§ 1424, Consol. Act. 66 How. Pr. 144. the plaintiff recovers a judgment for a sum not exceeding fifty dollars, exclusive of costs, no property of the defendant is exempt from levy and sale, by virtue of an execution against property, issued thereupon; and, if such an execution is returned wholly or partly unsatisfied, the clerk must. upon the application of the plaintiff, issue an execution against the person of the defendant, for the sum remaining uncollected. A defendant, arrested by virtue of an execution so issued against his person, must be actually confined in the jail, and is not entitled to the liberties thereof; but he must be discharged, after having been so confined fifteen days. After his discharge, an execution against his person cannot be issued upon the judgment, but the judgment creditor may enforce the judgment against property, as if the execution, from which the judgment debtor is discharged, had been returned without his being taken. § 3222. Section three thousand one hundred and thirtyone of this act applies to an action therein specified, brought in a district court of the city of New York; and costs must be allowed in such an action, as prescribed in that section, in addition to the costs allowed in a district court, by the statutory provisions remaining in force after this chapter takes effect. ARTICLE THIRD. PROVISIONS EXCLUSIVELY APPLICABLE TO THE JUSTICES' § 3223. Jurisdiction in civil ac- 23225. Docketing judgments; ex tions. 3224. Id.; upon judgment by confession. § 3223. The justices' court of the city of Albany, and the justices' court of the city of Troy, have jurisdiction, each within the city where the court is located, of an action, of which a justice of the peace has jurisdiction, as prescribed in sections one thousand seven hundred and thirty seven, two thousand eight hundred and sixty-one, two thousand eight hundred and sixty-two, and two thousand eight hundred and sixty-three of this act; and also of an action to recover a penalty, given by the charter, or a by-law or an ordinance of the common council of that city, where the plaintiff demands judgment for a sum, not exceeding two hundred dollars. Neither of those courts has jurisdiction of any other civil action; but this section does not affect the jurisdiction conferred, by the statutory provisions remaining in force after this chapter takes effect, upon either of those courts, in a special proceeding. 3224. The jurisdiction of each of those courts extends also to the taking and entry of a judgment, upon the confession of a defendant, as prescribed in title sixth of chapter nineteenth of this act, where the sum confessed does not exceed five hundred dollars. SS 3225-3227 § 3225. The provisions of sections three thousand and seventeen to three thousand and twenty-two of this act, both inclusive, apply to a judgment rendered in either of those courts, and to the proceedings subsequent thereto, and in the action wherein the judgment was rendered; except that the transcript, filed in the clerk's office of the county wherein the court is located, must be furnished by the clerk of the court, in which the judgment was rendered. TITLE V. The municipal court of the city of Rochester. § 3226. Provisions of chapter 19 § 3227. Jurisdiction in actions generally applicable to the court and judges. upon contract. § 3226. The provisions of chapter nineteenth of this act, excluding titles tenth and eleventh thereof, apply to the municipal court of the city of Rochester, and to the judges thereof; except so far as they are inconsistent with the next section, or with any other special provision of statute, remaining unrepealed after this chapter takes effect. the purpose of applying the same, the court is deemed a justice's court; each judge thereof is deemed a justice of the peace; and the city of Rochester is deemed a town of Monroe county. For § 3227. [Am'd 1881.] The municipal court of the city of Rochester has jurisdiction of an action to recover damages upon or for a breach of contract, express or implied, other than a promise to marry, when the sum claimed does not exceed five hundred dollars. TITLE CHAPTER XXI. COSTS AND FEES. I.-AWARDING AND ENFORCING PAYMENT OF COSTS TITLE II.-FIXING THE AMOUNT OF COSTS. TITLE III.-SECURITY FOR COSTS. TITLE IV.-GENERAL PROVISIONS RELATING TO FEES. TITLE V.-SUMS ALLOWED AS FEES. TITLE I Awarding and enforcing payment of costs. ARTICLE 1. General regulations respecting the awarding of costs. 3. Miscellaneous provisions. 25 Hun, 279. 92 N.Y.359. 30 Hun, 306. 3 How. Pr. N. S. 184. 35 Hun, 182. 91 N. Y. 600. 25 N. Y. State Rep. 851. 53 N. Y. Super. Ct. (J. & S.) 122. 91 N.Y. 600. 12 Abb. N. C. 338. 85 N.Y. 523. 137. 30 Hun, 395. 9 Civ. Pro. 44 Hun, 491. 14 Civ. Pro. 204. 25 N. Y. § 3228. The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in either of the following actions: 3 N. Y. Supp. 830; 110 N. Y. 558; 15 Civ. Pro. 168; 112 N. Y. 364; 24 N. Y. State Rep 545. 128 N.Y. 171. 135 N.Y. 268. 1. An action, triable by a jury, to recover real property, or an interest in real property; or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial. 2. An action to recover a chattel. But if the value of the chattel, or of all the chattels, recovered by the plaintiff, as fixed, together with the damages, if any, awarded to him, is less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages. 3. An action specified in subdivision first, third, fourth, or fifth of section two thousand eight hundred and sixtythree of this act. But if, in an action to recover damages for an assault, battery, false imprisonment, libel, slander, criminal conversation, seduction, or malicious prosecution, the plaintiff recovers less than fifty dollars damages, the amount of his costs cannot exceed the damages. 