On the return day the plaintiff demanded & jury and paid the fee required by section 231, Municipal Court Act. It appears from the-return that a jury was accordingly summoned for the trial day, and that the clerk paid? out the jury fee which he had received from the plaintiff. Owing to the large amount of business demanding attention the justice, of his 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 *649question 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 Ido 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.
Dugho, J., concurs.