
    (34 Misc. Rep. 273.)
    PEOPLE ex rel. KEMPNER et al. v. WILSON, Clerk.
    (Supreme Court, Special Term, New York County.
    March 2, 1901.)
    Trial Fees—Return—Mandamus.
    Code, § 252, defines a trial as a judicial examination of the issues between the parties. A rule of the board of municipal justices provided that trial fees paid to the clerk should not be returned to the plaintiff after issue had been joined or trial had. Held, that where defendant filed an answer, and the case was adjourned several times after issue joined, and judgment was finally entered for plaintiff on proving his cause of action, because defendant failed to appear, plaintiff was not entitled to the return of his trial fees on the ground that there was no trial.
    Application by the people, on the relation of Nathan' Kempner and another, against Herman B. Wilson, for writ of mandamus to compel respondent, as clerk of the municipal court, to return to relators a sum deposited with respondent as trial fees.
    Writ denied.
    M. A. Lesser, for relators.
    John Whalen and William R. Crowell, for respondent.
   McADAM, J.

The relators apply for a peremptory writ of mandamus requiring the respondent, as clerk of the municipal court for the Eleventh district, to return to them the trial fee of $3, exacted by him from them, pursuant to rule 12 of the board of municipal justices, passed agreebly to the authority conferred by section 1375 of the charter. The rule provides that “trial fees paid to the clerk shall in no case be returned to the plaintiff after issue has been joined, except in cases where the answer has been withdrawn before inquest taken or trial had.” It appears that the relators brought an action in said municipal court against one Simpson. Upon the return day the defendant filed a verified answer, and the issue so joined was adjourned several times for trial. Finally, and on November 19, 1900, the cause was called for trial, and, the defendant failing to appear, the plaintiffs proved their cause of action, and the justice thereupon rendered judgment in plaintiffs’ favor. The relators claim that, because defendant failed to appear on the last adjourned day, there was no trial, and consequently they became entitled to the return of the trial fee, and it is on this theory they make their present application. The position is untenable. The former Code (section 252) defined a trial as “a judicial examination of the issues between the parties,” and such an examination was had in the municipal court. The plaintiffs recovered only after proof of the facts and examination of the issues by the justice. What occurred amounts in law to a trial for all the purposes of costs. Place v. Manufacturing Co., 28 How. Prac. 184; Mora v. Insurance Co., 10 Bosw. 622; Shannon v. Brower, 2 Abb. Prac. 377, 3 Wait, Prac. 2. In re Hale, 32 Misc. Rep. 104, 65 N. Y. Supp. 449, is inapplicable. Issue had not been.joined in that case.

It follows that the application must be denied.  