Kilmore v. Sudam

7 Johns. 529

• Court: New York Supreme Court
• Decided: February 15, 1811
• Status: Published

Opinion

Per Curiam.

The right of the justice to adjourn a cause' on his own motion, must be claimed and exercised, if at all, at the return of the process ; and if the first adjournment is by consent of parties, no subsequent adjournment can be made pn the motion of the justice. This is obviously the fair interpretation of the statute ; and so it seems to have been understood by the court in the case of Carnage v. Law. (2 Johns. Rep. 192.) But it is no more than a reasonable intendment in favour of the proceedings, that the second adjournment was by the consent of the defendant’s attorney. The justice states expressly, that it was with the consent of the plaintiff, and the defendant’s attorney being present and making no objection, his consent is to be -inferred from his silence. Had the justice claimed the right to adjourn on his own motion, he prpbably would have said nothing on the subject of consent. In M'Neil v. Scofield, (3 Johns. Rep. 437.) the court said, where the party makes no objection to the pleadings at the time, but consents to go to trial, he shall not avail himself of any defects in the form of pleading.

Judgment affirmed.