Except as specifically prescribed by law, a
party who recovers judgment or final order in this Court is entitled
to recover as costs all sums allowed by express provision of law,
and all fees and disbursements prescribed by law, for services necessarily
rendered in an action or special proceeding at the request of the
prevailing party and paid by him, including the reasonable compensation
of commissioners taking depositions in said action.
In either of the following cases, costs shall
not be awarded to either party, but each party must pay his own costs:
A.
Where the action or special proceeding is dismissed
by reason of the failure of both parties to attend.
B.
Where the defendant interposes an answer in an action
that title to real property will come in question and gives the undertaking
thereon prescribed in this Part 2.
C.
Where the action or special proceeding is discontinued
on the ground that either party is an infant for whom a guardian ad
litem has not been appointed.
D.
Where the defendant interposes a plea of bankruptcy
in an action.
In all actions brought in this Court there shall
be allowed to the prevailing party, in case he shall have appeared
by an attorney of the Supreme Court, and not otherwise, the following
sums as costs:
A.
For all proceedings before trial, including judgment
for the plaintiff upon default, in case the amount of recovery be
thirty dollars ($30.) or less, to the plaintiff ten per centum (10%)
of such amount and in the discretion of the Court a further sum not
to exceed two dollars ($2.). In case the recovery be more than thirty
dollars ($30.) and not more than fifty dollars ($50.), five dollars
($5.); in case the recovery be more than fifty dollars ($50.) and
not more than one hundred dollars ($100.), ten dollars ($10.); in
case the recovery be more than one hundred dollars ($100.) and less
than one thousand dollars ($1,000.), fifteen dollars ($15.); in case
the recovery be one thousand dollars ($1,000.) or more, twenty-five
dollars ($25.).
B.
If judgment be for the plaintiff otherwise than upon default besides the costs allowed by Subsection A of this section an additional sum not in excess of ten per centum (10%) of the recovery not exceeding fifty dollars ($50.) may be awarded to the plaintiff in the discretion of the Court.
C.
If judgment be rendered for the defendant by default, to the defendant in a case where the amount demanded in the complaint is thirty dollars ($30.) or less, ten per centum (10%) of such amount and in the discretion of the Court a further sum not to exceed two dollars ($2.); in a case where the amount demanded in the complaint is more than thirty dollars ($30.) and not more than fifty dollars ($50.), five dollars ($5.); in a case where the amount demanded in the complaint is more than fifty dollars ($50.) and not more than one hundred dollars ($100.), ten dollars ($10.); in a case where the amount demanded in the complaint is more than one hundred dollars ($100.) and less than one thousand dollars ($1,000.), fifteen dollars ($15.); in a case where the amount demanded in the complaint is one thousand dollars ($1,000.) or more, twenty-five dollars ($25.); and where there is no complaint, three dollars ($3.). Where the summons has been irregularly issued or proper service thereof has not been made or where the summons has been issued by the plaintiff's attorney as provided in § 30-34 and service made but no proper proof of service filed as required by such section, or if the action is dismissed before trial for want of jurisdiction, three dollars ($3.), whether such summons be accompanied by a written complaint or not.
D.
If judgment be rendered for the defendant after trial, besides the costs allowed by Subsection C of this section, an additional sum, not exceeding ten per centum (10%) upon the amount claimed in the complaint not exceeding fifty dollars ($50.), may be awarded to the defendant in the discretion of the Court.
E.
A defendant who recovers judgment upon a counterclaim
for a sum greater than that claimed by the plaintiff shall be allowed
in the discretion of the Court ten per centum (10%) of the amount
so recovered not exceeding fifty dollars ($50.), and in such case
he shall be allowed no other costs except his disbursements.
F.
If the judgment be rendered in favor of the plaintiff
in an action brought to recover one (1) or more chattels, or for the
foreclosure of a lien against personal property, or to enforce a mechanic's
lien against real property, the costs allowed herein shall be estimated
on the value of the chattels or the amount of the liens, as fixed
by the judgment. In case the judgment in such an action be rendered
in favor of the defendant the sums alleged in the complaint as the
value of such chattels or the amount of the lien alleged therein to
be due shall be the basis for estimating the costs herein allowed.
