Clark v. Garrison

3 Barb. 372 | N.Y. Sup. Ct. | 1848

By the Court,

Hand, J.

We think this judgment must be reversed because the justice did not wait one hour, for the defendant to appear. The statute gives this time to both parties on the return of the summons. (2 R. S. 233, § 46.) And in our opinion this is a reasonable time in all cases of adjournments, or where the cause is necessarily held open to a future day. The plaintiff has an hour to appear after an adjournment. (2 R. S. 246, § 119.) And by analogy he would be entitled to that time where the cause is held open to a particular hour on a subsequent day; and we cannot see why the defendant should not have the same indulgence. Indeed the point may be considered settled by authority. In Shufelt v. Cramer, (20 John. R. 309,) where the justice had nonsuited the plaintiff after waiting an hour, the court say: “The justice was bound to wait a reasonable time for the appearance of the parties. No case has yet decided what is a reasonable time. We think, however, that waiting a full hour after the time appointed, is giving a sufficient and reasonable time for the appearance of either party. This is in conformity with the practice on a summons to show cause before a judge. We are of opinion that as a general rule the justice must wait an hour for the appearance of the parties, and that he need wait no longer, unless some excuse, which he shall deem reasonable, be shown for giving further indulgence." And the principle of this decision was approved by Nelson, J. in Barber v. Parker, (11 Wend. 52.) These were oases upon the plaintiff’s appearance. But the language of the court lays down the rule as a general one. (And see Picket v. Dexter, 12 Id. 150; Cowen's Tr. 526.) In the matter of Pulver, (6 Wend. 632,) the court approved the rule, but thought they could not interfere in case of an insolvent debtor. We are satisfied it is better that the practice should be uniform. The judgment must be reversed.