
    People v. Coughtry.
    
      (Supreme Court, General Term, Third Department.
    
    December 12,1890.)
    Change of Venue—Jurisdiction.
    The provision of Laws N. Y. 1888, c. 577, § 3, that suits for violations of the game laws “shall he prosecuted to determination in the county where they shall he commenced, unless, for good cause appearing, a discontinuance shall be directed by the chief game and fish protector, ” does not deprive the supreme court of its power, under the constitution, to change the place of trial of such a suit to the county in which the offense is alleged to have been committed from an adjoining county in which the action was brought, the statute authorizing suit in either county.
    
    Appeal from special term, Albany county.
    Action in the name of the people of the state against William H. Coughtry, for penalties for violations of the game laws. From an order changing the place of trial from the county of Columbia to the county of Albany, on the ground of the convenience of witnesses, plaintiff appeals.
    Argued before Landon and Mayham, JJ.
    
      A. B. Gardenier, for appellant. Franklin M. Danaher, for respondent.
    
      
      See note at end of case.
      
        NOTE.
      Change op Venue—When Granted. The court may, by order, change the place of trial in either of the following cases: (1) Where the county designated for that purpose in the complaint is not the proper county; (2) where there is reason to believe that an impartial trial cannot be had in the proper county; (3) where the convenience of witnesses and the ends of justice will be promoted by the change. Code Civil Proc. §987.
      Such change can be granted only in the specified cases. Iron Foundry v. Hatfield, 43 N. Y. 224.
      Change to Proper County. When defendant demands that the action be tried in the proper county, his attorney must serve upon the plaintiff’s attorney, with the answer or before service of the answer, a written demand accordingly. The demand must specify the county where the defendant requires the action to be tried. If the plaintiff’s attorney does not serve his written consent to the charge, as proposed by the defendant, within 5 days after service of the demand, the defendant’s attorney may, within 10 days thereafter, serve notice of a motion to change the place of trial. • Code Civil Proc. § 986.
      Matter of Right. Defendant’s right to have the place of trial changed to the proper county, when the venue is laid in another, is absolute, and cannot be defeated either by counter-affidavits showing that the convenience of witnesses or the ends of justice require that the place of trial laid in the complaint should be retained, or by an independent motion to retain the venue. In such case the proper practice seems to be to order the change to the proper county on defendant’s motion, and then plaintiff may move for a change of venue as provided by the Code. Veeder v. Baker, 10 Wkly. Dig. 498; Duche v. Grape Sugar Co., 2 Civil Proc. R. 268; Stimson v. Stimson, 9 N. Y. Supp. 238; Moore v. Gardner, 5 How. Pr. 243; Park v. Carnley, 7 How. Pr. 355; Veeder v. Baker, 83 N. Y. 156; Gifford v. Town of Gravesend, 8 Abb. N. C. 246. But this right is absolute only when defendant makes his motion within the time prescribed by section 986; and the power given to the court under section 987, to change the place of trial to the proper county at any time, should not be exercised where the attempted defense seems to have been put in for the mere purpose of delay. Taylor v. Smith, 11 N. Y. Supp. 29.
      As to change to proper county as a matter of right, see, also, Starks v. Bates, 12 How. Pr. 465; Christy v. Kiersted, 47 How. Pr. 467.
      What is Proper County. The “proper county” is a county in which one of the parties resides. Briasco v. Lawrence, 4 N. Y. Supp. 94; Lynch v. Mosher, 4 How. Pr. 86. Where the action is brought by a foreign corporation against a resident of a state, the proper county is that in which defendant resides. Assurance Co. v. Sweetland, 14 Abb. Pr. 240. See, also, Sewing-Machine Co. v. Kimball, 64 Barb.425. But in an action by a foreign corporation which is made a resident by the laws of the state “for the purpose of bringing suits, ” the county where plaintiff had a place of business was held to be the proper county. Coal Co. v. Lynch, 47 How. Pr. 520.
      An action to set aside a general assignment may be removed to the county where the real estate of the assignor is situated, though the plaintiff offers to stipulate that he will not attempt to reach such real estate. Wyatt v. Brooks, 42 Hun, 502. Where plaintiff is a non-resident, and defendants are residents of different counties, plaintiff may bring his action in either county. Forehand v. Collins, 1 Hun, 316.