G.
No costs or fees shall be allowed and recovered in
an action brought upon a judgment of the Court unless such action
be brought more than five (5) years after the recovery of the judgment
sued on.
H.
Costs, upon a motion in any action or proceeding,
not exceeding ten dollars ($10.), may be awarded either absolutely
or to abide the event of the action or proceeding, to any party, in
the discretion of the Court, except as otherwise expressly provided
in this Part 2.
I.
Upon settlement of a case after service of summons, and before trial, the plaintiff shall be entitled to costs at the rate prescribed in Subsection A of this section, determined by the amount of the settlement.
K.
Upon a trial of an issue of fact in summary proceedings,
costs not exceeding ten dollars ($10.) may be allowed to the successful
party in the discretion of the Court.
L.
Where a commission is issued on behalf of the plaintiff
or defendant, costs shall be allowed to the successful party in the
sum of ten dollars ($10.) in addition to the fees or disbursements
provided for by § 328 of the Justice's Court Act.
Where a judgment is rendered on a motion to
dismiss a pleading, the prevailing party shall recover the same costs
as if the judgment had been in his favor, upon default in the same
action. Otherwise costs shall not exceed ten dollars ($10.) in the
discretion of the Court, as a condition for leave to plead over.
The Court may, in its discretion, as a condition
for allowing an amendment to a pleading, require the payment of a
sum not to exceed ten dollars ($10.) as costs to the adverse party.
When a trial shall be adjourned on cause shown,
the Court in its discretion, may impose upon the party applying for
the adjournment such conditions as to it shall seem reasonable, and
may also impose costs to the amount of ten dollars ($10.), besides
disbursements, as a condition of adjournment.
When an action brought in this Court has been
discontinued, as prescribed in this Part 2, upon the delivery of an
answer showing that title to real property will come in question,
and a new action for the same cause has been commenced in the proper
court, the party in whose favor final judgment is rendered in the
new action is entitled to costs; except that where final judgment
is rendered therein, in favor of the defendant, upon the trial of
an issue of fact, he is not entitled to costs, unless it is certified
that the title to real property came in question on the trial.
Where judgment has been rendered by the Court,
costs must be taxed by the Clerk and inserted in the judgment or final
order. Before any item of costs other than the costs fixed by express
provision of law or granted by the Court or fees paid to the Clerk
or Marshal as prescribed by law in the action or special proceeding
are allowed, the party must show by his affidavit, or that of his
attorney, that the item was actually and legally paid and incurred.
All items of costs must be entered by the Clerk in the docket book
kept by him.
A taxation may be reviewed by the Court within
five (5) days after the entry of judgment or final order, upon two
(2) days' notice. The order made upon such a motion must disallow
any item wrongfully included in the judgment or final order, or add
any proper item omitted therefrom, and direct that any such sum be
added to or credited upon the judgment and upon any execution or other
mandate issued to enforce the judgment or final order. Unless such
review is asked for, such taxation shall not be thereafter questioned
on appeal.
The Clerk must examine all items 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, where it does not appear that the services for which they are
charged were necessarily performed.
A charge, for the attendance of a witness, cannot
be allowed without an affidavit, stating the number of days of his
actual attendance and the amount of mileage paid. A 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 disbursement, 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,
except fees paid to the Clerk or Marshal.
Upon an appeal provided for in this Part 2,
the award of costs is regulated as follows:
A.
If the appeal is dismissed because neither party brings
it to a hearing, as prescribed by law, costs shall not be awarded
to either party.
B.
If the judgment order or final order is reversed,
costs must be awarded to the appellant.
C.
If the judgment order or final order is affirmed,
costs must be awarded to the respondent.
D.
If the judgment order or final order is modified or
a new trial is ordered, costs or such part thereof, as to the Appellate
Court seems just, besides disbursements, may be awarded to either
party, absolutely, or to abide the event.
