n. the clerk, and, on Saturday previous to the commencement of the circuit on Monday, the plaintiff discontinued, held, that the defendant was not entitled to the ten dollars costs of the circuit. Drew v. Comstock, 17 How. 469. appeal to court of appeals.Where an appeal is taken to the highest court, which is dismissed with costs on the ground that there has been a failure to prosecute, the respondent is entitled to $25 and disbursements. Where the cause has not been argued on the merits, or dismissed on being called on the calendar, but the appeal is on motion dismissed with costs, the appellant cannot tax the fee of $50 for argument, nor is he entitled to the term fee where the cause is dismissed at the first term. Kanouse v. Martin, 2 Sandf. 739; S. C. 3 Code R. 203. cause unnecessarily on the calendar.-Where the plaintiff's attorney notified the defendant that the plaintiff had left the State, and that all further proceedings would be suspended in the action, held, that the defendant was not entitled to tax subse quent term fees. His proper course would have been to move for discontinuance. Jennings v. Fay, 1 Code R. N. S. 231. q. subsequent to stipulations to settle. Where stipulations to settle an action have been entered into, it is not proper to tax subsequent term fees. Latham v. Bliss, 13 How. 416; S. C. 6 Duer, 661. r.-two defendants-cause placed on calendar by one only.-An action was defended by two defendants separately; one defendant put the cause on the calendar; neither the plaintiff nor the other defendant did so: held, that as between them the cause had never been on the calendar, and where the complaint was dismissed for non-prosecution, that the defendant who did not put the cause on the calendar was not entitled to a term fee. Tillspaugh v. Dick, 8 How. 33. S. when in court of appeals.Where a cause is before the court of apppeals, no term fees can be taxed for a term at which the cause was noticed prior to the filing the return. Reformed Protestant Dutch Church of Westfield, Staten Island, v. Brown, 24 How. 89. t. When term fee will be allowed. Where a cause is necessarily on the calendar, and after it was called in due course, was referred, held, that the prevailing party was entitled to tax the costs of that circuit. Benton v. Sheldon, 1 Code R. 134. | w. The rule is general, that the successful party is entitled to his term fees, where he attended the circuit prepared for trial, and the cause, through no default of his, was not tried. Fisher v. Hunter, 15 How. 156; Shufelt v. Power, 13 id. 89; Minturn v. Main, 2 Sandf. 737. X.- Both parties noticed the cause (which was on the calendar) for trial; the cause was reached on the first day, duly called, and passed without being moved by either party. On the same day the action was discontinued by the plaintiff, who tendered $12.50 as the costs, which was refused. On the second call of the calendar the cause was moved by the defendant. WELLES, J., held, that under all the circumstances, the defendant was entitled to the term fee claimed. As soon as the circuit has commenced, the attorney becomes entitled to $10, provided the cause is necessarily on the calendar, and either not reached or postponed. Forbes v. Lock, 8 How. 218. y.- no issue for trial.-Merely putting the cause on the calendar, does not entitle either party to term fees, where there is in fact no issue to be tried. Candee v. Ogilvie, 5 Duer, 658; Pardee v. Schenck, 11 How. 500. 2.- cause over the term at request of party. Where a party on his own motion postpones a cause, he cannot, on obtaining a verdict in his favor subsequently, tax a term fee for that term. Hanna v. Dexter, 15 Abb. 135; Hinman v. Bergen, 5 How. 245; S. C. 3 Code R. 225. aa. Must be moved for early.-The first opportunity should be taken to move, after the adjournment of the circuit, in a case where a party is entitled to costs for attendance, etc. Unless this is done, he will be deemed to have waived his right. Whipple v. Williams, 4 How. 28. bb. Notice of motion asking too much.