making and delivery of the report (Hunt v. Middlebrook, 14 How. 300; but see Torrey v. Hadley, 14 How. 357).

a. When notice is necessary.—A defendant not appearing is not entitled to notice of adjusting the costs (Richards v. Swetzer, 1 Code Rep. 117; Wilcox v. Curtis, ib. 127). But giving notice of appearance entitles the defendant to notice of adjusting the costs (Elson v. N. Y. Equit. Ins. Co. 2 Code Rep. 30; 3 How. 413; 5 How. 233). If the costs are not adjusted on the day for which notice is given, and the opposite party does not attend, the costs may be adjusted on a subsequent day without further notice (1 Johns. Cas. 32; 2 Wend. 252).

b. Where it is sworn positively that no notice of adjustment of costs has been received, it is incumbent upon the other side to show the time and manner of service (Van Wyck v. Reid, 10 How. 366).

c. What is a sufficient notice.-Service of notice on Saturday for Monday is a notice of two days. See note to § 407, post.

d. It is no objection to a notice of the adjustment of costs, that it was given before the right to recover was established, provided the right to such costs as were noticed exist at the date for which the notice was given (Anon. 4 Sand. 693). So held, where the plaintiff, in an action for money only, in anticipation of a default gave notice of adjusting the costs to which he would be entitled on taking judgment by default, for a day subsequent to the time when he could regularly enter the judgment (ib.; and see Oothout v. Rooth, 12 Johns. 151).

e. Effect of omitting notice.-The effect of omitting to give notice of adjusting the costs in the cases where the defendant is entitled thereto, is not to make the judgment irregular, but at most to entitle the opposite party to a readjustment at the cost of the party omitting to give notice (Stimson v. Huggins, 16 Barb. 658; Macomber v. Mayor of N. Y. 17 Abb. 37; Henry v. Bow, 20 How. 215; Hoffnung v. Grove, 18 Abb. 14; Champion v. Cong. Soc. 42 Barb. 441; Petrie v. Fitzgerald, 2 Abb. N. S. 354).

ƒ. Power of the clerk.-No authority is conferred on the clerk to adjust costs, except in cases of final judgment; but the court may confer such authority by a special reference to him (Eckerson v. Spoor, 3 Code Rep. 70; Morrison v. Ide, 4 How. 304; Mitchell v. Westervelt, 6 How. 268; Nellis v. De Forest, id. 413); and see 7 How. 370; 8 id. 1, 6; 6 id. 268; 11 Abb. 190; 5 Rob. 674). The clerk may tax costs on mandamus (The People v. Colborne, 20 How. 378), but not in special proceedings, as in street opening cases (Re Fourth Ave. 11 Abb. 190). The clerk is bound to perform any service lawfully required of him on being paid his fee therefor. He cannot refuse to perform the service, i. e., refuse to file a judgment-roll, because the fee for some former service remains unpaid (Purdy v. Peters, 15 Abb. 160). The clerk should examine the charges, whether they be opposed or not, and should strike out all disbursements and charges which, in his judgment, have been unnecessarily incurred (Belding v. Conklin, 4 How. 199; Stimson v. Huggins, 16 Barb. 662; 9 How. 86). If he has a doubt as to the correctness of a charge, he should correct it (Rogers v. Rogers, 2 Paige, 460).

g. Disbursements-what are not allowed.-Fees for serving subpoenas (Wheeler v. Lozee, 12 How. 446; Burnett v. Westfall, 15 id. 431); certificate of service of object of action (Benedict v. Warriner, 14 How. 568). In an action to recover the possession of lands, the surveyor's fees, in procuring the boundaries of the land (Haynes v. Mosher, 15 How. 216). The expense of exemplified copies of foreign documents (Hanel v. Baare, 9 Bosw. 682). Where a cause has been thrice tried the cost of copies of stenographer's notes of the first and second trials are not taxable (Hamilton v. Butler, 19 Abb. 446; 30 How. 36). Copy of stenographer's notes, sworn to be necessary to propose amendments to case, cost of it allowed as a disbursement (Sebley v. Nichols, 32 How. 182).

