Clerke, J.
This case comes before the court on an appeal from the adjustment by the clerk.
The January costs should not be taxed against the plaintiff. The trial was postponed until the next circuit, for the accommodation of the defendant. The plaintiff paid the costs of the day, as the condition of granting his application for a postponement within the circuit.
The adjustment of the February and March costs, by the judge, was an adjustment, not within his power-, for the purpose of entering up the judgment. If he had any power in this respect, it was merely for interlocutory purposes. The taxation, therefore, for these months, should be considered open for the adjustment of the clerk, as an original adjustment. The affidavits for the allowance of witness-fees are defective. They should give the name and place of residence of each witness; should show that the distance travelled by Dexter and Ferguson was the nearest usually travelled route, and that the travel charged for was travelled by them for the purpose of going to the place of trial. The affidavits should also show that the defendant attended solely for the purpose of giving testimony to authorize a charge for him as a witness.
Retaxation ordered.
[138]*138Clerke, J.
The case to which the plaintiff’s counsel refers me is not in point. In that case, the parties have voluntarily agreed that judgment should be entered on the performance of certain conditions. This was a contract: of course, it was for the court, and not the clerk, to judge of the performance of those conditions. In this case, the court made an order 'giving [139]*139a privilege to the plaintiff, on the condition that he should pay certain costs to be taxed. The court, in this order, definitely prescribed the .conditions, and no further judicial action was necessary. The simple question of the payment of the costs • could not require any further intervention of the court. It would produce great inconvenience and delay, if in such cases a new application to the court were necessary.
II.—November, 1862. Appeal from an order denying this motion to set aside the judgment.
Erom the second decision of Mr. Justice Gierke, the plaintiff appealed to the general term. The facts are already sufficiently stated.
Isaiah T. Williams, for the appellant.
I. On principle, a clerk ought not to have the power to decide a dispute of this character. It is an issue that cannot be passed upon hut by some legal authority. The clerk is not a judicial officer in any sense; he is simply ministerial, and parties are not bound to submit their differences to him, nor can they he bound by his decisions. Jurisdiction cannot be conferred even by consent of parties. It can only be exercised where it is conferred by the sovereign power of the State.
II. Our objection is, that the clerk had no power to pass upon the question whether or not there had been an adjustment and a demand. These were points for decision before any judgment could be entered, and the clerk had no power to pass upon them. They were disputed before him, and he found the fact in favor of the defendant, upon the affidavits of Brewster and his clerk. Whether his judgment upon these affidavits was correct or not, is not the question. The question is, Had he the judicial power to pass upon these affidavits, and find the fact, thereby claimed to be proved, in favor of the one party or the other ?
Henry Brewster, for the respondent.
I. These mere questions of practice neither involve the merits nor affect any positive legal right. (St. John a. West, 4 How. Pr., 329, 332; Mead a. Mead, 2 E. D. Smith, 223; Tallman a. Hinman, 10 How. [140]*140Pr., 89; Bank of Geneva a. Reynolds, 20 Ib., 18; S. C., 12 Abbotts’ Pr., 81; N. Y. Ice Co. a. North Western Ins. Co., 23 N. Y., 357.)
[139]*139Motion to set aside judgment denied, with $5 costs.
[140]*140II. By acting on the judgment as correctly entered, and moving for and getting an order to readjust costs, and opposing the bill on readjustment, the appeal and right of appeal were waived.
III. On the merits, the order is right—1. The costs were adjusted before a judge by the consent of the parties. That is sufficient. (Ellsworth a. Gooding, 8 How. Pr., 1; Van Schaick a. Winne, Ib., 5; Hicks a. Waltermire, 7 Ib., 370; Mitchell a. Westervelt, 6 Ib., 265; Code, as amended, § 311.) 2. The demand was properly made. It was not to found process of contempt, but as a notice to the party. . (Code, §§ 417, 418.) 3. There was an adjustment in writing: that is an order. (Code, § 400.) But if not, no order was required, only an adjustment. 4. The manner of entering judgment on such conditional orders is well settled. (Gilliland a. Morrell, 1 Cai., 154; Cai. Pr., 514; 1 Burrell, 421; 2 Grah,. Pr., 616, 621.) The case referred to in the Superior Court was correctly decided, but does not apply. (Code, §§ 382-385.) The clerk is to judge of proofs under section 246.
[141]*141By the Court.*—Barnard, J.
On the 27th of March, 1862, an order was made permitting plaintiff to withdraw a juror “ on payment of costs of the trial and the payment of witnesses actually attending at any other term, other than those where the cause was put off the term by the plaintiff or defendant. If not paid within twenty days after adjustment and demand, defendant may enter judgment of nonsuit.”
Defendant’s attorney gave notice of an application to a judge of this court, at chambers, to adjust the costs under this order. When that application came on to be heard, both plaintiff’s attorney and defendant’s attorney consented that the judge should adjust the costs. The judge thereupon adj usted them at $149.92.