-Where the notice of motion asks for more than the party is entitled to, he cannot have costs of the motion. id. Corbin v. George, 2 Abb. 465. See, also, Steam Navigation Co. v. Weed, 8 How. 50; Keese v. Wyman, id. 88. §308. [263.] (Am'd 1849, 1857, 1862.) Allowance in addition of a percentage on recovery or claim. In addition to these allowances there shall be allowed to the plaintiff, upon the recovery of judgment by him, in any action for the partition of real property, or for the foreclosure of a mortgage, or in any action in which a warrant of attachment has been issued, or for an adjudication upon a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per cent on the recovery, as in the next section prescribed for any amount not exceeding two hundred dollars; an additional sum of five per cent for any additional amount not exceeding four hundred dollars; and an additional sum of two per cent for any additional amount not exceeding one thousand dollars. And in the actions above named, if the same shall be settled before judg ment therein, like allowances upon the amount paid or secured upon such settlement, at one-half the rates above specified. I. WHEN EXTRA ALLOWANCE MAY BE HAD. a. Examples. -An action brought by the people, to test the title under royal grants, is within this section of the Code. People v. Clarke, 11 Barb. 337; S. C. Aff'd, 9 N. Y. (5 Seld.), 349. b. – in legal or equitable action.— This section of the Code contemplates an allowance in a proper case, whether the action be legal or equitable in its nature, or a case where it is partly legal and partly equitable. Davis v. Glean, 14 How. 310. allowance of a percentage by way of additional costs may be made. Woodward v. Grier, 2 Code R. 13. It makes no difference whether or not any property has been attached. Jackson v. Figaniere, 15 How. 224. e. - settlement of equitable action. When an equitable action is settled by the parties, before judgment, such terms as are equitable under the circumstances, and as are authorized by the Code, may be imposed by the court, e. g.: the payment of a proper allowance. Bartow v. Cleveland, 7 Abb. 339; S. C. 16 How. 364; Pratt v. Ramsdell, 7 Abb. 340 (n.); S. C. 16 How. 59. C. equitable actions-foreclosure. 2 R. S. 553, § 20, does not apply to equitable actions; e. g. In a foreclosure suit, it does not apply, so as to preclude the plaintiff, if he f. attachment, settlement, stipurefuses to accept the amount tendered, from lation to pay costs.-An action was comobtaining an allowance. New York Fire and menced, and a warrant of attachment had Marine Insurance Co. v. Burrell, 9 How. 398; been issued; before the cause was at issue, S. C. 12 N. Y. Leg. Obs. 252, sub nom. New the parties agreed on a settlement, the plaintYork Fire Insurance Co. v. Burrell. Ap-iffs agreeing to discontinue provided the costs proved and followed. Connecticut River Banking Co. v. Voorhies, 3 Abb. 173; Pratt v. Ramsdell, 7 id. 340 (n.); S. C. 16 How. 59. d. all actions prosecuted by attachment. In all actions prosecuted by attachment against non-resident debtors, the II. WHEN EXTRA ALLOWANCE a. Restraining another action.— Where an action is brought for the sole purpose of restraining another action, it is not proper to grant an extra allowance. Sprong v. Snyder, 6 How. 11; S. C. 1 Code R. N. S. 178 Powers v. Wolcott, 12 How. 565. b. Restrain violation of written agreement. - Where the defendant contracted to sell solely to the plaintiff certain manufactured articles, held, that in an action to restrain him from selling to others, that he could not have an additional allowance. Gray v. Robjohn, 1 Bosw. 618. of their attorneys should be paid. Held, that the costs to be paid included a full allowance, under §§ 308 and 309 of the Code. Brown v. Safeguard Insurance Co. of New York and Pennsylvania, 7 Abb. 345. CANNOT BE HAD-EXAMPLES. c. Specific performance, sale of real estate.