ARTICLE SECOND.

I where a new trial is not had in the appellate court.

Hearing of appeal; dismissal thereof.

ase is one where the appellant is not entitled to, or has ded, a new trial in the appellate court, as prescribed 3068 of this act, the respondent may, within twenty he service on him of the notice of appeal, serve upon ant or his attorney a written stipulation that the judgaled from may be reversed with five dollars costs and ents of the appeal, and thereafter no further steps shall in such appeal, except to enter judgment in pursuance tipulation for the enforcement thereof; in case such shall not be so served, the appeal may be brought to n the appellate court at any term thereof at which such can be heard, held after the return is filed, upon a either party of not less than eight days. It must be on the calendar, and must continue thereupon without tice until it is finally disposed of. If, after being regud upon the calendar, neither party brings it to a hearthe end of the second term thereafter at which it noticed for hearing and heard, the court must dismiss unless it directs the same to be continued for cause

364; L. 1895, ch. 946.

Am'd, 1893.] Judgment.

specified in the last section, the appeal must be heard iginal papers, or a certified copy thereof; and a copy or eof need not be furnished for the use of the court The ourt must render judgment according to the justice , without regard to technical errors or defects which ct the merits. It may affirm or reverse the judgment ice, in whole or in part, and as to any or all of the 1 for errors of law or of fact. When the appeal is to court of Kings county, said court may, upon its rejudgment, order a new trial before the same justice, nother justice of the same county to be designated r, and at a time and place to be specified in the order, h a case the costs of the appeal shall be in the disthe appellate court.

308.

When new trial in justice's court may be

ppeal is taken by the defendant, who failed to ore the justice, either upon the return of the sumt the time to which the trial of the action was add he shows, by affidavit or otherwise, that manifest s been done, and renders a satisfactory excuse for his

default; the appellate court may, in its discretion, set aside the judgment appealed from, or stay proceedings thereunder, and by order direct a new trial, before the same justice, or before another justice of the same county, designated in the order, at such a time and place, specified in the order, and upon such terms, as it deems proper.

Co. Proc., part of § 366.

§ 3065. [Am'd, 1893.] Id.; proceedings before justice.

Where a new trial is directed before a justice, as prescribed in the last two sections, the parties must appear before him, at the time and place specified in the order of the appellate court, with out service of any notice, or of a copy of the order. Thereup the like proceedings must be had in the action, as upon the return of a summons personally served.

L. 1893, ch. 380.

3066. Costs; when awarded.

Upon an appeal provided for in this article, the award of costu is regulated as follows:

1. If the appeal is dismissed, because neither party brings to a hearing, as prescribed in this article, costs shall not b awarded to either party.

2. If the judgment is reversed for an error in fact, not affec ing the merits; or if a new trial is directed, before the same another justice, as prescribed in this article; the costs of the appeal are in the discretion of the appellate court.

3. If the judgment is affirmed, costs must be awarded to th respondent.

4. If the judgment is reversed, costs must be awarded to appellant.

5. If the judgment is affirmed only in part, the costs, or sl a part thereof, as to the appellate court seems just, not exceedi ten dollars, besides disbursements, may be awarded to eit party.

Co. Proc., part of §§ 368 and 371.

3067. Amount of costs.

Upon an appeal, provided for in this article, costs, whe awarded, must be as follows, besides disbursements:

To the appellant, upon reversal, thirty dollars.

To the respondent, upon affirmance, twenty-five dollars.
Id., part of § 71, am'd.

878

Appeal for a new trial in the appellate court.

When appellant may demand new trial in appellate court.
Undertaking to be given.

Offer to compromise before return,

Proceedings in appellate court.

Offer to compromise after return.
Amount of costs.

[Am'd, 1893.] When appellant may demand new appellate court.

an issue of fact or an issue of law was joined before e, and the sum, for which judgment was demanded by rty in his pleading, exceeds fifty dollars; or where, in an recover a chattel, the value of the property, as fixed, with the damages recovered, if any, exceeds fifty dolappellant may, in his notice of appeal, except when the to the county court of Kings county, demand a new he appellate court; and thereupon is entitled thereto, the defendant was or was not present at the trial. om a judgment of a justice's court or by a justice of in the city of Brooklyn, or any of the towns in the ! Kings must be taken and disposed of in the manner 1 in articles first and second of this chapter and title, otherwise.

ch. 380.