      Convenience of Witnesses—Application—Discretion of Court. The application rests in the sound discretion of the court; the decision of the special term, denying a motion for a change of venue for convenience of witnesses, will not be disturbed by the general term unless there has been a plain and evident misuse of discretion. Lane v. Town of Hancock, 9 N. Y. Supp. 97; Cromwell v. Romer, 18 Wkly. Dig. 441. An order changing place of trial for convenience of witnesses will not be disturbed by the general term, though it would also have affirmed the order if the court below had arrived at a different conclusion. Schmidt v. Lithographic & Printing Co., 9 N. Y. Supp. 267.
      -Demand not Necessary. A written demand need not be made before moving for a change of venue for convenience of witnesses. Hinchman v. Butler, 7 How. Pr. 462,
      Residence of Witnesses—Distance to be Traveled. On a motion to change the place of trial, the county in which the witnesses reside, and not the distance which they will have to travel, governs. Beardsley v. Dickerson, 4 How. Pr. 81; People v. Wright, 5 How. Pr. 23; Hull v. Hull, 1 Hill, 671.
      Plaintiff may oppose the motion by an affidavit that he has material witnesses in or near the county named in the complaint as the place of trial equal or exceeding in number defendant’s witnesses. Gilbert v. Chapman, 1 How. Pr. 56; Spencer v. Hulbert, 2 Caines, 374; Stoutenbergh v. Legg, 2 Johns. 481; Anon., 7 Cow. 102; Sherwood v. Steele, 12 Wend. 294. But it is not sufficient to defeat the motion that a greater number of witnesses reside in an adjoining state adjacent to the place of trial named in the complaint. The convenience of resident witnesses alone will be considered. Peet v. Billings, 2 Wend. 282; Bank v. Knickerbacker, 6 Wend. 541; Rathbone v. Harman, 4 Wend. 208; Williams v. Fellows, 9 Wend. 451; Hull v. Hull, 1 Hill, 671; Zinc Co. v. Blood, 8 Abb. Pr. 147; Bowles v. Railroad Co., 88 Hun, 507.
      Number of Witnesses—In General. In an action by a wife for the alienation of her husband’s affections, a motion by defendant to change the place of trial to the county where she resides, and where she claims to have gone through a marriage ceremony with plaintiff’s husband, believing him to be unmarried, should be granted. Blake v. Everman, 10 N. Y. Supp. 74.
      In an action for assault and battery, where defendant alleges that he was assaulted by, and did not assault, plaintiff, and asks for a change of venue for convenience of witnesses, the fact that no person other than he and plaintiff were present at the time of the alleged assault is no objection to his right to the change, as the witnesses may be material to show defendant’s condition after the alleged assault. Banks v. Bensky, 7 N. Y. Supp. 518.
      An action brought in one county on notes which, it appears, were given in another county for wood to be delivered in the latter county, is properly changed to that county where it appears that plaintiff’s agent, who took the notes, and witnesses, who heard the contract, live in that county. Tuthill v. Felter, 6 N. Y. Supp. 173.
      In Maynard v. Chase, 8 N. Y. Supp. 746, the machine which was the subject of the notion was in Orange county. The manner in which it worked was a material issue, and could only be proved by witnesses in that county. It was held that, there being no especial preponderance of evidence as to the convenience of witnesses, the order granting a change of venue to Orange county would not be disturbed.
      Preponderance in Number of Witnesses. An order for change of venue to the county where the cause of action arose will not be disturbed where the affidavits show with reasonable certainty that the convenience of a majority of the witnesses who will be sworn will be thus suited. Lyon v. Davis, 7 N. Y. Supp. 564.
      In an action for damages caused by fraud in repairing the state capítol, defendants’ motion to change the place of trial from O. county to the county where the capítol is situated, for convenience of witnesses, will be granted, where defendants’ moving affidavits show that 43 of their material witnesses reside in the capital city, and several others in that county, and plaintiff’s affidavits state but one material witness for it as residing in O. county, though its affidavits weaken the effect of defendants’ affidavits .as to some of the witnesses. People v. Snaith, 8 N. Y. Supp. 668.
