl'ect of, 131, b. 
 necessity of o\^^ler's payment into court, 131, b. 
 o^^^ler defending, eflect of, 131, b. 
 nonpayment into court, effect of, 131, b. 
 failure to serve notice of no personal claim, 131, b. 
 liability of owner in excess of amount due, 131, b. 
 plaintiir refusing offer of judgment, 131, c. 
 subcontractor successful; costs payable out of fund, 131, d. 
 costs of contractor's appeal against subcontractor, 131, d. 
 success of subcontractor after assignment by contractor, 131, d. 
 additional allowance, difficult and extraordinary, 131, e. 
 additional allowance, reviewed by what courts, 131, e. 
 additional allowance unjer § 3252. 131, e, 314. 
 
 MORTGAGEE, 
 
 defending ejectment against mortgagor, 350. 
 
 MORTGAGE FORECLOSURE. See Foreclosure of Mortgage, 
 
 MOTION, COSTS OF, 
 
 power of court over, 48, c, 7, a. 
 
 when qL estion is novel, 7, a. 
 
 when law is unsettled, 7, a. 
 
 how awarded, 48, c. 
 
 discretion, how exercised, 48, c. 
 
 when party obtains less than he asked, 7, a, 48, e, 2. 
 
 asking costs, obtaining all except costs, 48, e, 2. 
 
 merits conceded, costs contested, 48, e, 2. 
 
 merits and costs contested; riglit on merits, wrong on costs, 48, e, 2. 
 
 two motions, same case; each party wins, 48,, e, 3. 
 
 unnecessary motion, 48, e, 4. 
 
 for discovery and inspection, 48, e, 4.
 
 INDEX. 699 
 
 (References are to sections.) 
 MOTION, COSTS OF— (continued). 
 
 to compel acceptance of pleading, 48, e, 4. 
 
 as compensation for prepaiiug and arguing, 48, e, 4. 
 
 ex parte motions, 48, e, u. 
 
 several cases, same relief, 48, f. 
 
 to set aside several interdependent orders, 48, f. 
 
 several attorneys for different parties, 48, f. 
 
 relief granted before argument, 48, g. 
 
 terms and conditions on granting favor, 48, h. 
 
 payable absolutely upon granting favor, 48, h. 
 
 payable conditionally upon granting favor, 48, h. 
 
 imposed upon party; general rule, 48, h. 
 
 imposed upon attorney, 48, h. 
 
 amount of, 48, b. 
 
 printing and referee's fees on, 48, b. 
 
 withdrawal of notice of motion, 48, a. 
 
 amount of, for new trial on case, 48, b. 
 
 upon application for judgment on special verdict, 48, b. 
 
 when party is entitled to, 48, d. 
 
 necessity of motion, 48, d. 
 
 as punishment to opposite party, 48, d. 
 
 effect of asking for costs, without foundation, 48, d. 
 
 motion to strike out improper costs, 48, d. 
 
 when actions of successful party induced motion, 48, e, L 
 
 when moving party makes tender, 48, e, 1. 
 
 upon default, not asked in notice, 48, e, 1. 
 
 upon contested motion, not asked in notice, 48, e, 1. 
 
 compulsory reference to hear, try, and determine, 48, e, 1. 
 
 upon amendment of complaint, 49, a. 
 
 upon amendment after appeal, 49, d. 
 
 upon amendment of answer, 49, e. 
 
 setting aside service of summons, 51, b. 
 
 application for judgment; frivolousness of pleading, 51, c 
 
 dismissal of complaint; neglect to prosecute, 52. 
 
 for bill of particulars, 53. 
 
 for discovery of books, 54. 
 
 change of venue ; convenience of witnesses, 55, a. 
 
 change of venue ; wrong county, 55, b. 
 
 on discontinuance, 61. 
 
 amount of, new trial without case, 73. 
 
 amount of, new trial with case, 73. 
 
 for judgment on verdict, subject to opinion of court, 73.
 
 GOO INDEX. 
 
 (lleferences are to sectious.) 
 MOTION, COSTS OF— (continued). 
 
 for judgment, exceptions heard at appellate division, 73. 
 
 for new trial after final judgment, 395, b. 
 
 execution against personal property for collection of, 416. 
 
 arising after death of one defendant; execution entitled same as 
 motion, 41 G. 
 
 time before execution can issue; personal service of order, 416. 
 
 time before execution can issue; order served by mail, 416. 
 
 collection of, in special proceedings, 416. 
 
 awarded in appellate division; collection by supplementary proceed- 
 ings, 416. 
 
 enforcing repayment of, by contempt proceedings, 419. 
 
 enforcing repayment of, by execution, 419. 
 
 collection of costs against former attorney, awarded to substitute(£ 
 attorney, 419. 
 
 MULTIPLICITY OF ACTIONS, 
 
 allowance of costs in equity, when there is, 115. 
 
 aiUNICIPAL CORPORATION, 
 
 protection of statute; when costs can be awarded against, 13.5, a, 
 
 actions ex contractu, 135, b. 
 
 actions ex delicto, 135, b. 
 
 in proceedings for relief from assessments, 135, b. 
 
 costs on appeal, 135, b. 
 
 for damages by mob, 135, b. 
 
 actions commenced in justice's court, 135, b. 
 presentation of claim; to whom claim must be presented, 135, c. 
 
 presentation of claim to treasurer, 135, c. 
 
 to common oouncilj 135, c. 
 
 to treasurer of a village, 135, c. 
 
 to board of trustees of a village, 135, c. 
 
 when claim is against water commissioners of village, 135, c. 
 
 claim against a town, 135, c. 
 
 how claim should be presented, 135, d. 
 
 effect of presenting, 135, e. 
 
 efTect of not presenting, 135, e. 
 
 when question of presentment is first raised, 135, e. 
 
 how decision of taxing officer is reviewed, 135, e. 
 
 presenting claim for sum larger than damages asked, 135, e. 
 collection of costs awarded against, by mandamus, 417. 
 amount of costs determined according to statute; collateral attack by- 
 corporation not a party to proceedings, 417. 
 liability for act of annexed village; costs, 117. 
 enforcing security given to its officers for costs, 344.
 
 INDEX. 601 
 
 (References are to sections.) 
 MUNICIPAL (X>UKT OF BUFFALO, 
 lien of attorney in, 11. 
 
 MUNICIPAL COURT OF THE CITY OF NEW YORK, 
 lien of attorney in, 11. 
 
 costs on appeal from order sent back for further hearing, 232. a. 
 on reversal of order absolutely, 232, b. 
 fees of referee on motion to open default, 232. c. 
 terms on opening default, how reviewed, 232. c. 
 appeals lie to what court, 232, c. 
 what statute governs costs on appeals, 232. c. 
 new trial in appellate court, 232, c. 
 
 necessity of paying costs; appeal from order opening default, 232, c. 
 necessity of paying cost, which are sought to be reviewed, 232, c. 
 costs to appellant on reversal, 232, d. 
 disbursement to appellant on reversal, 232, d. 
 costs to respondent on affirmance, 232, e. 
 costs to respondent who does not appear, 232, e. 
 discretion as to costs; judgment modified, 232, f. 
 discretion as to costs; new trial, 232, f. 
 reversal of judgment, jurisdiction not appearing: first raised on 
 
 appeal, 232, f. 
 costs in action removed to New York city court, 232, f. 
 
 N. 
 NEGLIGENCE, 
 
 action for, recovery less than $50, 104, j. 
 
 collection of defendant's costs, by execution against the person, 418. 
 
 NEW TRIAL, 
 
 motion for, without case; amount of costs, 73. 
 
 motion for, on case; amount of costs, 48, b, 73, 87. 
 
 terms of, in ejectment, 74. 
 
 additional allowance in ejectment, payment of, 74. 
 
 for error of jury, 75. 
 
 where verdict is against weight of evidence; discretion of court, 75.. 
 
 where verdict is not sustained by evidence, 75. 
 
 where damages are inadequate, 75. 
 
 where damages are excessive, 75. 
 
 reversal of another judgment, which is basis of present action, 75. 
 
 waiver of costs by appeal, 76. 
 
 stay pending appeal, 76. 
 
 on motion of judge; no costs; how reviewed, 76.
 
 602 INDEX. 
 
 (References are to sections.) 
 NEW TRIAL — (continued). 
 
 for error of court; terms, 77. 
 
 for error of referee, 78. 
 
 for error of referee; against weiglit of evidence, 78. 
 
 for misconduct of referee; terms, 78. 
 
 in justice's court; verdict against weight of evidence, 79. 
 
 newly discovered evidence, general rule, 80. 
 
 newly discovered evidence, discretion of court, 80. 
 
 what are "costs of former trial," 81. 
 
 additional allowance; report of referee set aside, 82. 
 
 additional allowance as part of costs of former trial, 82. 
 
 costs to moving party to abide event, 83. 
 
 two grounds; order silent as to grounds, 84. 
 
 correction of order for, 85. 
 
 terms of, in discretion of what courts, 86. 
 
 motion denied; costs awarded to whom, 87. 
 
 motion for, premature; motion argued on merits, 87. 
 
 on case, after expiration of time to appeal, 87. 
 
 argued before one judge, decided by another, 87. 
 
 retaxation of costs to correct mistake, 87. 
 
 case simply to show whether evidence is cumulative, 87. 
 
 motion granted ; costs awarded to whom, 87. 
 
 heard at appellate division, silent as to costs, 87. 
 
 party paying costs, taxing them in his final judgment, 87. 
 
 accepting order and appealing from terms, 88. 
 
 objecting to terms first on appeal, 88. 
 
 pursuant to an order; amount of costs taxable, 406, f. 
 
 applicability to proceedings to open a default, 406, f. 
 
 applicability to proceedings upon withdrawal of juror, 406. f. 
 
 applicability to case where trial is completed, 406, f. 
 
 applicability when judgment is reversed, 406, f. 
 placing case on calendar, pending motion for reargument, 406, f. 
 
 NEW YORK CITY COURT, 
 
 terms on amendment of answer, 49, e. 
 
 power over proceedings to determine attorney's lien, 40, a. 
 power over attorneys, 40, a. 
 demurrer; special rule; several defenses, 93. 
 
 general term dismisses appeal, not mentioning disbursements, 232, f. 
 action removed to, from mimicipal court, 232, f. 
 security for costs; effect of serving answer before moving for, 246. 
 statute governing, 252. 
 necessity of showing that plaintiff has no office, 252.
 
 INDEX. 603 
 
 (References are to sections.) 
 KEW YORK CITY COURT— (continued) . 
 
 plaintili' a foreign corporation, 252, 257. 
 statute applying to other courts, 252. 
 
 NEW YORK DISTRICT COURT, See Municipal Court of the City of 
 New Yokk. 
 power to stay second action till costs of former are paid, 363. 
 
 NEXT OF KIN, 
 
 action to collect debt of intestate, 339. 
 
 NONEXISTENT PLAINTIFF, 
 costs, by whom paid, 357. 
 
 NOTICE, 
 
 necessity of, to protect attorney's lien. See Attorney's Lien. 
 
 VOTICE OF MOTION, 
 withdrawal of, 48, a. 
 costs on withdrawal of, 48, a. 
 withdrawal of one of two inatters, 48, a. 
 not demanding costs; costs on default, 48, e, 1. 
 not demanding costs; costs on contested motion, 48, e, 1. 
 demanding costs; when not entitled to them, 55, b. 
 
 NOVEL QUESTION OF LAW, 
 
 costs in an equity action involving, 118. 
 
 NUISANCE, 
 
 discretion as to costs, 101, n. 
 
 title to real estate involved, when, 101, f, n. 
 
 NUNC PRO TUNC, 
 
 power of court, entry of judgment, to change costs, 7, a. 
 
 O. 
 
 OFFER, 
 
 to liquidate damages conditionally, 224. 
 
 OFFER OF JUDGMENT, 
 statute governing, 196. 
 
 application to action at law and in equity, 197. 
 how ofTer must be served, 197. 
 
 ofTer where statutory requirements are not observed, 197. 
 offer that is a nullity; treatment of, 197. 
 return of offer that is a nullity, 197. 
 service of copy or original, 197. 
 filing of original after service of copy, 197.
 
 604 INl^EX. 
 
 (References are to sections.) 
 OFVER OF JUDGMENT— (continued). 
 
 effect of admission on original, 197. 
 
 waiver of irregularity in service, 197. 
 
 signature of attorney, how subscribed, 197. 
 
 production of original upon taxation of costs. 197. 
 
 excuse for nonproduction of original, 197. 
 
 amendment of complaint after, effect of, 198. 
 
 applies to what pleadings, 198, 210. 
 
 increasing claims for interest at trial; terms, 198. 
 
 when offer is definite enough, 199. 
 
 number of ofl'ers by defendant, 200. 
 
 in justice's court, before plea of title, 201. 
 
 in justice's court; new trial in county court, 201. 
 
 served with answer, 202. 
 
 time of acceptance when served personally, 202. 
 
 time of acceptance when served by mail, 204. 
 
 case tried, within ten days after service of offer, 202. 
 
 trial commenced within ten days after service of, 202, 
 
 when trial is conunenced before referee, 203. 
 
 power of defendant to withdraw oflFer, 204. 
 
 amendment of offer, 205. 
 
 right of defendant to move case, before expiration of ten days, 205. 
 
 right of plaintiff to accept offer after trial, 205. 
 
 computation of interest in offer, 206. 
 
 "with interest," but no date given, 206. 
 
 comparison of such offer with recoveiy, 206. 
 
 liquidated claim; offer not including interest, 206. 
 
 comparison of such offer with recovery, 206. 
 
 interest accruing subsequent to offer, consideration of, 206. 
 
 unliquidated claim; offer not including interest, 206. 
 
 inclusion of costs in, 207. 
 
