
    Michael Bellappi, Resp’t, v. Belle Hovey, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    Justices op the peace—Jury pees.
    Section 3328 of the Code does not authorize the justice to refuse to issue a venire unless the party asking for it pays or secures the fees of the jurors.
    Appeal from a judgment of the county court, affirming a judgment in favor of plaintiff, rendered by a justice of the peace.
    The action is one for labor and services, claimed to have been rendered by the plaintiff for the defendant. Issue was joined before the justice of the peace upon the 4th day of August, 1894, at which time the defendant demanded a trial by jury. , The justice before whom the action was pending refused to issue a venire unless the defendant first paid or secured the fees of the jurors. The defendant declined to do either, an'd the justice proceeded to hear the plaintiff’s evidence on the return day, and the defendant took no part in the trial. The justice thereupon rendered a judgment in favor of the plaintiff and against the defendant for the Sum of $33.20 damages and $2.25 costs.
    
      Jl WL Gongdon, for app’lt; Frank J. Fobinson, for resp’t.
   Adams, J.

It is contended by the respondent that the justice before whom the action was tried was justified in insisting, as a condition to the issuing by him of the venire demanded by the defendant, that the fees of the jurors should either be paid or secured; and'he rests such contention upon the language of section 3328 of the Code of Civil Procedure, which reads as follows: “A justice of the peace, or a constable, juror or witness before a justice of the peace is not obliged to render any services specified in this title, without the previous payment or tender of his.fee therefor." It is obvious, I think, that this section was designed by the legislature as a protection to the different officers therein named; but it is equally obvious that, to avail himself of such protection, the officer named is called upon to demand, in his own behalf, the payment of such fee or fees as he may be entitled to receive for any service he is called upon to render. To illustrate, a justice of the peace could not be required to issue a venire without first being paid or tendered his legal fee therefor; nor could a constable be required to execute' such process, unless his demand for the payment of his fee should be properly met; and this is true of individual jurors. But it does not appear, by the express language of the section under consideration, nor will it bear the construction, that a justice, or any other of the officers therein mentioned, is entitled to impose, as a condition of the performance of any official duty, the payment of the fees of any other officer than' himself. Were a different rule to obtain, then a justice, before issuing a summons, might insist that the constable’s fee for the service thereof should be first paid, or, before issuing an execution, he might require the judgment creditor to pay or secure the fees of the officer to whom that process was issued, although in either case no such condition was insisted upon by the officer for whom the protection of this section was designed.^ It is undoubtedly true that defendants frequently avail themselves, in an action brought before a justice of the peace, of the provisions of the statute giving them the right to a trial by jury, merely for the purpose of delay and annoyance; but, nevertheless, the right is one which is statutory in its character, and therefore it cannot be abridged by the courts in any other manner than is provided by the statute, however desirable it • may be to curtail the practice above adverted to. And, inasmuch as it has been shown that the justice, in imposing the conditions he did, exceeded any authority which the statute gives him, his actioh was clearly erroneous, and requires that the judgment rendered by him should be set aside. The view which we take of the law in this case fenders it unnecessary to consider whether or not the evidence taken before the justice in the case was sufficient to sustain the judgment.

The judgments of the county court and of the justice of the peace are consequently reversed. All concur.  