each action brought, all the persons liable, not previously sued who can, with reasonable diligence, be found within the Sta or, if the action is brought in the city court of the city of Ne York, or a county court, within the city or county, as the a may be, where the court is located.

Id., part of § 304. See, also, 2 R. S. 615, § 15 (2 Edm. 638); L. 18 ch. 946.

§ 3232. Interlocutory costs upon issue of law.

Where an issue of law and an issue of fact are joined, betwe the same parties to the same action, and the issue of fact mains undisposed of, when an interlocutory judgment is render upon the issue of law; the interlocutory judgment may, in discretion of the court, deny costs to either party, or award co to the prevailing party, either absolutely, or to abide the eve of the trial of the issue of fact.

. See 2 R. S., § 28.

§ 3233. Id.; how collected.

Section 779 of this act applies to interlocutory costs, award as prescribed in the last section, as if they were costs of a mote

§ 3234. Costs, where there are several issues of fact. In an action specified in section 3228 of this act, wherein complaint sets forth separately two or more causes of act upon which issues of fact are joined, if the plaintiff recovers one or more of the issues, and the defendant upon the other others, each party is entitled to costs against the adverse par unless it is certified that the substantial cause of action was same upon each issue; in which case, the plaintiff only is enti to costs. Costs, to which a party is so entitled, must be inclu in the final judgment, by adding them to, or offsetting the against, the sum awarded to the prevailing party; or otherw as the case requires. But this section does not entitle a plair to costs, in a case specified in subdivision fourth of section of this act, where he is not entitled to costs, as prescribed in t subdivision.

See 2 R. S. 617, § 26 (2 Edm. 641).

§ 3235. Id.; after discontinuance upon answer of title. Where an action, brought before a justice of the peace, or a district court of the city of New-York, or a justice's court a city, has been discontinued, as prescribed by law, upon t delivery of an answer, showing that title to real property * come in question; and a new action, for the same cause. been commenced in the proper court; the party in whose fa final judgment is rendered in the new action, is entitled to es except that, where final judgment is rendered therein, in fa of the defendant, upon the trial of an issue of fact, the plair is entitled to costs, unless it is certified, that the title to r property came in question on the trial.

Co. Proc., § 60 and 61.

$ 3236. Costs of a motion.

Costs upon a motion in an action, where the costs thereof not specially regulated in this act, or upon a reference r pursuant to sections 623, 624, 827, or 1015 of this act, may

awarded, either absolutely or to abide the event of the action, or of the reference, to any party, in the discretion of the court or judge.

Id., part of § 315. See, also, L. 1840, ch. 386, § 15 (4 Edm. 690).

§ 3237. The foregoing sections limited.

The foregoing sections of this article do not affect the recovery of costs upon an appeal.

§ 3238. Costs upon appeal from final judgment.

Upon an appeal from the final judgment in an action, the recovery of costs is regulated as follows:

1. In an action specified in section 3228 of this act, the respondent is entitled to costs upon the affirmance, 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.

2. 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. Co. Proc., part of § 306.

§ 3239. Id.; upon appeal from interlocutory judgment or order. 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 absolutely, or to abide the event, except as follows: 1. Where the appeal is taken from an order granting or refusing 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.

2. Where 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 appeal from the order.

Co. Proc., §§ 306 and 315.

§ 3240. [Am'd, 1881.] Id.; in a special proceeding. Costs in a special proceeding, instituted in a court of record, or upon an appeal in a special proceeding, taken to a court of record, where the costs thereof are not specially regulated in this act, may be 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 an appeal from a judgment taken to the same court, and in like manner.

See L. 1840, ch. 270, § 3 (4 Edm. 682; 5 id. 133); also, §§ 2086, 2109, 2143, 2249, 2316, 2401, 2445, 2456, ante.

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ARTICLE SECOND.

Regulations respecting the awarding of costs in particular cases

Sec. 3241. Costs against the State; how paid.

3242. Costs where action brought by people on relation of priva

person.

3243. Id.; for the benefit of a county, etc.

3244. Costs, against a school officer.

3245. Id.; against a municipal corporation.

3246. Id.; by or against an executor, etc.

3247. Costs in case of transfer, etc., of cause of action.

§ 3241. Costs against the State; how paid.

Where costs are awarded against the people of the State an action or a special proceeding brought, by a public officer, pursuant to any provision of law, and the proceedings have ne been stayed, by appeal or otherwise; the comptroller must dra his warrant upon the treasurer, for the payment of the costs out of any money in the treasury, appropriated for that purpose upon the production to him of an exemplified copy of the judg ment, or order awarding the costs, and, where the amount is not fixed thereby, of a taxed bill of costs; accompanied, in eithe case, with a certificate of the attorney-general, to the effect that the action or special proceeding was brought pursuant t law. The fees of the clerk, for the exemplified copy, must be certified thereupon by him, and included in the warrant.