 "with costs to date," meaning of, 207. 
 
 recovery in excess of, effect of, 207. 
 
 entry of judgment for amount of offer by order of court, 208. 
 
 recovery of less than offer; plaintiff's costs, 208, 211. 
 
 recovery of less than offer; defendant's costs, 208, 211. 
 
 by joint debtors, 209. 
 
 by one of several joint debtors, 209. 
 
 by one member of a firm, 209. 
 
 by one joint debtor, other defendant in default, 209. 
 
 effect of acceptance on claims in pleadings served, 210. 
 
 effect of acceptance upon counterclaim subsequently pleaded. 210,
 
 INDEX. 605 
 
 (References are to sections.) 
 OFFER OF JUDGMENl'— (continued). 
 
 comparison of recovery; independent counterclaims subsequently 
 
 pleaded, 210. 
 pleading dependent counterclaim after offer, 210. 
 recovery to be increased by what counterclaims, on comparison, 210. 
 recovery of nominal damages in excess of offer, 211. 
 made, after bringing in of another defendant, 211. 
 judgment, plaintiff entitled to damages, defendant to costs, 212. 
 right of plaintiff to offset defendant's costs in sucli case, 212. 
 recovery reduced below, by appellate court, 21.3. 
 procedure when appeal papers do not contain, 213. 
 plaintiff's costs upon acceptance of, 214. 
 costs and disbursements incurred after, 214. 
 plaintiff's costs on acceptance, for less than $50, 216, 
 decisions thereon imder the Code of Procedure, 216. 
 additional allowance to plaintiff upon acceptance of offer, 215, 280. 
 additional allowance, when recovery is less ttan offer, 215. 
 costs, when plaintiff accepts separate offers by different defendants, 
 
 318, c. 
 amendment of, upon amendment of complaint, 49, b, 
 in mortgage foreclosure, 217. 
 
 provision for deficiency judgment in such case, 217. 
 foreclosure for interest; offer of principal and interest, 217. 
 in foreclosure of mechanic's lien, 220. 
 "in discharge of lien," necessity of containing, 220. 
 when there is a personal liability, 220. 
 
 by owner to contractor, deducting amount due subcontractor, 220. 
 discretion as to costs, affected by, 220. 
 refusal of costs after, 220. 
 in replevin, 219. 
 
 amount of costs upon acceptance in replevin, 219. 
 necessity in replevin, complaint contains one cause of act ion, 102, a. 
 necessity of fixing value of chattels in such offer, 102, a. 
 
 OFFICIAL ASSIGNEE, 
 who is, 260. 
 assignee for benefit of creditors as, 260. 
 
 OFFSETTING COSTS. See Set Off of Costs. 
 in same action, rights of attorney, 17. 
 in different action, rights of attorney, 17. 
 on offer of judgment; plaintiff's damages against defendant's costs, 212. 
 
 ORDER, 
 
 as to costs, not appealed from, effect of, 83.
 
 606 liNDEX. 
 
 (References are to sections.) 
 ORDER— ( continued ) . 
 
 correction of, as to costs; power of court on, 85. 
 
 terms of; costs conditional or absolute, 49, g. 
 
 "costs to present time," meaning of, 49, g. 
 
 right of court to interpret its own, 49, h. 
 
 terms on substitution of parties, how reviewed, 50. 
 
 appeal from order granting costs; striking out pleading, 51, b. 
 
 entry of, on discontinuance, 70. 
 
 right of defendant to enter, on discontinuance, 70. 
 
 on discontinuance, when costs are understood. 70. 
 
 OVERSEER OF POOR, 
 
 right to double costs, when defendant is, 132, a. 
 
 P. 
 
 PAPER, 
 
 admission of genuineness of. 405. 
 
 PARTIES, 
 
 change of, costs on, 50. 
 
 reviving action, plaintiff deceased, 50. 
 
 new defendant, answer showing necessity of, 50. 
 
 substitution of defendants; terms of order, how reviewed, 50. 
 
 PARTITION, 
 
 costs discretionaiy, or matter of right, 129, a. 
 
 costs and allowances to defendant in actual partition, 129, b. 
 
 costs and allowances to defendant in default, 129, b. 
 
 when defendant has no interest in property, 129, c. 
 
 when paid out of fund, 129, c, 
 
 by whom paid in actual partition, 129, c. 
 
 unsuccessful defense by one defendant, 129, c. 
 
 liability of defendant not appearing, and having no interest, 129, o. 
 
 liability of widow; premises sold, 129, c. 
 
 liability of widow; actual partition, 129, c. 
 
 liability of defendant refusing to make partition by deed, 129, c. 
 
 purchaser entitled to more than bid for improvement-^^, 129, c. 
 
 at what stage costs are allowed, 129, d. 
 
 no issue, costs and allowances in final judgment, 120, d. 
 
 issue, costs and allowances at trial, 129, d. 
 
 when allowed; issues sent to a referee, 129, d. 
 
 priority of mortgage or costs, 129, d. 
 
 guardian ad litem, power to make allowances to, 129, d, 
 
 guardian ad litem, poAver to award costs to, 129, d.
 
 INDEX. 607 
 
 (References are to sections.) 
 PARTITION— ( continued ) . 
 
 guardian ad litem, allowances paid by whom, 129, d. 
 
 guardian ad litem, costs paid by wlion:, 129, d. 
 
 application by mortgagee to be paid; motion or special proceeding, 
 
 129, d. 
 application by sheriff to be paid amount of execution; motion, 129, d. 
 additional allowances in. See Auditionax Allowance. 
 
 PARTNERS, 
 
 partnership not appearing; necessity of serving, as judgment credit- 
 ors, 400. 
 
 PARTNERSHIP ACCOUNTING, ALLOWANCE ON, 
 gross assets or assets of parties, as basis, 307. 
 to set aside transfer of property, 307. 
 assets not enough to pay debts, 307, 311, g. 
 nonsuit after defendant makes account, 307. 
 to all parties, 307. 
 
 plaintiff loses large part of claim, 307. 
 defendant loses large part of counterclaim, 307. 
 no sum asked in complaint, complaint dismissed, 311, g. 
 no dispute as to sura due plaintiff, 311, g. 
 
 PARTY, 
 
 appearing in person, costs under fee bill, 3. 
 
 appearing in person, costs under Code of Civil Procedure, 3. 
 
 appearing in person, disbursements under Code of Civil Procedure, 3. 
 
 when successful i)arty is entitled to costs, 100. 
 
 title to costs, 17. 
 
 as assignee, costs awarded to, 17. 
 
 as assignee; costs belong to, or to attorney, 17. 
 
 see also Client. 
 
 PAYMENT, 
 
 right of defendant to plead, 223. 
 
 after action commenced, set up in answer, 104, li. 
 
 stipulation that, shall not affect costs, 104, h. 
 
 after action commenced, set up in supplemental answer, 104, h. 
 
 amount due at commencement of action or trial, determines costs, 223 
 
 plaintiff's right to costs reserved by agreement, 223. 
 
 to third person, sufficiency of, 223. 
 
 to clerk, effect of, 223. 
 
 to a clerk without the costs, 223. 
 
 of costs in actions by commissioners of land office, 419.
 
 608 UJT^EX. 
 
 (References are to sectious.) 
 PENALTIES, 
 
 discontinuance of action for; statute repealed, 58. 
 amount allowed to the people on a recovery, 146. 
 when defendant's costs are collectible from the county, 14G. 
 xmder game law. See Game Law. 
 
 PLAINTIFF, 
 
 nonexistent; costs, by whom paid, 357. 
 
 right to costs when he wins as to some defendants but not as to all, 
 
 318, a. 
 right when he succeeds as to all the defendants, 318, c. 
 one defendant demurs, another answers; where plaintiff succeeds as to 
 both, 321. 
 
 PLEADINGS, 
 
 made more definite and certain; terms of order, 49, g. 
 
 striking out scandalous, on motion of court. 51, a. 
 
 striking out scandalous, on motion, 51, a. 
 
 striking out, as punishment, 51, b. 
 
 striking out redundant, 51, b. 
 
 striking out answer collusively received, 51, b. 
 
 judgment upon friA^olous, 51, c. 
 
 POLICEJVIAN, 
 
 as defendant, entitled to double costs, 132, a. 
 
 POOR PERSON. See Forma Paupeeis. 
 
 PRINTING, 
 
 allowance for, on motions, 7, a, 48, b. 
 
 liability of attorney for, 46. ■ 
 
 on appeal; defendants unite in appeal: anirmance as to one, reversal 
 as to other, 393. 
 
 case on appeal; conclusiveness of amount paid, 411. 
 
 burden to prove amount charged fraudulent or excessive, 411. 
 
 printing argument in extenso in points, 411. 
 
 extra copies of case printed for appellate division used in the 
 court of appeals, 411. 
 
 extra copies sold to opposite party for court of appeals; deducting 
 sum received, 411. 
 
 expense of printing extra copies, as a disbursement, 411. 
 
 agreeing to pay usual price in event of success, 411. 
 
 papers printed by consent of court; other papers included, 411. 
 
 papers printed on appeal from order, 411. 
 
 affirmance or reversal of order, "with costs," 411. 
 
 successful party unites with unsuccessful party, 411. 
 advertising sale of property; statute regulating fee of printer, 412. 
 
 i
 
 INDEX. 009 
 
 (References are to sections.) 
 
 JPRINTTNG— ( continued ) . 
 
 incomplete, because stopped by injunction, 412. 
 
 after notice of appeal, but before justification of sureties, 412. 
 
 lithographing summons and complaint in partitic/u, 412. 
 
 PROCEEDINGS, 
 
 title of, to compel attorney to surrender papers, 12. 
 
 PROCEEDINGS AFIER NOTICE OF TRIAL, 
 
 answer not denying liability, but setting up counterclaim; no replj, 
 
 406, a. 
 costs chargeable for every trial, 406, b, 
 
 PROHIBITION, 
 
 statute regulating costs in, 166. 
 amount of costs in, 166. 
 
 PROSPECTIVE, 
 
 when statute as to costs, construed as, 5. 
 
 PUBLIC OFFICERS, 
 
 as entitled to increased costs. See Increased Costs. 
 terms on amending complaint against, 49, d. 
 successful on alternative writ of mandamus, 149, li. 
 successful on peremptory writ of mandamus, 149, h. 
 
 J»UNISH]VIENT, 
 costs as, 1. 
 
 award of motion costs as, 48, d. 
 motion costs imposed on attorney as, 48, h, 51, a. 
 costs on striking out scandalous pleadings, 51, a. 
 striking out pleadings as; costs on, 51, b. 
 counsel fees in divorce action granted as, 13(j, c. 
 additional allowance in condemnation proceedings as, 150, bw 
 
 PUTTING CASE OVER TERil. See Adjourning Trial. 
 
 B. 
 
 HAILROAD, 
 
 crossing another; costs governed by what statute, 151, a. 
 elevated; general rule on condemning right of way, 151, b. 
 proceedings under general act, 151, c. 
 additional allowance under general act, 151, d. 
 additional allowance granted on discontinuance of, 151, d. 
 additional allowance; compelling completion and operation of, 299, g. 
 cosxs 39.
 
 610 INDKX. 
 
 (References are to sections.) 
 RAILROAD— ( continued) . 
 
 additional allowance; damages to abutting owner, by constniotion^ 
 
 299, g. 
 additional allowance to defendant, who refused to unite as plaintiff^ 
 
 299, g. 
 additional allowance for rental value, 299, g. 
 additional allowance; interference with liglit and air, 299, g. 
 trial fee under general act, 151, e. 
 reversal of award upon appeal by, 151, f, 
 aflirniance of award upon appeal by owner, 151, f. 
 
 REAL PROPERTY, 
 
 action triable bj' jury, 101. 
 
 to compel determination of claim to, 101. 
 
 title to, arises on pleadings, 101, 101, a, 3, 101, p. 
 
 certificate that title arose on trial, 101. 
 
 action for; damages as affecting costs, 101. 
 
 action for, costs as a matter of right, 101. 
 
 when claim of title arises on pleadings, 101, a, 1. 
 
 imsuccessful party admits title on trial, 101, a, 1. 
 
 claim of title; when plaintiff must prove title, 101, a, 1. 
 
 claim of title; when plaintiff must prove facts of title, 101, a, 1. 
 
 claim of title; unnecessary allegation of title, 101, a, 2. 
 
 unnecessary allegation of title; action for assault, 101, a, 2, 101, o. 
 
 unnecessary allegation of title; action for bite of dog, 101, a, 2. 
 
 unnecessary allegation of title; property sold for tax, 101, n, 2. 
 
 unnecessary allegation of title; breach of covenant by tenar . 101, a, 2^, 
 
 unnecessary allegation of title; damage by tenant, 101, a, 2. 
 
 action for, united with another cause, 101, a, 3. 
 
 ejectment; location of division line, 101, b. 
 
 ejectment; two parcels of land, each party successful, 101, b. 
 
 ejectment by grantee in name of grantor, 348. 
 
 action by grantee, evicted by paramount title, 101, b. 
 
 relating to, but title not in question, 101, c. 
 
 land contract; damages for nonperformance, 101, c. 
 
 court decides question, but lacks jurisdiction, 101. d. 
 
 action for dower, 101, e. 
 
 action for dower; referee fails to award costs, 101, e. 
 
 action for trespass; general denial, 101, f. 
 
 specific denial of title, 101, f. 
 
 answer alleging prescriptive right, 101, f. 
 
 ansv\er alleging right of overllovv, 101, f. 
 
 answer alleging right of estovers, 101, f.
 
 ]>;ui:x. 611 
 
 (Keleieutes are to seel ions. ) 
 REAL PEOPERTY— ( continued.) 
 
 answer alleging right of way, 101, f. 
 
 plaintiff compelled to jjrove title to maintain action, 101, f. 
 plaintiff not compelled to prove title to maintain action, 101, f. 
 on wild and uncultivated lands, 101, f. 
 payment of rent and right of possession in dispute, 101, £. 
 location of lines of plaintiff's property, 101, f. 
 (question as to amount of damages suffered, 101, f. 
 damages to freehold, 101, f. 
 damages to possession, 101, f. 
 damages for nuisance, 101, f, n. 
 additional allowance, 299, d. 
 plea of license; from plaintiff, 101. g. 
 from third person, 101, g. 
 validity of license denied by reply. 101. g. 
 parol license to overllow, 101, g. 
 parol license to open drain, 101, g. 
 parol license to cut grass, 101, g. 
 parol license to go on pond, 101, g. 
 to divert stream, 101, g. 
 sewer alleged to be a watercourse, 101, g. 
 admits title, but pleads laying out highway, 101, h. 
 laying out highwuy; statute unconstitutional, 101, h. 
 proceedings to lay out highway discontinued, 101, h. 
 locus of land a highway, 101, h. 
 grantor removing shrubs, 101, h. 
 claiming easement over land of the state, 101, i. 
 state claiming easement over land of private individual, 101, i. 
 damages to easement; defendant denying knowledge of ownership, 
 
 101, i. 
 damages for obstructing approach to, from river, 101, i. 
 construction and maintenance of elevated railroad, 101, i. 
 general denial; tenant sued by landlord for damages, 101, j. 
 general denial; tenant sued by landlord for mesne profits, 101, j. 
 general denial; damages to furniture; defendant tenant or trespasser, 
 
 101, j. 
 proving title, when title is not denied, 101, k. 
 
 proving title, when defendant claims that it is in question, 101, k. 
 action commenced in justice's court; costs of new action brought after 
 plea of title, 101, 1. 
 burden of proof on defendant, 101, 1. 
 
 plaintiff recovers less than $50, and proves title to any part of 
 land, 101, 1.
 
