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R. S., 617., ss. 24 & 25. Hallenbeck v. Miller, 4 Pr. R., 239. Van Rensselaer v. Kidd, 3 Code Rep., 224., but the contrary was held in Murray v. Haskins, 4 Pr. R., 263.
The provisions of the Revised Statutes allowing double costs, allowed them only in cases of verdict, demurrer, nonsuit, non pros., or discontinuance; and a report of referees is not within the statute. 19 Wend., 225. And in Calkins v. Williams, 1 Code Rep., N. S., 53. Calkins v. Brand, Ib. Masou, J., held that public officers sued as such, are entitled, where they succeed in the action and the trial is by jury, to double costs. But that they could not have such costs where the trial had been had before referees.
Before the code it was held, that where the defendant was entitled to double costs in the action he was also entitled to double costs on a writ of error. Burckle v. Luce, 3 Pr. R., 236.
The code, it has been decided, does not repeal the provisions of the Revised Statutes relative to security for costs; and therefore a plaintiff who resides out of the city of New York, suing in the superior court of that city, must give security for costs, if it is required of him by the defendant. Ashbahs v. Coussin, 2 Sand. S.C. R., 632. Blossom v. Adams, 2 Code Rep., 59. This rule has been applied to a certiorari, (an appeal), brought to reverse a justice's judgment. Ib. And in a case where there had been a default and judgment, and the latter stood as security, the plaintiff, after being let in to defend, moved for security for costs, and the motion was granted. Gardner v. Kelly, 1 Code Rep., 120. 2 Sand. S. C. R., 633. And where the plaintiff, who resided in the county of Cayuga at the commencement of the action, subsequently assigned the demand in suit to a resident of the city of NewYork and this fact was set up in opposition to a motion for security for costs, Campbell, J., decided that security for costs must be given. Phænix y. Townshend, 1 Sand. S. C. R., 634, in note. 2 Code Rep., 2. And it was also held in the supreme court, that a non-resident plaintiff, necessarily prosecuting in the right of her intestate, must give security for costs. Murphy v. Darlington, 1 Code Rep., 85.
A suit must be commenced in the name of an infant-sole plaintiff-to entitle the defendant to security for costs. (2 R. S., 446, § 2.) Hulburt v. Newell, 2 Code Rep., 54.
Where a husband and infant wife brought a suit jointly, the defendant was not entitled to security for costs, although the husband was appointed and named in the proceedings as next friend of the wife. Ib.
The bond for security for costs need not follow the precise words of the statute, but it will be sufficient if equally favorable to the defendant. Smith v. Norval, 2 Code Rep., 14.
$ 304. [259.] When allowed of course to plaintiff.—Costs shall be allowed of course to the plaintiff upon a recovery, in the following cases :
1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial ;
2. In an action to recover the possession of personal property;
3. In the actions of which, according to section 54, a court of a justice of the peace has no jurisdiction;
4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars or more. But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recover also property, the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court, or referee, by whom the action is tried.
When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff, in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions, shall, at the time of the commencement of the previous action or actions, have been within this State, and not secreted.
There is no provision in the code saving from the operation of this section cases pendiog at the time of its adoption, and, therefore, in an action for an assault and battery commenced while the code of 1848 was in force, and decided after the passage of the code of 1849, where the plaintiff recovered six cents damages, it was held that he was entitled to no more costs than damages. Holmes v. St. John, 2 Code Rep., 46. The same was decided in an action for libel. Taylor v. Gardner, 2 Code Rep., 47. Belding v. Conklin, 2 Code Rep., 112, 4 Pr. R., 196. Wheeler v. Westgate, ib., 269.
Where the plaintiffs sued in the superior court for $414.51, and werd allowed only $120, and the defendants set up a counter claim of $98,38, and were allowed $78. 24, and for the balance, $41.76, the plaintiffs recovered ; it was held under the code of 1848, which, so far as related to the question was identical with this, that the defendant was entitled to costs. Spring Valley Shot and Lead Co. v. Jackson, 2 Sand. S. C. R., 622.
In suits by city authorities in the supreme court, even to enforce the assessment laws, if the plaintiffs recover less than $50, they must pay costs. Mayor 8.c. of N. Y. v. Hillsburg, 2 Code Rep., 152.
The title to land did not come in question in this case ; if it had come in question, the only proper evidence of it would be the certificate of the judge who tried the cause, or an entry in the minutes, unless the pleadings showed it. Ib.
