Flint v. Gault , 22 N.Y. Sup. Ct. 213 ( 1878 )

Smith, J.:

After issue joined before the justice, the cause was adjourned, at the request of the plaintiff, to October 12, at 12.30 p. m. The justice did not appear on the adjourned day until two or more minutes after 1.30 p. m. ■ He then, in the absence of the defendant, heard the plaintiff’s proof, and rendered judgment in his favor. We think, with the County Court, that, by the nonappearance of the justice at his office within one hour after the time to which the cause was adjourned, the action was discontinued and he lost jurisdiction. (Stoddard v. Holmes, 1 Cow., 245 ; 2 Wait’s L. & P., 217.)

It is urged by the appellant’s counsel that the original return is full and complete, and shows that at the adjourned hour (12.30 p. m.) the justice was at his office. And it is contended that the County Court had no authority to entertain affidavits controverting the original return, and requiring a further return respecting the matters so controverted, and as to which the original return was full. (Barber v. Stettheimer, 13 Hun, 198.) The answer to the position is that the original return did not state specifically at what time the justice appeared at his office on the adjourned' day. At most, it merely stated it inferentially. The attention of the justice had been called to the point by the specifications in the notice of appeal, and the appellant was entitled to a further and specific return.

The judgment of the County Court should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment of County Court affirmed.