 612 INDEX. 
 
 (References are to sections.) 
 REAL PROPERTY— (continued.) 
 
 necessity that defendant obtain certificate, 101, 1. 
 failure of plaintiff's title, 101, 1. 
 default of plaintift' in new action, 101, 1. 
 trespass not proved in new action, 101, 1. 
 unnecessary allegation of title in new action, 101, 1. 
 defendant succeeds on question of title, 101, 1. 
 I defendant succeeds on title in dispute, plaintiff recovers ilamages 
 
 where title is not disputed, 101, 1. 
 proceedings in justice court after plea of title; jurisdiction of 
 justice after, 101, m. 
 delivery of undertaking to justice, 101, m. 
 justification of sureties before justice, 101, m. 
 disapproval of sureties by justice, 101, m. 
 undertaking not delivered, 101, m. 
 trial in justice's court; proof, 101, m. 
 
 tried by justice; proof on new trial in county court, 101, m 
 to abate nuisance; title in dispute, 101, n. 
 certificate of judge that question of title arose on the trial; in 
 
 action for assault and battery, 101, o. 
 effect of such certificate, 101, p. 
 conclusiveness of, upon taxing officer, 101, p. 
 review of, 101, p. 
 
 power of judge to correct certificate granted by him, 101, p. 
 necessity of, when (juestion arises on the pleadings, 101, p. 
 
 RECEIVER, 
 
 lien of attorney on money in hands of, 9, c. 
 
 application by, to substitute attorneys, 22, d. 
 
 discontinuance of action after appointment of; terras, 64. 
 
 order upon such discontinuance, 64. 
 
 remedies of the defendant after such discontinuance, 64. 
 
 general rule as to allowance of costs in action by, 172, a. 
 
 allowance of costs to, in unsuccessful action or appeal, on accounting, 
 
 172, b. 
 appeal to appellate division as evidence of bad faith, 172, b. 
 allowance to referee who examined receiver's account, 172, b. 
 allowance to, for his own legal services, 172, b. 
 additional allowance in excess of statutory limit, 172, c. 
 costs awarded against; general rule as to payment, 172, d. 
 when appointed after judgment, 172, e. 
 when appointed by another court, 172, d. 
 costs of annuitant paid from funds under control of, not from funds 
 
 out of which he has an annuity, 172, d.
 
 INDEX. 613 
 
 (References are to sections.) 
 RECEIVERS— ( continued ) . 
 
 personal liability for costs; bringing action without leave of court, 
 172, e. 
 obtaining ex parie order, clianging another order, 172, e. 
 in supplementary proceedings, without funds; bringing action to 
 
 set aside deed, 172, e. 
 bringing other actions under such circumstances, 172, e. 
 action to recover what has already been paid, 172, e. 
 defense of action in good faith, 172, e. 
 unnecessarily defending, when he has no funds, 172, e. 
 as a defendant in a necessary action, 172, e. 
 not trying defense interposed, 172, e. 
 
 extent of liability for not trying defense interposed, 172, e. 
 where he does not try action brought in good faith, 172, e. 
 discontinuance of action by, 172, e. 
 action to restrain his acting as receiver, 172, e. 
 bow determined that receiver is liable personally; necessity of notice 
 to receiver of motion, 172, f. 
 when such motion should be made, 172, f. 
 where such motion sliould be made, 172, f. 
 remedy when irregularly charged personally with costs, 172, f. 
 decision by court when all the facts are before it, 172, f. 
 procedure when all the facts are not before the court, 172, f. 
 when costs awarded against a receiver are payable, 172, g. 
 motion to compel receiver to pay costs awarded against him, 172, g. 
 papers should show that receiver has money to pay with, 172, g. 
 question as to disposition of funds of, decided when, 172, g. 
 remedy when unauthorized execution to collect costs personally is 
 issued, 172, g. 
 
 REDEMPTION FROM MORTGAGEE IN POSSESSION, 
 general rule as to costs, 120, o. 
 Tinsuccessful appeal by mortgagee, 120, o. 
 
 necessity of tender by mortgagor before commencing action, 120, o. 
 payment of costs of foreclosure ineffectual as to mortgagor. 120, o. 
 successful plea of statute of limitations, 120, o. 
 
 REEEREE, FEES OF, 
 
 amount of; statute, 413, a. 
 
 amount of, appointed under § 873, 413, a. 
 
 stipulation of attorneys as to; power to fix fees of, 8. 
 
 signing agreement increasing, 413, b. 
 
 insertion of, in minutes, 413, b. 
 
 that referee fix own, 413, b.
 
 614 INDFA'. 
 
 (Iteferences are to sections.) 
 REFEREE, FEES OF— (continued) . 
 
 oral stipulation of one party, refusing to sign agreoniont, 413, b. 
 charge for "every hearing," interpretation of, 413, 1). 
 enforcement of, by court, 413, b. 
 by receiver, necessity of permission of court, 413, b. 
 tliat each party pay one half, 413, b. 
 number of days occupied; necessity of proof of, before taxation of 
 
 costs, 413, c. 
 motion for readjustment, to raise question on appeal, 413, c. 
 necessity of affidavits to support, after objection, 413, c. 
 sufficiency of affidavit of attorney in such case, 413, c. 
 affidavit or certificate of referee, sufficiency of, 413, c. 
 what the affidavits should show, 413, c. 
 
 adjournment at request, then made; when ready to proceed, 413, c. 
 adjournment before the day set for hearing, 413, c. 
 filing one paper, 413, c. 
 examination of testimony, in addition to general study of case, 
 
 413, e. 
 preparing opinion and report, 413, c. 
 
 investigating and considering case after submission, 413, c. 
 two .i.ctions tried together, 413, d. 
 deciding several cases on same day, 413, d. 
 two actions tried before same referee; stipulation that one half fees be 
 
 charged in each case, 413, d. 
 computation of fees upon dismissal of complaint in one, 413, d. 
 absence of stipulation; cases in different courts, 413, d. 
 evidence applicable to each; fees for each day, 413, d. 
 deciding several cases on same day, 413, d. 
 how fees are collected; right to hold report till paid, 413, e. 
 right of party to terminate reference imder § 1019, 413, e. 
 right to terminate reference to ascertain attorney's lien, 40, b. 
 when right to terminate can be exercised, 413, e. 
 right to fees after such termination, 413, e. 
 sufficiency of notice to terminate reference, 413, e. 
 necessity of actual delivery of report, to prevent termination, 
 
 413, e. 
 effect of conditional delivery to prevent termination, 413, e. 
 remedy of referee delivering report before payment, 413, e. 
 action against all parties to recover fees, 413, e. 
 action against successful party to recover fees, 413, e. 
 liability of attorney for, 46, 413, e. 
 
 compelling successful party by order, to take up report and pay 
 fees, 413j e.
 
 INDEX. t)15 
 
 (References are to sections.) 
 KEFEREE, FEES OF— (continued) . 
 
 contempt proceedings to compel receiver to pay fees of referee 
 passing on his account, 413, e. 
 
 motion to compel filintr of report: court passing on fees, 413, e. 
 
 stipulation that successful party pay part; balance a lien on judg- 
 ment, 413, e. 
 
 remedy when referee collects too much, 413, e. 
 ■extending time to report; extension for a definite time, 413, f. 
 
 right to terminate reference upon expiration of that time, 413, f. 
 
 extension for an indefinite time, 413, f. 
 
 right to end reference thereafter, 413, f. 
 
 stipulation that surviving referee report; time runs from when, 
 413, f. 
 
 necessity of formal stipulation, 413, f. 
 
 report withheld at request of parties. 413, f. 
 
 fair dea'ing estops party from taking advantage of statute. 413, f. 
 
 report filed after expiration of tiniQ; reference not ended, 413, f. 
 "fees of referee wiien there is no power to refer, 413, g. 
 setting aside report for misconduct of referee, 413, h. 
 reference upon a motion, taxing fees of, 413, i, 48, b, 7, a. 
 in regular prosecution of action; reference rendered useless, 413, j. 
 to ascertain damages on default, which is subsequently opened, 413, j. 
 ■caused by wilfulness of party, 413, j. 
 ^o sell on mortgage foreclosure; statute governing, 413, k. 
 
 fees of printer for advertising, 412. 
 
 limit of fees; sale less than $10,000, 413, k. 
 
 discretion of court; sale more than $10,000, 413, k. 
 
 when additional compensation should be granted, 413, k- 
 
 disbursements of referee; posting notice of sale, 413, k. 
 
 effect of changing sheriff's fees by independent statute, 413, k. 
 
 percentages on sales, 413, k. 
 
 required to take security, or distribute proceeds, 413, k. 
 
 selling property more than once, 413, k. 
 
 under the Revised Statutes, 413, k. 
 
 dispute as to amount, how settled, 413, k. 
 
 allowing purchaser to deduct costs of prior foreclosure, 413, k 
 
 liability for not following judgment, 120, n. 
 tto sell in partition action; advertising sale in daily paper, 413, 1. 
 
 power of the court to authorize such disbursement, 413, 1. 
 
 fee of printer for printing legal notice, 412. 
 
 under the Revised Statutes, fees computed on what, 413, 1. 
 
 limit as to amount of fees, 413, 1.
 
 616 INDEX. 
 
 (References are to sections.) 
 REFEREE, FEES OF— (continued). 
 
 commissions when court makes distribution, 413, 1. 
 reason of referee receiving more than sheriff, 413, 1. 
 
 REFEREE, POWER OVER COSTS, 
 power over discretionary costs, 108. 
 failure to award costs, 108. 
 judgment on report should contain costs, 108. 
 
 costs awarded to defendant; special term allowing separate bills, lOS^. 
 discretion, liow reviewed, 108. 
 discretion used unwisely, 108. 
 when discretion will be reversed, 108. 
 failure to pass on costs; remedy, 108. 
 ordering each party to pay part, 108. 
 ordered by appellate division to pass on costs, de novo, 103. 
 
 RELIEF FROM BID, 
 
 motion for, on account of defect in title, 127. 
 amount allowed on such motion, 127. 
 allowance of counsel fee in examining title, 127. 
 
 REPEAL, 
 
 of law, defeating plaintiff's cause of action, 394. 
 
 REPLEVIN. See Chattels, Action fob. 
 
 RETAINING LIEN OF ATTORNEY, 
 definition of, 9, b. 
 on what imposed, 9, b. 
 for what imposed, 9, b, 9, c. 
 waiver of, 9, b. 
 duration of, 9, b. 
 
 on judgment, after collection of, 9, c. 
 on money in hands of receiver, 9, c. 
 
 RETAXATION OF COSTS, 
 to correct mistake, 87. 
 
 service of notice of, where costs are taxed without notice, 374^ 
 amount reduced on; effect on judgment, 376. 
 payment of costs previous to motion for, 376. 
 See also Taxation. 
 
 RETAXING COSTS, 
 
 paid for opening a default, 406, e. 
 
 RETROACTIVE, 
 
 when statute as to costs construed as, 5.
 
 INDEX. 617 
 
 (References are to sections.) 
 RIGHT, 
 
 to costs, inherent, 3. 
 
 to costs, statutory, 3. 
 
 to costs, vested during action, 5. 
 
 s. 
 
 SCHOOL OFFICERS, 
 
 action against, for act appealable to state superintendent, 134, a. 
 
 action against a supervisor for act thus appealable, 134, a. 
 
 action against, for a penalty, 134, a. 
 
 to enforce decision of state superintendent, 134, a. 
 
 certificate of good faith of defendant, 134, a. 
 
 repayment of costs against, action authorized, 134, a. 
 
 repayment of disbursements incurred, action authorized, 134, a. 
 
 repayment of costs against, action unauthorized, 134, a. 
 
 repayment of disbursements, action unauthorized, 134, a. 
 
 meeting of district to vote reimbursement, action unauthorized, 134, a. 
 
 appeal from decision not to reimburse, action unauthorized, 134, a. 
 
 appointment of committee to represent district on appeal, 134, a. 
 
 costs of such committee how paid, 134, a. 
 
 costs awarded on such appeal, 134, a. 
 
 action against collector for selling property, 134, b. 
 
 costs of appeal, 134, b. 
 
 officer acting, pending contest, as evidence of bad faith, 134, b, 
 
 supervisor not honoring draft of de facto trustee, 134, b. 
 
 collector refusing to pay order of trustee, 134, b. 
 
 remedy when a levy for a tax is made, 134, b. 
 
 effect of a certificate of good faith, 134, e. 
 
 nmnber of certificates of good faith, 134, c. 
 
 certificate of bad faith, 134, c. 
 
 nature of action, or certificate determining exemption, 134, c. 
 
 costs awarded against, how collected, 134, d. 
 
 mandamus to compel payment of such costs, 134, d. 
 
 trustee entitled to double costs, 132, a, 134, e. 
 
 collector entitled to double costs, 132, a, 134, e. 
 
 SECURITY FOR COSTS, 
 
 statutory pro\isions, 236. 
 
 constitutionality of law, 236. 
 
 application of law to plaintiffs, 236. 
 
 application of law to defendants, 236. 
 
 application of law to actions on contract or tort, 236, 
 
 application of law to special proceedings, 236.
 
 ■618 INIJEX. 
 
