Where satisfaction of the judgment below, appeared upon the face of the record, it was held, that an order for restitution would follow, as of course. Vide Sheridan vs. Mann, 5 How., 201; 3 C. R., 213. This case came up, however, on writ of error, under the former practice, and not under the Code; and, in the decision, it is laid down that, where the matter is not patent on the record itself, the respondent has a right to be heard.

Under the present practice, notice of the application should, in all cases, be given, and, where the facts are clear, it may be a convenient course, to give that notice simultaneously with the respondent's notice of argument.

In Hunt vs. Westervelt, 4 E. D. Smith, 225, an order for restitution was made, upon production of a transcript from the docket, showing that the judgment was satisfied.

In a case of this description, no evidence, beyond production of the transcript, would seem to be necessary. Where no satisfaction has been entered, proof must be given of the collection of the judgment, either viva voce or by affidavit. If in the latter form, it will be the better course to serve a copy of that affidavit, with the notice of application, as, the matter resting in pais, the respondent has a right to be heard. Vide Sheridan vs. Mann, supra.

When the application is made after the hearing, affidavits or other evidence should then be produced, showing the collection of the judg ment and the fact that it has been reversed. Where not matter of record, copies of this evidence ought to be served with the notice.

Where the judgment is given for the appellant, absolutely and finally, no new trial being granted, it is not merely optional with, but imperative upon the court, to make restitution, for all that the appellant has lost, including his costs of all the proceedings, from the commencement to the termination of the case; and, on application, he will be entitled to the necessary order for that purpose. Estus vs. Baldwin, 9 How., 80; Jacks vs. Darrin, 1 Abb., 232.

In Kennedy vs. O'Brien, 2 E. D. Smith, 41, it is laid down that the proper course, under these circumstances, is a motion to the appellate court for restoration; and, upon that motion being granted, the decision becomes a part of the judgment of that court, and the amount paid may be collected by execution, with the costs.

(c.) JUDGMENT-ROLL.

The form of this document is expressly provided for by section 367. It consists of the return on which the appeal was heard, with the usual postea annexed, showing the action and judgment of the appellate

court.

§ 329. Ulterior Appeal.

As a general rule, the decision of the general term of the Supreme Court, or of the Court of Common Pleas in New York cases, is final and conclusive, and the matter cannot be carried further.

Prior to the amendment of 1857, the prohibition, in this respect, was absolute, and a cause, commenced in one of these courts, could not be carried up to the Court of Appeals, under any circumstances.

And this prohibition was extended, even to appeals in real estate cases, originally commenced in a justice's court, but discontinued and recommenced in the higher jurisdictions, under the provisions of the Code for that purpose. See Brown vs. Brown, 2 Seld., 106; 6 How., 320; Pugsley vs. Kesselburgh, 6 Seld., 420; 7 How., 402, and Wiggins vs. Tallmadge, 7 How., 404.

But, in 1857, this prohibition was relaxed, and the provisions in sec tion 11, as there amended, now stand as follows:

But such appeal shall not be allowed, in an action originally commenced in a court of a justice of the peace, or in the Marine Court of the city of New York, or in an assistant justice's court of that city, or in a justice's court of any of the cities of this state, unless any such general term shall, by order duly entered, allow such appeal, before the end of the next term after which such judgment was entered. The foregoing prohibition shall not extend to actions, discontinued before a justice of the peace, and prosecuted in another court, pursuant to sections sixty and sixty-eight of this Code.

It will be observed that the class of cases, to which Brown vs. Brown, and the other decisions, above cited, belong, is now removed entirely from the scope of the prohibition, and placed on the same footing as actions originally commenced in the county court.

But this exemption does not extend, to cases removed out of one of the New York district courts into the Common Pleas, under chapter 344 of 1857. A case of this nature, though, in fact, tried in the court above, stands, for the purposes of appeal, on the same footing as if it had remained in the court below, and it cannot be carried up to the Court of Appeals, without an order of allowance by the general term, the same as in other cases. Smith vs. White, 23 N. Y., 572.

The application to the general term, may either be made at the time the decision is pronounced, if the parties are in court, or afterwards, on special motion.

In the latter case, the motion should be noticed in the usual manner, the facts tending to show the importance of the questions involved, and the propriety of their being carried up for further review being shown,

by reference to the papers on the appeal, and the opinion of the court, when given, or, if necessary, by affidavits.