A distinction was made between costs and disbursements, and it was held, that although where the plaintiff obtained a verdict sor less than $50, he was not entitled to costs; he might, nevertheless, recover his disbursements. Newton v. Sweets Ez'ors, 2 Code Rep., 61. But it was previously held in Swift v. De Witt, 1 Code Rep., 25, and subsequently in Belding v. Conklin, and Wheeler v. Westgate, supra, that where a party was not entitled to costs, he was not entitled to disbursements.
$ 305. [260.) When allowed to defendant.-Costs shall be allowed of course to the defendant, in the actions mentioned
in the last section, unless the plaintiff be entitled to costs therein.
Where three defendants were sued in an action of assault and battery, and appeared separately and defended by different attorneys; a verdict rendered against one of them and the other two acquitied; held, that under sectious 304 and 305 of the code, the defendants acquitted were entitled to costs against the plaintiff. Hinds v. Myers, 3 Code Rep., 48. 4 Pr. R., 356.
Where in trespass, separate defences are made by several defendants, in good faith, and not for costs, each is entitled to a full bill of costs on succeeding in the suit. Castellanos v. Beauville, 2 Sand. S. C. R., 670.
Where, after being commenced separately, the defences are united under the same attorney, or are in truth and effect united, during the pendency of the suit, there can be but one set of costs for all. Ib.
Where in a suit against three, for the recovery of money, two suffer judgment by default, and the third defends the suit and has a verdict in his favor, he is entitled to costs against the plaintiff under section 305 of the code. Comstock v. Bayard, ib. 705.
See note to section 306.
§ 306. [261.] (Amended.)—When allowed to either party in the discretion of the court.-In other actions costs may be allowed or not, in the discretion of the court.
In all actions where there are several defendants, not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them. In the following cases the costs of an appeal shall be in the discretion of the court :
1. When a new trial shall be ordered ;
versed in part.
The words in italic are substituted for the word " when."
An allegation, in an answer in a partition suit, that the plaintiff had unreasonably refused to make partition by deed, was stricken out as irrelevant, but the court refused to give costs on that ground, and said: “The court has no discretionary power to charge either party with the entire costs, in partition, upon such grounds as those set up in the answer. 2 R. S., 252, 99 74, 75. This statuie is vot repealed by $ 306 of the code, but the latter must be construed in connection with, and as qualified by the former. McGowan v. Morrow, 3 Code Rep., 9.
The other actions" referred to in this section, refer only to equity causes of action. Per Willard, J., in Hinds v. Myers, 4 Pr. K., 356. 3 Code Rep., 48.
Where, in an action for libel, two defendants defend by the same attorney, and answer separately, and verdict and judgment are given in their favor, but one bill of costs, and one set of charges can be allowed on adjustment by the clerk. Tracy v. Stone, 3 Code Rep., 73.
The defendants being sued as drawers and endorsers of a pote, and having put in a joint defence, and judgment having been entered for the plaintiff against two of the defendants, and the plaintiff having discontinued as to the other defendant, such defendant is not entitled to costs, because he did not sever in his defence, but joined with the others. Stafford v. Onderdonk, 2 Code Rep., 115.
See, note to section 305.
§ 307. [262.] Amended.— Amount of costs allowed. When allowed, costs shall be as follows:
1. To the plaintiff, for all proceedings before notice of trial (including judgment when entered),
In an action where judgment upon failure to answer may be had without application to the court, seven dollars ; in an action where judgment can only be taken on application to the court, twelve dollars ; for all subsequent proceedings before trial, seven dollars :
2. To the defendant; for all the proceedings before notice of trial, five dollars ; for all subsequent proceedings before trial, seven dollars :
3. For the trial of issues of law, if separate from the trial of issues of fact, to the plaintiff, fifteen dollars; to the defendant, twelve dollars :
4. For the trial of the issues of fact, if separate from the trial of the issues of law, to the plaintiff, fifteen dollars; to the defendant, twelve dollars :
5. For the trial of the issues of fact and of law, when tried at the same time, to the plaintiff twenty dollars; to the defen-ant, fifteen dollars :
6. To either party on appeal, except to the court of appeals; before argument, fifteen dollars; for argument, thirty dollars : but this provision shall not apply to appeals from an order granting or denying a non-enumerated motion,
7. To either party on appeal to the court of appeals, before argument, twenty-five dollars; for argument, fifty dollars :
8. To either party, for every circuit or term at which the -cause is necessarily on the calendar, and not reached, or is postponed, excluding that at which it is tried or heard, ten dollars.
The amendment is in subdivision 6, the words in italic being substituted for the words, “in cases other than those mentioned in section 349."
