1 Hilt. 257 | New York Court of Common Pleas | 1856
—On the return day of the summons, the justice was absent, and the clerk adjourned the action. This he had power to do (laws of 1840, p. 123). He had no power to enter the pleadings, and the issue could not then be joined without
The clerk acted properly in deferring the demand for the jury until after issue joined. Such is the provision of the statute on that subject (Laws of the State rel. to city of New-York, 46, § 95). I think, however, that the justice erred in deciding on the adjourned day that it was too late to demand the jury. This refusal was doubtless based upon section 111 of the act of January 4,1820, which provides that it shall not be lawful for either of the parties, after the day in which an order has been made for an adjournment, to demand of the court that such action be tried by a jury. At that time, and until the act of 1840 (supra), the clerk had no power to adjourn any action; and if the justice was absent, the action abated. And it was not necessary, therefore, by any proviso in the act of 1820, to protect the defendant from the effect of an order for an adjournment prior to issue joined; if, indeed, any such proviso could be deemed necessary, had that act itself conferred the power to adjourn on the clerk, given by the act of 1840. I think no proviso even then would have been necessary, and that the act of 1820 in no way conflicts or intervenes with the right of the defendant to a jury, where the adjournment is made before issue is joined, in consequence of the absence of the justice. The act of 1820 contemplates an order for an adjournment by the court, and not by the clerk, and for these reasons the judgment must be reversed. To hold otherwise would deprive litigants in the District Courts of the right of trial by jury in all cases where the justice is absent on the return day of the summons. Such a result is neither within the letter nor the spirit of the acts referred to.
I do not consider it an answer to this objection, that the defendant took no exception to the decision of the justice, and proceeded with the trial. The object of the court in compelling a party to make his objection in time, is to enable his adversary to supply the defect or correct the error which forms the subject
Judgment reversed.