ling the undertaking, the defendant may serve upon the laintiff s attorney a notice that he excepts to the sureties herein. Within ten days after service of such a notice, he plaintiff must serve, upon the defendant's attorney, a otice of the justification of the same or new sureties before judge of the court, or a county judge, at a specified time nd place; the time to be not less than five nor more than en days thereafter, and the place to be within the county where the action is triable.

§ 3275. Section five hundred and eighty of this act pplies to the justification of the sureties. Where the judge inds the sureties sufficient, he must annex the written ex■mination, if any, to the undertaking, indorse his allownce thereon, and cause them to be filed with the clerk. Where the defendant fails duly to except to the sureties, the undertaking is deemed allowed, and must be indorsed and filed in like manner.

§ 3276. [Am'd 1891.] At any time after the allowance of an undertaking, given pursuant to such an order, or as prescribed in section three thousand two hundred and seventy-eight of this act, or after notice of the payment into court made pursuant to 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 or more of the sureties have died, or become insolvent, or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient for the security of the defendant; must make an order, requiring the plaintiff to give an additional undertaking or make an additional payment into court. The last four sections apply to such an order, and to the undertaking given or payment made pursuant thereto.

49 N. Y. Super. Ct.

(J. & S.) 95.

25 N. Y. State Rep. 810. 112 N.Y.310.

3277. Where the plaintiff fails to comply with an 48 Hun, 128. order, made as prescribed in this title, or to procure the allowance of an undertaking given pursuant to such an order, the defendant is entitled to a judgment dismissing the complaint, and in his favor for costs. The defendant may apply therefor, as upon a motion.

§ 3278. Where a defendant is entitled to require se- 2 Civ. Pro. curity for costs, as prescribed in section three thousand two 108. hundred and sixty-eight of this act, the plaintiff's attorney is liable for the defendant's costs, to an amount not exceeding one hundred dollars, until security is given, as prescribed in this title. The plaintiff's attorney may relieve himself from that liability, although the defendant has not required security for costs to be given, by filing and procuring the allowance of an undertaking, as if an order had been made as prescribed in section three thousand two hundred and seventy-two of this act.

§ 3279. The foregoing sections of this title apply to a special proceeding instituted in a court of record, in like manner as to an action; for which purpose the prosecuting

§ 1152, Consol. Act.

25 Hun, 593.

party, other than the people, or, where the special proceeding is instituted in the name of the people, upon the relation of a private corporation or individual, the relator, is deemed a plaintiff, and the adverse party, a defendant.

§ 3280. Each clerk of a court must perform all the duties required of him, in the course and practice of the court, without fee or reward, except as expressly prescribed by law. Each public officer, upon whom a duty is expressly imposed by law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law. An officer or other person, to whom a fee or other compensation is allowed by law, for any service, shall not charge or receive a greater fee or reward, for that service, than is so allowed.

§ 3281. An officer, or other person, shall not demand or receive any fee or compensation, allowed to him by law for any service, unless the service was actually rendered by him; except that an officer may demand in advance his fee, where he is, by law, expressly directed or permitted to require payment thereof, before rendering the service.

3282. An officer or other person, who violates either of the provisions contained in the last two sections, is liable, in addition to the punishment prescribed by law for the criminal offense, to an action in behalf of the person ag grieved, in which the plaintiff is entitled to treble damages.

§ 3283. The clerk of the Court of appeals must, within ten days after the first day of January, and after the first day of July, in each year, render to the comptroller an accurate account, under oath, of all fees received by him for his official services, since the last account was rendered; and must pay the same into the treasury of the State.

3284. The clerk of each of the following courts, to wit: the court of common pleas for the city and county of New York, and the superior court of the city of New York,

ust account for all fees received by him for his official ervices, and pay the same into the city treasury, as precribed by law. The clerk of the city court of Brooklyn ust account for all fines paid to him, and all fees received y him for his official services, and pay the same into the reasury of the county of Kings, as prescribed by law.

§ 3285. Except as otherwise specially prescribed by aw, each county clerk* or register,* who receives a salary, must account for, under oath, and pay to the treasurer of is county, in the manner prescribed by law, all fees, peruisites, and emoluments, received by him, for his official ervices.

§ 3286. Where a public officer is required, by law, to keep an account of, or to pay over, the fees or other noneys, received by him for official services, he must inlude therein all sums, received by him, to which he was entitled, by reason of any act, performed by him in his official capacity; whether the act did or did not pertain to his office, or to the business thereof.

