The plaintiff is an assignee of a claim for goods sold by J. H. & N. H. Martin to the defendant." He procured a summons from a justice of the peace returnable on the 5th of January, 1891. At the return-day the plaintiff did not appear, but sent word that he desired an adjournment until some later period. The defendant appeared by counsel, and asked to dismiss the proceedings, because the plaintiff had failed to appear. This application was denied, and the case was adjourned, “on motion of thecourt,” until the 12th of January, 1891, at which day the plaintiff proved his case, and took judgment. The defendant failed to appear. The complaint was not put in until the adjourned day. The.practice is settled upon the point presented. The statute requires that the plaintiff shall appear within the hour after the return-hour. The issue is then to be joined. Code, § 2934. The adjournment may be had after issue joined, either upon the application of the plaintiff or of the defendant, or upon the motion of the justice himself. When the justice adjourns the case without an issue, he loses jurisdiction of the action, even if the plaintiff appear and ask an adjournment to obtain counsel. Duel v. Sykes, 13 N. Y. Supp. 166. If there be no appearance, judgment must be given for defendant. Code, § 3013. Wilcox v. Clement, 4 Denio, 160. In this case there was no appearance, and no issue, and no refusal of defendant to plead, because there was "no complaint put in. The justice, therefore, lost jurisdiction of the case, and the judgment of the county court should be affirmed, with costs. All concur.
Todd v. Doremus.
(Supreme Court, General Term, Second Department.
July 2, 1891.)
Justices of the Peace—Return of Summons—Ron-Appearance of Plaintiff.
Plaintiff procured a summons returnable on a certain day. On that day plaintiff did not appear, but sent word desiring an adjournment to another day", which was granted, and defendant’s motion to dismiss denied. Held, that the justice lost jurisdiction of the case by reason of plaintiff’s failure to appear within one hour after the time specified in the summons for the return thereof, as required by Code Civil Proc. R. Y. § 3934, and that his adjournment of the cáse to another day was void.
Appeal from Hew York county court.
Action by James W. Todd against Morton R. Doremus. From a judgment of the county court, reversing a judgment rendered by a justice of the peace, plaintiff appeals. Code Civil Proc. FT. Y. § 2934, provides as follows: “At the place and within one hour after the time specified in the summons for the return thereof, * * * the pleadings'of the parties must be made, and issue must be joined. Whore both of the parties appear upon the return of the summons, an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead.”
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
C. H. & J.A. Young, for appellant. Frank M. Buck, for respondent.
Case Details
15 N.Y.S. 470
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