PART III Rule of computation. Allowance by the court cases. S309. These rates shall be estimated upon the value of the property claimed or attached or affected by the adjudication upon the will or other instrument, or sought to be partitioned, or the amount found due or unpaid upon the mortgage, in an action for foreclosure. And whenever it shall be necessary to apply to the court for an order enforcing the payment of an installment falling due after judgment in an action for foreclosure, the plaintiff shall be entitled to the rate of allowance in the last section prescribed, but to no more in the aggregate than if the whole amount of the mortgage had been due when judgment was entered. Such amount of value must be determined by the court, or by the commissioners in case of actual partition. In difficult and extraordinary cases where a defense has in certain been interposed, or in such cases where a trial has been had, and in actions or proceedings for the partition of real estate, the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent upon the amount of the recovery or claim or subject matter involved. Amended by Laws of 1857, ch. 623; 1858, ch. 306; 1859, ch. 428; 1862, ch. 460; 1865, ch. 615. Interest on verdict or report when allowed. Duty of elerks as to costs. 9 N. Y., 370; 8 N. Y., 71; 24 B., 126; 11 B., 337; 20 How. P. R., 285; 19 How. P. R., 119; 17 How. P. R., 457; 15 How. P. R., 224; 13 How. P. R., 298; 5 How. P. R., 242; 13 Ab., 247, 297; 10 Ab., 313; 7 Ab., 345, 445; 5 Ab., 222; 4 Ab., 247; 3 Ab., 147, 240; 4 Bos., 669; 34 N. Y., 356; 18 Ab., 383; 30 How. P. R., 148; 29 How. P. R., 97, 101; 24 How. P. R, 337, 385. $310. When the judgment is for the recovery of money, interest from the time of the verdict or report, until judgment be finally entered, shall be computed by the clerk, and added to the costs of the party entitled thereto. 16 B., 660; 9 How. P. R., 86; 8 How. P. R., 121. S 311. The clerk shall insert in the entry of judgment, on the application of the prevailing party, upon five days' notice to the other, except when the attorneys reside in the same city, village or town, and then upon two days' notice, the sum of the allowances for costs, as provided by this code, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking depositions, the fees of referees, and the expense of printing the papers for any hearing when required by a rule of the court. The disbursements shall be stated in detail, and verified by affidavit. A copy of the items of the costs and disbursements shall be served with a Costs, how notice of adjustment. Whenever it shall be necessary to adjusted. adjust costs in any interlocutory proceeding in an action or in any special proceedings, the same shall be adjusted by the judge before whom the same may be heard, or the court before which the same may be decided or pending, or in such other manner as the judge or court may direct. As amended by Laws of 1862, ch. 460; 1857, ch. 723. 23 B., 410; 19 B., 531; 16 B., 658; 15 B., 135; 11 Ab., 154; 9 Ab., 74, 111; 8 Ab., 300; 7 Ab., 454; 3 Ab., 191; 2 Ab., 378; 1 Ab., 120, $312. The clerk shall receive, CHAP. XI. On every trial, from the party bringing it on, one dollar; Clerks' on entering a judgment by filing transcript, six cents; On entering judgment, fifty cents; except in courts where the clerks are salaried officers, and in such courts, one dollar. He shall receive no other fee, for any services whatever in a civil action, except for copies of papers, at the rate of five cents to every hundred words. 23 B., 410; 5 How. P. R., 11; 18 Ab., 333. fees. $313. The fees of referees shall be three dollars to each Referee's for every day spent in the business of the reference; but the fees. parties may agree in writing upon any other rate of compensation. 17 How. P. R., 472; 9 Ab., 74. ment of $314. When an application shall be made to a court or Costs on referees, to postpone a trial, the payment to the adverse postpone party of a sum not exceeding ten dollars, besides the fees of trial witnesses, may be imposed, as the condition of granting the postponement. 6 How. P. R., 408, 418. $315. Costs may be allowed on a motion in the discretion costs on of the court or judge, not exceeding ten dollars, and may be motions. absolute or directed to abide the event of the action. As amended by Laws of 1857, ch. 723. 15 How. P. R., 117; 13 How. P. R.. 301; 10 How. P. R., 400; 8 How. against infant S316. When costs are adjudged against an infant plaintiff, costs the guardian by whom he appeared in the action shall be int responsible therefor, and payment thereof may be enforced plaintif by attachment. 6 How. P. R., 233; 31 How. P. R.. 233; 31 How. P. R., 464; 29 How. ecutors, ad tors, trus $317. In an action prosecuted or defended by an executor, Costs by or administrator, trustee of an express trust, or a person ex- against expressly authorized by statute, costs shall be recovered, as in ministra an action by and against a person prosecuting and defending tees, &c. in his own right, but such costs shall be chargeable only upon or collected of the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally for mismanagement or bad faith in such action or defense. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom by section forty-one, PART III Costs on review of a inferior of title three, chapter six, of the second part of the Revised Statutes; and whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law. And the court may, in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs. As amended by Laws of 1852, ch. 392; 1851, ch. 479. 