      In an action for personal injuries, an application by defendant for a change of venue from W. to Y. county, for convenience of six witnesses, is properly denied where a trial in W. county will be more convenient for plaintiff, her husband, her servant, who was present at the accident, two physicians, and three other material witnesses. Fowler v. Railroad Co., 8 N. Y. Supp. 762. See, also, Wiggin v. Phelps, 10 Hun, 187.
      As to when preponderance in number of witnesses for opposing party will not prevail, see Wallace v. Bond, 4 Hill, 536; Benedict v. Hibbard, 5 Hill, 509; Weed v. Halladay, 1 How. Pr. 73; Garbutt v. Bradner, Id. 122; Jordan v. Garrison, 6 How. Pr. 6; Goodrich v. Vanderbilt, 7 How. Pr. 467; Constantine v. Dunham, 9 Wend. 431.
      
        Equality in Number of Witnesses. Where the opposing party shows an equal or greater number of witnesses, the motion will generally be denied. Fowler v. Railroad Co., 8 N. Y. Supp. 762; Austin v. Hinkley, 13 How. Pr. 576; Sherwood y. Steele, 12 Wend. 294; Wood v. Bishop, 5 Cow. 414; Anker v. Darling, 14 N. Y. St. Rep. 541.
      In Kleinhans v. Whiting, 11 N. Y. Supp. 619, defendants manufactured and delivered to plaintiff, in the county of Erie, a boiler to be used on a steam-boat in Monroe county, under an agreement that the boiler should be so constructed as to pass the government inspector’s test. This test was made in Monroe county, and the boiler pronounced defective. Plaintiff sued for damages in Monroe county, where he resided, alleging that the boiler had been improperly constructed. Defendants answered that the defect was caused by the misconduct of plaintiff’s employes in tampering with the boiler after its arrival in Monroe county, and before the test was made. It was held that all the matters in issue arose in Monroe county, and that it was error to change the venue from that county to Erie county; the number of witnesses on each side being about equal. The place of the transaction will control, where the number of material and necessary Witnesses on each side is nearly equal. Peck v. Parker, 15 Wkly. Dig. 142; Whitail v. Moshier, 7 N. Y. St. Rep. 390.
      Stipulations to Defeat Motion. In Worthy v. Gilbert, 4 Johns. 492, a motion for a change of venue for convenience of witnesses was denied where plaintiff undertook to pay the expense of bringing defendant’s witnesses to the place of trial. Contra, see Rathbone v. Harman, 4 Wend. 208. A motion by defendants for a change of venue from M. county to 0. county for convenience of witnesses is properly denied, where plaintiff stipulates that she relies solely on the fact that she is a bona fide holder of the note sued on for value, and without notice of the equities between defendants and the payee, and that she will not give any evidence of any of the facts (relating to the consideration of the note) alleged in defendants’ answer. Kurz v. Fish, 11 N. Y. Supp. 209. A change will be refused on an offer of the opposing party to give no evidence except of matters occurring in the county in which the venue is laid. Smith v. Averill, 1 Barb. 28.
      But it will not be refused merely because the opposing party offers to admit the chief facts expected to be proved. Insurance Co. v. McCoy, 12 Wkly. Dig. 100.
      Where, in an action for an alleged breach of warranty in the sale of horses, brought in a county distant from that where the sale took place, it appears that defendants have a greater number of material and necessary witnesses than plaintiff, and that they reside at the place where the horses were purchased, and where they had been handled and observed for more than a year before the sale, it is improper to refuse defendants’ motion for a change of venue to that place, though the court, as a condition of the denial, exacts a stipulation that defendants might examine their witnesses at such place before a referee. Belding v. Ladd, 7 N. Y. Supp. 379.
      As to stipulations, see, also, Manning v. Downing, 2 Johns. 453.
      Impartial Trial. An affidavit by plaintiff that a complaint against defendants for the fraud sued for was presented to two grand juries in the county where the capital is situated, and each failed to find a bill; that defendants resided in that county, employed many men, and had business relations with many more; and that, from the many rumors and insinuations of the press and citizens of the capital city, plaintiff believed that an impartial trial could not be had in that county, and that justice would be promoted by a trial in O. county,—is not sufficient to prevent a removal, under Code Civil Proc. N. Y. § 987, subd. 3, which provides that the court may change the place of trial where the ends of justice will be promoted thereby. People v. Snaith, 8 N. Y. Supp. 668.