h. What are allowed.-Disbursements include the necessary expenses in executing a commission in a foreign state (Finch v. Calvert, 13 How. 13; contra, Perry v. Griffin, 7 How. 263); the fees to witnesses (Walker v. Rus

h

sell, 16 How. 91); certified copy order of reference (Toll v. Thomas, 15 How. 315); referee's fees (id.); fees for docketing judgment, and for transcripts (id.); for service of object of the action (Benedict v. Warriner, 14 id 568); for service of summons (see ante, p. 142, e.); printing a case (Wilcox v. Curtiss, 10 How. 91). A reasonable sum actually paid for service of the summons, complaint or notice of the object of the action, by any person other than the sheriff, and not exceeding the sheriff's fees for the like services, may be allowed as a disbursement (Case v. Price, 17 How. 348; 9 Abb. 111). The affidavit should show the reasonableness of the charge by stating the facts respecting such service (id.) It is proper to allow as a disbursement proper sums paid for necessary searches, and copies of papers from the clerk's office (id)

a. How stated and verified.-Where there are charges in the bill for the attendance of witnesses, the affidavit should state the respective names and places of abode and occupation of the witnesses, the distance they respectively traveled, the days they respectively actually attended, and that each of them was, or was believed to be, a material and necessary witness for the party on whose behalf he was subpoenaed (5 Hill, 595; 3 b. 457; 6 ib. 376; 2 Hall, 530; 19 Wend 82; 5 How. 458; 11 id. 160; 12 id. 446; Hicks v. Brennan, 10 Abb. 304; Taaks v. Schmidt, 25 How. 340). If the adverse party show that a number of witnesses were not called at the trial, the party asking for the expense of their attendance must explain why they are not called, or the expense of their attendance should be disallowed (6 Hill, 376; Mead v. Mallory, 27 How. 32). The clerk is not then at liberty longer to follow the ordinary affidavit (Dowling v. Bush, 6 How. 410). Allowance for attendance of nonresident witnesses (4 Sand. 719).

b. Charges for copies of papers cannot be taxed unless it be stated in the affidavit that such copies were actually and necessarily made for use or used, and it must appear that the disbursements were necessary and reasonable in amount (2 R. S. 653, §7). Where postage or other disbursements are charged in a bill of costs, each item of such disbursement, and the occasion or circumstance of the expenditure should be particularly specified (2 Paige, 459). And where papers are sent by express instead of by mail, the amount of carriage paid, not exceeding what would have been the amount of postage, may be allowed (N. Y. Trust Co. v. Davis, 10 Paige, 507).

c. Where the items of disbursement for the attendance of witnesses were particularly stated in the affidavit of disbursements, but were stated in gross in the bill of costs, and objection was made to the allowance of such items on that ground,—held, that the objection was properly overruled (Hagar v. Danforth, 8 How. 448; but see Shannon v. Brower, 2 Abb. 377).

d. Witnesses are entitled to their fees from the party at whose instance they attend, whether they are subpoenaed or not (Vence v. Speir, 18 How. 168; Taaks v. Schmidt, 25 id. 341). The fees of witnesses are "fifty cents for each day while attending any court or officer; and if the witness resides more than three miles from the place of attendance, traveling fees at the rate of four cents per mile, going and returning" (2 R. S. 643, § 16; and see Muscott v. Runge, 27 How. 85). And it is not necessary that it should be proved to the clerk, on the adjustment of the costs, that the witnesses were subpoenaed. Where no subpœna is used by a party to procure the attendance of his witnesses, persons whose fees he seeks to charge to his adversary must be his witnesses in the action. And where no subpoena is served on them they cannot be considered his witnesses, unless they were examined as such, or attended the trial as his witnesses, at his request or by agreement; such request or agreement must be stated in terms in the affidavit of their attendance, or be clearly inferable therefrom (Wheeler v. Lozee, 12 How. 446; Haynes v. Moscher, 15 id. 216; Taaks v. Schmidt, 25 id. 341). A witness residing out of the State is entitled to fees for the number of miles he travels from the boundary line within the State to the place of trial (Hinds v. Schenectady Ins. Co. 7 How. 142). This distance should be estimated by the nearest usually traveled route; and due regard should be had to his residence in the foreign State, and the place where, by

the usually traveled route, he would come to the State line. And these facts should be stated in the affidavit used on taxation. If a foreign witness travels from his residence to the place of trial for the purpose of attending as a witness, he may then be subpoenaed, and his travel fees will be allowed as a foreign witness. Otherwise, if he attends the trial not for the purpose of being a witness, although he is subpoenaed at the trial (id.; and see Howland v. Lenox, 4 Johns. 311; Moulton v. Townsend, 16 How. 306; Taaks v. Schmidt, 25 How. 341).

