posed of, when an interlocutory judgment is rendered upon the issue of law; the interlocutory judgment may, in the discretion of the court, deny costs to either party, or award costs to the prevailing party, either absolutely, or to abide the event of the trial of the issue of fact.

From a R. S. 617, Part 3, ch. 10, tit. 1, § 28.

§ 3233. Id.; how collected.

Section 779 of this act applies to interlocutory costs, awarded as prescribed in the last section, as if they were costs of a motion.

§ 3234. Costs where there are several issues of fact. In an action specified in section 3228 of this act, wherein the complaint sets forth separately two or more causes of action upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue; in which case, the plaintiff only is entitled to costs. Costs, to which a party is so entitled, must be included in the final judgment, by adding them to, or off-setting them against, the sum awarded to the prevailing party; or otherwise, as the case requires. But this section does not entitle a plaintiff to costs, in a case specified in subdivision fourth of section 3228 of this act, where he is not entitled to costs, as prescribed in that subdivision.

From 2 RS. 617, § 26 (2 Edm. 641).

§ 3235. Id.; after discontinuance upon answer of title. Where an action brought before a justice of the peace, or in a district court of the city of New York, or a justices' court of a city, has been discontinued, as prescribed by law, upon the delivery of an answer, showing that title to real property will come in question; and a new action, for the same cause, has been commenced in the proper court; the party, in whose favor final judgment is rendered in the new action, is entitled to costs; except that, where final judgment is rendered therein, in favor of the defendant, upon the trial of an issue of fact, the plaintiff is entitled to costs, unless it is certified, that the title to real property came in question on the trial.

From Co. Proc. § 61.

§ 3236. Costs of a motion.

Costs, upon a motion in an action, where the costs thereof are not specially regulated in this act, or upon a reference made pursuant to sections 623, 624, 827, or 1015 of this act, may be awarded, either absolutely or to abide the event of the action, or of the reference, to any party, in the discretion of the court or judge.

From Co. Proc. § 315.

§ 3237. The foregoing sections limited.

The foregoing sections of this article do not affect the recovery of costs upon an appeal.

§ 3238. Costs upon appeal from final judgment. Upon an appeal from the final judgment in an action, the recovery of costs is regulated as follows:

1. In an action specified in section 3228 of this act, the respondent is entitled to costs upon the affirmance, and the appellant upon the reversal, of the judgment appealed from; except that, where a new trial

is directed, costs may be awarded to either party, absolutely or to abide the event, in the discretion of the court.

2. In every other action, and also where the final judgment appealed from is affirmed in part, and reversed in part, costs may be awarded in like manner, in the discretion of the court.

From Co. Proc. part of § 306.

§ 3239. Id.; upon appeal from interlocutory judgment or order.

Upon an appeal from an interlocutory judgment or an order, in an action, costs are in the discretion of the court, and may be awarded absolutely, or to abide the event, except as follows:

1. Where the appeal is taken from an order, granting or refusing a new trial, and the decision upon the appeal refuses a new trial, the respondent is entitled, of course, to the costs of the appeal.

2. Where an appeal is taken from an order, refusing a new trial. and an appeal is also taken from the judgment rendered upon the trial, neither party is entitled to the costs of the appeal from the order. From Co. Proc. §§ 306 and 315.

§ 3240. Id.; in a special proceeding.

Costs in a special proceeding, instituted in a court of record, or upon an appeal in a special proceeding, taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services, in an action brought in the same court, or an appeal from a judgment taken to the same court, and in like manner.

From ch. 270 of 1854, first half of § 3 (4 Edm. 682; 5 Id., 133).
Am'd by ch. 122 of 1881.

See

2086, 2100, 2109, 2143, 2149, 2316, 2401, 2445, 2456.

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.

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

State superintendent of public instruction, and where it is certified that it appeared, upon the trial, that the defendant acted in good faith. But 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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