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For a precept or other mandate, whereby a special proceeding is commenced, in a case where a fee therefor is not specially prescribed by law, twenty-five cents.

For a view of real property, in a case where it is required by law, fifty cents,

For a warrant of attachment to arrest a delinquent juror or witness, twenty-five cents.

For drawing, signing, and depositing with the clerk, a minute or record of conviction of such a juror or witness, or of any person for contempt, in any case where a fee there. for is not specially prescribed by law, fifty cents.

For an execution upon such a conviction before him, twenty-five cents.

For drawing, copying, and certifying a bond, an undertaking, a recognizance, or other written security, and filing the sume with the county clerk, or other officer with whom it must be filed, twenty-tive cents.

For a warrant of commitment for any cause, twenty-five cents.

For a subpæna, including all the names inserted therein, twenty-five cents.

For a precept to notify a jury, fifty cents.

For empanelling and swearing a jury, twenty-five cents ; except in proceedings to alter or lay out a highway, in which case he is entitled to two dollars.

For hearing the matter, concerning which a jury is called, fifty cents.

For receiving and entering the verdict of the jury, and the order, if any, thereupon, twenty-five cents.

For any service for which a fee is not expressly allowed by this subdivision, and for which, if rendered in an action before a justice, a fee is allowed by the first subdivision of this section, the fee allowed in such an action for the same service.

For taking the deposition of a witness, upon an order made, or commission issued, by a court of record of the State, or a court in another state or a territory, or a foreign country, ten cents for each folio.

For making the necessary return and certificate thereto, fifty cents.

For taking an affidavit or administering an oath, ten cents,

$ 3323. (Amd 1890.) A constable is entitled, for the services specified in this section, to the following fees :

1. In an action brought before a justice of the peace, or in a justices' court of a city, for serving a summons, twentyfive cents; for serving a summons and executing an order of arrest, one dollar ; for serving a summons and levying a warrant of attachment, one dollar ; for serving a summons and affidavit and executing a requisition in an action for a chattel, one dollar ; for serving an order, directing the action to be continued before a justice other than the one before whom it is pendiog, and for attending before the latter, fifty cents, and fifty cents in addition if he so attends with a person in his custody ; for collecting money by virtue of an execution, for every dollar collected, to the amount of fifty dollars, five cents ; for every dollar collected ever fifty dollars, two and one-half cents; where a judgment or an execution is settled after a levy, the constable is entitled to poundage upon the sum at which the settlement is made, not exceeding the value of the property levied upon ; for each mile necessarily traveled, going and returning, to serve a summons or to serve or to execute any other mandate, except a venire, the distance to be computed from the place of abode of the person served, or the place where it is served, to the place where it is returnable, ten cents; but where two or more mandates in one action are served or executed upon one journey, or where a mandate is served or executed against two or more persons in one action he is entitled, in all, to only ten cents for each mile necessarily traveled ; for notifying the plaintiff of the execution of an order of arrest, twenty-five cents; and for going to the plaintiff's residence, or, if he is found elsewhere, to the place where he is found, to serve such a notice, for each mile traveled, going and returning, ten cents ; for subpænaing each witness, not exceeding four, twenty-five cenis; for notifying the jurors to attend a trial, one dollar and fifty cents; for taking charge of a jury during their deliberations, fifty cents; where witnesses, not exceeding four, are subpænaed by any person other than a constable, the fee therefor is ten cents each.

2. In a special proceeding.

For notifying jurors to attend to assess damages, in proceedings relating to highways, two dollars.

For notifying jurors to attend in any other case, unless a fee therefor is specially prescribed by low, for each person notified, ten cents; and for each mile actually and necessarily travelled, going from and returning to his place of residence, ten cents.

For serving a precept or other mandate, by which the special proceeding is commenced, twenty-live cents.

For serving a warrant, in any case where a fee therefor is not specially prescribed by law, fifty cents.

For serving an order, directing the special proceeding to be continued before a justice other than the one before whom it is pending, and for attending before the latter, fifty cents, and fifty cents in addition if he so attends with a person in his custody.

For arresting and committing any person, pursuant to process, one dollar.

For subpænaing each witness, pot exceeding four, twentyfive cents.

For each mile necessarily travelled, going and returning, to serve or execute a mandate, the disiance to be computed from the place where it is se ved or executed, to the place where it is returnable, unless a different rate of travel ftes SS 3324-3:20

AMOUNT OF FEES,

477

upon ile srvice or execution thereof is spacially prescribed by statiste, ten cents, Where two or more mandates are scived or ex cuted in one special proceeding, the limitatior. uion the amount of travel fees specified in the last preciding subdivision applies. .

$ 3324. A consiable who charges any travelling fees, 16 Misc. 431. must show, by affidavit, that the travel was necessary to perform the service with respect to which it is charged ; ihat no more miles are charged for, than were actually and in good faith travelled for that purpose ; that he had at the time no other official or private business upon the route so travelled ; and that the travelling fees are charged upon one mandate only, which must be attached to or described in the affidavit. The justice taxing the fees must be satisfied that the miles charged for were actually and necessarily travelled, as stated in the affidavit.

§ 3325. A party recovering costs in an action before & justice of the peace, in whose behalf a commission has been issued, and who introduces in evidence a deposition taken thereunder, is entitled to recover his actual disbursements thereupon, not exceeding the following sums : commis. sioner's fees for taking and returning testimony, one dollar; each subpæna issued, or oath administered, by the cominissioner, six cents; expense of serving each subpæna, twenty-five cents; each witness's fees for each day's attendance before the commissioner, twenty-five cents; postage for sending and returning the commission and papers an. nexed thereto, one dollar.

