Слике страница

§ 3258. When defendant entitled to increased costs. In either of the following cases, a defendant, in whose favor a final judgment is rendered, in an action wherein the complaint demands judgment for a sum of money only, or to recover a chattel; or a final order is made, in a special proceeding instituted by a State writ, is entitled to recover the costs, prescribed in section 3251 of this act, and, in addition thereto, onehalf thereof:

1. Where the defendant is or was a public officer, appointed or elected under the authority of the State, or a person specially appointed, according to law, to perform the duties of such an officer; and the action or special proceeding was brought by reason of an act, done by him by virtue of his office, or an alleged omis sion by him, to do an act, which it was his official duty to perform.

2. Where the action was brought against the defend ant, by reason of an act done, by the command of such an officer or person, or in his aid or assistance, touching the duties of the office or appointment.

3. Where the action was brought against the defend. art, for taking a distress, making a sale, or doing any other act, by or under color of authority of a statute of the State.

But this section does not apply, where an officer, or other person, specified herein, unites in his answer with a person not entitled to such additional costs.

YA., 24. People ex rel. v. Colborne, 20 How. 378; Davis v. Cooper, 50 Barb. 376; Stewart v. Schultz, 33 How. 4; Carpentier v. Willett, 3 Rob. 700; 28 How. 376; 31 N. Y. 90; Van Bergen . Ackles, 21 How. 314; Bradley v. Fay, 18 id. 481; Gallup v. Bell, 20 Hun, 172; Jones v. Gray, 13 Wend. 280; Reynolds . Moore, 9 id. 35; Walker. Burnham, 7 How. 55; Jackson v. Lynch, 32 id. 93; Sar. & Wash. R. R. Co. v. McCoy, 7 id. 190; Mack v. McCulloch, 2 id. 127; Wheelock v. Hotchkiss, 18 id. 468; People ex rel. v. Supervisors, 50 id. 3; People ex rel. v. Adams, 9 Wend. 464; Tillou v. Sparks, 9 How. 465; Calkins v. Williams, 1 Code R. N. S. 53; Taacks v. Schmidt, 25 How. Pr. 340.

3259. Increased disbursements not allowed. --The increase, specified in the last section, does not extend to the disbursements; and an officer, witness, or juror, is not entitled to any other fees in the action, except the single fee allowed by law for his services.

I., 25, amended.

3260. Costs upon a settlement.- Where an action, specified in section 3228 of this act, is settled before

judgment, no greater sum shall be demanded as costs, than at the rates prescribed by section 3251 of this act.

Code of Proc.. 322. Clark v. Wood, 9 Wend. 435; Britton v. Frink, 4 How. 144; Latham v. Bliss, 6 Duer, 661; Warfield v. Watkins, 30 Barb. 395; Bendit v. Annesley, 27 How. 184; Willis v. Chipp, 9 How. 568. Discontinuance, etc.-Carlton v. Darcy, 75 N. Y. 375; Harrington v. Libby, € Daly, 259; Averill v. Patterson, 10 N. Y. 500; Burnett v. Harkness, 4 How. 158; Saxon v. Stowell, 11 Paige, 526; People v. Tweed, 63 N. Y. 202; Duncan v. De Witt, 7 Hun, 184, Clearwater v. Decker, 13 id. 63; Cockle v. Underwood, 1 Abb. 1; Geenia v. Keah, 66 Barb. 245; Young . Bush, 36 How. 240; Arnoux v. Steinbrenner, 1 Paige, 82; Smith v. Britt, 8 Week. Dig. 76; Gale v. Wells, 7 How. 191; Wellington v. Classon, 18 id. 10; 9 Abb. 175; Luddington v. Bell, 45 N. Y. Super. Ct. 513; Crockett v. Smith, 14 Abb. 62; Earl v. Campbell, 14 How. 330; see, also, cases cited under 3251, ante.

3261. This article not to affect special provisions of law. This article does not affect any provision contained elsewhere in this act, or in any other statute remaining unrepealed after this act takes effect, whereby the amount of costs is specially fixed, in a particular case, otherwise than as prescribed in this article.




SEC. 3262. Costs; how taxed. Allowances, etc., how computed. 3263. Notice of taxation.

