Hall v. Louis Weber Building Co.

38 Misc. 793, 78 N.Y.S. 1118

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1902
• Status: Published

Opinion

Per Curiam.

The case was set down for trial, at defendant’s request, on March 4, 1902. The defendant did not appear on said day, and, upon motion of the plaintiff, the trial was adjourned to March twenty-fifth, and notice thereof given to defendant. On said adjourned day, the defendant appeared, and plaintiff moved for an adjournment to April 3, 1902. The defendant objected and raised the point that the court had lost jurisdiction of the case by reason of the adjournment, from March fourth to March twenty-fifth. The point was overruled, and the trial adjourned to April third, when defendant again appeared and urged that the said adjournment from March fourth to March twenty-fifth was illegal, iand operated as a discontinuance of the action, for the reason that it divested the court of jurisdiction to. render any judgment under section 1362 of the Consolidation Act. This objection was again overruled, and, upon plaintiff’s motion, the case was adjourned from time to time until April thirtieth, when defendant failed to appear, and an inquest was taken. The justice gave judgment in favor of the plaintiff for $291.31. Defendant appeals. The defendant rests it appeal solely upon the want of jurisdiction, by reason of the adjournment from March fourth to March 25th, as above set forth. Section 1362 of the Oonsolidation Act provides that the trial may be adjourned on application of either party, for a period of not over eight days at any one adjournment, unless the defendant is under arrest, which was not the case here; but that a longer adjournment may be granted on consent, or where neither party objects to the same. The rule is that, where jurisdiction has attached, it will be presumed to continue until it affirmatively appears that it has been divested. See Wood v. Spofford, 29 Misc. Rep. 357, Appellate Term decision. The record here does not show any objection on the part of the defendant, when the adjournment was granted on March fourth. In fact, the defendant was not represented on that day. Nor did the defendant raise any objection when he received the notice of adjournment on March fifth, and the order on March 7, 1902, granting the adjournment. It was not until the adjourned day, i. e., March twenty-fifth, that he raised his objection. As ■we have seen, the section in question provides that “ the trial may be adjourned for a longer period by consent, or where neither ■party objects to the same " Heither party did object to the adjournment in question.

The judgment is affirmed, with costs.

Present: Freedman, P. J., Gildbrsleeve and MagLeae, JJ.

Judgment affirmed, with costs.