People ex rel. Kempner v. Wilson

34 Misc. 273, 68 N.Y.S. 850

Opinion

McAdam, J.

The relators apply for a peremptory writ of mandamus requiring the respondent, as clerk of the Municipal Court for the eleventh district, to return to them the trial fee of three dollars, exacted by him from them, pursuant to rule 12 of the Board of Municipal Justices, passed agreeably to the authority conferred by section 1375 of the charter. The rule provides that “ Trial fees paid to the clerk shall in no case be returned to the plaintiff after issue has been joined, except in cases where the answer has been withdrawn before inquest taken or trial had.”' It appears that the relators brought an action in said Municipal Court against one Simpson. "Upon the return day the defendant filed a verified answer, and the issue so joined was adjourned! several times for trial. ' Finally, and on Rovember 19, 1900, the cause was called for trial, and, the defendant failing to appear, the plaintiffs proved their cause of action, and the justice thereupon rendered judgment in plaintiffs’ favor. The relators claim that, because defendant failed to appear on the last adjourned day, there was no trial, and consequently they became entitled to the return of the trial fee, and it is on this theory they make their present application. The position is untenable. The former Code (§ 252) defined a trial as “ a judicial examination of the issues between the parties,” and such an examination was had in the Municipal Court. The plaintiffs recovered only after proof of the facts and examination of the issues 'by the justice. What occurred amounts in law to a trial for all the purposes of costs. Place v. Butternuts W. & C. Mfg. Co., 28 How. Pr. 184; Mora v. Great Western Ins. Co., 10 Bosw. 622; Shannon v. Brower, 2 Abb. Pr. 377; 3 Wait’s Pr. 2. Matter of Hale, 32 Misc. Rep. 104, is inapplicable. Issue had not been joined in that case. It follows that the application must be denied.

Application denied.