TITLE V. The municipal court of the city of Rochester. Sec. 3226. Provisions of chapter 19 generally applicable to the court and judges. 3227. Appeals. § 3226. [Am'd, 1907.] Provisions of chapter 19 generally applicable to the court and judges. The provisions of chapter nineteenth of this act, excluding section thre thousand sixty-three, excluding article three of title eight, and excluding titles tenth and eleventh thereof, apply to the municipal court of the city of Rochester, and to the judges thereof; except so far as they are inconsistent with the next section, or with the charter of the city of Rochester or with any other statute applying to said court or the judges thereof as now existing or hereafter amended. For the purpose of applying the same, the court is deemed a justice's court; each judge thereof is deemed a justice of the peace; and the city of Rochester is deemed a town of Monroe county. L. 1876, ch. 196, part of § 4; L. 1907, ch. 754. In effect Jan. 1, 1908. § 3227. [Added, 1907.] Appeals. Appeals may be taken to the county court of Monroe county from judgments and orders of the municipal court of the city of Rochester and from orders of the judges thereof as provided in article two of title eight of chapter nineteenth of this act, and the provisions thereof, except section three thousand sixty-three, apply to such appeals, except as herein expressly modified. The appeal must be heard on the return or a certified copy thereof, and may be brought on for hearing in the county court in the same manner and on the same notice as motions are or may be brought on for hearing in said court, or may be put on the calendar of said court as provided in section three thousand sixtytwo of this act. The county court and other appellate courts on such appeals must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits, and may affirm or reverse, wholly or partly, or modify, the judgment or order appealed from for errors of law or of fact or because the judgment is excessive or insufficient or contrary to the evidence or contrary to law, and may, if necessary or proper, grant a new trial or hearing in the municipal court of the city of Rochester or before a judge thereof, as may be proper, at a time designated by it, and thereupon the municipal court or judge must proceed, and adjournments may be granted, a jury trial demanded, and all other proceedings taken as if the action or proceeding had been commenced anew. copy of the judgment or order granting a new trial or hearing A must be served by the party entering it on the opposite party or his attorney at least two days before the time set for the new trial or hearing. When a new trial or hearing is granted the appellate court may in its discretion award costs of the appeal to either party absolutely or to abide the event. L. 1907, ch. 754. In effect Jan. 1, 1908. 929 FITLE CHAPTER XXI. Costs and Fees. I.-Awarding and Enforcing Payment of Costs. TITLE II.-Mixing the Amount of Costs. TITLE III.-Security for Costs. TITLE IV.-General Provisions Relating to Fees. TITLE V.-Sums Allowed as Fees. TITLE I. Awarding and enforcing payment of costs. Article 1. General regulations respecting the awarding of costs. 2. Regulations respecting the awarding of costs in particular cases. 3. Miscellaneous provisions. ARTICLE FIRST. General regulations respecting the awarding of costs Sec. 3228. When plaintiff entitled to costs of course. 8229. When defendant entitled to costs of course. Rule as to two or more defendants. 3230. When costs are discretionary. 3231. Costs, where several actions are brought on same instrument, etc. 3232. Interlocutory costs upon issue of law. 3234. Costs, where there are several issues of fact. 3235. Id.; after discontinuance upon answer of title. 3236. Costs of a motion. 3237. The foregoing sections limited. 3238. Costs upon appeal from final judgment. 3239. Id.; upon appeal from interlocutory judgment or order. 3240. Id.; in a special proceeding. § 3228. [Am'd, 1898, 1904.] When plaintiff entitled to costs of course. The plaintiff is entitled to costs of course, upon the rendering of a final judgment in his favor, in either of the following actions: 1. An action, triable by a jury, to recover real property, or an interest in real property; or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial. 2. An action to recover a chattel. But if the value of the chattel, or of all the chattels, recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages. 3. [Am'd, 1898.] An action specified in subdivision first, third, fourth or fifth of section twenty-eight hundred and sixty-three of this act. But if, in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution; or a fine or penalty in which the people of the state are a party, the plaintiff recovers less than fifty dollars damages, the amount of his costs can not exceed the damages. L. 1898, ch. 110. In effect Sept. 1, 1898. See § 3234. 4. An action, other than one of those specified in the foregoing subdivisions of this section, in which the complaint demands judgment for a sum of money only. But the plaintiff is not entitled to costs, under this subdivision, unless he recovers the sum of fifty dollars or more. Co. Proc., part of § 304. 5. [Added, 1904.] In all actions hereafter brought in the supreme court, triable in the county of New York or the county of Kings, which could have been brought, except for the amount claimed therein, in the city court of the city of New York or the county court of Kings county, and in which the defendant shall have been personally served with process within the counties of New York or Kings, the plaintiff shall recover no costs or disbursements unless he shall recover five hundred dollars or more; and in all actions hereafter brought in the city court of the city of New York or the county court of Kings county, which could have been brought, except for the amount claimed therein, in the municipal court of the city of New York, and in which the defendant shall have been personally served with process within the city of New York, the plaintiff shall recover no costs or disbursements unless he sball recover two hundred and fifty dollars or more. The fact that in any action a plaintiff is not entitled to costs under the provisions of this subdivision shall not entitle the defendant to costs under the next following section. L. 1904, ch. 557. In effect Sept. 1, 1904. § 3229. When defendant entitled to costs of course. Rule as to two or more defendants. The defendant is entitled to costs, of course, upon the rendering of final judgment, in an action specified in the last section, unless the plaintiff is entitled to costs, as therein prescribed. But where, in such an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs, of course. In that case, costs may be awarded, in the discretion of the court, to any defendant, against whom the plaintiff is not entitled to costs, where he did not unite in an answer, and was not united in interest, with a defendant, against whom the plaintiff is entitled to costs. Id., part of §§ 305, 306. § 3230. [Am'd, 1900.] When costs are discretionary. 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. Id., part of § 306; L. 1900, ch. 181. In effect October 1, 1900. § 3231. [Am'd, 1895.] Costs, where several actions are brought on same instrument, etc. Where two or more actions are brought, in a case specified in section 454 of this act, or otherwise for the same cause of action, against persons who might have been joined as defendants in one action, casts, other than disbursements, cannot be recovered, upon the final judgment, 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 NewYork, or a county court, within the city or county, as the case may be, where the court is located. Id., part of § 304. See, also, 2 R. S. 615, § 15 (2 Edm. 638); L. 1895, ch. 946. § 3232. Interlocutory costs upon issue of law. Where an issue of law and an issue of fact are joined, between the same parties to the same action, and the issue of fact remains undisposed of, when an interlocutory judgment is rendered upon the issue of law; the interlocutory judgment may, in the discretion of the court, deny costs to either party, or award costs to the prevailing party, either absolutely, or to abide the event 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, awarded as prescribed in the last section, as if they were costs of a motion. § 3234. Costs, where there are several issues of fact. In an action specified in section 3228 of this act, wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more 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 that 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 subdivision fourth of section 3228 of this act, where he is not entitled to costs, as prescribed in that 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 in a district court of the city of New-York, or a justice's court of a city, has been discontinued, as prescribed by law, upon the delivery of an answer, showing that title to real property will come in question; and a new action, for the same cause, has been commenced in the proper court; the party in whose favor final judgment is rendered in the new action, is entitled to costs; except that, where final judgment is rendered therein, in favor of the defendant, upon the trial of an issue of fact, the plaintiff is entitled to costs, unless it is certified, that the title to real 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 are not specially regulated in this act, or upon a reference made pursuant to sections 623, 624, 827, or 1015 of this act, may be 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. 933 |