In Wait vs. Van Allen, 22 N. Y., 319, it was held that the statutory limitation, as to the time within which the order, allowing the appeal, must be made, is peremptory, and cannot be enlarged under any circumstances. In that case, the motion had been noticed and argued in due time, but was not decided at the term at which it was made, having, as it was proved, been overlooked by the presiding justice. An order was afterwards entered, nunc pro tunc, as of the term at which the motion was made, but the Court of Appeals held that this order was without jurisdiction to support it, and dismissed the appeal.

This decision necessarily overrules that in Clapp vs. Graves, 2 Hilt., 317; 9 Abb., 20; holding that, under similar circumstances, an order for this purpose, might be entered, nunc pro tunc, though no decision was given on the motion, until after the close of the term.

An order of this description will be proper, when there are conflicting decisions upon the point involved. Clapp vs. Graves, 2

Hilt., 243.

But, as a general rule, it should not be granted, except where the case involves great interests, or settles a principle of law, affecting the decision of numerous other cases. Jackson vs. Purchase, 1 Hilt., 357; 14 How., 230.

Nor will such an order be made, on suggestion that, by reason of the want of preparation on the part of counsel, the case was not fully argued, or understood by the court. Drucker vs. Patterson, 2 Hilt., 135.

And, where the point sought to be reviewed was a mere point of practice, and had been already permitted to be taken up in another case, the order was refused. Palmer vs. Moeller, 2 Hilt., 421; 19 How., 322; 9 Abb., 20, note.

The question is, of course, one which rests entirely in the discretion of the tribunal applied to, but the principles laid down in the decisions above referred to, may, probably, be carried out in other cases.

Where such an order is made, the appellant must, of course, see that it is "duly entered," and also that it is included in the return to the Court of Appeals, as being a necessary prerequisite to the right of appeal in such cases.

BOOK XIV.

COSTS.

§ 330. Statutory and Other Provisions.

THE costs to be allowed in civil actions, are regulated by title X., part II., of the Code, which runs as follows:

TITLE X.

Of the Costs in Civil Actions.

§ 303. (258.) All statutes establishing or regulating the costs or fees of attorneys, solicitors, and counsel in civil actions, and all existing rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor or counsel, for his compensation, are repealed; and, hereafter, the measure of such compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums, by way of indemnity for his expenses in the action; which allowances are in this act termed costs.

§ 304. (259.) Costs shall be allowed of course, to the plaintiff, upon a recovery, in the following cases:

1. In an action for the recovery of real property, or when a claim or title to real property arises on the pleadings, or is certified by the court to have come in question at the trial;

2. In an action to recover the possession of personal property;

3. In the actions of which a court of justice of the peace has no jurisdiction;

4. In an action for the recovery of money, where the plaintiff shall recover fifty dollars; but, in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And, in action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall re cover no more costs than damages, unless he recovers also property, the

value of which, with the damages, amounts to fifty dollars, or the possession of property be adjudged to him, the value of which, with the damages, amounts to fifty dollars; such value must be determined by the jury, court, or referee, by whom the action is tried. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several parties, who might have been joined as defendants in the same action, no costs, other than disbursements, shall be allowed to the plaintiff, in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions, have been within this state, and not secreted.

Subdivisions 3 and 4 were amended in 1862, as they now stand. The amendment then made was, however, rather formal than substantial. Otherwise, the section dates from 1849. In 1848, it closed at the end of the first sentence, in subdivision 4.

305. (260.) Costs shall be allowed, of course, to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.

§. 306. (261.) In other actions, costs may be allowed or not, in the discretion of the court.

In all actions where there are several defendants, not united in interest, and making separate defences, by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.

In the following cases, the costs of appeal shall be in the discretion of the

court:

1. When a new trial shall be ordered.

2. When a judgment shall be affirmed in part, and reversed in part.

Dates, as it stands, from the amendment of 1851.

In 1848, the section consisted of the first sentence only. In 1849, it was amended, so as to stand substantially as at present. But the words, "in all actions," were wanting at the beginning of the second clause. Those words were added on the amendment of 1851.

§ 307. (262.) When allowed, costs shall be as follows:

1. To the plaintiff, for all proceedings before notice of trial (including judgment, when rendered).

In an action, where judgment upon failure to answer may be had without application to the court, ten dollars; in an action where judgment can only be taken on application to the court, fifteen dollars; and two dollars for each additional defendant, upon whom process shall have been served. Except in actions for the foreclosure of a mortgage, the allowance for additional defendants is limited to ten such defendants, and, in other cases, to five such defendants.

2. To the defendant, for all proceedings before notice of trial, ten dollars. 3. To either party, for all subsequent proceedings before trial, ten dollars; to either party for attending upon, and taking the deposition of a witness, conditionally, or attending to perpetuate his testimony, ten dollars;