must be ascertained by the court, unless it has been fixed by the decision or report, or by the verdict of the jury, upon which the final judgment is entered; except that, in case of actual partition, it must be determined by the commissioners.

Code of Proc., part of 311 and 309. Brown v. Leigh, 50 N. Y. 7:1 Abb. N. S. 305; Kelly v. Plum, 50 How. 236; Cochran's Executor r. Ingersoll, 11 Hun, 342; Chase v. Miser, 67 Barb. 441; Chapin r. Churchill, 12 How. 367; Olcott v. McLean, 11 Hun, 394; Ballou e. Parsons, N.Y. 673: 52 How. 164; 67 Barb. 19: Lultgor v. Walters, 64 id. 417; Huat Middlebrook, 14 How. 300; Baily v. Stone, 41 id. 346; Lynch r. Meyers,3 Daly, 256; Matter of Hudson Ave., 2 Hun, 580; 62 N. Y. 611: Curtis t. Leavitt, 1 Abb. 118; Buck v. City of Brockport, 43 How. 283; Pittman . Mayor, 3 Hun, 370; 62 N. Y. 637 Agricultural Ins. Co. v. Bean, 43 How. 444; Cochran v. Gottwald, 41 N. Y. Super. Ct. 317; Hanna r. Dexter, 15 Abb. 135; People ex rel. Bergen, 9 Hun, 202; Brown e. Windmuller. 36 N. Y. Super. Ct. 75; People ex rel. Colborne, 20 How. 378; Re Fourth Ave, 11 Abb. 189; Wheelock v. Hotchkiss, 18 How.468; Hanna e. Dexter, 15 Abb. 135.

§ 3263. Notice of taxation. -- Costs may be taxed, upon notice to the attorney for each adverse party, who has appeared, and is interested in reducing the amount thereof. Notice of taxation must be served, not less than five days before the taxation; unless the attor neys, serving and served with the notice, all reside, or have their offices, in the city or town, where the costs are to be taxed; in which case, a notice of two days is sufficient. A copy of the bill of costs, specifying the items, with the disbursements stated in detail, must be served with the notice of taxation.

Code of Proc., 311. Cooper v. Astor, 1 Johns. Cas. 32; Van Wycke Reid, 10 How. 366; Oothout v. Rooth, 12 Johns. 151; Anonymous, 4 Sandf. 693; Whitney v. Townsend, 67 N. Y. 40.

§ 3264. Retaxation.-Costs may also be taxed with out notice. But where they are so taxed, notice of retaxation thereof must immediately afterwards be given, as prescribed in the last section, by the party at whose instance they were taxed; in default whereof, the court must, upon the application of a party entitled to notice, direct a retaxation, with costs of the motion, to be paid by the party in default. The court may, in its discre tion, upon the application of a party interested, direct a retaxation of costs at any time. Any sum, deducted upon a retaxation, must be credited upon the execution, or other mandate issued to enforce the judgment.

New. Stimson v. Huggins, 16 Barb. 658; Macomber r. Mayor of New York, 17 Abb. Pr. 35; Henry . Bow, 20 How. Pr. 215; Hoffnung Grove, 18 Abb. Pr. 142; Champion v. Plymouth Cong. Soc., 42 Barb. 441;

Petrie . Fitzgerald, 2 Abb. N. S. 354; Watson v. Gardiner, 50 N. Y. 671; Guckenheimer v. Angevine, 16 Hun, 453; Wilde v. N. Y. C. & H. R. R. R. Co., 43 N. Y. Super. Ct. 269.

3265. Review of taxation.-A taxation or a retaxation may be reviewed by the court, upon a motion for a new taxation. The order, made upon such a motion, may allow or disallow any item, objected to before the taxing officer, in which case, it has the effect of a new taxation; or it may direct a new taxation before the proper officer, specifying the grounds or the proof, upon which the item may be allowed or disallowed by him.

New. Beattie v. Qua, 15 Barb. 132; Whipple v. Williams, 4 How. 28; Mayor v. Cornell, 9 Hun, 215; Rogers v. Rogers, 2 Paige, 458; Jones v. Cook, 11 Hun, 230; Dresser v. Brooks, 2 N. Y. 559; 4 How, 207; Baily v. Stone, 41 id. 346; Penfield v. Jones, 4 Hun, 69; Dresser r. Wicks, 2 Abb. 460; Schermerhorn r. Van Vorst, 5 How. 458; Callomb v. Caldwell, id. 336; Murdock e. Adams, 10 Hun, 566; Corbett v. De Comeau, 45 N. Y. Super. Ct. 587; Dietz v. Farish, 43 id. 87; Sluyter v. Smith, 2 Bosw. 673; McLean v. Hoyt, 56 How. 351; Logan r. Thomas, 11 id. 160; Webb v. Crosby, 11 Paige, 193; People ex rel. Lewis, 28 How. 159; Agricultural Ins. Co. v. Bean, 45 id.444; Goodyear v. Baird, 11 id. 377; Cuyler v. Coates, 10 d. 142; Guckenheimer v. Angevine, 16 Hun, 453.

