I am unable to concur in the opinion of the court for the reason that I believe the de*433fendant was deprived of his constitutional right to a trial of the issue of fact by a jury of twelve.
The defendant was willing to try the issue before the judge without a jury; but, when the plaintiff moved for a trial by jury, the defendant demanded that, if there should be a trial by jury, it should be a trial by a jury of twelve. There was no waiver of his right by his failure to demand a jury trial. Skinner v. Allison, 127 App. Div. 16. Nor do I think that, where the plaintiff demands a jury and pays the four dollars and a half for a jury of six, the defendant is required to pay either four dollars and a half additional or nine dollars for a jury of twelve. Section 234 of the Municipal Court Act is a substitute for the former practice under section 3216 of the Code of Civil Procedure, which provided for a removal, by the defendant, of an action “ where the damages claimed or the value of the chattel, or of all the chattels, claimed exceed one hundred dollars,” to a court of record, that it might be tried by a jury of twelve. This provision was necessary to render the increased jurisdiction of the district courts constitutional, as prescribing the right of a defendant to a trial by jury. Article 1, section 2, of the State Constitution provides: “ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” The jury intended is a common-law jury of twelve. Wynehamer v. People, 13 N. Y. 378. Therefore, when the jurisdiction of the district courts was increased to an amount exceeding one hundred dollars, such cases, prior to the adoption of the Constitution, having been triable by jury and the district court not having the power to empanel a jury of more than six, the act would have been unconstitutional had it not preserved the right of the defendant to obtain such a trial by removal to a court of record, where he could obtain a common-law jury. People ex rel. Metropolitan Bd. of Health v. Lane, 6 Abb. Pr. (N. S.) 105. If the action was removed to a court of record, the party that moved the cause for trial would have to pay the jury fee. By the removal the defendant did not become liable to pay the -fee for the jury, *434but the cause proceeded as though originally brought in that court.
I think this view of the law is substantiated by reading the provisions of sections 231 and 234 of the Municipal Court Act together. The first provides that either party may demand a trial by jury, and “the party demanding a trial by jury shall forthwith pay to the clerk the sum of four dollars and fifty cents;” while the second provides that, where the defendant demands a trial by a jury of twelve, in the cases therein provided, “the jury fee to be deposited in such case shall be nine dollars.” It will be noted that section 234 does not provide that the nine dollars .shall be deposited by the defendant, and I think that this should be construed to require the party that demands the jury to pay the fee. If, in the first instance, the defendant demands a trial by jury and if he would be required under section 231 to pay four dollars and a half if he required a jury of six, then, on demanding a jury of twelve, he would have to pay nine dollars. But, when the plaintiff demanded a trial by jury, if, by reason of the defendant’s standing on his constitutional rights, a common-law jury of twelve became necessary, then the amount to be deposited by plaintiff would be nine dollars instead of four and a half. I do not read these two sections of the Municipal Court Act, as providing that the plaintiff never can be required to pay more than four dollars and a half as a jury fee, and that the defendant shall pay all or a portion of this fee where the plaintiff demands a jury and the defendant insists on a common-law jury. The plaintiff chooses that jurisdiction for the litigation and should bear the burdens when he is the moving party.
The defendant having demanded a jury of twelve, and not having waived that right, the court had no power to try the case with a jury of six; and there was a mistrial. Skinner v. Allison, supra.
Therefore, I think the judgment should be reversed and a new trial ordered, with costs to abide the event.
Judgment affirmed, with costs.