Defendant’s attorney then caused a copy of the order of March 2'7th, 1862, and a copy of the costs as adjusted, having thereon the words and letters “adjusted at $149.92, G. G. B:,” to be served on plaintiff’s attorney. These matters are not disputed. Plaintiff alleges the costs were not demanded. The appeal papers, however, show a proper and sufficient demand of the plaintiff’s attorney of the sum so adjusted.
The costs not having been paid within twenty days after the demand, defendant gave notice of adjustment of the costs in the action by the clerk, and applied to enter a judgment of nonsuit, and to insert in the judgment the costs adjusted by him. Plaintiff appeared and objected that the clerk, under the circumstances of the case, had no right to enter a judgment of nonsuit or to adjust the costs.
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Clerke, J.
This case comes before the court on an appeal from the adjustment by the clerk.
The January costs should not be taxed against the plaintiff. The trial was postponed until the next circuit, for the accommodation of the defendant. The plaintiff paid the costs of the day, as the condition of granting his application for a postponement within the circuit.
The adjustment of the February and March costs, by the judge, was an adjustment, not within his power-, for the purpose of entering up the judgment. If he had any power in this respect, it was merely for interlocutory purposes. The taxation, therefore, for these months, should be considered open for the adjustment of the clerk, as an original adjustment. The affidavits for the allowance of witness-fees are defective. They should give the name and place of residence of each witness; should show that the distance travelled by Dexter and Ferguson was the nearest usually travelled route, and that the travel charged for was travelled by them for the purpose of going to the place of trial. The affidavits should also show that the defendant attended solely for the purpose of giving testimony to authorize a charge for him as a witness.
Retaxation ordered.
[138]*138Clerke, J.
The case to which the plaintiff’s counsel refers me is not in point. In that case, the parties have voluntarily agreed that judgment should be entered on the performance of certain conditions. This was a contract: of course, it was for the court, and not the clerk, to judge of the performance of those conditions. In this case, the court made an order 'giving [139]*139a privilege to the plaintiff, on the condition that he should pay certain costs to be taxed. The court, in this order, definitely prescribed the .conditions, and no further judicial action was necessary. The simple question of the payment of the costs • could not require any further intervention of the court. It would produce great inconvenience and delay, if in such cases a new application to the court were necessary.
II.—November, 1862. Appeal from an order denying this motion to set aside the judgment.
Erom the second decision of Mr. Justice Gierke, the plaintiff appealed to the general term. The facts are already sufficiently stated.
Isaiah T. Williams, for the appellant.
I. On principle, a clerk ought not to have the power to decide a dispute of this character. It is an issue that cannot be passed upon hut by some legal authority. The clerk is not a judicial officer in any sense; he is simply ministerial, and parties are not bound to submit their differences to him, nor can they he bound by his decisions. Jurisdiction cannot be conferred even by consent of parties. It can only be exercised where it is conferred by the sovereign power of the State.
II. Our objection is, that the clerk had no power to pass upon the question whether or not there had been an adjustment and a demand. These were points for decision before any judgment could be entered, and the clerk had no power to pass upon them. They were disputed before him, and he found the fact in favor of the defendant, upon the affidavits of Brewster and his clerk. Whether his judgment upon these affidavits was correct or not, is not the question. The question is, Had he the judicial power to pass upon these affidavits, and find the fact, thereby claimed to be proved, in favor of the one party or the other ?
Henry Brewster, for the respondent.
I. These mere questions of practice neither involve the merits nor affect any positive legal right. (St. John a. West, 4 How. Pr., 329, 332; Mead a. Mead, 2 E. D. Smith, 223; Tallman a. Hinman, 10 How. [140]*140Pr., 89; Bank of Geneva a. Reynolds, 20 Ib., 18; S. C., 12 Abbotts’ Pr., 81; N. Y. Ice Co. a. North Western Ins. Co., 23 N. Y., 357.)
[139]*139Motion to set aside judgment denied, with $5 costs.
[140]*140II. By acting on the judgment as correctly entered, and moving for and getting an order to readjust costs, and opposing the bill on readjustment, the appeal and right of appeal were waived.
III. On the merits, the order is right—1. The costs were adjusted before a judge by the consent of the parties. That is sufficient. (Ellsworth a. Gooding, 8 How. Pr., 1; Van Schaick a. Winne, Ib., 5; Hicks a. Waltermire, 7 Ib., 370; Mitchell a. Westervelt, 6 Ib., 265; Code, as amended, § 311.) 2. The demand was properly made. It was not to found process of contempt, but as a notice to the party. . (Code, §§ 417, 418.) 3. There was an adjustment in writing: that is an order. (Code, § 400.) But if not, no order was required, only an adjustment. 4. The manner of entering judgment on such conditional orders is well settled. (Gilliland a. Morrell, 1 Cai., 154; Cai. Pr., 514; 1 Burrell, 421; 2 Grah,. Pr., 616, 621.) The case referred to in the Superior Court was correctly decided, but does not apply. (Code, §§ 382-385.) The clerk is to judge of proofs under section 246.