3264. Retaxation.

3265. Review of taxation.

3266. Duty of taxing officer.

3267. Affidavit respecting disbursements.

3262. Costs; how taxed. Allowances, etc.; how computed. Costs must be taxed by the clerk, upon the application of the party entitled thereto; except that the court may direct, that interlocutory costs, or costs in a special proceeding, be taxed by a judge. The clerk must insert, in the judgment or final order, the amount of the costs, as taxed. In a case where the costs are in the discretion of the court, the report or de cision, or the direction of the court for final judgment, upon a default, or after a jury trial, must specify which party or parties are entitled to costs; but the amount of the costs must be ascertained by taxation. The allow ance, specified in section 3252 of this act, must be com puted by the clerk upon the taxation; but the value of property, required to be ascertained for that purpos⚫,

[ocr errors]

must be ascertained by the court, unless it has been fixed by the decision or report, or by the verdict of the jury, upon which the final judgment is entered; except that, in case of actual partition, it must be determined by the commissioners.

Code of Proc., part of 2 311 and 309. Brown v. Leigh, 50 N. Y. 427; 13 Abb. N. S. 305; Kelly . Plum, 50 How. 236; Cochran's Executor v. In gersoll, 11 Hun, 342; Chase v. Miser, 67 Barb. 441; Chapin v. Churchill, 12 How. 367; Olcott. McLean, 11 Hun, 394: Ballou v. Parsons, 55 N. Y. 673: 52 How. 164; 67 Barb. 19: Lultgor v. Walters, 64 id. 417; Hunt v. Middlebrook, 14 How. 300; Baily v. Stone, 41 id. 346, Lynch v. Meyers,8 Daly, 256; Matter of Hudson Ave., 2 Hun, 580; 62 N. Y. 611: Curtis v. Leavitt, 1 Abb. 118; Buck v. City of Brockport, 43 How. 283; Pittman v. Mayor, 3 Hun, 370; 62 N. Y. 637 Agricultural Ins. Co. v. Bean, 45 How. 444; Cochran v. Gottwald, 41 N. Y. Super. Ct. 317; Hanna v. Dexter, 1 Abb. 135; People ex rel. Bergen, 9 Hun, 202; Brown v. Windmuller, 36 N. Y. Super. Ct. 75: People ex rel. Colborne, 20 How. 378; Re Fourth Ave, 11 Abb. 189; Wheelock v. Hotchkiss, 18 How.468; Hanna v. Dexter 15 Abb. 135.

3263. Notice of taxation.- Costs may be taxed. upon notice to the attorney for each adverse party, who has appeared, and is interested in reducing the amount thereof. Notice of taxation must be served, not less than five days before the taxation; unless the attor neys, serving and served with the notice, all reside, or have their offices, in the city or town, where the costs are to be taxed; in which case, a notice of two days is sufficient. A copy of the bill of costs, specifying the items, with the disbursements stated in detail, must be served with the notice of taxation.


Code of Proc., 311. Cooper v. Astor, 1 Johns. Cas. 32; Van Wyck Reid, 10 How. 366; Oothout v. Rooth, 12 Johns. 151; Anonymous, 4 Sandf. 693; Whitney v. Townsend, 67 N. Y. 40.

§ 3264. Retaxation.-Costs may also be taxed with out notice. But where they are so taxed, notice of retaxation thereof must immediately afterwards be given as prescribed in the last section, by the party at whose instance they were taxed; in default whereof, the court must, upon the application of a party entitled to notice, direct a retaxation, with costs of the motion, to be paid by the party in default. The court may, in its discre tion, upon the application of a party interested, direct & retaxation of costs at any time. Any sum, deducted upon a retaxation, must be credited upon the execution, or other mandate issued to enforce the judgment.

New. Stimson v. Huggins, 16 Barb. 658; Macomber v. Mayor of New York, 17 Abb. Pr. 35; Henry v. Bow, 20 How. Pr. 215; Hoffnung v Grove, 18 Abb. Pr. 142; Champion v. Plymouth Cong. Soc., 42 Barb. 441

Petrie v. Fitzgerald, 2 Abb. N. S. 354; Watson v. Gardiner, 50 N. Y. 671; Guckenheimer v. Angevine, 16 Hun, 453; Wilde v. N. Y. Č. & H. R. R. R. Co., 43 N. Y. Super. Ct. 269.

3265. Review of taxation.-A taxation or a retax. ation may be reviewed by the court, upon a motion for a new taxation. The order, made upon such a motion, may allow or disallow any item, objected to before the taxing officer, in which case, it has the effect of a new taxation; or it may direct a new taxation before the proper officer, specifying the grounds or the proof, upon which the item may be allowed or disallowed by him.

