should be given, whether he has or has not answered. In the latter case, it may be combined with the notice of adjustment prescribed by section 246. Under the Code of 1848, in which the present section 414 was not contained, it was held unnecessary to serve it, on judgment by default, even when there had been an appearance. See Richards vs. Swetzer, 3 How., 413; 1 C. R., 117; Wilcox vs. Curtis, 1 C. R., 127; but, since the insertion of that section, this cannot be safely relied on. In some few cases, the omission of notice has been held to be a fatal defect. See Elson vs. New York Equitable Insurance Company, 2 Sandf., 654; 2 C. R., 30; Bank of Massillon vs. Dwight, 2 C. R., 49. See also Doke vs. Peck, 1 C. R., 54; Mitchell vs. Hall, 7 How., 490.

The contrary proposition, that such an omission, though clearly an irregularity, is not fatal, and that a retaxation, at the expense of the adverse party, is the proper course, and also, that by means of such retaxation, the irregularity may be cured, the judgment remaining valid for other purposes, is maintained in the more numerous class of cases. See Richards vs. Swetzer, 3 How., 413; 1 C. R., 117; Goldsmith vs. Marpe, 2 C. R., 49; 7 L. O., 351; Dix vs. Palmer, 5 How., 233; 3 C. R., 214; Hughes vs. Mulvey, 1 Sandf., 92; Tracy vs. Humphrey, 1 C. R. (N. S.), 197; Ford vs. Monroe, 6 How., 204; 10 L. O., 155; Gilmartin vs. Smith, 4 Sandf., 684; Potter vs. Smith, 9 How., 262; Stimson vs. Huggins, 16 Barb., 658; 9 How., 86; Van Wyck vs. Reed, 10 How., 366; Chapin vs. Churchill, 12 How., 367. See also Hicks vs. Brennan, 10 Abb., 420; Same case, 10 Abb., 304; Henry vs. Bow, 20 How., 215.

In relation to a readjustment by the prevailing party, where, to prevent anticipated fraud, he has entered up judgment at once, without waiting to give notice of taxation, see Stimson vs. Huggins, 16 Barb., 658; 9 How., 86.

(a.) TAXATION OF COSTS.

The notice having been thus given, the attorney for the prevailing party must attend at the time and place appointed; as, if he omit to do so, and his adversary be present, the notice will, of course, fall to the ground, and, if insisted on, must be renewed for the full period. If, on the contrary, the other side fail to attend, the attorney for the prevailing party may proceed ex parte, and may complete his taxation, after a reasonable delay, at the discretion of the clerk.

The clerk by whom the costs are taxable, and to appear before whom the notice is given, is the clerk of the court where the action is pending, and, in the Supreme Court, the clerk of the county of venue. Code, & 466.

But costs of the Court of Appeals are not taxable by the clerk of

that tribunal, but by the clerk of the court below, where the judgmentrecord is filed, and to whom the remittitur is made. Union India Rubber Company vs. Babcock, 4 Duer, 620; 1 Abb., 262.

Section 310 makes the following provision as to interest:

310. (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.

Singularly enough, the section makes no provision for the computation of interest, on an amount found due, on trial by the court. The omission is, however, disregarded in practice, and interest calculated in this as in other cases.

The prevailing party should have his computation of interest ready for insertion by the clerk, and likewise the formal postea. See next section. It is also convenient, but not strictly necessary, to have statement made out, of the exact amount for which judgment is pro posed to be entered, especially when more than one item enters inte the computation of the recovery.

It has been held that, where the debt itself does not carry interest, it should be computed from the actual making of a referee's report, and not from its assumed date, if antedated. Fuller vs. Squire, S How., 121.

When a remittitur from the Court of Appeals directed that the respondent should recover his costs, and also interest on the judgment, by way of damages, it was held that the respondent could not recover double interest, once under the statute, and once as damages. The formula in question, as generally used, was held to be so far nugatory. Hoard vs. Garner, 4 Sandf., 677.

