proof, upon which the item may be allowed or disallowed by him. § 3266. An officer, authorized to tax costs in an action 37 Hun, 271. or a special proceeding, must, whether the taxation is opposed, or not, examine the bills presented to him for taxation; must satisfy himself that all the items allowed by him are correct and legal; and must strike out all charges for fees, other than the prospective charges expressly allowed by law, where it does not appear that the services, for which they are charged, were necessarily performed. A § 3267. A charge, for the attendance of a witness, cannot be allowed without an affidavit, stating the number of days of his actual attendance; and, if travel fees are charged, the distance for which they are allowed. charge, for a copy of a document or paper, cannot be allowed, without an affidavit, stating that it was actually and necessarily used, or was necessarily obtained for use. An item of disbursements, in a bill of costs, cannot be allowed, in any case, unless it is verified by affidavit, and appears to have been necessarily incurred, and to be reasonable in amount. TITLE III. § 3268. When defendant may require security for costs. 8269. Id.; after action commenced. 3270. The last two sections qualified. 3271. Id.; in actions by and against executors, etc. 3272. Order to give security. 3273. Requisites of undertaking. § 3268. [Am'd 1891 1 3274. Notice of exception; id., 3275. Justification of sureties. 8276. Order to give additional The defendant, in an action brought in a court of record, may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either Id. 575; 1 Civ. Pro. 15; 63 How. Pr. 377; 49 N. Y. Super. Ct. (J. & S.) 95; 29 Hun. 657; 13 Abb. N. C. 182; 3 Civ. Pro. 428; 5 Month. L. Bul. 92; 51 N. Y. Super. Ct. (J. & S.) 119; 2 How. Pr. N. S. 333; 48 Hun, 350; 15 Civ. Pro. 237; 112 N. Y. 310; 24 N. Y. State Rep. 120. 1. A person residing without the State; or if the action is brought in a county court, or in the city court of the city of New York, the city court of Yonkers, or the justices' court of the city of Albany, residing without the city or county, as the case may be, wherein the court is located; or 2. A foreign corporation; or 3. A person imprisoned under execution for a crime; or 4. The official assignee of a person so imprisoned; the official assignee or official trustee of a debtor; or an assigues in bankruptcy; where the action is brought upon a cause of action, arising before the assignment, the ap pointment of the trustee, or the adjudication in bankruptcy; or 5. An infant, whose guardian ad litem has not given such security, except as otherwise provided in sections four hundred and fifty-nine and four hundred and sixty-nine of this act. § 3269. The defendant, in a like action, may require security for costs to be given, where, after the commencement of the action, the plaintiff either 1. Ceases to be a resident of the State; or, where the action is brought in either of the local courts specified in subdivision first of the last section, ceases to be a resident of the city or county, as the case may be, wherein the court is located; or 2. Is adjudicated a bankrupt, or discharged from his debts, or exonerated from imprisonment, pursuant to a law of the State, or of the United States; or 3. Is sentenced to the State prison, for a term less than for life. § 3270. In a case specified in either of the last two sections, if there are two or more plaintiffs, the defendant cannot require security for costs to be given, unless he is entitled to require it of all the plaintiffs. § 3271. 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; or by an official assignee, the assignee of a receiver, or the committee of a person judicially declared to be incompetent to manage his affairs; the court may, in its discretion, require the plaintiff to give security for costs. § 3272. Where security for costs is required to be given, the court in which the action is pending, or, except in a case specified in the last section, a judge thereof, upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff, within a time specified, either to pay into court, the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him, or, at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant's attorney; and staying all other proceedings, on the part of the plaintiff, except to review or vacate the order, until the payment or filing, and notice thereof, and also, if an undertaking is given, the allowance of the same. § 3273. The undertaking, specified in the last section, must be executed to the defendant by one or more sureties, and must be to the effect that they will pay, upon demand, to the defendant, all costs which may be awarded to him in the action, not exceeding a sum, specified in the undertak ing, which must be at least two hundred and fifty dollars. § 3274. Within ten days after service of the notice of 1 filing the undertaking, the defendant may serve upon the plaintiff s attorney a notice that he excepts to the sureties therein. Within ten days after service of such a notice, the plaintiff must serve, upon the defendant's attorney, a notice of the justification of the same or new sureties before a judge of the court, or a county judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter, and the place to be within the county where the action is triable. 