tion be for the recovery of money, or of real or personal property, and a trial has been had, the court may in difficult or extraordinary cases, make an allowance of not more than ten per cent. on the recovery or claim, as in the next section prescribed, for any amount not exceeding five hundred dollars; and not more than five per cent. for any additional amount.

Such allowance may likewise be made upon the recovery of judgment in any action for the partition of real property, or for the foreclosure of a mortgage, or in which a warrant of attachment has been issued, or for the construction of a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, and also in any case where the prosecution or defence has been unreasonably or unfairly conducted.

When the allowance has been made.-Under the code of 1848, Edmonds J., held, that he would give the allowance in all cases where an inquest was taken for want of an affidavit of merits. Fowler v. Houston, 1 Code Rep., 51. But Parker, J., subsequently said he was clearly of opinion an allowance could not be made under such circumstances. Hale v. Prentice, 1 Code Rep., 81; and Harris, J., said the case of Fowler v. Houston must be overruled. Beers v. Squire, 1 Code Rep., 84.

It has been held that it should be made in all referred cases. Niver v. Rossman, 5 Pr. R., 153, and in all actions commenced by attachment against non-residents.Woodward v. Grier, 2 Code Rep., 13. And where the trial lasted 4 or 5 days it was allowed. Howard v. Rome & Tunie Plank Road Co., 3 Code Rep., 41.

And it was said if one case that it should be made in all litigated cases. Dyckman v. McDonald, 5 Pr. R., 121. But as regards this it was said: The court should discriminate in litigated actions between difficult and extraordinary, as contradis tinguished from common and ordinary. Each case must be determined according to its peculiar circumstances, no general rule can be adopted. Per Hubbard, J., in Poz v. Gould, 3 Code Rep.. 209.

There being no test it should be denied in doubtful cases. S., J., Gould v. Chapin, 2 Code Rep., 107.

The code makes no aliowance for drawing cases, engroming same, &e, por for an argument on a motiez before the special terms for a new trial, but percase i deut or extraord nary case, the prese. 1 party may be competented by an extra a.owance. Graham v. M...mer 4 Pr. B. 436. 477

-verdict, or at least during the term at which the trial is had. Flint v. Richardson, 2 Code Rep., 80. And it must be to the judge who tried the cause. Ib. Sackett v. Ball, 2 Code Rep., 47. Pr. R., 71, Supreme Court rule, 86. Where the trial is had before referees, the application must be made to the court for the allowance. Howe v. Muir, 3 Code Rep., 21, 4 Pr. R., 252, Niver v. Rossman, 5 Pr. R, 153. The application should be on notice to the adverse party, ib. And where the trial has been before a referee the court should be furnished with an affidavit of facts sufficient to enable it to form an opinion on the subject. Ib. The mere certificate of the referee that the cause is within this section is not sufficient. Facts must be stated. Ib., and Gould v. Chapin, 2 Code Rep., 107.

Where ejectment had been brought in the superior court of the city of New-York, and judgment passed for the defendant, which on writ of error was affirmed in the court of appeals, on motion in the court of appeals for an additional allowance, the court on denying the motion, said: The additional allowance pursuant to this section can only be made by the court of original jurisdiction, and in reference to the trial in that court. Wolf v. Van Nostrand, 4 Pr. R., 208.

It is too late to apply at general term after judgment on appeal. Van Rensselaer v. Kidd, 5 Pr. R., 242.

Where the action is to recover possession of property, and the verdict is for the defendant, the jury must assess the value of the property claimed, or the defendant caunot have any additional allowance for costs. Flint v. Richardson, 2 Code Rep.,

80.

Amount of allowance.-In the superior court the allowance in addition to the costs will be what the court deem a reasonable and moderate counsel fee. Sheldon v. Allerton, 2 Sand. S. C. R., 630; and in the First, Third, and Eighth Judicial Districts the Judges of the supreme court have adopted and pursue the practice in mortgage and partition cases, of making a sufficient extra allowance of costs to make the compensation equivalent to that allowed under the old fee bill in similar cases. Austin v. Lashar, 2 Code Rep., 81.

The amount of allowance will depend upon circumstances which can only be learned by knowing what transpired at the trial. The application for an extra allowance should therefore, in cases where the action is tried at the circuit be made at the circuit, or at least to the Judge before whom the trial was had.

Ten per cent. was allowed on the amount of the verdict at the circuit in a suit upon a promissory note, where the defendant put in a false answer, by which the plaintiff was thrown over a circuit. Willard v. Andrews, 4 Pr. R., 65.