a. Where a witness was duly subpoenaed, his trial fees and one day's attendance paid him, and he left home to attend pursuant to his subpoena, but returned without going to the court on learning that no court would be held, the party subpœnaing him was held entitled to tax as part of his costs the fees paid to such witness (Roth v. Meads, 20 How. 287).

b. A witness subpoenaed at his temporary residence or place of business, and attending, is entitled to mileage from the place where subpoenaed, if that place is more remote than his permanent place of residence (Clark v. Staring, 4 How. 243). A witness not attending court until after the cause has been adjourned may be entitled to his fees (id.)

c. A witness actually attending in two cases between the same parties is entitled to fees in both cases (Hicks v. Breman, 10 Abb. 304).

d. An attorney of record, examined as a witness, is entitled to a witness fee for the day on which he was examined, but is not entitled to mileage (Taaks v. Schmidt, 25 How. 341).

e. Where an issue is such that the plaintiff's attorney must know the cause will be referred by the court, and he has been requested by the defendant's attorney to consent to refer it, and refused, the court at the circuit orders it to be referred, the plaintiff, on succeeding before the referee, is not entitled to charge for witnesses' fees attending that circuit (Pike v. Nash, 16 How. 53).

f. Where a defendant subpoenaed seventeen witnesses upon an issue of forgery, which had been previously found against him on a former trial of another action presenting the same issue, when he had examined twelve, but the court on the latter trial allowed him to examine five of the seventeen only,held, that he should be allowed the costs of all the seventeen witnesses (Lowerre v. Vail, 5 Abb. 227).

9. Party to the action.—A party to the action, examined as a witness, is not entitled to insert in his bill of costs the fee for his attendance as a witness (Steere v. Miller, 30 How. 7). But if one defendant attends the trial solely as a witness for his codefendant, that defendant will be entitled to charge the fee for his attendance (Walker v. Russell, 16 How. 91).

h. Review of adjustment.—A motion in the nature of an appeal from the act of the clerk may be made to the court at special term (Whipple v. Williams, 4 How. 28); and where costs are allowed to the plaintiff on an adjustment, by the clerk, to which he has no legal right, and which the defendant cannot be required to pay without a violation of the statute, and the court, at special term, deny a motion to correct the adjustment, an appeal lies to the general term (Sluyter v. Smith, 2 Bosw. 673).

i. The motion should be made promptly, and before the costs are paid (Collomb v. Caldwell, 5 How. 336; Schermerhorn v. Van Vorst, 5 How. 458; Dresser v. Wickes, 2 Abb. 460). An objection to the whole bill of costs as illegal is not available on a motion to review the taxation (The People v. Lewis, 28 How. 159; see Webb v. Crosby, 11 Paige, 193).

j. On motion in the nature of an appeal from the decision of a clerk, allowing items in a bill of costs, the affidavit in support of the motion should show that the allowance of such items was opposed, and that the items were allowed under objection (People v. Oakes, 1 How. 195; Cuyler v. Coates, 10 How. 142); or semble, that the party was debarred the opportunity to object (Goodyear v. Baird, 11 How. 377). Semble, that on the motion, only the affidavits presented to the clerk in support of the items objected to can be considered on the part of the respondent (Logan v. Thomas, 11 How. 160).

k. It is the duty of a party who is dissatisfied with the taxation, as to par

ticular items, to bring the question as to such items directly before the court by a motion on his part, although the adverse party applies for a readjustment as to other items (Rogers v. Rogers, 2 Paige, 460).

a. If the adjustment of costs by the clerk of a county court is erroneous, the remedy of a party aggrieved, is by a motion in that court in the nature of an appeal from the decision of the clerk, not by an appeal from the judgment of the court (Beattie v. Qua, 15 Barb. 132).

b. Adjustment of costs by judge at chambers.-The taxation of costs other than those in an interlocutory proceeding, by a judge at chambers is a nullity (Nellis v. De Forest, 6 How. 413; Van Schaick v. Winne, 8 id. Hanna v. Dexter, 15 Abb. 135).