& 3320. Except as otherwise specially prescribed by law, a person, notified to attend as a juror, is entitled to twentyfive cents, for attending and serving, upon the trial of an action or the hearing of a special proceeding, before a justice of the peace; and to ten cents for attending to serve where he is not sworn.

§ 3327. A witness is entitled to twenty-five cents, for each day's actual attendance, before a justice of the peace, in an action or a special proceeding, or before a commissioner appointed by a justice of the peace, or before & justice of the peace taking a deposition to be used in a court. not of record, of another state, or a territory of the United States.

$ 3328. A justice of the peace, or a constable, juror, 4 N. Y. or witness, before a justice of the peace, is not obliged to Supp. 16), render any service specified in this title, without the 90 Hun, 135, previous payment or tender of his fee therefor.

3329. In an action before a justice of the peace, if any 4 N. Y. gervices are rendered for a party, and he neglecte to pay Supp. 169 Ibufees allowed therefor by law, the other party may pay 32 App. Div. hoe fees, and the amount thereof must be taxed as part of 1.8 costs, if he recovers costs.

§ 3330. The allowance of a fee, by this title, does not

274.

90 N Y. 521.

apply to a case, where special provision is otherwise ade by statute for compensation for a particular service.

§ 3331. Where an officer has, when his iitle takes effect, commenced the performance of a service, for whi a fee is allowed by the statutes heretofore in force, he is entitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title.

$ 3332. Except as otherwise expressly prescribed there. in, this title does not apply to å service rendered in a criminal action or special proceeding, in a court, or before an officer.

CHAPTER XXII.
DEFINITIONS AND REGULATIONS CONCERNING

THE CONSTRUCTION, EFFECT, AND APPLI.
CATION OF THIS ACT.

TITLE I.-GENERAL DEFINITIONS, AND RULES OF CON.

STRUCTION
TITLE II.-PROVISIONS REGULATING THE EFFECT AND

APPLICATION OF THIS ACT.

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TITLE I.
General definitions, and rules of construction.
S8833. Definition of "action." $ 3340. Rule of construction as to
8334. Id.; special proceed.

publication, etc.,

in ing

certain cases. 3335. Division of actions into 3341. Id.; as to certain special civil and criminal.

provisions relating to 3336. Definition of "criminal

New York city. action."

3342. Id.; as to county court. 8337. Id.; "civil action."

3343. Miscellaneous general de. 83.88. Parties to a civil action.

finitions and rules of 3339. Only one form of civil

construction. action, 98 N.1. 838 $ 3333. The word “action ”, as used in the New 83 Hun, 420. Revision of the Statutes, when applied to judicial proceed. 155 N.Y. 141. ings, signities an ordinary prosecution, in a court of justice,

by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong,

or the punishment of a public offence. 98 N.Y. 836. & 3334. Every other prosecution by a party, for either 155 N.V.441. of the purposes specified in the last section, is a special pro

ceeding.

$ 3335. Actions are of two kinds :
1. Civil,
2. Criminal.

8 3336. A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof.

$ 3337. Every other action is a civil action

$ 3338. The party prosecuting a civil action is styled the laintiff, the adverse party is styled the defendant. § 3339. There is only one form of civil action. The 31 Abb. N.C. distinction between actions at law and suits in equity, and 134: 3 Misc. form or those actions and suits, have been abolished.

$ 3340. Each provision of this act, requiring the publication of a summons, notice, or other paper, in one or more newspapers, or authorizing or requiring a court, or a judge, to designate one or more newspapers, in which such å publication must be made, or requiring the posting of a notice or other paper, is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, prescribing one or more particular newspapers, in which such a publication must or may be made, or one or more particular places, in which notices or other legal papers must or may be posted, in a particular locality, or in a parcicular case.

$ 3341. Each provision of this act is to be construed 92 N. 7.884 as not affecting any specis provision. oi the statutes, re. maining unrepealed after the former provision takes effect, which is applicable xck: irel; to an action against the mayor, aldermen, and com vonalty of the city of New York, including the recovery entry, and collection of a judgment in such an action.

$ 3342. Each provision of Jis act, conferring power 31 Abb. N.C. upon, or authorizing a proceeding to be taken at, a general, 320; 9 Misc. special, or trial term, which is applicable to a county court, is to be construed as applying to any term of the county court, held pursuant to an appointment made as prescribed by law. $ 3343. [Am'd 1882, 1895.) In constructing this act, the 90 N. Y. 521.

141 N. Y. 479. following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof:

1. (Repealed 1895, takes effect January 1, 1896.]

?. The word “mandate”, includes a writ, process, or 10 App. Div. other written direction, issued pursuant to law, out of a 25. court, or made pursuant to law, by a court, or a judge, or a person acting as a judicial officer, and commanding a court, board, or other body, or an officer, or other person, named or otherwise designated therein, to do, or to refrain from doing, an act therein specified.

3. The word, “ julge”, includes a justice, surrogate, recorder, justice of the peace, or other judicial officer, alle thorized or required to act, or prohibited from acting, in or with respect to the matter or thing, referred to in the provision wherein that word is used.

4. The word, “ clerk”, signifies the clerk of the court, wherein the action or special proceeding is brought, or

38.

* See L. 1884, c. 133, abolishing state paper.

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