§ 309. [264.] Per centage, how computed.-These rates shall be estimated as follows:

1. If the plaintiff recover judgment, it shall be upon the amount of money, or the value of the property recovered, or claimed, or attached, or affected by the construction of the will, or sought to be partitioned, or the amount found due upon the mortgage in an action for foreclosure.

2. If the defendant recover judgment, it shall be upon the amount of money, or the value of the property claimed by the plaintiff, or attached, or affected by the construction of the will, or of the defendant's interest in property sought to be partitioned, or the amount claimed in an action for foreclosure.

Such amount of value must be determined by the jury, court, or referees, by whom the action is tried, or judgment rendered, or the commissioners appointed to make partition in an action therefor.

Where, & Bonettu case the party considers himsel enuted to ful casts he should not in the firs: nstance, move to be allowed tul costs Bu: shooic ann't to the clerk in the usual manner and I dissatisfiet wil the clerk's decision, app's to the court by way o' amea thereirom

On motion in the nature of an appea. from the decision of a clerk allowing items in a bel of costs, the affoeve in support of the motion should show that the altowance of suct news was opposed and that the nems were allowed under otgectioİN... People v. Ocker, 1 How. Sp. T. R. 195

The fee for serving the compra is not taxable mie the compiamt be served by the sheriff, and ther is Labe as a sherif's fee. Wappier. Wuzoms, 4 Pr. R. 25-30. See 2 Sand S. CR, 742

Where postage or other disbursements are charged in a bil of costs, each iter of such disbursement, and the occasion or circumstance of the expendite, should be particularly specified. 2 Paige, 459. And where papers are sent by express instead of by mail, the amount of carriage pad, not exceeding what wou'd have been the amount of postage, may be alowed Formers Loan and Trust Co. v. Jewett, In Chanc, Dec. 1543.

A defendant not appearing is not entitled to notice of adjusting the costs. Richards v. Swetzer, 1 Code Rep., 117; Wilcor v. Curtis, Ib., 127. But giving notice of appearance entitles the defendant to notice of adjusting the costs. v. N. Y. Equit. Ins Co., 2 Code Rep., 30.

Elson

Service of notice on Saturday for Monday is not a notice of two days. Whipple v. Williams, 4 Pr. R., 28.

The effect of omitting to give notice of adjusting the costs, in the cases where the defendant is entitled thereto, has been differently decided; thus in Elson v. N. Y.

Equit. Ins. Co., 2 Code Rep., 30; B'nk of Massilon, Ib., 49; Goldsmith v. Marpe, Ib., 49; Doke v. Peek, 1 Ib., 54, it was held that the omission made the judgment irregular and liable to be set aside on motion; but in Richards v. Swetzer, 1 Code Rep., 117; Hughes v. Mulvey, 1 Sand. S. C. R, 92; Dix v. Palmer, 3 Code Rep.,2 14; 5 Pr. R., 233, the omission was held not to affect the regularity of the judgment, but only to entitle the defendant to a re-adjustment at the cost of the plaintiff, and this last seems the more general opinion and practice.

§ 312. [267.] Clerks' fees.-The clerk shall receive, On every trial, from the party bringing it on, one dollar; on entering a judgment by filing transcript, six cents;

On entering judgment, fifty cents; except in courts where the clerks are salaried officers, and in such courts one dollar.

He shall receive no other fee for any services whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words.

The fee of one dollar on every trial, from the party bringing it on, is not payable until the cause is called on to be heard. Malcomb v. Jennings, 1 Code Rep., 41. Nor is this fee payable in actions referred at the circuit, and tried before referees. Benton v. Sheldon, 1 Code Rep., 134.

The clerk is not entitled to charge, in any case whatever, for entering in the rough minutes, or in the books, any rule or order. Where either party desires a copy of an order, or of any other paper, the clerk may charge for the same at the rate of five cents for every hundred words. There can be no additional charge for the certificate, or for the signature, to the certificate. This provision extends to every entry made, and to every paper filed.

The clerk is allowed one dollar for every trial, to be paid by the party bringing it on. This extends to trials of issues of law as well as issues of fact. (§. 252.) The clerk is, therefore, entitled to this fee for every cause actually tried at the circuit, including demurrers; and we think, though this is perhaps a matter of some doubt, that it extends to inquest and judgments by default, under sec. 258, when due notice of trial has been given of issues joined in the cause. But it does not extend to causes on the calendar which are not tried, nor to trials before referees. The meaning of the statute evidently is, that the fee is only to be paid to the clerk when he attends and acts as clerk on the trial.