22 N. Y., 468; 30 B., 441; 9 B., 394; 22 How. P. R., 281. 453; 14 How. P. R., 481, 508; 12 How. P. R., 302, 306, 451; 9 How. P. R., 349; 8 How. P. R., 5; 7 How. P. R., 64; 12 Ab., 78; 11 Ab., 261; 7 Ab., 255; 6 Ab., 96; 30 N. Y., 308; 28 N. Y., 188; 47 B., 438; 17 Ab., 448; 16 Ab., 4; 15 Ab., 196; 31 How. P. R., 476; 24 How. P. R., 404. S318. When the decision of a court of inferior jurisdiction, decision of in a special proceeding, including appeals from surrogates' court in a courts, shall be brought before the supreme court for review, special pro- such proceeding shall, for all purposes of costs, be deemed an ceeding. action at issue, on a question of law, from the time the same shall be brought into the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case. CHAP. XI actions by As amended by Laws of 1862, ch. 460. $319. In all civil actions prosecuted in the name of the Costs in people of this state, by an officer duly authorized for that pur- the people. pose, the people shall be liable for costs in the same cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant's costs; which shall not be recovered of the people, till after execution issued therefor against such private party, and returned unsatisfied. 11 B., 340; 17 How. P. R., 12. $320. In an action prosecuted in the name of the people . of this state for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the people. 17 How. P. R., 12; 10 How. P. R., 371; 4 E. D. S., 29. against as cause of $321. In actions, in which the cause of action shall, by Costs assignment after the commencement of the action, or in any signee of other manner, become the property of a person not a party to action after. the action, such person shall be liable for the costs, in the brought. same manner as if he were a party, and payment thereof may be enforced by attachment. 13 Ab., 183; 7 Ab., 455; 31 How. P. R., 473; 15 Ab., 196. action settlement. $322. Upon the settlement, before judgment, of any action Costs on a mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section. 30 B., 400; 19 How. P. R., 119; 17 How. P. R., 457; 10 Ab., 314; 7 TITLE XI. OF APPEALS IN CIVIL ACTIONS. CHAPTER I. Appeals in general. II. Appeals to the court of appeals. III. Appeals to the supreme court from an inferior court. IV. Appeals in the supreme court, and the superior court, and the court V. Appeal to the court of common pleas for the city and county of New CHAPTER I. APPEALS IN GENERAL. SEC. 323. Writs of error abolished, and appeals substituted. 324. Orders made out of court, how vacated or modified. 325. Who may appeal. 326. Parties, how designated on appeal. 327. Appeal, how made. 328. Clerk to transmit papers to appellate court. PART III. Writs of error abol SEC. 329. Intermediate crders affecting the judgment, may be reviewed on the appeal. 330. Judgment on appeal. 331. Certain appeals to be within sixty days; others within two years. 332. Other appeals within thirty days. S323. Writs of error in civil actions, as they have heretoished and fore existed, are abolished, and the only mode of reviewing a substituted. judgment, or order, in a civil action, shall be that prescribed by this title. appeals Orders made out of court, how va 13 N. Y., 368; 24 B., 149; 13 Ab., 183; 7 Ab., 362; 4 Ab., 92, 287, 403; 37 B., 233; 27 How. P. R., 109, 134; 14 Ab., 86. $324. An order made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on modified. notice, in the manner in which other motions are made. cated or Who may appeal. Parties, 9 B., 387; 20 How. P. R., 441; 13 How. P. R., 439; 8 How. P. R., 440; 6 How. P. R., 108; 5 How. P. R., 386; 12 Ab., 293; 44 B., 230; 41 B., 547; 28 How. P. R., 120. S325. Any party aggrieved may appeal in the cases prescribed in this title. 13 N. Y., 308; 28 B., 306; 16 B., 235; 10 How. P. R., 371; 8 Ab., 50; 2 Ab., 209, 390; 4 E. D. S., 29. S326. The party appealing shall be known as the appelhow desig laut, and the adverse party as the respondent. But the title of the action shall not be changed in consequence of the appeal. nated on appeal. Appeal, how made. Clerk to transmit papers to appellate court. 1 N. Y., 611; 8 How. P. R., 140. $327. An appeal must be made by the service of a notice in writing, on the adverse party, and on the clerk, with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof. When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just. 8 B., 309; 17 How. P. R., 123; 11 How. P. R., 131: 7 How. P. R., 137, 5 How. P. R., 310, 361; 10 Ab., 455; 4 Ab., 134; 2 Hilt., 335; 27 N. Y., 639; 19 Ab., 323; 18 Ab., 162; 17 Ab., 87; 31 How. P. R., 153; 28 How. P. R., 446; 24 How. P. R., 20; 26 How. P. R., 94. S 328. If the appellant shall not, within twenty days after his appeal is perfected, cause a certified copy of the notice of appeal and of the judgment roll, or, if the appeal be from an order or any part thereof, a certified copy of such order and the papers upon which the order was granted, to be transmitted to the appellate court by the clerk with whom the notice of appeal is filed, the respondent may cause such certified copy to be transmitted by such clerk to the appellate court and recover the expenses thereof, as a disbursement on such appeal in case the judgment or order appealed from shall be in whole or in part affirmed, and this provision shall |