Aberhall v. Roach

New York Court of Common Pleas

Aberhall v. Roach

3 E.D. Smith 345, 11 How. Pr. 95

CourtNew York Court of Common Pleas

DecidedOctober 15, 1854

StatusPublished

Cited by3 cases

This text of 3 E.D. Smith 345 (Aberhall v. Roach) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aberhall v. Roach, 3 E.D. Smith 345, 11 How. Pr. 95 (N.Y. Super. Ct. 1854).

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Opinion

By the Court. Ingraham, First J.

This action was for damages occasioned by negligently driving against the plaintiff’s wagon, whereby the plaintiff’s wagon and the horse of the plaintiff were injured. A question was put to a witness whether the plaintiff hired another horse % which was admitted under exception. No special damages were claimed in the complaint. ■

This question should not have been allowed. It was immaterial. It neither tended to show the defendant’s negligence nor the injury to the plaintiff’s property. It is suggested that it is no ground of objection, because it is proven that the plain[347]*347tiff’s horse was useless for a week, and therefore the answer could have no bearing on the mind of the justice in rendering judgment. This is not very clear. He may have increased the damages for this reason, and if so, it had an improper influence.

The justice, after commencing the trial on the 14th April, adjourned by consent to the 20th, and again to the 28th April. On that day, the plaintiff applied for a further adjournment, on account of the absence of a witness, duly subpcened, which was opposed by the defendant, and the justice adjourned the cause to the 11th May. This adjournment was without authority, and rendered the further pi'oceedings void.

We have heretofore held that an adjoum’nment by the justice for ten days, without the defendant’s consent, was unauthorized. (Redfield v. Florence, Jan. G. T. 1854, 2 E. D. Smith, 339.) If such a power cannot be exercised before trial, there can be no possible reason for sustaining it after the trial has commenced. It is against the whole theory of the laws organizing these courts, which contemplates a speedy trial of causes pending therein. If a witness, duly subpcened, does not appear, an attachment should be issued, and the trial not be commenced until the attachment is returned. After it has been commenced, there is no propriety in such an adjournment. I doubt whether an instance can be found, even in a court of record, where the court has adjoui’ned a cause half tried, to procure the attendance of a witness, without the consent of both of- the parties. In a justice’s court no such power exists.

Judgment reversed.

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By the Court. Ingraham, First J.

This action was for damages occasioned by negligently driving against the plaintiff’s wagon, whereby the plaintiff’s wagon and the horse of the plaintiff were injured. A question was put to a witness whether the plaintiff hired another horse % which was admitted under exception. No special damages were claimed in the complaint. ■

This question should not have been allowed. It was immaterial. It neither tended to show the defendant’s negligence nor the injury to the plaintiff’s property. It is suggested that it is no ground of objection, because it is proven that the plain[347]*347tiff’s horse was useless for a week, and therefore the answer could have no bearing on the mind of the justice in rendering judgment. This is not very clear. He may have increased the damages for this reason, and if so, it had an improper influence.

The justice, after commencing the trial on the 14th April, adjourned by consent to the 20th, and again to the 28th April. On that day, the plaintiff applied for a further adjournment, on account of the absence of a witness, duly subpcened, which was opposed by the defendant, and the justice adjourned the cause to the 11th May. This adjournment was without authority, and rendered the further pi'oceedings void.

We have heretofore held that an adjoum’nment by the justice for ten days, without the defendant’s consent, was unauthorized. (Redfield v. Florence, Jan. G. T. 1854, 2 E. D. Smith, 339.) If such a power cannot be exercised before trial, there can be no possible reason for sustaining it after the trial has commenced. It is against the whole theory of the laws organizing these courts, which contemplates a speedy trial of causes pending therein. If a witness, duly subpcened, does not appear, an attachment should be issued, and the trial not be commenced until the attachment is returned. After it has been commenced, there is no propriety in such an adjournment. I doubt whether an instance can be found, even in a court of record, where the court has adjoui’ned a cause half tried, to procure the attendance of a witness, without the consent of both of- the parties. In a justice’s court no such power exists.

Judgment reversed.

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3 E.D. Smith 345, 11 How. Pr. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aberhall-v-roach-nyctcompl-1854.

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