. dollars; for every trial of an issue of fact, fifteen dollars; for argument of a motion for a new trial on a case or a bill of exceptions, ten dollars; in all cases, to either party, for every term not exceeding five, at which the appeal is necessarily on the calendar, and is not tried or is not postponed by the court, seven dollars. In other appeals the costs shall be as follows: To the appellant, on reversal, fifteen dollars; to the respondent, on the affirmance, twelve dollars. If the judgment appealed from be reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as provided by section 364, no costs shall be allowed to either party. In every appeal the justice of the peace before whom the judgment appealed from was rendered shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings, not affecting the merits, costs shall be in the discretion of the court. If, in the notice of appeal, the appellant shall not state in what particular or particulars he claims the judgment should have been more favorable to him, he shall not be entitled to costs unless the judgment appealed from shall be wholly reversed. a. Appeal from an order-not lim- | ited to $10.-On an appeal from an order, of an inferior court to supreme court, the costs are not limited to $10, but are governed by subd. 5, of § 307, of the Code, and follow as matter of right, the same as on an appeal from a judgment. Williams v. Murray, 32 How. 187; S. C. 2 Abb. N. S. 292. b. When a notice of appeal requires a statement of particulars.This section (371) of the Code requires a statement of particulars in the notice of appeal only when the appellant claims the judgment below should have been more favorable to him, not when a reversal alone is sought. Where the judgment below is affirmed or reversed, the successful party is entitled to costs under § 368 of the Code; the question of costs in such cases not being affected by the first paragraph of this section (371). Wallace v. Patterson, 29 How. 170. c. Statement in the notice of appeal. A statement in a notice of appeal from a judgment of a justices' court, "that the judgment should have been in favor of the defendant and against the plaintiff for costs," is not sufficient to entitle the appellant to costs in case of the recovery of a more favorable judgment by him in the county court. But a statement," that the judgment should have been for a less amount of damages against the defendant," is sufficient to carry costs in favor of the appellant, if he recovers a more favorable judgment in the appellate court. Loomis v. Higbie, 29 How. 232; S. C. id. 288. d. Offer of acceptance must be served both on party and justice. Where a notice of appeal from a justice's judgment, specifying the particulars in which the judgment should have been more favorable to the appellant, is served upon the respondent, he, in serving his offer of acceptance, must not only serve it on the party, but also on the justice. The statute has made the respondent's right to costs depend upon a com pliance with its provisions. Smith v. Hinds, 30 How. 187. e. Offer to receive a less sum than judgment, cannot be proved in appellate court.-Where the plaintiff recovers judgment in the justice's court for $100, and on appeal to the county court, serves an offer on the defendant to correct it, by taking $25 less, which offer the defendant does not accept, the defendant cannot prove such offer in the appellate court for the purpose of substantiating his assertion to the jury, that the offer was evidence that the plaintiff had no confidence in his case. If he is allowed to prove such offer, a new trial in the county court will be granted, costs to abide the event. Semble, that the offer might be used on the adjustment of costs, without being proved in the county court. Finney v. Vedder, 31 How. 14; S. C. 45 Barb. 388; 1 Abb. N. S. 366. f. Respondent must be responsible for his offer.-When an appeal is had from a judgment in a justice's court, under this section (371) of the Code, the respondent must be responsible for the offer he makes to allow the judgment of the justice to be corrected, without regard to the extent the appellant claims in his notice of appeal, it should have been more favorable to him. The respondent is not confined in his offer to the claim of the appellant in the notice of appeal, even if such claim is particular and specific as to the amount; and this being so, it would be useless, and should therefore not be held necessary that the appellant's claim should be specific in amount. Reed v. Moore, 31 How. 264; S. C. MASON, J., dissenting, id. 369. See, also, Fox v. Nellis, 25 id. 144; Loomis v. Higbie, 29 id. 232; Wynkoop v. Halbut, 43 Barb. 266; S. C. 25 How. 158, sub nom. Wynkoop v. Holbert. g. Example of insufficient notice of appeal to require an offer.-A notice of appeal from a justice's judgment, under § 371 of the Code, which specified the following grounds, was held insufficient to require an offer from the respondent, to-wit: 1st. That the justice had not jurisdiction of the case, because the parties were tenants in common of the subject-matter. 2d. The justice erred in allowing plaintiff for hay, as the defendant furnished all the hay necessary to winter out the stock. 