the damages and costs awarded thereby; and in either case with interest from the time when the judgment was rendered. [Code, § 3039, § 393. Constable not to act under execution after return day.— A constable shall not levy on or sell property, or arrest a defendant, or take possession of a chattel, by virtue of an execution, after the time limited therein for its return unless the execution has been renewed; nor shall he do any act under a renewed execution, after the expiration of the time for which it has been renewed. [Code, § 3040, without change.] § 394. Action against constable for money collected.-Where money collected by a constable on an execution is not paid over by him according to law, any person entitled thereto may maintain an action in his own name, on the instrument of security given by the constable or his sureties; and may recover therein the sum so collected, with interest from the time when it was collected. [Code, § 3041, without change.] § 395. Duty of constable whose term of office has expired.—A constable to whom an execution is delivered, whose term of office expires on or before the return day thereof, must proceed there on in the same manner as if his term of office had not expired; and he and his sureties are liable for any neglect of duty with respect to the execution; or for money collected thereunder, or for damages sustained by reason of any act done by the constable. touching the execution, in the same manner, and to the same extent, as if his term of office had not expired. [Code, § 3042, without change.] ARTICLE XIV. COSTS AND FEES. Section 405. When prevailing party to recover costs. 406. When neither party to recover costs. 407. Amount of costs limited. 408. Additional costs. 409. When defendant entitled to increased costs. 410. Last two sections applicable to certain other courts. 411. Costs on demurrer. 412. Costs in action on justices' judgment. 413. Taxation of costs. 414. Costs on judgment for one or more defendants. 115. Costs wrongfully collected may be recovered back. 416. Fees of a justice of the peace. 417. Constable's fees. 418. Affidavit on claim for travel fees. 419. Justice's court fees on a commission. 420. Jurors' fees. 421. Witnesses' fees. 422. Fees to be paid before service is rendered. 423. By whom fees to be paid. 424. Certain special provisions excepted from this ar ticle. 425. Any person may subpoena witnesses. 426. Provision for fees applies to civil actions only. Section 405. When prevailing party to recover costs.-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 fees 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 and allowances as a party is entitled to include in his costs by express provision of law. [Code, § 3074, without change, except that the word "allowances" is added to include additional costs authorized by § 408.] § 406. When neither party to recover costs.-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 jus tice for more than one hour after the summons is returnable, or after the time to which the trial has been adjourned. 2. Where the justice is disqualified for a reason specified in section 624. 3. Where the action is discontinued on the ground that the defendant is an infant, for whom a guardian ad litem has not been appointed. 4. In an action to recover one or more chattels, where the plaintiff recovers a chattel, or part of a chattel, or the value thereof, and the defendant also recovers a chattel, or part of a chattel,' which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is entitled to costs where both par ties recover, as specified in this subdivision, unless the chattel for which the defendant recovers has been replevied and delivered to the plaintiff. [Code, § 3075, without change.] § 407. Amount of costs limited.-The sum to be awarded as costs to the prevailing party, except where it is otherwise spe cially prescribed by law, is limited as follows: 1. It cannot exceed fifteen dollars, besides the fees of witnesses, where on the trial of an issue of fact or of law, either party recovers damages to the amount of fifty dollars, or one or more chattels, the value of which, as fixed, together with the damages if any amounts to fifty dollars; or, where, if the defendant recov-' ers judgment, the sum for which the plaintiff demanded judgment was fifty dollars, or the value of all the chattels, to recover which the action was brought, was stated in the complaint as fifty dollars. 2. In every other case, it cannot exceed ten dollars, besides the fees of witnesses attending from another county. But the prevailing party is entitled, in addition to the sum specified in this section, to the fees and expenses allowed by law for a commission issued to examine a witness not residing in the county or in an adjoining county; and for each adjournment exceeding one, which was granted on the application of the party against whom the judgment is rendered. [Code, § 3076, without change, except that the words "or have been omitted as unnecessary.] more § 408. Additional costs.-Where a trial has been had in a justice's court, the party in whose favor judgment is rendered, and who has appeared by registered attorney, except on appeal, is entitled in addition to costs otherwise allowed by law, to the following sums as costs, which shall be included in the judgment: 1. If the recovery exceeds one hundred dollars, ten dollars. 2. If the recovery exceeds fifty dollars, and does not exceed one hundred dollars, seven dollars. 3. If the recovery exceeds twenty-five dollars, and does not exceed fifty dollars, five dollars. 4. If the judgment is by default, by stipulation, by confession, or on an offer to compromise, one-half the foregoing sums shall be allowed as costs. 5. In an action of replevin costs shall be allowed at the forėgoing rates based on the value of the property recovered, as stated in the verdict or judgment, but in such an action the sum allowed as damages, if any, shall not be taken into consideration in determining the amount of costs. 6. If the judgment is in favor of the defendant, either on a nonsuit or on the merits, without a recovery, he is entitled to costs at the foregoing rates, based on the amount claimed in the complaint. 7. For procuring an order of arrest or a warrant of attachment, if it is not vacated, five dollars. 8. Where the testimony of a witness is taken by virtue of a commission, or of an order to take depositions, and the testimony is used on the trial, the successful party who filed interrogatories or cross-interrogatories, or who was present when the depositions were taken, is entitled to five dollars costs. [New. The statutes regulating procedure in municipal or city courts in Albany, Auburn, Buffalo, Elmira, Geneva, Hudson, Kingston, New York, North Tonawanda, Rensselaer, Rochester, Schenectady, Syracuse, Troy and Utica, provide for moderate costs, either by fixed sums, or graduated on the recovery or cause of action. This section extends these provisions with some modifications to all justices' courts. There seems to be no good reason why a party who prefers to bring his action in justices' court should not have some costs as well as if the action were brought in a court of record. It is thought that the allowance of moderate costs in justice's court will facilitate and increase business in those courts and to some extent relieve the courts of record. It will be observed that no costs are allowed unless the recov ery exceeds twenty-five dollars, and the allowance is limited to a case where a registered attorney appears in the action.] § 409. When defendant entitled to increased costs.-In either of the following cases. a defendant in whose favor a final judgment is rendered in an action wherein the complaint demands judgment for a sum of money only, or to recover a chattel; or a final order is made in a special proceeding instituted by a state writ, is entitled to recover the costs prescribed in the last section, and in addition thereto one-half thereof: 1. Where the defendant is or was a public officer, appointed or elected under the authority of the state, or a person specially appointed according to law to perform the duties of such an officer; and the action or special proceeding was brought by reason of an act done by him by virtue of his office, or an alleged omission by him to do an act which it was his official duty to perform. 2. Where the action was brought against the defendant by reason of an act done by the command of such an officer or |