
    T. P. Johnson, Respondent, v. Charles A. Gillette, Appellant.
    (County Court, Onondaga County,
    March, 1896.)
    1. Constables — Action for fees — Evidence.
    In an action by a constable to recover fees for the service of a summons the justice’s docket is competent evidence to show the rendition of the service.
    2. Same — Payment.
    Nonpayment to the constable by the plaintiff of his fee is not shown by the entry of judgment in the docket or by testimony of the justice that the fees had not been paid, where the- latter made no claim of knowledge of transactions between the plaintiff and the constable.
    
      3. Same — Affidavit of travel.
    A blank affidavit as to travel which does, not contain the constable’s name and is signed only by the justice is' not a compliance with section 3324 of the Code and does not entitle the constable to mileage.
    4. Tender — Must be kept good.
    To effect a tender it must be shown affirmatively that the money was tendered unconditionally; that it has been kept ready at all times to pay on demand, and it must be brought into court and deposited at the time of answering.
    5. Same — Waiver of failure to deposit.
    ■ A failure to keep a tender good or to bring it into' court is not waived in an action in justice’s court by riot objecting on that ground.
    Appeal from judgment rendered by Calvin McCarthy, justice of the peace, October 8, 1895, in favor of the above-named plaintiff against the defendant. Damages, $1.05, and $2.20 costs; in all, $3.25.
    Peter B. Cole, for respondent.
    A. Lee Olmstead, for appellant.
   Ross, J.

This action was brought by the plaintiff, a constable , of the town of La Fayette, to recover for services rendered to the-plaintiff for serving-a summons in an action brought by the defendant in- justice’s court,. and the defense, in brief, was. that the charge made by the plaintiff was in excess of the amount to which he is entitled by law, and also a pleri of tender; and it was also claimed by the defendant, upon the trial below, that the plaim tiff had not made the affidavit required by section 3324, Code of Civil Procedure, to entitle him to charge for traveling fees. And also upon the close of the plaintiff’s case, a motion was made for ■a nonsuit, upon the ground, with other reasons, that the plaintiff had not proved- a cause of action.

An appeal of this character should not be encouraged; no appeal which involves only a sum as trifling as .the amount of judgment rendered by the court below, and which does not involve a question of character, or professional skill, should be viewed with favor by an appellate court.

The plaintiff below offered in evidence the docket of the justice of the peace, containing an entry óf the service of the summons by the plaintiff. The docket was competent evidence as tending to show the rendition of the service claimed by the plaintiff, that there was such an action pending, and that a return was made by the plaintiff as having served the summons therein.

The evidence of the justice, from whom the first summons was obtained, proved the fact that the defendant in this action had brought before him an action in which he had recovered judgment,, the summons in which was served by the plaintiff in this action," and while he swears that the fees in that case are unpaid, he also; testifies that he delivered the summons to the plaintiff in that action, the defendant in this, and of necessity only speaks with reference to the payment of the fees to him. It is not claimed,, either upon the direct or cross-examination, that he had any knowledge of what took place at any time between the plaintiff and ' defendant in this action, so at the close of the plaintiff’s proof in this cáse the only evidence that the ■ plaintiff had rendered any-services for the defendant consisted in the fact that a summons-was issued by the justice in "the former case and.given to the-plaintiff, and was returned by the plaintiff as served.

The plaintiff claims that the justice’s docket in the former action, and the summons, and the constable’s return, together with, the evidence of the justice that the constable’s fees.were not paid; (to 'him), make out a case.

•The justice’s docket is evidence of any matter required by law to be entered therein. Code Civ. Pro., § 938.

The justice is required, when he renders a judgment, to specify in his docket-book the items of costs allowed. Code Civ. Pro., § 3078.

I, therefore, determine that the justice’s docket proved the rendition of the services by the plaintiff, and that the amount entered in the docket was $1.05, but nothing more; it does not prove that the defendant had not paid the plaintiff. ' A constable is entitled to demand and receive prepayment for any legal services rendered by him. Code Civ. Pro., § 3328. And is not the presumption as strong that he exercised that right and did receive payment when the services were rendered as that the defendant neglected to pay when the same became due? And it is a serious question if the fact of nonpayment was not a necessary fact to be averred and proved. ' Lent v. N. Y. & M. R. Co., 130 N. Y. 504, 510.

But any defect in the proof which is supplied during the trial will cure an erroneous refusal to nonsuit. Schenectady, etc., P. R. Co. v. Thatcher, 11 N. Y. 102; Kokomo, Straw Board Co. v. Inman, 134 id. 96.

And the defendant fully supplied the evidence necessary to show nonpayment, and, indeed, the rendition of the services. The only controversy between the parties, as disclosed by the evidence "of the defendant, was as to the amount the defendant should pay, he tendering forty-five cents, the plaintiff claiming $1.05.

Was the plaintiff entitled, under the evidence heretofore specified, to receive $1.05? '; The affidavit, which the plaintiff claims was a compliance with section 3324 of the Code of Civil Procedure, ■does not contain the name of the- affiant, is not signed by him, -contains no statement as to the number of miles traveled, and is, in fact, only a blank affidavit signed by the justice, and is clearly -defective. ■

Section 3324, Code of Civil Procedure, provides that a constable who charges any traveling fees must show by affidavit that the travel is necessary. And further, that the justice must be-■satisfied that the miles charged for were actually and necessarily traveled.

