Burbanks Hardware Co. v. Henkel

78 N.Y.S. 365

Opinion

KELLOGG, J.

The judgment of the county court, reversing the judgment of the justice court, must be affirmed. The record shows that after defendant had withdrawn from the case, and in his absence, the trial of the case was, on the application of the plaintiff, three times adjourned, and on the third adjourned day the trial proceeded in the absence of defendant. Such unauthorized adjournments ousted the justice of his jurisdiction. Crisp v. Rice, 83 Hun, 465, 31 N. Y. Supp. 908; Morris v. Hays, 14 App. Div. 8, 43 N. Y. Supp. 639.

On the return day of the summons, defendant offered to prove that the summons and other papers were not served upon him, and that the constable’s return in that respect is incorrect. The offer was by the justice refused, no objection being made to the form of the offer or the character of proof offered. This must be deemed a decision by the justice of the peace that proof could not be entertained to impeach the constable’s return. This was also a reversible error.

Judgment of the county court affirmed, with costs. All concur; CHASE, J., on ground last stated.