TITLE III. Security for costs. SEC. 3268. When defendant may require security for costs. 3269. Id.; after action commenced. 3270. The last two sections qualified. 3271. Id.; in actions by and against executors, etc. 3273. Requisites of undertaking. 3274. Notice of exception; id., of justification. 3275. Justification of sureties. Allowance of undertaking. § 3268. When defendant may require security for costs. The defendant, in an action brought in a court of record, may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either 1. A person residing without the state; or if the action is brought in a county court, or in the city court of the city of New York, the city court of Yonkers, or the justices' court of the city of Albany, residing without the city or county, as the case may be, wherein the court is located; or 2. A foreign corporation; or 3. A person imprisoned under execution for a crime; or 4. The official assignee of a person so imprisoned, the official assignee or official trustee of a debtor; or an assignee in bankruptcy; where the action is brought upon a cause of action, arising before the assignment the appointment of the trustee, or the adjudication in bankruptcy; or 5. An infant, whose guardian ad litem has not given such security, except as otherwise provided in sections four hundred and fifty-nine and four hundred and sixty-nine of this act. From 2 R. S. 620, Part 3, ch. 10, tit. 2, §§ 1 and 2 (2 Edm. 644). Am'd by ch. 170 of 1891. See § 3270. See also 1235, Consol. Act. § 3269. Id.; after action commenced. The defendant, in a like action, may require security for costs to be given, where, after the commencement of the action, the plaintiff either 1. Ceases to be a resident of the State; or, where the action is brought in either of the local courts specified in subdivision first of the last section, ceases to be a resident of the city or county, as the case may be, wherein the court is located; or 2. Is adjudicated a bankrupt, or discharged from his debts, or exonerated from imprisonment, pursuant to a law of the State. or of the United States; or 3. Is sentenced to the State prison, for a term less than for life. From Id., § 2. § 3270. The last two sections qualified. In a case specified in either of the last two sections, if there are two or more plaintiffs, the defendant cannot require security for costs to be given, unless he is entitled to require it of all the plaintiffs. From Id. IN PR § 3271. Id.; in actions by and against executors, 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: or by an official assignee, the assignee of a receiver. or the committee of a person judicially declared to be incompetent to manage his affairs; the court may, in its discretion, require the plaintiff to give security for costs. From Co. Proc. § 317, last sentence; ch. 446 of 1874, tit. 2, § 5. § 3272. Order to give security. Where security for costs is required to be given, the court in which the action is pending, or, except in a case specified in the last section, a judge thereof, upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff within a time specified, either to pay into court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him, or at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant's attorney; and staying all other proceedings, on the part of the plaintiff, except to review or vacate the order, until the payment or filing, and notice thereof, and also, if an undertaking is given, the allowance of the same. From 2 R. S. 620, Part 3, ch. 10, tit. 2, part of § 3 (2 Edm. 644). § 3273. Requisites of undertaking. The undertaking, specified in the last section, must be executed to the defendant by one or more sureties and must be to the effect that they will pay, upon demand, to the defendant, all costs which may be awarded to him in the action. not exceeding a sum, specified in the undertaking, which must be at least two hundred and fifty dollars. From Id., § 4, as amended by ch. 305 of 1875. § 3274. Notice of exception: id., of justification. Within ten days after service of the notice of filing the undertaking, the defendant may serve upon the plaintiff's attorney a notice that he excepts to the sureties therein. Within ten days after service of such a notice, the plaintiff must serve, upon the defendant's attorney. a notice of the justification of the same or new sureties before a judge of the court, or a county judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter, and the place to be within the county where the action is triable. From Id., §§ 5 and 6, as amended by ch. 305 of 1875. § 3275. Justification of sureties. taking. Allowance of under Section 580 of this act applies to the justification of the sureties. Where the judge finds the sureties sufficient, he must annex the written examination, if any, to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk. Where the defendant fails duly to except to the sureties, the undertaking is deemed allowed, and must be indorsed and filed in like manner. From Id. § 3276. Order to give additional security. Proceedings. At any time after the allowance of an undertaking, given pursuant to such an order, or as prescribed in section three thousand two hundred and seventy-eight of this act. or after notice of the payment into court made pursuant to such an order, the court, or a judge thereof, upon satis factory proof, by affidavit, that the sum specified in the undertaking. or the amount of such payment, is insufficient; or that one or more of the sureties have died, or become insolvent, or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient for the security of the defendant: must make an order, requiring the plaintiff to give an additional undertaking or make an additional payment into court. The last four sections apply to such an order, and to the undertaking given or payment made pursuant thereto. From Id., § 4, as amended in 1875. Am'd by ch. 161 of 1891. § 3277. Effect of failure to obey order to give security. Where the plaintiff fails to comply with an order, made as prescribed in this title, or to procure the allowance of an undertaking given pursuant to such an order, the defendant is entitled to a judgment dismissing the complaint, and in his favor for costs. The defendant may apply therefor as upon a motion. From Id. § 3278. Liability of attorney, for costs in certain actions. Where a defendant is entitled to require security for costs, as