3266. Duty of taxing officer.-An officer, authorized to tax costs in an action or a special proceeding, must, whether the taxation is opposed, or not, examine the bills presented to him for taxation; must satisfy himself that all the items allowed by him are correct and legal; and must strike out all charges for fees, other than the prospective charges expressly allowed by law, where it does not appear that the services, for which they are charged, were necessarily performed.

2 R. S. 653, 5 (2 Edm. 672). Brown v. Windmuller, 36 N. Y. Super. Ct. 75; 14 Abb. N. S. 359: Rogers v. Rogers, 2 Paige, 458; Stimson v. Huggins, 16 Barb. 658; 9 How. 56; Belding v. Conklin, 4 id. 196.

3267. Affidavit respecting disbursements.— A charge, for the attendance of a witness, cannot be allowed without an affidavit, stating the number of days of his actual attendance; and, if travel fees are charged, the distance for which they are allowed. A charge, for a copy of a document or paper, cannot be allowed, without an affidavit, stating that it was actually and necessarily used, or was necessarily obtained for use. An item of disbursements, in a bill of costs, cannot be allowed, in any case, unless it is verified by affidavit, and appears to have been necessarily incurred, and to be reasonable in amount.

Id., 7; Code of Proc., part of 311. Hager v. Danforth, 8 How. 448; see, also, Shannon v. Brower, 2 Abb. 377.

TITLE III.

Security for costs.

SEC. 3268. When defendant may require security for costs. 3269. Id.; after action commenced.

3270. The last two sections qualitied.

3271. Id.: in actions by and against executors, etc.
3272. Order to give security.

3273. Requisites of undertaking.

3274. Notice of exception; id., of justification.

3275. Justification of sureties. Allowance of undertaking.
3276, Order to give additional security. Proceedings.
3277. Effect of failure to obey order to give security,
3278. Liability of attorney, for costs in certain actions.
3279. This title applies to special proceedings.

3268. When defendant may require security for costs. The defendant, in an action brought in a court of record, may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either

1. A person residing without the State; or, if the action is brought in a county court, or in the marine court of the city of New-York, the city court of Yonkers, or the justice's court of the city of Albany, residing without the city or county, as the case may be, wherein the court is located; or

or

2. A foreign corporation; or

3. A person imprisoned under execution for a crime;

4. The official assignee of a person so imprisoned; the official assignee or official trustee of a debtor ; or an assignee in bankruptcy where the action is brought upon a cause of action, arising before the assignment, the appointment of the trustee, or the adjudication in bankruptcy; or

5. An infant, whose guardian ad litem has not given such security.

2 R. S. 620, 21 (2 Edm. 644). Coates,v. Morris, 1 Law Bull. 29: Hodges v. Porter, 10 Tun, 244; Gelch r. Barnaby, 7 Abb. 19; 1 Bosw. 657: Wice v. Com. Ins. Co., 7 Daly, 258; McDonald v. Brass Goods Manufact'g Co., 2 Abb. N. C. 434; Republic of Mexico v. Arrangoid, 3 Abb. 470; Norten v. Mackie, 8 Hun, 520; Hall v. Waterbury, 1 Law Bull. 22; Florencer. Bulkely, 1 Duer, 705; Ranney v. Stringer, 4 Bosw, 663; Keller e. Townsend, 2 Abb. N. C. 432; Gardner v. Kelly, 2 Sandf. 633; National Ex. Bank v. Silliman, 4 Abb. N. C. 224.

§ 3269. Id.; after action commenced. The defend

ant, in a like action, may require security for costs to be given, where, after the commencement of the action, the plaintiff either

1. Ceases to be a resident of the State; or, where the action is brought in either of the local courts specified in subdivision first of the last section, ceases to be a resident of the city or county, as the case may be, wherein the court is located; or

2. Is adjudicated a bankrupt, or discharged from his debts, or exonerated from imprisonment, pursuant to a law of the State, or of the United States; or

3. Is sentenced to the State prison, for a term less than for life.

2 R. S. 620, 1 (2 Edm. 644). Long v. Hall, 3 Sandf. 729; Morton v. Domestic Telegraph Co.,1 Abb. N. C. 290; Gomez v. Garr, 18 Wend. 577.

