For an execution upon such a conviction before him, twentyfive cents. For drawing, copying, and certifying a bond, an undertaking, a recognizance or other written security, and filing the same with the county clerk, or other officer with whom it must be filed, twenty-five cents. For a warrant of commitment for any cause, twenty-five cents. For a subpoena, including all the names inserted therein, twenty-five cents. For a precept to notify a jury, fifty cents. For empanelling and swearing a jury, twenty-five cents; except in proceedings to alter or lay out a highway, in which case he is entitled to two dollars. For hearing the matter, concerning which a jury is called, seventy-five cents for each day actually spent. For receiving and entering the verdict of the jury, and the order, if any, thereupon, twenty-five cents. For any service for which a fee is not expressly allowed by this subdivision, and for which, if rendered in an action before a justice, a fee is allowed by the first subdivision of this section, the fee allowed in such an action for the same service. For taking the deposition of a witness, upon an order made, or commission issued, by a court of record of the state, or a court in another state or a territory, or a foreign country, ten cents for each folio. For making the necessary return and certificate thereto, fifty cents. For taking en affidavit or administering an oath. ten cents. 2 R. S. 264, § 228 (2 Edm. 272), am'd, and 2 R. S. 637, § 29 (2 Edm. 658), am'd; L. 1904, ch. 282. In effect Sept. 1, 1904. § 3323. Constable's fees. A constable is entitled, for the services specified in this section, to the following fees: 1. In an action brought before a justice of the peace, or in a justices' court of a city. For serving a summons, twenty-five cents. For serving a summons and executing an order of arrest, one dollar. For serving a summons and levying a warrant of attachment, one dollar. For serving a summons and affidavit, and executing a requisition, in an action for a chattel, one dollar. For serving an order, directing the action to be continued before a justice, other than the one before whom it is pending, and for attending before the latter, fifty cents, and fifty cents in addition if he so attends with a person in his custody. For collecting money by virtue of an execution, for every dollar collected, to the amount of fifty dollars, five cents; for every dollar collected over fifty dollars, two and one-half cents. Where a judgment or an execution is settled after a levy, the constable is entitled to poundage upon the sum at which the settlement is made, not exceeding the value of the property levied upon. For each mile necessarily traveled, going and returning, to serve a summons or to serve or execute any other mandate, except a venire, the distance to be computed from the place of abode of the person served, or the place where it is served, to the place where it is returnable, ten cents; but where two or more mandates in one action are served or executed upon one journey, or where a mandate is served upon or executed against two or more persons in one action, he is entitled, in all, to only ten cents for each mile necessarily traveled. For notifying the plaintiff of the execution of an order of arrest, twenty-five cents; and for going to the plaintiff's residence, or, if he is found elsewhere, to the place where he is found, to serve such a notice, for each mile travelled, going and returning, ten cents. For subpoenaing each witness, not exceeding four, twenty-five cents. For notifying the jurors to attend a trial, one dollar and fifty cents. cents. For taking charge of a jury during their deliberations, fifty Where witnesses, not exceeding four, are subpoenaed by any person other than a constable, the fee therefor is thirteen cents each. 2. In a special proceeding. For notifying jurors to attend to assess damages, in proceedings relating to highways, two dollars. For notifying jurors to attend in any other case, unless a fee therefor is specially prescribed by law, for each person notified, ten cents; and for each mile actually and necessarily travelled, going from and returning to his place of residence, ten cents. For serving a precept or other mandate, by which the special proceeding is commenced, twenty-five cents. For serving a warrant, in any case where a fee therefor is not specially prescribed by law, fifty cents. For serving an order, directing the special proceeding to be continued before a justice other than the one before whom it is pending, and for attending before the latter, with or without a person in his custody, one dollar. For arresting and committing any person, pursuant to process, one dollar. For subpoenaing each witness, not exceeding four, twenty-five cents. For each mile necessarily travelled, going and returning, to serve or execute a mandate, the distance to be computed from the place where it is served or executed, to the place where it is returnable, unless a different rate of travel fees upon the service or execution thereof is specially prescribed by statute, ten cents. Where two or more mandates are served or executed in one special proceeding, the limitation upon the amount of travel fees specified in the last preceding subdivision applies. 2 R. S. 265, § 228 (2 Edm. 273), am'd; also, § 228. R. S.; L. 1866, ch. 692, § 7 (6 Edm. 806); L. 1869; ch. 820, § 1 (7 Edm. 480); L. 1875, ch. 334, § 1. § 3324. Id.; affidavit upon claim for travel fees. A constable, who charges any travelling fees, must show, by affidavit, that the travel was necessary, to perform the service with respect to which it is charged: that no more miles are charged for, than were actually and in good faith travelled for that purpose; that he had, at the time, no other official or private business upon the route so travelled; and that the travelling fees are charged upon one mandate only, which must be attached to or described in the affidavit. The justice taxing the fees must be satisfied that the miles charged for were actually and necessarily travelled. as stated in the affidavit, L. 1869, ch. 820, § 2 (7 Edm. 480). § 3325. Justice's court, fees upon a commission. A party recovering costs in an action before a justice of the