
    SUPREME COURT.
    Thomas Taylor and wife agt. Robert Gardner.
    In cases of libel, no more costs than damages can.be recovered, if the recovery is less than §50. (§ 304 amended code, 4th sub.) But, in every such case, the prevailing party is entitled, besides his costs, to necessary disbursements and fees of officers allowed by law. (This case decides the same question as the next preceding, with the additional point that all necessary disbwrsemenis may be allowed.)
    
      Albany Special Term, August 7, 1849.
    —This was an action for libel tried at the Schoharie circuit in June, 1849. The jury found a verdict of six cents in favor of the plaintiffs. A motion was made, on their behalf, for leave to enter in the judgment fell costs of the action. The defendant insisted that the plaintiffs were only entitled to six cents costs.
    J. H. BAMSAY, for plaintiffs.
    
    D. Lawyer, for defendant.
    
   Harris, Justice.

This being an action embraced in the 4th subdivision of the 304th section of the code, the plaintiffs, having recovered in the action, became entitled to costs, of course. They should have applied to the clerk, in the manner prescribed by the 311th section, to determine the amount of such costs, and, if either party should be dissatisfied with his decision, it would be proper to apply to the court, upon motion, to correct his error. This motion is, therefore, premature. But it may save the parties* another motion to consider now the question they have presented.

It is true that, as the law stood when this suit was brought, the plaintiffs would have been entitled to full costs. But the right to costs accrues only upon the termination of the suit, unless otherwise specially provided. The law, therefore, which was in force when the plaintiffs recovered judgment in the action, must decide their rights upon the question of costs. (Supervisors of Onondaga v. Briggs, 3 Denio, 173.) By the amended code, it is provided that the plaintiff, in an action for libel, if he recover less than fifty dollars, shall recover no more costs than damages. It follows, then, that the plaintiffs are only entitled to six cents costs. But the 311th section directs the clerk, upon entering judgment .to insert the sum of the charges for costs “as above provided,” referring to the preceding sections, which prescribe the cases in which costs are recoverable, and the rates of such costs, and also “the necessary disbursements and fees of officers allowed by law. Such disbursements and fees are evidently not embraced in the provision of the 4th subdivision of the 304th section, which limits the plaintiffs to six cents costs. The plaintiffs are therefore entitled, besides their six cents costs, to necessary disbursements and fees of officers allowed by law. Motion denied.  