Wood v. Spofford

Appellate Terms of the Supreme Court of New York

Wood v. Spofford

29 Misc. 357, 60 N.Y.S. 492

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1899

StatusPublished

Cited by4 cases

This text of 29 Misc. 357 (Wood v. Spofford) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wood v. Spofford, 29 Misc. 357, 60 N.Y.S. 492 (N.Y. Ct. App. 1899).

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Opinion

Leventritt, J.

A reversal of the judgment under review is sought on the ground that the justice lost jurisdiction of the cause by granting an adjournment of the trial for a period greater than eight days. The appellant bases his contention on section 1362 of the Consolidation Act (Laws of 1882, chap. 410), which provides that the trial of an action may be adjourned by the court on the application of either ‘party for a period not exceeding eight days, but that “by consent or where neither party objects” a longer adjournment may be granted.

The return discloses the fact that an adjournment for more than eight days was had, but it does not appear whether the parties consented thereto, or whether either of them objected. Jurisdiction having concededly attached, it will be presumed to continue until it affirmatively appears that it has been divested and this rule obtains even in courts of limited jurisdiction. 12 Am. & Eng. Ency. of Law, 274, 275, and cases cited. No papers are contained in the record — which is conclusive on us — showing that the appellant objected. The mere statement of counsel that he had objected is not a substitute for the fact. The proceedings will be deemed regular until the contrary appears. Judgment affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent. ■

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Leventritt, J.

A reversal of the judgment under review is sought on the ground that the justice lost jurisdiction of the cause by granting an adjournment of the trial for a period greater than eight days. The appellant bases his contention on section 1362 of the Consolidation Act (Laws of 1882, chap. 410), which provides that the trial of an action may be adjourned by the court on the application of either ‘party for a period not exceeding eight days, but that “by consent or where neither party objects” a longer adjournment may be granted.

The return discloses the fact that an adjournment for more than eight days was had, but it does not appear whether the parties consented thereto, or whether either of them objected. Jurisdiction having concededly attached, it will be presumed to continue until it affirmatively appears that it has been divested and this rule obtains even in courts of limited jurisdiction. 12 Am. & Eng. Ency. of Law, 274, 275, and cases cited. No papers are contained in the record — which is conclusive on us — showing that the appellant objected. The mere statement of counsel that he had objected is not a substitute for the fact. The proceedings will be deemed regular until the contrary appears. Judgment affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent. ■

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Bluebook (online)

29 Misc. 357, 60 N.Y.S. 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-spofford-nyappterm-1899.

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