#### Giovanni De Nigris, Appellant, *v.*Samuel Brill et al., Respondents.

(Supreme Court, Appellate Term,

June, 1905.)

Municipal Court of tire city of New York — Fee for jury — Must tie paid again where first jury discharged — Municipal Court Act, § 231. — When two jury fees taxable — Municipal Court Act, § 238.

Where, in the Municipal Court, on return day, the plaintiff demanded a jury and paid the fee, the jury was summoned ap<$ the clerk paid out the jury fee he had received from plaintiff" and, owing to the pressure of business, the justice, of his own motion, adjourned the trial and discharged the jury, and, on the-adjourned day, held that plaintiff must pay a second jury, fee- or go to trial without a jury and, the plaintiff refusing to dee either," the complaint was dismissed, without prejudice to another action, held, that the judgment should be affirmed.

Appeal by tbe plaintiff from a judgment in favor of the-defendants, rendered in the Municipal Court of the city of Eew York, first district, borough of Manhattan.

Rosario Maggio, for appellant.

E. Sidney Berry, for respondents.

Scott, J.

On the return day the plaintiff demanded & jury and paid the fee required by section 231, Municipal Court Act. It appears from the-return that a jury was accordingly summoned for the trial day, and that the clerk paid? out the jury fee which he had received from the plaintiff. Owing to the large amount of business demanding attention the justice, of his motion, adjourned the trial to a later date. It is to be assumed, although not expressly so stated, that the jury which had been summoned to try this case was discharged. On the adjourned day the justice held that the plaintiff must pay a second jury fee or go to trial without a jury. As the plaintiff refused to do either his complaint was dismissed without prejudice to another action. The sole *649question presented by the appeal is whether or not the plaintiff, under the circumstances, if he desired, a jury was bound' to pay a second jury fee. The case here presented does not seem to be provided for by the statute. In the nature of the case, however, I am of opinion that the justice rightly ruled. The jury fees are provided for the compensation of the jurors. The first jury summoned was entitled to receive the fee because it had obeyed the summons to attend and was prevented from doing so by no fault of its own. So also the second jury, if one had been summoned, would have been entitled to its fees, and yet the fee could not be paid them unless the amount was paid by the plaintiff, since we have been referred to no other source from which these fees could be paid. It was simply a misfortune of the plaintiff" that circumstances prevented the trial on the first day for which a jury was summoned. I think, however, that if the plaintiff had paid a second fee he would, if successful, have-been entitled to tax both fees. Section 238 of the Municipal Court Act, which provides that only one jury fee may Ido taxed, refers exclusively to a case where the adjournment is had on the application of a party. When, however, a cause is adjourned by the justice, - without application of either party and for the reason and under the circumstances disclosed by the record, neither party is responsible for the adjournment and the consequent loss of the jury fee.

The judgment should be affirmed, with costs.

Dugho, J., concurs.

MacLean, J.

(dissenting). On the return day, the plaintiff demanded a jury trial and forthwith paid his fee pursuant to section 231 of the Municipal Court. Act. Thereafter the cause was adjourned, not upon application of the parties, but by order of the court because of a congested calendar. When called upon the adjourned day the justice-dismissed the cause for failure of the plaintiff to pay another-jury fee. This was. error. Had the adjournment been at the request of the plaintiff, an additional fee might have-been imposed (Mun. Ct. Act, § 238), but there is no provision *650in the act for an additional fee in case like the present. If it be urged that it is provided for by Rule YII of the Rules of Practice there,, viz., *“*each additional venire requires an additional jury fee,” it may be answered that such provision is not within the powers of the board of justices. In their adoption, amendment, or additions in section 1315 of the Greater New York Charter, it was determined that *“*this does not empower them to create and exact fees.” Matter of Hale, 32 Misc. Rep. 104, 105. The rule in such respect is, therefore, insufficient authority for the imposition of additional fees, and, express provision not therefore appearing, it must be held that their requirement, under the circumstances herein, was improper, and calls for a reversal of this judgment.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Judgment affirmed, with costs.