Newman v. Woodcock

74 N.Y. St. Rep. 547

Opinion

DUNMORE, J.

The second adjournment ivas unauthorized. The justice had no right to grant plaintiff’s application for a second adjournment. By the provisions of the Code the plaintiff is entitled to an adjournment only upon the return day of the summons. Section 2960. When a commission is granted, a further adjournment may he had to procure the execution and return of the commission. Code, § 2983. Here- the adjournment was granted on plaintiff’s motion and against the defendants’ objection for more than eight days, and ivas after one adjournment had been had. The adjournment was, therefore, irregular, and, as between the parties, the case was out of court. The respondent claims that the irregularity was waived because a condition, to wit, the payment of the defendants’ witness fees, was imppsed; and cites Weeks v. Lyon, 18 Barb. 530; Hart v. Small, 4 Paige, 288; Clarke v. Meigs, 10 Bosw. 337; and Peck v. McAlpine, 3 Caines, 166b. Those authorities do not support the respondent’s contention. The fact that the court imposed a condition would not bind, the defendants without their consent. As the judgment must be reversed because of this irregularity, it is unnecessary to examine the other questions in the case.

Judgment reversed, with costs.