Where the appointment is attended, any objections to the costs, or any specific items, must be raised at the time. If omitted to be mentioned, they may be held waived, and cannot be urged on an application for readjustment. Cuyler vs. Coats, 10 How., 141. See also Dresser vs. Jennings, 3 Abb., 140; Toll vs. Thomas, 15 How., 315.

In Case vs. Price, 17 How., 348; 9 Abb., 111, it was held that an objection as to the improper joinder of superfluous parties in foreclosure, might be raised on taxation, on objection to the allowance for additional defendants, under section 307, subdivision 1.

Though the judgment of the court, as to costs, be clearly erroneous, the clerk cannot correct the error on taxation; he is forced to follow the directions as given. Chapin vs. Churchill, 12 How., 367. But he is not bound to notice a stipulation between the parties, unless produced to him. Toll vs. Thomas, 15 How., 315.

The taxation of costs, and the insertion of their amount in the entry

of judgment, are not stayed by an appeal, even with security. It is not a proceeding under the judgment, but is, on the contrary, necessary for its completion. Curtis vs. Leavitt, 19 Barb., 530; 1 Abb., 118.

The same case is also authority, for the taxation, according to the old fee-bill, of costs incurred antecedent to, and which, therefore, are not affected by the Code.

The costs of a foreclosure by advertisement are taxable by the clerk, under 2 R. S., 652, section 3, upon requisition of the party liable to pay them, and such party is entitled to the usual notice, and, if such notice be omitted to be given, may obtain a retaxation. A person entitled to a share in the surplus of the fund, out of which the costs are to be paid, stands in the position of a party liable to their payment, and is entitled to require such taxation. In re Moss, 6 How., 263. The amount and items of a bill of costs, as taxable on a proceeding of this description, are given in Collins vs. Standish, 6 How., 493.

The clerk has power to tax costs on a mandamus, the same as costs in an ordinary proceeding. People vs. Colborne, 20 How., 378. But in street opening cases, and others, in which the amount of costs is not limited by law, he has no such authority. Vide chapter 470 of 1847, 38; Matter of Fourth Avenue, 11 Abb., 189; Central Park Case, 12 Abb., 107.

In connection with the taxation, the moving party must present an affidavit, verifying his disbursements. This is expressly prescribed by section 311. The usual practice is to indorse it upon the costs, which are taxed by the clerk, but, of course, it may be made separately and annexed. It must clearly include all the disbursements charged for; and, where travel-fees of witnesses are claimed, its statements must be specific. See hereafter, as to these particulars, in book XIV., under the head of Disbursements.

If the party against whom the costs are taxed, is entitled to any counter-demand, for costs of interlocutory proceedings, awarded to him during the action, and not yet collected, he should apply, upon the taxation, to have the amount set off, producing the order under which he is so entitled. See, however, per contra, Johnson vs. Jillitt, 7 How., 485.

On completion of the taxation, the taxed bill of costs, and all affidavits presented to the clerk on taxation, should, in all cases, be attached to, and filed with the judgment record. Vide Amended Judiciary Act, chapter 470 of 1847, section 38. It should not, however, form part of it. See below, under head of Judgment-Roll.

If either party be dissatisfied with the adjustment of the clerk, his decision is reviewable by a judge of the court. This review is frequently had informally, both parties going at once before a judge at

chambers, and submitting the question. If not, a motion for a retaxation will be the proper course.

It is well settled that such a motion is entertainable, though the Code makes no express provision upon the subject. The objections to the taxation must be raised in this manner, and cannot be brought up, on appeal from the judgment. Beattie vs. Qua, 15 Barb., 132. See also Matter of Fourth Avenue, 11 Abb., 189. And an order denying such a readjustment is appealable. Sluyter vs. Smith, 2 Bosw., 673. See generally, as to the power of a judge to entertain such a motion, Whipple vs. Williams, 4 How., 28; also note at 3 C. R., 24. It is likewise necessarily implied in the numerous class of cases above referred to, holding that judgment on insufficient notice is not void, but merely irregular, and that the irregularity may be cured by a readjustment. See, as to such a proceeding, on behalf of a party who has entered up judgment, without waiting to tax his costs, Stimson vs. Huggins, there referred to. As to a retaxation, in cases where the clerk had no power to tax, see Matter of Fourth Avenue, 11 Abb., 189; Central Park case, 12 Abb., 107.

