3071. Proceedings in appellate court. Upon an appeal, provided for in this article, after the expiration of ten days from the time of filing the justice's return, the action is deemed an action at issue in the appellate court; and all the proceedings therein, including the entry, enforcement, and review of the judgment, are the same, as if the action had been commenced in the appellate court, except as otherwise specially prescribed in this chapter.

See Code of Proc., 22 364 and 366. McCann v. Sheike, 5 Week. Dig. 420; Stevens v. Benton, 2 Lans. 156; 39 How. 13; Burton v. Wheeler & Wilson Mfg Co., 5 Week. Dig. 384; Crannell v. Comstock, 12 Hun, 293; Thompson v. Pine, 5 id. 647; Reno v. Millspaugh, 14 id. 229; Shuler v. Myers, 5 Lans. 170; Coulter v. Amer. Mer. Un. Ex. Co., id. 67; Savage v. Cock, 17 Abb. 403; Lapham v. Rice, 63 Barb. 485; reversed on other grounds, 55 N. Y. 472; Cook v. Swift, 10 Abb. 212; Maxon v. Reed, 8 Hun, 618; Wavel v. Wiles, 24 N. Y. 635; Merrill v. Pattison, 44 id. 289; Beach v. Skillman, 12 Hun, 297; Hall v. Andrews, 65 N. Y. 572; Calkins v. Power, 8 Week. Dig. 474; Fowler v. Westervelt, 40 Barb. 374; 17 Abb. 59.

§ 3072. Offer to compromise after return.- Either party may, at any time after the action is deemed at issue in the appellate court, and before the trial, serve upon the adverse party, a written offer to allow judg ment to be taken against him, for a sum, or property, or to the effect, therein specified, with or without costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may bə taken; and, if it is accepted, the action becomes severed, and may proceed against the other defendants, as if it had been originally commenced against them only. If the party receiving the offer, within ten days thereafter, serves upon the adverse party, notice that he accepts it, he may file it, with proof of acceptance; and thereupon the clerk must enter judgment accordingly. If the offer is not thus accepted, it cannot be proved upon the trial; and if the party, to whom it is made, fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.

See Code of Proc., 366.

3073. Amount of costs. Upon an appeal, pro vided for in this article, costs, when awarded, must be as follows, besides disbursements:

For all proceedings before notice of trial, fifteen dollars.

For all subsequent proceedings before trial, ten dollars.

For the trial of an issue of law, fifteen dollars. For the trial of an issue of fact, twenty dollars. For the argument of a motion for a new trial on a case, fifteen dollars.

For each term, not more than five, at which the ap peal is regularly on the calendar, excluding the term, at which it is tried, or otherwise finally disposed of, ten dollars.

Id., part of 371, amended. O'Callaghan v. Carroll, 16 How. 327: Taylor v. Seeley, 4 How. 314; 3 C. R. 84; McLaughlin v. Smith, 3 Hun

250.

TITLE IX.
Costs.

SEC. 3074. When prevailing party to recover costs. What costs allowed. 3075. When neither party to recover costs.

3076. Amount of costs limited.

3077. Costs upon demurrer.

3078. Taxation of costs.

3079. Increased costs.

3080. Costs on judgment for one or more defendants.

3081. Costs wrongfully collected may be recovered back.

3074. When prevailing party to recover costs. What costs allowed. Except as otherwise specially prescribed by law, a party who recovers judgment in an action in a justice's court, is entitled to costs; which must be included in the judgment. Costs consist of the fees, allowed by law, for services necessarily rendered in the action, at the request of the party entitled to costs, or paid by him, as prescribed by law; and of such other expenses, as a party is entitled to include in his costs, by express provision of law.

2 R. S. 247, 126 (2 Edm. 264); L. 1857, ch. 775, 2(4 Edm. 700); L. 1866, ch. 692, 2 (6 Edm. 803). Bronson v. Mann, 13 Johns. 460; Timmerman v. Morrison, 14 id. 369; Williams v. Sherman, 15 id. 195: Dennison v. Collins, 1 Cow. 111..

§ 3075. When neither party to recover costs. - In either of the following cases, costs shall not be awarded either party, but each party must pay his own costs:

Where the action is discontinued by the absence of

the justice for more than one hour, after the summons is returnable, or after the time to which the trial has been adjourned.

2. Where the justice is disqualified, for a reason specified in section 46 of this act.

3. Where the action is discontinued, upon the ground that the defendant is an infant, for whom a guardian ad litem has not been appointed,

4. In an action to recover one or more chattels, where the plaintiff recovers a chattel, or part of a chattel, or the value thereof, and the defendant also recovers a chattel, or part of a chattel, which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is entitled to costs, where both parties recover, as specified in this subdivision, unless the chattel, for which the defendant recovers, has been replevied and delivered to the plaintiff.

