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For each mile necessarily travelled, going and returning, to serve or execute a mandate, the distance to be computed from the place where it is served or executed, to the place where it is returnable, unless a different rate of travel fees upon the service or execution thereof is specially prescribed by statute, ten cents. Where two or more mandates are served or executed in one special proceeding, the limitation upon the amount of travel fees specified in the last preceding subdivision applies.

2 R. S. 265,228 (2 Edm. 273), amended; also, 228, R. S.; L. 1966, ch. 692, 7 (6 Edm. 806); L. 1869, ch. 820, 1 (7 Edm. 490); L. 1873, ch. 304 21.

§ 3324. Id.; affidavit upon claim for travel fees. — A constable, who charges any travelling fees, must show, by affidavit, that the travel was necessary, to perform the service with respect to which it is charged; that no more miles are charged for, than were actually and in good faith travelled for that purpose; that he had, at the time, no other official or private business upon the route so travelled; and that the travelling fees are charged upon one mandate only, which must be attached to or described in the affidavit. The justice taxing the fees must be satisfied that the miles charged for were actually and necessarily travelled, as stated in the affidavit.

L. 1869, ch. 820, § 2 (7 Edm. 480).

3325. Justice's court, fees upon a commission.— A party recovering costs in an action before a justice of the peace, in whose behalf a commission has been issued, and who introduces in evidence a deposition taken thereunder, is entitled to recover his actual disbursements thereupon, not exceeding the following sums: commissioner's fees for taking and returning testimony, one dollar; each subpoena issued, or oath administered, by the commissioner, six cents; expense of serving each subpoena, twenty-five cents; each witness's fees for each day's attendance before the commissioner, twenty-five cents; postage for sending and returning the commission and papers annexed thereto, one dollar. L. 1841, ch. 138, 3 (4 Edm. 546).

3326. Id.; jurors' fees. - Except as otherwise specially prescribed by law, a person, notified to attend

as a juror, is entitled to twenty-five cents, for attending and serving upon the trial of an action or the hearing of a special proceeding, before a justice of the peace; and to ten cents for attending to serve, where he is not

sworn.

2 R. S. 265, 228 (2 Edm. 273); L. 1866, ch. 692, 9 (6 Edm. 806).

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3327. Id.; witnesses' fees. A witness is entitled to twenty-five cents for each day's actual attendance, before a justice of the peace, in an action or a special proceeding, or before a commissioner appointed by a justice of the peace, or before a justice of the peace taking a deposition to be used in a court, not of record, of another state, or a territory of the United States.

Part of 228, R. S., and 10 of act of 1866.

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3328. Id.; fees to be paid before services rendered. A justice of the peace, or a constable, juror, or witness, before a justice of the peace, is not obliged to render any service specified in this title, without the previous payment or tender of his fee therefor.

2 R. S. 650, part of 36 (2 Edm. 670).

3329. Id.; by whom fees to be paid.—In an action before a justice of the peace, if any services are rendered for a party, and he neglects to pay the fees allowed therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs, if he recovers costs.

New.

§ 3330. Certain special provisions excepted from this title.- The allowance of a fee, by this title, does not apply to a case, where special provision is otherwise made by statute for compensation for a particular service.

New.

3331. Provision as to change in fees. - Where an owner has, when his title takes effect, commenced the performance of a service, for which a fee is allowed by the statutes heretofore in force, he is entitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title.

New. Chesterman v. Eyland, 17 Hun, 520

§ 3332. This title applies to civil cases only. - Ex. cept as otherwise expressly prescribed therein, this title does not apply to a service rendered in a criminal action or special proceeding, in a court or before an officer.

New.

CHAPTER XXII.

DEFINITIONS AND REGULATIONS CONCERNING THE CONSTRUCTION, EFFECT, AND APPLICATION OF THIS ACT.

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General definitions, and rules of construction.

SEC. 3333. Definition of "action".

3334. Id.; "special proceeding"

3335. Division of actions into civil and criminal.

3336. Definition of "criminal action"

3337. Id.; civil action".

3338. Parties to a civil action.

3339. Only one form of civil action.

3340. Rule of construction as to publication, etc., in certain cases. 3341. Id.; as to certain special provisions relating to New-York

city.

3342. Id.; as to county court.

3313. Miscellaneous general definitions and rules of construction.

3333. Definition of "action".. - The word "action", as used in the New Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.

Code of Proc., 2. People v. Judge of Rens. Co., 13 How. 398; People v. Chadborne, 20 How. Pr. 378.

$3334. Id.; "special proceeding ". Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding. Id., 3. Belknap v. Waters, 11 N. Y. 477.

§ 3335. Division of actions into civil and criminal. - Actions are of two kinds :

1. Civil.

2. Criminal.

Id., 4.

§ 3336. Definition of "criminal action ".— A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof.

Id., 25.

3337. Id.; "civil action". Every other action is a civil action.

Id., 6.

3338. Parties to a civil action. The party prosecuting a civil action is styled the plaintiff; the adverse party is styled the defendant.

Id., § 70

§ 3339. Only one form of civil action. — There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.

Id., § 69.

3340. Rule of construction as to publication, etc., in certain cases.- Each provision of this act, requiring the publication of a summons, notice, or other paper, in one or more newspapers, or authorizing or requiring a court, or a judge, to designate one or more newspapers, in which such a publication must be made, or requiring the posting of a notice or other paper, is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former provision takes effect, prescribing one or more particular newspapers, in which such a publication must or may be made, or one or more particular places in which notices or other legal papers must or may be posted, in a particular locality, or in a particular case.

New.

3341. Id.; as to certain special provisions relating to New-York city.- Each provision of this act is to be construed as not affecting any special provision of the statutes, remaining unrepealed after the former

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