Bonney v. Paul — 39 N.Y. St. Rep. 596

Majority

p. 596

Walter B. Bonney, Resp’t, v. James Paul et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed July 11, 1891.)

Headnote

Jurisdiction—Loss or—Justice’s court—Continuance by agreement op counsel.

In an action brought in a justice’s court, a verbal agreement was made between counsel ihat the cause should be adjourned to a day thereafter to be agreed upon by them, and if such time could not be determined by

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counsel, then it to be fixed by the court. Plaintiff’s counsel told the justice that they had agreed upon a certain day, and the justice notified defendants’ counsel, and he telegraphed to his client, but could get no reply. On the day so fixed a judgment by default was taken for plaintiff. Held, that the verbal agreement was too loóse to keep the cause in court, and that jurisdiction over the parties was lost, and that the judgment against defendants must be reversed.

Appeal from a judgment of St. Lawrence county court, affirming a judgment of a justice’s court. Defendant Paul appeals.

John C. Keeler, for app’lts; Horace D. Ellsworth, for resp’t.

—The plaintiff sued Paul and Crowe, defendants, in a justice’s court for goods sold and delivered. The defendants appeared and answered, admitting that they were partners and denying the other allegations and setting up payment. The case was adjourned and was finally tried January 26th before a jury, who could not agree and were discharged. On that trial defendant Crowe testified that he was twenty years of age. The cause was then adjourned to such time as should be agreed on by ■counsel for the respective parties ; if the time should not be determined by the counsel, then to be determined by the court.

Subsequently plaintiff’s counsel told the justice that they had agreed to try the cause on the 13th of February. On the 11th of February the justice saw the defendant’s counsel and. told him this, and he said “ all rightthat he was telegraphing his client, Crowe. The next day he told the justice he could get no reply from Crowe.

On the 13th a jury was summoned. Defendant Crowe had been in court. But on calling the case, and after waiting an hour, neither defendant appeared. Plaintiff waived a jury, and a judgment was taken for plaintiff.

On appeal the county court reversed the judgment as to Crowe and affirmed it as to Paul. The ground of reversal according to the opinion is, error of fact, on the ground that Crowe was an infant and did not appeal by guardian. Paul appeals.

We are satisfied that the agreement of the counsel as to adjournment made on the 26th of January cannot be held effectual to keep the cause in court. If the parties had subsequently agreed on a day and had thereupon met at the justice’s office and proceeded with the trial, the case would be very different. But a general and verbal agreement that they would thereafter agree upon a day and that if they did not agree the court might appoint the day is altogether too loose to be permitted. If valid it would enable the justice to appoint any time he might choose and to give such notice, or no notice, to the parties as he might think best.

There was no agreement by the counsel except verbal talk out •of court. It would be quite unsafe to give effect to any such verbal agreements. The case of Flynn v. Hancock, 46 Hun, 369 ; 15 N. Y. State Rep., 145, in principle applies to this case. And we approve the remarks there made.

As to the other points we have some doubt whether there was any proper evidence before the county court that Crowe was an

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infant. The matter should have been shown by affidavits or by examination of witnesses before the county court. Code, § 3057. But the plaintiff has not appeared and Crowe is not before us even as respondent. It is, therefore, unnecessary to decide anything on that point.

We are of the opinion that the jurisdiction over the parties was lost. And the judgment of the county court and that of the. justice’s against Paul must be reversed, with costs.

Landon and Mayham, JJ., concur.