4 Month. L. Bul. 3. 31 Id. 10. Id. 384. thousand six hundred and thirty-six of this act, they m be computed upon the sum actually due; and if the cou thereafter grants an order, directing the sale of the rema der, or a part thereof, the percentages must be comput upon the amount then due but the aggregate of the p centages shall not exceed the sum, which would have be allowed, if the entire sum secured by the mortgage had be due, when final judgment was rendered. § 3253. In an action, brought to foreclose a mortg 30 Hun, 466. upon real property; or for the partition of real proper or in a difficult and extraordinary case, where a defens has been interposed, in any action; the court may also. its discretion, award to any party a further sum, as follows 1. In an action to foreclose a mortgage, a sum not exceea two and one-half per centum upon the sum due or claim 39 Hun, 566. to be due upon the mortgage, nor the aggregate sum of t hundred dollars. 16 Week. Dig. 480. 14 Abb. N. C. 496. 25 N. Y. State Rep. 624. 61 How. Pr. 305. 128 N. Y. 129. 133 Id. 239. 108 N.Y.237. 26 Hun, 89. § 1277, Con- 2. In any other case, specified in this section, a sum exceeding five per centum upon the sum recovered, claimed, or the value of the subject-matter involved. § 3254. But all the sums awarded to the plaintiff,! prescribed in section three thousand two hundred and fif two of this act, or to a party or two or more parties on t same side, as prescribed in the last sentence of section thr thousand two hundred and fifty-one of this act, and in sub division second of the last section, cannot exceed, in the aggregate, two thousand dollars. 3255. Where an application is made to a court ors referee, to adjourn a trial, the payment to the adverse par State Rep. of a sum not exceeding ten dollars, or, in the marine cour 34. of the city of New York, a sum not exceeding five dollar besides the fees of his witnesses, and other taxable disburse ments, already made or incurred, which are rendered it effectual by the adjournment, may be required, as a condition of granting the adjournment. 4 Civ. Pro. 148. 18 Abb. N. C. 242. 4 Dem. 385. 125 N.Y. 106. § 3256. [Am'd 1892, amendment to take effect September 1. 1892.] A party to whom costs are awarded in an action, i 91 N. Y. 374. entitled to include, in his bill of costs, his necessary di bursements, as follows: The legal fees of witnesses, and referees and other officers; the reasonable compensation o commissioners taking depositions; the legal fees for publice tion, where publication is directed, pursuant to law; the lega fees paid for a certified copy of a deposition, or other papers, recorded or filed in any public office, necessarily used or ob tained for use on the trial; stenographers' fees for minutes of testimony before a court, judge or referee; copies of opinions and charges of judges; the reasonable expenses of printing the papers for a hearing, when required by a rule of the court; prospective charges for the expenses of entering and docketing the judgment; and the sheriff's fees for receiving and returning one execution thereon, including the search for property; and such other reasonable and necessary expenses as are taxable, according to the course and practice of the court, or by express provision of law. § 3257. A plaintiff, who recovers double or other ineased damages, does not thereby become entitled to more an single costs; except where it is otherwise specially preribed by law. § 3258. In either of the following cases, a defendant, whose favor a final judgment is rendered, in an action herein the complaint demands judgment for a sum of oney only, or to recover a chattel; or a final order is ade, in a special proceeding instituted by a State writ, is titled to recover the costs, prescribed in section three housand two hundred and fifty-one of this act, and, in adition thereto, one-half thereof: 1. Where the defendant is or was a public officer, apointed or elected under the authority of the State, or a erson specially appointed, according to law, to perform the uties of such an officer; and the action or special proceedng was brought by reason of an act, done by him by virtue f 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 ▪r person, or in his aid or assistance, touching the duties of he office or appointment. 3. Where the action was brought against the defendant, or taking a distress, making a sale, or doing any other act, by or under color of authority of a statute of this State. But this section does not apply, where an officer, or other person, specified herein, unites in his answer with a person not entitled to such additional costs. § 3259. The increase, specified in the last section, does not extend to the disbursements; and an officer, witness, or juror, is not entitled to any other fee in the action, except the single fee allowed by law for his services. § 3260. Where an action, specified in section three thousand two hundred and twenty-eight of this act, is settled before judgment, no greater sum shall be demanded as costs, than at the rates prescribed by section three thousand two hundred and fifty-one of this act. § 3261. This article does not affect any provision contained elsewhere in this act, or in any other statute remaining unrepealed after this act takes effect, whereby the amount of costs is specially fixed, in a particular case, otherwise than as prescribed in this article. 2 Civ. Pro. 202. 7 N. Y. 872. ARTICLE SECOND. 3262. Costs; how taxed. Allow- puted. 3263. Notice of taxation. § 3265. Review of taxation. 3266. Duty of taxing officer. 