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iff recovers a chattel, or part of a chattel, or the value thereof, and the defendant also recovers a chattel, or part of a chattel, which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is entitled to costs, where both parties recover, as specified in this subdivision, unless the chattel, for which the defendant recovers, has been replevied and delivered to the plaintiff.
[New. Subd. 1 rests upon the following decisions: Wiest v. Critsinger, 4 Johns., 117; McCarty v. McPherson, 11 id., 407; Stoddard v. Holmes, 1 Cow., 245. Subd. 2 rests upon 2 R. S., 275, Part 3, ch. 3, tit. 1, § 2 (3 R. S., 5th ed., 465; 2 Edm., 284); § 46 of this act and the following decisions: Edwards v. Russell, 21 Wend., 63; Low v. Rice, 8 Johns., 409; Clayton v. Per Dun, 13 id., 218; Foot v. Morgan, 1 Hill, 654; Cain v. Ingham, 7 Cow., 478; Randall v. Hall, Hill & Denio, 239; Post v. Black, 5 Denio, 66; Place v. Butternuts Woolen Co., 28 Barb., 503. Subd. 3 is in accordance with the decision in Harvey v. Large, 51 Barb., 222. Subd. 4 prescribes a rule, which appears to be the fairest in the cases therein provided for, having regard to the rule in similar cases in courts of record; as it should be modified by the difference between the principles upon which costs are awarded in those courts, and in justices' courts.]
§ 3076. The sum to be awarded, as costs, to the prevailing party, Amount except where it is otherwise specially prescribed by law, is limited limited. as follows:
1. It cannot exceed ten dollars, besides the fees of witnesses, where, проп the trial of an issue of fact or of law, either party recovers damages to the amount of fifty dollars or more, or one or more chattels, the value of which, as fixed, together with the damages, if any, amounts to fifty dollars or more; or, where, if the defendant recovers judgment, the sum, for which the plaintiff demanded judgment, was fifty dollars, or more, or the value of all the chattels, to recover which the action was brought, was stated in the complaint at fifty dollars or more.
2. In every other case, it cannot exceed five dollars, besides the fees of witnesses, attending from another county.
But the prevailing party is entitled, in addition to the sums specified in this section, to the fees and expenses allowed by law, for a commission issued to examine a witness, not residing in the county, or in an adjoining county; and for each adjournment, exceeding one, which was granted upon the application of the party, against whom the judgment is rendered.,
Costs upon demurrer.
Taxation of costs.
[Substituted for so much of L. 1866, ch. 695, § 2 (6 Edm., 804), as is not included in the last section but one. The exception in the opening clause is to avoid a conflict with local legislation. See L. 1860, ch. 132. § 2. The words in subd. 1, relating to a chattel, have been added, in order to supply a supposed casus omissus in the existing statute. The phrase in the concluding sentence relating to a commission, contains the substance of a clause in L. 1841, ch. 138, § 3 (3 R. S., 5th ed., 452; 4 Edm., 546), which may have been repealed by § 2 of the act of 1866, although the question is doubtful. The foregoing section applies to all cases, the provision of the concluding sentence, relating to the expense of adjournments. It is confined, in the act of 1866, to the case embraced in subd. 1. This change is of small practical importance, but justice appeared to require it. Except as mentioned in this note, the foregoing section is in accordance with the former statute; but the justice of the limitations of the amount of the costs is questionable. As costs in a justices' court consist of actual and necessary expenses only there seems to be no sound reason, why the successful party should not always recover the full amount thereof.]
§ 3077. Where judgment is rendered upon the trial of a demurrer, the costs of the trial must be included therein; otherwise costs are not allowed upon the trial of a demurrer.
[New. But implied from the provisions of Co. Proc., § 64, subd. 11; see ante, § 2944.]
§ 3075. Where a justice renders a judgment, he must specify, in his docket-book, the items of costs, which were allowed by him. Before any item of costs is thus allowed, other than a fee to the justice, or to a juror or witness who attended, or to a constable who has certified the amount of his fee, upon a paper filed with the justice, the party must show, by his oath, or that of his attorney, to the satisfaction of the justice, that the item was actually and legally paid or incurred.
[New. Under the former statute, there was no mode prescribed, for the taxation of costs in a justice's court. This section, which removes the defect in question, seemed to its draftsmen the simplest provision for that purpose, while, at the same time, it sufficiently protects the adverse party. If any item is illegally allowed, it may be recovered back; see § 3081, post.]
§ 3079. Increased costs must be awarded in favor of the defend. ant, in an action in a justice's court, in a case, and increased at the rate, specified in section 3258 of this act.(1)
[See Fuller v. Wilcox, 19 Wend., 351; Wales v. Hart, 2 Cow., 426.]
§ 3080. In an action against two or more defendants, not united costs on in interest, who make separate defences by separate answers, if the for one or plaintiff fails to recover judgment against all, the justice must award fendants. costs to those who have judgment in their favor.
[2 R. S., 616, Part 3, ch. 10, tit. 1, § 18 (3 R. S., 5th ed., 908; 2 Edm., 639).]
may be recovered
§ 3081. Where a justice includes in a judgment a grea.er amount Costs of costs than is allowed by law, or an improper item of costs or fees, collected and the same is collected; the person from whom it was collected may, notwithstanding the judgment, recover from the justice who has received it, the amount thereof, with interest.
[2 R. S., 266, Part 3, ch. 2, tit. 4, § 230 (3 R. S., 5th ed., 452; 2 Edm., 274), amended by substituting the word, "justice", for" officer," as it is manifestly inequitable that any other officer should be liable.]
