Mann v. Dennis — 20 N.Y. St. Rep. 195

Majority

p. 195

Walter A. Mann, Resp’t, v. Henry C. Dennis, App’lt.

(Supreme Court, General Term, Third Department,

Filed November 24, 1888.)

Headnote

Justices oe the peace—Appeals from judgments of—how perfected.

It is prescribed by Code Civil Procedure, § 3047, relative to the manner of taking appeals from judgments rendered by justices’ of the peace, that the appellant must, at the time of serving the notice of appeal, pay to the person to whom, it is delivered, the costs of the action included in the judgment, and the sum of two dollars as the fee of the justice for making the return. The appellant from a judgment rendered by a justice of the peace, at the time of serving his notice of appeal asked the justice what was due him and the defendant, as costs, and paid the sum stated in the answer to his question. Subsequently the justice claimed his fee for making the return and upon receiving it, filed the return. Held, that the accident or mistake of the justice in not demanding the fee for making his return ought not to prejudice the appellant, all that was demanded as the costs of the action having been paid.

Appeal from an order of the Columbia county court, denying plaintiff’s motion to dismiss the appeal, on the ground that the justices’fee for making the return-was not made within the time required by law. The facts are sufficiently stated in the opinion.

Mark Duntz, for app’lt, E. B Harder, for resp’t.

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 have passed.

We think the county court properly refused to dismiss

p. 196

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 which the justice asked, the appeal should stand.

Order of county court affirmed, with ten dollars costs and printing disbursements.

Landon and Ingalls, JJ., concur.