In re Du Bois
New York Supreme Court
This is an application fór a writ of mandamus against the clerk of the municipal court of the city of ¡New York for the second district of Brooklyn borough that he refund to the petitioner the sum of $2.50 which he exacted and'received of the petitioner for a trial fee in a case in the said court in which the petitioner was plaintiff. To the oral complaint in such action the defendant put in an oral answer, viz., a general denial, on the return day.
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This is an application fór a writ of mandamus against the clerk of the municipal court of the city of ¡New York for the second district of Brooklyn borough that he refund to the petitioner the sum of $2.50 which he exacted and'received of the petitioner for a trial fee in a case in the said court in which the petitioner was plaintiff. To the oral complaint in such action the defendant put in an oral answer, viz., a general denial, on the return day. The said clerk thereupon, and then, demanded and received such trial fee of the plaintiff. On the adjourned day the defendant did not appear and…
1Opinion of the Court
Gaynor, J.:
The application must he granted. There was no trial, and therefore no trial fee could be charged. It was the same as though the defendant had defaulted on the return day. In that case the plaintiff would have had to prove his case before the justice in order to get judgment; and the same was the case on the adjourned day. If the trial fee had not been exacted in advance it would not have been asked for on the adjourned day as there was no trial. The clerk has no right to exact a trial fee in advance of the trial day in anticipation of a trial, and as a condition precedent to…
2Cases cited1 opinion
- In re HaleNew York Supreme Court · 1900
3Cited by1 opinion
- Yorke Waist Co. v. RainbowCity of New York Municipal Court · 1915