[The provisions of chapter 19, ante, which are made applicable by this section, relate to the docketing, in the county clerk's office, of a judgment rendered by a justice of the peace, and the enforcement thereof by execution issued out of the county court.] TITLE 6. TITLE V. The municipal court of the city of Rochester PRELIMINARY NOTE.-The amendatory bill, referred to in the prefatory note to this volume, amended the caption of this title, and the two sections contained therein, so as to include the city court of Auburn, created by L. 1879, ch. 53. The failure of the amendatory bill leaves the jurisdiction of, and the proceedings in, the latter court, substantially unaffected by chapters 19 and 20 of this act. SEC. 3226. Provisions of chapter 19 generally applicable to the court and judges. 3227. Jurisdiction in actions upon contract. of chapter gener plicable to and § 3226. The provisions of chapter nineteenth of this act, Provisions excluding titles tenth and eleventh thereof, apply to the municipal 19ner court of the city of Rochester, and to the judges thereof; except the court so far as they are inconsistent with the next section, or with any judges. other special provision of statute, remaining unrepealed after this chapter takes effect. For 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. [This and the next section are all of the existing legislative provisions, which it was deemed advisable to embody in this act, relating to this court; which was created by L. 1876, ch. 196; and further regulated by L. 1877, ch. 192; L. 1878, ch. 415, § 8; and L. 1879, ch. 230.] tion in upon con § 3227. The municipal court of the city of Rochester has ju- Jurisdic risdiction of an action to recover damages upon or for breach of a actions contract, expressed or implied, other than a promise to marry, where tract. the sum claimed does not exceed five hundred dollars. [Thus amended by L. 1881, ch. 601.] [The amendments of 1881 added the italicized words at the beginning of the section, and changed "four" to "five".] TITLE L When plaintif 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. 2. Regulations respecting the awarding of costs in particular cases. 3. Miscellaneous provisions. ARTICLE FIRST. GENERAL REGULATIONS RESPECTING THE AWARDING OF COSTS. SEC. 3228. When plaintiff entitled to costs of course. 3229. When defendant entitled to costs of course. defendants. 3230. When costs are discretionary. Rule as to two or more 3231. Costs, where several actions are brought on same instrument, etc. 3232. Interlocutory costs upon issue of law. 3233. Id.; how collected. 3234. Costs, where there are several issues of fact, 3235. Id.; after discontinuance upon answer of title. 3236. Costs of a motion. 3237. The foregoing sections limited. 3238. Costs upon appeal from final judgment. 3239 Id., upon appeal from interlocutory judgment or order.! 8240. Id., in a special proceeding. § 3228. The plaintiff is entitled to costs, of course, upon the entitled to rendering of a final judgment in his favor, in either of the follow costs of course. ing actions: 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 2863 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 judg ment 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. The [Co. Proc., part of § 304. The word, "final", in the introductory clause, and the words, "triable by a jury", in subd. 1, are new. successful party is entitled to the costs of both trials where the judge at the first trial is disqualified. Cregin v. Brooklyn Crosstown R. R. Co., 19 Hun, 349. Where costs of an action brought by an assignor remain unpaid, the court will stay proceedings in a subsequent action until they are paid. Barton v. Speis, 73 N. Y., 133. Where the defendant, in an action in a justice's court, procures a discontinuance, on the ground that the accounts of the parties exceed $400, and the plaintiff then brings an action in the supreme court and recovers less than $50, he is entitled to costs, the defendant being estopped from claiming that the justice had jurisdiction. Bradner v. Howard, 75 N. Y., 417. For additional recent cases under subd. 3, see Kernan v. Hammer, 43 N. Y., Super. Ct. (1 Sheldon) 264; Mechl v. Schwieckart, 67 Barb., 599; Powers v. Gross, 66 N. Y., 646; Whitney v. Daggett, 6 Abb. N. C., 434. Under subd. 4, the amount of the judgment, and not of the verdict, determines the right to costs. Wallace v. Am. Linen T. Co., 16 Hun, 