JUSTICE'S CHAPTER XX. (EXTRACTS.) PROVISIONS RELATING TO CERTAIN COURTS IN Id.: proceedings on arrest. Id.; bail or deposit before return TITLE I. The marine court of the city of New-York. § 3179. The sheriff, upon arresting the defendant, by virtue of such an order, must, at the same time, serve upon him the summons, and also a copy of the order of arrest, and of the papers upon which it was granted. He must forthwith bring the defendant before the court, at the chambers thereof, if the court is then in session at chambers; otherwise, unless bail is given, as prescribed in the next section, he must take the defendant to the jail of the city and county of New-York, for the confinement of prisoners in civil causes. The keeper thereof must confine the defendant therein. On the next day thereafter, when the court is in session at chambers, the sheriff must take the defendant from the jail, and bring him before the court. (*) [Substituted for provisions of the R. L., of 1813, relating to" marine causes."] § 3180. The defendant may give bail, by delivering to the sheriff a written undertaking to the plaintiff, in the sum specified in the order of arrest, executed by one or more sureties, to the effect that the defendant will attend in person at the opening of the court, at the chambers thereof, on the next day thereafter when it is there in session; or he may deposit with the sheriff the sum specified in the order of arrest. In either case, the sheriff must forthwith re lease him from custody. (*) [The same.] 346 PART II. §§ 3181-3183. § 3181. Where bail is given, as prescribed in the last section, the The same. officer taking the acknowledgment of the undertaking, must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons offering to become bail, concerning their property and their circumstances. The defendant may give bail, or make the deposit, immediately upon his arrest, at any hour of the day or night; and he must have reasonable opportunity to seek for and to procure bail, before being committed to jail. Where a deposit is made, the money deposited must, before the expiration of the next day thereafter, not being Sunday or a public holiday, be paid, by the sheriff, into court, to the credit of the action, as prescribed in section 3164 of this act. (*) or deposit after return. § 3182. At any time after the return of the sheriff, and before Id.; bail final judgment, a justice of the court may admit a defendant in custody to bail, or allow him to make a deposit; and may direct his release, upon his giving bail or making the deposit accordingly. The sum to be deposited, or the sum specified in the undertaking of the bail, must be fixed, and the sureties in the undertaking must be approved, by the justice; who must be satisfied, by their examination, or by other proof, respecting their sufficiency. The undertaking must be to the effect that the defendant will, at all times, render himself amenable to any mandate which may be issued, to enforce a final judgment against him in the action. Article fourth of title first of chapter seventh of this act, applies, where bail is given as prescribed in this or the last section. (a) and how to remain in custody. 3183. Unless bail is given, or a deposit is made, as prescribed in Id.; when the last three sections, the defendant must remain in the jail by vir- defendant tue of the order of arrest, until final judgment in the action; and, if the judgment is against the defendant, until the return of an execution against property, issued thereupon. But the court must direct him to be brought into court, at the time of the trial; and it may, in its discretion, direct him to be brought into court at any other time. In either case, he must be taken from the jail, and brought into court accordingly. (*) 347 (a) Applied to the New-York District courts, except the last sentence of § 3182, by § 3218, JUSTICE'S MANUAL. Costs against how paid. TITLE CHAPTER XXI. COSTS AND FEES. I.-AWARDING AND ENFORCING PAYMENT OF COSTS. TITLE II. FIXING THE AMOUNT OF COSTS. TITLE IV.-GENERAL PROVISIONS RELATING TO FEES. TITLE I. Awarding and enforcing payment of costs. ARTICLE SECOND. REGULATIONS RESPECTING THE AWARDING OF COSTS IN PARTICULAR CASES. § 3241. Where costs are awarded against the people of the State, the State; in an action or a special proceeding brought, by a public officer, pursuant to any provision of law, and the proceedings have not been stayed, by appeal or otherwise; the comptroller must draw his war rant upon the treasurer, for the payment of the costs, out of any money in the treasury, appropriated for that purpose, upon the production to him of an exemplified copy of the judgment, or order awarding the costs, and, where the amount is not fixed thereby, of a taxed bill of costs; accompanied, in either case, with a certificate of the attorney-general, to the effect that the action or special proceeding was brought pursuant to law. The fees of the clerk, for the exemplified copy, must be certified thereupon by him, and included in the warrant. Costs where action brought by [2 R. S., 553, Part 3, ch. 8, tit. 17, § 14 (3 R. S., 5th ed., 867; 2 Edm., 573), amended so as to correspond to § 1985, ante; and also by adding the last sentence, and the clauses relating to a stay and to an appropriation. See Const., art. 7, § 8.] 