4. An action, other than one of those specified in the foregoing subdivisions of this section, in which the complaint demands judgment for a sum of money only. But the plaintiff is not entitled to costs, under this subdivision, unless he recovers the sum of fifty dollars or more. 3229. The defendant is entitled to costs, of course, upon the rendering of final judgment, in an action specified in the last section, unless the plaintiff is entitled to costs, as therein prescribed. But where, in such an action against two or more defendants, the plaintiff is entitled to costs against one or more, but not against all of them, none of the defendants are entitled to costs, of course. In that case, costs may be awarded, in the discretion of the court, 128 N.Y. 171. to any defendant, against whom the plaintiff is not entitled to costs, where he did not unite in an answer, and was not united in interest, with a defendant, against whom the Dlaintiff is entitled to costs. State Rep. 937. § 3230. Except as prescribed in the last two sections, 49 N. Y. e court may, in its discretion, award costs to any party, pon the rendering of a final judgment. 20 Week. Dig. 377; 103 N. Y. 374; 3 How. Pr. N. S. 184. 3231. Where two or more actions are brought, in a ase specified in section four hundred and fifty-four of this ct, or otherwise for the same cause of action, against perons who might have been joined as defendants in one acEon, costs, other than áisbursements, cannot be recovered, pon the final judgment, by the plaintiff, in more than one ction, which shall be at his election. But this prohibition oes not apply to a case where the plaintiff joins as defendnts, in each action brought, all the persons liable, not previously sued, who can, with reasonable diligence, be ound within the State; or, if the action is brought in a -uperior city court, or the marine court of the city of New York, or a county court, within the city or county, as the case may be, where the court is located. 3232. Where an issue of law and an issue of fact are joined, between the same parties to the same action, and the issue of fact remains undisposed of, when an interlocutory judgment is rendered upon the issue of law; the interlocutory judgment may, in the discretion of the court, deny costs to either party, or award costs to the prevailing party, either absolutely, or to abide the event of the trial of the issue of fact. § 3233. Section seven hundred and seventy-nine of this act applies to interlocutory costs, awarded as prescribed in the last section, as if they were costs of a motion. (J. & S.) 487. 24 Hun, 185 C. 115. 80 Hun, 224. 35 Id. 50. 36 Id. 44. 37 Id. 237. 42 Id. 166. 22 Abb. N. C. 69. 24 N. Y. State Rep. 545. 25 Id. 170. § 3234. In an action specified in section three housand two hundred and twenty-eight of this act, wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue; in which case, the plaintiff only is entitled to costs. Costs, to which a party is so entitled, must be included in the final judgment, by adding them to, or offsetting them against, 135 Id. 268. 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 three thousand two hundred and twenty-eight of this act, where he is not entitled to costs, as prescribed in that subdivision. § 3235. Where an action, brought before a justice of the peace, or in a district court of the city of New York, or a justices' 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 Id. 3 5. 28 Hun, 12. 32 Id. 293. 15 Civ. Pro. 384. 126 N.Y. 658. 2 Civ. Pro. 302. a new action, for the same cause, has been commenced in the proper court; the party, in whose favor final judg ment is rendered in the new action, is entitled to costs; except that, where final judgment is rendered therein, in favor of the defendant, upon 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. § 3236. 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 six hundred and twenty-three, six hundred and twenty-four, eight hundred and twenty-seven, or one thousand and fifteen 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. §3237. The foregoing sections of this article do not affect the recovery of costs upon an appeal. $3238. 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 three thousand two hundred and twenty-eight 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. § 3239. Upon an appeal from an interlocutory judg ment or an order, in an action, costs are in the discretion of 46 Hun, 444. the court, and may be awarded absolutely, or to abide the event, except as follows: 26 Hun, 459. 27 Hun, 305. 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 judgment rendered upon the trial, neither party is entitled to the costs of the appeal from the order. § 3240. [Am'd 1881.] Costs in a special proceeding, instituted in a court of record, or upon an appeal in a special proceeding, taken to 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, or an appeal from a judgment taken to the same court, and in like manner. 32 Hun, 551. 103 N.Y. 374; 46 Hun, 534. 523. 13 Abb. N. C. 371. 126 N.Y. 589. |