Muber v. Held

3 Abb. Pr. 110

• Court: New York Court of Common Pleas
• Decided: May 15, 1856
• Status: Published

Opinion

Ingraham, F. J.

The defendant appeared in the cause and answered. He cannot therefore submit affidavits to excuse his subsequent default. We haye held that statute only to apply to cases where the defendant never appears in the cause.

By the return, it appears that the case was adjourned to February 16, and if the defendant filed a security as provided by statute, he should then have a further adjournment. He did file a security for his appearance on February 21, but neglected to appear on February 16, at the adjourned time, and judgment was rendered against him.

Clearly, if the defendant wanted a further adjournment, it was his duty to have appeared on the day and asked for it. It was not the duty of the justice or the plaintiff to search the files of the clerk’s office to see if the defendant had done what was necessary to procure an adjournment. It was the defendant’s duty to appear and satisfy the court that he had done what the law required of him, and his neglect to do so deprived him of any right he might otherwise have had to an adjournment.

I do not express any opinion upon the right to require security, or the validity of the paper filed for such purpose; but rest the decision entirely on the defendant’s negligence in not attending the court on the adjourned day.

Judgment affirmed.