3242. Where an action is brought, in the name of the people of the State, upon the relation of a private corporation or indi PART II. people, on relation of person. vidual, as prescribed in section 1986 of this act, a judgment, awarding costs to the defendant, must award them, against the relator, in private the first instance; and against the people, only in case an execution, issued thereupon against the property of the relator, is returned unsatisfied. [Co. Proc., § 319, second sentence amended by expressly including a private corporation, and by requiring the judgment to state in what order the costs are to be collected. Probably this is the true construction of the original, although it is not clear. The first sentence of the original section is sufficiently covered by § 1985, ante.] Id.; for fit of a es- county, etc. 3243. In an action or a special proceeding, brought in the name the beneof the people of the State, to recover money or property, or to tablish a right or claim, for the benefit of a county, city, town, or village, costs shall not be awarded against the people; but, where they are awarded to the defendant, they must be awarded against the body for whose benefit the action or special proceeding was brought. [Id., § 320, amended by including a special proceeding, by requiring the judgment or order to award the costs against the body chargeable therewith, in conformity to the last section; and by omitting, after "village", the words, "corporation or person". Payment of costs, where an action in the name of the people is brought upon the relation of an individual, or a private corporation, or by a public officer, is fully provided for in the last two sections. The original section does not seem to have been construed in any adjudicated case, except People v. Tremain, 17 How. Pr., 10; and, in that case, an appeal from the determination of the special term was decided upon grounds, not affecting the proper construction of the section. See 17 How. Pr., 142.] Costs, school 3244. Costs cannot be awarded to the plaintiff, in an action against a against a school officer, or a supervisor, on account of an act per- officer, formed by him, by virtue of, or under color of his office; or on account of a refusal or an omission to perform a duty enjoined upon him by law; where his act, refusal, or omission might have been the subject of an appeal to the State superintendent of public instruction, and where it is certified that it appeared, upon the trial, that the defendant acted in good faith. But this section does not apply to an action for a penalty; or to an action or a special proceeding, to enforce a decision of the superintendent. [L. 1864, ch. 555, tit. 13, § 6 (6 Edm., 361).] JUSTICE'S Id.; against a municipal 83245. Costs cannot be awarded to the plaintiff, in an action against a municipal corporation, in which the complaint demands a corpora- judgment for a sum of money only; unless the claim, upon which the action is founded, was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation. [L. 1859, ch. 262, § 2 (4 Edm., 682).] tion. 1d.; by or against an etc. § 3246. In an action, brought by or against an executor or adminexecutor, istrator, in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue or to be sued, costs must be awarded, as in an action by or against a person, prosecuting or defending in his own right, except as otherwise prescribed in sections 1835 and 1836 of this act; but they are exclusively chargeable upon, and collectible from the estate, fund, or person represented, unless the court directs them to be paid, by the party personally, for mismanagement or bad faith in the prosecution. or defence of the action. Costs in case of transfer, etc., of cause of action. [Co. Proc., § 317, first sentence, and the substance of the first clause, of the second sentence; the latter provision being covered by the exception contained in this section.] 3247. Where an action is brought, in the name of another, by a transferee of the cause of action, or by any other person, who is beneficially interested therein; or where, after the commencement of an action, the cause of action becomes, by transfer or otherwise, the property of a person, not a party to the action; the transferee, or other person so interested, is liable for costs, in the like cases, and to the same extent, as if he was the plaintiff; and, where costs are awarded against the plaintiff, the court may, by order, direct the person so liable to pay them. Except in a case, where he could not have been lawfully directed to pay costs, personally, if he had been a party, as prescribed in the last section, his disobedience to the order is a contempt of court. But this section does not apply to a case, where the person so beneficially interested, is the attorney or counsel for the plaintiff, if his only beneficial interest consists of a right to a portion of the sum or property recovered, as compensation for his services in the action. [Co. Proc., §321, and 2 R. S., 619, Part 3, ch. 10, tit. 1, § 44 (2 R S., 5th ed., 909; 2 Edm., 643); consolidated.] |