5. If the judgment is affirmed only in part, the costs, or such a part thereof, as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be awarded to either party.

Id., part of 368, 371. Jacks v. Darrin, 1 Abb. 232; Wood v. Brown, 6 Daly, 428; Snyder v. Goodrich, 2 E. D. S. 84; Chapin v. Churchill, 12 How. 367 Hahn v. Van Doren, 1 E. D. S. 411; Main v. Eagle, 1 id. 619; Logue v. Gillick, i.. 398.

3067. Amount of costs. Upon an appeal, provided for in this article, costs, when awarded, must be as follows, besides disbursements:

To the appellant, upon reversal, thirty dollars.

To the respondent, upon affirmance, twenty-five dollars.

Code of Proc., part of 71, amended.

SEC. 3068. When appellant may demand new trial in appellate court. 3069. Undertaking to be given.

3070. Offer to compromise before return.
3071. Proceedings in appellate court.

3072. Offer to compromise after return.
3073. Amount of costs.

3068. When appellant may demand new trial in appellate court. Where an issue of fact or an issue of law was joined before the justice, and the sum, for which judgment was demanded by either party in his pleading, exceeds fifty dollars; or where, in an action to recover a chattel, the value of the property, as fixed, together with the damages recovered, if any, exceeds fifty dollars; the appellant may, in his notice of appeal, demand a new trial in the appellate court; and thereupon is entitled thereto, whether the defendant was or was not present at the trial.

See Code of Proc., 352. Fowler v. Westervelt, 17 Abb. 59; 40 Barb. 374; Nellis r. Tucker, 5 Den. 82; Fuller v. Brierly, 36 How. 47; Houghton v. Kenyon, 38 id. 107; Hayes v. Kedzie, 11 Hun, 577; Ovenshire v. Adee, 27 How. 368; Merrill v. Pattison, 44 id. 289.

3069. Undertaking to be given.- To render such an appeal effectual, the appellant must, at the time of the service of the notice of appeal upon the justice,

give the undertaking required, by this title, to stay the execution of the judgment.

Id., part of 355. Kuntz v. Litz, 8 Hun, 14; Lake v. Kels, 11 Abb. N. S. 37.

§ 3070. Offer to compromise before return. Upon an appeal, provided for in this article, from a judgment for a sum of money only, the respondent may, within fifteen days after service of the notice of appeal upon him, and before the return is filed, serve upon the appellant, or his attorney, a written offer, to allow judg ment to be rendered in the appellate court, in favor of either party, for a specified sum. If the offer is not accepted, it cannot be proved upon the trial. If the appellant, within five days after service of the offer, serves upon the respondent, or his attorney, written notice that he accepts the offer, he must file it, with an affidavit of service of the notice of acceptance, with the clerk of the appellate court, who thereupon must enter judgment accordingly. In such a case, the appellant is entitled to recover his costs in the court below, and his disbursements upon the appeal, including the costs and fees, if any, paid to the justice upon taking the appeal; but neither party is entitled to costs upon the appeal. If an offer is not made, and the verdict, report, or decision, upon the appeal, is more favorable to the appellant, by the sum of ten dollars, than the verdict or decision in the court below; or if an offer is made and not accepted, and the verdict, report, or decision, upon the appeal, is more favorable to the appellant, by the sum of ten dollars, than the amount of the offer: the appellant is entitled to recover costs upon the appeal; otherwise, the respondent is entitled to recover

costs.

See Code of Proc., 371. Wallace v. Patterson, 29 How. Pr. 170: Fox v. Nellis, 25 id. 144; Loomis v. Higbie, 29 id. 232; Loveland r. Atwood, 31 id. 467; Hotchkiss v. Banks, 36 id. 61; Reed v. Moore, 31 id. 264, 309; Myers v. White, 37 id. 393; Forsyth. Ferguson, 27 id. 67; Barnard r. Pearce, 28 id. 232; Gray v. Hannah, 30 id. 155; Putnam e. Heath, id. 262; Bancroft v. Shannon, 42 id. 1; Moran v. McClearns, 43 id. 77; Wynkoop r. Halbert, 43 Barb. 266; Fults e. Wynn, 2 Lans. 153; Jones v. Cook, 11 Hun, 230; Doran v. McLaughlin, 14 id. 623; Vedder e. Van Buren, il. 250: Amsdell v. McCaffrey, 16 id. 255; Ponto r. Phelps, 36 How. Pr. 19: Baldwin v. Brown, 37 id. 385; Pike v. Johnson, 47 N. Y. 1: Smith r. Hinds, 30 How. 187: Purvis v. Gray, 39 i. 1; Finney e. Veeder, 45 Barb. 38; Chapin v. Skeels, 20 Hun, 448; Smith e. May, 2 Abb. N. S 227: Humeston v. Ballard, 39 How.93; Pearce v. Northern Central R. R. Co., 5 Week. Dig. 566; Church v. Miller, 46 How. 525.

3071. Proceedings in appellate court. Upon an appeal, provided for in this article, after the expiration of ten days from the time of filing the justice's return, the action is deemed an action at issue in the appellate court; and all the proceedings therein, including the entry, enforcement, and review of the judgment, are the same, as if the action had been commenced in the appellate court, except as otherwise specially prescribed in this chapter.

