PART III. Order appointing receiver. Proceed claim of another party to property, or on denial ness to judgment debtor. in relation to said receivership. No more than one receiver of the property of a judgment debtor shall be appointed. The judge may also by order, forbid a transfer or other disposition of the property of the judgment debtor not exempt from execution, and any interference therewith. Whenever the judge shall grant an order for the appointment of a receiver of the property of the judgment debtor, the same shall be filed in the office of the clerk of the county, where the judgment roll in the action, or transcript from justice's judgment, upon which the proceedings are taken, is filed; and the said clerk shall record the order in a book to be kept for that purpose in his office, to be called "book of orders, appointing receivers of judgment debtors," and shall note the time of the filing of said order therein. A certified copy of said order shall be delivered to the receiver named therein, and he shall be vested with the property and effects of the judgment debtor, from the time of the filing and recording of the order as aforesaid. The receiver of the judgment debtor shall be subject to the direction and control of the court in which the judgment was obtained, upon which the proceedings are founded, or if the judgment is upon a transcript from justice's court filed in county clerk's office, then he shall be subject to the direction and control of the county court. Amended by Laws of 1851, ch. 479; 1862, ch. 460; 1863; ch. 392. 9 N. Y., 150; 29 B., 71; 16 B., 297; 13 How. P. R., 29, 382; 12 How. P. R., 112; 9 How. P. R., 39; 8 How. P. R., 313; 5 How. P. R., 441; 4 How. P. R., 178; 2 Ab., 233, 235. S 299. If it appear that a person or corporation alleged to have property of the judgment debtor or indebted to him, claims an interest in the property, adverse to him, or denies the debt, such interest or debt shall be recoverable only in of indebted- an action against such person or corporation by the receiver; but the judge may, by order, forbid a transfer or other disposition of such property or interest, till a sufficient opportunity be given to the receiver to commence the action, and prosecute the same to judgment and execution; but such order may be modified or dissolved, by the judge granting the same, at any time, on such security as he shall direct. Reference may be ordered. Costs of 17 N. Y., 484; 16 N. Y., 600; 29 B., 70; 16 B., 297; 21 How. P. R., 17; 12 How. P. R., 112, 138, 458; 7 How. P. R., 187; 6 Ab., 213. $300. The judge may, in his discretion, order a reference to a referee, agreed upon by the parties or appointed by him, to report the evidence or the facts, and may, in his discretion, appoint such referee in the first order or at any time. As amended by Laws of 1857, ch. 723. 11 How. P. R., 446; 8 How. P. R., 313. S301. The judge may allow to the judgment creditor, or proceeding. to any party so examined, whether a party to the action or not, witnesses' fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs. 22 How. P. R., 312; 13 Ab., 459; 11 Ab., 109. CHAP. XI. Disobedi der, how $302. If any person, party or witness disobey an order of the judge or referee duly served, such person, party or witness ence of ormay be punished by the judge as for contempt. And in all punished. cases of commitment under this chapter, or the act to abolish imprisonment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just. As amended by Laws of 1851, ch, 479. 19 B., 362; 13 B., 338; 9 B., 387; 23 How. P. R., 2, 423; 17 How. P. R., By Laws of 1863, ch. 372, the provisions of this chapter of the Code is TITLE X. OF THE COSTS IN CIVIL ACTIONS. Ssc. 303. Fee bill abolished. Allowances given, termed costs. 304. When allowed, of course, to plaintiff. 305. When allowed to defendant. 306. When allowed to either party in the discretion of the court. 307. Amount of costs allowed. 308. Allowance, in addition, of a per centage on the recovery or claim 309. Per centage, how computed. 310. Interest on verdict or report, when allowed. 311: Costs, how to be inserted in judgment. 312. Clerk's fees, 313. Referee's fees. 314. Costs on postponement of trial. 315. Costs on a motion. 316. Costs against infant plaintiff. 