-This is not a proper case for an extra allowance; it is not within the provisions of this section (308) of the Code. Sprong v. Snyder, 6 How. 11; S. C. 1 Code R. N. S. 178; Weeks v. Southwick, 12 How. 170. See, also, Osborne v. Betts, 8 id. 31. Compare, however, Judd v. Young, 7 id. 79; Tallman v. Hollister, 9 id. 508. d. Assessment of damages by jury. This is not a "trial" within the meaning of the 308th section of the Code. Randolph v. Foster, 3 E. D. Smith, 648; S. C. 4 Abb. 262. e. Foreclosure of mechanics' lien. In actions of this nature, an extra allowance cannot be had, where no answer is put in by the defendant, and a sheriff's jury assesses the damages. Ib. f. Try title to an office.-Semble, that where an action is commenced, to try the title to an office, no extra allowance can be made. There is no pecuniary value on which to compute the percentage. People ex rel. Giles v. Flagg, 25 Barb. 652; S. C. 15 How. 36. g. Under laws of 1841, chap. 341; and id. 1855, chap. 327, it cannot be granted in an action brought under the provisions of these laws. There is no claim or recovery on which it might be calculated. Powers v. Barr, 24 Barb. 142. q. For whose benefit limited.—The allowance is limited for the benefit of the unsuccessful party. Dresser v. Jennings, 3 Abb, 240. r. Construction of the section.—The court has no discretion in the actions mentioned in this section (308), and no other allowance than that prescribed by the section can be given. It can only be given to the plaintiff. Williams v. Hernon, 13 Abb. 297. See, also, Downing v. Marshall, 37 N. Y. (10 Tiff), 380. s. Appeal-court exceeding its discretion.- Where an action for an adjudication upon a will is commenced, the authority of the court to make further allowance of costs under this section of the Code, is not appealable, unless it has plainly exceeded the limits of its discretionary authority; in such a case an error has been committed which should be corrected. Downing v. Marshall, 37 N. Y. (10 Tiff.) 380. h. Only on recovery of judgment. This section gives an allowance only on the recovery of judgment. If there is no recovery of judgment, there can be no allowance. Bostwick v. Tioga Railroad Co. 17 How. 456. See, also, Wilkinson v. Tiffany, 4 Abb. 98. i. To restrain foreclosure.-No allow-the parties in the action, the judge who tried ance in such a case. Sprong v. Snyder, 6 How. 11; S. C. 1 Code R. N. S. 178. j. To set aside conveyance, no allowance; the action is not for the recovery of money within the meaning of this section of the Code. Buchanan v. Morrell, 13 How. 296; S. C. 6 Duer, 658. See, also, Bridges v. Miller, 2 Duer, 683. k. Doubtful cases.-An allowance is to be refused in doubtful cases. Gould v. Chapin, 4 How. 185; S. C. 2 Code R. 107. 1. "Proceedings to compel the determination of claims to real estate." These words, in this section of the Code, refer only to the special proceedings authorized by the Revised Statutes. 2 R. S. 312; Bridges v. Miller, 2 Duer, 683. m. Who can make the additional allowance. The only court that can grant an additional allowance, is the court of original jurisdiction. Wolfe v. Van Nostrand, 2 N. Y. (2 Comst.), 570; S. C. 4 How. 208; 2 Code R. 130. n. Additional allowance in court of appeals.-This court is authorized to grant an additional allowance. Laws of N. Y. 1858, ch. 306, § 11, subd. 6. 0. Warrant of attachment subsequently set aside.—A judgment was recovered by the plaintiff in a case where a warrant of attachment as a provisional remedy had been issued. This was subsequently set aside: held, that he was not entitled to an allowance under this section of the Code. Iselin v. Graydon, 26 How. 95. p. No motion necessary. It is not necessary to move the court, in order to obtain the allowance provided for by this section of the Code. It is made definite and certain, and attaches as a fixed right to the party upon the recovery of judgment. Hunt v. Middlebrook, 14 How. 300. t. Common fund-counsel fees.When there is a common fund belonging to the cause is the only one who can order the payment of counsel fees out of it. Hotaling v. Marsh, 14 Abb. 161; Rev'g 13 id. 297 (n.) u. Effect of offer to allow judgment.