Story v. Bishop

4 E.D. Smith 423

• Court: New York Court of Common Pleas
• Decided: October 15, 1855
• Status: Published

Opinion

By the Court.

Woodruff, J.

Proof of the execution of

the assignment to the plaintiff, followed by the production of the assignment by the plaintiff, in his own possession, was prima facie evidence of due delivery to him. It is rarely necessary to prove the very act of manual tradition. Possession by the transferee, after due execution by the transferer, -w, ¡prima fade sufficient.

The other ground of appeal, to wit, that the justice ought to have adjourned the trial on account of the illness of counsel, seems to be urged upon us under the idea that we have a discretionary power to order a new trial, if we think that the ends of justice will be thereby promoted. We have no such discretion. Where both parties appear, and a trial is had, we have no power to inverse, except for error.

The justice, as we have often before held, has no power to adjourn the cause after the trial has commenced, without the consent of parties, unless it is found impossible to finish the trial within the reasonable time for holding court. In this cause great indulgence was given to the defendant; four adjournments was granted at his request, and without objection by the plaintiff, after the plaintiff had rested. It would have been unreasonable, and, I think, erroneous, had the justice granted a further adjournment against the plaintiff’s wishes.

The case was abundantly proved on the part of the plaintiff, and the judgment must be affirmed.

Judgment affirmed.