New. Beattie v. Qua, 15 Barb. 132; Whipple v. Williams, 4 How. 28; Mayor v. Cornell, 9 Hun, 215; Rogers v. Rogers, 2 Paige, 458: Jones r. Cook, 11 Hun, 230; Dresser v. Brooks, 2 N. Y. 559; 4 How. 207; Baily v. Stone, 41 id. 346; Penfield r. Jones, 4 Hun, 69; Dresser v. Wicks, 2 Abb. 460; Schermerhorn e. Van Vorst, 5 How. 455; Callomb v. Caldwell, id. 336; Murdock v. Adams, 10 Hun, 566; Corbett v. De Comeau, 45 N. Y. Super. Ct. 587: Dietz v. Farish, 43 id. 87; Sluyter v. Smith, 2 Bosw. 673; McLean v. Hoyt, 56 How. 351; Logan v. Thomas, 11 id. 160; Webb v. Crosby, 11 Paige, 193; People ex rel. Lewis, 28 How. 159; Agricultural Ins. Co. v. Bean, 45 1.444; Goodyear v. Baird, 11 id. 377; Cuyler v. Coates, 10 1d. 142; Guckenheimer v. Angevine, 16 Hun, 453.

§ 3266. Duty of taxing officer.-An officer, authorized to tax costs in an action or a special proceeding, must, whether the taxation is opposed, or not, examine the bills presented to him for taxation; must satisfy himself that all the items allowed by him are correct and legal; and must strike out all charges for fees, other than the prospective charges expressly allowed by law, where it does not appear that the services, for which they are charged, were necessarily performed.

2 R. S. 653, 5(2 Elm. 672). Brown v. Windmuller, 36 N. Y. Super. Ct. 75; 14 Abb. N. S. 359; Rogers v. Rogers, 2 Paige, 458; Stimson . Huggins, 16 Barb. 658; 9 How. 86; Belding v. Conklin, 4 id. 196.

§ 3267. Affidavit respecting

disbursements.- A

charge, for the attendance of a witness, cannot be allowed without an affidavit, stating the number of days of his actual attendance; and, if travel fees are charged, the distance for which they are allowed. A charge, for a copy of a document or paper, cannot be allowed, without an affidavit, stating that it was actually and necessarily used, or was necessarily obtained for use. An item of disbursements, in a bill of costs, cannot be allowed, in any case, unless it is verified by affidavit, and appears to have been necessarily incurred, and to be reasonable in amount.

Id., 7; Code of Proc., part of see, also, Shannon v. Brower, 2 Abb. 377.

311. Hager v. Danforth,8 How. 448


Security for costs.

BEC. 3268. When defendant may require security for costs, 3269. Id.; after action commenced.

3270. The last two sections qualified.

3271. Id.; in actions by and against executors, etc.
3272. Order to give security.

3273. Requisites of undertaking.

3274. Notice of exception; id., of justification.

3275. Justification of sureties. Allowance of undertaking.
3276. Order to give additional security. Proceedings.
3277. Effect of failure to obey order to give security.
3278. Liability of attorney, for costs in certain actions.
3279. This title applies to special proceedings.

3268. [Amended, 1891.] When defendant may require security for costs. The defendant, in an action brought in a court of record, may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either

1. A person residing without the State; or, if the action is brought in a county court, or in the city court of the city of New-York, the city court of Yonkers, or the justice's court of the city of Albany, residing without the city or county, as the case may be, wherein the court is located; or

2. A foreign corporation; or

3. A person imprisoned under execution for a crime;


4. The official assignee of a person so imprisoned; the official assignee or official trustee of a debtor; or an assignee in bankruptcy where the action is brought upon a cause of action, arising before the assignment, the appointment of the trustee, or the adjudication in bankruptcy; or

5. An infant, whose guardian ad litem has not given such security, except as otherwise provided in sections 459 and 469 of this act. [In effect Sept. 1, 1891, and not applicable to actions or proceedings cominenced prior to such date.

2 R. S. 620, 21 (2 Edm. 644). Coates v. Morris, 1 Law Bull. 29; Hodges v. Porter, 10 Hun, 244; Gelch v. Barnaby, 7 Abb. 19; 1 Bosw. 657; Wice v. Com. Ins. Co., 7 Daily, 258; McDonald v. Brass Goods Manufact'g Co., 2 Abb. N. C. 434; Republic of Mexico v. Arrangoid, 3 Abb. 470; Norton v. Mackie, 8 Hun, 520; Hall v. Waterbury, 1 Law Bull. 22; Florence v. Bulkely, 1 Duer, 705; Ranney v. Stringer, 4 Bosw. 663; Keller v. Townsend, 2 Abb. N. C. 432; Gardner v. Kelly, 2 Sandf. 633; National Ex. Bank v. Silliman, 4 Abb. N. C. 224.

§ 3269. Id.; after action commenced. The defend

« ПретходнаНастави »