Smith v. Fenton

2 Cow. 425

• Court: New York Supreme Court
• Decided: October 15, 1823
• Status: Published

Opinion

Curia.

The spirit of the 25 dollar act, and the adjudications of this Court upon it, appear to be, that the Justice has a discretion in granting adjournments after the first. One adjournment the defendant may claim as matter of right, on giving security, and making oath of the absence of a material witness. Others, he maybe entitled to on showing sufficient cause; provided the 3 months have not expired. In this case the two first adjournments were by consent ; and though the defendant might have been guilty of a violation of good faith, yet he offered to comply with the requisitions of the act. There had been no laches on his part; for he had subpoenaed his witnesses and they did not attend. We think the Justice ought to have granted the adjournment; though he seems to have acted under the impression that the defendant’s object was delay and vexation. (Easton v. Coe, 2 John. Rep. 383. Townsend v. Lee, 3 id. 431. Powers v. Lockwood, 9 id. 133. Beekman v. Wright, 11 id. 442. Annin v. Chase, 13 id. 462. Cowen’s Treatise, gqg to 509, where all the cases upon this head are quoted.)

Judgment reversed.