 (Refereuces are to sections.) 
 SECURITY FOR COSTS— (continued). 
 
 application of law to supplementary proceedings. -ZoO. 
 
 provisions relate to what courts, 237. 
 
 foreign corporation bringing action in justice court, 2;}7. 
 
 removal by defendant of action to court of record, 237. 
 
 after such removal plaintiff moves for commission, 237. 
 
 defendants brought in, imder § 452. 237. 
 
 effect of plaintiff giving undertaking in replevin, 237. 
 
 effect of plaintiff giving undertaking in attachment, 237. 
 
 effect of plaintiff giving undertaking on procuring injunction, 237. 
 
 effect of plaintiff giving undertaking on arrest, 237. 
 
 order for, how obtained, 238. 
 
 eoB parte order under §§ 3268-3270, 238. 
 
 right of defendant to, under those sections, 238. 
 
 effect of laches in those cases, 238. 
 
 procedure on obtaining ex jmrte order, 238. 
 
 procedure on obtaining order on notice, 238. 
 
 necessity of notice, under § 3271, 238. 
 
 renewal of motion after denial, 238. 
 
 how long order for, remains in force, 238. 
 
 ex parte order for, on appeal, 238. 
 
 order for, on appeal, can cover what, 238. 
 
 notice of application, when order covers all costs, 233. 
 
 review of discretion of court on motion for, 238. 
 
 power of cotuity judge, in supreme court action. 238. 
 
 order to show cause why security should not be filed, 238. 
 
 dismissal of complaint for failure to file, 238. 
 
 discretion to excuse laches in filing, 238. 
 
 complaint dismissed after filing; liability of sureties, 238. 
 
 amount of; many defendants, 238. 
 
 order, for whose benefit; many defendants, 238. 
 
 as terms of reviving action against .an executor, 238. 
 
 application for additional security; application under § 3276, 239. 
 
 estoppel of plaintiff to deny authority of court, 239. 
 
 when order will be made, 239. 
 
 nonresident plaintiff and surety both die, 239. 
 
 after verdict for plaintiff, 239. 
 
 after verdict for plaintiff"; exceptions heard at appellate division, 
 239. 
 
 when plaintiff has deposited money in lieu of security, 239. 
 form of bond; plaintiff uniting with sureties, 240. 
 
 where there are two or more defendants, 240.
 
 l^DKX. 619 
 
 (References are to sections.) 
 gEClj'ElTY FOR COSTS— (continued) . 
 
 waiver by one defendant, not joining in motion. 240. 
 
 conditioned for what, 240. 
 
 binding whom, 240. 
 
 demand of obligors, not demand of plaintiff, 240. 
 
 omission of the words "on demand," 240. 
 
 bond not containing a penalty, 240. 
 
 waiver of that defect, 240. 
 
 liability of surety on such undertaking, 240. 
 
 when objection to, must be made, 240. 
 deposit of money, instead of giving bond, 241. 
 right to deposit money, after disapproval of sureties. 241. 
 withdrawal of money after verdict for plaintiff. 241. 
 deposit of money of third person as, 242. 
 liability of third person for costs of action, 242. 
 liability thereof for debts of plaintiff, 242. 
 appeal by plaintiff without staying proceedings, 243. 
 payment to defendant of costs pending such appeal, 243. 
 remedies of plaintiff' upon reversal; costs paid to defendant, 243. 
 deposit upon order of arrest, 244. 
 
 costs of successful motions and appeals from order, 244. 
 payment of costs of action from deposit, 244. 
 
 liability of attorney when right to security is absolute: when he doea 
 not cause security to be filed, 245. 
 
 amount of such liability, 245. 
 
 action brought for defunct corpor.Ttion, 245. 
 
 in v.hat courts this liability attaches, 245. 
 
 removal of liability upon substitution of attorneys. 245. 
 
 what will remove liability, 215. 
 
 defendant moving for security; security not filed, 245. 
 
 plaintiff of record nonresident, real plaintiff resident, 245. 
 
 how such liability may be enforced, 245. 
 
 what the defendant must show on motion to enforce, 245. 
 
 where plaintiff becomes nonresident pending action, 245. 
 
 appeal dismissed; motion to enforce liability, where made, 245. 
 
 appeal dismissed: motion to enforce liability, when made, 245. 
 
 attorney as surety; how liability is enforced, 245. 
 right to, lost by laches; discretion of court as to, thereafter, 246. 
 
 effect of serving answer, first department, 246. 
 
 effect of serving answer, third department, 246. 
 
 effect of serving answer, New York city court. 246. 
 
 necessity of moving promptly, 246.
 
 620 INDEX. 
 
 (References are to sections.) 
 SECURITY FOR COSTS— ( continued ) . 
 
 effect of new proceedings on former laches, 246. 
 
 discretion ; motion made after new proceedings taken, 246. 
 wliat is a sufficient excuse for laches; necessity of defendant e.KCUsing 
 laches, 247. 
 
 nonresidence appearing on trial; motion three days after, 247. 
 
 nonresidence as indicated by verification by attorney, 247. 
 
 order obtained without excusing laches, 247. 
 wliat is not a sufficient excuse for laches; defendant examined before 
 trial, case about to be reached, 248. 
 
 complaint showing defendant's right to, 248. 
 
 motion six months after service of complaint, but before answer, 
 248. 
 
 service of answer in first department, 248. 
 
 motion before answer, but after many proceedings, 248. 
 
 delay of eight months after knowledge of right, 248. 
 
 delay of two months after first order was set aside, 248. 
 
 demand after trial has commenced, 248. 
 
 motion made after third trial, 248. 
 
 delay of nearly one year, 248. 
 
 entering interlocutory judgment under Revised Statutes, 248. 
 
 delay of two years; no inquirj' of plaintiff's attorney, 248. 
 
 delay of two months and loss of term, 248. 
 
 delay of plaintiff to set aside improper order, 248. 
 defendant in default, and not entitled to costs, 249. 
 defendant in default, but may be entitled to costs. 249. 
 right of defendant to move while in default, 249. 
 defendant let in to defend; judgment to stand as security. 249. 
 judgment opened on merits, 249. 
 
 discretion of trial court reviewed by court of appeals, 249. 
 opening order granted on insufficient paper.s, 249. 
 moving to open improper order on same papers, 249. 
 moving to open improper order on new papers, 249. 
 how nonresidence proved ; ordinary rules of evidence, 250. 
 
 plaintiff attempting to show residence, 250. 
 
 plaintiff nuist give address, 250. 
 
 hearsay evidence of removal from state, 250. 
 what is nonresidence; resident aliens, 251. 
 
 where plaintiff becomes resident after action conimciicpd. 251. 
 
 remoA-al of plaintiff, intended or actual, 251. 
 
 vacating order, amended law not requiring, 251. 
 
 positive statement of nonresidence made by attorney. 251. 
 
 what is meajit by residence, 251.
 
 INDEX. 621 
 
 (References are to sections.) 
 SECURITY FOR COSTS— (continued). 
 
 married man; family in one place, business in another, 251. 
 
 resident so long absent that attachment would lie, 251. 
 
 nonresident liaving property in state, 251. 
 special rule in city court of New York; statute governing, 252. 
 
 necessity of showing that plaintiff has no office, 252. 
 
 ■where plaintiff is a foreign corporation, 252, 257. 
 
 rule applying to other courts, 252. 
 nonresident not obliged to give; one plaintiff not obliged to give, 253. 
 
 costs of former action not paid by exempt plaintiff, 253. 
 
 action in two capacities; one exempt, 253. 
 
 nonrpsident landlord in summary proceedings, 253. 
 
 nonresident relator in habeas corpus, 253. 
 
 nonresident as appellant from inferior court, 253. 
 action on the bond pending an appeal, 253. 
 
 plaintitr removes from state bofore judgment in his favor, 254. 
 plaintiff removes from state after recovering judgment and before 
 
 reversal, 254. 
 removal after judgment, but before judgment opened, 254. 
 requirements under the Revised Statutes in replevin, 254. 
 requirements under the Code of Civil Procedure in replevin, 254. 
 assigning cause of action to resident, 255. 
 assigning cause of action that action may be brought, 255. 
 plaintiff claiming as absolute assignee, 255. 
 assigning cause of action after motion for security, 255. 
 residence of a domestic corporation, 256. 
 residence of a foreign corporation, 257. 
 residence of a national bank, 257. 
 residence o^ 'i foreign government, 257. 
 when plainiiir is an infant; guardian ad litem, not giving security, 258. 
 
 obtainfng order to sue in forma pauperis, 258. 
 
 obtaining such order ex parte, 258. 
 
 responsibility of guardian for costs, 253. 
 
 failure of papers to show responsibility of guardian, 253. 
 
 form of judgment for costs against infant, 258. 
 
 how such a judgment is satisfied, 258. 
 
 necessity of issuing an execution against the infant, 258, 
 
 where infant becomes of age pending action, 258. 
 
 liability for costs accrued before infant becomes of age, 253. 
 when plaintiff is an executor; discretion of court upon application for, 
 259, a. 
 
 necessity of mismanagement or bad faith, 259, a.
 
 622 iM)KX. 
 
 (Uefeiences are to sections.) 
 SECURITY FOR COSTS— (continued) . 
 
 action brouglit in good faith, 259, a. 
 
 complaint not stating cause of action, 259, a. 
 
 action commenced by decedent, revived by executor, 2r)9. a. 
 
 staying motion for substitution till payment of costs, 259, a. 
 
 stay aftei- substitution; testator's default, 259, a. 
 
 effect of insolvency of estate, 259, b. 
 
 cause of action only asset, 259, b. 
 
 granting motion equivalent to denial of trial, 259, b. 
 
 action brought in bad faith, 250, b. 
 
 iionresidence of executor, 259. c. 
 
 testator required to give; executor nonresident, 259, c. 
 
 notice of application for, 259, d. 
 
 required on appeal, as covering past costs, 259, c. 
 when plaintiff is a receiver; lack of fimds, 260. 
 
 action brought in bad faith, or heedlessly, 260. 
 
 action on claim already paid, 260. 
 
 nonresident receiver of national bank, not situated in state. 260. 
 
 personal action; erroneously entitled as receiver, 260. 
 
 assignee for benefit of creditors as trustee of express trust, 260. 
 
 discretion of court; receiver in supplementary proceedings, 261. 
 
 requiring, after permission to sue, 261. 
 
 in action to set aside deed, 261. 
 when plaintiff is a trustee in bankruptcy; as a trustee of an express 
 trust, 262. 
 
 no funds to pay costs, 262. 
 
 claim arising before adjudication in bankruptcy, 262. 
 
 setting aside conveyance, violating bankruptcy law, 262. 
 
 when such cause of action arose, 262. 
 
 action which creditor could have brouglit, 262. 
 
 SEDUCTION, 
 
 amount of costs, as determined by amount of verdict, 103, a. 
 
 SENECA INDIAN, 
 
 costs against, in personal action, 3.35. 
 
 costs against, real property belonging to tribe, 335. 
 
 SET OFF OF COSTS, 
 
 different actions, as affecting attorney's liens, 38. 
 in same action, as affecting attorney's lien, 38. 
 interlocutory costs as affected by attorney's lien. 38. 
 costs in special proceedings arising out of action. 38. 
 judgment for costs only, against another judgment, 38.
 
 INDKX. 623 
 
 (References are to s ■< ''.us.) 
 SET OFF OF ACTION— ( continued). 
 
 different actions, costs in one not taxed. 3S. 
 
 claim in action, against judgment, 38. 
 
 judgment on appeal, against anotlier judgimiit. "S. 
 
 costs on order, against judgment for costs ant! il;;iii;gc.-<. 33. 
 
 costs on offer of judgment, against verdict, 38. 
 
 as affected by assignment of costs to accrue, 38. 
 
 as affected by assignment of judgment, 38. 
 
 of uncollected motion costs in judgment. 38. 
 
 SETTLEMENT OF ACTION, 
 
 effect of, on attorney's lien, 19, a. 
 entry of judgment after, 19, a. 
 as between the parties, 19, b. 
 relieving client from, 19, b. 
 
 setting aside by attorney, what must be shown, 19, b. 
 in forma pauperis, 19, c. 
 
 fraudulent} attorney's lien wlien client is insolvent, 19, d. 
 fraudulent; attorney's lien on costs and disbursements, 19, d. 
 fraudulent; attorney's lien, agreed compensation, 19, d. 
 fraudulent; attorney's lien on costs and allowance, 19, d. 
 intent of parties, on motion to set aside, 19, e. 
 
 to what extent; judgment set aside on application of attorney, 21. 
 judgment entered after, to protect attorney's lien, 21. 
 where attorney has contingent interest, 21. 
 dismissal of appeal after, attorney having contingent fee, 21. 
 terms of dismissal of appeal after ; contingent fee, 27. 
 enforcement of attorney's lien after, 32, b, 
 to what attorney's lien attaches, 32, b. 
 
 enforcement of attorney's lien against judgment debtor, 32, b. 
 enforcement of attorney's lien; client insolvent, 32, b. 
 when attorney has been injured by, 32, b. 
 setting aside of collusive, to protect attorney's lien, 32, f. 
 collusive settlement as between the parties, 32, f. 
 what attorney must show to set aside, 32, f. 
 
 continuing action after, to protect attorne3''s lien ; right of attorney 
 to, 32, g, 1. 
 
 notice of application for leave to proceed, 32, g, 1, 
 
 liability for costs, 32, g, 1. 
 
 what must be shown on application, 32, g, 2. 
 
 payment of contingent fee ordered instead of permission to. 
 32, g, 2. 
 
 client retains right to settle; attorney has contingent fee, 32, g, 2.
 
 62-1 INDEX, 
 
 (References are to sections.) 
 SETTLEMENT OF ACTION— (continued). 
 
 proof on trial, 32, g, 3. 
 right of defendant to set up, in supplemental answer, 33. 
 after judgment; riglit to issue execution after, 34. 
 
 motion to set aside satisfaction of judgment, 34. 
 
 such motion is a special proceeding, 34. 
 
 an appeal lies therefrom to the court of appeals, 34. 
 
 to what extent satisfaction will be set aside, 34. 
 
 procedure when attorney claims a contingent fee, 34. 
 
 action to set aside satisfaction of judgment, 34. 
 
 motion to set aside; party remitted to action, 34. 
 
 justice's court setting aside satisfaction of judgment, 35. 
 
 municipal court setting aside satisfaction of judgment, 35. 
 
 opening default to allow defendant to plead settlement, 5G, a. 
 in matrimonial actions; continuing, to protect attorney's lien, 
 32, g, 2, 39. 
 
 liability of husband to wife's attorney; divorce action, 136, f. 
 
 reduction of counsel fees after, 13G, f. 
 
 separation, liability of husband to wife's attorney on, 137. d. 
 
 separation, liability of husband, before allowance, 137, d. 
 
 separation, liability of husband, plaintiff after, 137, d. 
 
 procedure of attorney- to enforce such liability, 137, d, 
 
 SEVERAL CAUSES UNITED IN ONE ACTION, 
 statute governing costs, 316, a. 
 necessity of aihrmative verdict on merits, 316, b. 
 effect of failure of proof on part of plaintiff, 316, b. 
 direction of nonsuit, 316, b. 
 
 complaint states two causes of action in one count, 316, b. 
 necessity that complaint set forth two causes separately, 316, b. 
 plaintiff has affirmative verdict on one cause, defendant on another, 
 
 316, b. 
 judgment when both parties are entitled to costs, 316, b. 
 claiming dower and fee; defendant wins on question of fee, 316, b. 
 three causes of action, same property; recovery on one count, 316, b. 
 applicability of cases decided under the Eevised Statutes, 316, b. 
 applicability of cases decided under the Code of Procedure, 316, b. 
 complaint amended at trial so plaintiff recovers on all, 316, b. 
 plrintiff recovers only part of property; one count, 316, c. 
 necessity that complaint state separately two causes, 316, c. 
 remedy of defendant where complaint has one count, to recover sevei al 
 
 chattels, 316, c. 
 discretion of court in equity, 316, d. 
 certificate mentioned in § 3234 covers what cases, 316, d.
 
 INDEX. G25 
 
 (References are to sections.) 
 SEVERAL DEFENDANTS, 
 
 plaintiff's right to costs, when he wins as to some, but not all, 318, a. 
 right of successful defendants to costs in such a case, 318, a. 
 application of defendants to court for costs in such case, 318, a. 
 application when action is tried before a referee, 318, a. 
 whet must appear in such a case, 318, a. 
 
 where all defendants have same attorney; successful defendants uniting 
 with unsuccessful in answer, 318, b. 
 power to award costs in such a case, 318, b. 
 different defeases in separate answers, 318, b. 
 summons served at such long intervals, two answers necessary. 
 
