Kane v. Dulex

New York Court of Common Pleas

Kane v. Dulex

3 E.D. Smith 127

DecidedMay 15, 1854

StatusPublished

This text of 3 E.D. Smith 127 (Kane v. Dulex) 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

Kane v. Dulex, 3 E.D. Smith 127 (N.Y. Super. Ct. 1854).

Pincite

Opinion

By the Court. Woodruff, J.

By the 122d section of the act to reduce, etc;, relating to the city of New York (see 2 Rev. L. 386), it is provided that the justices Of the court (now known as the Marine Court) shall give judgment within four days after. hearing the proofs and. allegations of the parties. The provisions of the acts regulating trials before a justice of the peace (1 Rev. L. 388, and 2 Rev. Stat. [24]) are to the like effect—and so, also, is the act in relation, to the assistant justices in the city of New York. (2 Rev. L. 371, § 87.)

This requirement of the statute has often been held to be imperative, and although where a jury has been called, and a verdict has been had, the plaintiff cannot submit to a nonsuit, and so avoid the effect of the verdict ; and although, if no-judgment is rendered within the four days, the verdict will nevertheless be available to the party in whose favor it was rendered as a bar to another action, yet I apprehend that after the lapse of four days, the power of the court below to render any judgment in the action is gone. During the four days “ the parties are not in court for any purpose but to receive judgment ” (Hess v. Beekman, 11 Johns. 457), and after those days have passed, the power to render judgment has ceased.

•It has often been held that an unauthorized adjournment operates' as a discontinuance (1 Johns. cases, 101-2; 3 Caines, 171; 2 J. R. 192; 7 J. R. 381), and although the delay beyond the four days will not deprive the party of the benefit of any verdict he may have' obtained, its effect upon the power of the court to proceed therein is similar. (See Elwell v. McMeon, 10 Wend. 521; Hess v. Beekman, 11 J. R. 457.)

I think the judgment may well be questioned upon other [129]*129grounds, but the objection above considered, if well taken, is sufficient.

I regret that the respondent’s counsel, if the statute in question has been altered, has not given us some reference to its modification, or to some case in support of his suggestion, that the Marine" Court is not bound to render judgment within four days. Under my present views, the judgment cannot be upheld, and must therefore be reversed.

Judgment reversed.

Free access — add to your briefcase to read the full text and ask questions with AI

By the Court. Woodruff, J.

By the 122d section of the act to reduce, etc;, relating to the city of New York (see 2 Rev. L. 386), it is provided that the justices Of the court (now known as the Marine Court) shall give judgment within four days after. hearing the proofs and. allegations of the parties. The provisions of the acts regulating trials before a justice of the peace (1 Rev. L. 388, and 2 Rev. Stat. [24]) are to the like effect—and so, also, is the act in relation, to the assistant justices in the city of New York. (2 Rev. L. 371, § 87.)

This requirement of the statute has often been held to be imperative, and although where a jury has been called, and a verdict has been had, the plaintiff cannot submit to a nonsuit, and so avoid the effect of the verdict ; and although, if no-judgment is rendered within the four days, the verdict will nevertheless be available to the party in whose favor it was rendered as a bar to another action, yet I apprehend that after the lapse of four days, the power of the court below to render any judgment in the action is gone. During the four days “ the parties are not in court for any purpose but to receive judgment ” (Hess v. Beekman, 11 Johns. 457), and after those days have passed, the power to render judgment has ceased.

•It has often been held that an unauthorized adjournment operates' as a discontinuance (1 Johns. cases, 101-2; 3 Caines, 171; 2 J. R. 192; 7 J. R. 381), and although the delay beyond the four days will not deprive the party of the benefit of any verdict he may have' obtained, its effect upon the power of the court to proceed therein is similar. (See Elwell v. McMeon, 10 Wend. 521; Hess v. Beekman, 11 J. R. 457.)

I think the judgment may well be questioned upon other [129]*129grounds, but the objection above considered, if well taken, is sufficient.

I regret that the respondent’s counsel, if the statute in question has been altered, has not given us some reference to its modification, or to some case in support of his suggestion, that the Marine" Court is not bound to render judgment within four days. Under my present views, the judgment cannot be upheld, and must therefore be reversed.

Judgment reversed.

Cite This Page — Counsel Stack

Bluebook (online)

3 E.D. Smith 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kane-v-dulex-nyctcompl-1854.

Opinion

Related

Cite This Page — Counsel Stack