The plaintiff sued in the Municipal Court. Issue was joined on August 20, 1905, whereupon the plaintiff demanded a jury trial and paid to .the clerk of the court the jury fees prescribed by section 231 of the Municipal Court Act (Laws of 1902, chap. 580). The cause w,as thereupon adjourned by consent until October.24, 1905. Upon the adjourned day-the case was adjourned by the justice from time to time until June 20, 1906, when a jury was impaneled and a trial had; Hone of these adjournments were requested by either party, the sole reason for each adjournment being that the justice, owing to the number of cases to bo tried, could not reach and try this case. Upon each adjournment the plaintiff, in order to secure the attendance of a jury on the adjourned day, paid to the clerk the statutory fee for summoning a jury, and the sole question involved in this appeal is whether the plaintiff may tax in his bill of 'costs all of the fees so paid by him, or may' only-tax-the fees for once summoning, the jury. . ' ■
• Section 330 of the Municipal Court Act provides for the inclusion in the bill- of costs of “ all fees and disbursements prescribed by law for services neces^a/rily rendered in an action at the request of the prevailing party.” The question then is whether or not these jury fees were necessary disbursements in the action. Among the necessary disbursements must be included all that the prevailing party was obliged to- make in order tó secure the rights which the law accords to• him. -It is one of - the rights of either party in the Municipal Court to have his cause tried before a jury, provided that the demand for a jury trial be seasonably made and the prescribed fees for summoning the jury be paid to the clerk, and of this right a party may not be deprived except by his own consent, or as a. consequence of his. own omission to do some act necessary to secure the attendance of the jury.
The method provided by the statute for. procuring a jury in the Municipal Court is .peculiar and quite different from that which obtains in courts of record. Instead of summoning a number of jurors to attend the court on, each day devoted to jury trials and impaneling a jury in each case as it comes on- for trial from the whole number of jurors then in attendance, a number of jurors are summoned for each case, and from the jury’summoned *805for each particular case are selected the jurors to try that case. Thus, for a jury of six, such as was demanded in the present case, twelve persons are summoned, and from this number six are selected to act as jurors in the case. In order to secure the summoning of the jurors the party demanding a jury trial must pay to the clerk in advance the sum of four dollars and fifty cents, of which twenty-five cents is to be paid to each juror when summoned, and one dollar and fifty cents is paid to the marshal as his fee. The statutory provisions to this effect are as follows, the references.being to the Municipal Court Act of 1902: Section 231 provides that “ the party demanding a trial by jury (at the time issue is joined) shall forthwith ,pay to the clerk the sum of four dollars and fifty cents,” and section 347 provides that “ There shall be paid to the clerks of the court the following sums as ,court fees in an action: xxx For trial by jury of six, four dollars and fifty cents; for trial by ju’ry of twelve, nine dollars. * * * All of the above fees shall be prepaid before the service shall be performed.” Section 231 prescribes liow the jury shall be drawn, as follows: “ The clerk, in each action or special proceeding, in which a jury trial is to be had, must publicly draw twelve persons from the undrawn jury box, and deliver ’ the list thereof to a marshal or to a person deputed by the court for that purpose, with a written or printed notice, directed to each person named in the list, requiring him to attend as directed as a juror, at a time specified therein, out of which number six of the persons attending shall be drawn to try the- cause, provided that number appear.” " Section 235 prescribes how service shall be made upon the jurors, as follows : “ The- officer or the person deputed, as provided in section two hundred and sixteen of this act, must thereupon immediately summon each person named in the list, ly giving him the sum of. twenty-five cents and the notice mentioned in' the last section but one, personally, or by leaving it at his place of residence or business, with some person of suitable age and discretion *' * For this service the marshal is entitled to a fee of one dollar and fifty cents (§ 354). Thus it will be seen that in order to preserve his "right to a jury trial a litigant must pay the jury fee in advance, and each juror must be ¡laid his fee when summoned. The statute prescribes that the notice to be served upon a juror shall specify the time at which he is to- appear, and no provision is *806made for requiring his attendance at any other time than that for which he is summoned. .If the juror does appear at the time specified he has done all that is required 'of him in the way of attendance, and no means seems to be provided for compelling his attendance at any other time, except the service of' a new notice upon him and the payment of another fee. This seems to have been within the contemplation of the Legislature, for section 238, dealing with adjournments at the request of a party, requires that there shall be. imposed upon the party demanding such an adjournment, as a condition, the payment to the clerk of a fee for resummoning a jury. The plaintiff, therefore, found himself in this positionHe desired a jury trial as was his right. He demanded it seasonably and paid the prescribed fee to procure it; Without fault on liis part and owing to exigencies which he could not control ‘the trial of the cause was necessarily adjourned. The jury summoned for the day first fixed for the trial could not be compelled to attend upon the adjourned day, nor could another jury be summoned for that day except upon the payment of their fees. , The plaintiff must, therefore, abandon his right to a jury trial, which he certainly was not bound to do, or adopt the only possible means to secure it, which was to pay the necessary fees for summoning another jury. Under, the. circumstances the second, and each succeeding jury fee so paid was certainly a necessary disbursement in the action. It is true that the statute does not in express terms provide for. the particular case presented' on this appeal, but the inevitable logic of the provisions of the act relating to the procuring of the attendance of jurors in. the Municipal Court leads to ' the determination arrived at in the court below. It is true that in the present case, and ddubtless in others, the result is to impose an apparently unreasonable burden upon-the defendant. That result, however, flows from the provision's of the statute, and the remedy lies in the hands of the. Legislature. It would. be a greater hardship- to cast upon the plaintiff the burden of either waiving, his statutory right to a jury trial, or, notwithstanding the merit of his cause, of paying the extra jury fees for the necessity for which he was in' nowise responsible. Section 238, providing that “no adjournments can be granted after the return of the jury unless the party requiring the same in addition to the other conditions imposed-upon him, deposit *807with the clerk the sum of four dollars and fifty cents or nine dollars as the case may be,” evidently applies only when an adjournment is had at the request of a party, and has no application where the case is. adjourned by the justice of his own. motion. The determination of the Appellate Term must be affirmed, with costs.
Patterson, P. J., Houghton and Lambert, JJ., concurred; Laughlin, J., dissented.