 318, b. 
 plaintiff limited as to costs; one defendant allowed costs, 318, b. 
 one bill awarded to two defendants; affirmed as to one without 
 
 costs; reversed as to other, costs to abide event, 318, b. 
 action on bond given on sucli appeal; parties, 318, b. 
 applicability of cases decided under Code of Procedure, 318, b. 
 defendants appear by different attorneys; general rule as to successful 
 defendants, 318, c. 
 one attorney withdrawing upon appeal, 318, c. 
 appearance in trial court, as determining right to costs, 318, c. 
 judgment to be entered; several bills of costs, 318, c. 
 disbursements, when several bills of costs are allowed, 318, c. 
 judgment when plaintiff and one defendant win, 318, c. 
 severance for the purpose of increasing costs, 318, c. 
 complaint dismissed, not stating cause of action, 318, c. 
 burden upon whom, to show that severance was to increase costs, 
 
 318, c. 
 partners appearing for different defendants, 318, e. 
 one attorney being clerk of another, 318, c. 
 attorneys occupying same office, 318, c. 
 
 attorney for one defendant retaining attorney for another defend- 
 ant, 318, c. 
 defendants partners at time liability was incurred, 318, c. 
 defendants formerly partners, now hostile, 318, c. 
 where partnership ceased before liability incurred, 318, c 
 judgment, one bill of costs to two defendants, 318, c. 
 remedy when one defendant is not satisfied witli judgment, 318, c. 
 one attorney withdraws after answer, 318, c. 
 plaintiff succeeds as to all defendants, 318, c. 
 accepting separate offers of judgment, 318, c. 
 plaintiff's costs under former civil damage act, 318, c. 
 finality of order granting or refusing separate costs, 318, c 
 judgment entered contrary to such order, 318, c. 
 COSTS 40.
 
 626 INDEX. 
 
 (References are to sections.) 
 SEVERAL DEFENDANTS— ( continued ) . 
 
 awarding separate costs, after judgment, 318, c. 
 
 allowing separate costs on motion to set aside costs, 318, c. 
 
 all defendants unite in appeal; reversal, "costs to appellants," 318, d„ 
 
 SEVERANCE OF AX ACTION, 
 statute as to costs, 324, a. 
 several actions when one is sufficient, 324, b. 
 several actions for tort, one sufficient, 324, b. 
 complaint dismissed as to one; order reversed, judgment against botk> 
 
 defendants, 324, b. 
 two equity actions tried together, one sufllcient, 324, b. 
 judgment on part admitted; continued as to balance, 324, c. 
 what determines right to costs in such case, 324, c. 
 judgment on part admitted; action discontinued, 324, c. 
 
 SEWER, 
 
 procedings to acquire land for, 152. 
 
 SHERIFF, 
 
 as defendant, entitled to double costs, 132, a. 
 liability of attorney for fees of. See Attorney, 
 
 SLANDER, 
 
 amount of costs, as determined by amount of verdict, 103, a, 
 
 SPECIAL PROCEEDINGS, 
 lien of attorney in, 15. 
 
 lien of attorney, to disbar an attorney, 15. 
 general rule as to costs, when not specially regulated, 148. 
 mandamus. See Mandamus, 
 
 condemnation proceedings. See Condemnation Peoceedings. 
 proceedings relating to railroads. See Railroads. 
 to appraise damages for extension of street, 152. 
 amount of costs on affirmance of appeal by trustees from award, 152. 
 amount of costs on reversal of appeal by trustees from award, 152. 
 amount of costs on affirmance of appeal by owner from award, 152. 
 amount of costs on reversal of appeal by ON\nier from award, 152, 
 to acquire land for sewer purposes, 152. 
 motion for appraiser's fees under special act, 152. 
 what papers must contain on such a motion, 152. 
 
 application for costs, etc., commissioner of estimate of New York, 152.- 
 what papers must contain on such application. 152. 
 application for appraiser's fees, New York water supply, 152. 
 grade crossing act (Laws 18S8, cliap. 345), 152.
 
 INDKX. 627 
 
 (Uet'eieuces are to sections.) 
 SPECIAL PROCEEDINGS— { continued ) . 
 
 taxpayer investigating afl'airs of a village, 153. 
 
 remedy for improper taxation of costs, 153. 
 
 attorney and counsel fees in such investigation, 153. 
 
 third parties, whose bills are irregular; liability of, 153. 
 
 highway, opening of, successful application, 154. 
 
 highway, opening of, application denied, 154. 
 
 highway, opening of, extent of liability of petitioner, 154. 
 
 reassessment of damages, costs of, 154. 
 
 apportionment of costs of reassessment of damages, 154. 
 
 private road, costs of laying out, 154. 
 
 private road, costs of rehearing as to damages, 154. 
 
 investigating the afl'airs of a county, 155. 
 
 reimbursement of private person for such expenses, 155. 
 
 necessity of authorization of attorney general therein, 155. 
 
 remedy when board of supervisors refuse to audit such a claim, 155. 
 
 tax equalization; remedy to collect amount ordered, 155. 
 
 tax equalization; amount paid by supervisors to their attorney, 155. 
 
 punishment of taxpayer; nonpayment; no demand, 155. 
 
 to vacate assessment, 156. 
 
 under special acts for laying out streets, 157. 
 
 several defendarfts answering separately, 157. 
 
 proceedings under village law (Laws of 1897, chap. 414), 157. 
 
 double costs in; costs not regulated by § 3251, 132, b. 
 
 to discharge from imprisonment; what items are allowed, 17L 
 
 contempt proceedings to collect costs on state writs, 167. 
 
 services of attorney for excise commissioners, sought to be removed, 
 
 1G8. 
 remedy when board of supervisors refuse to audit such claim, 168. 
 proceedings to mortgage trust propertj', 169. 
 trial fee, Avhen sent to referee, 169. 
 appeal from order therein, 169. 
 proceedings before an officer, 170. 
 appeal from order therein, 170. 
 terms of discontinuance of, 67. 
 collection of motion costs in, 416. 
 additional allowance: when the costs are fixed by § 3240, 150, a, 313. 
 
 certiorari to review an assessment, 159, d, 313. 
 
 under the condemnation laAV, 150, b, c, 313. 
 
 condemnation proceedings not under that law, 313. 
 
 mandamus, 149, e. 
 
 on discontinuance under the condemnation law, 151, d.
 
 628 INDEX. 
 
 (References are to sections.) 
 SPECIAL VERDICT, 
 
 application for judgment on, 48, b. 
 
 application for judgment, in what actions, 48, b. 
 
 SPECIFIC PEPvFORMANCE, 
 
 necessity of demand of conveyance before action for, 12G. 
 necessity of ?uch demand, conveyance impossible, 126. 
 successful party guilty of sharp practice, 126. 
 successful defendant not candid in refusal to convey, 126. 
 paper removing flaw in title shown on trial, 126. 
 action retained to allow plaintiff to recover damages, 1"26. 
 defense when party has no interest in property, 126. 
 to compel the execution of a mortgage, 126. 
 additional allowance, under § 3252, 299, c, 314. 
 
 STATE WEITS, 
 
 costs on, how collected, 419. 
 
 peremptory mandamus after alternative, 419, 
 
 proceedings instituted before whom, 419. 
 
 discretion of court in entertaining contempt proceedings, 419. 
 
 discretion of court; ability of defeated party to pay, 419. 
 
 what adjudication, order directing precept to issue must contiiin, 419. 
 
 service upon the attorney of order to show caustf, 419. 
 
 STATUTE, 
 
 which governs as to costs, 5. 
 
 right of legislature to charge as to costs pending action, 5. 
 
 right of legislature to make allowance for new services, 5. 
 
 right of legislature to impose new conditions pending action, 5. 
 
 right of legislature to abolish costs pending action, 5. 
 
 changing right to costs pending action, as ex post facio, 5. 
 
 interpretation of, as prospective or retroactive, 5. 
 
 changed after default and before judgment, 5. 
 
 changed after action is determined, but before taxation, .5. 
 
 changed after verdict, but before entry of judgment, 5. 
 
 changed pending stay until case is made, 6. 
 
 changed after argument, but before decision, 6. 
 
 governing additional allowances, 294. 
 
 STATUTE OF LIMITATIONS, 
 
 application of, to attorney's liens, 12, 29. 
 
 in action to enforce attorney's lien, 29. 
 
 retaining money after statute has run, on attorney's lien, 29. 
 
 STAY FOR NOXPAYIVIENT OF COSTS, 
 inherent power of court to, 361.
 
 INDEX. 629 
 
 (References are to sections.) 
 STAY FOR NONPAYMENT OF COSTS— (continued), 
 statute as to motion costs, 361. 
 liow statutory stay invoked, 361. 
 at wliat time such stay becomes operative, 361, 370. 
 nonpayment of motion costs in surrogate's court, 184. 
 nonpayment of motion costs; proceedings by creditors against as- 
 signee for benefit of creditors, 164, e. 
 staying second action till costs in first action are paid; in what action 
 motion should be made, 362. 
 M'hat affidavits thereon should contain, 302. 
 when motion may be made, 362. 
 motion after judgment in second action, 362. 
 when motion should be made in New York district courts, 362. 
 necessity of sliowing good defense, 362. 
 compelling payment of motion costs and former costs, 362. 
 discretion of court in granting stay, 362. 
 failure to pay costs, as a bar to second action, 362. 
 duty of defendant to issue execution to collect costs, 362. 
 effect of defendant's laches in moving for stay, 362. 
 bringing actions in different courts, 363. 
 first action in a Federal court, 363. 
 first action in the court of another state, 363. 
 matrimonial action by husband, 363. 
 matrimonial action by wife, 363. 
 
 by receiver, first dismissed for irregularity of appointment, 363. 
 power of the New York district courts, 363. 
 power of a justice of the peace, 363. 
 payment of costs after motion made for stay, 363. 
 unsuccessful plaintiff assigning cause of action, 364. 
 right of substituted plaintiff to appeal, 364. 
 
 interest of moving party in collection of costs; moving party no 
 interest in collection of costs, 365. 
 first against defendant personally, second in representative 
 
 capacity, 365. 
 after first action, disputed property transferred, 365. 
 second action against first defendant and assignee, 365. 
 costs of first action are assigned, 365. 
 moving party, not party to former action, 365. 
 plaintiffs different, but claiming under same title, 365. 
 joining new defendant in second action, 365. 
 second action involves same title; land diiferent, 366. 
 action in tort and ex contractu from same cause, 366. 
 first as factor, second as owner, 366.
 
 630 INDEX. 
 
 (References are to sections.) 
 STAY FOE, NONPAYMENT OF COSTS— (continued). 
 
 plaintiff suing in forma pauperis, 367. 
 
 payment of motion costs, before such leave granted, 367. 
 
 appeal by infant whose guardian lias become insolvent, 368. 
 
 first action dismissed, "without prejudice," 369. 
 
 presumption of payment of costs, 369. 
 
 necessity that record show that actions are identical, 369. 
 
 necessity of showing that first action is ended, 369. 
 
 when action is ended on order of discontinuance, 369. 
 
 leave for second motion; first, premature, 369. 
 
 plaintiff imprisoned on execution against the person, 369. 
 necessity of taxation of costs on discontinuance, 370. 
 
 necessity of service of new order substituted for another, 370. 
 
 power of court to extend statutory stay, 371. 
 what proceedings aie stayed; moving case for trial, 371. 
 
 making motion in action, 371. 
 
 entering judginent on defective pleadings, 371. 
 
 reviewing order by motion, 371. 
 
 reviewing order by appeal, 371. 
 
 reviewing costs of such appeal, 371. 
 
 moving to set aside execution against the person, 371. 
 
 motion by administrator to be substituted, 371. 
 
 restraining third party, 371. 
 
 motion that opposite party enter judgment, 371. 
 
 nonpayment in supplementary proceedings, stay in action, 371. 
 
 similar motion as to one whose costs are unpaid, 371. 
 
 placing case on calendar. 371. 
 
 such action, as contempt of court, 371. 
 
 right of party when case is moved, 371. 
 
 serving reply to counterclaim set up in answer, 371. 
 
 right to take any onward movement, 371. 
 
 right to serve any defensive pleading, 371. 
 
 right to serve an answer, 371. 
 
 serving answer containing counterclaim, as a waiver, 371. 
 
 costs on appeal from order; nonpayment as a stay, 371. 
 waiver of stay; by taking an onward movement in the action, 372. 
 
 by serving notice of trial, 372. 
 
 not insisting on stay when opposite party moves, 372. 
 
 accepting notice of trial, 372. 
 
 arguing a motion on its merits, 372. 
 
 taking an appeal from the decision of such motion, 372. 
 
 proceeding with case, after decision that payment would end stay, 
 372.
 
 INDEX. 031 
 
 (References are to sections.) 
 rSTAY FOR NONPAYMENT OF COSTS— (continued) . 
 termination of stay; payment of costs to party, 373. 
 payment of costs to attorney, 373. 
 payment to sherifl" on execution, 373. 
 tender of costs upon argument of another motion, 373. 
 
 tstenographer, fees of, 
 
 authority for taxing, 414, a. 
 abortive amendment as to in 1895, 414, a. 
 
 incurred upon a reference; taxable disbursement, in absence of a stipu- 
 lation, 414, b. 
 
 where parties agree to employ stenographer and share expense, 
 414, b. 
 
 stipulation to employ stenographer and tax disbursement, 414, b. 
 
 right to question the amount of this disbursement, 414, b. 
 
 stipulation that each pay part; successful party taxing his 
 share, 414, b. 
 
 taxing such, disbursement against party who succeeds as to all 
 others, 414, b. 
 
 requiring statement of amount of services, on taxation, 414, b. 
 minutes obtained to prepare case on appeal, 414, c. 
 minutes obtained to prepare amendments to case on appeal, 414, c. 
 minutes of former trial for use on trial, 414, d. 
 reasonableness of such expense, 414, d. 
 decisions under Code of Procedure, 414, d. 
 contiict of decisions under Code of Civil Procedure, 414, d. 
 minutes of trial of another action, as a disbursement, 414, e. 
 minutes of trial on motion for new trial in county court, 414, f. 
 minutes of trial ordered by the court for its o^\^l use, 414, g. 
 how such charge is paid; taxable as a disbursement, 414, g. 
 special rule in superior city courts, noAV obsolete, 414, g. 
 surrogate's court; power to order minutes, 414, h. 
 surrogate's court; will contest^ 414, h. 
 
 surrogate's court; will contest; notice to proponents, 414, h. 
 surrogate's court; when order must be made, 414, h. 
 allowance in the municipal court of New York, 414, i. 
 transcript of evidence furnished to the court, 414, i. 
 liability of attorney for a copy of the evidence, 46. 
 
 STIPULATION, 
 
 increasing fees of referee; necessity of written agreement, or inser- 
 tion in minutes, 413, b. 
 that referee fix his own fees, 413, b. 
 oral, one party refusing to sign agreement, 413, b.
 
 635 INDEX. 
 
 (References are to sections.) 
 
