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ARTICLE SECOND.

Regulations Respecting the Awarding of Costs in Particular

Cases.

SEC. 3241. Costs against the State; how paid.

3242. Costs where action brought by people, on relation of private per

son.

3243. Id.; for the benefit of a county, etc.

3244. Costs against a school officer.

3245. Id.; against a municipal corporation.

3246. Id.; by or against an executor, etc.

3247. Costs in case of transfer, etc., of cause of action,

8 3241. Costs against the State; how paid,

Where costs are awarded against the people of the State. In an action or special proceeding brought, by a public officer, pursuant to any provision of law, and the proceedings have not been stayed, by appeal or otherwise; the comptroller must draw his warrant upon the treasurer, for the payment of the costs, out of any money in the treasury, appropriated for that purpose, upon the production to him of an exemplified copy of the judgment, or order awarding the costs, and, where the amount is not fixed thereby, of a taxed bill of costs; accompanied, in either case, with a certificate of the attorney-general, to the effect that the action or special proceeding was brought pursuant to law. The fees of the clerk, for the exemplified copy, must be certified thereupon by him, and included in the warrant.

From 2 R. S. 553, Part 3, ch. 8, tit. 17, § 14 (2 Edm. 573).

§ 3242. Costs where action brought by people, on relation of private person.

Where an action is brought, in the name of the people of the State, upon the relation of a private corporation or individual, as prescribed in section 1986 of this act, a judgment awarding costs to the defendant, must award them, against the relator, in the first instance; and against the people, only in case an execution, issued thereupon against the property of the relator, is returned unsatisfied.

From Co. Proc. § 319.

§ 3243. Id.; for the benefit of a county, etc.

In an action or a special proceeding, brought in the name of the people of the State, to recover money or property, or to establish a right or claim. for the benefit of a county, city, town, or village, costs shall not be awarded against the people; but, where they are awarded to the defendant, they must be awarded against the body for whose benefit the action or special proceeding was brought.

From Co. Proc. § 320.

§ 3244. Costs against a school officer.

Costs cannot be awarded to the plaintiff, in an action against a school officer, or a supervisor, on account of an act performed by him, by virtue of, or under color of his office; or on account of a refusal or an omission to perform a duty enjoined upon him by law; where his act, refusal, or omission might have been the subject of an appeal to the

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State superintendent of public instruction, and where it is certified that it appeared, upon the trial, that the defendant acted in good faith. this section does not apply to an action for a penalty; or to an action or a special proceeding, to enforce a decision of the superintendent. From ch. 555 of 1864, tit. 13, § 6 (6 Edm. 361).

§ 3245. Id.; against a municipal corporation.

Costs cannot be awarded to the plaintiff, in an action against a municipal corporation, in which the complaint demands a judgment for a sum of money only, unless the claim, on which the action is founded, was, before the commencement of the action, presented to the board of such corporation having the power to audit the same, or to its chief fiscal officer, at least ten days before the commencement of said action. From ch. 262 of 1859, § 2 (4 Edm. 682).

Am'd by ch. 609 of 1899.

$ 3246. Id.; by or against an executor, etc.

In an action, brought by or against an executor or administrator, in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue or to be sued, costs must be awarded, as in an action by or against a person, prosecuting or defending in his own right, except as otherwise prescribed in sections 1835 and 1836 of this act; but they are exclusively chargeable upon, and collectible from the estate, fund, or person represented, unless the court directs them to be paid, by the party personally, for mismanagement or bad faith in the prosecution or defence of the action.

From Co. Proc. § 317, first sentence.

