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c. 21, t. 1, a. 2

COSTS.

does not apply to an action for a penalty; or to an action or a
special proceeding, to enforce a decision of the superintendent.
L. 1864, ch. 555, § 6 (6 Edm. 361).

§ 3245. [Am'd, 1899.] Id.; against a municipal corpora

tion.

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, on which the action is founded, was, before the commencement of the action, presented to the board of such corporation having the power to audit the same, or to its chief fiscal officer, at least ten days before the commencement of said action.

L. 1859, ch. 262, § 2 (4 Edm. 682); L. 1886, ch. 572; L. 1899, ch. 609. 1899.

§ 3246. Id.; by or against an executor, etc.

In effect Sept. 1,

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 rom the estate, fund, or person represented, unless the court directs them to be paid, by the party personally, for mismanage ment or bad faith in the prosecution or defence of the action. Co. Proc., part of § 317.

3247. Costs in case of transfer, etc., of cause of action. Where an action is brought, in the name of another, by a transferee of the cause of action, or by the 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.

Id., § 321; 2 R. S. 619, § 44 (2 Edm. 643).

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ARTICLE THIRD.

Miscellaneous provisions.

Rec. 3248. Certificate entitling party to costs or increased costs. 3249. Costs against infant plaintiff; collectible of guardian ad 3250. This title not to affect special provisions of law.

3248. Certificate entitling party to costs or ineren

costs.

Where, upon the trial of an action, the title to real pr comes in question, or any fact appears, whereby either becomes entitled to costs, or to the increased costs spec section 3258 of this act, the judge presiding at the trial, referee, must, upon the application of the party to be be thereby, either before or after the verdict, report, or de is rendered, make a certificate, stating the fact. Such a cate is the only competent evidence, as to the matter, befor taxing officer.

2 R. S. 653, § 8 (2 Edm. 73).

§ 3249. Costs against infant plaintiff; guardian ad litem.

collectible

Where costs are awarded against an infant plaintif may be collected, by execution or otherwise, from his g ad litem, in like manner as if the latter was the plaintiff. Co. Proc., § 316; 2 R. S. 653, §§ 15 and 16. See § 469, ante.

3250. This title not to affect special provisions of This title does not affect any provision contained els in this act, or in any other statute, remaining unrepealed this chapter takes effect; whereby the award of costs is sp regulated, in a particular case, otherwise than as prescrib this title.

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Fixing the amount of costs.

Article 1. Sums allowed as costs; disbursements. 2. Taxation of costs.

ARTICLE FIRST.

Sums allowed as costs; disbursements.

Sec. 3251. Amount of costs generally.

3252. Additional allowance to plaintiff in foreclosure, partition, etc.
3253. Additional allowance to either party in difficult cases, etc.

3254. Allowances under the foregoing sections limited.

3255. Costs upon adjournment of trial.

3256. Disbursements to be included in bill of costs.

3257. Increased damages not to carry increased costs.

3258. When defendant entitled to increased costs.

3259. Increased disbursements not allowed.

3260. Costs upon a settlement.

3261. This article not to affect special provisions of law.

§ 3251. [Am’d, 1895, 1896, 1901.] Amount of costs generally. Costs, awarded to a party to an action, must be at the following rates:

1. To the plaintiff:

For all proceedings, before notice of trial, in an action specified in section 420 of this act, fifteen dollars; in every other action, twenty-five dollars.

For each additional defendant served with the summons, not exceeding ten, two dollars; and for each necessary defendant, in excess of that number, served with the summons, one dollar. For procuring the appointment of a guardian or guardian ad litem, for one or more in.ant defendants, ten dollars.

For procuring an order directing the service of the summons by publication thereof, or personally, without the state, on one or more defendants, ten dollars.

For procuring an injunction order or an order of arrest, ten dollars.

2. To the defendant:

For all proceedings before notice of trial, except as otherwise prescribed in this article, ten dollars.

3. [Am'd, 1901.] To either party:

For all proceedings, after notice of trial, and before trial, except as otherwise prescribed in this article, fifteen dollars.

For taking the deposition of a witness or of a party, as prescribed in section eight hundred and seventy, section eight hundred and seventy-one, or section eight hundred and ninety-three of this act, ten dollars.

For drawing interrogatories, to be annexed to a commission, or to letters rogatory, issued as prescribed in sections eight hundred and eighty-eight, nine hundred and twelve, nine hundred and thirteen, and three thousand one hundred and seventy-one of this act, ten dollars.

For the trial of an issue of law, twenty dollars.

For the trial of an issue of fact, or the assessment of damages pursuant to section one hundred and ninety-four of this act, thirty dollars; and, where the trial necessarily occupies more than two days, ten dollars in addition thereto.

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For making and serving a case, twenty dollars; and, when the case necessarily contains more than fifty folios, ten dollars in addition thereto.

For making and serving amendments to a case, twenty dollars. Upon a motion for a new trial, upon a case, or an application for judgment upon a special verdict, the same sums as upon an appeal, as prescribed in subdivision fourth of this section.

