
    Matter of the Application of Charles E. Du Bois for a Writ of Mandamus.
    (Supreme Court, Kings Special Term,
    December, 1901.)
    Municipal Court of the city of Hew York—Trial fee not exactable in advance nor collectible on an inquest.
    The Municipal Court of the city of New York cannot lawfully direct the exaction of, nor can a clerk thereof collect, a trial fee in advance of the trial, and the clerk cannot retain such a fee, collected of the plaintiff in advance, where there has been an inquest and no trial.
    This is an application fór a writ of mandamus against the clerk of the municipal court of the city of ¡New York for the second district of Brooklyn borough that he refund to the petitioner the sum of $2.50 which he exacted and'received of the petitioner for a trial fee in a case in the said court in which the petitioner was plaintiff. To the oral complaint in such action the defendant put in an oral answer, viz., a general denial, on the return day. The said clerk thereupon, and then, demanded and received such trial fee of the plaintiff. On the adjourned day the defendant did not appear and the plaintiff took judgment by default. He then demanded back the said trial fee, but it was refused.
    C. H. Machin for petitioner.
    Samuel K. Probasco opposed.
   Gaynor, J.:

The application must he granted. There was no trial, and therefore no trial fee could be charged. It was the same as though the defendant had defaulted on the return day. In that case the plaintiff would have had to prove his case before the justice in order to get judgment; and the same was the case on the adjourned day. If the trial fee had not been exacted in advance it would not have been asked for on the adjourned day as there was no trial. The clerk has no right to exact a trial fee in advance of the trial day in anticipation of a trial, and as a condition precedent to putting the case on the calendar (Matter of Hale, 32 Misc. 104). Rule 12 of the board of justices of the municipal court seems to authorize that the trial fee be collected in advance, and it says that it shall not be returned unless the answer be withdrawn before inquest. But such board has no power to make rules for the imposing of fees. That is regulated by statute. The power given by section 1315 of the city charter to make rules does not empower the board to make rules for exacting or keeping fees. It is a general principle, well understood, that no fees can be demanded or retained by public officers except by the letter of some statute.

By section 1369 of the city charter the fees prescribed by sections 1416 and' 1417 of the charter of the former city of New York are retained for the municipal courts. These sections in prescribing fees for trials have heretofore been invariably construed in actual practice as meaning actual trials and not mere inquests, as is well known to the public and particularly to the bar. The present instance of charging a trial fee for an inquest is contrary to established practice. The practice which has grown up in the Supreme Court of allowing attorney’s costs on an inquest the same as on a trial, though similar to what is .claimed here, is not in point. Such costs are not official fees. Whether it is the custom for county clerks- throughout the state to charge their official trial fee of $1.00 for inquests has not been discussed before me; but if it is I do not think it should.weigh on the question of changing the practice and settled meaning of the word trial in municipal and justices courts. They are the courts of the poor, and it were better if no fees at all were charged there. Hone should be charged except under the strict letter of the statute.

■The application is granted.  