3275. Section five hundred and eighty of this act applies to the justification of the sureties. WI.cre the judge finds the sureties sufficient, he must annex the written examination, if any, to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk, Where the defendant fails duly to except to the sureties, the undertaking is deemed allowed, and must be indorsed and filed in like manner. § 3276. [Am❜d 1891.] At any time after the allowance of an undertaking, given pursuant to such an order, or as prescribed in section three thousand two hundred and seventy-eight of this act, or after notice of the payment into court made pursuant to such an order, the court, or a judge thereof, upon satisfactory proof, by affidavit, that the sum specified in the undertaking, or the amount of such payment, is insufficient; or that one or more of the sureties have died, or become insolvent, or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient for the security of the defendant; must make an order, requiring the plaintiff to give an additional undertaking or make an additional payment into court. The last four sections apply to such an order, and to the undertaking given or payment made pursuant thereto. 49 N. Y. Super. Ct. (J. & S.) 95 25 N. Y. State Rep. 810. 112 N.Y.310. § 3277. Where the plaintiff fails to comply with an 48 Hun, 128. order, made as prescribed in this title, or to procure the allowance of an undertaking given pursuant to such an order, the defendant is entitled to a judgment dismissing the complaint, and in his favor for costs. The defendant may apply therefor, as upon a motion. § 3278. Where a defendant is entitled to require se- 2 Civ. Pro. curity for costs, as prescribed in section three thousand two 108. hundred and sixty-eight of this act, the plaintiff's attorney is liable for the defendant's costs, to an amount not exceeding one hundred dollars, until security is given, as prescribed in this title. The plaintiff's attorney may relieve himself from that liability, although the defendant has not required security for costs to be given, by filing and procuring the allowance of an undertaking, as if an order had been made as prescribed in section three thousand two hundred and seventy-two of this act. §3279. The foregoing sections of this title apply to a special procceiling instituted in a court of record, in like manner as to an action; for which purpose the prosecuting § 1152, Consol. Act. 25 Hun, 593. party, other than the people, or, where the special proceeding is instituted in the name of the people, upon the relation of a private corporation or individual, the relator, is deemed a plaintiff, and the adverse party, a defendant. § 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. § 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. § 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 offense, to an action in behalf of the person aggrieved, in which the plaintiff is entitled to treble damages. § 3283. The clerk of the Court of appeals must, within ten days after the first day of January, and after the first day of July, in each year, render to the comptroller an accurate account, under oath, of all fees received by him for his official services, since the last account was rendered; and must pay the same into the treasury of the State. § 3284. The clerk of each of the following courts, to wit: the court of common pleas for the city and county of New York, and the superior court of the city of New York, must account for all fees received by him for his official services, and pay the same into the city treasury, as prescribed by law. The clerk of the city court of Brooklyn must account for all fines paid to him, and all fees received by him for his official services, and pay the same into the treasury of the county of Kings, as prescribed by law. § 3285. Except as otherwise specially prescribed by law, each county clerk* or register,* who receives a salary, must account for, under oath, and pay to the treasurer of his county, in the manner prescribed by law, all fees, perquisites, and emoluments, received by him, for his official services. § 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 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. § 3287. Each county clerk or register of deeds, who claims any fees by virtue of his office; and each sheriff or coroner, who, upon the collection of an execution, or the settlement, either before or after judgment, of an action or a special proceeding, claims any fees, which have not been taxed; must, upon the written demand of the person liable to pay the same, cause them to be taxed within the county, upon notice to the person making the demand, by a justice of the supreme court, a judge of a superior city court, or the county judge. After such a demand is made, the officer cannot collect his fees, until they have been so taxed. § 3288. A party to an action or a special proceeding is not entitled 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 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. § 3289. An officer is not entitled to a fee, for adminis tering the oath of office to a member of the legislature, to any military officer, to an inspector of election, clerk of the Foll, or any town officer; or to more than ten cents, for administering an official oath to any other officer. § 3290. Each of the following officers, to wit: the secretary of State, the comptroller, the treasurer, the Attorney-General, and the State engineer and surveyor, may require search to be made, in the office of either of the others, or of a county clerk, or of the clerk of a court of *As to New York county see for law regulating county clerk, §8 1728-1731, Consol. Act, and see for law regulating register, L. 1881, c. 531, §§ 3, 11, 26 Hun, 356. 24 N. Y. State Rep. 356. |