A motion for readjustment, may be founded on the costs as served, together with the pleadings and proceedings, if necessary, any extraneous information necessary to the due presentation of the objections taken being shown on affidavit.

The right to a readjustment may, however, be waived by laches or delay. See Dresser vs. Wickes, 2 Abb., 460; Matter of Seventy-Sixth Street, 12 Abb., 317. See also, as to the effect of a payment, Collomb vs. Caldwell, 5 How., 336; 1 C. R. (N. S.), 41; Schermerhorn vs. Van Voast, 5 How., 458; 1 C. R. (N. S.), 400; Harris vs. Scofield, MS., noticed in Ford vs. Monroe, 6 How., 204; 10 L. O., 155. The receipt of the amount by the attorney's clerk, in ignorance, was, however, held not to preclude the motion. Ford vs. Monroe, supra.

§ 254. Formal Entry of Judgment.

(a.) ENTRY IN THE JUDGMENT-BOOK.

On the render of judgment, the clerk is bound to enter such judgment in the judgment-book, "specifying clearly the relief granted, or other determination of the action." See sections 279, 280.

This entry is usually made by him, on completion of the adjustment, and ascertainment of the precise amount recovered, and sometimes even afterwards, from the judgment-roll as filed. There can be no question, however, but that this latter practice is technically incorrect, and that the entry should be made at once. And, not merely so, but it has been even

held that, properly, the judgment should be entered by the clerk in the judgment-book, directed to be kept by him by section 278, at the time that judgment is actually pronounced, and that the adjustment of costs is, in strictness, a subsequent proceeding. See Gilmartin vs. Smith, and Stimson vs. Huggins, above cited. The provisions on the subject are, however, merely directory (see same cases), and the practice of completing the whole of the proceedings in relation to the entry of judgment, at one time and upon one single occasion, has become general, and, it may almost be said, universal, except in those comparatively rare instances, where it is desirable for the party to enter up judgment and make a levy at once, to prevent anticipated fraud on the part of his adversary, either abandoning, or subsequently applying for a retaxation of his costs. See, as to this practice, Stimson vs. Huggins, supra.

In relation to the entry of judgment, in a controversy submitted without action, see section 373, above cited.

The entry of judgment by the clerk, can only be made during regular office hours (see rule 9), and the lien of a judgment takes place from the time when it is actually made. Blydenburgh vs. Northrop, 13 How., 289.

Since the amendment of 1851, judgment, when awarded, is final, subject to the right of review by the unsuccessful party, the intermediate term of four days, provided for by the Code of 1849, having been then stricken out. The successful party is therefore entitled to perfect his judgment at once, on taking the necessary steps for that purpose, unless his proceedings are stayed. But, even under the previous measure, this right had been held to be existent. See Lynde vs. Cowenhoven, 4 How., 327; 3 C. R., 7; Renouil vs. Harris, 2 Sandf., 641; 1 C. R., 125; Droz vs. Lakey, 2 Sandf., 681; 2 C. R., 83. See also Traver vs. Silvernail, 2 C. R., 96.

(b.) POSTEA.

At the time when he applies for the entry of judgment, the prevailing party should also prepare and bring with him the formal postea, in which the judgment itself, as determined by the verdict of the jury or decision of the court or referee, is embodied and awarded (called in section 281, "a copy of the judgment"). This paper is of a technical nature, and various forms are given in the appendix. It recites, in all cases, the manner in which the trial has been had, and the verdict or decision which has been pronounced. It then formally awards judgment, in accordance with that verdict or decision, so far as any specific or pecuniary recovery is concerned, fixing the amount of that recovery, for principal and interest, and also for costs, or for costs only, as the case may require.