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3226. Provisions of chapter 19 generally appli cable to the court and judges.-The provisions of chapter nineteenth of this act, excluding titles tenth and eleventh thereof, apply to the municipal court of the city of Rochester, and to the judges thereof; except so far as they are inconsistent with the next section, or with any other special provision of statute, remaining unrepealed after this chapter takes effect. For the purpose of applying the same, the court is deemed a justice's court; each judge thereof is deemed a justice of the peace; and the city of Rochester is deemed a town of Monroe county.

L. 1876, ch. 196, part of 24.

§ 3227. Jurisdiction in actions upon contract. — The court has jurisdiction of an action to recover damages upon or for breach of a contract, express or implied, other than a promise to marry, where the sum claimed does not exceed four hundred dollars.

See note to last section.

683

CHAPTER XXI,

COSTS AND FEES.

TITLE I. — AWARDING AND ENFORCING

OF COSTS.

TITLE II. FIXING THE AMOUNT OF COSTS.

TITLE III.-SECURITY FOR COSTS.

PAYMENT

TITLE IV.

GENERAL
FEES.

PROVISIONS

RELATING

TO

TITLE V.-SUMS ALLOWED AS FEES.

TITLE I.

Awarding and enforcing payment of costs.

ARTICLE 1. General regulations respecting the awarding of costs. 2. Regulations respecting the awarding of costs in particular

cases.

3. Miscellaneous provisions

ARTICLE FIRST.

GENERAL REGULATIONS RESPECTING THE AWARDING OF

COSTS.

SEC. 3228. When plaintiff entitled to costs of course.

3229. When defendant entitled to costs of course.

or more defendants.

3230. When costs are discretionary.

Rule as to two

3231. Costs, where several actions are brought on same instrument,

etc.

3232. Interlocutory costs upon issue of law.

3233. Id. how collected.

3234. Costs, where there are several issues of fact.

3235. Id.; after discontinuance upon answer of title.

3236. Costs of a motion.

3237. The foregoing sections limited.

3233. Costs upon appeal from final judgment.

3239. Id.; upon appeal from interlocutory judgment or order.
3240. Id.; in a special proceeding.

§ 3228. When plaintiff entitled to costs of course.The plaintiff is entitled to costs of course, upon the

rendering of a final judgment in his favor, in either of the following actions:

1. An action, triable by a jury, to recover real prop. erty, or an interest in real property; or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial.

2. An action to recover a chattel. But if the value of the chattel, or of all the chattels, recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages.

3. An action specified in subdivision first, third, fourth, or fifth of section 2863 of this act. But if, in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, the plaintiff recovers less than fifty dollars damages, the amount of his costs 'cannot exceed the damages.

4. An action, other than one of those specified in the foregoing subdivisions of this section, in which the complaint demands judgment for a sum of money only. But the plaintiff is not entitled to costs, under this subdivision, unless he recovers the sum of fifty dollars or more.