3d. The damages were excessive. 4th. There was no evidence to warrant a judgment for the plaintiff above $5. 5th. The justice erred in receiving in evidence the written contract. 6th. The defendant demands a new trial, because the claim of each party in his pleadings was above $50, and the judgment is above $50. 7th. That the case was without evidence to sustain a judgment for $79. A notice purporting to state the grounds of appeal without intimation of further claim, does not require an offer from the respondent at his peril, even though some one or more of the grounds of appeal might be construed into a sufficient demand for a modification, had that purpose been pointed out. Loveland v. Atwood, 31 How. 467. See, also, Hotckiss v. Banks, 36 id. 61, in which the cases of Reed v. Moore, 31 id. 264, and Smith v. Hinds, 30 How. 187, are distinguished. h. Example of sufficiently specific notice. Where the notice of appeal fairly apprises the opposite party that the damages are excessive, it is sufficiently specific under this section (361) of the Code to call upon such party to make an offer. Myers v. White, 37 How. 393. Fults v. Wynn, 2 Lans. 153. i. Costs on appeal.-A justice's judgment was rendered for the plaintiff for $140 damages and costs. An appeal was brought to the county court, in which the appellant stated that the judgment should have been in his favor for no cause of action and for costs. The respondent made no offer to allow the judgment to be corrected. The appellate court rendered a judgment for $58: heid, that the appellant was not entitled to costs on the appeal, but that the respondents were, for the reason that when the verdict or judgment is for too large an amount, the respondent has the responsibility cast on him of offering to reduce it or be subject to costs; and he must say how much, and fix a sum he can sustain on appeal. Wynkoop v. Halbut, 43 Barb. 266; Aff'g S. C. 25 How. 158, sub nom. Wynkoop v. Holbert. On a trial upon appeal in the county court, the plaintiff recovered a verdict for $284.37, upon which he entered judgment with costs in the aggregate for $519.72. The complaint in the justice's court demanded $200, and it did not appear whether it had been amended, and no question was raised upon the rendition of the verdict as to the amount thereof. On appeal to the supreme court the judgment was sustained. Channon v. Lusk, 2 Lans. 211. j. Plaintiff left to prosecute further -costs.-Where the plaintiff has judgment in the marine court, and on appeal to the common pleas it is reversed, although judg ment is not ordered for the defendant, but the plaintiff is left to prosecute his action further, if so advised, held, that the costs incurred by the defendant in defending the action in the marine court, could not be inserted in the adjustment of the costs on appeal. Ellert v. Kelly, 10 How. 392; S. C. less fully, 4 E. D. Smith, 12. k. What embraced in the offer to correct judgment.-Where the respondent offers on appeal, that the appellant may correct the judgment, as provided by this section (371), the offer embraces all its necessary legal consequences; all the attendant advantages and disadvantages should be scanned. If what is offered increases in value, that increase attaches to the offer by the force of law. Baldwin v. Braun, 37 How. 385. But see Humiston v. Ballard, 39 How. 93; S. C. Rev'd in part, 40 How. 40. But the Code, in allowing costs to the appellant on appeal from a justice's judgment, where the judgment appealed from is reversed or made more favorable to him to the amount of at least ten dollars, does not authorize the allow ance of interest on the former verdict, in estimating the difference between that and the latter verdict in settling the costs. Humiston v. Ballard, 39 How. 93; S. C. Rev'd in part, 40 How. 40. 1. On what does the right of the appellant to costs depend?—The right of the appellant to costs in the appellate court depends upon the question, whether his notice of appeal was sufficient, and not upon the late court was more favorable to him than question, whether the judgment in the appel that rendered in the court below. Where the notice of appeal is defective because it does not specify the particulars as required by statute, the appellant will have to pay costs, even though he recovers a more favorable judgment than that appealed from. Forsyth v. Ferguson, 27 How. 67. See, also, Barnard v. Pierce, 28 id. 232. m. Costs cannot be set off against judgment creditor's bill. Where a creditor's bill contains no specific charge, but only general allegations as to property, and the same is dismissed, on the ground that no property of the debtor could be discovered, held, that the costs of the defendant could not be set off against the judgment Evans v. Vance, 2 Barb. 598. n. Costs and disbursements on acceptance of offer.