
    Jacob Cohen, an Infant, by Abraham Cohen, His Guardian ad Litem, Respondent, v. New York City Railway Company, Appellant.
    First Department,
    November 15, 1907.
    Practice—Municipal Court-, city of New "York—costs—taxation of jury / fees.
    A party in the Municipal Court of the city of New York, who after duly demanding a jury trial and paying the statutory fees, lias without fault on his part been compelled to pay additional jury fees owing to. successive adjournments by the court on its own motion because of the number of cases on the calendar, is entitled to tax fees so-paid and is not restricted-to a taxation of the original fee only.
    Section’ 238 of the Municipal Court Act, providing that no adjournment can be ■ granted after the return of the jury, except upon the payment of fees by the party requesting the adjournment, applies only where such adjournment is at request of a party, and has no application where the case is adjourned by the justice of his own motion. ■
    Laughlin, J,, .dissented, .with opinion. '
    "Appeal by-the defendant, the New York City Railway Company, from an- order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the lltli day of February, 1907, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, rendered on the 26tli day of June, 1906.
    
      William E. Weaver, for the appellant,
    
      Morris Meyers, for the respondent.
   Scott, J.:

The plaintiff sued in the Municipal Court. Issue was joined on August 20, 1905, whereupon the plaintiff demanded a jury trial and paid to .the clerk of the court the jury fees prescribed by section 231 of the Municipal Court Act (Laws of 1902, chap. 580). The cause w,as thereupon adjourned by consent until October.24, 1905. Upon the adjourned day-the case was adjourned by the justice from time to time until June 20, 1906, when a jury was impaneled and a trial had; Hone of these adjournments were requested by either party, the sole reason for each adjournment being that the justice, owing to the number of cases to bo tried, could not reach and try this case. Upon each adjournment the plaintiff, in order to secure the attendance of a jury on the adjourned day, paid to the clerk the statutory fee for summoning a jury, and the sole question involved in this appeal is whether the plaintiff may tax in his bill of 'costs all of the fees so paid by him, or may' only-tax-the fees for once summoning, the jury. . ' ■

• Section 330 of the Municipal Court Act provides for the inclusion in the bill- of costs of all fees and disbursements prescribed by law for services neces^a/rily rendered in an action at the request of the prevailing party.” The question then is whether or not these jury fees were necessary disbursements in the action. Among the necessary disbursements must be included all that the prevailing party was obliged to- make in order tó secure the rights which the law accords to• him. -It is one of - the rights of either party in the Municipal Court to have his cause tried before a jury, provided that the demand for a jury trial be seasonably made and the prescribed fees for summoning the jury be paid to the clerk, and of this right a party may not be deprived except by his own consent, or as a. consequence of his. own omission to do some act necessary to secure the attendance of the jury.

