his person cannot be issued upon the judgment, but the judgment creditor may enforce the judgment against property, as if the execution, from which the judgment debtor is discharged, had been returned without his being taken. §3222. Section three thousand one hundred and thirty-one of this act applies to an action therein specified, brought in a district court of the city of New York; and costs must be allowed in such an action, as prescribed in that section, in addition to the costs allowed in a district court, by the statutory provisions remaining in force after this chapter takes effect. ARTICLE THIRD. PROVISIONS EXCLUSIVELY APPLICABLE TO THE JUSTICES' COURTS OF ALBANY AND TROY. 3223. Jurisdictions in civil actions. § 3225. Docketing judgments; execa3224. Id.; upon judgment by confestion thereupon. sion. § 3223. The justices' court of the city of Albany, and the justices' court of the city of Troy, have jurisdiction, each within the city where the court is located, of an action, of which a justice of the peace has jurisdiction, as prescribed in sections one thousand seven hundred and thirty-seven, two thousand eight hundred and sixty-one, two thousand eight hundred and sixty-two, and two thousand eight hundred and sixty-three of this act; and also of an action to recover a penalty, given by the charter, or a by-law or an ordinance of the common council of that city, where the plaintiff demands judgment for a sum, not exceeding two hundred dollars. Neither of those courts has jurisdiction of any other civil action; but this section does not affect the jurisdiction conferred, by the statutory provisions remaining in force after this chapter takes effect, upon either of those courts, in a special proceeding. § 3224. The jurisdiction of each of those courts extends also to the taking and entry of a judgment, upon the confession of a defendant, as prescribed in title sixth of chapter nineteenth of this act, where the sum confessed does not exceed five hundred dollars. 3225. The provisions of sections three thousand and seventeen to three thousand and twenty-two of this act, both inclusive, apply to a judg ment rendered in either of those courts, and to the proceedings subsequent thereto, and in the action wherein the judgment was rendered; except that the transcript, filed in the clerk's office of the county wherein the court is located, must be furnished by the clerk of the court, in which the judg ment was rendered. TITLE V. The municipal court of the city of Rochester. contract. § 3226. Provisions of chapter 19 gener- § 3227. Jurisdiction in actions upon ally applicable to the court and judges. 3226. The provisions of chapter nineteenth of this act, excluding titles tenth and eleventh thereof, apply to the municipal court of the city of Rochester, and to the judges thereof; except so far as they are inconsistent with the next section, or with any other special provision of statute, remaining unrepealed after this chapter takes effect. For the purpose of applying the same, the court is deemed a justice's court; each judge thereof is deemed a justice of the peace; and the city of Rochester is deemed a town of Monroe county. § 3227. [am'd 1881.] The municipal court of the city of Rochester has jurisdiction of an action to recover damages upon or for a breach of contract, express or implied, other than a promise to marry, when the sum claimed does not exceed five hundred dollars. TITLE CHAPTER XXI. COSTS AND FEES. I.-AWARDING AND ENFORCING PAYMENT OF COSTS. TITLE II.FIXING THE AMOUNT OF COSTS. TITLE III.-SECURITY FOR COSTS. TITLE IV.-GENERAL PROVISIONS RELATING TO FEES. TITLE V.-SUMS ALLOWED AS FEES.. TITLE I. Awarding and enforcing payment of costs. ARTICLE 1. General regulations respecting the awarding of costs. 2. Regulations respecting the awarding of costs in particular cases. 3. Miscellaneous provisions. ARTICLE FIRST. GENERAL REGULATIONS RESPECTING THE AWARDING OF COSTS. § 3228. When plaintiff entitled to costs § 3234. Costs, where there are several issues of fact. 3235. Id.; after discontinuance upon answer of title. 3236. Costs of a motion. 3237. The foregoing sections limited. 3239. Id.; upon appeal from interloc- § 3228. The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in either of the following actions : 1. An action, triable by a jury, to recover real property, or an interest in real property; or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial. 2. An action to recover a chattel. But if the value of the chattel, or of all the chattels, recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages. 3. An action specified in subdivision first, third, fourth, or fifth of section two thousand eight hundred and sixty-three of this act. But if, in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, the plaintiff recovers less than fifty dollars damages, the amount of his costs cannot exceed the damages. 4. An action, other than one of those specified in the foregoing subdivisions of this section, in which the complaint demands judgment for a sum of money only. But the plaintiff is not entitled to costs, under this subdivision, unless he recovers the sum of fifty dollars or more. 3229. The defendant is entitled to costs, of course, upon the rendering of final judgment, in an action specified in the last section, nnless the plaint iff is entitled to costs, as therein prescribed. But where, in such an action against two or more defendants, the plaintiff is entited to costs against one or more, but not against all of them, none of the defendants are entitled to costs, of course. In that case, cost may be awarded, in the discretion of the court, to any defendant, against whom the plaintiff is pot entitled to costs, where he did not unite in an answer, and was not united in interest, with a defendant, against whom the plaintiff is entitled to costs. § 3230. Except as prescribed in the last two sections, the court may, in its discretion, award costs to any party, upon the rendering of a final judgment. § 3231. Where two or more actions are brought, in a case specified in section four hundred and fifty-four of this act, or otherwise for the same cause of action, against persons who might have been joined as defendants in one action, costs, other than disbursements, cannot be recovered, upon the final judgment, by the plaintiff, in more than one action, which shall be at his election. But this prohibition does not apply to a case where the plaintiff joins as defendants, in each action brought, all the persons liable, not previously sued, who can, with reasonable diligence, be found within the State; or, if the action is brought in a superior city court, or the marine court of the city of New York, or a county court, within the city or county, as the case may be, where the court is located. § 3232. Where an issue of law and an issue of fact are joined, between the same parties to the same action, and the issue of fact remains undisposed 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. $3233. Section seven hundred and seventy-nine of this act applies to interlocutory costs, awarded as prescribed in the last section, as if they were costs of a motion. the § 3234. In an action specified in section three thousand two hundred and twenty-eight of this act, wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, 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 offsetting them against, the sum awarded to the prevailing party; or otherwise, as the case requires. But this section does not entitic a plaintiff to costs, in a case specified in subdivision fourth of section three thousand two hundred aud twenty-eight of this act, where he is not entitled to costs, as prescribed in that subdivision. 3235. 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 trial of an issue of fact the plaintiff is entitled to costs, inless it is certified, that the title to real property came in question on the rial. 3236. Costs, upon a motion in an action, where the costs thereof are ot specially regulated in this act, or upon a reference made pursuant to sections six hundred and twenty-three, six hundred and twenty-four, eight hundred and twenty-seven, or one thousand and fifteen 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. 3237. The foregoing sections of this article do not affect the recovery of costs upon an appeal. 3238. 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 three thousand two hundred and twenty-eight 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. 3239. 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. $ 3240. [am'd 1881.] 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. ARTICLE SECOND. REGULATIONS RESPECTING THE AWARDING OF COSTS IN PARTICULAR CASES. § 3241. Where costs are awarded against the people of the State, in an action or a 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 certifi cate 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 exem plified copy, must be certified thereupon by him, and included in the warrant. § 3242. 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 one thousand nine hundred and eighty-six 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. 3243. 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. § 3244. 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 omis sion 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 superintend ent 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. 3245. 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, upon which the action is founded, was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation. 3246. 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. $ 3247. 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 commencement 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. |