If the order had been silent on the subject of costs, it might have left a question whether the costs of the motion should not abide the result. But in this case the order declares that no costs are allowed, and the clerk has no discretion in the matter; he is not to say whether a party is to have costs or not. The court only can decide that matter. Ib., and Savage v. Darrow, 4 Pr. R., 74.

Where on notice of motion to change the place of trial the notice did not state that the moving party would ask for costs, but concluded in the ordinary form by stating that the moving party, the defendant, would apply for such other and further order in the premises as the court may deem proper to grant, the plaintiff did not appear to oppose the motion, and the defendant took an order by default, which order gave costs of the motion to abide the event of the suit. It was, on motion to strike out as irregular so much of said order as allowed costs, held, that under the words asking for such other order, the party could not take costs of the motion. Northrop v. Van Deusen, 3 Code Rep., 140.

That in all motions to change the place of trial, where costs are asked for by the notice, costs to abide the event will be allowed. Ib.

Where a motion has been granted or denied, and nothing is said about costs in the order deciding it, the clerk can make no allowance for costs of such motion in the final costs of the action.

The code provides for no cost of motion, unless the same are allowed and the amount fixed by the court on the decision of the motion. Morrison v. Ide, 3 Code Rep., 27. Van Wyck v. Alliger, 4 Pr. R., 164.

Costs given under this section, upon motions, the amount of which it is necessary to insert in the order, refer only to collateral motions, such as a motion to vacate or set aside some proceeding, or for relief of some kind, and which are not in the direct and regular progress of the suit, and which are always in the discretion of the court.

It is never necessary to specify the amount of such costs in the order, upon motions which are made in the regular progress of the suit, such as motions in the nature of judgment, as in case of nonsuit, non pros., for a commission, or to change the venue, &c. In these, the statute gives the costs, not the court. Except that in cases where these motions may be denied, for some defect of papers or irregularity, then the costs of denial are to be inserted in the order. Thomas v. Clark, 5 Pr. R., 375.

See, also, 1 Code Rep., 99, 2 Ib., 28.

§ 316. Costs against infant plaintiff.-When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action, shall be responsible therefor, and payment thereof may be enforced by attachment.

§ 317. (Amended.)—Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting or defending in his own right, but such costs shall be chargeable only upon or collected of the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defence. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom by section forty-one, of title three, chapter six, of

the second part of the Revised States. And whenever any claim ogums: a deceased porsi sud be referred pursuant to the promisuns of the Ice Sutes the prevailing party shall be entitled to reemer tux Tees of reveries and witnesses and other ne cesacTMy, ādainutaments, u in zuzeò according to law.

led to costs, on the ground that the larg Snyder v. Young, 41. p

È me novatie to the presentaton of cars
Fan Burrougas, i Huth S. C. R., 341.

A manter i recever costs against an exccutur, unie ty reier, the cum being disputed, or an unreasonable to move has bent T-1120 II Regent of paymen. the demant having been presented. 16

per coste Welt, me, and without leave of the court, meghahana etry a jogarent they were ordered to be stricken out on motion

NET SWI HUTSONS But as executors and fail in the action, one of h be charper will most, on the ground that he was beneficially into covery 1 T . na wie Fraley v. Jones, 6 Burbs, C

The sector of the reed statutes above referred to, is se taara 2, 14 mes shall in recovered against the defendante; nor shall i ered in 1 But I . against any executors or adumbstratos, w property, or of the property of the deceased, unless it appost to which the aim was founded, was presented within the win payment was unsby resisted or neglected, or that the

the same pursum as the preceding provisions; in which can t such costs to be levies of the property of the defendante, or of a be ju neving reference to the facts that appeared on the tre brought in the supreme court, such facts shall be certified by su the trim stal have been had."

Under this scalote, it has been decided, that costs will not in an ecutors, on the ground that they omitted to give the aquam ap exhibt their claims, if the suit was brought before the time for arrived. 6 H, 386. Nor, where a claim was prcs HÍKA MAENE which be disputed, but declined to refer, saying he was cathack before doing so, and the creditor, without waiting and nat commenced a suit. Ibid.

So, if the executor omits to give the potu yan will be collectable out of the estate of the deciČ In suits against executors, the plaintiff cam kolk obtaining leave from the court. 6', et fended by trustees of an express trust, or the leave of the court must be obtained, before Such leave may be given at the trial, or upou kult purpose. A plaintiff who recovered juspum was not entitled to costs, unless the dewan code it has been decided, that a proceeding up were executor or administrator, pursuant wy 32, revised statutes, is a suit at law wiling tus amig title, and is embraced within the exaɣof th

In such cases, where judgme** KAANAATA VE
costs do not follow of course, but are poras
utes, as they were before the code voor utbud

§ 318. Costs on revicu, of u demum of cial proceeding.-When the do risdiction in a special proceed oY, KON

"

supreme court for review, tuon proceeding win a, ba

poses of costs, be deemed an action at issue, on a question of law, from the time the same shall be brought into the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case.

$319. Costs in actions by the people.-In all civil actions prosecuted in the name of the people of this State, by an of ficer duly authorized for that purpose, the people shall be liable for costs in the same cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant's costs; which shall not be recovered of the people, till after execution issued there for against such private party and returned unsatisfied.