The method provided by the statute for. procuring a jury in the Municipal Court is .peculiar and quite different from that which obtains in courts of record. Instead of summoning a number of jurors to attend the court on, each day devoted to jury trials and impaneling a jury in each case as it comes on- for trial from the whole number of jurors then in attendance, a number of jurors are summoned for each case, and from the jury’summoned for each particular case are selected the jurors to try that case. Thus, for a jury of six, such as was demanded in the present case, twelve persons are summoned, and from this number six are selected to act as jurors in the case. In order to secure the summoning of the jurors the party demanding a jury trial must pay to the clerk in advance the sum of four dollars and fifty cents, of which twenty-five cents is to be paid to each juror when summoned, and one dollar and fifty cents is paid to the marshal as his fee. The statutory provisions to this effect are as follows, the references.being to the Municipal Court Act of 1902: Section 231 provides that “ the party demanding a trial by jury (at the time issue is joined) shall forthwith ,pay to the clerk the sum of four dollars and fifty cents,” and section 347 provides that “ There shall be paid to the clerks of the court the following sums as ,court fees in an action: xxx For trial by jury of six, four dollars and fifty cents; for trial by ju’ry of twelve, nine dollars. * * * All of the above fees shall be prepaid before the service shall be performed.” Section 231 prescribes liow the jury shall be drawn, as follows: “ The clerk, in each action or special proceeding, in which a jury trial is to be had, must publicly draw twelve persons from the undrawn jury box, and deliver ’ the list thereof to a marshal or to a person deputed by the court for that purpose, with a written or printed notice, directed to each person named in the list, requiring him to attend as directed as a juror, at a time specified therein, out of which number six of the persons attending shall be drawn to try the- cause, provided that number appear.” " Section 235 prescribes how service shall be made upon the jurors, as follows : “ The- officer or the person deputed, as provided in section two hundred and sixteen of this act, must thereupon immediately summon each person named in the list, ly giving him the sum of. twenty-five cents and the notice mentioned in' the last section but one, personally, or by leaving it at his place of residence or business, with some person of suitable age and discretion *' * For this service the marshal is entitled to a fee of one dollar and fifty cents (§ 354). Thus it will be seen that in order to preserve his "right to a jury trial a litigant must pay the jury fee in advance, and each juror must be ¡laid his fee when summoned. The statute prescribes that the notice to be served upon a juror shall specify the time at which he is to- appear, and no provision is made for requiring his attendance at any other time than that for which he is summoned. .If the juror does appear at the time specified he has done all that is required 'of him in the way of attendance, and no means seems to be provided for compelling his attendance at any other time, except the service of' a new notice upon him and the payment of another fee. This seems to have been within the contemplation of the Legislature, for section 238, dealing with adjournments at the request of a party, requires that there shall be. imposed upon the party demanding such an adjournment, as a condition, the payment to the clerk of a fee for resummoning a jury. The plaintiff, therefore, found himself in this positionHe desired a jury trial as was his right. He demanded it seasonably and paid the prescribed fee to procure it; Without fault on liis part and owing to exigencies which he could not control ‘the trial of the cause was necessarily adjourned. The jury summoned for the day first fixed for the trial could not be compelled to attend upon the adjourned day, nor could another jury be summoned for that day except upon the payment of their fees. , The plaintiff must, therefore, abandon his right to a jury trial, which he certainly was not bound to do, or adopt the only possible means to secure it, which was to pay the necessary fees for summoning another jury. Under, the. circumstances the second, and each succeeding jury fee so paid was certainly a necessary disbursement in the action. It is true that the statute does not in express terms provide for. the particular case presented' on this appeal, but the inevitable logic of the provisions of the act relating to the procuring of the attendance of jurors in. the Municipal Court leads to ' the determination arrived at in the court below. It is true that in the present case, and ddubtless in others, the result is to impose an apparently unreasonable burden upon-the defendant. That result, however, flows from the provision's of the statute, and the remedy lies in the hands of the. Legislature. It would. be a greater hardship- to cast upon the plaintiff the burden of either waiving, his statutory right to a jury trial, or, notwithstanding the merit of his cause, of paying the extra jury fees for the necessity for which he was in' nowise responsible. Section 238, providing that “no adjournments can be granted after the return of the jury unless the party requiring the same in addition to the other conditions imposed-upon him, deposit with the clerk the sum of four dollars and fifty cents or nine dollars as the case may be,” evidently applies only when an adjournment is had at the request of a party, and has no application where the case is. adjourned by the justice of his own. motion. The determination of the Appellate Term must be affirmed, with costs.

Patterson, P. J., Houghton and Lambert, JJ., concurred; Laughlin, J., dissented.

Laughlin, J.

(dissenting):

An examination of the various, statutory provisions relating to jury trials in the Municipal Court, borough of Manhattan, and to the taxation of costs in actions triable therein, leads me to the conviction that the Legislature intended that where a jury trial is duly, demánded, the action should bo tried by the jury originally summoned «unless an adjournment is granted at the instance of either party, in which case the fee for summoning another jury is required to be paid as a condition of granting'the adjournment, and that in any event only the jury fee originally paid for summoning the first jury is taxable.

Section 238 of the Municipal Court Act (Laws of 1902, chap. 580) provides as follows: “No adjournments can be granted after the return of the jury unless the party requiring the same in addition to the other conditions imposed upon him, deposit with the clerk the sum of four dollars and fifty cents or nine dollars as the case may be, but no jury fee or sum for summoning of jurors may be included as part of the costs in the judgment, other than the sum originally paid.” '