prescribed in section 3268 of this act, the plaintiff's attorney is liable for the defendant's costs, to an amount not exceeding one hundred dollars, until security is given, as prescribed in this title. The plaintiff's attorney may relieve himself from that liability, although the defendant has not required security for costs to be given, by filing and procuring the allowance of an undertaking, as if an order had been made as prescribed in section 3272 of this act. From 2 R. S. 620, Part 3, ch. 10, tit. 2, §§ 7 and 8 (2 Edm. 645). § 3279. This title applies to special proceedings. The foregoing sections of this title apply to a special proceeding instituted in a court of record, in like manner as to an action: for which purpose, the prosecuting party, other than the people, or, where the special proceeding is instituted in the name of the people, upon the relation of a private corporation or individual, the relator, is deemed a plaintiff, and the adverse party, a defendant. IN F TITLE IV. General provisions relating to fees. SEC. 3280. Taking fees not prescribed by law, prohibited. 3281. Id.; for services not rendered, except, etc. 3282. Penalty for extortion. 3283. Clerk of court of appeals to account for and pay over fees. 3284. Id.; clerks of superior city courts in New York and Brooklyn. [Repealed.] 3285. Id.; certain county clerks and registers. 3286. General provision as to fees, etc., to be accounted for. 3287. Fees of certain officers to be taxed upon demand. 3288. Parties, attorneys, etc., when not allowed fees. 3289. No fee for administering certain official oaths. 3290. Certain searches to be gratuitous. 3291. Officer, etc., may charge fee paid for oath, postage, etc. 3294. Affidavit of refusal to publish, etc. 3295. Comptroller to audit certain charges. § 3280. Taking fees not prescribed by law, prohibited. Each clerk of a court must perform all the duties required of him, in the course and practice of the court, without fee or reward, except as expressly prescribed by law. Each public officer, upon whom a duty is expressly imposed by law, must execute the same without fee or reward, except where a ice or other compensation therefor is expressly allowed by law. An officer or other person, to whom a fee or other compensation is allowed by law, for any service, shall not charge or receive a greater fee or reward, for that service, than is so allowed. From 2 R. S. 650, Part 3, ch. 10, tit. 4, § 5 (2 Edm. 669); ch. 386 of 1840, § 6. § 3281. Id.; for services not rendered, except, etc. An officer, or other person, shall not demand or receive any fee or compensation, allowed to him by law for any service, unless the service was actually rendered by him; except that an officer may demand in advance his fee, where he is, by law, expressly directed or permitted to require payment thereof, before rendering the service. From Id., § 6 (2 Edm. 670). § 3282. Penalty for extortion. An officer or other person, who violates either of the provisions contained in the last two sections, is liable in addition to the punishment prescribed by law for the criminal offence, to an action in behalf of the person aggrieved in which the plaintiff is entitled to treble damages. From part of Id., § 7. 3283. Clerk of court of appeals to account for and pay over fees. The clerk of the court of appeals must, within ten days after the first day of January, and after the first day of July, in each year, render to the comptroller an accurate account, under oath, of all fees received by him for his official services, since the last account was rendered; and must pay the same into the treasury of the State. From ch. 277 of 1847, § 7. § 3284. Id.; clerks of superior city courts, in New York and Brooklyn. Repealed by ch. 946 of 1895. § 3285. Id.; certain county clerks and registers. Except as otherwise specially prescribed by law, each county clerk or register, who receives a salary, must account for, under oath, and pay to the treasurer of his county, in the manner prescribed by law. all fees, perquisites, and emoluments, received by him, for his official services. From ch. 432 of 1847, § 1; ch. 14 of 1861. § 3286. General provision as to fees, etc., to be accounted for. Where a public officer is required by law, to keep an account of, or to pay over, the fees or other moneys, received by him for official services. he must include therein all sums, received by him, to which he was entitled, by reason of any act, performed by him in his official capacity. whether the act did or did not pertain to his office, or to the business thereof. From ch. 277 of 1847, § 11 (4 Edm. 555). § 3287. Fees of certain officers to be taxed upon demand. Each county clerk or register of deeds, who claims any fees by virtue of his office; and each sheriff or coroner, who, upon the collection of an execution, or the settlement, either before or after judgment, of an action or a special proceeding, claims any tees, which have not been taxed; must, upon the written demand of the person liable to pay the same, cause them to be taxed within the county, upon notice to the person making the demand, by a justice of the supreme court, or the county judge. After such a demand is made, the officer cannot collect his fees until they have been so taxed. From 2 R. S. 652, Part 3. ch. 10, tit. 5, §§ 1 and 2 (2 Edm. 671), and ch. 127 of 1844, §§ 2 and 3 (4 Edm. 694). Am'd by ch. 946 of 1895. See § 3307. § 3288. Parties, attorneys, etc., when not allowed fees. A party to an action or a special proceeding is not entitled to a fee, for attending as a witness therein, in his own behalf, or in behalf of a party who pleads jointly, or is united in interest. with him; and an attorney or counsel, in an action or a special proceeding, is not entitled to a fee, for attending as a witness therein, in behalf of his client. From 2 R. S. 651, Part 3, ch. 10, tit. 4, § 15 (2 Edm. 671). § 3289. No fee for administering certain official oaths. An officer is not entitled to a fee, for administering the oath of office to a member of the legislature, to any military officer, to an inspector of election, clerk of the poll, or any town officer; or to more than ten cents, for administering an official oath to any other officer. From Id., § 17. 3290. Certain searches to be gratuitous. Each of the following officers, to wit: the secretary of State, the comptroller, the treasurer, the attorney-general, and the State en IN |