§ 3247. Costs in case of transfer, etc., of cause of action. Where an action is brought in the name of another, by a transferee of the cause of action, or by any other person, who is beneficially interested therein; or where, after the commercement of an action, the cause of action becomes, by transfer or otherwise, the property of a person, not a party to the action; the transferee, or other person so interested, is liable for costs, in the like cases, and to the same extent, as if he was the plaintiff; and, where costs are awarded against the plaintiff, the court may, by order, direct the person so liable to pay them. Except in a case where he could not have been lawfully directed to pay costs, personally, if he had been a party, as prescribed in the last section, his disobedience to the order is a contempt of court. But this section does not apply to a case where the person so beneficially interested, is the attorney or counsel for the plaintiff, if his only beneficial interest consists of a right to a portion of the sum or property recovered, as compensation for his services in the action.

From Co. Proc. § 321, and 2 R. S. 619, Part 3, ch. 10, tit. 1, § 44 (2 Edm. 643).

ARTICLE THIRD.

Miscellaneous Provisions.

SEC. 3248. Certificate entitling party to costs, or increased costs.
3249. Costs against infant plaintiff; collectible of guardian ad litem.
3250. This title not to affect special provisions of law.

§ 3248. Certificate entitling party to costs, or increased costs.

Where, upon the trial of an action, the title to real property comes in question, or any fact appears, whereby either party becomes entitled to costs, or to the increased costs specified in section 3258 of this act, the judge presiding at the trial, or the referee, must, upon the application of the party to be benefited thereby, either before or after the verdict, report, or decision is rendered, make a certificate, stating the fact. Such a certificate is the only competent evidence, as to the matter, before the taxing officer.

From 2 R. S. 553, Part 3, ch. 10, tit. 5, § 8 (2 Edm. 673).

§ 3249. Costs against infant plaintiff: collectible of guardian ad litem.

Where costs are awarded against an infant plaintiff, they may be collected, by execution or otherwise, from his guardian ad litem, in like manner, as if the latter was the plaintiff.

From Co. Proc. § 316.

§ 3250. This title not to affect special provisions of law. This title does not affect any provision contained elsewhere in this act, or in any other statute remaining unrepealed after this chapter takes effect; whereby the award of costs is specially regulated, in a particular case, otherwise than as prescribed in this title.

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TITLE II.

Fixing the amount of costs.

ARTICLE 1. Sums allowed as costs; disbursements. 2. Taxation of costs.

ARTICLE FIRST.

Sums Allowed as Costs; Disbursements.

SEC. 3251. Amount of costs generally.

3252. Additional allowance.

3253. Additional allowance to either party in difficult cases, etc.
3254. Allowances under the foregoing sections limited.

3255. Costs upon adjournment of trial.

3256. Disbursements to be included in bill of costs.

3257. Increased damages not to carry increased costs.

3258. When defendant entitled to increased costs.
3259. Increased disbursements not allowed.

3260. Costs upon a settlement.

3261. This article not to affect special provisions of law.

§ 3251. Amount of costs generally.

Costs, awarded to a party to an action, must be at the following rates: 1. To the plaintift:

For all proceedings before notice of trial, in an action specified in section four hundred and twenty of this act, fifteen dollars; in every other action, twenty-five dollars.

For each additional defendant served with the summons, not exceeding ten, two dollars; and for each necessary defendant in excess of that number served with the summons, one dollar.

For procuring the appointment of a guardian or guardian ad litem, for one or more infant defendants. ten dollars.

For procuring an order directing the service of the summons by publication thereof. or personally, without the state, on one or more defendants, ten dollars.

For procuring an injunction order or an order of arrest, ten dollars. 2. To the defendant:

For all proceedings, before notice of trial, except as otherwise prescribed in this article, ten dollars.

