§ 3072. Either party may, at any time after the rction is deemed at issue in the appellate court, and before the trial, serve upon the adverse party, a written offer to allow judgment to be taken against him, for a sum, or property, or to the effect therein specified, with or without costs. If there are two or more defendants, and the action can be severed, & like offer may be made by one or more defendants, against whom a separate judgment may be taken; and, if it is accepted, the action becomes severed, and may proceed against the other defendants, as if it had been originally commenced against them only. If the party receiving the offer, within ten days thereafter, serves upon the adverse party, notice that he accepts it, he may file it, with proof of acceptance; and thereupon the clerk must enter judgment accordingly. If the offer is not thus accepted, it cannot be proved upon the trial; and if the party, to whom it was made, fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. 3073. Upon an appeal, provided for in this article, 50 Hun, 343 costs, when awarded, must be as follows, besides disburse- 86 Hun, 51. ments: For all proceedings before notice of trial, fifteen dollars. For the argument of a motion for a new trial on a case, fifteen dollars. For each term, not more than five, at which the appeal is regularly on the calendar, excluding the term, at which it is tried, or otherwise finally disposed of, ten dollars. TITLE IX. § 3074. When prevailing party to recover costs. What costs allowed. 3075. When neither party to recover costs. 3073. Amount of co-ts limited. 3077. Costs upon demurrer. §3078. Taxation of costs. § 3074. Except as otherwise specially prescribed by law, a party who recovers judgment in an action in a justice's court, is entitled to costs; which must be included in the judgment Costs consist of the fees, allowed by law, for services necessarily rendered in the action, at the request of the party entitled to costs, or paid by him, as prescribed by law; and of such other expenses, as a party is entitled to include in his costs, by express provision of law. 3075. In either of the following cases, costs shall not be awarded to eitner party, but each party must pay his own costs: 1. Where the action is discontinued by the absence of the justice for more than one hour, after the summons is returnable, or after the time to which the trial has been adjourned. 16 Misc 331 2. Where the justice is disqualified, for a reason specified in section forty-six of this act. 3. Where the action is discontinued, upon the ground that the defendant is an infant, for whom a guardian ad litem has not been appointed. 4. In an action to recover one or more chattels, where the plaintiff recovers a chattel, or part of a chattel, or the value thereof, and the defendant also recovers a chattel, or part of a chattel, which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is entitled to costs, where both parties recover, as specified in this subdivision, unless the chattel, for which the defendant recovers, has been replevied and delivered to the plaintiff. § 3076. [Am'd 1895, amendment to take effect September 1, 1895.] The sum to be awarded, as costs, to the prevailing party, except where it is otherwise specially prescribed by law, is limited as follows: 1. It cannot exceed fifteen dollars, besides the fees of witnesses, where, upon the trial of an issue of fact or of law, either party recovers damages to the amount of fifty dollars or more, or one or more chattels, the value of which, as. fixed, together with the damages, if any, amounts to fifty dollars or more; or, where, if the defendant recovers judg. ment, the sum, for which the plaintiff demanded judgment, was fifty dollars or more, or the value of all the chattels, to recover which the action was brought, was stated in the complaint at fifty dollars or more. 2. In every other case, it cannot exceed ten dollars, besides the fees of witnesses attending from another county. But the prevailing party is entitled, in addition to the sum specified in this section, to the fees and expenses allowed by law, for a commission issued to examine a witness not residing in the county or in an adjoining county; and for each adjournment exceeding one, which was granted upon the application of the party against whom the judgment is rendered. § 3077. Where judgment is rendered upon the trial of a demurrer, the costs of the trial must be included therein; otherwise costs are not allowed upon the trial of a demurrer. § 3078. Where a justice renders a judgment, he must specify, in his docket-book, the items of costs, which were allowed by him. Before any item of costs is thus allowed, other than a fee to the justice, or to a juror or witness who attended, or to a constable who has certified the amount of his fee, upon a paper filed with the justice, the party must show, by his oath, or that of his attorney, to the satisfaction of the justice, that the item was actually and legally paid or incurred. 3079. Increased costs must be awarded in favor of the defendant, in an action in a justice's court, in a case, and increased at the rate, specified in section three thousand two hundred and fifty-eight of this act. §§ 3080-3082 STRAYS UPON HIGHWAYS. 403 § 3080. In an action against two or more defendants, not united in interest, who make separate defences by separate answers, if the plaintiff fails to recover judgment against all, the justice must award costs to those who have judgment in their favor. 3081. Where a justice includes in a judgment a greater amount of costs than is allowed by law, or an improper item of costs or fees, and the same is collected; the person from whom it was collected may, notwithstanding the judgment, recover from the justice who has received it the amount thereof, with interest. TITLE X. Action or special proceeding, relating to an animal straying upon the highway. §3082. Action against person suf. 8085. When private person may 8090. Answer; trial. 2003. Disposition of surplus. within a year. 3095. Order upon claim for surplus appeal therefrom. 3006. Proceedings upon decision in favor of person answering. 3097. Demand of possession before trial. Proceedings thereupon. 