Code of Proc., part of 304. Sheehan r. Huerstel 9 Reporter, 22: Struthers v. Christal, 3 Daly, 327; Lanz r. Trout, 46 How. 94; Warfield ". Watkins, 30 Barb. 395; Wing . N. Y. & Erie R. R. Co., 1 Hilt. 28; Sturges e. Spofford, 58 N. Y. 103; Keeler . Van Wie, 49 How. Si Boughton . Seamans, 9 Hun, 392; Bogardus v. Rechtmeyer, 3 Abb. 179; Rockfeller v. Weiderwax, 3 How. 352; Powers v. Conroy, 47 id. 84: Keeney v. Ingraham, 66 Barb. 250; Lillis r. O'Connor, 49 How. 457:8 Hun, 280; DeGraff e. Hoyt, 4 T. & C. 348; Van Wyck r. Baker, 11 Hon 309; Trust v. Person, 3 Abb. 84; Buchanan e. Morrell, 13 How. 26; People v. N. Y. C. R. R. Co., 28 Barb. 284; Wallace . Am. Lim. T. Co. 16 Hun, 404; Ryan v. Doyle, 40 How. 215; Warden r. Brown, 14 id. 37: Peet . Warth, 1 Bos.653; Landsberger r. Magnetic Telegraph Co., & Alb. 35; Vowles. Murray, 50 How. 159; Stoddard r. Clarke, 9 Abb. N S 310; Gilleland . Campbell, 18 How. 177; Glackin v. Zeller, 52 Barb, 147, 155; Stillwell r. Staples, 5 Duer, 691; 3 Abb. 365; Griffin v. Brown, How. 372; 53 Barb. 428; Boston Mills r. Eull, 1 Sweeney, 359; 6 Abb. X. S. 319; 37 How. 299; Crim v. Cronkhite, 15 id. 250; Spring Valley Shot and Lead Co. v. Jackson, 2 Sandf, 662; Hoodless r. Brundage, & How. 263; Kalte. Legnot, 3 Abb. 190; 12 How. 535; 3 Abb. 33; Pinder r. Stoothoff, 7 Abb. N. S. 433; Chapin r. Cole, 38 How, 481; Meetdr Schwieckart, 67 Barb. 599; New r. Anthony, 4 Hun, 52; Stone . Duffy, 3 Sandf, 361; Belding v. Conklin, 4 How. 196; Warner e. Ford, 17 id. 54; Wheeler e. Westgate, 4 id. 469; Cregin r. Brooklyn Crosstown R. R. Co., 19 Hun, 349; Barton v. Speis, 73 N. Y. 133; Bradner e. Howard, 73 id. 417; Whitney v. Daggett, 6 Abb. N. C. 434.

3229. When defendant entitled to costs of course.

Rule as to two or more defendants. The defendant is entitled to costs, of course, upon the rendering of final judgment, in an action specified in the last section, unless the plaintiff is entitled to costs, as therein prescribed. But where, in such an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs, of course. In that case,

costs may be awarded, in the discretion of the court, to any defendant, against whom the plaintiff is not entitled to costs, where he did not unite in an answer, and was not united in interest, with a defendant, against whom the plaintiff is entitled to costs.

Code of Proc., part of 2 305, 306. Allis. Wheeler, 56 N. Y. 50; Avery v. Hyde, 5 Week. Dig. 433; Cyther. La Fountain, 51 Barb. 186; Banta v. Marcellus, 21d. 373; Rugen r. Collins, 8 Hun, 384; Pixley v. Rockwell, 1 Sheld. 267; Walker e. Russell, 7 Abb. 452, n.; 16 How. 91; Linslay v. Deafendorf, 43 id. 90; Phipps r. Van Cott, 15 id. 110; Atkins . Lefever, 5 Abb. N. S. 221; Heye v. Robertson, 15 id. 194; Stone e. Duffy, 3 Sandf. 761; Pierce r. Brown, 40 N. Y. Supr. 398; N. Y. & N. II. R.R. Co. v. Schyler, 29 How. 89; Baily v. Johnson, 1 Daly, 62; Hall 2. Linde, 8 Abb. 341; Stafford v. Onderdonk, 8 Barb. 99; Hewett e. Velmar, 76 Ñ. Y. 330; Buell v. Gay, 13 How. 31; Bridgeport F. & M. Ins. Co., 7 Bos. 699; 12 Abb. 209; 20 How. 511; Wood v. Brooklyn Fire Ins Co., 10 1. 154; Harper v. Chamberlain, 14 Abb. 408; Castellanos r. Beauville, 2 Sandf. 670; Wilbur e. Wiltsey, 13 How. 506; Von Keller r. Schulting, 45 id. 139; Pratt v. Allen, 19 id. 450; Milligan v. Robinson, 58 id. 380; Lawrence v. Lindsay, 70 N. Y. 566; Comstock . Bayard, 2 Sandf. 705; Slater Bank v. Sturdy, 15 Abb. 75; Perry v. Livingston, 6 How. 404; Cuvler v. Coats, 10 id. 141; Knowlton v. Pierce, 41 id. 361; Budd v. Monroe, 18 Hun, 316.