§ 3287. Each county clerk or register of deeds, who claims any fees by virtue of his office; and each sheriff or coroner, who, upon the collection of an execution, or the settlement, either before or after judgment, of an action or a special proceeding, claims any fees, which have not been taxed; must, upon the written demand of the person liable to pay the same, cause them to be taxed within the county, upon notice to the person making the demand, by a justice of the supreme court, a judge of a superior city court, or the county judge. After such a demand is made, the officer cannot collect his fees, until they have been so taxed.

§ 3288. A party to an action or a special proceeding is not entitled to a fee, for attending as a witness therein, in his own behalf, or in behalf of a party who pleads jointly, or is united in interest, with him; and an attorney or counsel, in an action or a special proceeding, is not entitled to a fee, for attending as a witness therein, in behalf of his client.

§ 3289. An officer is not entitled to a fee, for administering the oath of office to a member of the legislature, to any military officer, to an inspector of election, clerk of the poll, or any town officer; or to more than ten cents, for administering an official oath to any other officer.

3290. Each of the following officers, to wit: the secretary of State, the comptroller, the treasurer, the Attorney-General, and the State engineer and surveyor, may require search to be made, in the office of either of the others, or of a county clerk, or of the clerk of a court of

* As to New York county see for law regulating county clerk, §§ 1728-1731, Consol. Act, and see for law regulating register, L. 1884, C. 531, §§ 3, 11.

26 Hun, 356. 24 N. Y.

State Rep.

356.

record, for any record, document, or paper, where he deems it necessary for the discharge of his official duties, and a copy thereof or extracts therefrom, to be made and officially certified or exemplified, without the payment of any fee or charge.

§ 3291. Where an officer or other person is required, in the course of a duty imposed upon him by law, to take an oath, to acknowledge an instrument, to cause an instrument to be filed or recorded, or to transmit a paper to another officer, he is entitled, in addition to the fees, or other compensation for the service, prescribed by law, to the fees necessarily paid by him, to the officer who administered the oath, or took the acknowledgment, or filed or recorded the instrument; and to the expense of transmitting the paper, including postage, where the transmission is lawfully made through the post-office.

§3292. Each provision of this act, requiring a judge, clerk, or other officer to transmit a paper to another officer, for the benefit of a party, is to be construed as requiring the transmission only at the request of the person so to be benefited, and upon payment by him of the fees allowed by law for the paper transmitted, or any copy or certificate connected therewith, and the expenses specified in the last section.

§ 3293. If the proprietor of each newspaper, published in a city or county, in which any notice, order, citation, or other paper is required by law to be published, refuses to publish the same, for the fees prescribed by law for the publication, it may be published in the newspaper, printed at Albany, in which legal notices are required by law to be published.* If it is required by law to be published in that newspaper, and also in another newspaper published in a city or county, and the proprietor of each newspaper in that city or county refuses to publish it for the fees so prescribed, it may be published in the newspaper, published nearest to the place, where a person is required to appear, or where an act is to be done, pursuant thereto, the proprietor of which will publish the same, for those fees. Publication, made as prescribed in this section, is as valid, as if it was made in the city or county, where the publication thereof is so required by law.

§ 3294. Where publication is made, as prescribed in the last section, elsewhere than in the city or county where it is otherwise required by law to be made, the affidavit of publication must either be accompanied with an affidavit, or contain a statement, to the effect that an application to publish the advertisement was, before such publication, made to the proprietor of each newspaper published in the city or county; that the amount of the legal fees for such publication was at the same time tendered; and that the application

*Sce L. 1884, c. 133, repealing acts providing for a state paper.

vas refused. Such an affidavit is presumptive evidence of he facts stated therein.

§ 3295. Where the fees or other charges of an officer ire chargeable to the State, they must be audited by the comptroller, and paid on his warrant, except as otherwise ¿pecially prescribed by law.

Dig. 415. 8 d. 58.

18 Daly 814 135 N.Y.470.

3296. A referee, in an action or a special proceeding, 18 Week. brought in a court of record, or in a special proceeding, taken as prescribed in title twelfth of chapter seventeenth of this act, is entitled to six dollars for each day, spent in the business of the reference; unless, at or before the commencement of the trial or hearing, a different rate of compensation is fixed, by the consent of the parties, other than those in default for failure to appear or plead, manifested by an entry in the minutes of the referee, or otherwise in writing, or a smaller compensation is fixed by the court or judge in the order appointing him.

§ 3297. [Am'd 1891.]

The fees of a referee appointed to sell real property, pursuant to a judgment in an action, are the same as those allowed to the sheriff and he is allowed the same disbursements as the sheriff. Where a referee is required to take security upon a sale, or to distribute, or apply, or ascertain and report upon the distribution or ap

102 N.Y.298,