-Where the respondent offers, under this section (371) of the Code, to allow the judgment recovered before the justice to be corrected, and the appellant accepts the offer, and the judgment is so corrected, held, that the appellant is entitled to an order for the recovery of the amount of his disbursements on appeal and his costs in the court below. Ponto v. Phelps, 36 How. 19; S. C. incorrectly reported, 35 id. 364. o. Trial by supreme court, disqualification of county judge.Where a cause is certified into the supreme court by a county judge, by reason of his disqualification from hearing it, and the case is heard and decided by one of the justices of the supreme court, the same rate of costs will be taxable as though the county judge had decided it. O'Callaghan v. Carroll, 16 How. 327; Taylor v. Seeley, 4 id. 314; S. C. 3 Code R. 84. p. Construction of section 371.The provisions of this section of the Code, which require the service of an offer, to allow judgment to be corrected, upon the appellant and the justice, is applicable to the party, when the appeal is made in person; but when it is made by an attorney, he is substituted, by § 417 of the Code, in place of the party. In such a case, the offer must be served on the attorney and the justice. Purvis v. Gray, 39 How. 1. TITLE XII. Of the Miscellaneous Proceedings in Civil Actions, and General Provisions. CHAPTER I. Submitting a controversy without action. II. Proceedings against joint debtors, heirs, legatees, devisees, and tenants holding under a judgment debtor. III. Confession of judgment without action. IV. Offers of the defendant to compromise the whole or a part of the action. VI. Examination of parties. Submitting a controversy without action. SECTION 372. Controversy, how submitted without action. 373. Judgment on, as in other cases, but without costs. 374. Judgment may be enforced, or appealed from, as in an action. § 372. [325.] Controversy, how submitted without action. Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same, to any court which would have jurisdiction if an action had been brought. But it must appear, by affidavit, that the controversy is real, and the proceeding in good faith, to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending. a. When a submission can be made. This section (372) authorizes a submission to be made, only in a case where an action will lie, and only to a court which would have jurisdiction of such action. American Transportation Co. v. Assessors of Buffalo, Buffalo Sup. Ct. G. T. Oct. 1855, 4 Clint. Dig. 3082. b. Practice.—A case must be presented in which a judgment may be rendered in favor of one and against the other of the parties to the submission, and the case must indicate what judgment is asked for. Unless this is done, the case will be dismissed. Williams v. City of Rochester, 2 Lans. 169. c. Court cannot exceed the submission. Where the controversy was between the executors and the heir on one side, and the widow on the other, as to said widow's right in certain lands of which the testator died seized, but which he had contracted to convey on the receipt of certain moneys, and as to her rights in the moneys which had accrued and were to accrue thereon since his death (the will merely giving some legacies and appointing the executors): held, that the court could not, in its discretion, exceed the submission, and adjudge that she should take an equitable compensation for her legal dower; nor could it adjudge the principle on which it should be ascertained. That all that could be adjudged was, that she was entitled to a distributive share, as widow, of the personal estate, after payment of the debts and legacies. Smith v. Hall, Buffalo Sup. Ct. G. T. June, 1857, 4 Clint. Dig. 3082. d. Court cannot grant trial by jury. The proceeding is not an action, but a submission of a controversy upon agreed facts to the court, without action, and the court cannot, in any case, grant a trial by jury. Lang v. Ropke, 1 Duer, 701. The court has no power to vacate the submission or refer the facts to the determination of a jury. id. Neilson v. Commercial Mutual Insurance Co. 3 Duer, 455. e. Neither party released from.The court cannot, on motion, release either party from the legal effect of the submission to which they have consented, in order that they may go before a jury and litigate facts upon which they had already agreed id. f. Fraud or mistake-how relieved against.-The submission and the judgment may be vacated by the court, as a court of equity, where it is clearly established that there is fraud or mistake. But this relief will not be granted on motion; an action must be properly commenced for that purpose. id. g. Provision of Revised Statutes.Where there has been a submission under this section (372 of the Code), the provisions of the Revised Statutes (2 R. S. § 37, p. 309), are not applicable. Ib. h. Actions cannot be submitted.There is no authority in § 372 of the Code, for the submission of actions is the submission of questions of difference without action. Where an action has been commenced, and a case containing the facts is agreed upon, the action must be discontinued at least when judgment is entered. It is suspended after the submission. Van Sickle v. Van Sickle, 8 How. 265. A i. Infants legally interested. submission under this section cannot be allowed, where it is made to appear that infants are legally interested in the question of difference. Fisher v. Stilson, 9 Abb. 33. Compare, however, Brick's Estate, 15 id. 12. j. Conclusions by the court.