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three hundred and eight, and in actions or proceedings for the partition of real estate, the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent upon the amount of the recovery or claim or subject matter involved.

Amended by Laws of 1857, ch. 723; 1858, ch. 306; 1859, ch. 428; 1862,

ch, 460.
9 N. Y., 370; 8 N. Y., 71; 24 B., 126; 11 B., 337; 20 How. P. R., 285;

19 How. P. R., 119; 17 How. P. R., 457; 15 How. P. R., 224; 13
How. P. R., 298; 5 How. P. R., 242; 13 Ab., 247, 297; 10 Ab.,
313; 7 Ab., 345, 445; 5 Ab., 222; 4 Ab., 247; 3 Ab., 174, 240; 4

Bos., 669. $ 310. When the judgment is for the recovery of money, Interest on

or interest from the time of the verdict or report, until judg- report ment be finally entered, shall be computed by the clerk, and

allowed. added to the costs of the party entitled thereto.

16 B., 660; 9 How. P. R., 86; 8 How. P. R., 121. $ 311. The clerk shall insert in the entry of judgment, on Duty of the application of the prevailing party, upon five days' notice costs. to the other, except when the attorneys reside in the same city, village or town, and then upon two days' notice, the sum of the allowances for costs, as provided by this code, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking depositions, the fees of referees, and the expense of printing the papers for any hearing when required by a rule of the court. The disbursements shall be stated in detail, and verified by affidavit. A copy of the items of the costs and disbursements shall be served with a notice of adjustment. Whenever it shall be necessary to Costs, how adjust costs in any interlocutory proceeding in an action or in any special proceedings, the same shall be adjusted by the judge before whom the same may be heard, or the court before which the same may be decided or pending, or in such other manner as the judge or court may direct.

As amended by Laws of 1862, ch. 460; 1857, ch. 723.
23 B., 410; 19 B., 531; 16 B., 658; 15 B., 135; 11 Ab., 154; 9 Ab., 74,

111; 8 Ab., 300; 7 Ab., 454; 3 Ab., 191; 2 Ab., 378; 1 Ab., 120,
266; 20 How. P. R., 215; 19 How. P. R., 573; 17 How. P. R., 472;
14 How. P. R., 300, 357; 13 How. P. R., 13; 10 How. P. R., 554;
9 How. P. R., 86, 264; 7 How. P. R., 490; 6 How. P. R., 191, 226,

413; 4 How. P. R., 134.
$312. 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.

23 B., 410; 5 How. P. R., 12. $313. The fees of referees shall be three dollars to each for Referee's every day spent in the business of the reference; but the par

Clerks' fees.

sees.

PART III

ment of

Costs against

ministrators. trustees, &c.

ties may agree in writing upon any other rate of compensation.

17 How. P. R., 472; 9 Ab., 74. Costs on

$ 314. When an application shall be made to a court or postpone

referees, to postpone a trial, the payment to the adverse party trial.

of a sum not exceeding ten dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement.

6 How. P. R., 408, 418. Costs on S 315. Costs may be allowed on a motion in the discretion motions.

of the court or judge, not exceeding ten dollars, and may be
absolute or directed to abide the event of the action.

As amended by Laws of 1857, ch. 723.
15 How. P. R., 117; 13 How. P. R., 301; 10 How. P. R., 400; 8 How.

P. R., 1; 6 How. P. R., 123; 5 How. P. R., 375; 4 How. P. R., 283;

12 Ab., 188; 10 Ab., 41; 8 Ab., 296; 1 Ab., 123. S 316. When costs are adjudged against an infant plaintiff, infant

the guardian by whom he appeared in the action shall be plaintiff.

responsible therefor, and payment thereof may be enforced by attachment.

6 How. P. R., 233. Costs by or $ 317. In an action prosecuted or defended by an executor, cators ade 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 col-
lected 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 defense. But this section shall not be con-
strued 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 per-
son shall be referred pursuant to the provisions of the Re-
vised 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. And the court
may in its discretion, in the cases mentioned in this section,
require the plaintiff to give security for costs.

