judgment; with a brief statement of the amount and nature of the claims litigated by the parties. But he need not return the evidence, or any part thereof, unless he is required so to do by the special order of the appellate court.

§ 3054. Where the justice has gone out of office, he must nevertheless, make a return in the same manner, and his return has the same effect, as if he remained in office.

§ 3055. If the return is defective, the appellate court may direct the justice to make a further or amended return, as often as is necessary. The appellate court may compel the justice, by attachment, to make and file a return, or a further or amended return. The court is always open for those purposes. Where the justice has removed to another county of the State, the appellate court may compel him to make the return, as if he was still within the county where the judgment was rendered.

481.

§ 3056. If the justice dies, becomes a lunatic, absconds, 26 N. Y. removes from the State, or otherwise becomes unable to State Rep. make the return, the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the justice; and may determine the appeal, as if a return had been duly made by the justice.

3057. Where an appeal is founded upon an error in fact 49 Hun, 594. in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses; or in both methods.

§ 3058. Where the judgment of the justice is reversed 132 N. Y. 363. or modified, the appellate court may make or compel restitution of property or of a right, lost by means of the erroneous judgment; but not so as to affect the title of a purchaser, in good faith and for value, of property sold by virtue of a warrant of attachment in the action, or. an execution issued upon the judgment. In that case, the appellate court may compel the value, or the purchaseprice to be restored, or deposited to abide the event of the action as justice requires. Six days' notice of an application for an order for restitution must be given; and if the application is granted before judgment, the proper direction may be included therein.

§3059. If, upon the appeal, a sum of money is awarded to one party, and costs are awarded to the adverse party, the appellate court must set off the one against the other, and render judgment for the balance.

§ 3060. Where costs are awarded to the appellant, he may include, in the disbursements upon the appeal, the costs and fee paid to the justice upon taking the appeal; and, where the judgment rendered by the justice was against the appellant, he may also include, in those disbursements. the costs of the action, before the justice, which he would

64 How. Pr. 515.

18 N. Y.

have been entitled to recover, if the judgment of the justice had been in his favor.

§ 3061. The clerk, immediately after entering final judgment upon the determination of an appeal, must attach together and file such of the following papers, as were used upon the appeal; which constitute the judgment-roll: 1. The return of the justice, or a certified copy thereof; the notice of appeal; and the undertaking, if any has been given.

2. The verdict, report, or decision and each offer, if any, made as prescribed in article third of this title.

3. A certified copy of the judgment, together with cach notice of exceptions, or case, which is then on file.

4. Every other paper, then on file, and a certified copy of every order, which in any way involves the merits, or necessarily affects the judgment.

ARTICLE SECOND.

APPEAL WHERE A NEW TRIAL IS NOT HAD IN THE
APPELLATE COURT.

§3062. Hearing of appeal; dis

missal thereof.

3063. Judgment.

3034. When new trial in jestice's

court may be directed.

§ 3065. Id.; proceedings before

justice.

3036. Costs; when awarded.
3067. Amount of costs.

§ 3032. [Am'd 1883.] If the case is one where the appellant is not entitled to or has not demanded a new trial in the appellate court as provided in section three thousand and sixty-eight of this act, the respondent may, within twenty days of the service on him of the notice of appeal, serve upon the appellant or his attorney a written stipula tion that the judgment appealed from may be reversed with five dollars costs and disbursements of the appeal, and thereafter no further steps shall be taken in such appeal, except to enter judgment in pursuance of such stipulation for the enforcement thereof; in case such stipulation shall not be so served, the appeal may be brought to a hearing in the appellate court at any term thereof at which such an appeal can be heard, held after the return is filed, upon a notice by either party of not less than eight days. It must be placed upon the calendar, and must continue thereupon without further notice until it is finally disposed of. after being regularly placed upon the calendar, neither party brings it to a hearing before the end of the second term thereafter at which it might be noticed for hearing and heard, the court must dismiss the appeal unless it directs the same to be continued for cause shown. If the appeal is to the superior court of Buffalo it must be heard at a general term thereof.

If,

$ 3063. [Am'd 1893.] In a case specified in the last State Rep. section the appeal must be heard upon the original papers, 665. or a certified copy thereof and a copy or copies tuereof need

not be furnished for the use of the court. The appellate court must render judgment according to the justice of the

case, without regard to technical errors or defects, which do not affect the merits. It may affirm or reverse the judgment of the justice, in whole or in part, and as to any or a 1 of the parties, and for errors of law or of fact. When the appeal is to the county court of Kings county, said court may, up.. on its reversal of a judgment, order a new trial before the sime justice or before another justice of the same county to he designated in the order, and at a time and place to be specified in the order, and in such a case the costs of the appeal shall be in the discretion of the appellate court.