peace, in whose behalf a commission has been issued, and who introduces in evidence a deposition taken thereunder, is entitled to recover his actual disbursements thereupon, not exceeding the following sums: commissioners' fees for taking and returning testimony, one dollar; each subpoena issued, or oath administered, by the commissioner, six cents; expense of serving each subpoena, twenty-five cents; each witness's fees for each day's attendance before the commissioner, twenty-five cents; postage for sending and returning the commission and papers annexed thereto, one dollar. L. 1841, ch. 138, § 3 (4 Edm. 546). § 3326. Id.; jurors' fees. Except as otherwise specially prescribed by law, a person, notified to attend as a juror, is entitled to twenty-five cents for attending and serving upon the trial of an action or the hearing of a special proceeding, before a justice of the peace; and to ten cents for attending to serve, where he is not sworn. 2 R. S. 265, § 228 (2 Edm. 273); L. 1866, ch. 692, § 9 (6 Edm. 806). § 3327. Id.; witnesses' fees. A witness is entitled to twenty-five cents for each day's actual attendance, before a justice of the peace, in an action or a special proceeding, or before a commissioner appointed by a justice of the peace, or before a justice of the peace taking a deposition to be used in a court, not of record, of another State, or a territory of the United States. Part of § 228, R. S., and § 10 of act of 1866. § 3328. Id.; fees to be paid before services rendered. A justice of the peace, or a constable, juror, or witness, before a justice of the peace, is not obliged to render any service specified in this title, without the previous payment or tender of his fee therefor. 2 R. S. 650, part of § 6 (2 Edm. 670). § 3329. Id.; by whom fees to be paid. In an action before a justice of the peace, if any services are rendered for a party, and he neglects to pay the fees allowed therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs, if he recovers costs. § 3330. Certain special provisions excepted from this title. The allowance of a fee, by this title, does not apply to a case, where special provision is otherwise made by statute for compensation for a particular service. § 3331. Provision as to change in fees. Where an officer has, when this title takes effect, commenced the performance of a service, for which a fee is allowed by the statutes heretofore in force, he is entitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title. § 3332. This title applies to civil cases only. Except as otherwise expressly prescribed therein, this title does not apply to a service rendered in a criminal action or special proceeding, in a court or before an officer, CHAPTER XXII. Definitions and Regulations Concerning the Con struction, Effect, and Application of this Act. TITLE I.-General Definitions, and Rules of Construction. TITLE II.- Provisions Regulating the Effect and Application of this Act. TITLE I. General definitions, and rules of construction. Sec. 3333. Definition of "action". 3334. Id.; " special proceeding ". 3335. Division of actions into civil and criminal. 3336. Definition of " criminal action ". 3337. Id.; "civil action ". 3338. Parties to a civil action. 3339. Only one form of civil action. 3340. Rule of construction as to publication, etc., in certain cases. 3341. Id.; as to certain special provisions relating to New-York city. 3342. Id.; as to county court. 3343. Miscellaneous general definitions and rules of construction. 3333. Definition of “action”. i The word "action", as used in the New Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. Co. Proc., § 2. § 3334. Id.; "special proceeding ". Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding. Id., § 3. § 3335. Division of actions into civil and criminal. Actions are of two kinds; 1. Civil. 2. Criminal. Id., § 4. § 3336. Defintion of "eriminal action". A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof. Id., § 5. § 3337. Id.; "civil action". Every other action is a civil action. Id., § 6. § 3338. Parties to a civil action. The party prosecuting a civil action is styled the plaintiff; the adverse party is styled the defendant. Id., § 70. § 3339. Only one form of civil action. There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished. Co. Proc., § 69. 3340. Rule of construction as to publication, etc., in certain cases. Each provision of this act, requiring the publication of a summons, notice, or other paper, in one or more newspapers, or authorizing or requiring a court, or a judge, to designate one or more newspapers, in which such a publication must be made, or requiring the posting of a notice or other paper, is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, prescribing one or more particular newspapers, in which such a publication must or may be made, or one or more particular places in which notices or other legal papers must or may be posted, in a particular locality, or in a particular case. § 3341. Id.; as to certain special provisions relating to New-York city. Each provision of this act is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, which is applicable exclusively to an action against the mayor, aldermen, and commonalty of the ctly of New-York, including the recovery, entry, and collection of a judgment in such an action. § 3342. Id.; as to county court. Each provision of this act conferring power upon, or authorizing a proceeding to be taken, at a general, special, or trial term, which is applicable to a county court, is to be construed as applying to any term of the county court, held pursuant to an appointment made as prescribed by law. § 3343. Miscellaneous general definitions and rules of construction. In construing this act, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof: 1. [Subdiv. 1 repealed Jan. 1, 1896; L. 1895, ch. 946.] 2. The word, "mandate ", includes a writ, process, or other written direction, issued pursuant to law, out of a court, or made pursuant to law, by a court, or a judge, or a person acting as a judicial officer, and commanding a court, board, or other body, or an officer, or other person, named or otherwise designated therein, to do, or to refrain from doing, an act therein specified. |