317. Costs in an action by or against an executor or administrator, trustee, of an express trust, or a person expressly authorized by statute to sue. 318. Costs on review of a decision of an inferior court, in a special proceeding. 319, 320. Costs in actions by the people. 321. Costs against assignee of cause of action after action brought. 322. Costs on a settlement. abolished. 5303. All statutes establishing or regulating the costs or Fee bill fees of attorneys, solicitors and counsel in civil actions, and all existing rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor or counsel, for his compensation, are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be Allowance allowed to the prevailing party, upon the judgment, certain termed sums by way of indemnity, for his expenses in the action; which allowances are in this act termed costs. 18 N. Y., 261, 371; 13 B., 668; 9 B., 301; 8 B., 100; 17 How. P. R., 2, given, costs. 3304. Costs shall be allowed of course to the plaintiff upon When ala recovery, in the following cases: 1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, course to plaintiff. PART III. When allowed to defendant. When allowed to either party in the dis cretion of the court. or is certified by the court to have come in question at the trial; 2. In an action to recover the possession of personal property; 3. In the actions of which, a court of a justice of the peace has no jurisdiction; 4. In an action for the recovery of money where the plaintiff shall recover fifty dollars. But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which with the damages, amounts to fifty dollars, or the possession of property be adjudged to him, the value of which with the damages amounts to fifty dollars. Such value must be determined by the jury, court or referee, by whom the action is tried. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff, in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions, shall at the time of the commencement of the previous action or actions have been within this state, and not secreted. As amended by Laws of 1862, ch. 460. 21 N. Y., 467; 9 N. Y., 550; 7 N. Y., 465, 491; 19 B., 203; 8 B., 100; 12 Ab., 209; 11 Ab., 246; 8 Ab., 35, 39; 7 Ab., 342, 445; 5 Ab., 222; 4 Ab., 17; 3 Ab., 191, 365, 449, 463; 1 Ab., 183; 23 How. P. R., 44, 164; 19 How. P. R., 450; 17 How. P. R., 457; 16 How. P. R., 60, 479; 15 How. P. R., 250, 281; 13 How. P. R., 138; 9 How. P. R., 201; 8 How. P. R., 3, 55, 238; 7 How. P. R., 74; 6 How. P. R., 266; 4 How. P. R., 356; 1 Hilt., 558; 3 E. D. S., 574. S 305. Costs shall be allowed of course to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein. 9 N. Y., 550; 7 N. Y., 465; 19 B., 203; 8 B., 100; 18 How. P. R., 108; 17 How. P. R., 457; 13 How. P. R., 138; 8 Ab., 36; 3 Ab., 191, 367, 449, 463. $306. In other actions costs may be allowed or not, in the discretion of the court. In all actions where there are several defendants, not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them. In the following cases the costs of an appeal shall be in the discretion of the court: 1. When a new trial shall be ordered; 2. When a judgment shall be affirmed in part and reversed in part. As amended by Laws of 1851, ch. 479. 9 N. Y., 550; 7 N. Y., 465; 20 B., 343; 13 B., 541; 10 B., 453; 8 B., $307. When allowed, costs shall be as follows: In an action where judgment upon failure to answer may be had without application to the court, ten dollars; in an action where judgment can only be taken on application to the court, fifteen dollars; and two dollars for each additional defendant upon whom process shall have been served, except in actions for the foreclosure of a mortgage, the allowance for additional defendants is limited to ten such defendants and in other cases to five such defendants. 2. To the defendant for all proceedings before notice of trial, ten dollars. 3. To either party for all subsequent proceedings before trial, ten dollars. To either party, for attending upon and taking the deposition of a witness conditionally, or attending to perpetuate his testimony, ten dollars; to either party, for drawing interrogatories, to annex to a commission for the taking of testimony, ten dollars. 4. To either party, for the trial of an issue of law, fifteen dollars; for every trial of an issue of fact, twenty dollars. 