Undertaking to be given.

An

ler such an appeal effectual, the appellant must at the the service of the notice of appeal upon the justice, undertaking required, by this title, to stay the execution dgment.

part of 355.

[Am'd, 1895.] Offer to compromise before return. a appeal, provided for in this article, from a judgment of money only, either party may, within fifteen days ice of the notice of appeal, serve upon the adverse upon his attorney, a written offer to allow judgment to ed in the appellate court, in favor of either party, for sum. If the offer is not accepted, it cannot be proved trial. If the party, within ten days after service of upon him, serves upon the party making the same, or attorney, written notice that he accepts the offer, he it, with an affidavit of service of the notice of acceptthe clerk of the appellate court, who thereupon must ment accordingly. Where an offer is made as above the party refusing to accept the same shall be liable of the appeal, unless the recovery shall be more favorm than the sum offered. If neither party makes an provided herein, the party in whose favor the verdict, lecision in the appellate court is given, shall be entitled his costs upon the appeal. Costs when awarded acthe provisions of this section shall be in amounts proection three thousand and seventy-three of this article. L. 1895, ch. 356.

§ 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 re view 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.

Co. Proc., §§ 364 and 366.

§ 3072. Offer to compromise after return.

Either party may, at any time after the action is deemed st issue in the appellate court, and before the trial, serve upon the adverse party, a written offer to allow judgment to be taken against him, for a sum, or property, or to the effect, there specified, with or without costs. If there are two or more defend ants, and the action can be severed, a like offer may be made to one or more defendants, against whom a separate judgment may be taken; and, if it is accepted, the action becomes severed, and may proceed against the other defendants, as if it had bee 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 a. cordingly. If the offer is not thus accepted, it cannot be proved upon the trial; and if the party, to whom it is made, fails obtain a more favorable judgment, he cannot recover costs fro the time of the offer, but must pay costs from that time. Id., § 366.

§ 3073. Amount of costs.

Upon an appeal, provided for in this article, costs, whe 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, fiftee dollars.

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

TITLE IX.

Costs.

When prevailing party to recover costs. What costs allowed.
When neither party to recover costs.

Amount of costs limited.

Costs upon demurrer.

Taxation of costs.

Increased costs.

Costs on judgment for one or more defendants.
Costs wrongfully collected may be recovered back.

When prevailing party to recover costs. What lowed.

1

as otherwise specially prescribed by law, a party who judgment in an action in a justice's court, is entitled to hich must be included in the judgment. Costs consist es, allowed by law, for services necessarily rendered in n, at the request of the party entitled to costs, or paid as prescribed by law; and of such other expenses, as a entitled to include in his costs, by express provision of

47, § 126 (2 Edm. 264); L. 1857, ch. 775, § 2 (4 Edm. 700); L. 1866, 2 (6 Edm. 803).

When neither party to recover costs.

er of the following cases, costs shall not be awarded to rty, but each party must pay his own costs:

re the action is discontinued by the absence of the r more than one hour, after the summons is returnable, he time to which the trial has been adjourned. re the justice is disqualified, for a reason specified in 5 of this act.

e the action is discontinued, upon the ground that the is an infant, for whom a guardian ad litem has not ›inted.

action to recover one or more chattels, where the plainrs a chattel, or part of a chattel, or the value thereof, efendant also recovers a chattel, or part of a chattel, been replevied and delivered to the plaintiff, or the eof. The plaintiff is entitled to costs, where both parer, as specified in this subdivision, unless the chattel, the defendant recovers, has been replevied and delive plaintiff.

Am'd, 1895.] Amount of costs limited.

to be awarded, as costs, to the prevailing party, exit is otherwise specially prescribed by law, is limited not exceed fifteen dollars, besides the fees of witnesses, ›n the trial of an issue of fact or of law, either party images to the amount of fifty dollars or more, or one attels, the value of which, as fixed, together with the f any, amounts to fifty dollars or more; or, where, if ant recovers judgment, the sum for which the plaintiff judgment, was fifty dollars or more, or the value of ttels, to recover which the action was brought, was he complaint at fifty dollars or more.