Petrie v. Fitzgerald, 2 Abb. N. S. 354; Watson v. Gardiner, 50 N. Y. 671; Guckenheimer v. Angevine, 16 Hun, 453; Wilde v. N. Y. C. & H. R. R. R. Co., 43 N. Y. Super. Ct. 269. § 3265. Review of taxation.-A taxation or a retaxation may be reviewed by the court, upon a motion for a new taxation. The order, made upon such a motion, may allow or disallow any item, objected to before the taxing officer, in which case, it has the effect of a new taxation; or it may direct a new taxation before the proper officer, specifying the grounds or the proof, upon which the item may be allowed or disallowed by him. New. Beattie v. Qua, 15 Barb. 132; Whipple v. Williams, 4 How. 28; Mayor v. Cornell, 9 Hun, 215; Rogers v. Rogers, 2 Paige, 458; Jones v. Cook, 11 Hun, 230; Dresser v. Brooks, 2 N. Y. 559; 4 How. 207; Baily v. Stone, 41 id. 346; Penfield v. Jones, 4 Hun, 69; Dresser v. Wicks, 2 Abb. 460; Schermerhorn v. Van Vorst, 5 How. 458; Callomb v. Caldwell, id. 336; Murdock v. Adams, 10 Hun, 566; Corbett v. De Comeau, 45 N. Y. Super. Ct. 587: Dietz v. Farish, 43 id. 87; Sluyter v. Smith, 2 Bosw. 673; McLean v. Hoyt, 56 How. 351; Logan v. Thomas, 11 id. 160; Webb v. Crosby, 11 Paige, 193; People ex rel. Lewis, 28 How. 159; Agricultural Ins. Co. v. Bean, 45 id.444; Goodyear v. Baird, 11 id. 377; Cuyler v. Coates, 10 1d. 142; Guckenheimer v. Angevine, 16 Hun, 453. 3266. Duty of taxing officer.-An officer, authorized to tax costs in an action 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. 2 R. S. 653, 5 (2 Edm. 672). Brown v. Windmuller, 36 N. Y. Super. Ct. 75; 14 Abb. N. S. 359; Rogers v. Rogers, 2 Paige, 458; Stimson v. Huggins, 16 Barb. 658; 9 How. 86; Belding v. Conklin, 4 id. 196. 3267. Affidavit respecting disbursements.- A charge, for the attendance of a witness, cannot be allowed without an affidavit, stating the number of days of his actual attendance; and, TITLE III. Security for costs. SEC. 3268. When defendant may require security for costs. 3269. Id.; after action commenced. 3270. The last two sections qualified. 3271. Id.; in actions by and against executors, etc. 3273. Requisites of undertaking. 3274. Notice of exception; id., of justification. 3275. Justification of sureties. Allowance of undertaking. 3268. [Amended, 1891.] When defendant may require security for costs. 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 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 justice's court of the city of Albany, residing without the city or county, as the case may be, wherein the court is located; or or 2. A foreign corporation; or 3. A person imprisoned under execution for a crime ; 4. The official assignee of a person so imprisoned; the official assignee or official trustee of a debtor; or an assignee in bankruptcy where the action is brought upon a cause of action, arising before the assignment, the appointment 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 459 and 469 of this act. In effect Sept. 1, 1891, and not applicable to actions or proceedings cominenced prior to such date. 2 R. S. 620, 21 (2 Edm. 644). Coates v. Morris, 1 Law Bull. 29: Hodges v. Porter, 10 Hun, 244; Gelch v. Barnaby, 7 Abb. 19; 1 Bosw. 657; Wice v. Com. Ins. Co., 7 Daily, 258; McDonald v. Brass Goods Manufact❜g Co., 2 Abb. N. C. 434; Republic of Mexico v. Arrangoid, 3 Abb. 470; Norton v. Mackie, 8 Hun, 520 Hall v. Waterbury, 1 Law Bull. 22; Florence v. Bulkely, 1 Duer, 705; Ranney v. Stringer, 4 Bosw. 663; Keller v. Town. send, 2 Abb. N. C. 432; Gardner v. Kelly, 2 Sandf. 633; National Ex. Bank v. Silliman, 4 Abb. N. C. 224. 3269. Id.; after action commenced.-The defend ant, 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. 