      The mere influence of the sheriff’s office is no ground for a change of venue. Baker v. Sleight, 2 Caines, 46.
      The fact that the circuit judge of the district in which the county is situated where the venue is laid in a declaration was, previous to his appointment, counsel in the case, is sufficient ground to change the venue. Van Rensselaer v. Douglass, 2 Wend. 290.
      •-Public Excitement as Ground for Change of Venue. The place of trial may be changed on the ground of public excitement, though no effort has been made to try the cause or even impanel a jury. Budge v. Northam, 20 How. Pr. 248; People v. Webb, 1 Hill, 179. See, contra, People v. Wright, 5 How. Pr. 23; Bowman v. Ely, 2 Wend. 250; People v. Railroad Co., 16 How. Pr. 106.
      In Messenger v. Holmes, 12 Wend. 203, it‘was held that a change of venue would be granted on the ground of excitement prevailing in the county where the venue was laid, where there had already been two trials, and the jury had disagreed each time.
      A change of venue will be granted where plaintiff has sought to create public opinion in the case by means of publication in newspapers. Moulton v. Beecher, 1 Abb. N. C. 193.
      Who may Move for Change of Venue. Plaintiff cannot move for a change of venue. Swartwout v. Payne, 16 Johns. 149. His remedy is by amendment. Wakeman V. Sprague, 7 Cow. 164; Wolverton v. Wells, 1 Hill, 374. If he inadvertently allows the time within which he may amend of course to pass, he may move for leave to amend. Pain v. Parker, 13 Johns. 829. But see Pease v. Smith, 3 Lans. 428.
      -Several Defendants. Though, as a general rule, a motion to. change the place of trial should be made by all the defendants, it may be made by one only; but in such case notice must be given to the other defendants, unless they are in default in answering, and it must be shown why all do not join. Sailly v. Hutton, 6 Wend. 508; Chace v. Benham, 12 Wend. 200; Legg v. Dorsheim, 19 Wend. 700; Welling v. Sweet, 1 How.Pr, 156; Bergman v. Noble, 10 Civil Proc. R. 190; Mairs v. Remsen, 3 Code Rep. 138.
      Where the maker and indorser are sued jointly on a note, (Code Civil Proc. 454,) a motion for a change of venue may, under section 455, which provides that “the joinder of a person as a defendant in an action with another person, as prescribed in the last section, does not affect his right to any order or other relief, to which he would have been entitled, if he had been separately sued in the action, ” be made by any one of the defendants. Legg v. Dorsheim, 19 Wend. 700.
      The fact that a motion made by one defendant to change the place of trial was denied, does not affect the right of another defendant, who was afterwards summoned in the action, to make a like motion. Zinc Co. v. Blood, 8 Abb. Pr. 147. Where only one defendant demands a change of the place of trial to the proper county, it may be granted as to all, if all join in the motion therefor. Sherman v. Gregory, 42 How. Pr. 481. When one defendant makes default, and it appears that he is assisting plaintiff against hia co-defendant, the co-defendant may move for a change of venue. Starks v. Bates, 12 How. Pr. 465.
      When Motion must be made. An application for change of venue, made before serving an answer in an action for slander, on the ground that it will be impossible for a material witness to attend in the county where suit is brought, is prematurely made. Briasco v. Lawrence, 4 N. Y. Supp. 94.
      A motion that the place of trial be changed to the proper county may be made 15 days after defendant has served his written demand therefor, Clark v. Campbell, 54 How. Pr. 166; but it cannot be made until after the demand has been made, Van Dyck v. McQuade, 18 Hun, 376; nor until after issue, Hartman v. Spencer, 5 How. Pr. 135; Merrill v. Grinnell, 10 How.Pr. 31; nor while a demurrer is pending, Moore v. Pillsbury, 43 How. Pr. 142. It may be made after answer and before reply. Myers v. Peeter, 2 Code Rep. 147. Unless the motion is made within the time and in the manner prescribed, the right will be deemed to have been waived. Duche v. Grape Sugar Co., 2 Civil Proc. R. 268.
      When a cause has been at issue for two years, and was promptly noticed for trial and placed on the calender, it is too late to move for a change of venue. Hoffman v. Sparling, 12 Hun, 83.
