GILDERSLEEVE, J.
The action is for what plaintiff claims to be the fair and reasonable value of publishing a summons and notice in plaintiff's newspaper for defendants, who are lawyers. The plaintiff introduced evidence tending to show that the reasonable value was $279. Defendants claim that, as no express rate or charge was agreed upon, the statutory rate fixed by section 3317 of the Code applied. The publication was what is called a "legal notice;" and the statute above cited covers such publications as "summons, notice, order, citation, or other advertisement, required by law to be published, other than the session laws," and fixes the rates which the newspaper is entitled to charge. These rates defendants are willing to pay, and judgment for that amount has been given. The cases of Eberle v. Krebs, 50 A.D. 450; Press Publishing Co. v. Baker, 13 N.Y. Supp, 822, appear to uphold defendants' contention, and the judgment should be affirmed; but, as plaintiff attacks the statute as unconstitutional, leave should be given to plaintiff to appeal to the Appellate Division.
Judgment affirmed, with costs, with leave to appeal to the Appellate Division.
GIEGERICH, J., concurs.
SEABURY, J. (concurring).
I concur upon the ground that the proprietor of the newspaper was not obliged to accept the advertising; and, having done so, its consent to render the service at the rate prescribed by statute is implied.
Judgment affirmed, with costs, with leave to appeal to Appellate Division.