party is so entitled, must be included in the final judg ment, by adding them to, or offsetting them against, the sum awarded to the prevailing party; or otherwise, as the case requires. But this section does not entitle a plaintiff to costs, in a case specified in subdivision fourth of section 3228 of this act, where he is not entitled to costs, as prescribed in that subdivision.

See 2 R. S. 617, 26 (2 Edm. 641).

3235. Id.; after discontinuance upon answer of title. Where an action, brought before a justice of the peace, or in a district court of the city of NewYork, or a justice's court of a city, has been discontinued, as prescribed by law, upon the delivery of an answer, showing that title to real property will come in question; and a new action, for the same cause, has been commenced in the proper court; the party in whose favor final judgment is rendered in the new action, is entitled to costs; except that, where final judgment is rendered therein, in favor of the defendant, upon the trial of an issue of fact, the plaintiff is entitled to costs, unless it is certified, that the title to real property came in question on the trial.

Code of Proc., 2 60 and 61. Powers v. Gross, 66 N. Y. 646; Niagara Falls Susp. Bridge Co, v. Bachman, 4 Lans. 523; Morss v. Salisbury, 48 N. Y. 636 35 How. 90 Blake v. James, 19 id. 321; Kirk v. Blashfield, 4 Hun, 269; Bradner v. Howard, 75 N. Y. 417; 14 Hun, 420.

§ 3236. Costs of a motion. - Costs upon a motion in an action, where the costs thereof are not specially regulated in this act, or upon a reference made pursuant to sections 623, 624, 827, or 1015 of this act, may be awarded, either absolutely or to abide the event of the action, or of the reference, to any party, in the discretion of the court or judge.

Watson

Id., part of 315; see, also, L. 1840, ch. 386, 15 (4 Elm. 690). v. Gardiner, 50 N. Y. 671; Bowne v. Anthony, 13 How. 301; McKenzie e. Hackstaff, 2 E. D. Smith, 75; Corbin r. George, 2 Abb. 463; Whipple e. Williams, 4 How. 28; Langbein v. Gross, 46 id. 50; 14 Abb. N.S. 412; McCoun r. N. Y. C. & H. R. R. R. Co., 50 N. Y. 176, 181; Jones e. Cook, 11 Hun, 230; Sar. & W. R. R. Co. r. McCoy, 9 How. 339; Lennox v. Eldred, 65 Barb. 526; Spelman v. Terry, 74 N. Y. 448; Matter of Kelly, 59 N. Y. 595; 3 Hun, 636; Pennell . Wilson, 5 Rob, 674; Chadwick e. Brother, 4 How. 233; Van Schaick r. Winue, 8 id. 5; Lawton v. Green, 64 N. Y.326; Concklin v. Taylor, 68 id. 221.

3237. The foregoing sections limited. - The foregoing sections of this article do not affect the recovery of costs upon an appeal.

New.

3238. Costs upon appeal from final judgment. — Upon an appeal from the final judgment in an action, the recovery of costs is regulated as follows:

1. In an action specified in section 3228 of this act, the respondent is entitled to costs upon the affirmance, and the appellant upon the reversal, of the judgment appealed from; except that, where a new trial is directed, costs may be awarded to either party, absolutely or to abide the event, in the discretion of the court.

2. In every other action, and also where the final judgment appealed from is affirmed in part, and reversed in part, costs may be awarded in like manner, in the discretion of the court.

Code of Proc., part of 306. Pratt v. Allen, 19 How. 450; Board of Supervisors e. Bristol, 58 How. 3; Wood r. Brown, 6 Daly, 425; Duffe. Wardell, 10 Abb. N. S. 84: Pickett v. Barron, 29 Barb, 505; Leftwick r Clinton, 4 Lans. 176; Montgomery Co. Bank e. Albany City Bank, 7 N. Y. 459; Halstead r. Halstead, 2 T. & C. 673; Kiah r. Grenier, 1 d. 388; Chipman v. Montgomery, 63 N. Y. 221; Lawrence r. Linsay, 70 11, 566; People ex rel. e. Smith, 13 Hun, 227; Roberts e. Johnson, 58 N. Y. 613; Kemple v. Darrow, 39 N. Y. Super. Ct. 447; Board of Supervisors 7. Bristol, 58 How. 3; Boyd r. Disbrow, 58 id. 399; Tisdale r. Jones, 3 Barb. 523; Ayers v. Western R. R.Co., 49 N. Y. 660; Lennox r. Eldred, 65 Barb. 526; Baker r. Burton, 67 d. 458; Thurber e. Chalmers, 66 N. Y. 42; Sturges v. Spofford, 5s id. 103; Sisters of Charity e. Kelly, 68 d. 68; Howell v. Van Secklen, 4 Abb. N. C. 1; Matter of Scholle, 14 Huu, 14.

