ARTICLE SECOND. Taxation of costs. Sec. 3262. Costs; how taxed. 3263. Notice of taxation. 3264. Retaxation. Allowances, etc.; how computed. 3265. Review of taxation. 3267. Affidavit respecting disbursements. § 3262. Costs; how taxed. Allowances, etc.; how com. puted. Costs must be taxed by the clerk, upon the application of the party entitled thereto; except that the court may direct that interlocutory costs, or costs in a special proceeding, be taxed by a judge. The clerk must insert, in the judgment or final order. the amount of the costs, as taxed. In a case where the costs are in the discretion of the court, the report or decision, or the direction of the court for final judgment, upon a default, or after a jury trial, must specify which party or parties are ent tled to costs; but the amount of the costs must be ascertained by taxation. The allowance, specified in section 3252 of this act, must be computed by the clerk upon the taxation; but the value of property, required to be ascertained for that purpose. must be ascertained by the court, unless it has been fixed by the decision or report, or by the verdict of the jury, upon which the final judgment is entered; except that, in case of actual par tition, it must be determined by the commissioners. Co., Proc., part of §§ 311 and 309.. § 3263. Notice of taxation. Costs may be taxed, upon notice to the attorney for each adverse party, who has appeared, and is interested in reducing the amount thereof. Notice of taxation must be served, not less than five days before the taxation; unless the attorneys serving and served with the notice, all reside, or have their offices, i the city or town, where the costs are to be taxed; in which case, a notice of two days is sufficient. A copy of the bill of costs, specifying the items, with the disbursements stated in detail, must be served with the notice of taxation. Id., § 311. § 3264. Retaxation. Costs may also be taxed without notice. But where they are so taxed, notice of retaxation thereof must immediately afterwards be given as prescribed in the last section. by the party at whose instance they were taxed; in default whereof, the court must, upon the application of a party entitled to notice, direct a retaxation, with costs of the motion, to he paid by the party in default. The court may, in its discretion. upon the application of a party interested, direct a retation of costs at any time. Any sum, deducted upon a retaxation, must be credited upon the execution, or other mandate issuel to en force the judgment. § 3265. Review of taxation. A taxation or a retaxation may be reviewed by the court, upen a motion for a new taxation. The order, made upon such s n, may allow or disallow any item, objected to before the g officer, in which case, it has the effect of a new taxation; may direct a new taxation before the proper officer, specifye grounds or the proof, upon which the item may be allowed allowed by him. 66. Duty of taxing officer. officer, authorized to tax costs in an action or a special ding, must, whether the taxation is opposed, or not, exame bills presented to him for taxation; must satisfy himself all the items allowed by him are correct and legal; and strike out all charges for fees, other than the prospective es expressly allowed by law, where it does not appear that rvices, for which they are charged, were necessarily perd. S. 653, § 5 (2 Edm. 672). 37. Affidavit respecting disbursements. harge, for the attendance of a witness, cannot be allowed it an affidavit, stating the number of days of his actual ance; and, if travel fees are charged, the distance for they are allowed. A charge, for a copy of a document er, cannot be allowed, without an affidavit, stating that s actually and necessarily used, or was necessarily obtained An item of disbursements, in a bill of costs, cannot be e, in any case, unless it is verified by affidavit, and appears ve been necessarily incurred, and to be reasonable in amount. §7; Co. Proc., part of § 311. 943 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. Allowance of undertaking. § 3268. [Am'd, 1891.] When security for costs. defendant may require The defendant, in an action brought in a court of record, may require security for costs to be given, as prescribed in ths 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 NewYork, the city court of Yonkers, or the justice's court of the city of Albany, residing without the city or county, as he 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; th official assignee or official trustee of a debtor; or an assignee n 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 givensuch se curity, except as otherwise provided in sections 459 ad 469 of this act. 2 R. S. 620, § 1 (2 Edm. 644); L. 1891, ch. 170. § 3269. Id.; after action commenced. The defendant, in a like action, may require security or costs to be given, where, after the commencement of the acton, the plaintiff either 1. Ceases to be a resident of the State; or, where tu action is brought in either of the local courts specified in sullivision 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 ebts, or exonerated from imprisonment, pursuant to a law of th State, or of the United States; or 3. Is sentenced to the State prison, for a term less thanfor life. Id. § 3270. The last two sections qualified. In a case specified in either of the last two sections, there are two or more plaintiffs, the defendant cannot require ecurity for costs to be given, unless he is entitled to require it o all the plaintiffs. 