three hundred and eight, and in actions or proceedings for the CHAP. XL. Amended by Laws of 1857, ch. 723; 1858, ch. 306; 1859, ch. 428; 1862, 9 N. Y., 370; 8 N. Y., 71; 24 B., 126; 11 B., 337; 20 How. P. R., 285; verdict or $310. When the judgment is for the recovery of money, Interest on interest from the time of the verdict or report, until judg- report ment be finally entered, shall be computed by the clerk, and allowed. added to the costs of the party entitled thereto. 16 B., 660; 9 How. P. R., 86; 8 How. P. R., 121. when clerks as to $ 311. The clerk shall insert in the entry of judgment, on Duty of the application of the prevailing party, upon five days' notice costs. to the other, except when the attorneys reside in the same city, village or town, and then upon two days' notice, the sum of the allowances for costs, as provided by this code, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking depositions, the fees of referees, and the expense of printing the papers for any hearing when required by a rule of the court. The disbursements shall be stated in detail, and verified by affidavit. A copy of the items of the costs and disbursements shall be served with a notice of adjustment. Whenever it shall be necessary to Costs, how adjust costs in any interlocutory proceeding in an action or in any special proceedings, the same shall be adjusted by the judge before whom the same may be heard, or the court before which the same may be decided or pending, or in such other manner as the judge or court may direct. As amended by Laws of 1862, ch. 460; 1857, ch. 723. 23 B., 410; 19 B., 531; 16 B., 658; 15 B., 135; 11 Ab., 154; 9 Ab., 74, $312. The clerk shall receive, On every trial, from the party bringing it on, one dollar; on entering a judgment by filing transcript, six cents; On entering judgment, fifty cents; except in courts where the clerks are salaried officers, and in such courts one dollar. He shall receive no other fee, for any services whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words. 23 B., 410; 5 How. P. R., 12. adjusted. Clerks' fees. fees. $313. The fees of referees shall be three dollars to each for Referee's every day spent in the business of the reference; but the par PART IIL Costs on ment of trial. ties may agree in writing upon any other rate of compensation. 17 How. P. R., 472; 9 Ab., 74. S 314. When an application shall be made to a court or postpone referees, to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement. Costs on motions. Costs against infant plaintiff. Costs by or against exe ministra tors. trustees, &c. 6 How. P. R., 408, 418. S315. Costs may be allowed on a motion in the discretion of the court or judge, not exceeding ten dollars, and may be absolute or directed to abide the event of the action. As amended by Laws of 1857, ch. 723. 15 How. P. R., 117; 13 How. P. R., 301; 10 How. P. R., 400; 8 How. P. R., 1; 6 How. P. R., 123; 5 How. P. R., 375; 4 How. P. R., 283; 12 Ab., 188; 10 Ab., 41; Ab., 296; 1 Ab., 123. S316. When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action shall be responsible therefor, and payment thereof may be enforced by attachment. 6 How. P. R., 233. S 317. In an action prosecuted or defended by an executor, cutors, ad administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting or defending in his own right, but such costs shall be chargeable only upon or collected of the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defense. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section forty-one, of title three, chapter six, of the second part of the Revised Statutes; and whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law. And the court may in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs. Costs on review of a inferior court in a As amended by Laws of 1852, ch. 392; 1851, ch. 479. 22 N. Y., 468; 30 B., 441; 9 B., 394; 22 How. P. R., 281, 453; 14 How. P. R., 481, 508; 12 How. P. R., 302, 306, 451; 9 How. P. R., 349; 8 How. P. R., 5; 7 How. P. R., 64; 12 Ab., 78; 11 Ab., 261; 7 Ab., 255; 6 Ab., 96. $318. When the decision of a court of inferior jurisdiction, decision of in a special proceeding, including appeals from surrogates' courts, shall be brought before the supreme court for review, special pro- such proceeding shall, for all purposes of costs, be deemed an action at issue, on a question of law, from the time the same shall be brought into the supreme court, and costs thereon ceeding. shall be awarded and collected in such manner as the court shall direct, according to the nature of the case. As amended by Laws of 1862, ch. 460. CHAP. XI actions by $319. In all civil actions prosecuted in the name of the Costs in people of this state, by an officer duly authorized for that pur- the people. pose, the people shall be liable for costs in the same cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defendant's costs; which shall not be recovered of the people, till after execution issued therefor against such private party, and returned unsatisfied. 11 B., 340; 17 How. P. R., 12. $320. In an action prosecuted in the name of the people П. of this state for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the people. 17 How. P. R., 12; 10 How. P. R., 371 4 E. D. S., 29. against as cause of $321. In actions, in which the cause of action shall, by Costs assignment after the commencement of the action, or in any signee of other manner, become the property of a person not a party to action after the action, such person shall be liable for the costs, in the brought. same manner as if he were a party, and payment thereof may be enforced by attachment. 13 Ab., 183; 7 Ab., 455. action settlement. § 322. Upon the settlement, before judgment, of any action Costs on a mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section. 