(dissenting):
An examination of the various, statutory provisions relating to jury trials in the Municipal Court, borough of Manhattan, and to the taxation of costs in actions triable therein, leads me to the conviction that the Legislature intended that where a jury trial is duly, demánded, the action should bo tried by the jury originally summoned «unless an adjournment is granted at the instance of either party, in which case the fee for summoning another jury is required to be paid as a condition of granting'the adjournment, and that in any event only the jury fee originally paid for summoning the first jury is taxable.
Section 238 of the Municipal Court Act (Laws of 1902, chap. 580) provides as follows: “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 with the clerk the sum of four dollars and fifty cents or nine dollars as the case may be, but no jury fee or sum for summoning of jurors may be included as part of the costs in the judgment, other than the sum originally paid.” '
It is conceded in the majority opinion that the provisions of this section preclude the taxation of a jury fee necessitated by an adjournment requested by either party.; but it is held that no part of tlie section applies where the adjournment is by order of the court, without the request, of either party. I am unable to agree with-this construction'and am ’of opinion that the section should be construed as precluding the taxation of more than one fee for summoning a jury for the reason that where a jury is summoned the court, I think, may not of its own motion discharge the jury and adjourn the case, but if an adjournment becomes necessary, must require the jurors originally summoned to attend on the adjourned day.. The record *808in the case at bar shows that, all of these adjournments which resulted-in summoning fifteen' different panels of jurors at an expense of sixty-seven dollars and-fifty cents for-the- trial of this little case, were had. “ -by consent.” It does not appear by' the:-record, therefore, that the adjournments were by order of the court or wére -even necessitated by a congestion of-business, although that is claimed .by the respondent and in .effect conceded by the. appellant. The'court appears to he of opinion that the piiblic interests .require that it should go beyond the record and decide the question claimed to, be frequently recurring, as to whether, where the adjournmentis necessitated by a-congestion of business, the jury originally summoned or any jury subsequently summoned may be discharged and another jury summoned, and all jury fees.taxed and included in the judgment. Assuming that each adjournment was thus granted, still I am of opinion that only the fee for originally summoning the jury is taxable. Section 193 of the Municipal Court Act authorizes.the court of its own motion to adjourn a cause -for a period not exceeding eight days at any one adjournment. This section, however, must be .construed-in conjunction-with- the other provisions'of the act. T, am of opinion-that this general authority of the court to adjourn a cause is limited by other provisions relating to-, adjournments in case a jury is summoned.. Section 231 of, the' Municipal Court Act provides as follows: “* * * When a jury trial is demanded the trial of the casé may be adjourned within the limitar tions provided in this act, until, the time fixed for the return of the jury.” Thisseetion is in title 6,- of the act, relating to trials by jury, in which is also found said section 238, already quoted, prohibiting adjournments-after the return of -the jury excepting -upon condition' that another jury fee'b.e paid'by the'party desiring the adjournment. When a jury trial is demanded,, the court should-be able to 'fix the day for the return of- the jury and for the adjournment, of the case at. a" time when the calendar will be -reasonably clear,.so that the case may he tried. This may in some instances involve a long adjournment, but there will be greater justice aiid less expense to litigants in adjourning the cause originally to: a day ívhén it:may be. tided, than in adjourning it as"was done in the case at bar. fifteen or more, times, and in summoning fifteen or more'separate panels of jurors to try the issue, ...' :
*809It is clear to my mind that the Legislature contemplated in granting the right to a trial by jury in'the Municipal Court, "that the same could be had upon.payment of one fee for summoning jurors. With a view to insuring that end an adjournment at the request of either party is forbidden unless lie- pays the additional fee for summoning another jury, the taxation of jury fees is limited to the amount originally paid and the court is given full discretion to fix the time for the return of the jury on a day when the case may be tried. This construction is borne but by the further provisions of said section 231 which direct the clerk to draw and have the jurors summoned for a time specified in the notice to them, which is to be the time fixed for the adjournment, and provide that out of the twelve persons summoned as jurors “ six. of the persons attending shall be drawn to try the cause, provided that number appear.” The jurors are summoned specially in the particular action and receive twenty-five cents upon being summoned (§ 235), for which they are required to attend and required .to sit, if selected on the jmy as long as the case may last. If a sufficient number of competent jurors do not attend, talesmen may be summoned under section 236 of the Municipal Court Act, and the expense of summoning them is one of the expenses properly taxable under section 330 quoted in the prevailing opinion. - If through any emergency the court should be unable to proceed with the trial on the return day for wliich the jurors are summoned, the jurors maybe selected and the cause then adjourned, or if the court should be unable to devote the time necessary to select the jury, it must have inherent power to continue the cause and direct the jurors to appear at a time when they may be examined and a jury to try the. case may be selected from their number. It would seem, however, that if the court, instead of leaving it to the clerk to summon jurors for any day — the prevailing jiractice, according to statements of both counsel — would exercise proper care in adjourning the canse to a day when the calendar would be clear or sufficiently clear to render it reasonably probable that it could be reached for trial, and would have this in mind in the enactment of rules and in handling the other business coming before the court — the necessity for further adjournment would seldom, if ever, arise.
The majority of the court seems to be of .opinion that the omission *810to. specially-provide'for''taxation of the fees of jurors*, where the adjournment is had at the instance of the court, is’a legislative oversight. I am of opinion that the omission was' through legislative foresight. I think the Legislature in its wisdom intended'to limit the taxation of jury fees in every case to the fee originally paid, and that it foresaw.the abuse that would- result by permitting adjournments either by the court or at the request of either party, aftgr a party to an action involving a small sum has -once paid the costs of summoning a- jury, and that the prohibition was for. the protection of both parties and to minimize the expense of trials involving small amounts.
For these reasons* therefore, I dissent from the taxation- of more than the original fee for summoning the jury.
- Determination affirmed,- with costs.