New. Wiert v. Cressinger, 4 Johns. 117; McCarty v. McPherson, 11 id. 407; Stoddard v. Holmes, 1 Cow. 245; Edwards v. Russell 21 Wend. 63; Low v. Rice, 8 Johns. 409; Clayton v. Per Dunn, 13 id. 218; Foot v. Morgan, 1 Hill, 654; Cain v. Ingham, 7 Cow. 478; Randall v. Hall, Hill & Denio, 239; Post v. Black, 5 Den. 66; Place v. Butternuts Woolen Co., 28 Barb. 503; Harvey v. Large, 51 id. 222.

3076. Amount of costs limited. The sum to be awarded, as costs, to the prevailing party, except where it is otherwise specially prescribed by law, is limited as follows:

1. It cannot exceed ten dollars, besides the fees of witnesses, where, upon the trial of an issue of fact or of law, either party recovers damages to the amount of fifty dollars or more, or one or more chattels, the value of which, as fixed, together with the damages, if any, amounts to fifty dollars or more; or, where, if the defendant recovers judgment, the sum, for which the. plaintiff demanded judgment, was fifty dollars, or more, or the value of all the chattels, to recover which the action was brought, was stated in the complaint at fifty dollars or more.

2. In every other case, it cannot exceed five dollars, besides the fees of witnesses, attending from another county

But the prevailing party is entitled, in addition to the sums specified in this section, to the fees and expenses allowed by law, for a commission issued to examine a witness, not residing in the county, or in an adjoining

county; and for each adjournment, exceeding one, which was granted upon the application of the party, against whom the judgment is rendered.

Substituted for L. 1866, ch. 692, 2 (6 Edm. 804); L. 1841, ch. 138, § 3 (4) Edm. 546).

§ 3077. Costs upon demurrer. - Where judgment is rendered upon the trial of a demurrer, the costs of the trial must be included therein; otherwise costs are not allowed upon the trial of a demurrer.

New. See Code of Proc., 2 64, subd. 11.

3078. Taxation of costs. Where a justice renders a judgment, he must specify, in his docket-book, the items of costs, which were allowed by him. Be fore any item of costs is thus allowed, other than a fee to the justice, or to a juror or witness who attended, or to a constable who has certified the amount of his fee, upon a paper filed with the justice, the party must show, by his oath, or that of his attorney, to the satisfaction of the justice, that the item was actually and legally paid or incurred.

New.

3079. Increased costs.Increased costs must be awarded in favor of the defendant, in an action in a justice's court, in a case, and increased at the rate, specified in section 3258 of this act.

New. Fuller v. Wilcox, 19 Wend, 351; Wales v. Hart, 2 Cow. 426.

§ 3080. Costs on judgment for one or more defendants. In an action against two or more defendants, not united in interest, who make separate defences by separate answers, if the plaintiff fails to recover judgment against all, the justice must award costs to those who have judgment in their favor.

2 R. S. 616, 18 (2 Edm. 639).

§ 3081. Costs wrongfully collected may be recov ered back. Where a justice includes in a judgment a greater amount of costs than is allowed by law, or an improper item of costs or fees, and the same is collected; the person from whom it was collected may, notwith standing the judgment, recover from the justice who has received it, the amount thereof, with interest. 2 R. S. 266, 230 (2 Edm. 274).

TITLE X.

Action on special proceeding, relating to an animal stray. ing upon the highway.

Sec. 3052. Action against person suffering animals to stray. 3083. Penalties to be recovered.

3084. Certain officers to seize animals straying.

3085. When private person may seize such animals.

3086. Officer or person seizing to present petition.

3087 Precept thereupon.

3088. Id.; how served.

3089. Proof of service of precept.

3090. Answer; trial.

3091. Decision in favor of petitioner; warrant to sell; execution

thereof.

3092. Application of proceeds of sale.

3093. Disposition of surplus.

3094. Id.; when no claim made within a year.

3095. Order upon claim for surplus; appeal therefrom.

3096. Proceedings upon decision in favor of person answering.

3097. Demand of possession before trial. Proceedings thereupon. 3098. Id.; when animal wilfully set at large by third person.

3099. Action by owner in such a case.

3100. Action by petitioner and by officer.

3101. Demand of possession after final order and before sale.

3102. Order upon demand of possession; appeal therefrom.

3103. Id.; stay of proceedings.

3104. Appeal from final order.

3105. Id.; by claimant; stay of proceedings and delivery of pos

session.

3106. Proceedings upon affirmance.

3107. Limitation of action for seizing animals.

3108. Certain actions cannot be maintained.

3109. Where several animals are trespassing, damages are entire. Proceedings in such cases.

3110. Proceedings in other cases, where there are different owners. 3111. Surplus, where there are different owners.

3112. When one action, etc., supersedes any other.

3113. Rights of officer when private person fails to prosecute.
3114. Person having a special property deemed owner.
3115. Agent may act for his principal.

§ 3082, Action against person suffering animals to stray. Any person, who suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep, or goats, to run at large, or to be herded or pastured, in a public street, highway, park or place, elsewhere than in a city, incurs thereby the penalty or penalties specified in the next section; and any resident of the town, or the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of this act, or the overseer or superintendent of the poor of the town or district, in which one or more of those animals are found so running at large, herded, or pastured,