Winquist v. Preston — 102 N.Y.S. 1023

Majority

p. 1023

(118 App. Div. 564)

WINQUIST v. PRESTON.

(Supreme Court, Appellate Division, Fourth Department.

March 6, 1907.)

Headnote

Courts—Municipal Courts—Adjournment.

Under Code Civ. Proe. § 2983, providing for adjournment of cases hi Justices’ Courts, where commissions are issued, to afford opportunity for their execution and return, and the city charter of Buffalo, making this provision applicable to the Municipal Court, the calling of a case 'for trial in that court, the introduction of a commission, and an objection to its admission because not properly executed, was not such a commencement of the trial as to deprive the court of power to order an adjournment to permit the commission to be_correeted.

Appeal from Special Term, -Erie County.

Action by Wallace H. Winquist against James F. Preston. From an order denying a motion to set aside an order for the examination of the defendant in supplemental proceedings, and to vacate the judg

p. 1024

ment upon which such proceedings were based, defendant appeals. Affirmed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Charles Newton, for appellant.

Peter Maul, for respondent.

The order should be affirmed, with $10 costs and disbursements.

The motion in County Court was based upon the claim that the judgment was void for want of jurisdiction in the Municipal Court of the city of Buffalo’to render the same. It was claimed the court lost jurisdiction of the action by adjourning the same against defendant’s objection. The case having been adjourned from time to time by consent of the parties, on May 23, 1906, it was called for trial. A commission had previously been issued to take the evidence of witnesses residing in Massachusetts, and had been returned. The plaintiff’s counsel attempted to read evidence from this commission, when objection was made by defendant’s counsel that the commission was not properly executed. The plaintiff then, before any evidence was read, from the commission or taken from other witnesses, applied for an adjournment of the case to permit the commission to be returned to Massachusetts for correction. The defendant objected to the adjournment upon the ground that the court had no power to adjourn at that time; the trial having been commenced. The court overruled the objection and adjourned the case to June 1, 1906. On the adjourned day the defendant made no appearance, except to object to the jurisdiction of the court to proceed further in the case, having lost jurisdiction thereof by adjourning it without defendant’s consent after the trial had begun. The plaintiff made his proof and the judgment was ordered. A transcript was filed in Erie county, and the supplemental proceedings were based thereon.

The question here is whether the judgment is void for want of jurisdiction in the Municipal Court, for the reason alleged. It seemed to be assumed on the trial that the court had power to adjourn the case to have the commission corrected, if it had been done before the trial had commenced. There are provisions in the Code of Civil Procedure for adjournment of cases in Justices’ Courts, where commissions are issued, to afford opportunity for the execution and return of the commissions (section 2983), and this provision is applicable to proceedings in the Municipal Court of the City of Buffalo (Charter, § 456). These provisions undoubtedly cover cases where commissions are defectively executed and need to be returned for correction. We might be willing to concur in the defendant’s position that a case could not be adjourned in Justices’ Courts, or in this Municipal Court, after the trial has commenced. In this case, however, there had been really no commencement of the trial. The lawyers and the court had done some talking. Some offers, objections, and rulings had been made, but no evidence had been taken, and we think the court correctly held that the trial had not commenced in such a sense as to deprive the court of

p. 1025

the power to adjourn the case for the purpose of procuring the commission to be corrected and returned. Having arrived at this conclusion, we do not deem it essential to pass upon the other questions raised upon this appeal.

Order affirmed, with $10 costs and disbursements. All concur.