Note to suhd. 1.- Whether a plaintiff entitled to costs, is to be allowed $7, or $12, for “all proceedings before notice of trial,” does not depend on the question whether application bas in fact been made to the court for judgment, but upon the parure of the action. People v. Van Deusen, 2 Code Rep., 7. Thus:
Where a plaintiff recovers a verdict in an action of assault, he is entitled to have inserted in the entry of judgment, the sum of $12 costs, " for all proceedings before notice of trial,” whether any application to the court has in fact been made for judgment or not. Ib.
Note to subd. 2.-The fee of $7 for all subsequent proceedings before trial, is not chargeable until the action has been noticed for trial. Bedell v. Powell, 3 Code Rep., 61. Morrison v. Ide, ib., 27, and on payment or tender to the defendant of $5, and disbursemeut, the plaintiff may, at any time before the cause is noticed for trial, discontinue the action. Ib.
Note to subd. 4.-A fee of $12, for the trial of an issue of fact, is allowable in an action at issue where the plaintiff' fails to appear when the cause is called upon the calendar, and the defendant takes an order that the complaint be dismissed. Dodd v. Curry, 2 Code Rep., 69. 4 Pr. R., 123. And see, note to section 252.
Note to subd. 6.- The former language of this subdivision gave rise to much disquisition, the result being that the word "not" was construed to mean "only.” Wilson v. Allen, 2 Code Rep., 26. Livingston v. Miller, 4 Pr. R., 42. Savage v. Darrow, ib., 74. Smith v. Lynds, 2 Sand. S. C. R., 733. Taylor v. Seeley, 3 Code Rep., 84. Overruling, Nicholson v. Dunham, 1 ib., 119. It canpot be denied that such a construction was extremely forced, and was only justified by the injustice and inconsistency which would have resulted from giving the word its common acceptation, It is presumed that now, the word will mean “not;" to say that it now means “only,” would be to reverse the intention of the legislature. See 9 371.
Note to subd. 7.—Where an appeal from a judgment to the court of appeals is dismissed with costs for want of prosecution, the respondent is entitled to recover $25 together with his disbursements. Kanouse v. Martin, 2 Sand. S. C. R., 739, and where such an appeal is dismissed with costs on motion, the cause not having been argued on the merits, or dismissed on being called on the calendar,) the respondent is not entitled to the fee of $50 for argument, nor to the fee of $10 for attending; when the cause is not reached and the suit is dismissed at the first term. Ib.
This provision extends to appeals brought after the code went into effect in suits commenced prior to the passage of the code. Ib.
Note to subd. 8.—It is the practice to construe the provision for the allowance of counsel fees for attendance at the terms in a liberal way. Oftentimes terms fall through from various causes, but it is never deemed to be a good reason for rejecting this item on the bill of costs. Per Oakley, Ch. J., in Minturn v. Main, 2 Saud. S. C. R., 737.
Where a stipulation was given in several suits depending on the same principal point, to the effect that all should abide the event of the one first tried, and the suits were noticed for trial several terms thereafter, though notes of issue were filed in one only—it was held, that the plaintiff on recovering might tax a counsel fee for attending at those terms in each of the causes. Ib.
Where an appeal was on the calendar for argument, and before it was reached, and at the first term aster it had been placed on the calendar, the respondent moved to dismiss the appeal, and the motion was allowed with costs, held, thai he was not entitled to the term fee given by this subdivision. Kanouse v. Martin, 2 Sand. S. C. R., 739. But where an appeal was on the calendar, and not reached at the first term, but was reached at a subsequent term and dismissed, the court refusing to hear it, there the respondent was entitled to his term fee for all the terms during which the appeal was on the calendar and not reached, but not for the term at which the court refused to hear it. Eckerson v. Spoor, 3 Code Rep., 70. Where a cause is on the calendar, and is postponed at the request of the party who ultimately succeeds in the suit, he is not entitled to a term see for any term at which the cause was so postponed. Hinman v. Bergen, 3 Code Rep., 225.
In actions “necessarily on the calendar," and referred at the circuit, the prevailing party, on entering judgment, is entitled to $10 costs of the circuit, besides disbursements. Benton v. Sheldon, 1 Code Rep., 131.
But where only the plaintiff notices the cause for trial and has it in his power to try, but for any reason does not choose to do so, he cannot recover the costs of the circuit. Whipple v. Williams, 4 Pr. R., 28. A party entitled to the costs of a cir. cuit (for attendance, &c.,) should move the first opportunity after the circuit adjourns, or he will be held to have waived his right to the costs. It.
See note to section 322.
$ 308. [263.] Allowance in addition of a per centage on the recovery or claim.-In addition to these allowances, if the ac-