De Wolf v. Day

Pratt, J.:

We do not think a fair construction of section 3315 of the Code of Civil Procedure will warrant an extra compensation to the jurors who served in this case. The trial lasted for more than thirty consecutive days, but deducting Sundays and Saturdays and a short adjournment to accommodate counsel, the jury did not sit for quite thirty days. The authority to give extra compensation is derived wholly from the section above referred to, and that reads “ when the trial occupies more than thirty days.” It follows that when the trial occupies less than thirty days there is no power to award such extra compensation.

The whole question turns upon the intent of the legislature in using the word occupies. The fact that the legislature used the word “ occupies ” instead of “ protracted,” as used in the former statute, furnishes a strong argument that it intended to change the former statute in that regard. It is too plain for argument that in using the word “ occupies ” it was meant to be the equivalent of actually engaged in. It is not a question of computing time, but a question of fact, whether thirty days are actually occupied in the trial, including, of course, the time in,which the jury are deliberating upon their verdict. Any other construction would allow extra compensation in any case where by adjournment the trial is protracted beyond the period of thirty days. It seems more reasonable to believe that the legislature fixed the limit of thirty days as the period beyond which a juror is entitled to compensation.

Order affirmed, without costs.

Barnard, P. J., concurred; Dykman, J., dissenting.

Order affirmed, without costs.