2 R. S. 620, 1 (2 Edm. 644). Long v. Hall, 3 Sandf. 729; Morton v. Domestic Telegraph Co.,1 Abb. N. C. 290; Gomez v. Garr, 18 Wend. 577. § 3270. The last two sections qualified. 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. Ten Broeck v. Reynolds, 13 How. 462; Hulbert v. Newell, 4 id. 93. § 3271. Id.; in actions by and against executors, etc. In an action 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. Code of Proc., part of 3 317; L. 1874, ch. 446, 5. Briggs v. Vandenburgh, 22 N. Y. 467; Bolles v. Duff, 17 Abb. 448; Kimberly v. Goodrich, 22 How. 424; Jenkins v. Stow, 2 Law Bull. 57; Day v. Bach, 1 id. 76; Wilbur v. White, 56 How. 321; More v. Durr, 45 N. Y. Super. Ct. 154; Shepherd v. Burt, 3 Duer, 645; Darby v. Condit, 1 id. 599; Norris v. Breed, 1 Sheldon, 271; 12 Abb. N. S. 185. § 3272. Order to give security.- 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. 2 R. S. 620, part of 3 (2 Edm. 644). Unger v. Forty-second St., etc., R. R. Co., 30 How. 443; 4 Rob. 682; Butler v. Wood, 10 How, 313; Gardner v. Kelly, 2 Sandf, 632; Weil r. Freund, 2 Law Bull. 48; Robinson v. Sinclair, 1 Denio, 628; Boucher . Pia, 14 Abb. 1; Fearn v. Gelpcke, 13 id. 473; Carpenter e. Downing, 6 Hill, 234; Florence v. Bulkley, 1 Duer, 705; Swan v. Matthews, 3 id. 613; Gedney r. Purday, 47 N. Y, 676; Ab bott v. Smith, 8 How. 463; Colt 2. Wheeler, 12 Abb. 388; Caldwell v. Manning, 15 id. 271; 24 How. 38: Micklethwaite v. Rhodes, 4 Sandf. Ch. 434; White v. Smith, 16 Abb. 109, n; Mills e.Chapman, 1 How. 102; Van Vleck v. Clark, 33 Barb. 316; 24 How. 190; Price v. Betts, 6 Paige, 44. S3273. Requisites of undertaking. The under taking, 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 undertaking, which must be at least two hundred and fifty dollars. Id., 4, amended; L. 1875, ch. 305. Montague v. Bassett, 18 Abb. Pr. 13: Nelson v. Bostwick, 5 Hill, 37; Higley . Robinson, 7 Wend. 482; Forty-second & G'd St. F. R. R. Co. v. Guntser, 36 N. Y. Super. Ct. 567; Tallmadge v. Wallis, 1 How. 100; Leftwick v. Clinton, 26 id. 26; Smith v. Norval, 2 C. R. 14. 3274. Notice of exception; id.; of justification.Within ten days after service of the notice of 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 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. Id., 22 5 and 6, amended. Leftwick v. Clinton, 26 How. 26; Hartford Quarry Co. v. Pendleton, 4 Abb. 460. § 3275. Justification of sureties. Allowance of undertaking.-Section 580 of this act applies to the justification of the sureties. Where 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. Id., 22 5 and 6, amended; L. 1875, ch. 305. Riggins v. Williams, 2 Duer, 678; Lake v. Arnold, 44 How. 332; Bronson v. Freeman, 8 id. 492. § 3276. [Amended, 1891.] Order to give additional security. Proceedings. At any time after the allowance of an undertaking, given pursuant to such an order, or as prescribed in section 3278 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. [In effect Sept. 1, 1891. § 3277. Effect of failure to obey order to give se curity. Where the plaintiff fails to comply with an 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 de. fendant may apply therefor, as upon a motion. Ia.. 84, amended; L. 1875, ch. 305. Hoy v. Power, 2 Edw. 491; Boyce v. Bates, 8 How. 495. 3278. Liability of attorney for costs in certain actions. Where a defendant is entitled to require security for costs, as prescribed in section 3268 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 lia bility, although the defendant may not require security for costs to be given, by filing and procuring the allow ance of an undertaking, as if an order had been made as prescribed in section 3272 of this act. |