Under this provision, the clerk is entitled to one dollar for attending every argument at general terms, on appeal from a judgment of an inferior court. The code regards such argument as a trial on appeal. § 255, 308. This fee is, therefore, chargeable, whether it be on an appeal from a judgment rendered in the circuit court, or on a report of referees, or under the provisions of section 318, or from the judgment of a county judge. We think it is also chargeable when such judgment on appeal is taken at general term by default. But this allowance does not extend to a cause put on the calendar and not argued. Nor does it extend to an appeal from an order. There is no fee allowed the clerk for any services on special motion, or on an appeal from the decision of a special motion. These services are paid for, by the liberal compensation allowed the clerk for other services.

The allowance for a trial, on appeal, is only applicable to suits commenced under the code. No such fee is chargeable by the clerk for attending on motions for new trials, or on motions to set aside reports of referees, or on other arguments at general terms, in old causes. These are mere motions, not trials.

Fifty cents is allowed to the clerk for entering a judgment. Section 280 shows that this means entering the judgment in the judgment book. Bentley v. Jones, 4 Pr. R., 355. The sum of charges for costs is to be ascertained and included in this entry, which immediately precedes, or is simultaneous with the filing of the judgment roll. The fee of fifty cents is not, therefore, chargeable till the perfecting of the judgment. In the matter of the clerk of Albany county, 3 Code Rep., 102.

§ 313. [268.] Referees' fees.-The fees of referees shall be three dollars to each, for every day spent in the business of the reference; but the parties may agree in vlg up any other rate of compensation.

See note to trial by referees, p 215.

314. [269.] Custs on postponement of trial-When at al plication shall be made to a court or referees it pay pose a trial, the payment to the adverse party of a su ten dollars, besides the fees of witnesses, mey the condition of granting the postponement

not exceeding e mposer, as

Where a party obtains a postponement of a tria is a usque Ler.. us say. ment of costs on the cause being moved or t7. OF THE 1960-TAL de pas the adverse party may insist Of Landig be tna pruceer, or be quay waive tuat nge and the court will compe payment. buden v. Briellas & bout The application for the costs must be made wilted Guin; or the rigi. W ed to be waived.

₫ 315. [270.] Costs on a motion-Coste may be a loweG OL a motion, in the discretion of the court, not excooding w dollars.

This section was substituted for section. (I the evor of 1812, wig muscud that "No costs shall be allowed of a molor except the cure of remuling a the G cretion of the court not exceedur &! auc ung tua' provision P

although the costs of making a motor could not be directy grassed test gray man ust might be imposed as a condition is seleving a party wus was is urlaust 4.เสด, ช. Deitz, 1 Code Rep., 52, and on avons ju piúgment, as it come of a worumut some of the motion could be made a condition upon when the tous wat gewee. Johnson, 1 Sand. S. C. R., THE use for. be. Eu the custicats #ae best imag case. Richmond v. Russe... Gose hep. 20 I nara, 1 f $ tu ya ut 1848, that where on motion. Iterwar prune quite bria, but i 344 A party had leave to amend. the mag pay ngu uve cu costs of the motion; the irregular park wont be regarded as suuving was uë. Weare v. Stocum, 1 Code HK... 37.

Section 270 of the code of **4* ce pot 69; w 19'igne u tha scurt at ays. peals in actions commenced prior is the case we sig of By Yard Cubi Rep., 101. 3 Pr. R... 342, ku vannu Su

hearing brought before Jury, 16er, from the error u! uus jus we ut the pripreme court to a general term bed alter tua: ime, tee, Tuan un vime of mutuan egoki ba allowed, but the costs might the lexer with the quote uf the butt You Wyk v A'li ger, 1 Code Rep., 65. 3 Pr. R.. 272.

Whether such wond base been tue eruatruchus if it und wenn es myjon! stand of a rehearing? Ib.

Where the notice of motion states that the moving joely will work for certain relief, more than the court, or the bear ug of the man belitund w, by Aud where the lice

is not entitled to costs. Whipple W.. same. S Pi K, %*

of motion asks, in the alternative for ing a fierent russire of reset, one of which the party is not entitled to, costs of opposing the motion wii de alunos to lue opponite party, Smith v. Jones, 2 Code Pep., 33.

An appeal from an order at Chambers is a motion, and where no costs are awarded on the decision of such an appea, noue cau be awowed. Buxage v. Darrow, 4 Pr. R., 74. And where the court order that we cele be alowed" upon granting a motion in an interlocutory order, (dimo ving an injunction, and the party in whose favor the motion is granted fually succeeds in the suit, costs for such metion cannot be allowed with the general costs of the cause. Van Wyck v. Alliger,

4 Pr. R., 164.