§3239. Id.; upon appeal from interlocutory judg ment or order. Upon an appeal from an interlocutory judgment or an order, in an action, costs are in the discretion of the court, and may be awarded absolutely, or to abide the event, except as follows:

1. Where the appeal is taken from an order granting or refusing a new trial, and the decision upon the appeal refuses a new trial, the respondent is entitled, of course, to the costs of the appeal.

2. Where an appeal is taken from an order, refusing a new trial, and an appeal is also taken from the judg ment rendered upon the trial, neither party is entitled to the costs of the appeal from the order.

Id., 306 and 315. Pennell v. Wilson, 2 Abb. N. S. 466; 5 Rob. 674; Van Schaick v. Winne, 8 How. 5; Buck v. City of Lockport, 43 id. 23; Crosby . Brown, 44 id. 149; Woodbury r. Morton, id, 56; Williams r. Murray, 32 id. 187; 2 Abb. N. S. 292; Savage r. Darrow, How. 74; Mat ter of Prosp. Pk. & C. I. R. R. Co., 67 N. Y. 371; 8 Hun, 30; Stanton . King, 76 N.Y. 585; Wilson v. Palmer, 5 Week. Dig. 507; Hesse v. Briggs, 45 N. Y. Super. Ct. 417; Purchase v. Bellows, 16 Abb. 105.

§ 3240. Id.; in a special proceeding. Costs in a special proceeding, instituted in a court of record, where the costs thereof are not specially regulated in

this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services, in an action brought in the same court, and in like

manner.

See L. 1840, ch. 270, 83 (4 Edm. 682; 5 id. 133); also, 2 2086, 2109, 2143, 2249, 2316,2401, 2445, 2456. People ex rel. v. Village of Nelliston, 9 Week. Dig. 298; People ex rel. v. Van Alstyne, 3 Abb. Ct. App. Dec. 575; 3 Keyes, 35; People ex rel. v. McDonald, 69 N. Y. 362; People ex rel. e. Board of Police, 39 id. 506; People ex rel. Gower, 44 How. 26; Haviland v. White, 7 id. 154; Matter of Rens. & Sar. R. R. Co. v. Davis, 55 N. Y. 145; Matter of Barnett, 11 Hun, 468; 52 How. 73; Elwell v. Robbins, 43 id. 108; People ex rel. v. B'd of Comm's of Tax, and Ass., 76 N. Y. 64; Matter of Jetter, 78 id. 601; Matter of Trustees of Presbytery of N. Y., 54 How. 226; People ex rel. r. Robinson, 25 id. 345; People ex rel. v. Cooper, 10 Week. Dig. 77: People ex rel. v. Fire Comm'rs, 5 Abb. N. C. 144: Matter of Gibbs, 58 How. 502; Bowery Savings Bank v. Mahler, 45 N. Y. Super. Ct. 619; Marvin v. Marvin, 78 N. Y. 541; Spelman v. Terry, 74 id. 448; People v. McDonald, 69 id. 362.

ARTICLE SECOND.

REGULATIONS RESPECTING THE AWARDING OF COSTS

IN PARTICULAR CASES.

SEC. 3241. Costs against the State; how paid.

3242. Costs where action brought by people, on relation of private person.

3243. Id.; for the benefit of a county, etc.

3244. Costs, against a school officer.

3245. Id.; against a municipal corporation.

3246. Id. by or against an executor, etc.

3247. Costs in case of transfer, etc., of cause of action.

3241. Costs against the State; how paid. Where costs are awarded against the people of 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 warrant 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.

2 R. S. 553, 14 (2 Edm. 573).

§ 3242. Costs where action brought by people on

relation of private person. Where an action is brought, in the name of the people of the State, upon the relation of a private corporation or individual, as prescribed in section 1986 of this act, a judgment, awarding costs to the defendant, must award them, against the relator, in the first instance; and against the people, only in case an execution, issued thereupon against the property of the relator, is returned unsatis fied.

Code of Proc., part of 319. People ex rel. Clute, 52 N. Y. 576; 63 Bart, 356; 12 Abb. N. S. 399.

§ 3243. Id.; for the benefit of a county, etc.- In an action or a special proceeding, brought in the name of the people of the State, to recover money or property, or to establish 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. People v. Town Auditors of Esopus, 10 Hun, 551; 74 N. Y.