404.] ABT.1 fendant costs of § 3229. The defendant is entitled to costs, of course, upon the when de rendering of final judgment, in an action specified in the last sec- entitled t tion, unless the plaintiff is entitled to costs, as therein prescribed. Rule as But where, in such an action against two or more defendants, the more de two or fendants. TITLE 1. When costs are dis 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, 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 plaintiff is entitled to costs. [The first sentence of this section consists of Co. Proc., § 305. The remainder of the section is a substitute for the second sentence of Co. Proc., § 306, as amended in 1851; which was so obscure, that the cases arising thereunder were long in hopeless conflict. Its true construction was settled authoritatively, in conformity to this section, by the court of appeals, in Allis v. Wheeler, 56 N. Y., 50. Where, in an equitable action, two defendants not joined in interest appear by sepa rate attorneys, and both succeed, the court may award costs to each. Hauselt v. Vilmar, 76 N. Y., 630. As to awarding to one defendant costs against his co-defendant, see Budd v. Munroe, 18 Hun, 316.] § 3230. Except as prescribed in the last two sections, the court cretionary. may, in its discretion, award costs to any party, upon the rendering of a final judgment. Costs. where several actions are same instrument, 9tc. [Co. Proc., § 306, first sentence. Costs will not be allowed to an unnecessary defendant making an unnecessary defence. Barker v. Burton, 67 Barb., 458. In an action to foreclose a mortgage, costs are in the discretion of the court, and if the referee errs in awarding costs, the error is to be corrected by appeal, and not by motion. Lossee v. Ellis, 13 Hun, 655. In an action to construe a will, costs are also discretionary. Provost v. Provost, 70 N. Y., 141; McLean v. Freeman, id., 81. The discretion conferred by this section extends to every stage of the cause, including an appeal to the court of appeals. Chipman v. Montgomery, 63 N. Y., 221. The court which is to exercise the discretion is, "whatever court passes upon the question of costs". Herrington v. Robertson, 71 N. Y., 280; see p. 284.] § 3231. Where two or more actions are brought, in a case specified in section 454 of this act, or otherwise for the same cause Loughton of action, against persons who might have been joined as defendants in one action, costs, other than disbursements, cannot be recovered, upon the final judgment, by the plaintiff, in more than one action, which shall be at his election. But this prohibition does not apply to a case where the plaintiff joins as defendants, in each action brought, all the persons liable, not previously sued, who can, with reasonable diligence, be found within the State; or, if the action is brought in a superior 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. [Co. Proc., § 304, last sentence, remodelled; and see 2 R. S. 615, Part 3, ch. 10, tit. 1, § 15 (2 Edm., 638; omitted from the 5th ed. of the R. S.).] ᎪᎡᎢ. 1 tory costs sue of law. § 3232. Where an issue of law and an issue of fact are joined, Interlocu between the same parties to the same action, and the issue of fact upon is 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. [This and the next section have been taken from 2 R. S., C17, Part 3, ch. 10, tit. 1, § 28 (2 Edm., 641; omitted from R. S., 5th ed.), with some amendments. The question whether § 28 of the R. S. had been repealed by implication, and, if so, what was the remedy of a party succeeding upon a demurrer, and entitled to costs thereupon, remained unsettled, when this section was enacted; and the practice has varied accordingly. See Wightman v. Shankland, 18 How. Pr., 79, and Belknap v. McIntyre, 2 Abb. Pr., 366.] collected. § 3233. Section 779 of this act applies to interlocutory costs, Id.: how awarded as prescribed in the last section, as if they were costs of a motion. [See the note to the last preceding section.] where there are sues of § 3234. In an action specified in section 3228 of this act, Costs, wherein the complaint sets forth separately two or more causes of several action, upon which issues of fact are joined, if the plaintiff recovers fact. 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, 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. [The first sentence of this section has been taken from § 26 of the |