.

ing suits. Notice of appeal. Offer to allow judgment to be corrected. Costs on appeal. Set off of costs.

Costs shall be allowed to the prevailing party in judgments rendered on appeal in all cases, with the following exceptions and limitations:

In the notice of appeal the appellant shall state in what particular or particulars he claims the judgment should have been more favorable to him.

Within fifteen days after the service of the notice of appeal, the respondent may serve upon the appellant and justice an offer, in writing, to allow the judgment to be corrected in any of the particulars mentioned in the notice of appeal. The appellant may, thereupon, and within five days thereafter, file with the justice a written acceptance of such offer, who shall thereupon make a minute thereof in his docket, and correct such judgment accordingly, and the same so corrected shall stand as his judgment, and be enforced accordingly; and any execution which has been issued upon the judgment appealed from shall be amended by the justice to correspond with the amended judgment; and no undertaking given to stay execution shall be enforced for more than the amount of the corrected judgment.

If such offer be not made, and the judgment in the appellate court be more favorable to the appellant than the judgment in the court below, or if such offer be made and not accepted, and the judgment of the appellate court be more favorable to the appellant than the offer of the respondent, the appellant shall recover costs.

If the offer be made, and accepted by the appellant, the appellant shall recover all his disbursements on appeal, and all his costs, in the court below.

But the appellant shall not recover costs except as provided in this chapter.

The respondent shall be entitled to recover costs where the appellant is not.

Whenever costs are awarded to the appellant, he shall be allowed to tax as part thereof the costs and fees paid to the justice on making the appeal, as disbursements, in addition to the costs in the appellate court; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him which he

would have been entitled to recover in case the judgment below had been rendered in his favor.

If, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awarded to the other party, the court shall set off such costs against such debt or damages, and render judgment for the balance.

The following fees and costs, and no other, except fees of officers, disbursements, and witnesses' fees, shall be allowed on appeal to the party entitled to costs as herein provided, when the new trial is in the county court:

For proceedings before notice of trial, ten dollars.

For all subsequent proceedings before trial, seven dollars. For trial of an issue of law, ten dollars.

For every trial of an issue of fact, fifteen dollars.

For argument of a motion for a new trial on a case or bill of exceptions, ten dollars.

In all cases, to either party, for every term, not exceeding five, at which the appeal is necessarily on the calendar and is not tried or is not postponed by the court, seven dollars. In other appeals the costs shall be as follows:

To the appellant, on reversal, fifteen dollars:

To the respondent, on the affirmance, twelve dollars.

If the judgment appealed from be reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars.

If the appeal be dismissed for want of prosecution, as provided by section 364, no costs shall be allowed to either party. In every appeal, the justice of the peace before whom the judgment appealed from was rendered, shall receive two dollars for his return.

If the judgment be reversed for an error of fact in the proceedings not affecting the merits, costs shall be in the discretion of the court.

If in the notice of appeal the appellant shall not state in what particular or particulars he claims the judgment should have been made more favorable to him, he shall not be entitled to costs unless the judgment appealed from be wholly reversed.

a. On the reversal of a judgment of a district court the appellant is entitled to those costs of the court below, to which he would have been entitled if the proper judgment bad been rendered there (Jacks v. Darrin, 1 Abb. 232).

APPEAL TO GENERAL TERM

[$ 371.

a. Plaintiff recovered judgment for $140, the defendant appealed and claimed that judgment should have been in his favor. On a new trial in the county court plaintiff recovered $68 59; held that the plaintiff was entitled to costs of appeal (Wynkoop v. Holbert, 25 How. 158).

b. The plaintiff recovered judgment for $159 50; defendant appealed and stated that judgment at most should have been only for $5; the plaintiff did not offer to allow the judgment to be corrected, and on a new trial in the county court recovered judgment for $130; held that defendant was entitled to costs (Fox v. Nellis, 25 How. 144).

c. The costs to the appellant, on a new trial, do not depend solely on the fact that he has recovered a more favorable judgment, but on the fact whether his notice of appeal was sufficient (Forsyth v. Ferguson, 27 How. 67).

d. Set off of costs against recovery (Evans v. Vance, 2 Barb. 598; Johnson v. Farrell, 10 Abb. 384).

e. Costs on appeal in the marine court (Lewis v. Fox, 11 Abb. 134; 281; 19 How. 561; 20 How. 96, note).

f. Costs when appeal heard in the supreme court.-Where an appeal from a judgment rendered by a justice of the peace is heard by the supreme court, because of the incompetency of the county judge to hear the appeal, the successful party will recover the same costs as if the appeal had been decided by the county judge (Taylor v. Seeley, 4 How. 814; 3 Code Rep. 84; O'Callaghan v. Carroll, 16 How. 327).

g. What sections govern the allowance of costs.-Whether the costs to be awarded to the appellant, on appeals from the marine and district courts, are governed exclusively by sections 354 and 371 of the Code, and whether section 330 also applies thereto, query? (Ellert v. Kelly, 4 E. D. Smith, 12; 10 How. 392).

TITLE XII.

Of the Miscellaneous Proceedings in Civil Actions, and General Provisions.

CHAPTER I. SUBMITTING A CONTROVERSY WITHOUT ACTION.

II. PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, LEGATEES,
DEVISEES AND TENANTS HOLDING UNDER A JUDGMENT
DEBTOR.

III. CONFESSION OF JUDGMENT WITHOUT ACTION.

IV. OFFERS OF THE DEFENDANT TO COMPROMISE THE WHOLE

OR A PART OF THE ACTION.

V. ADMISSION OR INSPECTION OF WRITINGS.

VI. EXAMINATION OF PARTIES.

VII. EXAMINATION OF WITNESSES.

VIII. MOTIONS AND ORDERS.

IX. ENTITLING AFFIDAVITS.

X. COMPUTATION OF TIME.

XI. NOTICES, AND FILING AND SERVICE OF PAPERS

XII. DUTIES OF SHERIFFS AND CORONERS.

XIII. ACCOUNTABILITY OF GUARDIANS.

XIV. POWERS OF REFEREES.

XV. MISCELLANEOUS PROVISIONS.

$372. [325.] Controversy, how submitted without action. Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the pro

ceeding in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending.

a. A proceeding under this section is not an action (Lang v. Ropke, 1 Duer, 702). No authority is contained in this section for the submission of actions; it relates solely to the submission of questions of difference without action; and where an action was commenced, and a case, containing the facts upon which the controversy depended, was agreed upon and submitted, it was held that if the action was not thereby discontinued, it must be when a submission is followed by a judgment (Van Sickle v. Van Sickle, 8 How. 265).

b. There is no authority for the appointment of a guardian for an infant, for the purpose of submitting a controversy without action; and an infant cannot consent to such submission (Fisher v. Stilson, 9 Abb. 33).

c. The court can only determine the questions of law that arise upon the facts agreed upon, and has no power to send the cause to a jury for the determination of questions of fact that, upon the face of the submission, may appear to be doubtful. The court must itself construe the submission (Neilson v. Com. Mut. Ins. Co. 3 Duer, 455).

d. On judgment at general term in favor of defendant, he is not entitled to costs for any proceeding before notice of trial, nor to a fee before argument, nor for argument; but he is entitled to a trial fee (Id. 683).

e. The plaintiff must furnish the necessary papers for argument. Rule 43.

§ 373. [326.] Judgment.

Judgment shall be entered in the judgment-book, as in other cases, but without costs, for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment shall constitute the judgment-roll.

§ 374. [327.] Judgment, how enforced or appealed from. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner.