Grahams v. Morton

6 Wend. 552

Opinion

By the Court,

Sutherland, J.

The recorder had no authority to make the order. Application should have been made to this court, Sudam v. Swart, 20 Johns. R. 476, or to the referees on the day appointed for the hearing, they having the right to adjourn the same from time to time as may be necessary. 2 R. S. 384, § 43. The order must be vacated, and the defendant must pay the costs of the plaintiffs for preparing for the hearing; he should have ascertained the absence of his witness and given notice of the fact, so as to have prevented the plaintiff from incurring unnecessary expense, and he must pay the costs of this motion.