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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 relerred 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 of. Tunie Plank Road Co., 3 Code Rep., 41.
And it was said if one case that it should be made in all litigated cases. Dyck. man 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 contradistinguished from common and ordinary. Each case must be determined according to its pecaliar circumstances, no general rule can be adopted. Per Hubbard, J., in Fox v. Gould, 3 Code Rep., 209.
There being no test it should be denied in doubtful cases. Sill, J., Gould v. Chapin, 2 Code Rep., 107.
The code makes no allowance for drawing cases, engrossing same, &c., nor for an argument on a motion before the special term for a new trial, but perhaps in difficult or extraordinary cases, the prevailing party may be compensated by an extra allow
Graham v. Milliman, 4 Pr. R., 435, 439. When the allowance has been refused.—Where judgment was obtained pursuant to sectiou 247. Beers v. Squire, 1 Code Rep., 84. Where two actions were brought for matters which might have been comprised in one. Sackett v. Ball, 4 Pr. R., 71, 2 Code Rep., 47. Where less was recovered than the defendant had offered pursuant to section 385. McLees v. Avery, 3 Code Rep., 104. Where the defendant was surety only. Gould v. Chapin, 2 Code, 107. Rice v. Wright, 3 Pr. R., 405, and where the plaintiff recovered less than one-third of the amount of his claim. Fish v. Forrance, 5 Pr. R., 317. Where an inquest was taken. Hall v. Parker, 7 Leg. Obs., 138. In a foreclosure suit it not appearing that it was difficult or extraordinary. Austin v. Lashar, 2 Code Rep., 81. Probably it would be held otherwise
Where the trial occupied but two or three hours, and there was nothing peculiar in the character of the cause, although the questions were somewhat complicated. Dexter v. Gardner, 5 Pr. R., 417.
Where, when, and to whom the application should be made.-The application should be made in the county where the judgment is rendered, unless some special reason exists for applying elsewhere. Niver o. Rossman, 5 Pr. R., 153.
When the trial is by jury, the application should be made at the coming in of the
"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 bad 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 aster 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 tho value of the property claimed, or the defendant caunot have any additional allowance for costs. Flint v. Richardson, 2 Code Rep.,
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 allow. ance 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 atlached, 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.
$ 310. [265.] Interest on verdict or report, when allowed.When the judgment is for the recovery of money, interest from the time of the verdict or report until judgment be finally entered, shall be computed by the clerk, and added to the costs of the party entitled thereto.
$ 311. [266.] Costs how to be inserted in judgment.—The clerk shall insert in the entry of judgment, on the application of the prevailing party, upon two days' notice to the other, the sum of the charges for costs, as above provided, and the necessary disbursements and fees of officers allowed by law, including the compensation of referees, and the expense of printing the papers upon any appeal. The disbursements shall be stated in detail, and verified by affidavit, which shall be filed.
This section is identical with section 266 of the code of 1848, and the disbursements alluded to are those given by 2 R. S., 634, s. 20, which I do not understand to be repealed, as is the 18th section of the same act. Swift v. De Witt, 3 Pr. R., 280-282. 1 Code Rep., 25.
The acts of a clerk in adjusting and settling the amount of costs, are not necessarily final and conclusive because no review is expressly given. The court has, as one of its incidental powers, the right to control the legal acts, and compel a performance of legal duty of all its inferior officers. And the exercise of this power is peculiarly necessary in the formal and proper entry of a judgment. Whipple v. Williams, 4 Pr. R., 28. And a motion in the nature of an appeal from the act of the clerk may be made to the court; but such motion can only be made at a special term. 3 Code Rep., 24.
No authority is conferred on the clerk to adjust costs, except in cases of final judgment, but the court may confer such authority by a special reference to him. Eckerson v. Spoor, 3 Code Rep., 70.
Where, in a doubtful case, the party considers himself entitled to full costs, he should not, in the first instance, move to be allowed full costs. But should apply to the clerk in the usual manner, and if dissatisfied with the clerk's decision, apply to the court by way of appeal therefrom.
On motion in the nature of an appeal from the decision of a clerk, allowing items in a bill of costs, the affidavit in support of the motion should show that the allowance of such iteins was opposed, and that the items were allowed under objection. People v. Oakes, 1 How. Sp. T. R., 195.
