out the jury fee which he had received from the plaintiff. Owing to the large amount of business demanding attention, the justice, of his own motion, adjourned the trial to a later date. It is to be assumed, although not expressly so stated, that the jury which had been summoned to try this case was discharged. On the adjourned day the justice held that the plaintiff must pay a second jury fee, or go to trial without a jury. As the plaintiff refused to do either, his complaint was dismissed without prejudice to another action. The sole question presented by the appeal is whether or not the plaintiff, under the circumstances, if he desired a jury, was bound to pay a second jury fee. The case here presented does not seem to be provided for by the statute. In the nature of the case, however, I am of opinion that the justice rightly ruled. The jury fees are provided for the compensation of the jurors. The first jury summoned was entitled to receive the fee because it had obeyed the summons to attend, and was prevented from doing so by no fault of its own. So, also, the second jury, if one had been summoned, would have been entitled to its fees, and yet the fee could not be paid them unless the amount was paid by the plaintiff, since we have been referred to no other source from which these fees could-be paid. It was simply a misfortune of the plaintiff that circumstances prevented the trial on the first day for which a jury was summoned. I think, however, that if the plaintiff had paid a second fee he would, if successful, have been entitled to tax both fees. Section 238 of the Municipal Court act, which provides that only one jury fee may be taxed, refers exclusively to a case'where the adjournment is had on the application of a party. When, however, a cause is adjourned by the justice, without application of either party, and for the reason and under the circumstances disclosed by the record, neither party is responsible for the adjournment and the consequent loss of the jury fee.
The judgment should be affirmed, with costs.
DUGRO, J., concurs.
(dissenting). On the return day the plaintiff demanded a jury trial, and forthwith paid his fee, pursuant to section 231 of the Municipal Court act (Laws 1902, p. 1557, c. 580). Thereafter the cause was adjourned, not upon application of the parties, but by order of the court, because of a congested calendar. When called upon the adjourned day, the justice dismissed the cause for failure of the plaintiff to pay another jury fee. This was error. Had the adjournment been at the request of the plaintiff, an additional fee might have been imposed (Municipal Court Act, § 238; Laws 1902, p. 1559, c. 580); but there is no provision in the act for additional fee in case like the present. If it be urged that it is pro: vided for by rule 7 of- the rules of practice there, viz., “each additional venire requires an additional jury fee,” it may be answered that such provision is not within the powers of the board of justices in their adoption, amendment, or additions in' section 1375 of the