made, and filed with the justice. Upon the return day the defendants did not appear. Hannay was sworn for the plaintiff, and swore, in substance, that he was the agent of the plaintiff, and had possession of the note mentioned in the complaint; that he had talked with both defendants, and that both of them stated that the note was all right, and had promised to pay the same. In the return of the justice, it was stated that the said Hannay was deputized to serve the summons at his own request. The justice gave to the plaintiff the judgment asked for, and, upon appeal to the county court, the judgment was reversed.

The opinion of the county court was as follows:

GREGORY, J.

The summons in this action was not served by a constable, but by a person deputized by the justice under section 3156 of the Code of Civil Pro

DEPUTATION TO SERVE PROCESS OF JUSTICE OF THE PEACE,-continued. court held that those cases were not now authority under the Code of Civil Procedure and that § 3156 expressly abrogated the rule which they established.

In Miln v. Russell, 3 E. D. Smith, 303, the court indicated that the service of a summons by a person deputed to make it who was under twenty-one years of age gave the justice no jurisdiction, but held that the objection in that regard was matter in abatement only and was waived by going to trial on the merits.

The reporter's statement in the case just cited shows that the defendant objected also to the deputation because it did not state that it was made at the plaintiff's request nor that the person deputed was a fit and proper person, and that such deputation was not endorsed upon the process itself.

The deputation need not recite that the person deputed to make the service is of age and not interested in the action. In the absence of any showing on those points it will be presumed that the justice deputed a proper per

son.

Bacl v. Duke, 38 Mich. 167.

Service of a summons by a plaintiff who is a constable gives the court no jurisdiction of the person of the defendant and such defendant being taken on a body execution under such judgment is entitled to be discharged on a writ of habeas corpus.

cedure. There was no appearance by the defendants before the justice, and judgment was taken by default. The defendants appeal, and claim that the justice never legally acquired jurisdiction of the person of the defendants, for the reason that it does not appear, by the return made herein, that any request was made by the plaintiff that the justice deputize some person other than a constable to make the service of the summons.

Section 3156 provides: That a justice of the peace may, at the request of the party, whenever he deems it expedient so to do, empower, by a written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve, or otherwise execute it.

It is well settled that nothing can be inferred to give a justice of the peace jurisdiction to proceed in an action. The facts necessary in order that he may act must appear upon the record, and if there is no appearance by the defendant before the justice, upon the return day, he does not waive the right to raise any question which touches the jurisdiction in the justice. It nowhere appears in the return herein that the justice was requested by the plaintiff to deputize the person who served the summons to make service, but, on the contrary, it does appear that someone other than the plaintiff made the request that the summons should be served by a person other than a constable. The entry in the return touching that subject is as follows: "That on the 11th day of October, 1898, at the request of Orison L. Hannay, I issued a summons for George E. Loucks, plaintiff, dated on that day, and at the request of the said Orison L. Hannay, I deputized the said O. L. Hannay in the manner that appears on the back of plaintiff's complaint." The indorsement on the complaint referred to is as fol

DEPUTATION TO SERVE PROCESS OF JUSTICE OF THE PEACE,-continued.

Decker v. Ekelman, 17 Misc. 665; 41 Supp. 412.

On appeal from a judgment rendered on his default, the objection is available to the defendant that the deputization of the plaintiff to serve the summons was illegal.

Waring v. Keeler, 11 Misc. 451; 67 St. Rep. 417; 33 Supp. 415; 24 Civ. Pro. 427.

Service by the person deputized to make it is good although he did not exhibit his authority to the defendant when the process was served.

Hayes v. Maytham, 20 Week. Dig. 337.

The return of service of process by a person deputized to serve it need not be under oath, but if it is made under oath the return is not thereby harmed. Hayes v. Maytham, 20 Week. Dig. 337.

In the municipal courts of the city of New York a person other than a marshal, and not a party to the action, may be empowered by the justice or by the attorney to the corporation to serve process.

§ 3208. Code of Civil Procedure.

lows: "I hereby deputize O. L. Hannay to execute the within instrument. Martin Vincent, Justice of the Peace."

This was not a fulfilment, in my opinion, of the requirements contained in section 3156. It appearing from the return that no request was made by the plaintiff to have Orison L. Hannay, or any other person not a constable, serve the summons in this action, the justice did not acquire jurisdiction of the person of the defendants, and had no right to proceed and take testimony and enter judgment.