The fee for serving the complaint is not taxable unless the complaint be served by the sheriff, and then it is taxable as a sheriff's fee. Whipple r. Williams, 4 Pr. R., 28-30. See 2 Sand. S. C. R, 742.
Where postage or other disbursements are charged in a bill of costs, each item of such disbursement, and the occasion or circumstance of the expenditure, should be particularly specified. 2 Paige, 459. And where papers are sent by express instead of by mail, the amount of carriage paid, not exceeding what would have been the annount of postage, may be allowed.' Farmers' Loan and Trust Co. v. Jewett, In Chanc., Dec., 1843.
A defendant not appearing is not entitled to notice of adjusting the costs. Richards v. Swetzer, iCode Rep., 117; Wilcox v. Curtis, Ib., 127. But giving notice of appearance entitles the defendant to notice of adjusting the costs. Elson v. N. Y. Equit. Ins. Co., 2 Code Rep., 30.
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, 16., 49; Doke v. Peek, 1 İh., 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., 14; 5 Pr. Ř., 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. (9. 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 neaus 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 filiog of the judgment roll. The fee of Gifty 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 writing upon any other rate of compensation.
See note to trial by referees, p. 218.
$ 314. (269.] Costs on postponement of trial.-When an application shall be made to a court or referees to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the fees of witnesses, may be iniposed, as the condition of granting the postponement.
Where a party obtains a postponement of a trial to a subsequent term, on payment of costs on the cause being moved for trial, on his omission to pay the same, the adverse party may insist on having the trial proceed, or he may waive that right; and the court will compel payment. Bulkeley v. Keteltas, 2 Sand., S. C. R., 735. The application for the costs must be made without delay, or the right will be deemed to be waived.
$ 315. [270.] Costs on a motion.-Costs may be allowed on a motion, in the discretion of the court, not exceeding ten dollars.
This section was substituted for section 270, in the code of 1848, which enacted that "No costs shall be allowed on a motion except the costs of resisting in the discretion of the court not exceeding $10," and under that provision it was held that although the costs of making a motion could not be directly granted, their payment might be imposed as a condition to relieving a party who was in default. Reider v. Deitz, 1 Code Rep., 82, and on motion for judgment, as in case of a nonsuit, costs or the motion could be made a condition upon which the motion was denied. Anderson v. Johnson, 1 Sand. S.C. R., 786, 1 Code Rep., 94. But the contrary was held in another
Richmond v. Russell, 1 Code Rep., 85. It was also held under the code of 1848, that where on motion, irregular proceedings are set aside, and the irregular party had leave to amend, the moving party Inight have costs, as a substitute for costs of the motion ; the irregular party would be regarded as moving to amend.Weare v. Slocum, 1 Code Rep., 105, 3 Pr. R., 397.
Section 270 of the code of 1048 did not apply to motions in the court of appeals in actions commenced prior to the code taking effect. Syme v. Ward, 1 Code Rep., 101. 3 Pr. K., 342. 7 Leg. Obs., 10. 1 Coms., 531. But on molion for rehearing brought before July, 1848, from the decision of one justice of the supreme court to a general term held after that time, held, that no costs of motion could be allowed, but the costs might be taxed with the costs of the suit. Van Wyck v. Alliger, 1 Code Rep., 68. 3 Pr. R., 292.
Whether such would have been the construction if it had been an appeal instead of a rehearing? Ib.
Where the notice uf motion states that the moving party will ask for certain relief, more than the court, oo the hearing of the motion, decide he is entitled to, he is not entitled to costs. Whipple v. Williams, 4 Pr. R., 28. And where the notice of motion asks, in the alternative, for two different modes of relief, one of which the party is not entitled to, costs of opposing the motion will be allowed to the opposite party. Smith v. Jones, 2 Code Rep., 33.
An appeal from an order at Chambers is a motion, and where no costs are awarded on the decision of such an appeal, none can be allowed. Savage v. Darrow, 4 Pr. R., 74. And where the court order that “ 10 costs be allowed" upon granting a motion in an interlocutory order, (dissolving an injunction,) and the party in whose favor the motion is granted finally succeeds in the suit, costs for such motion cannot be allowed with the general costs of the cause. Van Wyck v. Alliger, 4 Pr. R., 164.