See Code of Proc., 23 364 and 366. McCann v. Sheike, 5 Week. Dig. 420; Stevens v. Benton, 2 Lans. 156; 39 How. 13; Burton v. Wheeler & Wilson Mfg Co., 5 Week. Dig. 384; Crannell v. Comstock, 12 Hun, 293; Thompson v. Pine, 5 id. 647; Reno v. Millspaugh, 14 id. 229; Shuler v. Myers, 5 Lans. 170; Coulter v. Amer. Mer. Un. Ex. Co., id. 67; Savage v. Cock, 17 Abb. 403; Lapham v. Rice, 63 Barb. 485; reversed on other grounds, 55 N. Y. 472; Cook v. Swift, 10 Abb. 212; Maxon v. Reed, 8 Hun, 618; Wavel v. Wiles, 24 N. Y. 635; Merrill v. Pattison, 44 id. 289; Beach r. Skillman, 12 Hun,' 297; Hall r. Andrews, 65 N. Y. 572; Calkins r. Power, 8 Week. Dig. 474; Fowler v. Westervelt, 40 Barb. 374; 17 Abb. 59.

3072. Offer to compromise after return.- Either party may, at any time after the action is deemed at issue in the appellate court, and before the trial, serve upon the adverse party, a written offer to allow judgment to be taken against him, for a sum, or property, or to the effect, therein specified, with or without costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken; and, if it is accepted, the action becomes severed, and may proceed against the other defendants, as if it had been originally commenced against them only. If the party receiving the offer, within ten days thereafter, serves upon the adverse party, notice that he accepts it, he may file it, with proof of acceptance; and thereupon the clerk must enter judgment accordingly. If the offer is not thus accepted, it cannot be proved upon the trial; and if the party, to whom it is made, fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.

See Code of Proc., 366.

3073. Amount of costs. Upon an appeal, provided for in this article, costs, when awarded, must be as follows, besides disbursements :

For all proceedings before notice of trial, fifteen dollars.

For all subsequent proceedings before trial, ten dollars.

For the trial of an issue of law, fifteen dollars. For the trial of an issue of fact, twenty dollars. For the argument of a motion for a new trial on a case, fifteen dollars.

For each term, not more than five, at which the appeal is regularly on the calendar, excluding the term, at which it is tried, or otherwise finally disposed of, ten dollars.

Id., part of 371, amended. O'Callaghan v. Carroll, 16 How. 327: Taylor v. Seeley, 4 How. 314; 3 C. R. 84; McLaughlin e. Smith, 3 Hun,

250.

TITLE IX.

Costs.

SEC. 3074. When prevailing party to recover costs. What costs allowed. 3075. When neither party to recover costs.

3076. Amount of costs limited.

3077. Costs upon demurrer.

3078. Taxation of costs.

3079. Increased costs.

3080. Costs on judgment for one or more defendants.

3081. Costs wrongfully collected may be recovered back.

3074. When prevailing party to recover costs. What costs allowed. Except as otherwise specially prescribed by law, a party who recovers judgment in an action in a justice's court, is entitled to costs; which must be included in the judgment. Costs consist of the fees, allowed by law, for services necessarily rendered in the action, at the request of the party entitled to costs, or paid by him, as prescribed by law; and of such other expenses, as a party is entitled to include in his costs, by express provision of law.

2 R. S. 247. 126 (2 Edm.'264); L. 1857, ch. 775,2 (4 Edm. 700); L. 1866, ch. 692, 2 (6 Edm. 803). Bronson r. Mann, 13 Johns. 460; Timmerman v. Morrison, 14 id. 369; Williams . Sherman, 15 id. 195; Dennison Collins, 1 Cow. 111.

$3075. When neither party to recover costs. — In either of the following cases, costs shall not be awarded to either party, but each party must pay his own costs:

1. Where the action is discontinued by the absence of

the justice for more than one hour, after the summons is returnable, or after the time to which the trial has been adjourned.

2. Where the justice is disqualified, for a reason specified in section 46 of this act.

3. Where the action is discontinued, upon the ground that the defendant is an infant, for whom a guardian ad litem has not been appointed.

4. In an action to recover one or more chattels, where the plaintiff recovers a chattel, or part of a chattel, or the value thereof, and the defendant also recovers a chattel, or part of a chattel, which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is entitled to costs, where both parties recover, as specified in this subdivision, unless the chattel, for which the defendant recovers, has been replevied and delivered to the plaintiff.

New. Wiert r. Cressinger, 4 Johns. 117; McCarty v. McPherson, 11 id. 407; Stoddard r. Holmes, 1 Cow. 245; Edwards v. Russell 21 Wend. 63; Low v. Rice, 8 Johns. 409; Clayton r. Per Dunn, 13 id. 218; Foot v. Morgan, I Hill, 654; Cain e. Ingham, 7 Cow. 478; Randall r. Hall, Hill & Denio, 239; Post v. Black, 5 Den. 66; Place v. Butternuts Woolen Co., 28 Barb. 503; Harvey v. Large, 51 id. 222.

$3076. Amount of costs limited. The sum to be awarded, as costs, to the prevailing party, except where it is otherwise specially prescribed by law, is limited as follows:

1. It cannot exceed ten dollars, besides the fees of witnesses, where, upon the trial of an issue of fact or of law, either party recovers damages to the amount of fifty dollars or more, or one or more chattels, the value of which, as fixed, together with the damages, if any, amounts to fifty dollars or more; or, where, if the defendant recovers judgment, the sum, for which the plaintiff demanded judgment, was fifty dollars, or more, or the value of all the chattels, to recover which the action was brought, was stated in the complaint at fifty dollars or more.

2. In every other case, it cannot exceed five dollars, besides the fees of witnesses attending from another county

But the prevailing party is entitled, in addition to the sums specified in this section, to the fees and expenses allowed by law, for a commission issued to examine a witness, not residing in the county, or in an adjoining