 STIPUL AT ION— ( continued ) . 
 
 charge for "every hearing," interpretation of, 413, b. 
 
 enforcement of, by court, 413, b. 
 
 by receiver; necessity of permission of court, 413, b. 
 
 thai each party pay one half, 413, b. 
 
 that one half be charged in each of two actions, 413, d, 
 
 that successful party pay part, balance a lien on judgment, 413, &, 
 extending time of referee to report, 413, f. 
 
 expense of stenographer on reference be a disbursement, 414, b. 
 power of attorney to bind client by such stipulation, 414, b. 
 that each party pay a part of stenographer's bill, 414, b. 
 waiver of costs by, 327. 
 
 waiver of costs on submitted controversy, 233. 
 costs dependent on decision of point not considered, 327. 
 promise to pay costs bj'^, how enforced, 327. 
 
 acquiescence in change of record, depriving party of costs, 327. 
 for judgment in action at law; silent as to costs, 327. 
 costs on ambiguous, 327. 
 trustee released from, improvident, 327. 
 costs on such a motion, 327. 
 that costs exceed legal rate, 327. 
 
 that costs on appeals and orders be paid from attached fimd, 332. 
 that case be put on certain calendar, 408, j. 
 that costs of term abide event; term in excess of limit, 408, j. 
 that costs of term abide event; court not having jurisdiction, 408, j. 
 several actions tried together, one bill of costs, 38G. 
 several actions tried together, costs taxed in each, 386. 
 that action at law abide event of another; amount of costs, 317. 
 that action at law be stayed till determination of another, and suc- 
 cessful party enter judgment, 317. 
 expense of taking testimony by, 409. 
 
 that evidence be taken under § 879 as under §§ 872, 873, 409. 
 verbal, as to payments after action commenced, 104, h. 
 relieving client from, to protect attorney's lien, 19, b. 
 
 STREET, 
 
 proceedings to ascertain damages for extension of, 152. 
 amount of costs on affirmance of appeal by trustees from award, 152. 
 amount of costs on reversal of appeal by trustees from award, 152. 
 amount of costs on aflirmance of appeal by OAvner from award, 152. 
 amount of costs on reversal of appeal by OAvner from award, 152. 
 
 SUBMITTED CONTEOVERSY. 
 
 discretion as to costs, when submission is silent thereon^ what itema- 
 are taxable, 233.
 
 INDEX. 63S 
 
 (References are to sections.) 
 SUBMITTED CONTROVERSY— ( continued ) . 
 waivei- of costs by stipulation, 233. 
 successful party prepared case and only brief, 233. 
 costs out of fund of persons not parties, 233. 
 power to grant additional allowance, 233, 288, a. 
 
 SUBSTITUTION OF ATTORNEYS, 
 right of client, 22, a. 
 control of court, 22, b. 
 
 by niotion or proceedings under § 66, 22, b. 
 terms of, settled by reference, 22, b. 
 lien of former attorney terminated by payment, 22, b. 
 extent of attorney's lien on, 22, b. 
 terms of discontinuance of proceeding for, 22, c. 
 right of client to discontinue proceedings for, 22, c. 
 collateral attack of decision on, 22, c. 
 right of client to substitution upon giving bond, 22, d. 
 application for, as waiver of a jury trial, 22, d. 
 immediate substitution, terms of, 22, d. 
 review of order, 22, d. 
 
 application of receiver for; terms on, 22, d. 
 liabilitj- f sul)stituted attorney, 22, c. 
 lien retained on contingent fee, 22, e. 
 services in several actions, 22, e. 
 attorney employed by third person, 22, e. 
 after advancements made by attorney, 22, e. 
 waiver of lien on, 23. 
 for misconduct, 24. 
 when services are valueless, 24. 
 
 misconduct of attorney, determined on reference, 24. 
 proceedings to determine lien on; costs of, 25. 
 protection of attorney's lien upon, 44. 
 after judgment, to protect attorney not of record, 12. 
 
 SUMMARY PROCEEDINGS TO RECOVER REAL PROPERl^^ 
 statute governing costs, 163, a. 
 amount of costs in justice's court, 163, a. 
 tender in, 163, b. 
 
 reversal of final order granted in justice's court, 163, c. 
 appeal, proceedings instituted in court of record, 163, c. 
 payment of judgment to perfect appeal to county court, 163, c, 
 
 SUMMONS, 
 
 fee for serving, 400. 
 
 fee of printer for publishing, 412.
 
 634 INDEX. 
 
 (References are to sections.) 
 SUPERVISORS, BOARD OF, 
 
 as entitled to double costs, 132, a. 
 
 SUPPLEMENTAL ANSWER. See Answeb. 
 
 SUPPLEIMENTARY PROCEEDINGS, 
 statute governing costs, 161, a. 
 at what stage costs are allowed, 181, b. 
 necessity of notice of application for costs, 161, b. 
 out of what fund the allowance is granted, 161, b. 
 allowance after application of funds, IGl, b. 
 costs of motion to dismiss proceedings, 161, b. 
 costs against judgment debtor on third party order, 161, b. 
 judgment debtor pays without examination, 101, b. 
 allowance as "counsel fee" instead of "costs," 161, b. 
 lien of attorney in, 161, b. 
 
 judgment collected on second execution, before allowance, 161, b. 
 how costs against judgment debtor are collected, 161, c, 419. 
 collection of costs against judgment debtor by execution, 161, c. 
 collection of costs against judgment debtor by contempt proceedings, 
 
 161, c. 
 reversal of order adjudging judgment debtor in contempt, 161, o. 
 appeal from such order to the court of appeals, 161, c. 
 dismissal of, on account of defective affidavit, 161, d. 
 under what statute such costs are allowed, 161, d. 
 how costs are paid by creditor to judgment debtor, 161, d. 
 when the judgment debtor should be allowed costs, 161, d, 
 when costs are allowed to a third party, 161, d, 
 costs of motions and appeals from orders, 161, d. 
 maintained for collection of costs only, 415. 
 collection of motion costs of appellate division by, 416. 
 collection of taxes by; costs against officer, 161, f. 
 appeal from order dismissing such proceedings, 161, f. 
 attorney's lien; on warrant of attachment in, 16. 
 
 enforcing lien by, 32, a. 
 
 maintaining proceedings after satisfaction of judgment, 32, a. 
 
 maintaining proceedings after assignment of judgment, 32, a. 
 
 affidavit in such case, 32, a. 
 
 consent of coiu't to maintain such proceedings, 32, a. 
 
 SLTIETIES, 
 
 on appeal to the court of appeals; primary liability of, for costs, 337. 
 liability for costs below, 337. 
 release by, by judgment creditor, 337.
 
 INDEX. 635 
 
 (References are to sections.) 
 SURETIES— ( continued ) . 
 
 appeal dismissed; undertaking not complying with law. 337. 
 
 affirmance of order, directing a new trial, 337. 
 
 costs of action to enforce liability, measured by bond, 337. 
 
 when damages equal bond, 337. 
 
 costs of action against principal alone, 337. 
 
 addition of interest beyond the penalty, 336. 
 
 sufficiency of allegation in action on, 337. 
 
 liability for costs of setting aside settlement of assured with the 
 
 principal, 337. 
 liability for costs of determining liability of principal, 337. 
 on appeal to the appellate division; necessity of written notice of 
 entry of order of judgment, 336. 
 application of statute, 336. 
 
 perfecting appeal to the court of appeals, 336. 
 court of appeals reversing, and affirming original judgmoit, 336. 
 costs of action to enforce, measured by bond, 337. 
 damages equaling bond, 337. 
 
 liability for costs in action against principal alone, 337. 
 addition of interest beyond penalty, 336. 
 on appeal from justice's court; demurrer interposed in county court, 
 346. 
 collection of such costs pending appeal, 346. 
 on attachment; pajinents made by principal, 340. 
 dissolved at special term, plaintiff' appeals, 340. 
 attaching creditor suffers default, 340. 
 costs of unsuccessful attempt to remove, 340. 
 costs of action after such attempt, 340. 
 on order of arrest; liability for general costs, 338. 
 liability for costs accruing from arrest, 338. 
 action against; answer alleging payment of general costs, 333. 
 right to proceed by order, under § 3247, 338. 
 on appeal in ejectment; liability for costs of second trial, 339. 
 
 liability for use and occupation, 339. 
 on injunction; which expires by limitation; continuance denied, 342. 
 counsel fees, trial of action, 342. 
 
 damages on reference covered by additional allowance, 342. 
 denial of such allowance, as bar upon reference, 342. 
 expense of trial' not due to injunction, 342. 
 
 expense of trial ; injunction grafted on notice, by default, 342. 
 both parties in pari deliclo; dissolution of, 342. 
 motion to dissolve; facts occurring pending action; terms, 342.
 
 636 INDEX. 
 
 (References are to sections.) 
 SURETIES— ( continued ) . 
 
 costs and disbursements; assessment of damages, 342. 
 
 service of counsel on assessment of damages, 342. 
 
 counsel fee; successful motion to dissolve, 342. 
 
 counsel fees on motion for continuance of, 342. 
 
 amount of liability; dissolution on service of answer, 342, 
 
 motion to dissolve denied on merits. 342. 
 
 motion to dissolve denied for irregularity, 342. 
 
 imsucccssful appeal from sucli order, 342. 
 
 motion to dissolve denied in discretion of court. 342. 
 in replevin; liability for general costs, 341. 
 
 liability for costs of appeal, 341. 
 
 given by defendant to retain property, 341. 
 of administrator; costs allowed to attorneys, on accounting, 347. 
 of guardian; costs of his removal, 347. 
 
 allowance computed on wrong basis; defense of sureties, 347. 
 action by attorney against surety for allowance, 347. 
 when the surety is a party to such proceedings, 347. 
 when allowance to .attorney is made a claim against estate, 347. 
 to save another harmless; liability for costs, 34.5. 
 notice of action against assured in such case, 345. 
 municipality enforcing security given to its officers, 344. 
 reimbursement; costs of successful defense to action on bond, 343. 
 
 costs of unsuccessful defense to action on bond, .'>43. 
 
 costs and counsel fees paid by grantee, 343. 
 
 right to compel creditor to sell pledge, 343. 
 
 right to have costs first paid out of proceeds, 343. 
 
 SURPLUS PROCEEDINGS, 
 
 amount of costs and disbursements, 120, 1. 
 
 trial fee in, 120, 1. 
 
 on first mortgage, paying costs of second, 120, 1. 
 
 costs of reference paid out of fund, 120, 1. 
 
 costs of reference paid by unsuccessful claimant, 120, 1. 
 
 costs of reference; discretion on, how reviewed, 120, 1. 
 
 costs of reference; reasonable grounds for investigation, 120. 1, 
 
 costs of reference; widow having agreed to accept gross sum, 120, 1. 
 
 SURROGATE'S COURT, 
 
 power to grant costs, whence derived, 175. 
 
 by whom paid; statute, 176. 
 
 estate less than $1,000, 176. 
 
 by whom paid, general rule, 176.
 
 INDEX. 
 
 637 
 
 (References are to sections.) 
 SURROGATE'S COURT— ( continued ) . 
 
 costs caused by parties not acting in good faith, 176. 
 where contestant has reasonable grounds, 176. 
 party mistaking his remedy, 176. 
 
 appointment of guardian of infant; liability of mother, 176. 
 review of discretion of the surrogate; power of the court of appeals. 
 177. 
 
 power of the appellate division, 177. 
 
 abuse of discretion or violation of justice, 177. 
 
 order on such reversal must show the grounds, 177. 
 
 appellate court modifying decree; passing on costs, 177. 
 
 review of such order by the court of appeals, 177. 
 probate of will; baseless contest, 178. 
 
 necessity of contest to ascertain facts of execution. 173. 
 
 palpable bad faith of attorney or counsel, 178. 
 
 per diem allowance in preparation for trial, 178. 
 
 necessity of bad faith to make contestant liable, 178. 
 
 allowance to unsuccessful adult contestant, 178. 
 
 allowance to special guardian who is unsuccessful, 178. 
 
 allowance when infant becomes of age during trial, 178. 
 
 allow^anee after infant becomes of age, on stipulation of propo 
 nent, 178. 
 
 amount of allowance to special guardian, unsuccessful, 178. 
 
 unsuccessful attempt by finder of will, interested therein, 178. 
 
 proponent of alleged lost will, no knowledge or evidence, 179. 
 
 revocation of probate, not instituted in good faith, 180. 
 
 application of rules on probate, 180. 
 letters of administration; appointment not contested in good faith, 181 
 
 alloAvance to administrator resisting revocation of, 181. 
 temporary administrators; power to pay expenses of the trust, 181. 
 
 power to pay disbursements on contest of will, 181. 
 
 power to pay expenses on contest; appointment of administrator, 
 181. 
 
 power to pay costs; attempt to prove alleged will, 181. 
 
 power to pay costs of proving will, 181. 
 accounting; discretion of surrogate as to amount of allowance, 182. 
 
 discretion of surrogate as to whom allowances are granted, 182. 
 
 limit of allowance, no contest. 182. 
 
 limit of allowance on contest, 182. 
 per diem allowance for preparing accounts, 182. 
 per diem allowance on trial, 182, 191. 
 per diem, allowance for summing up, 182, 191.
 
 C38 1M)KX. 
 
 (References are to seclions.) 
 SURROGATE'S COURT— ( continued ) . 
 
 per diem allowance for preparing pleadings, 182, 191. 
 
 ■per diem allowance for making briefs, 182, 191. 
 
 per diem allowance for ascertaining facts, 182, 191. 
 
 per diem, allowance for appearing to adjourn liearing. 182, 
 
 per diem allowance for appearing to settle decree, IhJ, 
 
 when the executor is chargeable with costs, 182. 
 
 liability of executor on compulsory accounting, 182. 
 
 accounts correct, but mixed, 182. 
 
 allowance to legatees or their attorney, 182. 
 
 allowance to legatees surcharging account, 182. 
 
 allowance to legatees, having item disallowed, 182. 
 
 liability of executor; no books; account surcharged, 182. 
 
 estate divided, each part accounts separately, 182. 
 
 liability of administrator for costs of determining legitimacy of 
 children, 182. 
 
 exectitor not understanding dtities, but acting in good faith, 182. 
 
 liability of unsuccessful objectors, 182. 
 
 objection misuccessful and made in bad faith, 182. 
 
 objection made for delay, 182. 
 
 caused by resignation of e.xeeutor, 182. 
 
 caused by removal of executor, 182. 
 
 unduly prolonging, 182. 
 
 compulsory, dismissed for lack of jurisdiction, 182. 
 
 removal of executor; wasteful management, i.'<2. 
 
 executor denying possession of property, 182. 
 
 executor seeking to convert estate to his o^vn use, 1^2. 
 
 unsuccessful appeal from decision that pro]>erty belongs to es- 
 tate, 182. 
 
 unsuccessful appeal; no merit, 182. 
 
 incorrect accounts; maladministration, through ignorance, 182. 
 
 filing incorrect accounts and refusing explanation, 182. 
 
 paying claims barred by the statute, 182. 
 
 executor .seeking to charge Ids coexecutor and failing. 182. 
 
 petition by party having no interest, 182. 
 
 terms of opening; newly discovered evidence, 182. 
 allowances when estate is less than .51,000, 183. 
 
 how amount of estate is determined, 183. 
 
 allowances other than actual expenses in such case, 183 
 how costs and allowances are collected: issuing execution, after pay- 
 ment of costs out of estate, 184. 
 
 execution to collect, payable by two executors to a third, 184.
 