310.

Costs can§ 3244. Costs, against a school officer. not be awarded to the plaintiff, in an action against a school officer, or a supervisor, on account of an act performed by him, by virtue of, or under color of his office; or on account of a refusal or an omission to perform s 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, 6 (6 Edm. 361). Willey r. Shaffer, 1 T. & C. 324 : Rawson v. Van Riper, id. 370; Clarke v. Tunnicliffe, 5 Trans. App. 268; 39 N. Y. 58; 4 Abb. N. S. 451.

3245. Id.; against a municipal corporation.-Costs cannot be awarded to the plaintiff, in an action against a municipal corporation, in which the complaint demands a 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). McClure v. Supervisors of Niagara, 4 Trans. App. 275; 4 Abb, N. S. 202; affirmed, 33 How. 202; 50 Barb. 594; Howell . City of Buffalo, 15 N. Y. 512; Quinlan e. City of Utica, 11 Hun, 218; 74 N. Y. 603; Matter of Jetter, 78 id. 601; see 14 Hun, 93.

3246. Id.; by or against an executor, etc.-In an action, brought 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, 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 de

fence of the action.

Code of Proc., part of 317. Cunningham v. McGregor, 12 How. 305; 5 Duer, 648; Conger v. Hudson R. R. R. Co., 7 Abb. 255; Lowerre v. Vall, 5 id. 229; Columbia Ins. Co. v. Stevens, 37 N. Y.536; 35 How. 101; 4 Abb. N. S. 122: 5 Trans. App. 9; Reade v. Waterhouse, 52 N. Y. 587; Fox v. Fox. 22 How. 453; Howe v. Lloyd, 9 Abb. N. S. 257; 2 Lans. 335; Curtis . Dutton, 4 Sandf. 719; Woodruff v. Cook, 14 How. 481; Buckhout v. Hunt, 16 id. 407; Snyder v. Young, 4 id. 217; Van Vleck r. Burroughs, 6 Barb. 311; Fort . Gooding, 9id. 388; Russell v. Lane, 1 id. 519; Belden . Knowlton, 3 Sandf. 758; Builock v. Bogardus, 1 Den. 276; Sheehan v. Shuertsel, 1 Law Bull. 68; Mersereau v. Ryerss, 12 How. 300; Marsh v. Hussey, 4 Bosw. 614; Lansing v. Cole, 3 C. R. 216; Slocum v. Barry, 38 N. Y. 46; 4 Abb. N. S. 399; 5 Trans. App. 173; 34 How. 320; Parkhill v. Hillman, 12 id. 353; Holdrige v. Scott, 1 Lans. 303; Lyon v. Marshall, 11 Barb. 241; Smith v. Patton, 9 Abb. N. S. 205; Baily . Bergen, 5 Hun, 555; 67 N. Y. 346; Morgan v. Skidmore, 3 Abb. N. C. 92; Am. Life Ins. & T. Co. v. Van Epps, 14 Abb. N. S. 253; Lindslay v. Deafendorf, 43 How. 90: Dodge ». Crandall, 30 N. Y. 294; Merritt . Thompson, 27 id. 225; Lemon r. Wood, 16 How. 285; Benedict v. Caffe, 3 Duer, 669; 12 N. Y. Leg. Obs. 262; Mitchell v. Mount, 17 Abb. 213; Alger v. Conger, 17 Hun, 45: Sibill v. Remsen, 30 Barb. 441; Wilbur e. White, 56 How. 321: Hall v. Waterbury, 5 Abb. N. C. 356; Olcutt r. McLean, li Hun, 394; Theriot v. Prince, 12 How. 451; Ackerman v. Emott, 4 Barb. 626; Brockett v. Bush, 18 Abb. 337; Williams v. Harden, 1 Barb. Ch. 298: Mayer v. Graves, 9 Rep. 555; Kimberly e. Stewart, 22 How. 281; Kimberly v. Blackford, id. 443; Bostwick v. Brown, 15 Hun, 308; Baxter v. Davis, 3 Abb. N. S. 249; Murray v. Hendrickson, 6 Abb. 96; 1 Bosw. 635; Carnahan . Pond, 15 Abb. 194; McLean v. Freeman, 70 N. Y. 81; Phelps e. Cole, 3 C. R. 157; Cumming v. Egerton, 9 Bosw. 684; Devendorf v. Dickinson, 21 How. 275; Ocean Nat. B'k v. Carll, 7 Hun, 237; Sandford v. Granger, 12 Barb. 392.

§ 3247. Costs in case of transfer, etc., of cause of action. 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;