This action was brought to recover the agreed price for laying asbestolith floors in the defendant’s residence. The defendant claimed that the work was done in an unworkmanlike manner and that the plaintiff had failed to substantially perform its contract. Upon-a former trial the plaintiff recovered a judgment which upon appeal was reversed as contrary to the weight of evidence. 120 N. Y. Supp. 93. The last trial was had before the court and a jury of six men and resulted in a verdict in favor of the plaintiff." The plaintiff upon the last trial produced four witnesses who did not testify on the previous trial. Two of these witnesses gave testimony which materially strengthened the plaintiff’s case. One of the plaintiff’s bookkeepers testified that, after the floor was laid, he presented a bill to the defendant who made no objection to the-work and promised to pay for it. The evidence given by the defendant was that of interested witnesses. The exhibits, which are claimed to be samples of the plaintiff’s work upon which the appellant places so much reliance, were all under the defendant’s control and were before the jury. In view of the other evidence, it seems to us that we cannot say that the jury did not accord to these exhibits the consideration to which they were entitled. So far as the facts are concerned, we are all agreed that no reason exists for disturbing the determination of the jury.
*431The appellant contends that the last trial was a mistrial, because the case was tried hy a jury of six instead of twelve men. The case was set for trial in the court below for January 10, 1910. On January fifth, the plaintiff made a motion returnable January tenth for a jury trial. Hpon the return day the defendant opposed the motion for a jury trial hut insisted that, if a jury trial was to be had, it should be a jury of twelve. The defendant did not offer to pay the additional fee required by statute for a jury of twelve, and the case was set for trial on January twenty-sixth. On this date the case was called for trial and a jury of six men was empaneled, for which the plaintiff had already paid to the clerk the jury fee required hy section 231 of the Municipal Court Act. Before the jury was sworn, the defendant demanded a jury of twelve. Both the court and counsel for the plaintiff stated that there was no objection to having a jury of twelve, if the defendant would pay the additional fee required by section 234 of the Municipal Court Act in cases where an issue of fact is tried by the court with a jury of twelve. The defendant declined to pay any jury fee, excepted-to the ruling of the court, and the trial proceeded and resulted as indicated above.
Section 231 of the Municipal Court Act provides that: “At any time when an issue of fact is joined, either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived. The party demanding a trial hy jury shall forthwith pa/y to the clerk, the sum of four dollars and fifty cents. In default of which payment the court shall proceed as if no demand for trial by jury had been made.”
Section 234 of the Municipal Court Act provides that: “ In an action where the damages, or the value of the chattels as claimed in the complaint, exceed one hundred dollars, if at the time of joining an issue of fact the ¿Defendant demands a trial hy a jury of tiuelve men, the court shall order a jury of twelve to be summoned to try the issue. * * * The jury fee to be deposited in such cases shall he nine dollars.”
It will be noticed that section 231- of the Municipal Court *432Act provides that the fee shall be paid by the party demanding a jury trial. Section 234 of the Municipal Court Act relates only to a case ydiere the defendant demands a jury of twelve and provides that: “ The jury fee to be deposited in such cases shall be nine dollars.” I think that the fair construction to be placed upon these two sections, when read together, is that the party demanding a jury trial shall pay the fee appropriate for the jury demanded. If a jury of six is demanded, four dollars and fifty cents shall be paid by the person demanding such a jury. If a jury of twelve is demanded by the defendant, after the plaintiff has demanded a jury of six and paid the fee of four dollars and fifty cents, there shall be a jury of twelve; but in such case the defendant shall pay the additional fee. I know of no case directly in point construing these sections of the Municipal Court Act, although there is a dictum in Sherwood v. Hew York Telephone Co., 46 Mise. Rep. 102, which is in accord with the view here expressed. The defendant had not been deprived of his constitutional right to a trial by a jury of twelve, nor is any question of constitutional law here involved. If the statute in plain language provided that the defendant should be accorded a jury of twelve, upon condition that he paid the fee prescribed, it could hardly be urged that the defendant was deprived of his constitutional right because he was required to pay the jury fee prescribed. In the case before us the provisions of the statute are not so plain as they might be, and the question for determination is whether the statute contemplates that the additional jury fee shall be paid by the plaintiff or defendant.
For the reasons given above, I am of the opinion that, the defendant having demanded a jury of twelve, the statute required him to pay the additional jury fee.
I advise that the judgment be affirmed, with costs.
Lehman, J., concurs.