3098. Id.; when animal wilfully set at large by third per son. 8099. Action by owner in such a case. 3100. Action by petitioner and by officer. § 3082. Any person, who suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep, or goats, to run at large, or to be herded or pastured, in a public street, highway, park, or place, elsewhere than in a city, incurs, thereby the penalty or penalties specified in the next section; and any resident of the town, or the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section two thousand eight hun The Union Surety and Guaranty Co. dred and seventy-five of this act, or the overseer or superintendent of the poor of the town or district, in which one or more of those animals are found so running at large, herded, or pastured, may maintain an action against him. in a justice's court, held in that town or district, to recover the penalty or penalties so incurred. Where the action is brought by a private person, the justice must pay the proceeds of an execution, issued upon a judgment therein in favor of the plaintiff, after deducting the costs, to the officer, who might have brought the action, as prescribed in this section, to be applied by him to the support of the poor within his town or district. § 3083. If the plaintiff recovers judgment, in an action brought as prescribed in the last section, the justice must award to him the following sums, by way of penalties, besides the costs of the action: 1. For each horse, colt, ass, mule, swine, bull, ox, cow, or calf, five dollars. 2. For each sheep or goat, one dollar. The entire amount of the penalties may be recovered, in one action, although it exceeds the sum, for which a justice can render a judgment in an ordinary action. § 3084. Where one or more cattle, horses, colts, asses, mules, swine, sheep, or goats are found running at large, or being herded or pastured, in a public street, highway, park, or place, elsewhere than in a city, the overseer of highways of the road district, or, if they are so found within an incorporated village, the street commissioner thereof, having personal knowledge or being notified of the fact, must immediately seize the animal or animals, and keep it or them in his possession, until disposed of as prescribed in the following sections of this title. § 3085. Any person may seize one or more animals specified in the last section, then running at large, or being herded or pastured, in a public street, highway, park, or place, elsewhere than in a city, bordering upon real property owned or occupied by him; or then trespassing upon real property so owned or occupied, having entered thereupon from such a public street, highway, park, or place. The person making the seizure, must keep the animal or animals seized in his possession, until disposed of as prescribed in the following sections of this title. § 3086. An officer or other person, who seizes an animal or animals, as prescribed in either of the last two sec tions, must immediately file, with a justice of the peace of the town in which the seizure was made, a written petition, verified by his oath; setting forth the facts, which bring the case within either of those sections; briefly describing the animal or animals seized; stating either the name of the owner, or that his name is not known to the petitioner, and cannot be ascertained by him with reasonable diligence; and praying for a final order, directing the sale of the animal or animals seized, and the application of the proceeds thereof, as prescribed in this title. Where the petition alleges, that any animal or animals seized, were then trespassing upon real property owned or occupied by the petitioner, it must state the amount of the damages, if any, which the petitioner has sustained thereby. In that case, the decision of the justice, or, where the issues are tried by a jury, the verdict, must fix the amount of the damages. § 3087. Upon the presentation of the petition, the justice must issue a precept under his hand; directed to the owner, if his name is stated in the petition, or, if it is not so stated, directed generally to all persons having any interest in the animal or animals seized; briefly reciting the substance of the petition; describing the animal or animals seized, and requiring the person or persons, to whom the precept is directed, to show cause before the justice, at a time and place specified therein, not less than ten nor more than twenty days, after the issuing of the precept, why the prayer of the petition should not be granted. §3088. The precept must be served upon the person, to whom it is directed by his name, within the same time, and in like manner as a summons is required to be served, as prescribed in section two thousand nine hundred and ten of this act. Where it is directed generally to all persons, having an interest in the animal or animals seized, it may be served by a constable of the town, or by an elector thereof, specially authorized so to do by a written indorsement upon the precept, under the hand of the justice, by posting a copy thereof in at least six public and conspicuous places in the town where the seizure was made; one of which places must be the nearest district school house, or, if the seizure was made within an incorporated village, having schools in charge of a board of education, a building in which such a school is kept. Each copy must be so posted, within two days after the precept is issued. Where the precept is directed to a person by his name, and proof is made, by affidavit, to the satisfaction of the justice, that it cannot, with reasonable diligence, be personally served upon that person, within the county, at least six days before the return day thereof, the justice may, by a written order, direct that service thereof be made, by posting copies thereof, at least five days before the return day, as 1 rescribed in this section; in which case, service thereof may be made accordingly. § 3089. At the place where the precept is returnable, and at the expiration of the time specified in section two thousand eight hundred and ninety-three of this act, the petitioner must, unless the precept is directed to a person by his name, and he appears, furnish proof of the service of the precept, as prescribed in the last section. If it was served by a constable, either personally or by posting, his |