      As to time of making motion, see, also, Chapin v. De Groff, 4 Cow. 554; Lee v. Chapman, 11 Wend. 186; Delavan v. Baldwin, 3 Caines, 104; Kent v. Dodge, 3 Johns. 447; Carpenter v. Watrous, 5 Wend. 102.
      Waiver bt Stipulation. To stipulate, on receiving an extension of time, to take short notice of trial for a certain term in the county in which the action was brought, is a waiver of the right to change the place of trial to the proper county. Haiz v. Starin, 1 N. Y. St. Rep. 553. See, also, Nash v. Ice Co., 6 N. Y. Supp. 913.
      Second Motion—Leave of Court. A demurrer to the answer and a motion by defendant to change the place of trial to the proper county were argued together, and the demurrer was overruled, on the ground that the complaint did not state a cause of action, and the motion was denied. Plaintiff then served an amended complaint, and defendant served with his answer a new demand to change the place of trial. The demand was not complied with, and he then moved to have the change made. It was held that defendant was entitled to make the second motion without leave of court, because when the first motion was made the complaint did not state a cause of action, and it may have been denied on that ground. Veeder v. Baker, 83 N. Y. 156.
      Notice of Motion. A notice of motion to change “the venue or place of trial” is sufficient. Hinchman v. Butler, 7 How. Pr. 462. Code Civil Proc. N. Y. § 798, declares that where the Code provides that a notice must be given or paper served within a specified time before an act is to be done, or that the adverse party has a specified time after notice or service to do an act. if service is made by mail, the time so required or allowed is double the time specified. Section 986, relating to change of venue, requires the defendant to serve a written demand, and, if the plaintiff does not file his consent within five days thereafter, the defendant may “within ten days thereafter serve notice of motion to change. ” Held, that where the demand is served by mail the times for consent and notice are doubled, and a notice within 30 days thereafter is in time. Lesser v. Williams, 5 N. Y. Supp. 97.
      Affidavit. The affidavit for change of venue for convenience of witnesses should state the name of the county to which the removal is desired, and the names of the witnesses, and their residences; that each and every one of them is material to the defense ; and that without the benefit of their testimony defendant cannot safely go to trial, as he is advised by counsel and verily believes; that he has fully and fairly stated his case to his counsel, giving counsel’s name, and has stated to him the facts expected to be proved by each and every one of such witnesses; and that he has a good and substantial defense on the merits. Pierce v. Gunn, 3 Hill, 445; Anon., 6 Cow. 389; Bleecker v. Smith, 37 How. Pr. 28; Anon., 3 Wend. 425; Anon., 1 Hill, 668; Constantine v. Dunham, 9 Wend. 431; People v. Hayes, 7 How. Pr. 248; Lynch v. Mosher, 4 How. Pr. 86; Ellis v. Jones, 6 How. Pr. 296; Briasco v. Lawrence, 4 N. Y. Supp. 94; Bank v. Shepherd, 19 Wend. 10; Bank v. Board, 1 How. Pr. 162; Wharton v. Barry, Id. 62; Carpenter v. Insurance Co., 31 Hun, 78; Bull v. Babbitt, 1 How. Pr. 184; Briasco v. Lawrence, 4 N. Y. Supp. 94. But it need not state how affiant knows that the witnesses will testify as therein set forth. Myers v. Village of Lansingburgh, 8 N. Y. Supp. 92.
      The affidavit must be positive. Franklin v. Underhill, 2 Johns. 374; Manning v. Downing, Id. 453.
      An affidavit that defendant had stated “the facts of his defense, ” instead of “the case,” is insufficient. Rickards v. Swetzer, 3 How. Pr. 413. Also an affidavit that defendant had stated “his case in this cause. ” Ellis v. Jones, 6 How. Pr. 296. But an affidavit that defendant had stated “the facts of this case "is sufficient. Jordan v. Harrison, 6 How. Pr. 6.
      Where a party who is an attorney acts for himself, he need not swear as to any statements to counsel as to the materiality of the witnesses. Ackerman v. Delude, 29 Hun, 137.
      The opposing affidavits, as well as those in support of the motion, should state what is expected to be proved by the witnesses, and the grounds for the belief that they are material. Bank v. Hill, 22 How. Pr. 29; Price v. Water-Works Co., 16 How. Pr. 51; Kelly v. Maltham, 2 Wkly. Dig. 173.