 INDEX. 639 
 
 (References are to sections.) 
 SURROGATE'S COURT— (continued) . 
 
 costs of motion to compel executor to pay costs in rei)re3f;ntative 
 capacity, 184. 
 
 contempt proceedings to collect from executor personally, 184, 419. 
 
 imprisonment to collect such costs, 184. 
 
 slay for nonpayment of motion costs, 184. 
 to whom costs and allowances are awarded; to parties or attorneys, 
 185. 
 
 on will contest, 185. 
 
 infant represented by attorney on will contest, 185. 
 
 payment of attorney before allowance to executor, 185. 
 
 payment by note of third person, before allowance, 185. 
 
 payment by note of executor, before allowance, 185. 
 
 to attorney instead of executor, acquiescence in, 185. 
 
 how such order may be reviewed, 185. 
 
 executor an attorney; receiving compensation for services, 185. 
 
 right to incur expense, and reasonableness of amount, 185. 
 
 retaining attorney in action to construe will, 185. 
 
 retaining attorney in partition action; construction of will, 185. 
 
 to successful contestants as to construction of will on probate, 185. 
 
 reversal of decree which awarded costs to contestants, 185, 
 
 two wills ofi'ered for probate, allowance to executor of rejected 
 will, 185. 
 removal of executor; amount of allowance on, 186. 
 
 costs to unsuccessful petitioner, 186. 
 
 on account of inexperience and reftisal to give bond, 186. 
 
 on account of reckless and careless conduct, 186. 
 appeals; liability for costs paid by executor, before appeal perfected, 
 186. 
 
 liability for sucli costs, decree reversed, 186. 
 
 liability for such costs, no appeal from part awarding costs, 186. 
 
 statute governing costs on appeal, 187. 
 
 costs to unst;ccessfiil contestants, 187. 
 
 by exectitor from judgment that absorbed estate, 187. 
 
 costs ordered paid by party causing tiiem, 187. 
 
 costs to abide event, payable from estate, 187. 
 
 allowed to both out of estate, exectitor defeated, 187. 
 
 allowed to both, payable from estate, both succeed, 187. 
 
 allowed to both parties, payable from estate, cause for appeal, 187. 
 
 when pr.rtners appear for different parties, 187. 
 
 parties having same interest, appearing by different attorneys, 187. 
 
 unsuccossfii! appeal from ruling reducing commissions, 187.
 
 640 INDEX. 
 
 (References are to sections.) 
 SURROGATE'S COURT— ( continued ) . 
 
 allowance by surrogate, of costs not granted by appellate court. 
 187. 
 
 allowance to executor for unsuccessful appeal, novel question, 187. 
 
 allowance to executor, ai)peal from claim that absorbed estate, 187. 
 
 wlien allowance is affected by appeal, 188. 
 
 costs of, paid by contestants, effect on allowance to them below, 188. 
 
 reversal, "with costs," as affecting allowances below, 188. 
 
 when executor liable for costs of, 188. 
 
 affirming order against executor, "with costs," 188. 
 
 affirmance, "without costs," allowance of expenses of on account- 
 ing, 188. 
 
 appellate court disposing of costs, power of surrogate, 188. 
 
 taxability of disbursement, order reversed, "with costs," 188, 195 
 
 remedy of successful party in such case, 188. 
 
 court of appeals reverses supreme court and surrogate, "without 
 costs," and dismisses proceeding, 188. 
 
 amount of costs on appeal from decree, 189. 
 
 amount of costs on appeal from order, 189. 
 
 power to grant additional allowance, 189. 
 
 executor defeated on a technicality, 189. 
 allowance to special guardian; limit on probate or revocation of 
 probate, 190. 
 
 payable from what fund, 190. 
 
 beyond statutory limit, by whom paid, 190. 
 
 power of surrogate to make such allowance, 190. 
 
 notice of application for such allowance, 190. 
 
 to special guardian or to general guardian, 190. 
 
 services subsequent to decision, that infant has no interest, 190. 
 
 on reference, tmder § 2546, 191. 
 
 appointment by appellate court, 190. 
 
 appellate court recognizing guardian appointed below, 190. 
 
 construction of will, infant no interest, 190. 
 
 appellate court grants no costs on appeal, 190. 
 amount of costs allowed; per diem allowance restricted by statute, 191. 
 
 per diem allowance for preparing for trial, 191. 
 
 per diem allowance in proceedings before referee, 191. 
 
 per diem allowance for adjournment before referee, 191. 
 
 per diem, allowance, trial, as including argument, 191. 
 
 per diem allowance, executor preparing accoimt. 191. 
 
 employing two attorneys, 191. 
 
 power to make allowance in excess of statutory limit, 191.
 
 INDEX. 641 
 
 (References are to sections.) 
 SURROGATE'S COURT— ( continued ) . 
 
 z-eimbursing executor on accounting, attorney's services worth 
 
 more, 191. 
 limit on reference under § 2546, 191. 
 allowance to special guardian on such reference, 191. 
 on application to issue execution under §§ 1380, 1381, 191. 
 application to apply infant's income to his support, 191. 
 disbursements; amount of referee's fees, proof to reduce, 192. 
 establishing relationship, disposed of, on accounting, 192. 
 allowance to expert witness, 192. 
 
 stenographer's minutes on probate or revocation, 192. 
 stenographer's minutes, examination of witness de bene esse; not 
 
 used, 192. 
 order for stenographer's minutes under § 2558, 192. 
 disputed claim heard by surrogate, discretion, how governed, 193. 
 how claimant may become party to accounting, 193. 
 appellate court orders issues tried by jury, no costs, 193. 
 appellate court orders issues tried by jury, costs to abide event, 193. 
 refunding of costs paid, upon reversal by appellate court, 193. 
 proceedings to sell real estate to pay debts; costs and allowances to 
 petitioner, statute, 194. 
 costs and allowances to special guardian, statute, 194. 
 allowance to creditor other than petitioner, 194. 
 costs against administrator, as a charge on real estate, 194. 
 costs incurred by decedent, as a charge on real estate, 194. 
 costs against surviving partner, as such charge, 194. 
 when question of costs and allowances determined, 194. 
 amount allowed to freeholder for services, 194. 
 costs of admeasurement of dower to be paid from land, as res 
 judicata; creditors not parties, 194. 
 tax appraisal ; to special guardian, whose appointment was unneces- 
 sary, 195. 
 to comptroller, under Laws 1892, chap. 399, 195. 
 to district attorney of New York taxing costs when successful, 195, 
 procedure when he is unsuccessful, 195. 
 reversal or aflirmance of final order, "with costs," 195. 
 taxation of disbursements under such order, 195. 
 lien of attorney in; power to enforce, 11, 28. 
 enforceable on what property, 11. 
 
 power to set aside satisfaction of decree to protect, 23. 
 surrogate bound by judgment for attorney's services, 28. 
 retaining fund till lien is determined, 28. 
 power to determine lien on papers, 28. 
 COSTS 41.
 
 642 INDEX. 
 
 (References are to sections.) 
 SURROGATE'S COURT— (continued), 
 enforcing in what court, 32, c. 
 general power over attorneys, 29. 
 surrogate as a defendant, entitled to double costs, 132, n, 
 
 T. 
 
 TAX EQUALIZATION, 
 
 allowance by state board of tax commissioners, 155. 
 
 refusal to levy tax to pay, remedy, 155. 
 
 amount payable by supervisors to their attorney, 155. 
 
 TAXATION OF COSTS, 
 statute governing, 374. 
 ex parte taxation, taxation thereafter, 374. 
 by stipulation, 374. 
 both parties entitled to costs, 374. 
 
 one party entitled to recovery, the other to costs, 374. 
 plaintiff refusing to enter judgment, remedy, 374. 
 interlocutory costs against one of several defendants, 374. 
 severing action after judgment to tax such costs. 374. 
 on putting case over the term, 374. 
 notice of, served, before right to costs accrued, 375. 
 a letter proposing to tax costs, as notice of, 375. 
 nonappearance before taxing officer, 375. 
 proof of service of notice, contest thereon, 375. 
 notice of, not served in required time, 375. 
 
 taxation on subsequent day; no appearance on first day, 375. 
 by assignee for creditors; notice to whom, 375. 
 
 right to notice, of defendant who has appeared, but not answered, 375. 
 right to review, by party ultimately liable, 375. 
 retaxation; amount reduced on; effect on judgment, 376. 
 
 costs inserted in judgment wuthout taxation; remedy, 376. 
 
 taxation without notice; remedy, 376. 
 
 what affidavits of moving party on, should show, 376. 
 
 judgment entered by one defendant, objection thereto, by another 
 defendant, 376. 
 
 pajTiient of costs, previous to motion for, 376. 
 power of clerk upon taxation; what costs and disbursements he can 
 tax, 377. 
 
 conclusiveness of certificate of trial judge, 101, p, 377. 
 
 incorrect certificate, how corrected, 377. 
 
 defendants answering separately, presenting separate bills, 377.
 
 INDEX. 643 
 
 (References are to sections.) 
 TAXATION OF COSTS— ( continued ) . 
 
 remedy of plaintiff in such case, 377. 
 
 necessity of following order or judgmentj 377. 
 
 remedy if judgment or order is incorrect, 377. 
 
 when no verdict: report or order awards costs, 377. 
 
 remedy of party in such case, 377. 
 
 passing on question of fact raised by affidavits, 377. 
 
 questions of law passed on by court, 377. 
 
 how evidence is presented before clerk, 377. 
 
 one hearing, as exhausting his powers, 377. 
 
 once taxed; power to retax; parties absent, 377. 
 
 to tax costs on remittitur, 378, b. 
 
 to tax costs on a mandamus, 378, c. 
 
 to tax costs in street opening proceedings, 378, c. 
 duty of clerk; as defined by statute, 378, a. 
 
 to examine charges, 378, a. 
 
 to correct errors, 378, a. 
 
 to disallow disbursement, not properly taxable, 378, a. 
 
 to be satisfied as to number of days charged for referee, 378, a. 
 review of taxation^ by motion, 379, a. 
 
 action in equity to correct error, 379, a. 
 
 what papers used on appeal from clerk's taxation, 379, b. 
 
 procedure; oral objection before clerk, 379, b. 
 
 affidavit of proceedings before clerk, when he gives reasons for his 
 decision, 379, b. 
 
 taxation by default, properly excused; taxation de novo, 379, b. 
 
 necessity of showing taxation opposed; items taxed over objec- 
 tions, 379, b. 
 
 special term reviewing costs before taxation, 379, b. 
 
 appellate division making original order of retaxation, 379, b. 
 
 power to do this; no appeal from taxation, 379, b. 
 
 how discretion of the court or referee reviewed, 379, c. 
 
 taxation of costs not warranted; how reviewed, 379, c. 
 
 motion for retaxation made before payment of costs, 379, d. 
 
 right of retaxation lost by laches, 379, d. 
 
 right of retaxation lost by appeal, 379, e. 
 
 appeal before learning of result of taxation, 379, e. 
 
 appealing from judgment which gives costs to neither, 379, e. 
 
 p.arty entering judgment, reviewing allowance of costs, 379, e. 
 
 recitals in order of special term, in absence of papers, 379, e. 
 , not appearing on appeal what objections were raised or items 
 
 allowed, 379, e.
 
 644 INDEX. 
 
 (References are to sections.) 
 TAXATION OF COSTS— (continued). 
 
 raising at special term, insufficiency of affidavits before clerk, 379, 
 f. 
 
 finality of decision on appeal from order as to costs, 379, f. 
 
 consiilcration of oral statements first made on appeal, 379, f. 
 
 court of appeals reviewing order readjusting costs, 379, g. 
 
 court of appeals reviewing order as to who is entitled to costs, 
 379, g. 
 
 court of appeals reviewing judgment; who entitled to costs, 379, g. 
 
 remedy when respondent taxes too much for costs on appeal, 380. 
 
 judgment of affirmance should contain what, 380. 
 
 judgment of affirmance containing previous costs, 380. 
 
 where judgment differs from remittitur as to costs, 380. 
 
 conclusiveness of judgment entered, not corrected, 380. 
 
 entry of judgment upon reversal of order; correction thereof, 380. 
 
 taxation of special motion costs granted by the appellate division, 
 380. 
 
 disbursements granted by appellate division on motion, 380. 
 
 taxation by the clerk of the supreme court, 380. 
 
 taxation of costs on appeal from surrogate, 380. 
 
 TENANT FOR LIFE, 
 
 discovery of death of, 171, a. 
 
 TENDER AFTER SUIT BROUGHT, 
 statute governing, 222, a. 
 in what courts, 222j a. 
 
 necessity of inclusion of interest and costs, 222, a. 
 necessity of inclusioi\ of interest and costs in equity, 222, a. 
 paying portion into court; district courts, 222, a. 
 what conditions may be imposed on, 222, a. 
 tender after reversal, "costs to abide ev^ent," 222, a. 
 waiver of .statutory notice, 222, b. 
 
 TENDER BEFORE SUIT BROUGHT, 
 
 on day of signing summons, but before service, 221, a. 
 
 after delivery to sheriff, but before service, 221, a. 
 
 to whom made, 221, b. 
 
 in what made, 221, c. 
 
 by check; waiver of irregularity, 221, c. 
 
 waiver of formal, by creditor, 221, d. 
 
 when creditor says that he will not receive money, 221, d. 
 
 objections not made at time of, 221, d. 
 
 procedure of defendant to avail himself of, 221, e.
 
 INDEX. G45 
 
 (References are to sections.) 
 TENDER BEFOEE SUIT BROUGHT— ( continued ) . 
 paying money into court, and pleading, 221, e. 
 payment into court, when lien is discharged, but not debt. 221, e. 
 disregarding insufficient or irregular, 221, e. 
 pleading, but not paying money into court, 221, e, f. 
 paying money into court on day of trial, 221, e. 
 necessity of proving, and payment into court, 221, e. 
 judgment not more favorable than, 221, e. 
 seivice of notice of payment into court, 221, e. 
 sufficiency of notice in answer, 221, e. 
 waiver of irregularity in pleading, 221, f. 
 judgment, when kept good, 221, f. 
 insufficient tender, 221, f. 
 
 procedure when money is taken out of court, 221, f. 
 taking money out, and not paying costs to defendant, 221, f. 
 pleading; money payable at certain time and place, 221, f. 
 restrictions on tender, 221, g. 
 
 restrictions of conditions precedent or simultaneous, 221, g. 
 restrictions of conditions proper to be performed, 221, g, 
 restriction that tender extinguishes lien, 221, g. 
 restriction of receipt in full, 221, g. 
 restriction that creditor sign a satisfaction piece, 221, g. 
 