As amended by Laws of 1852, ch. 392; 1851, ch. 479.
22 N. Y., 468; 30 B., 441; 9 B., 394; 22 How. P. R., 281, 453; 14

How. P. R., 481, 508; 12 How. P. R., 302, 306, 451; 9 How. P. R.,
349; 8 How. P. R., 5; 7 How. P. R., 64; 12 Ab., 78; 11 Ab., 261;

7 Ab., 255; 6 Ab., 96. $ 318. When the decision of a court of inferior jurisdiction, decision of in a special proceeding, including appeals from surrogates'

courts, shall be brought before the supreme court for review, special pro- such proceeding shall, for all purposes of costs, be deemed an ceeding.

action at issue, on a question of law, from the time the same shall be brought into the supreme court, and costs thereon

Costs on review of a

inferior court in a

shall be awarded and collected in such manner as the court

CHAP. XI shall direct, according to the nature of the case.

As amended by Laws of 1862, ch. 460. $ 319. In all civil actions prosecuted in the name of the Costs in people of this state, by an officer duly authorized for that pur- the people. pose, 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.

11 B., 340; 17 How. P. R., 12. $ 320. In an action prosecuted in the name of the people Ib. 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.

17 How. P. R., 12; 10 How. P. R., 3715 4 E. D. S., 29. $ 321. In actions, in which the cause of action shall, by Costs assignment after the commencement of the action, or in any signee of other manner, become the property of a person not a party to action after the action, such person shall be liable for the costs, in the brought. same manner as if he were a party, and payment thereof may be enforced by attachment.

13 Ab., 183; 7 Ab., 455. S 322. Upon the settlement, before judgment, of any action Costs on mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section.

30 B., 400; 19 How. P. R., 119; 17 How. P. R., 457; 10 Ab., 314; 7

Ab., 342, 445; 5 Ab., 222.

settlement.

TITLE XI.

OF APPEALS IN CIVIL ACTIONS.
CHAPTEB I. 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.

SEC. 323. Wnts 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.

PART III.

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error abolished and

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

330. Judgment on appeal.
331. Certain appeals to be within sixty days; others within two years.

332. Other appeals within thirty days. Writs of $ 323. Writs of error in civil actions, as they have hereto

fore existed, are abolished, and the only mode of reviewing a elbstituted. judgment, or order, in a civil action, shall be that prescribed by this title.

13 N. Y., 308; 24 B., 149; 13 Ab., 183; 7 Ab., 362; 4 Ab., 92, 287, 403. Orders S 324. An order, made out of court, without notice to the made out of court, adverse party, may be vacated or modified, without notice, how vacated or

by the judge who made it, or may be vacated or modified on modified. notice, in the manner in which other motions are made.

9 B., 387; 20 How. P. R., 441; 13 How. P. R., 439; 8 How. P. R., 440;

6 How. P. R., 108; 5 How. P. R., 386; 12 Ab., 293. Who may

$ 325. Any party aggrieved may appeal in the cases preappeal. scribed in this title.

13 N. Y., 308; 28 B., 306; 16 B., 235; 10 How. P. R., 371; 8 Ab., 50;

2 Ab., 209, 390; 4 E. D. S., 29. Parties, S 326. The party appealing, shall be known as the appelhovederig lant, and the adverse party as the respondent. But the title appeal of the action shall not be changed, in consequence of the appeal.

1 N. Y., 611; 8 How. P. R., 140. Appeal, S 327. An appeal must be made by the service of a notice Low made.

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.