For this reason, the judgment appealed from is reversed, with costs.

Argued before PARKER, P. J., and HERRICK, Merwin, SMITH, and KELLOGG, JJ.

Clute & McCormic (J. H. Clute, counsel), for appellant.

Martin A. Springsteed, for respondents.

SMITH, J. From the opinion handed down in the court below, we learn that this judgment was reversed upon the ground that no jurisdiction was obtained of the defendants by reason of the fact that Orison L. Hannay, who served the summons, was not deputized at the plaintiff's request. With this conclusion DEPUTATION TO SERVE PROCESS OF JUSTICE OF THE PEACE,-continued.

Unlike the case of a deputation by a justice of the peace the deputation is not required to be in writing and endorsed upon the mandate.

A justice having rendered a judgment upon a proof of service made by a person other than a marshal, the judgment is not void because the record does not show that the person who made the service was authorized to make it.

Hess v. Smith, 16 Misc. 55; 73 St. Rep. 85; 37 Supp. 635.

In the case last cited McAdam, J., said, "It is not prescribed how this authority is to be conferred, whether orally or in writing, and, so long as the person who makes the service is first authorized to do so by the justice, the service is legal. The justice having rendered judgment upon the proof of service made by a person other than a marshal, it must be presumed that the justice gave the requisite authority."

Likewise, a final order in summary proceedings will not be reversed be cause of the omission from the record of a certificate showing that the person who served the precept was duly authorized so to do by the justice. Mooney v. McGuirk, 98 St. Rep. 41; 64 Supp. 41.

of the learned county judge we are unable to agree. Hannay was plaintiff's agent, had possession of the note, demanded its payment, and commenced the action which was afterwards prosecuted by the plaintiff's direction. From his evidence we think there fairly appears an authority to do what was usual in making such collection, both in the institution of the action and in the making of the request for deputization of a party other than the constable to serve the summons. Thus authorized, his request was the request of the plaintiff.

It is contended, however, that if he represented the plaintiff to make the request, he must come within the inhibition of the statute which precludes the plaintiff himself from serving the summons. While the law authorizes a person to act through an agent, and thus become bound, the appointment of the plaintiff's agent as a proper person to serve the summons is not prohibited. While cogent reasons might be urged for extending the prohibition to the agent of the plaintiff by statute, such extension is not authorized to be made by the court.

That Hannay was adjudged by the justice a proper person to serve the summons may be fairly inferred from the fact of his designation. That he was of full age may be inferred from the fact of his acting as notary public. We are unable to find any sufficient ground for impeaching the judgment of the justice. The judgment of the county court, therefore, reversing the judgment of the justice's court, should be reversed.

Judgment of the county court reversed, and judgment of justice's court affirmed, with costs. All concur, except HERRICK, J., who dissents.

Appellate Division.

[Apr.

CAHILL v. NEW YORK.

[50 App. Div. 276; 97 St. Rep. 1006; 63 Supp. 1006.]

[Supreme Court, Appellate Division, First Department. April 12, 1900.)

COSTS-CONDITION TO AMENDMENT-PAYMENT-RETAXATION.

Where costs are awarded against defendant, as a condition of leave to file an amended answer, plaintiff, having received the costs, cannot again tax the same costs on finally succeeding in the action.

Van Brunt, P. J., and O'Brien, J., dissenting.

Appeal from special term, New York county.

Action by Susanna V. Cahill against the mayor, aldermen, and commonalty of the city of New York. From an order denying a retaxation of costs (30 Misc. 163; 97 St. Rep. 509; 63 Supp. 509), plaintiff appeals. Affirmed.

NOTE. TAXATION OF COSTS PREVIOUSLY PAID AS TERMS.

a. When paid by party finally successful.
b. When paid by party finally unsuccessful.

a. When paid by party finally successful.

Where a party to an action has paid costs imposed as terms for the granting of a favor, he cannot, upon finally succeeding in the action, tax the items so paid.

Seneca Nation of Indians v. Hawley, 32 Hun, 288.

Skinner v. White, 69 Hun, 127; 23 Supp. 384.

Woolsey v. Trustees of Village of Ellenville, 81 Hun, 234; 65 St. Rep. 746; 32 Supp. 546.

Provost v. Farrell, 13 Hun, 303.

Slocum v. Lansing, 3 Denio, 259.

Linacre v. Lush, 3 Wend. 305.

Thus, where costs to date were paid by a party for the privilege of amend.