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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 soch 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 lb., 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.

8 317. (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 Statutes. And whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law.

The part in italic is new.

A creditor, suing an executor, is not entitled to costs, on the ground that the latter did not advertise for the presentation of claims. Snyder v. Young, 4 Pr. R., 217. Van Vleek v. Burroughs, 6 Barb. S. C. R., 341.

A plaintiff is in no case entitled to recover costs against an executor, unless there has been refusal to refer, the claim being disputed, or an unreasonable resistance or neglect of payment, the demand having been presented. Ib.

Where costs were, improperly, and without leave of the court, included in the entry of judgment, they were ordered to be stricken out on motion. Ib.

Where two persons sue as executors and fail in the action, one of them cannot be charged with cost, ou the ground that he was beneficially interested in the recovery in right of his wife. Finley v. Jones, 6 Barb. S. C. R., 229.

The section of the revised statutes above referred to, is as follows: “In such suit, po costs shall be recovered against the defendants; nor shall any costs be recovered in any suit at law, against any executors or adıninistrators, to be levied of their property, or of the property of the deceased, unless it appear that the demand on which the action was founded, was presented within the time aforesaid, and that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same pursuant to the preceding provisions ; in which cases the court may direct such costs to be levied of the property of the defendants, or of the deceased, as shall be just, having reference to the facts that appeared on the trial. If the action be brought in the supreme court, such facts shall be certified by the judge, before whom the trial shall have been had."

Under this statute, it has been decided, that costs will not be allowed against executors, on the ground that they omitted to give the requisite notice for creditors to exhibit their claims, if the suit was brought before the time for giving the notice had arrived. 6 Hill, 386. Nor, where a claim was presented to one of several executors, which he disputed, but declined to refer, saying he wished to consult his co-executors, before doing so, and the creditor, without waiting a reasonable time for that purpose, commenced a suit. Ibid.

So, if the executor omits to give the notice to creditors required by law, costs will be collectable out of the estate of the deceased. 22 Wendell, 571.

In suits agaiust executors, the plaintiff cannot enter judgment for costs, without obtaining leave from the court. 6 Hill, 386. And so, in actions prosecuted or defended by trustees of an express trust, or a person expressly authorized by statute, the leave of the court must be obtained, before a judgment for costs can be entered. Such leave may be given at the trial, or upon a motion subsequently made for that purpose. A plaintiff who recovered judgment on a reference on the above statute, was not entitled to costs, unless the demand was unreasonably resisted, and since the code it has been decided that a proceeding upon the reference of a claim against an executor or administrator, pursuant to 9 32, title 3, chap. 6, of the second part of the revised statutes, is a suit at law within the language of the 41st section of the same title, and is embraced within the excepting clause of section 307 of the code.

Ín such cases, where judgment is recovered against the executor or administrator, costs do not follow of course, but are governed by the provisions of the revised statutes, as they were before the code took effect. Lansing v. Cole, 3 Code Rep., 246.

9 318. Costs on review of a decision of an inferior court in a special proceeding.–When the decision of a court of inferior jurisdiction in a special proceeding, shall be brought before the supreme court for review, such proceeding shall, for all purposes 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 officer 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 therefor 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.

9321. 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. Weiderwar, 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, $500. Subsequent proceedings before trial, $700. For the trial of the issue of law, $12 00. Collomb v. Caldwell, 1 Code Rep., N. S., 41,

TITLE XI.

Of appeals in civil actions.*

CHAPTER 1. Appeals in general.

II. Appeals to the court of appeals.
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.

324. Orders made out of court, how vacated or modified.
325. 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

appeal.
330. Judgment on appeal.
331. Certain appeals to be within two years.
332. Other appeals within thirty days.

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 ma. chinery ; 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 leg. islature. Per Bronson, Ch. J., in Farmer's Loan and Trust Co.v. Carroll, 4 Pr. Ř., 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 oui 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 potice, 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 va. cated 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., N. 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

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.

part thereof.

intending to move to set aside a nonsuit or verdict, must still make and serve a case or bill of exceptions accordiog 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. Broron, 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 proceed ings 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 cas: like two actions for the same cause, tend to vexation. Dresser V. Brooks, 5 Pr. R., 75, 76.

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