Mann v. Dennis — 3 N.Y.S. 95

Majority

p. 95

Mann v. Dennis.

(Supreme Court, General Term, Third Department.

November 20,1888.)

Headnote

Justices of the Peace—Appeal—Dismissal fob Non-Payment of Costs.

Where defendant, on judgment being rendered against him in justice’s court, paid all costs that the justice said were due, the defendant being refused permission to see the taxed bill of costs, his appeal will not be dismissed because the fee due the justice for filing his return was not paid within the required time.

Appeal from Columbia county court.

Judgment was rendered in justice’s court in favor of the plaintiff, and defendant served notice of appeal upon the justice, and paid to him all the costs which he said were due. A motion was made to dismiss the appeal on the .ground that the justice’s fee for making the return was not paid within the •time required bylaw, and from an order denying this motion plaintiff appeals.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

Mark Dunts, for appellant. E. R. Harder, for respondent.

After the judgment in the justice’s court the defendant, •following the instruction of his attorney, went to the justice, and asked to see his taxed bill of costs. The justice refused. The defendant asked what was •due him and respondent for his and their costs on appeal. The justice said that all the appellant had to pay was $9.65, which appellant then paid, and .served his appeal. He had been instructed to pay the respondent’s costs, and also two dollars to the justice. These facts are proved by another witness; .and the instructions to pay the costs and the two dollars are proved by appellant’s attorney. Afterwards the justice claimed his two dollars, and they were paid, and his return was filed. The respondent’s attorney served notice of .appearance in the county court, and two terms Save passed. We think the county court properly refused to dismiss the appeal. The appellant went to the justice to pay the necessary costs and fee. The taxed bill was not shown him, and he had to rely on the justice’s statement. The justice stated how much the appellant must pay. If the justice by accident or mistake did not • claim his two dollars, that should not prejudice the appeal. The respondent’s costs must be paid, but the justice may waive his fee. Thomas v. Thomas, 18 Hun, 481 . If he did not ask for its payment, and has received it, he only gave credit. And since the respondent’s costs were paid, and all was paid

p. 96

which the justice asked, the appeal should.stand. Order of county court affirmed, with $10 costs, and printing disbursements.

Landon and Ingalls, JJ., concur.