 TENDER IN MORTGAGE FORECLOSURE, 
 including costs, 218. 
 
 application to court to settle amount of costs, 218. 
 including deficiency judgment, 218. 
 discharge of mortgage before determination of amount of costs, 218. 
 
 TENDER OF COSTS OF MOTION, 
 before moving, 48, e, 4. 
 to compel acceptance of pleading, 48, e, 4. 
 or relief asked and part of costs, 48, e, 4. 
 
 TERIM FEES, 
 
 statute, 408, a. 
 
 in the court of appeals, 408, b. 
 
 action not at issue aa to all parties, 408, e. 
 
 •when action is under stay, 408, c. 
 
 action not in condition to be considered, 408, c. 
 
 before amending complaint, 408, d. 
 
 judgment for frivolousness of answer, 408, d. 
 
 referring case before reached on calendar, 408, e. 
 
 referred by consent, when reached on calendar, 408, e.
 
 646 ij^DEX. 
 
 (References are to sections.) 
 TERM FEES — ( continued ) . 
 
 chargeable after action is referred, 408, e. 
 
 wlien case is "necessarily on calendar," 408, f. 
 
 number of terms taxable, 408, f. 
 
 not noticed by successful party, 408, f. 
 
 ordered on term of court, condition of favor, 408, f. 
 
 put over, by mutual consent, 408, g. 
 
 term for wliich party has paid for a privilege, 408, h. 
 
 put on wrong calendar by both parties, 408, 1. 
 
 for terms before substitution of new pleadings, 408, i, 
 
 stipulation that case be put on certain calendar, 408, j. 
 
 stipulation that costs of term, in excess of limit, abide event, 408, j. 
 
 such stipulation, when court has not jurisdiction, 408, j. 
 
 on appeals to county court from justice's court, 408, k. 
 
 increase beyond legal limit, by several trials, 408, 1. 
 
 for what terms taxable, 40G, b, 408, 1. 
 
 on calendar, waiting for motion for new trial, 408, 1. 
 
 for Saturday special term, 408, 1. 
 
 demurrer before judge at chambers, 408, 1. 
 
 on discontinuance before term opens, 408, ra. 
 
 discontinuance during first term, case on calendar, 408, m. 
 
 action settled before term opens, 408, m. 
 
 on appeal from order, 408, m. 
 
 TITLE OF PROCEEDINGS, 
 
 to compel attorney to surrender papers, 12, 
 
 TITLE TO COSTS, 17. 
 
 TOWN. See Municipal Corpoeation. 
 
 TRESPASS. See Real Property, subdivision. Action for Trespass. 
 
 TRIAL, ADJOURNING. See Adjoltjning Trial. 
 
 TRIAL FEE, 
 
 what is a trial, 406, a. 
 
 when taxable, 406, a. 
 
 discontinuing before case reached on calendar, 406, a. 
 
 discontinuing, when case is on day calendar, but not reached, 400, a. 
 
 dismissal of complaint on motion of defendant, 406, a. 
 
 accepting offer of judgment; case on day calendar, 406, a. 
 
 insisting on defense, till case moved for trial, 406, a. 
 
 oflTer not accepted so that motion for allowance could be made, 406, a. 
 
 case dismissed before any evidence is taken, 406, a.
 
 INDEX. 647 
 
 (References are to sections.) 
 TRIAL FEE — (continued). 
 
 motion to dismiss at equity; sent to trial term, 406, a. 
 
 complaint dismissed, as not stating cause of action, 406, a. 
 
 answer not denying liability, but setting up counterclaim; no reply, 
 
 406, a. 
 more than one trial; chargeable for every trial, whether verdict or not, 
 406, b. 
 
 effect of disagreement of jury, 406, b. 
 
 issue of law tried by court, fact by referee, 406, b. 
 
 referee dies before deciding; new trial necessary, 400, b. 
 
 trial commenced before disqualified judge, 406, b. 
 
 placed on short cause calendar by imsuccessful party, 40(i, b. 
 inquest or default; as a trial, 406, e. 
 
 effect of opening a default without terms, 406, e. 
 
 order of court on opening, as to costs on default, 40(3. e. 
 
 plaintiff winning alter two defaults opened, 406, e. 
 
 retaxing costs paid as condition of opening, 406, e. 
 withdrawal of juror; as a trial, 406, d. 
 
 retaxing of trial fee paid as condition of withdrawing, 406, d. 
 
 on payment of all costs to date; retaxing same, 406, e. 
 assessment of damages after judgment absolute on appeal, 406, c. 
 recovery of disbursements on such assessment, 406, c. 
 motion for judgment; jury discharged, motion denied, 406, c. 
 proving case in divorce; no answer or demurrer, 406, e. 
 trial occupies more than two days; as chargeable for every trial, 400, b, 
 407. 
 
 when is a trial finished, 407. 
 
 computation of fraction of day, 407. 
 
 consideration of time within which to submit briefs, 407. 
 
 TRUSTEE, 
 
 costs of appeal from judgment of costs against him personally, 173, a. 
 
 liability for costs; acting after expiration of trust, 173, a. 
 
 trying to maintain trust, 173, a. 
 
 omission by referee of words "as trustee," from report, 173, a. 
 
 unauthoried judgment charging costs personally, 173, a. 
 
 remedy of trustee in such a case, 173, a. 
 
 remedy of opponent in such a case, 173, a. 
 
 allowing his complaint to be dismissed with costs, 173, a. 
 
 charging him personally after entry of judgment, 173, a. 
 
 charging him personally with costs, after final decision in court of 
 
 appeals, 173, a. 
 liability of trustee whose predecessor was personally liable, 173, a.
 
 648 iKUEX. 
 
 (References are to sections.) 
 TRUSTEE— ( continued ) . 
 
 where trustee is jiersonally interested, 473, a. 
 
 fine imposed on, for not obeying instructions; inclusion of costs, 419. 
 
 paying attorney with money adjudged to belong to opponent. 173, a. 
 
 action to compel trustee to turn property over to successor, 173, a. 
 
 wliat costs allowed in such action, 173, a. 
 
 allowance to substituted trustee, how obtained, 173, a. 
 
 appeal after repeated defeats, 173, a. 
 
 doing thing demanded after action commenced, 173, a. 
 
 action for accounting, 173, a. 
 
 allowance to, for services of attorney, 173, b. 
 
 necessity of showing nature of services in detail, 173, b. 
 
 compelling return of part of taxable costs, received from his attorney, 
 
 173, b. 
 allowances on accounting; to what parties, 173, c, 1. 
 
 to trustee not keeping accurate books, 173, c, 1. 
 
 to trustee whose accounts have been surcharged, 173, c, 1. 
 
 to trustee who resigns for his oaaii benefit, 173, c, 1. 
 
 by whom paid; general rule, 173, c, 2. 
 
 action brought by only one beneficiary, 173, c, 2. 
 
 TRUSTEE IN BANKRUPTCY, 
 
 as a truste/^ of an express trust, 165. 
 
 action co?nmenced by bankrupt, 165. 
 
 action for a conversion occurring after bankruptcy, 165. 
 
 Congress depriving court of jurisdiction, pending action, 165. 
 
 security for costs, see Siccurity foe Costs. 
 
 TWO ACTIONS TRIED TOGETHER, 
 
 stipulation tliat one abide event of the other, 317. 
 
 stipulation that one be stayed till the determination of other, success- 
 ful (party to enter judgment thereon, 317. 
 
 right to costs, following right to judgment, 317. 
 
 several actions at law for same cause, 317. 
 
 several actions in equity for same cause; discretion of court, 317. 
 
 several tenants in common bringing separate actions for injunction; 
 one appeal, 317. 
 
 on separate judgments to set aside fraudulent transfer, 317. 
 
 several plaintiffs, one action; some successful, some not, 317. 
 
 judgment to be entered in such a case, 317. 
 
 lemedy for irregular judgment in such a case, 317. 
 
 TWO DEFENDANTS, 
 
 additional allowance limited, 130, c.
 
 INDEX. 649 
 
 (References are to sections.) 
 
 u. 
 
 UNAUTHORIZED ACTION, 
 costs of, 35G. 
 
 UNDERTAKING, 
 
 on attachment, lien of attorney on, 16. 
 given on bail, lien of attorney on, 16. 
 action on, by attorney to protect lien, 31. 
 
 USAGE OF COURTS, 
 
 governing discretion as to costs, 48, c. 
 
 V. 
 
 VENUE, CHANGE OF, 
 
 motion forj convenience of witnesses, 55, &, 
 
 motion for; wrong county, 55, b. 
 
 ♦. 
 
 VERDICT, 
 
 general, as entitling party to costs, 5. 
 which determines amount of costs, 6. 
 
 VESSEL, 
 
 foreclosure of lien on, 131, a. 
 
 VESTED RIGHTS AS TO COSTS, 
 pending action, 5. 
 
 VILLAGE, 
 
 costs in action against, see Municipal Cobpobatton. 
 proceedings to investigate affairs of, 153. 
 
 remedy for improper taxation of costs of, 153. 
 
 attorney and counsel fees in, 153. 
 
 liability of third persons whose bills are irregular, 153, 
 condemnation in; costs allowed by what statute, 157. 
 from what time costs are a matter of right, 157. 
 allowance of costs upon appointment of commissioners, 157. 
 
 VOLUNTARY APPEARANCE, 
 
 effect of, upon costs for additional defendants served, 335. 
 
 w. 
 
 WAIVER, 
 
 of attorney's lien, see Attornky's Lien. 
 
 of costs of motion, 56, c. 
 
 of costs by appeal from order granting new trial. 76.
 
 650 INDKX. 
 
 (References are to sections.) 
 "WITH COSTS," 
 
 meaning of, in court of appeals, 3d0, a. 
 
 meaning of, in appellate division, 391, b. 
 
 "WITH COSTS TO ABIDE EVENT," 
 
 meaning of, in court of appeals, 390, c. 
 meaning of, in appellate division, 391, d. 
 
 '"WITH COSTS TO APPELLANT TO ABIDE EVENT," 
 meaning in court of appeals, 390, c. 
 meaning in appellate division, 391, e. 
 
 WITHDRAWAL OF JUEOR, 
 terms imposed on, 71. 
 
 entry of judgment upon nonpayment of such costs, 71. 
 taxation of costs thus paid, in final judgment, 71. 
 
 "WITHOUT COSTS," 
 
 meaning of, in court of appeals, 390, d. 
 
 WITNESS, 
 
 charge for serving subpoena imder the Revised Statutes, 403, a. 
 
 charge for serving subpoena under the Code of Procedure, 403, a. 
 
 charge for serving subpoena under present Code, 403, a. 
 
 affidavit upon taxation of fees of, 403, a. 
 
 necessity that witness be subpoenaed, 403, b. 
 
 attending at request of party; taxing fees for, 403, b. 
 
 unnecessarily paying fees of, after disposal in party's favor, 403, b. 
 
 fees of parties as, 403, c. 
 
 how evidence of adversary is procured, 403, c. 
 
 subpcenaing adversary in court, 403, c. 
 
 necessity that affidavit show materiality of, 403, c. 
 
 necessity that party make affidavit on taxation of fees of, 403. c. 
 
 necessity that alfidavit be made by attorney, 403, c. 
 
 taxing fees of a stockholder of a corporation, the taxing party, 403, d. 
 
 taxing fees of officers of a corporation, the taxing party, 403, d. 
 
 taxing fees of the attorney, 403, d. 
 
 not sworn; presumption of necessity of, 403, e. 
 
 not paying fees in advance and daily thereafter. 403, e. 
 
 to impeach supposed adverse witness, 403, e. 
 
 when such adverse witness did not attend, 403, e. 
 
 right to limit niimber of impeaching witnesses, 403, e, 
 
 limiting number for which fees can be taxed, 403, e. 
 
 examples wliere the court exercised this power, 403, e. 
 
 to support general character in action for slander, 403, e.
 
 INDEX. 651 
 
 (References are to sections.) 
 WU NESS— (continued) . 
 
 adjourning taxation to show Avitness not material or necessary, 
 
 403, e. 
 :;djourning taxation to show witness not subpoenaed, 403, e. 
 showing why not called; what party expected to prove, 403, e. 
 traveling fees of; living out of state, 403, f, 1. 
 
 such witness subpamaed at place of trial, 403, f, 1. 
 resident of state, from residence, 403, f, 2. 
 resident subpoenaed away from residence, 403, f, 2. 
 negligence in not siibpcenaing such witness at home, 403, t, 2. 
 returning home on adjournment, 403, f, 2. 
 returning home; case set down for future day, 403, f, 2. 
 returning home over Sunday, 403, f, 2. 
 showing distance by usual travelled routes, 403, f, 2, 
 sufficiency of showing residence of, 403, f, 2. 
 subpoenaed, court not held, 403, f, 2. 
 as ''expenses of term," 403, f, 2. 
 •who did not attend trial; fees of, 403, g. 
 
 case over term before arrival; delay caused by accident, 403, g. 
 where he does not arrive till trial finished, 403, g. 
 remedies of party for, 403, g. 
 in action for damages, proof in action, 403, g. 
 nonpayment of fees as excuse for nonattendance, 403, g. 
 for what terms; when it is certain that case will be referred, 403, h. 
 on adjourning trial, 72. 
 
 Avhen taxing party's default was taken, 403, h. 
 taxing party not ready for trial, 403, h. 
 days for which fees may be taxed; case on day calendar, witness 
 present, 403, i. 
 compelled to remain over night, after close of trial, 403, i. 
 subpoenaing earlier to insure attendance, 403, i. 
 impracticable for witness to return home after opening of court 
 
 and time of trial, 403, i. 
 Saturday and Sunday, 403, i. 
 
 residing at place of trial ; present on day of trial, 403, i. 
 residing at place of trial, present when case was on day calendar, 
 
 403, i. 
 nonresident; how days computed, 403, i. 
 "wiliiess in two actions; between the same parties, 403, j. 
 
 actions tried together, 403, j. 
 "departure of witness before trial; allowing witness to dopart before 
 trial, 403, k.
 
 652 INDEX. 
 
 (References are to sections.) 
 
 WITNESS— ( continued ) . 
 
 taxing party allowed, and suffered default, 403, k. 
 remedy of party when witness departs before trial, 403, kt 
 affidavit of taxing party after charge of, 403, k. 
 expert witness; in civil actions, 403, 1. 
 allowance by surrogate, 192. 
 for defense in murder trial, 403, 1. 
 in district court of the city of New York, 403, L 
 
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