Smith v. Denton , 103 N.Y.S. 882 ( 1907 )

Rich, J.:

The only authority of a justice of the peace to adjourn a cause, after joinder of issue, upon the application of the defendant, is contained in sections 2944 and 2965 of the Code of Civil Procedure. The plaintiff’s complaint had been in no manner amended, which excludes thé provisions of section 2944. The power given by section 2965 cannot be exercised except for a single reason, viz., that the defendant “ cannot safely proceed to tidal for want of some material testimony or witness ” which he has used due diligence to obtain, proof of which'facts must be made by the defendant’s own oath, or otherwise, to the satisfaction of the justice. The adjournment was asked and granted for an entirely different reason, viz., that no bill of particulars had been served or tiled. The' justice had no right to adjourn the case for this reason, and by his Unauthorized act lie lost jurisdiction of the action, and the judgment subsequently entered was void.

The judgment and order must, therefore, be affirmed, with costs)

Woodward, Jenks and Gaynor, JJ., concurred.

Judgment and order of the County Court of Nassau county . affirmed, with costs.