37 Misc. 800 | N.Y. App. Term. | 1902
A reversal of the judgment is sought solely because the justice refused to adjourn the trial of the cause when it was reached for trial on the 3d day of January, 1902.
The record discloses that issue was joined on the 6th day of December, 1901, and that the trial of the cause was adjourned to the 27th day of the same month, and again to the date first above-mentioned; the last adjournment having been procured, at the request of the defendant’s attorney, upon the ground, as stated in his affidavit, that “ H. A. Skinner, proprietor of Skinner’s Opera House, at Little Falls, Hew York, and W. E. Gaut, manager of the Darling Theatre, Gloversville, Hew. York, are unable to be here before next week.”
Upon the said 3d day of January 1902, the defendant’s attorney, upon his own affidavit and an undertaking executed pursuant to section 1364 of the Consolidation Act (Laws of 1882, chap. 410), applied for a long .adjournment of the cause.
The enactment in question, so far as applicable, provides: “An adjournment may be had either at the joining of issue, or at any subsequent time to which the cause may stand adjourned on application of either party, for a period longer than eight days, but not to exceed ninety days from the return of the summons, upon executing an undertaking in writing, with one or more sufficient sureties, to the effect that he will pay to the plaintiff or defendant the damages, costs or extra costs, in case judgment shall be rendered against him in the action, upon proof by the oath of the party or otherwise, to the satisfaction of the justice, that such party cannot be ready for trial before the time to which he desires an adjournment, for the want of material evidence, describing it; that the delay has not been made necessary by any act or neglect on his part since the action was commenced, and that he expects to procure the evidence at the time stated by him.”
The affidavit upon which the application was based is as follows:
It is urged in behalf of the plaintiffs, that the court did not have the power to grant the adjournment asked by the defendant, and we think the point is well taken.
Under the statute, at the time when the defendant made his application, an adjournment could not have been granted for more than sixty-two days — twenty-eight days having run at that time from the return of the summons. The application was for a ninety days’ adjournment, which the party’s attorney alleged was necessary for the proper presentation of his defense, and in view of the fact that the justice was without power to grant the adjournment thus deemed necessary, his exercise of discretion in the refusal of the application, as made, should not be disturbed.
In form the application exceeded the permission of the statute and in substance it did not present a case for the favorable exer
In view of the meager statement of the materiality of the evidence which might he given by the absent witnesses and of the efforts made by or on behalf of the defendant to procure their attendance, it was certainly within the discretion of the justice to deny the application because made upon papers which did not satisfy him of the necessity for the adjournment.
The judgment should therefore be affirmed with costs.
Fbeedman, P. J., and Gbeenbatjm, J., concur.
Judgment affirmed with costs.