6;

§ 312. Clerks' fees:

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.

c. The fee of one dollar on every trial, from the party bringing it on, is not payable until the cause is called on to be heard (Malcomb v. Jennings, 1 Code Rep. 41). Nor is this fee payable in actions referred at the circuit, and tried before referees (Benton v. Shelden, 1 Code Rep. 134).

d. The clerk is not entitled to charge for entering in the rough minutes, or in the books, any rule or order. Where either party desires a copy of an order, or of any other paper, the clerk may charge for the same at the rate of five cents for every hundred words. There can be no additional charge for the certificate, or for the signature to the certificate. This provision extends to every entry made, and to every paper filed (Re Clerk of Albany, 5 How. 11).

e. The clerk is allowed one dollar for every trial, to be paid by the party bringing it on. This extends to trials of issues of law as well as issues of fact (§ 252). The clerk is, therefore, entitled to this fee for every cause actually tried at the circuit, including demurrers (id.) and arguments at general term on questions reserved (Wilcox v. Curtiss, 10 How. 91).

f. The fee for entering judgment is not payable till the judgment is perfected (Clerk's Case, 5 How. 11). It is chargeable to the party in whose favor judgment is entered, although he may not recover costs (Burnett v. Westfall, 15 How. 430). The fee belongs to the clerk, and he may refuse to receive it (Schermerhorn v. Van Vorst, 5 How. 458).

g. The fee bill in the revised statutes, so far as it relates to clerks' fee, is repealed (The People v. Supervisors of Monroe, 15 How. 225).

h. The clerk before performing any service is entitled to insist on the payment of the fees for such service. If, however, he performs the service without insisting on payment of the fees therefor, he gives credit to the party who is bound to pay them, and must look to him personally (Purdy v. Peters, 23 How 328), and the clerk is bound to perform each service required of him on being paid his fee therefor. He cannot insist that, before performing some certain service required of him, he shall first be paid his fees for some previous service for which he has given credit (id.)

$313. Referees' fees.

The fees of referees shall be three dollars to each, for every day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation.

See note to Trial by referees, ante. p. 414 d.

§ 314. Costs on postponement of trial.

When an application shall be made to a court or referees to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement.

a. The costs, on postponing a cause at the circuit, cannot exceed $10, besides the fee of witnesses (Noxon v. Bentley, 6 How. 418). The case of Mitchell v. Westervelt (ib. 265) does not apply to a postponement under this section.

b. The costs should be paid immediately after they are ascertained, without waiting for any demand (19 Johns, 270). If the trial be postponed at the defendant's request, on condition of his paying costs, if the condition is not complied with, the plaintiff may proceed to trial (5 Hill, 516); or the court may, if the plaintiff has lost the opportunity of going to trial, enforce payment of the costs by attachment (18 Wend. 509; Bulkeley v. Keteltas, 2 Sand. 375).

c. Where the court ordered a cause postponed for the term, at defendant's instauce, on payment of costs, within twenty days, or that plaintiff have judg ment,-it was held that on default made in payment of the costs, the plaintiff might take judgment (5 Hill, 446).

§ 315. (Am'd 1849, 1857.)

Costs on a motion.

Costs may be allowed on a motion, in the discretion of the court or judge, not exceeding ten dollars, and may be absolute or directed to abide the event of the action.

d. Costs discretionary.—Costs of a motion are discretionary, and cannot be interfered with on appeal (Dennison v Dennison, 9 How. 246).

e. Order should determine amount of costs.-"The amount of costs upon interlocutory proceedings should be fixed in the order which awards them. In cases where a party is required to pay costs as the condition of granting him a favor, the order should specify the amount, or designate some officer to settle the amount. It is usual in such cases to provide in the order that the costs should be fixed by the clerk, or by one of the justices of the court, or by a county judge" (Van Schaick v. Winne, 8 How. 6; see 4 How. 283, 304; 13 How. 301).

f. Where no provision is made in an order at a general term for the taxation of the costs to be paid as the condition upon which the party is to have the benefit of the order, the proper practice is to apply at a general term for a modification of the order, so as to fix the amount of costs, or direct the payment of such amount as shall be fixed by some officer designated for that purpose (Ellsworth v. Gooding, 8 How. 1). Where a new trial is ordered, on appeal, the clerk cannot tax the costs of the appeal unless the order so directs (Pennell v. Wilson, 5 Rob. 674).