3230. When costs are discretionary. - Except as prescribed in the last two sections, the court may, in its discretion, award costs to any party, upon the rendering of a final judgment,

Id., part of 306. Van Riper v. Popenhausen, 43 N. Y. 68; Taylor e. Root, 43 id. 687; Herrington v. Robertson, 71 id. 280; Church v. Kidd, 3 Hun, 251; Morris v. Wheeler, 45 N. Y. 708; Belmont v. Ponvert, 38 N. Y. Supr. 425; People v. Alb. & Susq. R. R. Co., 5 Lans. 25; 57 N. Y. 161; Pennell . Wilson, 2 Abb. N. S. 466; Hammond v. Slocum, 50 How. 415; Pratt r. Stiles, 17 id. 211; 9 Abb. 150; Calkins v. 1sbell, 20 N. Y. 147; O'Hara v. Brophy, 21 How. 379; Bartow v. Cleveland, 16 id. 364; Losee . Halsey, 13 Hun, 655; Provost v. Provost, 70 N. Y. 141; Devlin v. Mayor, 15 Abb. N.S. 31; Ireland v. Litchfield, 8 Bos. 634; 22 How. 178; Gleason . Pease, 11 Hun, 232; Newell . Wheeler, 48 N. Y. 486; Phelps r. Wood, 46 How. 1; Parker v. Laney, 58 N. Y. 469; Wood v. Brooklyn Fire Ins. Co., 10 How. 154; Barry e. Equitable L. Ass. Soc., 59 N. Y. 587; Bevier v. Schoonmaker, 29 How. 411; Rundle v. Allison, 34 N. Y. 180; Gourley v. Campbell, 66 N. Y. 169; Brown e. Brown, 41 id. 507; McLean v. Freeman, 70 id. 81; Post v. Hover, 33 id. 593; Sheehan v. Huerstel, 9 Week. Dig. 284; Barton v. Burton, 67 Barb. 459; Salmon e. Allen, 11 Hun, 29: People ex rel. r. Security Life Ins. Co., 71 N. Y. 222; Hower. Lloyd, 9 Abb. N.S. 257; Commissioners of Pilots v. Spofford, 3 Hun, 52; Krietz v. Frost, 55 Barb. 474; Woodford v. Bucklin, 14 Hun, 444; King v. Poole, 36 Barb, 242, Ayres v. Western R. R., 45 N. Y. 260; Humiston v. Ballard, 40 id. 40; Donnelly v. Libby, 1 Sweeny, 259, 257; Lossee v. Ellis, 13 Hun, 655.

3231. Costs, where several actions are brought on same instrument, etc.-Where two or more actions are brought, in a case specified in section 454 of this act, or otherwise for the same cause of action, against persons who might have been joined as defendants in one action, costs, other than disbursements, cannot be recovered, upon the final judgment, by the plaintiff, in more than one action, which shall be at his election. But this prohibition does not apply to a case where the plaintiff joins as defendants, in each action brought, all the persons liable, not previously sued, who can, with reasonable diligence, be found within the State; or, if the action is brought in a superior city court, or the marine court of the city of New-York, or a county court, within the city or county, as the case may be where the court is located.

Code of Proc., part of 304; see, also, 2 R. S. 615, 15 (2 Edm. 638).

3232. Interlocutory costs upon issue of law. Where an issue of law and an issue of fact are joined, between the same parties to the same action, and the issue of fact remains undisposed of, when an interlocutory judgment is rendered upon the issue of law; the interlocutory judgment may, in the discretion of the court, deny costs to either party, or award costs to the prevailing party, either absolutely, or to abide the event of the trial of the issue of fact.

See R. S., 28. Brown v. Leigh, 50 N. Y. 427; 13 Abb. N.S. 305; Belknap v. McIntyre, 2 Abb. Pr. 366.

$3233. Id.; how collected. - Section 779 of this act applies to interlocutory costs, awarded as prescribed in the last section, as if they were costs of a motion.

New. Palmer r. Smedley, 13 Abb. 185; Moza v. Sun Mut. Ins. Co..2 How. 6; 13 Abb. 304; Sutton v. Ray, 72 N. Y. 482; Hathaway r. Russell, 2 Law Bulletin, 55.

3234. Costs, where there are several issues of fact. In an action specified in section 3228 of this act, wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue; in which case, the plaintiff only is entitled to costs. Costs, to which a

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