5. To either party on appeal, except to the court of appeals, and except appeals in the cases mentioned in section three hundred and forty-nine, before argument, fifteen dollars; for argument, thirty dollars; and the same costs shall be allowed to either party before argument, and for argument, on application for judgment, upon special verdict or upon verdict subject to the opinion of the court, or for a new trial on a case made, and in cases where exceptions are ordered to be heard, in the first instance, at a general term, under the provisions of section two hundred and sixty-five. 6. To either party, on appeal to the court of appeals, before argument, twenty-five dollars; for argument, fifty dollars; and when a judgment is affirmed the court may, in its discretion, also award damages for the delay, not exceeding ten per cent upon the amount of the judgment. 7. To either party, for every circuit or term not exceeding five circuits, and five special and five general terms, at which the cause is necessarily on the calendar, and is not tried or is postponed by order of the court, ten dollars. But in an action hereafter brought to recover dower, before admeasurement, of real property aliened by the husband, the plaintiff shall not recover costs unless it appear that the CHAP. XI. Costs to be allowed. PART III. Per centage to be allowed plaintiff. Rule of computa tion. Allowance dower was demanded before the commencement of the action and was refused. The same costs shall be allowed to the plaintiff, in proceedings under chapter two, title twelve of the second part of this Code, as upon the commencement of an action. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1857, ch. 723; 1858, ch. 306; 1859, ch. 428; 1862, ch. 460; 1863, ch. 392. 8 N. Y., 29; 2 N. Y., 570; 8 B., 575; 22 How. P. R., 470; 18 How. P. R., 387; 17 How. P. R., 228, 457, 470, 492; 16 How. P. R., 60, 327, 364; 15 How. P. R., 117, 157; 13 How. P. R., 33; 9 How. P. R., 304, 332, 400; 8 How. P. R., 1, 5, 82; 7 How. P. R., 97, 486; 6 How. P. R., 266, 405, 408, 419; 5 How. P. R., 245, 394, 395; 4 How. P, R., 42, 55; 10 Ab., 314; 9 Ab., 111; 8 Ab., 261; 7 Ab., 341, 445; 6 Ab., 384; 5 Ab., 220; 2 Ab., 223; 1 Ab., 267; 4 E. D. S., 461. $308. In addition to these allowances there shall be allowed to the plaintiff upon the recovery of judgment by him in any action for the partition of real property, or for the foreclosure of a mortgage, or in any action in which a warrant of attachment has been issued, or for an adjudication upon a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per cent on the recovery, as in the next section prescribed, for any amount not exceeding two hundred dollars; an additional sum of five per cent for any additional amount not exceeding four hundred dollars, and an additional sum of two per cent for any additional amount not exceeding one thousand dollars. And in the actions above named, if the same shall be settled before judgment therein, like allowances upon the amount paid or secured upon such settlement at one-half the rates above specified. Amended by Laws of 1857, ch. 723; 1862, ch. 460. 9 N. Y., 370; 8 N. Y., 71; 25 B., 336; 24 B., 146; 14 B., 578; 11 B., 337; 9 B., 394; 17 How. P. R., 457; 16 How. P. R., 364; 15 How. P. R., 27, 36; 14 How. P. R., 300, 310; 13 How. P. R., 298; 12 How. P. R., 170, 318; 9 How. P. R., 339; 7 How. P. R., 138, 370, 490; 6 How. P. R., 172, 235; 5 How. P. R., 121, 154, 278; 4 How. P. R., 71, 208, 252, 416; 13 Ab., 297; 7 Ab., 340, 346, 445; 5 Ab., 221; 4 Ab., 100, 247, 254, 262; 1 Ab., 123, 125. S309. These rates shall be estimated upon the value of the property claimed or attached or affected by the adjudication upon the will or other instrument, or sought to be partitioned, or the amount found due upon the mortgage, in an action for foreclosure. And whenever it shall be necessary to apply to the court for an order enforcing the payment of an installment falling due after judgment in an action for foreclosure, the plaintiff shall be entitled to the rate of allowance in the last section prescribed, but to no more in the aggregate than if the whole amount of the mortgage had been due when judgment was entered. Such amount of value must be determined by the court, or by the commissioners in case of actual partition. In difficult and extraordinary cases where a trial has been by the court had, except in any of the actions or proceedings (other than those for the partition of real estate), specified in section in certain cases. |