#### Matter of the Application of William H. Hale.

(Supreme Court, Kings Special Term,

June, 1900.)

1. Municipal Court of the city of New York — Trial fee not to he exacted on default where a summons and verified complaint have keen served.

Where in an action in the Municipal Court of the city of New York a verified complaint is served with the summons, and the defendant does not file a verified answer on the return day, the plaintiff is *105entitled to judgment, and a justice of the said court has no authority to exact a trial fee as a condition of entering the same. Nor can such fee be exacted in advance of an issue being joined, or as a condition of the case being called on the return day, to be returned if no issue be joined.

3. Same — When an individual may serve summons.

"Where a plaintiff in the said court leaves a summons to be served by a city marshal and pays the statutory fee, he is entitled to have a city marshal make the service. The justice has no right to empower an individual to make such service except on the plaintiff’s request.

Motion for a writ of mandamus.

W. H. Hale for motion.

D. D. Whitney opposed.

Gaynor, J.:

This is an application for a peremptory writ of mandamus against a justice of the Municipal Court of the city of New York, to compel him to render judgment in favor of a plaintiff in such court, without exacting of him a fee of $2.00 as a condition. The said plaintiff brought a civil action in the said court against another for $19.49 for goods sold. He caused a verified complaint to be served with the summons. When a verified complaint is thus served the plaintiff is entitled to the judgment prayed for without any evidence unless the defendant files a verified answer on the return day of the summons. Ho such answer was filed in this instance, but the justice refused to give judgment for the plaintiff unless he first paid the trial fee of $2 which is prescribed by law for trials in the said court. But the defendant had not joined issue, and therefore there was to be no trial, but a judgment on default, and the justice had no right to exact such fee, nor had his clerk. By section 1375 of the city charter the board of justices of the said court are given power to make rules as to the hours and order of business in the said court; but this does not empower them to create and exact fees, and the rule made by the said justices for the payment of the said fee of $2 is void in so far as it embraces cases in which an issue has not been joined for trial. Nor can such fee be exacted in anticipation of an issue being joined, to be refunded if it is not. *106joined, or as a condition of the case being put on the calendar and called. The Municipal Court is the poor man’s court, and no fees or burdens not unavoidable ought to be put on litigants there. Indeed, the fees prescribed by law for that court seem onerous, and probably ought to be abolished.

I would therefore grant a writ that the justice render judgment for the plaintiff were it not that there is no sufficient proof of the service of the justice’s summons on the defendant. And this reveals another apparent abuse. The statute is that such summons must be served by a city marshal, unless by a private person specially empowered by the justice. The statute prescribes a fee of $1 for such service. The plaintiff paid the fee and left the summons to be served by a marshal, but the justice instead gave it to a private individual and empowered him to make service. The justice had no right to exact a fee for the making of such service by a private person, nor had he the right to empower such person to make such service without the plaintiff’s request. This has always been deemed so. The plaintiff had the right to have it served by a marshal. The result of such unauthorized giving of the summons to such person by the justice is that he has not filed a proper affidavit of service thereof, and therefore judgment cannot be entered. The service fee should be refunded to the plaintiff for the sake of justice.

The motion has to be denied.