Conlan v. Murry

92 N.Y.S. 58

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 30, 1905
• Status: Published

Opinion

SCOTT, J.

The only error urged upon our attention is that the justice erred, as it is said, in denying defendant’s motion for a long adjournment applied for under section 194 of the Municipal Court Act (Laws 1902, p. 1547, c. 580). That section authorizes an adjournment, under certain circumstances, for a period "not to exceed ninety days from the return of the summons.” The summons was returned on September 9th, and the date to which defendant asked an adjournment (December 26th) was far beyond the power of the court. This, however, is not controlling, because the court, if it had granted an adjournment at all, was not bound by the terms of defendant’s motion, but rather by the statute. The section, however, requires that such an adjournment shall be had only upon proof that the party applying for the adjournment cannot be ready for trial before the time to which he desires an adjournment, “for the want of material evidence.” The affidavit upon which the application for adjournment was made was insufficient in two regards. What defendant says that he seeks to prove is the incompetence of plaintiff as an actor, and he names four witnesses, who, as he says, will testify to that fact. This, of course, is opinion evidence, and the affidavit fails to show that there are not others equally qualified to testify, whose evidence is presently accessible. Furthermore, the affidavit wholly fails to show that the attendance of the witnesses named cannot be procured before the date to which he seeks, or claims to be entitled to, an adjournment. The justice therefore committed no error in refusing to adjourn the trial, and, since no other error is claimed to have been committed, the judgment must be affirmed, with costs.

Judgment affirmed, with costs. All concur.