Brill v. Lord — 14 Johns. 341

Majority

p. 343

Brill against Lord.

NEW-YORK,

October, 1817.

Headnote

A justice has some discretion in granting an adjournment on the application of a defendant» in order to enable him to pro» cure testimony; and if the plaintiff will admit the matters expected to be proved by the absent witness, the adjournment may hé refused. After sucli admission's have been offered by the plaintiff, and accepted by the defendant, the latter is precluded from asking an adjournment to enable him to procure the testimony of the same witnes”.

IN ERROR, on certiorari to a justice’s court.

The defendant in error, who was plaintiff in the court below, brought an action against the plaintiff in error, and declared for a reward offered for a horse stolen from the defendant below, and for services rendered and money expended in obtaining the horse. After issue joined, the cause was adjourned, by consent, to another day, and at that day, after the parties had appeared, and the jury were called, though not sworn, the defendant below, by his agent or attorney, requested an adjournment again, on account of the absence of a material witness, and offered to make oath and give security, according to the act. Upon this the plaintiff proposed to admit what was expected to be proved by the absent witness, which being acceded to, the admission ivas reduced to writing in the justice’s book. The agent afterwards required some other admission, but the justice thinking it was unreasonable, and that the object was delay, refused an adjournment; the cause proceeded to trial, and a verdict was found for the plaintiff below, the defendant in error.

The evidence before the jury would not warrant the conclusion of any imposition having been practised upon the defendant, in procuring the advertisement offering the reward ; but independently of this, the proof shoxved services performed, sufficient to support the judgment, and the only question in the case is, whether the justice erred in not granting a second adjournment. We think that he did not. The object of the adjournment, as avowed, was to procure the testimony of a certain witness; and the plaintiff offered to admit, and did admit, what it was alleged the witness would prove. This was, at first, accepted by the defendant, but, afterwards, other claims were set up, which convinced the justice that delay xvas the object. The justice must have the right of exercising some discretion on this subject. The act (1 N. R. L. 389.) requires him to postpone the ' trial for such reasonable time as will enable the defendant to procure testimony or witnesses. If the plaintiff will admit the testimony, no time can be wanted for that purpose; besides,

p. 344

in this case, the defendant had agreed to go to trial upon such ac¡m¡gs¡onSj and fe ought not, afterwards, to be permitted to violate such agreement. The claim to an adjournment must be deemed to have been waived : the judgment must be affirmed.

Judgment affirmed.