Action or special proceeding, relating to an animal straying upon the highway.
PRELIMINARY NOTE.-The first statute, relating to the subject of this title, was L. 1862, ch. 459 (3 Edm., 547-549), entitled "An act to prevent animals from running at large in the public highways." In Rockwell v. Nearing, 35 N. Y., 302, the court of appeals substantially held, that the act of 1862 was unconstitutional, so far as it applied to animals found trespassing upon the land of a private person; because it deprived the owner of his property, "without due process of law." That case was decided in March, 1866; and the legislature, at its following session, enacted the statute, L. 1867, ch. 814 (7 Edm., 185-189), which professed to amend the act of 1862, but, in reality, substituted a new statute therefor. New sections were substituted, for the first and fifth sections of the act of 1867, by L. 1869, ch. 424 (7 Edm., 448); and a new first section was again substituted by L. 1872, ch. 776 (9 Edm., 476).
After much conflict of opinion in the supreme court, it has been settled, by several decisions of the court of appeals, that the act of 1867 effectually removed the constitutional objections to the act of 1862; and that it is valid, with respect to all the cases for which it provides. Campbell v. Evans, 45 N. Y., 356; Cook v. Gregg, 46 id., 439; Jones v. Sheldon, 50 id., 477; Leavitt v. Thompson, 52 ıd., 62.
TITLE 10. The principal objections to the constitutionality of the statute, arose upon the peculiar character of the first process, and the mode of service thereof. Although these questions are now at rest, still it seemed to the draftsmen of this Code, that the statute was, in those respects, inadequate to the attainment of substantial justice, in many cases arising under it. They have accordingly, in preparing this title, so amended its provisions, relating to the commencement of the proceedings to procure the condemnation of the animal seized, as to conform them closely to those taken upon the commencement of a civil action. Their amendments provide that the first process must always be directed to the owner of the animal, where he is known; and must be personally served upon him, where such service can be made. The general direction to all persons interested, and the service by posting, as provided in the former statute, have been retained, only to meet cases, where a special direction or a personal service is impracticable.
They have also amended, in many particulars, the provisions regulating the proceedings between the service of process and the final condemnation; and have added some entirely new provisions, chiefly at the end of the title, for the purpose of removing various obscurities in the former statute, and closing a door to injustice, and even oppression, which the statute left open, in some cases. Although these amendments have rendered it necessary to make numerous changes in the phraseology of the statute, it will be found, upon a careful examination of this title, that all the essential rights and remedies of the parties have been preserved as heretofore.
The name of the first process has been changed from "summons" to "precept"; and the name of the first pleading, from "complaint" to "petition", in pursuance of the general plan, which runs through this entire Code, to confine the use of the words, "summons", and "complaint", to the proceedings in a civil action.
SEC. 3082. Action against person suffering animals to stray.
3084. Certain officers to seize animals straying.
3085. When private person may seize such animals,
3086. Officer or person seizing to present petition,
3087. Precept thereupon.
3088. Id.. how served.
3089. Proof of service of precept.
3090. Answer; trial.
3091. Decision in favor of petitioner; warrant to se; execution thereof,
3092. Application of proceeds of sale.
3093. Disposition of surplus,
3094. Id.; when no claim made within a year.
3095. Order upon claim for surplus; appeal therefrom.
3096 Proceedings upon decision in favor of person answering.
3097. Demand of possession before trial. Proceedings thereupon.
SEC. 3098. Id.; when animal wilfully set at large by third person. 3099. Action by owner in such a case.
3100. Action by petitioner and by officer.
3101. Demand of possession after final order and before sale. 3102. Order upon demand of possession; appeal therefrom.
3103. Id.; stay of proceedings.
3104. Appeal from final order.
3105. Id., by claimant ; stay of proceedings and delivery of possession.
3106. Proceedings upon affirmance.
3107. Limitation of action for selling animals.
3108. Certain actions cannot be maintained.
3109. Where several animals are trespassing, damages are entire. Proceed
ings in such cases.
3110. Proceedings in other cases, where there are different owners.
3111. Surplus, where there are different owners.
3112. When one action, etc., supersedes any other.
3113. Rights of officer when private person fails to prosecute.
§ 3082. Any person, who suffers or permits one or more cattle, Action horses, colts, asses, mules, swine, sheep, or goats, to run at large, or suffering to be herded or pastured, in a public street, highway, park or place, stray. elsewhere than in a city, incurs thereby the penalty or penalties specified in the next section; and any resident of the town, or the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of this act, or the overseer or superintendent of the poor of the town or district, in which one or more of those animals are found so running at large, herded, or pastured, may maintain an action against him, in a justice's court, held in that town or district, to recover the penalty or penalties so incurred. Where the action is brought by a private person, the justice must pay the proceeds of an execution, issued upon a judgment therein in favor of the plaintiff, after deducting the costs, to the officer, who might have brought the action, as prescribed in this section, to be applied by him to the support of the poor within his town or district.
[The first sentence consists of that part of the section, substituted for § 1 of the act of 1862, by L. 1872, ch 776 (9 Edm., 476), which relates to an action to recover the penalty; amended as follows: The words, "colts, asses, mules," have been inserted to supply an omission in this statute, which was doubtless accidental. The words, "elsewhere than in a city," have been added; as the whole structure of the act shows, that it is not, or at least should not be, applicable to cities. The word, "resident," has been substituted for "inhabitant," in ac