3267. Affidavit respecting bursements. § 3262. Costs must be taxed by the clerk, upon the plication of the party entitled thereto; except that t court may direct, that interlocutory costs, or costs in special proceeding, be taxed by a judge. The clerk m insert, in the judgment or final order, the amount of t costs, as taxed. In a case where the costs are in the do cretion of the court, the report or decision, or the directio of the court for final judgment, upon a default, or after jury trial, must specify which party or parties are entitle to costs; but the amount of the costs must be ascertaine by taxation. The allowance, specified in section thre thousand two hundred and fifty-two of this act, must computed by the clerk upon the taxation: but the value property, required to be ascertained for that purpose, mus be ascertained by the court, unless it has been fixed by th decision or report, or by the verdict of the jury, upon whic the final judgment is entered; except that, in case of actua partition, it must be determined by the commissioners. § 3263. Costs may be taxed, upon notice to the attorne State Rep. for each adverse party, who has appeared, and is intereste in reducing the amount thereof. Notice of taxation mus be served, not less than five days before the taxation; unless the attorneys, serving and served with the notice, reside, or have their offices, in the city or town, where th costs are to be taxed; in which case, a notice of two day is sufficient. A copy of the bill of costs, specifying th items, with the disbursements stated in detail, must b served with the notice of taxation. 136 N.Y. 211. § 3264. Costs may also be taxed without notice. Bu where they are so taxed, notice of retaxation thereof must immediately afterwards be given, as prescribed in the las section, by the party at whose instance they were taxed; is default whereof, the court must, upon the application of s party entitled to notice, direct a retaxation, with costs of the motion, to be paid by the party in default. The court may in its discretion. upon the application of a party interested direct a retaxation of costs at any time. Any sum, de ducted upon a retaxation, must be credited upon the execu tion, or other mandate issued to enforce the judgment. § 3265. A taxation or a retaxation may be reviewed by the court, upon a motion for a new taxation. The order. made upon such a motion, may allow or disallow any item, objected to before the taxing officer, in which case, it has the effect of a new taxation; or it may direct a new taxation before the proper officer, specifying the grounds or the of, upon which the item may be allowed or disallowed him. 3266. An officer, authorized to tax costs in an action 37 Hun, 271, special proceeding, must, whether the taxation is oped, or not, examine the bills presented to him for taxa1; must satisfy himself that all the items allowed by him correct and legal; and must strike out all charges for s, other than the prospective charges expressly allowed law, where it does not appear that the services, for which ey are charged, were necessarily performed. A 3267. A charge, for the attendance of a witness, cant be allowed without an affidavit, stating the number of ys of his actual attendance; and, if travel fees are arged, the distance for which they are allowed. arge, for a copy of a document or paper, cannot be owed, without an affidavit, stating that it was actually d necessarily used, or was necessarily obtained for use. n item of disbursements, in a bill of costs, cannot be lowed, in any case, unless it is verified by affidavit, and opears to have been necessarily incurred, and to be reasonole in amount. TITLE III. Security for Costs. 3268. When defendant may §3274. Notice of exception; id., require security for 8269. Id.; after action com- qualifled. two sections 3271. Id.; in actions by and against executors, etc. 3272. Order to give security. 8273. Requisites of undertaking. § 3268. [Am'd 1891 ] of justification. The defendant, in an action brought in a court of record, may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either d. 575; 1 Civ. Pro. 15; 63 How. Pr. 377; 49 N. Y. Super. Ct. (J. & S.) 5; 29 Hun. 657; 13 Abb. N. C. 182; 3 Civ. Pro. 428; 5 Month. L. Bui. 2; 51 N. Y. Super. Ct. (J. & S.) 119; 2 How. Pr. N. S. 333; 48 Hun, 350; 15 Civ. Pro. 237; 112 N. Y. 310; 24 N. Y. State Rep. 120. 1. A person residing without the State; or if the action Es brought in a county court, or in the city court of the city of New York, the city court of Yonkers, or the justices' court of the city of Albany, residing without the city or county, as the 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; the official assignee or official trustee of a debtor; or an assignee in bankruptcy; where the action is brought upon 37 Hun, 271. 60 How. Pr. 288. § 1235, Con- 46 N. Y. 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 given such security, except as otherwise provided in sections four hundred and fifty-nine and four hundred and sixty-nine of this act. § 3269. The defendant, in a like action, may require security for costs to be given, where, after the commencement of the action, the plaintiff either 1. Ceases to be a resident of the State; or, where the action is brought in either of the local courts specified in subdivision 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 debts, or exonerated from imprisonment, pursuant to a law of the State, or of the United States; or 3. Is sentenced to the State prison, for a term less than for life. § 3270. In a case specified in either of the last two sections, if there are two or more plaintiffs, the defendant cannot require security for costs to be given, unless he is entitled to require it of all the plaintiffs. § 3271. 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 or by an official assignee, the assignee of a receiver, or the committee of a person judicially declared to be incompetent to manage his affairs; the court may, in its discretion, require the plaintiff to give security for costs. § 3272. Where security for costs is required to be given, the court in which the action is pending, or, except in a case specified in the last section, a judge thereof, upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff, within a time specified, either to pay into court, the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him, or, at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant's attorney; and staying all other proceedings, on the part of the plaintiff, except to review or vacate the order, until the payment or filing, and notice thereof, and also, if an undertaking is given, the allowance of the same. § 3273. The undertaking, specified in the last section, must be executed to the defendant by one or more sureties, and must be to the effect that they will pay, upon demand, to the defendant, all costs which may be awarded to him in the action, not exceeding a sum, specified in the undertak ing, which must be at least two hundred and fifty dollars. $ 3274. Within ten days after service of the notice of |