- The effect of the provision of § 385, which gives a defendant, whose offer is not accepted, costs, does not include an allowance under this section. M'Lees v. Avery, 4 How. 441; S. C. 3 Code R. 104. v. Appeal from judgment at special term. In such a case no allowance can be made under § 308, to the prevailing party. Martin v. McCormick, 3 Sandf. 755; S. C. 1 Code R. N. S. 214. w. New trial-defeats order fee.A trial was had by referees, at which plaintiff had a verdict; he obtained an order for an allowance; subsequently the defendant ob tained an order for a new trial. Held, that the plaintiff's right to the allowance was defeated. If the recovery is set aside, it is not effectual; it is based on the recovery. Hicks v. Waltermire, 7 How. 370. An extra allowance of two per cent on the amount claimed ($25,000), in a mortgage foreclosure suit was allowed, it appearing that there was no sufficient reason for the litigation on the part of the defendant. Livingston v. Gidney, 25 How. 1. x. Practice in 2d district.-In this district, a percentage is always allowed where there has been a trial. The allowance, however, depends upon the particular circumstances of each case. Schwartz v. Poughkeepsie Mutual Fire Insurance Co. 10 How. 93. y. costs of motion for allowance. Costs of such motions have not been, and should not be allowed. Ib. 2. What considerations should govern allowance.-Each case must necessarily depend upon its own peculiar features and circumstances. No rule can well be es tablished to aid the court in its discretion. id. Sackett v. Ball, 4 How. 71; S. C. 2 Code, R. 47. aa. Frivolous answer.-Where an answer is stricken out as frivolous, and judgmert given, it is not proper in such a case to grant an allowance. Beers v. Squire, 1 Code R. 84; disapproving Fowler v. Houston, id 51. bb. Allowance in case of surety.It is not proper to charge a surety with an extra allowance, unless he has misbehaved himself in the defense, or has acted in bad faith. The case might be different if he had the means of indemnity in his hands. Rice v. Wright, 3 How. 405. § 309. [264.] (Am'd 1849, 1857, 1858, 1859, 1862, 1865. 1870.) Percentage, how computed. These rates shall be estimated upon the value of the property claimed or attached, or affected by the adjudication upon the will or other instrument, or sought to be partitioned, or the amount found due or unpaid upon the mortgage in an action for foreclosure. And whenever it shall be necessary to apply to the court for an order enforcing the payment of an installment falling due, after judgment, in an action for foreclosure, the plaintiff shall be entitled to the rate of allowance in the last section prescribed, but to no more in the aggregate than if the whole amount of the mortgage had been due when judgment was entered. Such amount of value must be determined by the court, or by the commissioners in case of actual partitions. In difficult or extraordinary cases, where a defense has been interposed, or in such cases where a trial has been had, and in actions or proceedings for the partition of real estate, the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent upon the amount of the recovery or claim, or subject-matter involved. And in an action for the foreclosure of a mortgage, the court may make a like allowance, not exceeding two and one-half per cent. a. Construction of section. The supreme court has no power, either at special term or on appeal at general term, to allow extra costs under this section of the Code (309), on the trial of a feigned issue made up to try the questions of the validity or execution of a will, under the provisions of the Revised Statutes (3 R. S. 5th ed. page 150, §§ 71, 72, 73, 74, 75, 76, 77, 78). Burritt v. Silliman, 24 How. 337. An application cannot be made to the court under this section of the Code, for the distribution of surplus money arising on a foreclosure sale. New York Life Insurance and Trust Co. v. Vanderbilt, 12 Abb. 458. The plaintiff is not entitled under this section of the Code (309) | | to tax an extra allowance, on tender of the debt and costs, made before judgment. Brace v. Beatty, 7 Abb. 445; Rev'g S. C. 5 id. 221. b. appeal from surrogate's court.