
    William Riley, Appellant, v. Hannah Pagan, as Executrix of the Last Will and Testament of John Pagan, Sr., Deceased, Respondent.
    
      Justice of the peace — he may maintain an action at law to recovei' his fees— they may •be taxed as costs.
    
    A justice of the peace, although, entitled to require payment of his fees in advance, may , where they have not been paid, recover them in an action at law against the party at whose request the services represented thereby have been .rendered; but one party to the action is not liable for fees for services rendered at the instance of the other party, although the former may pay them under section 3329 of the Code of Civil Procedure, and recover the amount ■thereof as a part of his costs in the action.
    
      Appeal by the plaintiff, William Riley, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 23d day of October, 1897, affirming a judgment of the City Court of Yonkers dismissing the complaint upon the merits.
    
      William Riley, appellant, in person.
    
      George W. Elkins, for the respondent.
   Willard Bartlett, J.:

In 1895 the plaintiff was a justice of the peace in the city of Yonkers, and the defendant’s testator, John Pagan, Sr., was sued in his court by a man named Nicholas Delaney, In the course of the litigation thus instituted the plaintiff, as such justice of the peace, rendered certain services at the instance of each party. He has not been paid for the services which he rendered at the instance of Pagan, and he sought, by this action, to recover the fees prescribed for. such services by the Code of Civil Procedure. In the City Court of Yonkers his complaint was dismissed upon the merits, and the judgment thereupon entered has been affirmed by the County Court of Westchester county.

“ A justice of the peace, or a constable, juror or witness, before a justice of the peace, is not obliged to render any service specified in this title, without the previous payment or tender of his fee therefor.” (Code Civ. Proc. § 3328.) The plaintiff did not exact the. prepayment of his fees as a justice of the peace from either of the parties to the suit before him, and it seems to have been the opinion of the learned judge of the City Court of Yonkers that his omission to compel the defendant to pay his share of such fees in advance constituted a waiver which precluded the' plaintiff from subsequently maintaining an action to recover the amount thereof.

In this view we cannot concur. The plain intent of the provisions of the Code relating to the fees of justices of the peacé in civil actions before them, is to impose the fees for the services of the justice upon the party for whom such services are rendered. (Code Civ. Proc. § 3329.) The fees should be paid by that party, but if he does not comply with his obligations in this respect, the other party may pay them under the section cited and recover the amount as a part of his costs. In the event of their non-payment by either party, however, it would seem to be manifestly unjust to deprive the magistrate of all compensation whatever for his work, simply because he had been willing to proceed in the case without insisting upon being paid in advance. The provision which allows him to exact prepayment is solely for his own protection, and his failure to avail himself of it ought not to inure to his injury. (Belappi v. Hovey, 90 Hun, 135.) A sheriff may sue for his fees in serving or executing process, or for any official services rendered in a civil action, (Crock. Sher. [3d ed.] 420; Hildreth v. Ellice, 1 Caines, 192; Adams v. Hopkins, 5 Johns. 252.) So, also, a referee who has not been paid by the party who ought to pay him may file his report himself and maintain an action for his fees. (Little v. Lynch, 99 N. Y. 112.) Jt seems equally plain that a justice of the peace may maintain an action to recover the amount of his statutory fees against the party who is liable under the law to pay them.

It follows that the judgments of the County Court of Westchester county and of the City Court of Yofficers must be reversed. In directing this reversal, however, we must not be understood as holding that the plaintiff is entitled to recover all the items of his claim as set out in the complaint. Under no circumstances is the defendant here liable for any fees in ¡the action in the Justice’s Court which were rendered at the- instance of the plaintiff in that action. She is liable only for the services which were rendered at the instance of the decedent whom she represents.

AH concurred, except Hatch, J., absent.

Judgments reversed and new trial granted, costs to abide the event.  