It is conceded in the majority opinion that the provisions of this section preclude the taxation of a jury fee necessitated by an adjournment requested by either party.; but it is held that no part of tlie section applies where the adjournment is by order of the court, without the request, of either party. I am unable to agree with-this construction'and am ’of opinion that the section should be construed as precluding the taxation of more than one fee for summoning a jury for the reason that where a jury is summoned the court, I think, may not of its own motion discharge the jury and adjourn the case, but if an adjournment becomes necessary, must require the jurors originally summoned to attend on the adjourned day.. The record in the case at bar shows that, all of these adjournments which resulted-in summoning fifteen' different panels of jurors at an expense of sixty-seven dollars and-fifty cents for-the- trial of this little case, were had. “ -by consent.” It does not appear by' the:-record, therefore, that the adjournments were by order of the court or wére -even necessitated by a congestion of-business, although that is claimed .by the respondent and in .effect conceded by the. appellant. The'court appears to he of opinion that the piiblic interests .require that it should go beyond the record and decide the question claimed to, be frequently recurring, as to whether, where the adjournmentis necessitated by a-congestion of business, the jury originally summoned or any jury subsequently summoned may be discharged and another jury summoned, and all jury fees.taxed and included in the judgment. Assuming that each adjournment was thus granted, still I am of opinion that only the fee for originally summoning the jury is taxable. Section 193 of the Municipal Court Act authorizes.the court of its own motion to adjourn a cause -for a period not exceeding eight days at any one adjournment. This section, however, must be .construed-in conjunction-with- the other provisions'of the act. T, am of opinion-that this general authority of the court to adjourn a cause is limited by other provisions relating to-, adjournments in case a jury is summoned.. Section 231 of, the' Municipal Court Act provides as follows: “* * * When a jury trial is demanded the trial of the casé may be adjourned within the limitar tions provided in this act, until, the time fixed for the return of the jury.” Thisseetion is in title 6,- of the act, relating to trials by jury, in which is also found said section 238, already quoted, prohibiting adjournments-after the return of -the jury excepting -upon condition' that another jury fee'b.e paid'by the'party desiring the adjournment. When a jury trial is demanded,, the court should-be able to 'fix the day for the return of- the jury and for the adjournment, of the case at. a" time when the calendar will be -reasonably clear,.so that the case may he tried. This may in some instances involve a long adjournment, but there will be greater justice aiid less expense to litigants in adjourning the cause originally to: a day ívhén it:may be. tided, than in adjourning it as"was done in the case at bar. fifteen or more, times, and in summoning fifteen or more'separate panels of jurors to try the issue, ...' :

It is clear to my mind that the Legislature contemplated in granting the right to a trial by jury in'the Municipal Court, "that the same could be had upon.payment of one fee for summoning jurors. With a view to insuring that end an adjournment at the request of either party is forbidden unless lie- pays the additional fee for summoning another jury, the taxation of jury fees is limited to the amount originally paid and the court is given full discretion to fix the time for the return of the jury on a day when the case may be tried. This construction is borne but by the further provisions of said section 231 which direct the clerk to draw and have the jurors summoned for a time specified in the notice to them, which is to be the time fixed for the adjournment, and provide that out of the twelve persons summoned as jurors “ six. of the persons attending shall be drawn to try the cause, provided that number appear.” The jurors are summoned specially in the particular action and receive twenty-five cents upon being summoned (§ 235), for which they are required to attend and required .to sit, if selected on the jmy as long as the case may last. If a sufficient number of competent jurors do not attend, talesmen may be summoned under section 236 of the Municipal Court Act, and the expense of summoning them is one of the expenses properly taxable under section 330 quoted in the prevailing opinion. - If through any emergency the court should be unable to proceed with the trial on the return day for wliich the jurors are summoned, the jurors maybe selected and the cause then adjourned, or if the court should be unable to devote the time necessary to select the jury, it must have inherent power to continue the cause and direct the jurors to appear at a time when they may be examined and a jury to try the. case may be selected from their number. It would seem, however, that if the court, instead of leaving it to the clerk to summon jurors for any day — the prevailing jiractice, according to statements of both counsel — would exercise proper care in adjourning the canse to a day when the calendar would be clear or sufficiently clear to render it reasonably probable that it could be reached for trial, and would have this in mind in the enactment of rules and in handling the other business coming before the court — the necessity for further adjournment would seldom, if ever, arise.

The majority of the court seems to be of .opinion that the omission to. specially-provide'for''taxation of the fees of jurors*, where the adjournment is had at the instance of the court, is’a legislative oversight. I am of opinion that the omission was' through legislative foresight. I think the Legislature in its wisdom intended'to limit the taxation of jury fees in every case to the fee originally paid, and that it foresaw.the abuse that would- result by permitting adjournments either by the court or at the request of either party, aftgr a party to an action involving a small sum has -once paid the costs of summoning a- jury, and that the prohibition was for. the protection of both parties and to minimize the expense of trials involving small amounts.

For these reasons* therefore, I dissent from the taxation- of more than the original fee for summoning the jury.

- Determination affirmed,- with costs.  