-In such a case, an extra allowance of costs is proper under this section of the Code (309) since the amendment of 1862. The determination of such an appeal constitutes a trial within the meaning of the section; for all purposes of costs, it is an action at issue on a question of law. Seguine v. Seguine, 3 Abb. N. S. 442; S. C. Aff'd, 34 How. 627. The provisions of this section are not applicable to an action for an adjudication upon a will. Downing v. Marshall, 37 N. Y. (10 Tiff.), 380. I. WHERE AND WHEN APPLICATION SHOULD BE MADE, ETC. 1. Time of Making. a. When too late.-After judgment on before it is made. Powers v. Wolcott, 12 appeal, it is too late to apply to the general | How. 565. term. Van Rensselaer v. Kidd, 5 How. 242; S. C. 3 Code R. 224. See, also, Wolfe v. Van Nostrand, 2 N. Y. (2 Comst.), 570; Osborne v. Betts, 8 How. 31. b. All litigation must be ended. In a proper case for the application for an extra allowance, all litigation should be ended c. Coming in of verdict, or at same term. The application should be made at the coming in of the verdict or report of referee. It should not be later than the end of the term at which the trial was had. Flint v. Richardson, 2 Code R. 80. See, also, Van Rensselaer v. Kidd, 5 How. 242; S. C. 3 Code R. 224. d. Before entry of judgment.-After judgment has been entered, it is too late to apply for an allowance in addition to costs. Martin v. McCormick, 3 Sandf. 755; S. C. 1 Code R. N. S. 214. See, also, Van Rensselaer v. Kidd, 5 How. 242; Clarke v. City of Rochester, 29 How. 97; S. C. affirmed, 34 N. Y. (7 Tiff.), 355; 30 How. 593. Directly contra is Beals v. Benjamin, 29 How. 101; S. C. Aff'd, id. 573. e. Professional engagements no excuse for delay.-A delay of five months was made before the application for an extra allowance on the ground of professional engagements. The motion was denied. Sackett v. Ball, 4 How. 71; S. C. 2 Code R. 47. f. Example of delay no waiver.-A trial was had at the circuit, and about two months after at special term a motion was 2. Where a. In county where judgment rendered. The application should be made in the county where the judgment is rendered, unless some special reasons exist for making the application elsewhere. Rule 56, post, page; Niver v. Rossman, 5 How. 153; S. C. 3 Code R. 192. b. Court of original jurisdiction.The additional allowance given in pursuance of this section, beyond the costs given by the 307th section of the Code, can only be made by the court of original jurisdiction, and in reference to the trial in that court. Wolfe v. made for an extra allowance: held, that the delay was no waiver of the right to move, and an allowance was made. Saratoga and Washington Railway Company v. McCoy, 9 How. 341. g. What the motion papers must show. Where a motion is made for an extra allowance under this section of the Code, the grounds on which the extra allowance is asked must be set forth in the motion papers. The reason is, that such allowances inay be appealed from, and it is necessary that the facts on which such allowances were granted should be presented in such a form as will enable the court on appeal to determine whether or not it was proper to have allowed it. An order granted on improper papers will be reversed on appeal. Gori v. Smith, 3 Abb. N. S. 51; S. C. 6 Rob. 563. Made. Van Nostrand, 4 How. 208; S. C. 2 N. Y. (2 Comst.), 570; 2 Code R. 130. c. Construction of the word "court" in the 56th rule.-The word "court" in this rule evidently means "justice." Dyckman v. McDonald, 5 How. 121; Osborne v. Betts, 8 id. 31. Allowances of extra costs must be made by the "court," and not by a justice at chambers. Mann v. Tyler, 6 How. 235; S. C. 1 Code R. N. S. 382. See, also, Van Rensselaer v. Kidd, 5 How. 242; S. C. 3 Code R. 224. |