
    Matter of The Clerk’s Fee in Henry Rogowski, Respondent, v. Max Brill, Appellant.
    (Supreme Court, Appellate Term,
    December, 1911.)
    Clerks of court: Subject to control of court — Control how exercised: Right to fees — Clerk of Appellate Term of Supreme Court — Upon argument of appeal.
    Courts — Organization, constitution and rules — Officers — Power of court to control its officers — How exercised.
    Motions and orders — In general — For what purposes motions will be entertained—-To direct court officers as to performance of duty.
    The submission or argument of an appeal at the Appellate Term of the Supreme Court is not a trial within the meaning of section 3301 of the Code of Civil Precedure, and the clerk of the Appellate 'Term is not entitled to a fee of one dollar for each appeal submitted or argued in said court.
    The Appellate Term may by order, on motion, direct its clerk to file papers in an appeal properly brought to that court without exacting payment of a fee therefor and need not compel a litigant in such a case to resort to mandamus.
    Motion to compel the clerk of the Appellate Term to receive appellant’s brief on the appeal without payment of a fee.
    S. O. Sugarman (M. Spencer Bevins, of counsel), for the motion.
    Archibald. B. Watson (Leon Gr. Grodley, of counsel), appearing specially for county clerk, opposed.
   Seabury, J.

This is a motion in the above entitled action, to compel the clerk of the court to receive the appellant’s, brief upon appeal without the payment of a fee. The practice of requiring a fee of one dollar for every case argued or submitted to the Appellate Term seems to have been in existence for many years. It has existed since the institution of the Appellate Term and seems to have existed in some courts at least since 1850.

The practice is now challenged, and it is necessary to determine whether or not any authority exists for requiring the payment of this fee. It is settled law that a clerk of a court takes his office cum onere and that he is entitled only to such fees or compensation as is provided by law. 7 Cyc. 206.

The fees of the clerks of the courts in this State are regulated by. statute; and, unless it is possible to point to a statutory .provision which confers the right to collect the fee, there is no warrant in law for its collection. -The right to collect fees, therefore, cannot rest upon the fact that it has been customary to collect them. The practice formerly prevailing counts for nothing, and the question presented must be determined from an examination of the statutes.

The only statute which it is suggested may confer upon the clerk the right' to collect this fee is section 3301 of the Code of Civil Procedure. That section provides that “ each clerk of a court of record, is entitled, for his services in an action or a special proceeding, brought in or transferred to the court of which he is clerk, to the following fees: Upon the trial of the action, or the hearing upon the merits, of the special proceeding, from the party bringing it on, one dollar.”

The contention is made that-the submission or argument of an appeal at the Appellate, Term is a “ trial,” within the meaning of that word as it is used in section 3301 of the Code of Civil Procedure. Bouvier defines a trial as “ The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue.” In 38 Cyc. 1267, a trial is defined as “ the judicial examination of the issue between the parties, whether they be issues of law or fact.” In Professor Thayer’s treatise “ On Evidence at the Common Law” (p. 16) is a learned note in which the origin and history of the word “ trial ” is sketched. Reither the definitions quoted nor the history of the word suggests that it includes a review on appeal. Causes which are reviewed on appeal are “ tried ” in the court of first instance. They are not, properly speaking, “tried” before an appellate court. The function of - an appellate court is to revie-w the record and to correct érrors which may have occurred upon a trial. In Eldridge v. Strenz, 39 N. Y. Super. Ct. 295, 300, Monell, Oh". J., in an opinion dissenting from that of a majority of the court upon other questions, said: “ I do not regard the argument of the successive appeals as trials within the meaning of the law, as has been done in some cases. * * * A trial is a judicial examination of the issues, whether of law or fact, and not a review of such examination upon an appeal from the decision. The appellate court corrects any errors of the trial. It has no original jurisdiction to try the issues, or to judicially examine them, further than to see that the judgment under review is correct. The only trial, therefore, is at the speciaTterm (or trial term), before the court, with or without a jury.”

This construction of the word- trial ” is in accord with what we conceive the legislative intention to have been- in using the word in section 3301 of the Code of Oivil Procedure. The cases of the Matter of Clerk’s Fees, 5 How. Pr. 11, and Wilcox v. Curtiss, 10 id. 91, we do not regard as guides pointing us to a correct conclusion. Matter of Clerk’s Fees, supra, held that-the word “ trial ” included a “ trial on appeal ” but limited this construction to appeals from judgments and held that no fee could be collected by the clerk upon an appeal from an order., Wilcox v. Curtiss, supra, was a Special Term decision holding that, in a case where a verdict was directed subject to the opinion of the General Term, the issues of fact were tried in the court below and the issues of law were tried before the appellate court. Under existing statutes authorizing appeals to be heard in the Appellate Term, no distinction is made as to the manner in which appeals from judgments shall be brought on for hearing as distinguished from appeals from orders. Code Civ. Pro., §§ 1840, 1341, 1342, 1344, 3188,, 3189; Eules for the hearing of appeals from the City Court and Municipal Court, rule 2.

Under the practice heretofore prevailing, the clerk has received a fee where appeals have been taken from orders as -well a.S in cases involving appeals from judgments, The case of Matter of Clerk’s Fees, supra, cannot, therefore, he regarded as authority for the existing practice.

Neither the existing statutes under which appeals are taken nor the rules of court which govern, the practice upon the hearing of such appeals suggest reason or "authority for the existing practice. At present these fees are remitted by the clerk of the court to the city of New York; and in opposition to this motion it is urged by the learned counsel for the city that the present question should be raised by a mandamus to compel the clerk to accept the appellant’s briefs and not by a motion for an order, of the court directing the clerk to accept them; "While it is true that mandamus is a remedy which is open to the appellant, there can be no doubt of the power and duty of the court to entertain and determine this motion upon the facts which have been brought to its attention. The statute law of the State gives to litigants in the city and municipal courts the right to appeal to this court, and upon such appeals they have the right to submit briefs and to be heard. To grant this right only upon the payment of a fee for which there is no warrant in law is to deny the right itself. The clerk is the officer of the court and as such amenable to its direction. We may add, also, that of late the right of the clerk to require the fee has been questioned and the convenience of the clerk and litigants alike requires that the matter shall be authoritatively determined.

As there is no statute which confers upon the clerk the right to' collect this fee, he is directed to receive the briefs of the appellant without any fee; and the practice which has heretofore prevailed of collecting such fees must cease.

Lehman and Page, JJ., concur.

Motion granted.  