3270. The last two sections qualified.-- In a case specified in either of the last two sections, if there are two or more plaintiffs, the defendant cannot require security for costs to be given, unless he is entitled to require it of all the plaintiffs.

Ten Broeck v. Reynolds, 13 How. 462; Hulbert v. Newell, 4 id. 93.

3271. Id.; in actions by and against executors, etc. In an action 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; or by an official assignee, the assignee of a receiver, or the committee of a person judicially declared to be incompetent to manage his affairs; the court may, in its discretion, require the plaintiff to give security for costs.

Code of Proc., part of 317; L. 1874, ch. 446, 5. Briggs v. Vandenburgh, 22 N. Y. 467; Bolles e. Duff, 17 Abb. 448; Kimberly v. Goodrich, 22 How. 424; Jenkins . Stow, 2 Law Bull. 57; Day v. Bach, 1 id. 76; Wilbur v. White, 56 How. 321; More v. Durr, 45 N. Y. Super. Ct. 154; Shepherd v. Burt, 3 Duer, 645; Darby v. Condit, 1 id. 599; Norris v. Breed, 1 Sheldon, 271; 12 Abb. N. S. 185.

$ 3272. Order to give security.- Where security for costs is required to be given, the court in which the action is pending, or, except in a case specified in the last section, a judge thereof, upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff, within a time specified, either to pay into court, the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded

against him, or, at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant's attorney; and staying all other proceedings, on the part of the plaintiff, except to review or vacate the order, until the payment or filing, and notice thereof, and also, if an undertaking is given, the allowance of the same.

2 R. S. 620, part of 3 (2 Edm. 644). Unger e. Forty-second St., etc. R. R. Co.,30 How. 443; 4 Rob. 682; Butler e. Wood, 10 How, 313; Gariner v. Kelly, 2 Sandf, 632; Weil e. Freund, 2 Law Bull. 48; Robinson r. Sinclair, 1 Denio, 628; Boucher e. Pia, 14 Abb. 1; Fearn r. Gelpke, 13 id. 473; Carpenter e. Downing, 6 Hill, 234; Florence e. Bulkley, 1 Iker, 705; Swan v. Matthews, 3 id. 613; Gedney v. l'urday, 47 N. Y. 676; Ab bott v. Smith, 8 How. 463; Colt r. Wheeler, 12 Abb. 388; Caldweil r. Manning, 15 id. 271; 24 How. 38; Micklethwaite . Rhodes, 4 Sanif. Ch. 434; White e. Smith, 16 Abb. 109, n; Mills y, Chapman, 1 How, 12; Van Vleck e. Clark, 38 Barb. 316; 24 How. 190; Price 2. Betts, 6 Paige, 44.

$3273. Requisites of undertaking. — The under taking, specified in the last section, must be executed to the defendant by one or more sureties, and must be to the effect that they will pay, upon demand, to the defendant, all costs which may be awarded to him in the action, not exceeding a sum, specified in the under taking, which must be at least two hundred and fifty dollars.

Id., 4, amended; L. 1875, ch. 305. Montague r. Bassett, 18 Abb. Pr. 13; Nelson . Bostwick, 5 Hill, 37; Higley r. Robinson, 7 Wend. 4%; Forty-second & G'd St. F. R. R. Co. r. Guntser, 36 N. Y. Super. Ct. F Tallmadger. Wallis, 1 How. 100; Leftwick r. Clinton, 26 id. 26; Smith r. Norval, 2 C. R. 14.

3274. Notice of exception; id.; of justification.Within ten days after service of the notice of filing the undertaking, the defendant may serve upon the plaint iff's attorney a notice that he excepts to the sureties therein. Within ten days after service of such a notice, the plaintiff must serve, upon the defendant's attorney, a notice of the justification of the same or new sureties before a judge of court, or a county judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter, and the place to be within the county where the action is

triable.

Id., 5 and 6, amended. Leftwick v. Clinton, 26 How. 26; Hartford Quarry Co. v. Pendleton, 4 Abb. 460.

§ 3275. Justification of sureties. Allowance of undertaking.-Section 580 of this act applies to the justification of the sureties. Where the judge finds the