§ 320. The same. In an action prosecuted in the name of the people of this State for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation or person, costs awarded against the plaintiff, shall be a charge against the party for whose benefit the action was prosecuted, and not against the people.

321. Costs against assignee of cause of action after action brought-In actions, in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment.

§ 322. Costs on a settlement.-Upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section.

Where the plaintiff brought a suit upon a note, and before the time to answer expired, the defendant tendered to plaintiff's attorney the amount claimed to be due on the note-principal and interest-which he refused to receive, on the ground that he was also entitled to $7 costs; held, on a motion by defendant to stay all plaintiff's proceedings, and that the note be delivered up, that the plaintiff was entitled to such costs, and that the amount should also have been tendered, in order to have made such tender of any avail to the defendant. Rockfellow v. Weiderwax, 2 Code Rep., 3. 3 Pr. R., 382.

Where a tender is made, after the creditor has employed an attorney to bring a suit, who has filed a declaration and mailed a copy to the sheriff to be served, but

before the same is served, it is sufficient for the debtor to tender the amount of the debt, without offering to pay the plaintiff's costs, especially if the debtor at the time of making the tender does not know, and is not informed by the creditor that costs have been incurred. Hull v. Peters, 7 Barb. S. C. R., 331. 3 Code Rep., 255.

A notice of discontinuance, without payment or tender of costs, is a nullity. Morrison v. Ide, 3 Code Rep., 27.

Where two defendants appeared, and defended separately, and each demurred to the complaint, and both demurrers were allowed, with leave to the plaintiff to amend on payment of costs, each defendant was held to be entitled to costs as follows:Proceedings before notice of trial, $5 00. Subsequent proceedings before trial, $700. For the trial of the issue of law, $12 00. Collomb v. Caldwell, 1 Code Rep., N. S., 41.

III.

Appeals to the supreme court from an inferior court.

IV.

Appeals in the supreme court, and the superior court, and the court
of common pleas of the city of New-York, from a single judge to
the general term.

V. Appeal to the court of common pleas for the city and county of
New-York, or to a county court, from an inferior court.

CHAPTER I.

Appeals in general.

SECTION 323.

Writs of error abolished, and appeals substituted.

325.

324.

Orders made out of court, how vacated or modified.
Who may appeal.

326. Parties how designated on appeal.

327. Appeal how made.

328. Clerk to transmit papers to appellate court.

329. Intermediate orders affecting the judgment, may be reviewed on the

323. [271.] Writs of error abolished and appeals substituted.--Writs of error in civil actions, as they have heretofore existed, are abolished, and the only mode of reviewing a

In all suits commenced before the code, and determined afterwards, the parties must govern themselves on appeal as far as may be practicable, by the new machinery; but where that will not answer the purpose the parties are at liberty to resort to the former practice, unless that course has been plainly forbidden by the legislature. Per Bronson, Ch. J., in Farmer's Loan and Trust Co. v. Carroll, 4 Pr. R., 211, 213.

In all suits commenced before the first of July, 1848, and then pending, a party

judgment, or order, in a civil action, shall be that prescribed by this title.

324. [272.] Orders made out of court, how vacated or modified. An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made.

This section is identical with section 272 of the code of 1848, and while that code was in force, it was held not to apply to injunction orders which could only be vacated or modified pursuant to section 198 of the same code, identical with section 225 of this code. Mills v. Thursby, 1 Code Rep., 121. This section does not apply to an order made out of court upon notice; such an order must be regarded as an order at special term. Follett v. Weed, 3 Pr. R., 360, 361.

This section extends to an order to examine a defendant in proceedings supplementary to an execution. Lindsay v. Sherman, 1 Code Rep., Ñ. S., 25.

§ 325. [273.] Who may appeal.-Any party aggrieved may appeal in the cases prescribed in this title.

§ 326. [274.] Parties how designated on appeal.—The party appealing shall be known as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed in consequence of the appeal.

This section is said to apply only to the names of the parties, and not to the name or style of the court, and therefore in all proceedings on appeal in the court of appeals the papers must be entitled in that court, and not in the court from the decision of which the appeal is brought. Clickman v. Clickman, 1 Code Rep., 98.

§ 327. [275.] Appeal how made.—An appeal must be made by the service of a notice in writing on the adverse party, and on the clerk, with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof. When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just.

intending to move to set aside a nonsuit or verdict, must still make and serve a case or bill of exceptions according to the old practice, and found his action thereon. An appeal in such cases to the general term according to the provisions of the code, cannot be taken. Thompson v. Blanchard, 4 Pr. R., 260.

See also, Scott v. Beeker, 3 Pr. R., 373.

Doty v. Brown, Ib., 375.

Where an appeal had been dismissed with costs, and the costs had not been paid, and the appellant entered another appeal, the respondent moved to stay the proceedings on the second appeal until the costs of the first were paid, the court granted the motion. And per Bronson, Ch. J., two successive appeals in the same case like two Dresser v. Brooks, 5 Pr. R, actions for the same cause, tend to vexation. 75, 76.