      An affidavit for a change of venue need not state that the action is transitory. If it is not transitory the opposing party must show it. Baker v. Sleight, 2 Caines, 46.
      What Amounts to Change of Venue—Reference. Where an action commenced and made triable in one county is referred for trial to a referee who resides in another county, and is so described in the order of reference, the place of trial is not thereby changed. Wheeler v. Maitland, 12 How. Pr. 35.
      Amendments of Complaint Pending Motion. An amendment of the complaint Which changes the place of trial to the county in which plaintiff resides does not affect a pending motion by defendant for a change of venue to another county for convenience of witnesses, though defendant had not served an amended answer, if the grounds of the motion are adapted to the amended as well as the original complaint. The Code provides that amendments shall be without prejudice to proceedings already had. But the amendment supersedes a motion to change to defendant’s residence, so far as it is founded on the objection that the original county was not the proper one. Toll v. Cromwell, 12 How. Pr. 79.
      An amendment of the complaint of course changing the venue pending a motion to change to another county, on the ground that a fair and impartial trial cannot be had in the original county, prevents the hearing of the motion in the original county, but it may be heard in the county designated by the amendment. Moulton v. Beecher, 1 Abb. N. C.193.
    
   Landon, J.

The action is for the recovery of penalties for alleged violations, by the defendant, of the game laws. The violations are alleged to have been committed in the county of Albany. The action was brought by the district attorney of Columbia county, and the place of trial laid in that county. The appellant’s sole contention is that, under the statute, the court had no power to change the place of trial. Section 3, c. 577, Laws 1888, provides that “such suits shall be commenced on the order of any game or fish protector, in the name of the people, by any district attorney where the offense shall be alleged to have been committed, or by the district attorney of an adjoining county; and such suits shall be prosecuted to determination in the county where they shall be commenced, unless, for good cause appearing, a discontinuance shall be directed by the chief game and fish protector.” Unquestionably, the intent of the legislature was to authorize, in proper cases, these actions to be brought in a county adjoining that in which the violation of the law occurred, but we do not think the legislature, by the provision, “ and such suits shall be prosecuted to determination in the county where they shall be commenced,” intended to deprive the supreme court of the power to change the place of trial from the adjoining county to the county where the alleged offense occurred. The jurisdiction to change the venue, in actions where the convenience of witnesses or the ends of justice demand it, is ancient and useful. The learned counsel for the appellant points out in his instructive brief its antiquity, and the bench and bar would probably unite in attesting its usefulness. The constitution, art. 6, § 6, confers upon the supreme court “general jurisdiction in law and equity.” The eighth section of the same article provides that, “except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and equity that they have heretofore exercised.” The power “to alter and regulate” implies that the old jurisdiction shall, in some degree, continue in an altered or regulated form. Many cases affirm the inability of the legislature to abridge the general jurisdiction of the court. De Hart v. Hatch, 3 Hun, 375, 380; People v. Supervisors, 2 N. Y. Supp. 555; Brooklyn v. New York, 25 Hun, 612; People v. Nichols, 79 N. Y. 590; Alexander v. Bennett, 60 N. Y 206;. Popfinger v. Yutte, 102 N. Y. 42, 6 N. E. Rep. 259; Hutkoff v. Demorest, 103 N. Y. 380, 8 N. E. Rep. 899. Ordinarily an action to recover a penalty must be tried in the county where the cause of action arose. Code Civil Proc. § 983. Where the legislature authorizes such actions tobe brought in another county, the propriety of the jurisdiction of the court to change the place of trial to the county where the cause of action arose, if justice requires it, would seem to be clear. A legislative attempt to deprive the court of it would be an attempt to replace judicial functions with legislative mandates. We need pursue the subject no further than to say that we decline to impute to the legislature an intention, by the use of the language here employed, to deprive the court of its accustomed jurisdiction. The real intent of the act is manifest when the whole provision is read: “Such suits shall be prosecuted to determination in the county where they shall be commenced, unless, for good cause appearing, a discontinuance shall be directed by the chief game and fish protector.” The main intent is to prevent a discontinuance except under the direction of the chief game and fish protector. If there had been an intention to abridge the ¡jurisdiction of the court, we think it would not have been disguised under an enlargement of the powers of this officer.

Order affirmed, with $10 costs and disbursements.  