
    PURDY a. PETERS.
    
      Supreme Court, First District; At Chambers,
    
    
      May, 1862.
    Right of Unsuccessful Pabtt to have Judgment Entered.— Fees of Clerk.
    A party desiring to appeal to the Court of Appeals from a decision hy the general term, is entitled to have the successful party enter, or cause to be entered, formal judgment upon the decision.
    The clerk is bound to perform any service lawfully required of him, on being paid his fee therefor.
    But he cannot insist that, before performing a service required of him, he shall be paid the fees for some previous service, for which he has given credit.
    
      Motion to require the prevailing party to enter judgment.
    This action was brought by John Purdy, survivor, &c., against John R. Peters, Jr., and others, executors. The cause was tried before Mr. Justice Gierke, in May, 1859; judgment was rendered in favor of plaintiff for $5,255.86, damages and costs; the defendants appealed to the general term, where the judgment was affirmed. The plaintiff then procured to- be settled on notice, and entered, a judgment or order of the court, at general term, reciting the appeal, the argument, and the affirmance, with costs. A copy of this order was served on the defendant. The plaintiff’s costs were adjusted on notice and! filed, and the clerk was directed to docket judgment for the amount of such costs. No other record or roll of the judgment on appeal was filed. Plaintiff made up the usual judgment-roll, on affirmance, and tendered it to the clerk to be filed, but the latter refused to receive it, because a fee claimed for the argument ($1) had not been paid. Plaintiff claimed that defendants should pay that. Defendants moved to require plaintiff' to enter judgment, so that they might appeal to the Court of Appeals.
    
      George A. Halsey, for the motion.
    
      Henry P. Fessenden, opposed.
    I. Except the record of judgment mentioned in section 281 of the Code, or the compilation of papers to be made in lieu thereof by the clerk, the Code says-nothing of any judgment-roll. No further or other judgment-roll, therefore, is necessary or proper, in this case, than already exists.
    II. If any record of the judgment on appeal is necessary, it is the clerk’s duty to make it, and not the attorney’s. (Code, § 281; Renail a. Harris, 2 Sandf., 641; S. C., 1 Code P., 125.) The only papers required for that purpose are the notice of appeal, the record of the judgment appealed from, the case and exceptions (which are, in legal supposition, annexed to, and form part of the first judgment-roll), and the judgment on appeal ; and perhaps the taxed bill of the costs on appeal. All these have been filed; or if there is doubt about any, it is as respects the case and exceptions, which it was the duty of the appellants to file. (Rule 37.)
    
      III. The plaintiff has, however, as a matter of supererogation, made up and offered to the clerk a formal record of the judgment on appeal. The clerk refused to file the same, because his fee on the argument had not been paid. Ro such fee is due him at all. It is only payable on a trial. (Code, § 312.) A trial is the judicial examination of issues. (Ib-, § 252.) Issues arise only on the pleadings, before judgment. (Ib., §§ 248-251.) The dictum to the contrary, in Wilcox a. Curtiss (10 How. Pr., 91), is obviously ill considered, and wrong. If payable at all, however, it is only payable by the party who brings on the argument. (Code, § 312.) In the present case, this was the defendants.
   Barnard, J.

A party desiring to appeal to the Court of Appeals from a decision, by the general term, is entitled to have the party who was successful at the general term enter, or cause to be entered, formal judgment upon the decision.-

It is, however, urged in opposition to this motion, that formal judgment has not been entered by reason of'the fault or omission of the moving party, inasmuch as the clerk refuses to enter it, in consequence of some fee claimed by the clerk to be payable for a previous service performed by him not having been paid.

The fee in question, if payable at all, was in this case payable by the moving party.

The objection urged would therefore be fatal to the motion, if the clerk has the right to refuse to enter judgment for the reason assigned by him.

The clerk is entitled, before performing any service, to insist on payment of the fees for such service. In which case the party desiring the service to be performed must either pay the fees, or, if he is not bound to pay them, must take measures to compel the party who is bound to pay. It is immaterial to the clerk who pays the fees, but he may refuse to perform any service till he has been paid for it.

If, however, he performs the service without insisting on payment of the fees therefor, lie gives credit to the party who is bound to pay them, and must look to him personally.

The clerk is bound to perform each service required of him on being paid his fee therefor. He cannot insist, that before performing some sendee required of him he shall be paid the fees for some previous service for which he has given credit.

If the clerk is- correct in his proposition in this case, then he can keep a running account in an action, and when a final judgment comes to be entered, insist that the party entering it shall pay the whole account, whether incurred by him or the other party; or even still further, he may keep a running account against an attorney for a year, comprising services in fifty different actions, and finally insist, before entering judgment in some particular action, that the balance of account shall be paid. This has not been authorized by any statute or principle of common law.

The result of these views is that the clerk, on being tendered his fee for entering judgment on the decision of the general term, was bound to enter it, even although a fee for a previous service rendered remained unpaid by either party.

Motion granted without costs.  