8 B., 309; 17 How. P. R., 123; 11 How. P. R., 131; 7 How. P. R., 137;

5 How. P. R., 310, 361; 10 Ab., 455; 4 Ab., 134; 2 Hilt., 335. Clerk to S 328. Upon the appeal allowed by the second and third transmit

chapters of this title being perfected, the clerk with whom the appellate notice of appeal is filed, shall, at the expense of the appellant,

forthwith transmit to the appellate court a certified copy of the notice of appeal and of the judgment roll, or, if the appeal be from an order or any part thereof, a certified copy of such order and of the papers upon which the order was granted.

As amended by Laws of 1858, ch. 306; see post, Laws of 1863, ch. 392.

4 N. Y., 417; 2 N. Y., 567; 8 How. P. R., 328; 3 Ab., 388. Intermedi. $ 329. Upon an appeal from a judgment, the court may affecting

review any intermediate order, involving the merits, and ment may necessarily affecting the judgment. be reviewed

13 N. Y., 308; 7 B., 582; 9 How. P. R., 361 ; 13 Ab., 387; 10 Ab., 455. on the appeal. $ 330. Upon an appeal from a judgment or order, the appelJudgment on appeal. late court may reverse, affirm or modify the judgment or order

appealed from in the respect mentioned in the notice of

papers to

court.

ate orders

CHAP, XL

appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment.

6 N. Y., 106; 29 B., 88; 19 B., 187; 8 B., 421; 13 Ab., 183; 11 Ab.,

414; 10 Ab., 455; 9 Ab., 140; 1 Ab., 233; 17 How. P. R., 123, 154;

9 How. P. R., 80; 8 How. P. R., 378. $ 331. The appeal to the court of appeals, under subdivision Certain two, of section eleven of this Code, must be taken within sixty within days after written notice of the order shall have been given others with to the party appealing ; every other appeal allowed by the restwo second and third chapters of this title, must be taken within two years after the judgment shall be perfected, by filing the judgment roll.

As amended by Laws of 1858, ch. 306; 1857, ch. 723.

2 N. Y., 562 ; 5 How. P. R., 479. $ 332. The appeal allowed by the fourth chapter of this title, Other ap

withmust be taken, within thirty days, after written notice of the In thirty

days. judgment or order shall have been given to the party appealing.

11 N. Y., 275; 18 How. P. R., 324; 16 How. P. R., 386, 402 ; 12 Ab.,

419; 10 Ab., 455; 9 Ab., 140; 7 Ab., 352; 4 Ab., 309; 2 Ab., 209,
290; 4 E. D. S., 479.

CHAPTER II.

APPEALS TO THE COURT OF APPEALS. Sec. 333. In what cases. 334 On any appeal security must be given to pay costs and damages, not exceed

ing $250, or deposit made, unless waived. 335. On judgment for money, security to stay execution. 336. If judgment be to deliver documents, they must be deposited. 337. If to execute conveyance, it must be executed and deposited. 338. Security where judgment is to deliver property, or for a sale of mortgaged pro

mises. 339. Stay of proceedings upon security given. 340. Undertakings may be in one instrument, or several. 341. Security to be approved and to justify. 342. Perishable property may be sold, notwithstanding appeal. 343. Undertaking must be filed. $ 333. An appeal may be taken to the court of appeals in In what the cases mentioned in section eleven. When any of the courts mentioned therein shall, at general term, render judgment upon a verdict taken subject to the opinion of the court, the questions or conclusions of law, together with a concise statement of the facts upon which they arose, shall be prepared by and under the direction of the court, and shall be filed with the judgment roll, and be deemed a part thereof, for the purposes of a review in the court of appeals.*

As amended by Laws of 1857, ch. 723, $ 19.
6 N. Y., 465; 2 N. Y., 567; 7 B., 582; 9 How. P. R., 304; 6 Ab., 127.

cases.

• Lav 1857, ch. 723, sec. 20. The provisions of the last preceding section shall apply to any Judgment therein mentioned that has been heretofore rendered, and upon which an appeal has been brought and is now pending, or upon which an appeal shall hereafter be brought. When the return bas already been fled with the clerk of the court of appeals, such statement shall be fied with him, and be deemed a part of such return.

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