-In deciding cases submitted under this section (372) of the Code, the court is to draw from the facts stated, such conclusions as a jury would be warranted in drawing, if the case was on trial before them. Clark v. Wise, 39 How. 97; S. C. 57 Barb. 416. k. Costs.-A hearing under this section (372) of the Code, is not one on an appeal, but is an original hearing or trial. It is proper to allow a trial fee of $12, but not a fee before argument, or for argument. Section 373, post, is explicit. Neilson v. Mutual Insurance Co. 3 Duer, 683. 1. Papers.-Where a case is agreed upon by the parties, according to this section of the Code, the plaintiff shall furnish the necessary papers for argument, duly printed, as in cases of appeal. Sup. Ct. Rule, 50. m. Questions not yet actually arisen.-This section furnishes no authority for the submission of a question to the court, merely that its opinion may be obtained in a case where the question has not as yet arisen. Hobart College v. Fitzhugh, 27 N. Y. (13 Smith), 130. n. New parties.-Unless they consent, new parties cannot be brought in, where a controversy has been submitted. Ib. § 373. [326.] Judgment on, as in other cases, but without costs. Judgment shall be entered in the judgment book, as in other cases, but without costs, for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment, shall constitute the judgment roll. § 374. [327.] Judgment may be enforced, or appealed from, as in an action. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner. CHAPTER II. Proceedings against joint debtors, heirs, devisees, legatees and tenants holding under a judgment debtor. SECTION 375. Parties not summoned in action on joint contract, may be summoned after judgment. 376. If judgment debtor die, his representatives may be summoned. Form of summons. 378. To be accompanied by affidavit of amount due. 379. Party summoned may answer and defend. 380. Subsequent pleadings and proceedings same as in an action. 381. Answer and reply to be verified as in an action. § 375. [328.] (Am'd 1849.) Parties not summoned in action on joint contract, may be summoned after judgment. When a judgment shall be recovered against one or more of several persons, jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned. a. Summons to show cause.-Where, | court, a transcript of which has been filed in in an action on contract against four joint debtors, the summons is served on three only,| and judgment recovered against those served, the plaintiff may, under this section, serve a summons on the fourth defendant to show cause why he should not be bound by the judgment. Harper v. Bangs, 18 How. 457. b. Second action.—Where judgment has been obtained against two defendants upon a joint contract, but process served only on one of them, the judgment to be collected from the joint property of both, or from the separate property of the defendant served, a second action may be brought against both defendants, alleging the recovery of the former judgment, and setting out the joint obligation, and serving process only on the defendant not served in the former action, and a like judgment obtained against the latter defendant. Such an action is not superseded by this section of the Code, the remedy therein provided being merely cumulative. Dean v. Eldridge, 29 How. 218; Prince v. Cujas, 7 Rob. 76. But see Lane v. Salter, 4 Rob. 239, holding that the special proceeding created by this section of the Code is to be considered as a substituted, and not a cumulative remedy, and that a second action is unnecessary and improper. c. Justice's judgment.-This section is applicable only to courts of record, and hence does not apply to a judgment in a justice's the office of the county clerk. Prince v. Cujas, 7 Rob. 76; Ticknor v. Kennedy, 4 Abb. N. S. 417; Rev'g 3 id. 387; Johnson v. Smith, 14 Abb. 423. A d. Removal to federal court. proceeding under this section, not being a new action, the party served cannot have it removed into a federal court. Fairchild v. Durand, 8 Abb. 305. See, also, Kranshaar v. New Haven Steamboat Co. 7 Rob. 356. e. Statute of limitations.-To a pro ceeding under this section, for the purpose of having a defendant adjudged to be bound by a prior judgment entered in the action, after service of process upon his former partner and co-defendant, only, who allowed judgment to be entered for want of an answer, the statute of limitations cannot be set up as a defense, although it had run against the demand before the service of the process upon the partner. Berlin v. Hall, 48 Barb. 442. f. Liability of executors of deceased partner.-To make the executors of a deceased partner liable personally, as partners with the surviving partner, for debts created for the benefit of the firm since the decease of such partner, it is necessary to show that they voluntarily employed the testator's assets which had come to them in the trade. Richter v. Poppenhusen, 39 How. 82; S. C. 57 Barb. 309; S. C. Aff'd, 42 N. Y. (3 Hand), 373; 9 Abb. N. S. 263. § 376. [329.] (Am'd 1849.) If judgment debtor die, his representatives may be summoned. In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees of the judgment debtor, or the tenants of real prop |