[141]*141By the Court.*—Barnard, J.
On the 27th of March, 1862, an order was made permitting plaintiff to withdraw a juror “ on payment of costs of the trial and the payment of witnesses actually attending at any other term, other than those where the cause was put off the term by the plaintiff or defendant. If not paid within twenty days after adjustment and demand, defendant may enter judgment of nonsuit.”
Defendant’s attorney gave notice of an application to a judge of this court, at chambers, to adjust the costs under this order. When that application came on to be heard, both plaintiff’s attorney and defendant’s attorney consented that the judge should adjust the costs. The judge thereupon adj usted them at $149.92.
Defendant’s attorney then caused a copy of the order of March 2'7th, 1862, and a copy of the costs as adjusted, having thereon the words and letters “adjusted at $149.92, G. G. B:,” to be served on plaintiff’s attorney. These matters are not disputed. Plaintiff alleges the costs were not demanded. The appeal papers, however, show a proper and sufficient demand of the plaintiff’s attorney of the sum so adjusted.
The costs not having been paid within twenty days after the demand, defendant gave notice of adjustment of the costs in the action by the clerk, and applied to enter a judgment of nonsuit, and to insert in the judgment the costs adjusted by him. Plaintiff appeared and objected that the clerk, under the circumstances of the case, had no right to enter a judgment of nonsuit or to adjust the costs. The clerk, however, taxed the costs and entered judgment of nonsuit.
Plaintiff then made two motions—one to have the costs so adjusted by the clerk readjusted, and the other to set aside the judgment. The motion for a readjustment was, by consent, adjourned till after the motion to set aside had been decided. The motion to set aside was denied. After decision, the motion. for readjustment was argued and granted, and the plaintiff ap- , peared on such readjustment and objected to several items.
The plaintiff appealed from the order denying the motion to set aside the judgment; and the defendant moves to dismiss the appeal' on two grounds:—first, that the plaintiff, by proceeding with his motion for a readjustment, and appearing on such re[142]*142adjustment, has waived his right of appeal; and second, that the order is not appealable. The appeal, and the motion to dismiss, now come on to be heard.
Assuming the order to be appealable, the decision below was correct. Plaintiff’s counsel contend that the clerk has no power to enter a judgment under a conditional order, upon proof of non-compliance with the condition. This doctrine is at variance with the long-established practice of this court. If judgment is given for plaintiff upon a demurrer, with leave to defendant to answer on paynhent of costs, &c., it has never been the practice to apply to the court for leave to enter judgment on proof of non-compliance with the condition.
The case now before the court is net-distinguished from the one put. The effect of the order of March 27th is to grant a j udgment of nonsuit unless the plaintiff complied with certain conditions.
So also when an inquest is opened on condition of paying costs (the entry of judgment having been stayed), it is the established practice for the clerk to tax the costs and enter judgment, on proof exhibited to him that the condition has not been. complied with. If the .Superior Court, in Pinkney a. Childs, intended to establish a different rule, this court cannot coincide with them. But that decision does not go the length the plaintiff’s counsel supposes. The principle of that decision is, that the clerk is not authorized under any provision of the statute to enter a judgment upon a conditional offer, and this irrespective of the question of performance or non-performance of the condition; and that the offer not operating as an offer under the Code, could only inure as an agreement or contract between the parties; and inuring simply as such agreement, the clerk, as a ministerial officer, was not authorized to adjudicate any. question arising on such contract; and if he was, he was not authorized to enter judgment on the contract.
The present case is entirely different; it is an order of the court directing judgment. Under such an order the clerk is authorized to enter judgment; but while the order directs judgment, it contains a condition, a compliance with which by plaintiff renders the judgment inoperative.
It has been, as before stated, the long-established practice of this court for the clerk, on proof of non-compliance with the condition, to enter judgment according to the order.
[143]*143The court is not inclined to disturb that practice. It would be exceedingly inconvenient if, every time that a motion was granted on payment of $10 costs, a subsequent motion for an order absolute, denying the previous motion, founded on proof that the $10 had not been paid, were to be required.
It was not necessary for the purpose of demanding the costs that a formal order should be entered; the adjustment-is sufficiently made and evidenced by the judge, stating at the bottom of the bill “ adjusted at $149.92,” and adding his initials. Nor is it requisite under the authorities that the original taxed bill should be served or exhibited at the time of serving the copy. The attorney of a party to an action is, for all the purposes of that action, and any proceeding connected therewith (except where the proceeding is intended to lay a foundation for bringing the party into contempt), the representative of that party. As a demand for a bill of particulars, or a notice to produce documents on a trial, may be served on the attorney, although to procure the information to prepare the bill of particulars or to obtain the documents he must apply to his client; so a demand for the payment of costs, the payment of which is directed to be made by an order as a condition on which a favor is granted to the client, may properly be made of the attorney, although he may have to procure the money of his client.
Order appealed from, affirmed, with $10 costs.
Present, Ingraham, P. J., Barnard and Clerks, JJ.