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Newman v. Woodcock

38 N.Y.S. 957 Court Oneida Cty. Ct. English

Delivered by *958 DUNMORE, J.

Contents

Majority

p. 957
(16 Misc. Rep. 142.)
NEWMAN v. WOODCOCK et al.
(Oneida County Court.
February, 1896.)

Headnote

Justices oe the Peace—Adjournment oe Case.
Under Code Civ. Proc. § 2960, authorizing an adjournment at plaintiff’s instance only on the return day of the summons, a second adjournment at plaintiff’s instance is unauthorized, and the irregularity granting it is not waived because a condition that plaintiff pay defendant’s witness-fees was imposed and complied with.
Appeal from justice court.
Action by Fred Newman against William Woodcock and others. Issue was joined May 4, 1895. The cause was then adjourned till May 11th, on which day plaintiff asked for a further adjournment, which was granted, over defendants’ objection, on condition that plaintiff pay defendants’ witness fees. Judgment was rendered in. favor of plaintiff, and defendants appeal.
Eeversed.
George E. Pritchard, for appellants.
George M. Wirt, for respondent.

The second adjournment was unauthorized. The justice had no right to grant plaintiff’s application for a second adjournment. By the provisions of the Code the plaintiff is entitled to an adjournment only upon the return day of the summons. Section 2960. When a commission is granted, a further adjournment may be had to procure the execution and return of the commission. Code, § 2983. Here the adjournment was granted on plaintiff’s motion and against the defendants’ objection for more than eight days, and was after one adjournment had been- had. The adjournment was, therefore, irregular, and, as between the parties, the case was out of court. The respondent claims that the irregularity was0 waived because a condition, to wit, the payment of the defendants’ witness fees, was imposed; and cites Weeks v. Lyon, 18 Barb. 530 ; Hart v. Small, 4 Paige, 288; Clarke v. Meigs, 10 Bosw. 337 ; and Peck v. McAlpine, 3 Caines, 166b. Those authorities do not support the respondent’s contention. The fact that the court imposed a condition would not bind the defendants without their consent. As the judgment must be reversed because of this irregularity, it is unnecessary to examine the other questions in the case.

Judgment reversed, with costs.

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