Upon any other motion, or upon a reference specified in section three thousand two hundred and thirty-six of this act, to each party to whom costs are awarded, a sum fixed by the court or judge, not exceeding ten dollars, besides necessary disbursements for printing and referee's fees.

Where a new trial is had, pursuant to an order granting the same, or an assessment of damages, pursuant to section one hun dred and ninety-four of this act, is had, for all proceedings afte: the granting of, and before the new trial, or an assessment of damages, pursuant to section one hundred ninety-four of this act twenty-five dollars.

For one term of the city court of the city of New York, t which the case is necessarily on the calendar, and for each trial term or special term, of the supreme court, or a county court, not exceeding five, at which the cause is necessarily on the calendar. excluding the term at which it is tried, or otherwise finally dis posed of, ten dollars.

L. 1901, ch. 527. In effect Sept. 1, 1901.

4. [Am'd, 1902.] To either party, upon an appeal to the sopreme court from an inferior court, excepting upon an appeal to the supreme court from the city court of the city of New York: or upon an appeal to the appellate division of the supreme court. or to the supreme court from the city court of the city of Nes York, taken from an interlocutory or final judgment, or from ar order granting or refusing a new trial, rendered or made at £ trial term of the supreme court or of the city court of the city ef New York; or upon an application to the appellate division of th supreme court for a new trial, or for judgment upon a verdict rendered subject to the opinion of the court, or where exception are ordered to be heard, in the first instance, at a term of the appellate division of the supreme court; before argument, twent dollars. For argument, forty dollars. For each term of the ar pellate division, not exceeding five, of the supreme court, a which the cause is necessarily on the calendar, excluding the ter at which it is argued, or otherwise finally disposed of; ten dollars. In all appeals taken under section thirty-one hundred and eighty nine costs awarded to the successful party shall not exceed te dollars in addition to the taxable disbursements.

L. 1902, ch. 515. In effect Sept. 1, 1902.

5. To either party, upon an appeal to the court of appeals: Before argument, thirty dollars.

For argument, sixty dollars.

For each term, not exceeding ten, at which the cause is on the calendar, excluding the term at which it is argued, or otherwis finally disposed of, ten dollars.

Where a judgment is affirmed by the court of appeals, the cour may, in its discretion, also award damages, by way of costs, for the delay, not exceeding ten per centum upon the amount of th judgment; or, where it was rendered upon an appeal, upon the amount of the original judgment.

Co. Proc., § 307 and 315; L. 1895, ch. 946. In effect September 1, 18%

c. 21, t. 2, a. 1

3252. Additional allowance to plaintiff in foreclosure, partition, etc.

Where the action is brought to foreclose a mortgage upon real property; or for the partition of real property; or to procure an adjudication upon a will or other instrument in writing; or to compel the determination of a claim to real property; or where, in any action, a warrant of attachment against property has been issued; the plaintiff, if a final judgment is rendered in his favor, and he recovers costs, is entitled to recover, in addition to the costs prescribed in the last section, the following percentages, to be estimated upon the amount found to be due upon the mortgage; or the value of the property partitioned, affected by the adjudication upon the will or other instrument, or the claim to which is determined; or the value of the property attached, not exceeding the sum recovered, or claimed; as the case may be.

Upon a sum, not exceeding two hundred dollars, ten per centum. Upon an additional sum, not exceeding four hundred dollars, five per centum.

Upon an additional sum, not exceeding one thousand dollars, two per centum.

Where such an action is settled before judgment, the plaintiff is entitled to a percentage upon the amount paid or secured upon In an action to forethe settlement, at one-half of those rates. close a mortgage upon real property, where a part of the mortgage debt is not due, if the final judgment directs the sale of the whole property, as prescribed in section 1637 of this act, the percentages, specified in this section, must be computed upon the whole sum, unpaid upon the mortgage. But if it directs the sale of a part only, as prescribed in section 1636 of this act, they must be computed upon the sum actually due; and if the court thereafter grants an order, directing the sale of the remainder, or a part thereof, the percentages must be computed upon the amount then due; but the aggregate of the percentages shall not exceed the sum, which would have been allowed, if the entire sum secured by the mortgage had been due, when final judgment was rendered.

Co. Proc., § 308 and 309.

See Rule 45.

Additional allow

§ 3253. [Am'd, 1896, 1898, 1899, 1903.] ance to either party in difficult cases, etc.

In an action brought to foreclose a mortgage upon real property or for the partition of real property, or in a difficult and extraordinary case, (where a defense has been interposed in an action), or, except in the first and second judicial districts, in a special proceeding by certiorari to review an assessment under article eleven of chapter nine hundred and eight of the laws of eighteen hundred and ninety-six; and the acts amending the same, the court may also, in its discretion, award to any party a further sum, as follows:

1. In an action to foreclose a mortgage, a sum not exceeding two and one-half per centum upon the sum due, or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars.

2. In any action, or special proceeding, specified in this section, where a defense has been interposed, or in an action for the partition of real property, a sum not exceeding five per centum pon the sum recovered or claimed, or the value of the subject natter involved.

Id., § 309; L. 1896, ch. 571: L. 1898, ch. 61; L. 1899, ch. 299; L. 1903, ch.
In effect May 5, 1903. See Rule 45.

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