#### The People ex rel. Riccardo Struller et al., Relators, *v.*John McKean, Justice, etc., et al., Respondents.

(Supreme Court, New York Special Term,

June, 1899.)

Municipal Court of the city of New York — An extension of a justice’s time to decide a case extends his time to order a jury trial when in doubt on the facts.

Where parties stipulate that a justice of the Municipal Court of the city of New York may have additional time, beyond eight days after the case has been submitted to him, in which to decide it, the effect is to extend , for a like period the time within which he may, under the Consolidation Act (Laws of 1882, chap. 410, § 1372), make a certificate that he has been unable to decide the issue of fact, and he may then order a trial by jury.

Application for writ of prohibition.

Henry G. K. Heath, for relators.

Henry M. Goldfogle, for respondents.

Beekman, J.

An action was brought by Sarah A. Joseph and another against Riccardo Struller and others in the Municipal Court of the city of Hew York, seventh district, to recover dam*660ages for breach of contract. The case was tried before the respondent, John B. McKean, a justice of said court, and submitted to him for decision. Upon a request for further time within which to determine the case, a written consent was entered into by the attorneys for the parties that ■ they should have until March 31, 1899, within which to submit briefs, and that the justice should have twenty days after such submission within which to decide the cause. It is admitted by the counsel for the relators under the first point of his brief that the case was submitted to the justice for his decision upon briefs on March 31, 1899, and that his time to render a decision extended twenty days front that date, namely, to and including April 20th. On the 19th day of April, 1899, a further stipulation in writing was entered into under which it was consented that the • justice should have “ ten days further time to decide this case.” The necessary import of this stipulation was that the justice was to have ten days in addition to the time, which had- already been given, which would give him to and including April 30th. The contention that the additional time ran only from the date of. the stipulation is, I think, untenable and contrary to the trend of decisions involving the construction of similar stipulations. On the 29th day of April, 1899, the .justice made the following certificate: *“*I certify that I am unable to determine the issues of fact in this case, and decide it proper that the same shotdd be tried by a jury. Case set down for trial on May 5, 1899.” ' This certificate was made pursuant to section 1372 of the Kew York City Consolidation Act, which, pro? vides that “ If after a trial shall have been had before the justice without a jury, the justice shall, within eight days after the submission of the case or proceeding, certify that the evidence is of such a conflicting nature that he has been unable to determine the issue of fact, and that he deems it proper that the same should be tried by jury, he may, by an order, set the same down for- trial by a jury for a day not more than eight days from the time of' the making of the order, and thereupon the action or proceeding shall be continued in court, and tried by jury as hereinbefore provided in the case where a trial by jury is ordered by the’justice before the trial.” The contention is now made that the justice had no power to make any such certificate at the time that he did, and that he has lost all jurisdiction of the cause for the reason that such certificate was made more than." eight days after the submission of the case.” This, I think, involves altogether too narrow a *661construction of the statute. By section 1384 of -the Eew York City. Consolidation Act a justice of the Municipal Court is required to decide a cause “ and render judgment accordingly within eight days from the time the samé is submitted to him for that purpose.” Reading these two sections together, as should be done, the obvious meaning of the former is that the certificate under which the order for a trial by jury may be made must be so made within the time limited by statute for the decision of the cause; and the specific reference which it contains to a period o'f “ eight days ” is but a form of expression signifying that intention. It contemplated that the justice should have all the time allowed him for a decision of the cause within which to reach a conclusion, and failing this, that he might at the last moment, within which he ,was required to act, order a trial by jury. In no other sense than this were the words “ within eight days after the submission of the case ” employed. Although section 1384 of the Consolidation Act, above referred to, provides, as we have seen, for the decision of a cause within eight days from the time of its submission, it is well settled that the parties to an action may extend the period by stipulation, as was done in this case. The necessary effect of such an extension is to place the justice in the same situation with respect to his action in the matter, as if the time thus allowed him had been specifically mentioned in the statute; and if my construction of section 1372 is correct, the justice in this case had the right to make the certificate in question at the time he did. This view is both reasonable and in harmony with the obvious intention of the legislature. The object was to prevent the action from failing by reason of the inability of the justice to decide the questions of fact involved, and to provide a different method for the determination of the same whenever within the limit of time given to him for-a decision he should conclude that an occasion existed for the exercise of his authority to direct a jury trial. The rule is familiar that statutes are to be construed according to their spirit and intention, taking into consideration the object sought to be attained thereby. In the case of People ex rel. Wood v. Lacombe, 99 N. Y. 43, it is said (p. 49): “ In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A" strict- and literal interpretation is not *662always to be adhered to, and where the cáse is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which, are to be regarded in its interpretation; and if these find fair expression in the- statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning. of some -provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty with regard to the intention of the lawmakers.” The application of these principles, in my opinion, abundantly sustains the construction which I have given to section 1372 of the Consolidation Act; and the extension of the respondent’s time to decide necessarily carried with it the extension of his time within which to make the certificate and order in question. My conclusion, / therefore, is that the court below has not lost jurisdiction of the case, and that the writ of prohibition which has been sued out by. the relators should be dismissed, with costs.

Writ dismissed with costs.