3. To either party; for all proceedings, after notice of trial, and before trial, except as otherwise prescribed in this article, fifteen dollars. For taking the deposition of a witness or of a party, as prescribed in section eight hundred and seventy, section eight hundred and seventy-one,_or section eight hundred and ninety-three of this act, ten dollars. For drawing interrogatories, to be annexed to a commission, or to letters rogatory, issued as prescribed in sections eight hundred and eightyeight, nine hundred and twelve, nine hundred and thirteen, and three thousand one hundred and seventy-one of this act, ten dollars. For the trial of an issue of law, twenty dollars. For the trial of an issue of fact, or the assessment of damages pursuant to section one hundred and ninety-four of this act, thirty dollars; and, where the trial necessarily occupies more than two days, ten dollars in addition thereto. For making and serving a case, twenty dollars; and, when the case necessarily contains more than fifty folios, ten dollars in addition thereto. For making and serving amendments to a case, twenty dollars. Upon

a motion for a new trial, upon a case, or an application for judgment upon a special verdict, the same sums as upon an appeal, as prescribed in subdivision fourth of this section. Upon any other motion, or upon a reference specified in section three thousand two hundred and thirtysix of this act, to each party to whom costs are awarded, a sum fixed by the court or judge, not exceeding ten dollars, besides necessary disbursements for printing and referee's fees. Where a new trial is had, pursuant to an order granting the same, or an assessment of damages pursuant to section one hundred and ninety-four of this act, is had for all proceedings after the granting of, and before the new trial. or an assessment of damages, pursuant to section one hundred ninety-four of this act, twenty-five dollars. For one term of the city court of the city of New York, at which the case is necessarily on the calendar, and for each trial term or special term, of the supreme court, or a county court. not exceeding five, at which the cause is necessarily on the calendar, excluding the term at which it is tried, or otherwise finally disposed of, ten dollars.

4. To either party, upon an appeal to the supreme court, from an inferior court; excepting upon an appeal to the supreme court from the city court of the city of New York; or upon an appeal to the appellate division of the supreme court or to the supreme court from the city court of the city of New York. taken from an interlocutory or final judgment, or from an order granting or refusing a new trial, rendered or made at a trial term of the supreme court or of the city court of the city of Nework; or upon an application to the appellate division of the supreme court for a new trial, or for judgment upon a verdict, rendered subject to the opinion of the court, or where exceptions are ordered to be heard, in the first instance, at a term of the appellate division of the supreme court. Before argum twenty dollars. argument, forty dollars. For each term of the appellate division not exceeding five, of the supreme court, at which the cause is necessarily on the calendar, excluding the term at which it is argued, or otherwise finally disposed of, ten dollars. In all appeals taken under section thirty-one hundred and eighty-nine costs awarded to the successful party shall not exceed ten dollars in addition to the taxable disburse

ments.

For

5. To either party, upon an appeal to the court of appeals. Before argument, thirty dollars. For argument sixty dollars. For each term, not exceeding ten, at which the cause is on the calendar, excluding the term at which it is argued, or otherwise finally disposed of. ten dollars. Where a judgment is affirmed by the court of appeals, the court may, in its discretion, also award damages by way of costs, for the delay, not exceeding ten per centum upon the amount of the judgment; or where it was rendered upon an appeal, upon the amount of the original judgment.

From Co. Proc. § 307.

Am'd by ch. 946 of 1895, sub. 1, am'd by ch. 226 of 1896, and sub. 3, by ch 527 of 1901.

Subd. 4, am'd by ch. 515 of 1902. In effect Sept. 1, 1902.
See § 1276, Consol. Act.

$ 3252. Additional allowance to plaintiff in foreclosure, partition, etc.

Where the action is brought to foreclose a mortgage upon real prop-. erty; or for the partition of real property; or to procure an adjudication upon a will or other instrument in writing; or to compel the determination of a claim to real property; or where, in any action, a warrant of attachment against property has been issued; the plaintiff, if a final judgment is rendered in his favor, and he recovers costs. is entitled to recover, in addition to the costs prescribed in the last section, the following percentages, to be estimated upon the amount found to be due upon the mortgage; or the value of the property partitioned, affected by the adjudication upon the will or other instrument, or the claim to which is determined; or the value of the property attached, not exceeding the sum recovered, or claimed; as the case may be:

Upon a sum, not exceeding two hundred dollars, ten per centum.
Upon an additional sum, not exceeding four hundred dollars, five per

centum.

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