2 R. S. 553, § 14 (2 Edm. 573).

{3242. Costs where action brought by people on relation of private person.

Where an action is brought, in the name of the people of the State, upon the relation of a private corporation or individua as prescribed in section 1986 of this act, a judgment, awarding costs to the defendant, must award them, against the relato in the first instance; and against the people, only in case an execution, issued thereupon against the property of the relator is returned unsatisfied.

Co. Proc., part of § 319.

§ 3243. Id.; for the benefit of a county, etc.

In an action or a special proceeding, brought in the name of the people of the State, to recover money or property, or to establish a right or claim, for the benefit of a county, city. town, or village, costs shall not be awarded against the people. but, where they are awarded to the defendant, they must be awarded against the body for whose benefit the action or special proceeding was brought.

Id., § 320.

3244. Costs, against a school officer.

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 upor him by law; where his act, refusal or omission might have been the subject of an appeal to the State superintendent of public instruction, and where it is certified that it appeared, upon the trial, that the defendant acted in good faith. But this section

does not apply to an action for a penalty; or to an action or a special proceeding, to enforce a decision of the superintendent. L. 1864, ch. 555, § 6 (6 Edm. 361).

§ 3245. [Am'd, 1899.] Id.; against a municipal corporation.

Costs cannot be awarded 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 such corporation having the power to audit the same, or to its chief fiscal officer, at least ten days before the commencement of said action.

L. 1859, ch. 262, § 2 (4 Edm. 682); L. 1886, ch. 572; L. 1899, ch. 609. In effect Sept. 1,

1899.

§ 3246. Id.; by or against an executor, etc.

In an action, brought by or against an executor or administrator, in his representative capacity, or the trustee of an express trust, or a person expressly anthorized by statute to sue or to be sued, costs must be awarded, as in an action by or against a person, prosecuting or defending in his own right, except as otherwise prescribed in sections 1835 and 1836 of this act; but they are exclusively chargeable upon, and collectible rom the estate, fund, or person represented, unless the court directs them to be paid, by the party personally, for mismanage ment or bad faith in the prosecution or defence of the action. Co. Proc., part of § 317.

3247. Costs in case of transfer, etc., of cause of action. Where an action is brought, in the name of another, by a transferee of the cause of action, or by the other person, who is beneficially interested therein: or where, after the commencement of an action, the cause of action becomes, by transfer or otherwise, the property of a person, not a party to the action; the transferee, or other person so interested, is liable for costs, in the like cases, and to the same extent, as if he was the plaintiff; and, where costs are awarded against the plaintiff, the court may, by order, direct the person so liable to pay them. Except in a case, where he could not have been lawfully directed to pay costs, personally, if he had been a party, as prescribed in the last section, his disobedience to the order is a contempt of court. But this section does not apply to a case, where the person so beneficially interested, is the attorney or counsel for the plaintiff, if his only beneficial interest consists of a right to a portion of the sum or property recovered, as compensation for his services in the action.

Id., § 321; 2 R. S. 619, § 44 (2 Edm. 643).

985

ARTICLE THIRD.

Miscellaneous provisions.

Rec. 3248. Certificate entitling party to costs or increased costs. 3249. Costs against infant plaintiff; collectible of guardian ad litem 3250. This title not to affect special provisions of law.

3248. Certificate entitling party to costs or increased

costs.

Where, upon the trial of an action, the title to real proper comes in question, or any fact appears, whereby either part becomes entitled to costs, or to the increased costs specified section 3258 of this act, the judge presiding at the trial, or th referee, must, upon the application of the party to be benefit thereby, either before or after the verdict, report, or decisi is rendered, make a certificate, stating the fact. Such a certi cate is the only competent evidence, as to the matter, before t taxing officer.

2 R. S. 653, § 8 (2 Edm. 73).

§ 3249. Costs against infant plaintiff; collectible guardian ad litem.

Where costs are awarded against an infant plaintiff, they may be collected, by execution or otherwise, from his guardia: ad litem, in like manner as if the latter was the plaintiff.

Co. Proc., § 316; 2 R. S. 653, §§ 15 and 16. See § 469, ante.

3250. This title not to affect special provisions of law This title does not affect any provision contained elsewher in this act, or in any other statute, remaining unrepealed afte this chapter takes effect; whereby the award of costs is special regulated, in a particular case, otherwise than as prescribed i this title.

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