TITLE 8. Undertaking to be given. Offer to compro. mise before re turn. [Substituted for so much of Co. Proc., § 352, as relates to appeals from justices' judgments, and is not included in § 3045, ante; the only substantial changes being, that the defendant is allowed a new trial, where judgment was rendered upon an issue of law, although he was not present at the trial; and the appellant is required to insert an additional clause in his notice, where he desires a new trial, instead of, as under the former statute, where he does not.] § 3069. 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. [Co. Proc., § 355, first clause. As to the failure to give the undertaking in season, see note to § 3049, ante.] § 3070. Upon an appeal, provided for in this article, from a judg ment 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 judgment 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 fee, 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. [Substituted for that portion of Co. Proc., § 371 beginning with the words, "In the notice of appeal", and ending with the words, "where the appellant is not ;" also the concluding sentence of the same section. These extraordinary enactments, whereby, under the guise of the regulation of costs upon appeal, a long series of provisions, amounting almost to a complete system of appeal, and including various directions to the court below, were interjected into a section regulating fees and costs, thereby swelling its bulk from a few lines to several pages, were first added in 1862, and amended in 1863, 1864, and 1866. They gave rise to many discordant cases, which it was impossible to reconcile. The most serious conflict of opinion, arising upon them, was as to the degree of minuteness, with which the appellant should state, in his notice of appeal, the particulars in which he claimed the judgment to be erroneous, and the effect of such a statement. The following are some of the cases in the supreme court, and in the superior city courts, bearing upon these questions: Wallace v. Patterson, 29 How. Pr., 170; Fox v. Nellis, 25 id., 144; Loomis v. Higbie, 29 id., 232; Loveland v. Atwood, 31 id., 467; Hotchkiss v. Banks, 36 id., 61; Reed v. Moore, 31 id. 264, 369; Myers v. White, 37 id., 393; Forsyth v. Ferguson, 27 id., 67; Barnard v. Pierce, 28 id., 232; Gray v. Hannah, 30 id., 155; Putnam v. Heath, 41 id., 262; Bancroft v. Shannon, 42 id., 1; Moran v. McClearns, 43 id., 77; Wynkoop v. Halbert, 43 Barb., 266; Fults v. Wynn, 2 Lans., 153; Jones v. Cook, 11 Hun, 230; Doron v. McLoughlin, 14 id., 628; Vedder v. Van Buren, id., 250; Amsdell v. McCaffrey, 16 id., 255. The unanimous opinions of the judges of the court of appeals, in Younghanse v. Fingar, 47 N. Y., 99, and in Bigsby v. Warden, 62 id., 27, seem to establish the doctrine that the statement of the "particulars," in the notice of appeal, might be in the vaguest form; and that the offer, to be made by the respondent, need not correspond thereto. Under that ruling, it was evident, that the statement required in the notice was an idle ceremony; inasmuch as it had no connection with the offer, except that it was a condition precedent thereto; and the appellant was at liberty to decline the offer, although it might conform to his statement. The draftsmen of this section, therefore, dispensed with any statement or quasi offer, on the part of the appellant, leaving it to the respondent to determine what offer to make, if any, and requiring it to be made before the return is filed. See § 3072, post, and § 3053, ante. They also provided for the entry of judgment in the appellate court, instead of the correction of the judgment of the justice, as tending better to preserve the rights of the parties, especially with respect to the enforcement of the undertaking, and the collection of the appellant's disbursements, and his costs in the court below. It seemed to be the better opinion, that by the acceptance of the offer, and the consequent correction of the judgment by the justice, the appeal was, ipso facto, dismissed, although there was no express provision to that effect; and under that construction, the clause, that no undertaking should be enforced for more than the amount of the corrected judgment, was quite unintelligible. It was held, however, in Ponto v. Phelps, 36 How. Pr., 19, that the county court could render a judgment for the appellant's disbursements and costs in the court below. The provision in this section, for the entry of judgment in the appellate court, will remove all doubts in these respects. The operation of this section has been confined to cases, where a new trial is demanded; as the subject of costs upon the