TITLE II. Fixing the amount of costs. PART IL ARTICLE FIRST. SUMS ALLOWED AS COSTS; DISBURSEMENTS. fendant entitled to ncreased costs. § 3258.* In either of the following cases, a defendant, in whose When defavor a final judgment is rendered, in an action wherein the complaint demands judgment for a sum of money only, or to recover a chattel; or a final order is made, in a special proceeding instituted by a State writ, is entitled to recover the costs, prescribed in section 3251 of this act, and, in addition thereto, one half thereof: 1. Where the defendant is or was a public officer, appointed or elected under the authority of the State, or a person specially appointed, according to law, to perform the duties of such an officer; and the action or special proceeding was brought by reason of an act, done by him by virtue of his office, or an alleged omission by him, to do an act, which it was his official duty to perform. 2. Where the action was brought against the defendant, by reason of an act done, by the command of such an officer or person, or in his aid or assistance, touching the duties of the office or appoint ment. 3. Where the action was brought against the defendant, for tak ing a distress, making a sale, or doing any other act, by or under color of authority of a statute of the State. But this section does not apply, where an officer, or other person, specified herein, unites in his answer with a person not entitled to such additional costs. (*) [2 R. S., 616, Part 3, ch. 10, tit. 1, § 24 (3 R. S., 5th ed., 908; 2 Edm., 640), remodelled. In the introductory clause, the words, "upon verdict, demurrer, etc.," have been omitted, so as to allow the additional costs, without reference to the manner in which the judgment is rendered; one of the other amendments. made in this section, excludes an officer, who unites in his defence with a private person not entitled to additional costs. In this respect, this section follows the weight of authority, as derived from cases construing the original statute. See Bradly v. Fay, 18 How. Pr., 481, and cases cited. The original section was not repealed by the Code of Procedure. Beatte v. Gilman, 18 N. Y., 260. ] 351 JUSTICE'S Increased disburse ments not allowed. § 3259. The increase, specified in the last section, does not extend to the disbursements; and an officer, witness, or juror, is not entitled to any other fee in the action, except the single fee allowed by law for his services. [Id., § 25, amended by including all disbursements in the provision.] TITLE IV. General provisions relating to fees. 3280. Each clerk of a court must perform all the duties required of him, in the course and practice of the court, without fee or reward, except as expressly prescribed by law. Each public officer, upon whom a duty is expressly imposed by law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law. An officer or other person, to whom a fee or other compensation is allowed by law, for any service, shall not charge or receive a greater fee or reward, for that service, than is so allowed. [The first sentence consists of L. 1840, ch. 386, § 6 (4 Edm., 688), without material change; it renders unnecessary the re-enactment of various provisions to the same effect, included in other statutes, ex. gr., Co. Proc., § 312. The second sentence is new in form; but the substance thereof is implied, in all the provisions of law regulating fees. The third sentence has been taken from 2 R. S., 650, Part 3, ch. 10, tit. 4, § 5 (3 R. S., 5th ed., 930; 2 Edm., 669), without material change.] § 3281. An officer, or other person, shall not demand or receive any fee or compensation, allowed to him by law for any service, unless the service was actually rendered by him; except that an officer may demand in advance his fee, where he is, by law, expressly directed or permitted to require payment thereof, before rendering the service. [Section 6 of the R. S.] § 3282. An officer or other person, who violates either of the provisions contained in the last two sections, is liable, in addition to the punishment prescribed by law for the criminal offence, to an action in behalf of the person aggrieved, in which the plaintiff is entitled to treble damages. [So much of id., § 7, as relates to the remedy by civil action. The remainder of the section belongs to the criminal laws.] PART II. General provision as to fees, etc., to be accounted 3286. Where a public officer is required, by law, to keep an account of, or to pay over, the fees or other moneys, received by him for official services, he must include therein all sums, received by for. him, to which he was entitled, by reason of any act, performed by him in his official capacity; whether the act did or did not pertain to his office, or to the business thereof. [L. 1847, ch. 277, § 11 (4 Edm., 555).] attorneys, etc., when not al lowed § 3288. A party to an action or a special proceeding is not enti- Parties, tled to a fee, for attending as a witness therein, in his own behalf, or in behalf of a party who pleads jointly, or is united in interest, with fees. him; and an attorney or counsel, in an action or a special proceeding, is not entitled to a fee, for attending as a witness therein, in behalf of his client. [The latter half of this section consists of 2 R. S., 651, Part 3, ch. 10, tit. 4, § 15 (3 R. S., 5th ed., 931; 2 Edm., 671), amended by the addition of the last five words. The remainder of the section is new. The amendments accord with the rulings in Walker v. Russell, 16 How. Pr., 91; Steere v. Miller, 30 id., 7; Hewlett v. Brown, 7 Abb. Pr., 74; S. C., 1 Bosw. 655, and Taggard v. Gardner, 2 Sandf. S. C. R., 669.] admin official § 3289. An officer is not entitled to a fee, for administering the No fee for oath of office to a member of the legislature, to any military officer, istering to an inspector of election, clerk of the poll, or any town officer; or oaths. to more than ten cents, for administering an official oath to any other officer. [Id., § 17, amended by inserting "clerk of the poll", and changing twelve and a half to ten.] etc.. may paid for oath, pos tage, etc. 3291. Where an officer or other person is required, in the course officer, of a duty imposed upon him by law, to take an oath, to acknowl- charge fee edge an instrument, to cause an instrument to be filed or recorded, or to transmit a paper to another officer, he is entitled, in addition to the fees, or other compensation for the service, prescribed by law, to the fees necessarily paid by him, to the officer who administered JUSTICE'S MANUAL the oath, or took the acknowledgment, or filed or recorded the instrument; and to the expense of transmitting the paper, including postage, where the transmission is lawfully made through the postoffice. Id.; his fees, etc., to be paid, before required to paper. [New; supposed to require no explanation.] § 3292. Each provision of this act, requiring a judge, clerk, or other officer to transmit a paper to another officer, for the benefit of a transmit party, is to be construed as requiring the transmission only at the request of the person so to be benefited, and upon payment by him of the fees allowed by law for the paper transmitted, or any copy or certificate connected therewith, and the expenses specified in the last section. Comp troller to audit cer tain charges. [The same. See L. 1876, ch. 449, § 12.] § 3295. Where the fees or other charges of an officer are chargeable to the State, they must be audited by the comptroller, and paid on his warrant, except as otherwise specially prescribed by law. [2 R. S., 651, Part 3, ch. 10, tit. 4, § 16 (3 R. S., 5th ed., 931; 2 Edm., 671), amended by substituting the exception for the words, "and which have been heretofore audited by the court of exchequer."] 354 PART II. CHAPTER XXII. DEFINITIONS AND REGULATIONS CONCERNING THE TITLE I.-GENERAL DEFINITIONS, AND RULES OF CONSTRUCTION. TITLE II.-PROVISIONS REGULATING THE EFFECT AND APPLICA- TITLE I. General definitions, and rules of construction. of "ac § 3333. The word "action", as used in the new Revision of the Definition Statutes, when applied to judicial proceedings, signifies an ordinary tion". prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. [Substituted for Co. Proc., § 2.] "special § 3334. Every other prosecution by a party, for either of the Id.; purposes specified in the last section, is a special proceeding. [Substituted for Co. Proc., § 3.] § 3335. Actions are of two kinds : 1. Civil. 2. Criminal. [Co. Proc., § 4.] proceed. Division of actions into civil and crimi nal. of "crimition". § 3336. A criminal action is prosecuted by the people of the Definition State, as a party, against a person charged with a public offence, for nal acthe punishment thereof. |