
    The Asbestolith Manufacturing Company, Respondent, v. Henry S. Howland, Appellant.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Municipal courts — Procedure — Jury — Pees required on demand for.
    Under the provision of section 231 of the Municipal Court Act that the party demanding a trial by jury shall forthwith pay to the clerk the sum of four dollars and a half, and the provision of section 234 that when a defendant demands a jury of twelve the fee to be deposited shall be nine dollars, where plaintiff demands a jury of six and pays four dollars and a half, the defendant, if he demands a jury of twelve, must pay the additional jury fee or the court may proceed with the trial.
    Page, J., dissented.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, fifth district, borough of Manhattan, upon the verdict of a jury.
    F. DeLysle Smith, for appellant.
    Alfred E. Ommen, for respondent.
   Seabury, J.

This action was brought to recover the agreed price for laying asbestolith floors in the defendant’s residence. The defendant claimed that the work was done in an unworkmanlike manner and that the plaintiff had failed to substantially perform its contract. Upon-a former trial the plaintiff recovered a judgment which upon appeal was reversed as contrary to the weight of evidence. 120 N. Y. Supp. 93. The last trial was had before the court and a jury of six men and resulted in a verdict in favor of the plaintiff." The plaintiff upon the last trial produced four witnesses who did not testify on the previous trial. Two of these witnesses gave testimony which materially strengthened the plaintiff’s case. One of the plaintiff’s bookkeepers testified that, after the floor was laid, he presented a bill to the defendant who made no objection to the-work and promised to pay for it. The evidence given by the defendant was that of interested witnesses. The exhibits, which are claimed to be samples of the plaintiff’s work upon which the appellant places so much reliance, were all under the defendant’s control and were before the jury. In view of the other evidence, it seems to us that we cannot say that the jury did not accord to these exhibits the consideration to which they were entitled. So far as the facts are concerned, we are all agreed that no reason exists for disturbing the determination of the jury.

The appellant contends that the last trial was a mistrial, because the case was tried hy a jury of six instead of twelve men. The case was set for trial in the court below for January 10, 1910. On January fifth, the plaintiff made a motion returnable January tenth for a jury trial. Hpon the return day the defendant opposed the motion for a jury trial hut insisted that, if a jury trial was to be had, it should be a jury of twelve. The defendant did not offer to pay the additional fee required by statute for a jury of twelve, and the case was set for trial on January twenty-sixth. On this date the case was called for trial and a jury of six men was empaneled, for which the plaintiff had already paid to the clerk the jury fee required hy section 231 of the Municipal Court Act. Before the jury was sworn, the defendant demanded a jury of twelve. Both the court and counsel for the plaintiff stated that there was no objection to having a jury of twelve, if the defendant would pay the additional fee required by section 234 of the Municipal Court Act in cases where an issue of fact is tried by the court with a jury of twelve. The defendant declined to pay any jury fee, excepted-to the ruling of the court, and the trial proceeded and resulted as indicated above.

Section 231 of the Municipal Court Act provides that: “At any time when an issue of fact is joined, either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived. The party demanding a trial hy jury shall forthwith pa/y to the clerk, the sum of four dollars and fifty cents. In default of which payment the court shall proceed as if no demand for trial by jury had been made.”

Section 234 of the Municipal Court Act provides that: “ In an action where the damages, or the value of the chattels as claimed in the complaint, exceed one hundred dollars, if at the time of joining an issue of fact the ¿Defendant demands a trial hy a jury of tiuelve men, the court shall order a jury of twelve to be summoned to try the issue. * * * The jury fee to be deposited in such cases shall he nine dollars.”