partial affirmance of a judgment is better provided for by § 3066, subd. 5, ante. ART. 3 TITLE 8. Proceedings in appellate court. Offer to compromise after return. It omits the provision, that the appellant shall recover costs, when the judgment is reversed," although the judgment in the appellate court is not more favorable than that in the court below, by the sum of ten dollars. The only case, in which that provision was applicable, was where a party had recovered less than ten dollars, and, upon appeal, the adverse party recovered less than a like sum; and in such a case, the appellant ought not to be encouraged to demand a new trial, for the sake of recovering costs. The other amendments are verbal, except that language has been used, which will not bear the construction put upon the former statute, in Baldwin v. Brown, 37 How. Pr., 385; which case, it is believed, was substantially overruled, in Pike v. Johnson, 47 N. Y., 1; as well as doubted, in Humiston v. Ballard, 39 How. Pr., 93; 10 Abb., N. S., 531.] § 3071. 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. [Substituted for Co. Proc., § 364, last half; and § 366, subd. 1, 2, 3, 4 and 6, and the first clause of subd. 5. The language has been much condensed; and the ten days clause added; but no other essential changes have been made, except to assimilate the proceedings more closely to those in other actions, and thus close the door to vexatious and unnecessary questions of practice. The time, when the action is deemed at issue in the appellate court, has been fixed at ten days from the filing of the return, in order to avoid like questions; inasmuch as the return cannot be filed till ten days after service of the notice of appeal (§ 3053, ante); while § 3070 allows the parties twenty days from the service of the notice of appeal, in which to determine, whether they will save a new trial by a compromise.] § 3072. 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 was 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. [Co. Proc., § 366, subd. 5, except so much thereof as is included in 3070, ante, and the clause, providing that the sureties to the undertaking are liable for the payment of the judgment, which has been omitted as unnecessary, for the case comes within the terms of the undertaking. The other amendments are merely verbal, and such as are required, in order to make the section conform to the regulations respecting offers and acceptances in courts of record; except that the second sentence, and also the words, "after the action is deemed at issue in the appellate court," have been added, for the purpose of avoiding any conflict with the provisions of § 3070, ante, for which the former statute left room. This and the last two sections, read together, provide that the offer, contemplated by § 3070, must be made and accepted, in twenty days after the appeal is taken; while the offer, contemplated by this section, can be made only after the time to accept the former has expired; and as such an acceptance must be followed by a judgment, this section cannot come into operation, at any time while an offer under § 3070 remains in force.] ART. 3. of costs. § 3073. Upon an appeal, provided for in this article, costs, when Amount 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. [Co. Proc., so much of § 371, as is not included in the foregoing sections, amended by substituting "fifteen " for "ten"; "ten" for "seven"; and "twenty " for "fifteen." See § 3067, ante.] 93 TITLE 9. When prevailing party to recover costs. What costs allowed. When neither party to recover costs. TITLE IX. Costs. SEC. 3074. When prevailing party to recover costs. What costs allowed. 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. 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. 4, [The first sentence is a substitute for 2 R. S., 247, Part 3, ch. 2, tit. 126, first sentence (3 R. S., 5th ed., 445; 2 Edm., 264); also part of L. 1857, ch. 775, § 2 (3 R. S., 5th ed., 453; 4 Edm., 700); and of L. 1866, ch. 692, § 2 (6 Edm., 804). The cases provided for in §§ 119, 120, 121 of the R. S., are covered by §§ 3013, 3014, ante. Other special cases are provided for in subsequent sections of this title. The second sentence is new; it is designed to settle the practice, as to the items of costs to be included in the judgment, which had not been uniform, justices frequently rendering judgment for the costs of both parties. It is in conformity with the following decisions: Bronson v. Mann, 13 Johns., 460; Timmerman v. Morrison, 14 id., 369; Williams v. Sherman, 15 id., 195; Dennison v. Collins, 1 Cow., 111.j $ 3075. 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 plaint 94 |