SECOND DEPARTMENT, JULY TERM, 1898 [Vol. 32. sought to be enforced was on subsequently acquired property. There Judge ALLEN said: "Very likely the action cannot be maintained as a common-law action of trover, although it is not necessary to pass upon that question. That action can only be brought by one having the legal title, either as a special or a general owner, one having the legal right to the possession." But there is a further difficulty in this case. The tax certificate is not a chattel but a chose in action. (Niles v. Mathusa, 20 App. Div. 483.) The recovery of the piece of paper on which the license is written would be of no advantage to the plaintiff. In its complaint it alleges a demand on the defendant Burns for an assignment of the certificate and Burns' refusal. The City Court of Yonkers has no power to compel Burns to execute any assignment. Therefore, even if an action of replevin would lie in the case of an equitable lien on a chattel, it cannot be maintained in the case of a chose in action. We are further of opinion that the decision of the city judge was correct on the merits. Equity will only enforce a lien on subsequently acquired property, where superior equities of third parties have not intervened. In this case as Ringler & Co. advanced the very money which paid for the tax license or certificate in suit, their equity was paramount to that of the plaintiff's. The judgment appealed from should be affirmed, with costs. Judgment affirmed, with costs. WILLIAM RILEY, Appellant, . HANNAH PAGAN, as Executrix of the Last Will and Testament of John PAGAN, SR., Deceased, Respondent. Justice of the peace· - he may maintain an action at law to recover his fees — they may be taxed as costs. A justice of the peace, although entitled to require payment of his fees in advance, may, where they have not been paid, recover them in an action at law against the party at whose request the services represented thereby have been rendered; but one party to the action is not liable for fees for services rendered at the instance of the other party, although the former may pay them under section 3329 of the Code of Civil Procedure, and recover the amount thereof as a part of his costs in the action. App. Div.] SECOND DEPARTMENT, JULY TERM, 1898. APPEAL by the plaintiff, William Riley, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 23d day of October, 1897, affirming a judgment of the City Court of Yonkers dismissing the complaint upon the merits. William Riley, appellant, in person. George W. Elkins, for the respondent. WILLARD BARTLETT, J.: In 1895 the plaintiff was a justice of the peace in the city of Yonkers, and the defendant's testator, John Pagan, Sr., was sued in his court by a man named Nicholas Delaney. In the course of the litigation thus instituted the plaintiff, as such justice of the peace, rendered certain services at the instance of each party. He has not been paid for the services which he rendered at the instance of Pagan, and he sought, by this action, to recover the fees prescribed for such services by the Code of Civil Procedure. In the City Court of Yonkers his complaint was dismissed upon the merits, and the judgment thereupon entered has been affirmed by the County Court of Westchester county. "A justice of the peace, or a constable, juror or witness, before a justice of the peace, is not obliged to render any service specified in this title, without the previous payment or tender of his fee therefor." (Code Civ. Proc. § 3328.) The plaintiff did not exact the prepayment of his fees as a justice of the peace from either of the parties to the suit before him, and it seems to have been the opinion of the learned judge of the City Court of Yonkers that his omission to compel the defendant to pay his share of such fees in advance constituted a waiver which precluded the plaintiff from subsequently maintaining an action to recover the amount thereof. In this view we cannot concur. The plain intent of the provisions of the Code relating to the fees of justices of the peace in civil actions before them, is to impose the fees for the services of the justice upon the party for whom such services are rendered. (Code Civ. Proc. § 3329.) The fees should be paid by that party, but if he does not comply with his obligations in this respect, the other party may pay them under the section cited and recover the amount as a part of his costs. In the event of their non-payment by either SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. party, however, it would seem to be manifestly unjust to deprive the magistrate of all compensation whatever for his work, simply because he had been willing to proceed in the case without insisting upon being paid in advance. The provision which allows him to exact prepayment is solely for his own protection, and his failure to avail himself of it ought not to inure to his injury. (Belappi v. Hovey, 90 Hun, 135.) A sheriff may sue for his fees in serving or executing process, or for any official services rendered in a civil action. (Crock. Sher. [3d ed.] 420; Hildreth v. Ellice, 1 Caines, 192; Adams v. Hopkins, 5 Johns. 252.) So, also, a referee who has not been paid by the party who ought to pay him may file his report himself and maintain an action for his fees. (Little v. Lynch, 99 N. Y. 112.) It seems equally plain that a justice of the peace may maintain an action to recover the amount of his statutory fees against the party who is liable under the law to pay them. It follows that the judgments of the County Court of Westchester county and of the City Court of Yonkers must be reversed. In directing this reversal, however, we must not be understood as holding that the plaintiff is entitled to recover all the items of his claim as set out in the complaint. Under no circumstances is the defendant here liable for any fees in the action in the Justice's Court which were rendered at the instance of the plaintiff in that action. She is liable only for the services which were rendered at the instance of the decedent whom she represents. All concurred, except HATCH, J., absent. Judgments reversed and new trial granted, costs to abide the event. 