. The section in question is more particularly to inform the justice and protect the judgment debtor. The judgment, debtor in the former action could undoubtedly- insist on having that judgment corrected if the item was erroneously inserted, or if compelled to pay," could maintain an action against the constable for •extortion. Sales v. Murphy, 8 Civ. Pro. 326.

Query, whether -the making of the affidavit required by section "3324 is a condition precedent necessary to be performed before the ■constable can recover from the plaintiff. The plaintiff, on the one hand, claims to have the right to be placed in a position where "he will legally b¿ entitled to enter judgment if successful for the •amount of the costs paid to the constable by him, but, on the •other hand, the amount which the plaintiff can require the justice to insert, if successful, does not by any means determine the amount -of his liability to the constable; the amount of the constable’s fees may be, by reason of the number of miles traveled in excess of the statutory costs, allowed to a successful party in justice’s court, and yet the plaintiff could not plead and prove that fact- in answer to a claim made -by the constable for services rendered; but, in any event, the justice would have had the right to tax twenty-five cents for the service of the summons, and probably forty-five cents upon the theory that in any case the constable must necessarily travel a fraction of a mile in going, and a fraction of a mile in returning, and that the affidavit required only relates to. traveling fees charged in excess of one mile. Whether the making of the affidavit required by section 3324 is a condition precedent to a recovery by a constable against a plaintiff who employed him- is unnecessary to be. decided, because I think the evidence of the defendant shows that the plaintiff is not entitled to recover more than forty-five cents for two miles traveled in any event. The defendant’s evidence, in substance, was that he made the claim, in his conversation with, the plaintiff relative to the amount to which the plaintiff was entitled, that he was only entitled to mileage for two miles, and no explanation justifying an additional charge at that time was testified to, and no evidence was given by the plaintiff upon the trial of this case, except as before stated, explaining the amount of fees claimed and which he recovered below, and in the absence of explanation the evidence of the defendant in this regard will be taken as correct.

The contention of the plaintiff’s counsel that the amount of the constable’s fees claimed, $1.05, having been included in the former judgment in favor of the plaintiff, is conclusive upon him and cannot be attacked collaterally, or that the defendant is estopped by the amount of constable’s fees recovered in the former action, seems to me to be unsound.

The operation of an estoppel must be mutual, and it can hardly be claimed that the plaintiff in this action is bound by the recovery between Gillette and the defendant in the former action. A judgment is not binding as between a party and a stranger. Stephen’s Digest, Ev., art. 42. And the plaintiff is a stranger to the former action. For the reasons herein set forth, the plaintiff is not entitled to recover to exceed forty-five cents, and is entitled to recover at least twenty-five cents for service of summons, without mileage, unless the defendant made a sufficient and proper tender, which is the only remaining question.

To effect a common-law tender, it must be shown affirmatively that the money was tendered unconditionally, that it has been kept ready at all times to pay upon demand, ,and must be brought into court and deposited at the time of answering. Brown v. Ferguson, 2 Denio, 196; Livingston v. Harrison, 2 E. D. Smith, 197 (Marine Court); Roosevelt v. Bank, 45 Barb. 579, 584; Becker v. Boon, 61 N. Y. 317.

The reason of this is that the fact of tender admits the claim sued upon, and the right of the plaintiff to recover that amount in any evént, and the amount tendered, belongs to the plaintiff, whatever may be the result of the action. And' to be complete, it must be so placed as to be within the power of the plaintiff to obtain it. Becker v. Boon, 61 N. Y. 322; Wilson v. Doran, 110 id. 101.

, The defendant showed a tender to plaintiff, but did not show affirmatively that it had been kept good; did not show that the same money Was brought' into court, and did not pay it in court at the time of answering, or in fact at any time. For these reasons the tender was ineffectual unless these irregularities were waived by the plaintiff not objecting. .

It was held in Sheriden v. Smith, 2 Hill, 538, that by pleading over the plaintiff waived the failure to pay into court. See also Halpin v. Insurance Co., 118 N. Y. 166, 178.

But the cases where a waiver was claimed were actions in courts of'record, and where by pleading, or. failure to return a pleading served) a waiver was -claimed. But in justices’ courts there are no pleadings subsequent to the answer, and the plaintiff was under no legal obligation to explain to the defendant that he had not fully performed his attempted tender.

It appears that the money upon fhe trial was produced and tendered to'the plaintiff, who would not accept it. I see no legal significance in this further than an unsuccessful tender in court. ' As the tender was ineffectual, the plaintiff is • entitled tq recover judgment for forty-five cents.

Judgment below affirmed as to forty-five cents and justice’s costs, and reversed- as to thé balance of damages allowed in. the judgment below. As the defendant attempted before suit .to pay to the plaintiff the amount so awarded and only failed in establishing the defense .of- tender by irregularities in not keeping the same good (for which irregularities he should pay justice’s costs); in other .words, the plaintiff could have obtained the amount, actually due without suit, for which reasons I award the- defendant $10 costs and $2- disbursements for justice’s. return, pursuant to subdivision 5, section 3066 of the ..Code of Civil Procedure.'

Ordered accordingly.  