1. Id.; in actions by and against executors, etc. action by or against an executor or administrator, in his -ntative capacity, or the trustee of an express trust, or a expressly authorized by statute to sue, or to be sued; or official assignee, the assignee of a receiver, or the comof a person judicially declared to be incompetent to e his affairs; the court may, in its discretion, require the f to give security for costs. Oc., part of § 317; L. 1874, ch. 446, § 5. 2. Order to give security. e security for costs is required to be given, the court in the action is pending, or, except in a case specified in the tion, a judge thereof, upon due proof, by affidavit, of the must make an order requiring the plaintiff, within a time d, either to pay into court, the sum of two hundred and llars, to be applied to the payment of the costs, if any, d against him, or, at his election, to file with the clerk ertaking, and to serve a written notice of the payment or iling upon the defendant's attorney; and staying all other ings, on the part of the plaintiff, except to review or vae order, until the payment or filing, and notice thereof, o, if an undertaking is given, the allowance of the same. 620, part of § 3 (2 Edm. 644). . Requisites of undertaking. ndertaking, specified in the last section, must be executed defendant by one or more sureties, and must be to the hat they will pay, upon demand, to the defendant, all ich may be awarded to him in the action, not exceeding specified in the undertaking, which must be at least two and fifty dollars. am'd; L. 1875, ch. 305. . Notice of exception; id. of justification. ten days after service of the notice of filing the underthe defendant may serve upon the plaintiff's attorney that he excepts to the sureties therein. Within ten days vice of such a notice, the plaintiff must serve, upon the t's attorney, a notice of the justification of the same or eties before a judge of court, or a county judge, at a time and place; the time to be not less than five nor an ten days thereafter, and the place to be within the where the action is triable. and 6, am'd. . Justification of sureties. Allowance of under 1 580 of this act applies to the justification of the surehere the judge finds the sureties sufficient, he must annex ten examination, if any, to the undertaking, indorse his e thereon, and cause them to be filed with the clerk. he defendant fails duly to except to the sureties, the ung is deemed allowed, and must be indorsed and filed in ner. and 6, am'd; L. 1875, ch. 305. § 3276. [Am'd, 1891.] Order to give additional security. Proceedings. At any time after the allowance of an undertaking, given pr suant to such an order, or as prescribed in section 3278 of the act, or after notice of the payment into court made pursuant such an order, the court, or a judge thereof, upon satisfactory proof, by affidavit, that the sum specified in the undertaking or the amount of such payment, is insufficient; or that one more of the sureties have died, or become insolvent, or that 291 or their circumstances have become so precarious that there *| reason to apprehend that the undertaking is insufficient for a security of the defendant; must make an order requiring ti plaintiff to give an additional undertaking, or make an additio payment into court. The last four sections apply to such an der, and to the undertaking given, or payment made, pursu thereto. L. 1891, ch. 161. § 3277. Effect of failure to obey order to give security. Where the plaintiff fails to comply with an order, made as scribed in this title, or to procure the allowance of an unk taking given pursuant to such an order, the defendant is entit to a judgment dismissing the complaint, and in his favor a* costs. The defendant may apply therefor, as upon a motion. 2 R. S. 620, § 4, am'd; L. 1875, ch. 305. § 3278. Liability of attorney, for costs in certain actions Where a defendant is entitled to require security for costs. prescribed in section 3268 of this act, the plaintiff's attorney a liable for the defendant's costs, to an amount not exceeding hundred dollars, until security is given, as prescribed in this t The plaintiff's attorney may relieve himself from that liabil although the defendant may not require security for costs to given, by filing and procuring the allowance of an undertak as if an order had been made as prescribed in section 3272 this act. Id., §§ 7 and 8. § 3279. This title applies to special proceedings. The foregoing sections of this title apply to a special proces ing instituted in a court of record, in like manner as to an acti for which purpose, the prosecuting party, other than the pe or, where the special proceeding is instituted in the name of people upon the relation of a private corporation or individ the relator, is deemed a plaintiff, and the adverse party, a « fendant. 946 |