It will be noticed that section 231- of the Municipal Court Act provides that the fee shall be paid by the party demanding a jury trial. Section 234 of the Municipal Court Act relates only to a case ydiere the defendant demands a jury of twelve and provides that: “ The jury fee to be deposited in such cases shall be nine dollars.” I think that the fair construction to be placed upon these two sections, when read together, is that the party demanding a jury trial shall pay the fee appropriate for the jury demanded. If a jury of six is demanded, four dollars and fifty cents shall be paid by the person demanding such a jury. If a jury of twelve is demanded by the defendant, after the plaintiff has demanded a jury of six and paid the fee of four dollars and fifty cents, there shall be a jury of twelve; but in such case the defendant shall pay the additional fee. I know of no case directly in point construing these sections of the Municipal Court Act, although there is a dictum in Sherwood v. Hew York Telephone Co., 46 Mise. Rep. 102, which is in accord with the view here expressed. The defendant had not been deprived of his constitutional right to a trial by a jury of twelve, nor is any question of constitutional law here involved. If the statute in plain language provided that the defendant should be accorded a jury of twelve, upon condition that he paid the fee prescribed, it could hardly be urged that the defendant was deprived of his constitutional right because he was required to pay the jury fee prescribed. In the case before us the provisions of the statute are not so plain as they might be, and the question for determination is whether the statute contemplates that the additional jury fee shall be paid by the plaintiff or defendant.

For the reasons given above, I am of the opinion that, the defendant having demanded a jury of twelve, the statute required him to pay the additional jury fee.

I advise that the judgment be affirmed, with costs.

Lehman, J., concurs.

Page, J. (dissenting).

I am unable to concur in the opinion of the court for the reason that I believe the defendant was deprived of his constitutional right to a trial of the issue of fact by a jury of twelve.

The defendant was willing to try the issue before the judge without a jury; but, when the plaintiff moved for a trial by jury, the defendant demanded that, if there should be a trial by jury, it should be a trial by a jury of twelve. There was no waiver of his right by his failure to demand a jury trial. Skinner v. Allison, 127 App. Div. 16. Nor do I think that, where the plaintiff demands a jury and pays the four dollars and a half for a jury of six, the defendant is required to pay either four dollars and a half additional or nine dollars for a jury of twelve. Section 234 of the Municipal Court Act is a substitute for the former practice under section 3216 of the Code of Civil Procedure, which provided for a removal, by the defendant, of an action “ where the damages claimed or the value of the chattel, or of all the chattels, claimed exceed one hundred dollars,” to a court of record, that it might be tried by a jury of twelve. This provision was necessary to render the increased jurisdiction of the district courts constitutional, as prescribing the right of a defendant to a trial by jury. Article 1, section 2, of the State Constitution provides: “ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” The jury intended is a common-law jury of twelve. Wynehamer v. People, 13 N. Y. 378. Therefore, when the jurisdiction of the district courts was increased to an amount exceeding one hundred dollars, such cases, prior to the adoption of the Constitution, having been triable by jury and the district court not having the power to empanel a jury of more than six, the act would have been unconstitutional had it not preserved the right of the defendant to obtain such a trial by removal to a court of record, where he could obtain a common-law jury. People ex rel. Metropolitan Bd. of Health v. Lane, 6 Abb. Pr. (N. S.) 105. If the action was removed to a court of record, the party that moved the cause for trial would have to pay the jury fee. By the removal the defendant did not become liable to pay the -fee for the jury, but the cause proceeded as though originally brought in that court.

I think this view of the law is substantiated by reading the provisions of sections 231 and 234 of the Municipal Court Act together. The first provides that either party may demand a trial by jury, and “the party demanding a trial by jury shall forthwith pay to the clerk the sum of four dollars and fifty cents;” while the second provides that, where the defendant demands a trial by a jury of twelve, in the cases therein provided, “the jury fee to be deposited in such case shall be nine dollars.” It will be noted that section 234 does not provide that the nine dollars .shall be deposited by the defendant, and I think that this should be construed to require the party that demands the jury to pay the fee. If, in the first instance, the defendant demands a trial by jury and if he would be required under section 231 to pay four dollars and a half if he required a jury of six, then, on demanding a jury of twelve, he would have to pay nine dollars. But, when the plaintiff demanded a trial by jury, if, by reason of the defendant’s standing on his constitutional rights, a common-law jury of twelve became necessary, then the amount to be deposited by plaintiff would be nine dollars instead of four and a half. I do not read these two sections of the Municipal Court Act, as providing that the plaintiff never can be required to pay more than four dollars and a half as a jury fee, and that the defendant shall pay all or a portion of this fee where the plaintiff demands a jury and the defendant insists on a common-law jury. The plaintiff chooses that jurisdiction for the litigation and should bear the burdens when he is the moving party.

The defendant having demanded a jury of twelve, and not having waived that right, the court had no power to try the case with a jury of six; and there was a mistrial. Skinner v. Allison, supra.

Therefore, I think the judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.  