Todd v. Doremus — 39 N.Y. St. Rep. 859

Majority

p. 859

James W. Todd, App’lt, v. Morton R. Doremus, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Justices court—Adjournment—Jurisdiction.

Plaintiff failed to appear on the return day of the summons, but sent word that he desired an adjournment; the justice refused defendant’s motion to dismiss and adjourned the case. On the adjourned day the complaint was put in and a judgment by default taken. Held, error; that the justice by adjourning before issue lost jurisdiction of the action.

Appeal from a judgment and order of the county court of Westchester county, reversing the judgment of a justice of the peace in favor of plaintiff.

C. H. & J. A. Young, for app’lt; Frank M. Buck, for resp’t.

—The plaintiff is an assignee of a claim for goods sold by J. H. & 1ST.

p. 860

cured a summons from a" j ustice of the peace returnable on the 5th of January, 1891. At the return day the plaintiff did not appear but sent word that he desired an adjournment until some later period The defendant appeared by counsel and asked to dismiss the proceedings because the plaintiff had failed to appear.

This application was denied and the case was adjourned “ on motion of the court" until the 12th of January, 1891, at which day the plaintiff proved his case and took judgment

The defendant failed to appear. The complaint was not put in until the adjourned day.

The practice is settled upon the point presented. The statute requires that the plaintiff shall appear within the hour after the return hour. The issue is then to be joined. Code, § 2934.

The adjournment may be had after issue joined either upon the application of the plaintiff or of the defendant or upon the motion of the justice himself.

When the justice adjourns the case without an issue he loses jurisdiction of the action even if the plaintiff appear and ask an adjournment to obtain counsel. Duel v. Sykes, 13 N. Y. Supp., 166 ; 35 N. Y. State Rep., 768.

If there be no appearance judgment must be given for defendant Code, § 3013; Wilcox v. Clement, 4 Denio., 160 .

In this case there was no appearance and no issue and no refusal of defendant to plead because there was no complaint put in. The justice therefore lost jurisdiction of 'the case and the judgment of the county court should be affirmed, with costs.

Dykmajv and Pratt, JJ., concur.