Howell v. Cappelli — 41 N.Y.S. 105

Majority

p. 105

(9 App. Div. 18.)

HOWELL v. CAPPELLI.

(Supreme Court, Appellate Division, Third Department.

September 22, 1896

Headnote

justices of fee Peace—Postponement—Non-appearance of Plaintiff.

Code Civ. Proc. § 3013, providing that a justice must render judgment of nonsuit if plaintiff fails to appear within one hour after the summons is returnable, prohibits a justice from granting an adjournment on the nonappearance of plaintiff, though plaintiff was prevented from attending by storms which rendered travel impossible.

Appeal from Columbia county court.

Action by William N. Howell against John Cappelli. Prom a-judgment of the county court affirming a judgment of a justice in-favor of plaintiff, defendant appeals. Eeversed.

Upon the return of the summons, the parties appeared in the justice’s court, the plaintiff ia person, the defendant by his attorney. Issue was

p. 106

joined, and the case adjourned, upon motion of the defendant, until February 8, 1895, at 2 p. m. The return recites:

“Feb. 8. 3:00 p. m. Case called. Milton M. Hall, Esq., appears for defendant, and states that he has been requested by Mr. Crandell, defendant’s attorney, to appear for him, and, if plaintiff appeared, to secure an adjournment; if plaintiff did not appear, to have action dismissed.

“A telegram having been received from plaintiff'from New York, dated Feb. 8, 1895, stating that all trains upon New York Central Railroad had been abandoned on account of severe snowstorm, and it being a fact that all railroads and means of communication between New York and Hudson are blocked and impassable by reason of snow, the justice, upon his own motion, and upon the telegram herein referred to (filed and marked ‘B’), adjourns this case to February 22d, 1895, at 2:00 p. m., no objection being made to said adjournment by Mr. Hall, appearing for the defendant.

“Feb. 22. 3:00 p. m. Case called. Plaintiff appears in person. Defendant does not appear, either in person or by attorney.”

“The Western Union Telegraph Company received at Hudson, N. Y., 11:45, Feb’y 8, 1895, dated New York, to H. W. Alden (filed ‘B’):

“‘Trains abandoned. Cannot reach Hudson to-day. Adjourn case, and mail me notice two weeks from to-day, if possible.

“‘Wm. N. 'Howell.’”

The justice then took the evidence of the plaintiff, and thereupon rendered judgment in his favor.

Argued before PARKER, P. J., and LARDON, HERRICK, PUTNAM, and MERWIN, J J.

John L. Crandell, for appellant.

Mark Duntz, for respondent.

The plaintiff having failed to appear upon the adjourned day, either in person or by attorney or agent, we think the statute required the justice to render a judgment of nonsuit, with costs against him. Code Civ. Proc. §§ 3013, 2861. We-do not think, in view of the statement made by the person representing the defendant, that he consented to the adjournment.

Judgment reversed, with costs. All concur.