Upon an appeal, provided for in this Part 2,
costs when awarded must be as follows, besides disbursements:
The City Court of Albany shall not nor shall any Justice of said Court take or be allowed any costs of fees for any services rendered by said Court or said Justices, or either or any of them, in any civil action or in any proceeding; except that said Court shall charge the following fees in summary proceedings to recover the possession of real property, for filing a petition and issuing a precept, seventy-five cents ($0.75); for each adjournment, twenty-five cents ($0.25); for entering a final order, twenty-five cents ($0.25); for the issuance of a warrant, twenty-five cents ($0.25). Said fees shall belong to the City of Albany and shall be paid over to the City Treasurer of said City on the first Monday of each month by the Clerk of said Court who shall at the same time furnish to said City Treasurer a full, true and correct statement in writing, duly verified on oath, as to the fees received by him during the preceding month. In case a trial by jury be demanded by either party, where an issue of fact is joined in such a proceeding, the party demanding the trial by jury shall pay the sum of five dollars ($5.), as provided in § 30-260 of this article.
A witness in an action or summary proceeding,
pending in this Court, or before a commissioner appointed by this
Court, or before a Justice of this Court, taking a deposition to be
used in a court not of record of another state or territory of the
United States, is entitled, except where another fee is specially
prescribed by law, to fifty cents ($0.50) for each day's attendance,
and if he resides more than three (3) miles from the place of attendance,
to eight cents ($0.08) for each mile going to the place of attendance.
Fees shall be allowed to Marshals for services
rendered under the provisions of this Part 2, as follows: For serving
a summons, seventy-five cents ($0.75), and when a summons is served
without the City of Albany, he shall be allowed in addition thereto
for each mile necessarily traveled going and returning to serve the
same, the distance to be computed from the limits of said City to
the place where it is served, ten cents ($0.10); for serving a summons
and executing an order of arrest, one dollar ($1.); for serving a
summons and levying a warrant of attachment, one dollar ($1.); for
serving a summons and affidavit and executing a requisition, in an
action to recover a chattel, one dollar ($1.); for a copy of every
attachment and of the inventory of the property attached, fifty cents
($0.50); for receiving and execution against property, entering it
in his books, searching for property and returning the same twenty-five
cents ($0.25); for every levy actually made by virtue of an execution,
one dollar ($1.); for collecting money by virtue of an execution or
for selling under an attachment, five cents ($0.05) for every dollar
collected to the amount of one hundred dollars ($100.) and two and
one-half cents ($0.025) for every dollar collected over one hundred
dollars ($100.); for notifying the plaintiff of the execution of an
order of arrest, twenty-five cents ($0.25); for serving a subpoena,
fifty cents ($0.50); for summoning a jury, five dollars ($5.); for
serving a precept or other mandate by which a special proceeding is
commenced, seventy-five cents ($0.75); for serving a warrant in summary
proceedings to recover possession of real property, one dollar and
fifty cents ($1.50); for serving a warrant in any case where a fee
therefor is not specially prescribed by law, fifty cents ($0.50);
for arresting and committing any person, pursuant to process in a
special proceeding, one dollar ($1.); and said Marshal shall also
be allowed such further fees for services which they are legally permitted
or authorized to render, as a Sheriff would be allowed for like services
pursuant to law, where no express provision is made herein for the
payment of such services. For serving as court attendant, a Marshal
shall receive such compensation as shall be fixed and determined by
the Board of Estimate and Apportionment of the City of Albany.
Whenever an order shall be made pursuant to
law, directing that the bond of a Marshal be prosecuted in this Court,
the Court may award the aggrieved party his reasonable costs on said
motion, not exceeding the sum of ten dollars ($10.), which shall be
included in the judgment obtained upon such bond.
Where security for costs is required to be given
in said Court in pursuance of Article 87 of the Civil Practice Act,[1] the Court must make an order requiring the plaintiff within
a time specified either to pay into court to abide the final determination
of the section such sum as the Court may direct not exceeding one
hundred dollars ($100.) to be applied to the payment of costs, if
any, awarded against him or at his election to file with the Clerk
and undertaking in a sum not exceeding one hundred dollars ($100.),
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. Where the plaintiff gives a surety
company bond the amount of the premium paid therefor shall be a taxable
disbursement and included in the recovery in the event that the plaintiff
prevails.
[1]
Editor's Note: See now the Civil Practice
Law and Rules.