32 276 44 614 SYDNEY A. STILL, Respondent, v. NASSAU ELECTRIC RAILROAD Negligence · a verdict in favor of the plaintiff sustained in the absence of proof in support of plaintiff's statement · - when a passenger may stand on the front platform of an open car—excessive verdict. In an action to recover damages for injuries occasioned to the plaintiff through the defendant's alleged negligence, a verdict in favor of the plaintiff will not be set aside as against evidence merely because there is an absence of proof to App. Div.] SECOND DEPARTMENT, JULY TERM, 1898. corroborate the personal statement of the plaintiff as to his having been injured, where the failure to furnish such corroboration may be and is readily accounted for. It is not a negligent act on the part of a passenger upon an open trolley car to rise from his seat on the front platform in order to enable a lady to occupy it and to remain standing there, when it does not appear that he knew, or ought to have known, that he was in a position of danger, from which he could escape by going inside the car, and that he had an opportunity to do so. A recovery of $1,100, against an electric railroad company, for injuries, consisting of bruises and a sprain or partial dislocation of the left wrist joint, sustained by a passenger who, seven weeks after the accident, returned to his work as a waiter, receiving for the balance of the season a dollar and a half per day, although at the time of the accident he received only a dollar a day and was "making on the outside from $6 to $8 a day," and who, although claiming to suffer continuous pain in his chest and back as a result of the accident, did not appear to have afterwards consulted a physician with reference to it, should, the court considered, be reduced to $500, in view of the fact that the claim of permanent incapacity affecting the plaintiff's earning power had little support. APPEAL by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of March, 1898, upon the verdict of a jury for $1,100, rendered after a trial at the Kings County Trial Term, and also from an order entered in said clerk's office on the 27th day of April, 1898, denying the defendant's motion for a new trial made upon the minutes. Henry Yonge, for the appellant. James D. Bell [A. H. Dailey with him on the brief], for the respondent. WILLARD BARTLETT, J.: On June 23, 1896, one of the open trolley cars on New Utrecht avenue, in the city of Brooklyn, ran into an express wagon which was crossing the defendant's line at the intersection of Seventy-ninth street. According to the plaintiff's testimony, he was a passenger on the front part of the car, and was standing at the time of the collision, having risen to give place to a lady on the seat immediately behind the motorman. The shock, he says, threw him off toward the side of the street, and when he recovered consciousness he found himself, with another injured person, in a neighboring grass lot, where he was revived with stimulants so that in thirty or SECOND DEPARTMENT, JULY TERM, 1898. [Vol. 32. forty minutes he was able to go home. The extent of his injuries will presently be considered. In contending that the verdict is against the weight of evidence, the learned counsel for the appellant emphasizes the fact that none of the witnesses who testified upon the trial remembered having seen the plaintiff, either before or after the collision, on the car or in the grass lot, or being conveyed thither. "If the plaintiff really were thrown from the car and became insensible," he says, "and was carried to the grass and remained there in a fainting condition for forty minutes, it is almost incredible that none of the witnesses saw him fall, or helped carry him, or saw him carried or lying on the grass. The conclusion is irresistible that the plaintiff did not fall, or if he did he suffered no injury, else some one would have recalled it." The answer to this argument is that, upon a car crowded as this was so that passengers were standing in the cross aisles and upon the steps, the persons who saw the plaintiff fall might well be lost to him as witnesses the moment the car moved on, and that the plaintiff, in a fainting and dazed condition from the shock he had received, would not be likely to take the names of the strangers who assisted him after he was hurt. Furthermore, it appears that another passenger was more severely injured, and his case would naturally withdraw attention from that of the plaintiff. "I did not see this man," says one of the witnesses, who was on the car, referring to the plaintiff. "I heard that someone had been hurt on that side of the car, but my attention was entirely attracted to the other man, who was quite badly hurt." The jury could believe the plaintiff, if they chose, even though there was no direct corroborative evidence. It was certain that the collision had occurred at the time and place alleged by him, and that the proof warranted a view of the circumstances which would impute negligence to the defendant's servants in their management and operation of the car. A verdict is not to be set aside as against the evidence merely because there is an absence of proof to corroborate the personal statements of the prevailing party, when the failure to furnish such corroboration may be and is readily accounted for. Exception was taken by the defendant's counsel to that part of the charge in which the learned trial judge instructed the jury as |