« PreviousContinue »
or postponed, excluding that at which it is tried or heard,
$ 263. In addition to these allowances, if the action be for the recovery of money, or of real or personal property, and a trial have been had, the court may allow at the rate of per cent on the recovery or claim, as in the next section prescribed, for any amount not exceeding five hundred dollars; and per cent for any additional amount.
$ 261. These rates shall be estimated as follows:
1. If the plaintiff recover judgment, it shall be upon the amount of money, or the value of the property, recovered.
2. If the defendant recover judgment, it shall be upon the amount of money, or the value of the property, claimed by the plaintiff.
Where the action is for real or personal property, the value thereof must be determined by the jury, court or referees, by whom the action is tried.
$ 265. When the judgment is for the recovery of money, interest from the time of the verdict or report, until judgment be finally entered, shall be computed by the clerk, and added to the costs of the party entitled thereto.
By the act of 1844, chapter 324, interest is allowed on all judgments, and after verdict or report, and before final judgment, are to be taxed as costs.
$ 266. The clerk shall insert in the entry of judgment on the application of the prevailing party, upon two days' notice to the other, the sum of the charges for costs, as above provided, and the necessary disbursements, allowed by law, including the compensation of referees, and the expense of printing the papers upon any appeal The disbursements shall be stated in detail, and verified by affidavit, which shall be filed.
§ 267. The clerk shall receive,
On every trial, from the party bringing it on, dollars. On entering judgment,
dollars. He shall receive no other fee, for any service whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words.
In addition to the above charges, the clerk of the superior court of the city of New York, and the clerk cf the court of common pleas for the city and county of New-York, shall receive, for the use of the city of NewYork,
dollars for the entry of every judgment, in place of the fees now charged for services of the judges of those courts, at chambers. And hereafter no fee shall be paid for any service of a judge of either of those courts.
8 268. The fees of referees shall be three dollars to each, for every day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation.
$ 269. When an application shall be made to a court or referees, to postpone a trial, the payment to the adverse party of a sum not exceeding
dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement.
270. No costs shall be allowed on a motion.
Of appeals in civil actions.
CHAPTER I. APPEALS IN GENERAL,
II. APPEALS TO THE COURT OF APPEALS.
COURT OF COMMON PLEAS OF THE CITY OF NEW-YORK, FROM A
SINGLE JUDGE, TO THE GENERAL TERM.
A COUNTY COURT, FROM AN INFERIOR COURT.
APPEALS IN GENERAL.
SECTION 271. Writs of error abolished.
272. Orders made out of court, how revicweil.
on the appeal.
While the court of chancery had a separate existence, the review of its decision by the court of last resort, was accomplished by means of a proceding, styled an appeal, and that of the supreme court, was reviewed by the same court, upon a proceeding, styled a writ of error. Under the new constitution, the court of appeals succeeds to the court for the correction of errors, and the present supreme court inherits the jurisdiction of the old chancery and supreme court. By the ju. diciary act of 1817, for the organization of the new judiciary, the double system of review, by appeal and writ of error, was continued and made applicable to the new courts. The circumstances of the case, however, warrant us in believing, that it was adopted as a temporary measure, until time could be taken for a thorough revision of the whole system of appeals. That duty we have endeavored to perform in this title, in connection with the provisions continued in the first part, relating to the courts and their jurisdtiction. We bave substituted a uniforın system of appeals, in all actions, varying only according to the jurisdiction of the courts and their peculiar organization. The security required on appeal has been adapted to the nature of the judgment appealed from, in analogy to that heretofore provided in the court of chancery.
$ 271. Writs of error and appeals in civil actions, as they have heretofore existed, are abolished, and the only mode of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title.
$ 272. An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge, who made it, or may bo vacated or modified on notice, in the manner in which other motions are made.
§ 273. Any party aggrieved may appeal in the cases prescribed in this title.
§ 274. The party appealing, shall be known as the appellant, and the adverse party as the respor dent. But the title of the action shall not be changed, in consequence of the appeal.