§ 3064. If the appeal is taken by a defendant, who 8 Civ. Pro. failed to appear before the justice, either upon the return 130. of the summons, or at the time to which the trial of the 5 N. Y. Supp. 675. action was adjourned; and he shows, by affidavit or other- 52 Iun, 318 wise, that manifest injustice has been done, and renders a satisfactory excuse for his default; the appellate court may, in its discretion, set aside the judgment appealed from, or stay proceedings thereunder, and by order direct a new trial, before the same justice, or before another justice of the same county, designated in the order, at such a time and place, specified in the order, and upon such terms, as it deems proper.

§ 3065. [Am'd 1893.] Where a new trial is directed before a justice as prescribed in the last two sections, the parties must appear before him at the time and place specified in the order of the appellate court, without service of any notice or of a copy of the order. Thereupon the like proceedings must be had in the action, as upon the return of a summons personally served.

§ 3066. Upon an appeal provided for in this article, the award of costs is regulated as follows:

1. If the appeal is dismissed, because neither party brings it to a hearing, as prescribed in this article, costs shall not be awarded to either party.

2. If the judgment is reversed for an error in fact, not affecting the merits; or if a new trial is directed, before the same or another justice, as prescribed in this article; the costs of the appeal are in the discretion of the appellate court.

3. If the judgment is affirmed, costs must be awarded to the respondent.

4. If the judgment is reversed, costs must be awarded to the appellant.

5. If the judgment is affirmed only in part, the costs, or such a part thereof, as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be awarded to either party.

§ 3067. Upon an appeal, provided for in this article, costs, when awarded, must be as follows, besides disbursements:

To the appellant, upon reversal, thirty dollars.

To the respondent, upon affirmance, twenty-five dollars.

64 How. Pr. 515.

35 Id. 218.

ARTICLE THIRD.

APPEAL FOR A NEW TRIAL IN THE APPELLATE Court.

§ 3068. [Am'd 1893.] Where an issue of fact or an issue of law was joined before the justice and the sum for which 31 Hun. 55. jud ment was demanded by either party in his pleadings excee is fifty dollars, or, where in an action to recover a chattel, the value of the property as fixed, together with the damages recovered, if any, exceeds fifty dollars, the appellant may, in his notice of appeal, except when the appeal is to the county court of Kings county, demand a new trial in the appellate court; and thereupon he is entitled thereto, whether the defendant was or was not present at the trial. An appeal from a judgment of a justice's court or by a justice of the peace in the city of Brooklyn, or any of the towns in the county of Kings must be ten and disposed of in the manner prescribed in articles first and second of this chapter and title, and not otherwise.

5 Civ. Pro.

81.

15 Week. Diz 262.

31 11. 352.

EsJd. 234. 42 Id. 207. 2 Id. 198. 3 N. Y.

951.

§ 3069. To render such an appeal effectual, the appellant must, at the time of the service of the notice of appeal upon the justice, give the undertaking required, by this title, to stay the execution of the judgment.

§ 3070. [Am'd 1885.] Upon an appeal, provided for in this article, from a judgment for a sum of money only, 9 H, 546. either party may, within fifteen days after service of the notice of appeal, serve upon the adverse party, or upon his attorney, a written offer, to allow judgment to be rendered in the appellate court, in favor of either party, for a speciState Rep. fied sum. If the offer is not accepted, it cannot be proved upon the trial. If the party, within ten days after service 129 N.Y. 555. of the offer upon him, serves upon the party making the same, or upon his attorney, written notice that he accepts the offer, he must file it, with an affidavit of service of the notice of acceptance, with the clerk of the appellate court, who thereupon inust enter judgment accordingly. Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered. If neither party make an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal.

3071. Upon an appeal, provided for in this article, after the expiration of ten days from the time of filing the justice's return, the action is deemed an action at issue in the appellate court; and all the proceedings therein, inclading the entry, enforcement, and review of the judg ment, are the same, as if the action had been commenced in the appellate court, except as otherwise specially prescribed in this chapter.

§ 8072. Either party may, at any time after the action ate Rep. is deemed at issue in the appellate court, and before the 3. trial, serve upon the adverse party, a written offer to allow

B

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, a 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 severe, 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 disbursements:

For all proceedings before notice of trial, fifteen dollars.
For all subsequent proceedings before trial, ten dollar.
For the trial of an issue of law, fifteen dollars.

For the trial of an issue of fact, twenty 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.
Costs.

§ 3074. When prevailing party to recover costs. What costs allowed.

3075. When neither party to recover costs.

3076. Amount of costs limited. 3077. Costs upon demurrer.

3078. Taxation of costs.
3079. Increased costs.

3080. Costs on judgmert for
one or more defendants.
3081. Costs wrongfully collect-
ed may be recovered
back.

§ 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 fecs, 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 either 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.