30 B., 400; 19 How. P. R., 119; 17 How. P. R., 457; 10 Ab., 314; 7 TITLE XI. OF APPEALS IN CIVIL ACTIONS. CHAPTER I. Appeals in general. II. Appeals to the court of appeals. III. Appeals to the supreme court from an inferior court. IV. Appeals in the supreme court, and the superior court, and the court V. Appeal to the court of common pleas for the city and county of New CHAPTER I. APPEALS IN GENERAL. SEC. 323. Writs of error abolished, and appeals substituted. 324. Orders made out of court, how vacated or modified. 326. Parties, how designated on appeal. 327. Appeal, how made. 328. Clerk to transmit papers to appellate court. PART III. Writs of error abolished and appeals SEO. 329. Intermediate orders affecting the judgment, may be reviewed on the appeal. 330. Judgment on appeal. 331. Certain appeals to be within sixty days; others within two years. 332. Other appeals within thirty days. $323. Writs of error in civil actions, as they have heretofore existed, are abolished, and the only mode of reviewing a substituted. judgment, or order, in a civil action, shall be that prescribed by this title. Orders made out of court, how vacated or modified. Who may appeal. Parties, 13 N. Y., 308; 24 B., 149; 13 Ab., 183; 7 Ab., 362; 4 Ab., 92, 287, 403. $324. An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made. 9 B., 387; 20 How. P. R., 441; 13 How. P. R., 439; 8 How. P. R., 440; 6 How. P. R., 108; 5 How. P. R., 386; 12 Ab., 293. $325. Any party aggrieved may appeal in the cases prescribed in this title. 13 N. Y., 308; 28 B., 306; 16 B., 235; 10 How. P. R., 371; 8 Ab., 50; 2 Ab., 209, 390; 4 E. D. S., 29. S326. The party appealing, shall be known as the appelhow desig lant, and the adverse party as the respondent. But the title of the action shall not be changed, in consequence of the appeal. nated on appeal Appeal, how made. Clerk to transmit papers to appellate court. Intermedi 1 N. Y., 611; 8 How. P. R., 140. $327. An appeal must be made by the service of a notice in writing, on the adverse party, and on the clerk, with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof. When a party shall give in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just. 8 B., 309; 17 How. P. R., 123; 11 How. P. R., 131; 7 How. P. R., 137; 5 How. P. R., 310, 361; 10 Ab., 455; 4 Ab., 134; 2 Hilt., 335. S328. Upon the appeal allowed by the second and third chapters of this title being perfected, the clerk with whom the notice of appeal is filed, shall, at the expense of the appellant, forthwith transmit to the appellate court a certified copy of the notice of appeal and of the judgment roll, or, if the appeal be from an order or any part thereof, a certified copy of such order and of the papers upon which the order was granted. As amended by Laws of 1858, ch. 306; see post, Laws of 1863, ch. 392. 4 N. Y., 417; 2 N. Y., 567; 8 How. P. R., 328; 3 Ab., 388. $329. Upon an appeal from a judgment, the court may ate orders review any intermediate order, involving the merits, and necessarily affecting the judgment. affecting the judg ment may be reviewed on the appeal. 13 N. Y., 308; 7 B., 582; 9 How. P. R., 361; 13 Ab., 387; 10 Ab., 455. $ 330. Upon an appeal from a judgment or order, the appelon appeal. late court may reverse, affirm or modify the judgment or order appealed from in the respect mentioned in the notice of Judgment appeal, and as to any or all of the parties, and may, if neces- 6 N. Y., 106; 29 B., 88; 19 B., 187; 8 B., 421; 13 Ab., 183; 11 Ab., CHAP. XL. appeals sixty days; § 331. The appeal to the court of appeals, under subdivision Certain two, of section eleven of this Code, must be taken within sixty within days after written notice of the order shall have been given others with to the party appealing; every other appeal allowed by the in two second and third chapters of this title, must be taken within two years after the judgment shall be perfected, by filing the judgment roll. As amended by Laws of 1858, ch. 306; 1857, ch. 723. years. $332. The appeal allowed by the fourth chapter of this title, Other ap peals withmust be taken, within thirty days, after written notice of the in thirty judgment or order shall have been given to the party appealing. 11 N. Y., 275; 18 How. P. R., 324; 16 How. P. R., 386, 402; 12 Ab., days. CHAPTER II. APPEALS TO THE COURT OF APPEALS. SEC. 333. In what cases. 334. On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless waived. 335. On judgment for money, security to stay execution. 336. If judgment be to deliver documents, they must be deposited. 337. If to execute conveyance, it must be executed and deposited. 338. Security where judgment is to deliver property, or for a sale of mortgaged premises. 339. Stay of proceedings upon security given. 340. Undertakings may be in one instrument, or several. 341. Security to be approved and to justify. 342. Perishable property may be sold, notwithstanding appeal. 343. Undertaking must be filed. § 333. An appeal may be taken to the court of appeals in In what the cases mentioned in section eleven. When any of the cases. courts mentioned therein shall, at general term, render judgment upon a verdict taken subject to the opinion of the court, the questions or conclusions of law, together with a concise statement of the facts upon which they arose, shall be prepared by and under the direction of the court, and shall be filed with the judgment roll, and be deemed a part thereof, for the purposes of a review in the court of appeals. As amended by Laws of 1857, ch. 723, § 19. 6 N. Y., 465; 2 N. Y., 567; 7 B., 582; 9 How. P. R., 304; 6 Ab., 127. *Laws 1857, ch. 723, sec. 20. The provisions of the last preceding section shall apply to any Judgment therein mentioned that has been heretofore rendered, and upon which an appeal has been brought and is now pending, or upon which an appeal shall hereafter be brought. When the return has already been filed with the clerk of the court of appeals, such statement shall be fled with him, and be deemed a part of such return. |