
    BEARDSLEY v. POPE.
    (Supreme Court, General Term, Third Department.
    July 6, 1895.)
    Attorney—Authority—Extending Time to Decide Case.
    Under Code Civ. Proc. § 2886, providing that a party may prosecute or defend an action before a justice of the peace by attorney, an attorney, under his authority to appear for defendant, has authority to stipulate, on final submission of the cause, that the justice may decide the case and enter judgment after the time prescribed by section 3015. 32 N. Y. Supp. 926, reversed.
    Appeal from Essex county court.
    Action by George E. Beardsley against Willis G. Pope. From.an order setting aside an execution and docket of the judgment (32 N. Y. Supp. 926), plaintiff appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, ,JJ.
    H. E. Barnard, for appellant.
    A. W. Boynton, for respondent.
   PUTNAM, J.

There is no substantial conflict as to the facts. The action was commenced before a justice of the peace of Clinton county-by the issuance of a summons returnable May 26, 1894. At that time Mr, Boynton appeared for the defendant, as his attorney, and. made the usual oath as to his authority. Issue was joined by a written complaint and answer, and the cause adjourned to. June 2d,-at which time the trial was had; the defendant being sworn as - a witness in his own behalf. An adjournment was then taken to July 2, 1894, when the parties appeared by their attorneys, and summed up and submitted the case. At this time the attorneys of the respective parties, on the minutes of the justice, entered into the following written stipulation:

“Thirty days additional time is hereby given the justice to decide this case in, and to render judgment herein..
“Plattsburgh, N. Y., July 2nd, 1894.
“H. E. Barnard, Attorney for Plaintiff.
“A. W. Boynton, Attorney for Defendant.”

The justice, on the 4th day of August, 1894, rendered judgment in favor of the plaintiff for $25.12, damages and costs. This judgment was afterwards docketed in the Clinton county clerk’s office, and a transcript thereof filed, and the judgment docketed in Essex county, and an execution issued thereon in the latter county. The county judge of Essex county, on motion of defendant, afterwards set aside the docket of the judgment, and the execution issued thereon, upon the ground that the attorney for the defendant had no authority to enter into the stipulation granting the justice additional time in which to render his judgment, and hence that the judgment in fact entered 32 days after the submission of the cause was absolutely void. On the motion before the county judge, both the defendant and his attorney, Mr. Boynton, in their affidavits, state that the latter entered into the stipulation without the knowledge of or authority from the defendant.

Under the provision's of the Code of Civil Procedure, a party may prosecute or defend an action in a justice court by attorney. Section 2886. The authority of the attorney may be shown by his oral testimony on the trial. Section 2890. Moulding Co. v. Squires (Sup.) 15 N. Y. Supp. 321. Hence, in the case under consideration, Mr. Boynton’s authority to appear as attorney for the defendant was properly proven by his own oath. He was, therefore, the attorney of the defendant in the action, with the usual powers of an attorney, and must be deemed to have had power to manage and control the conduct of the suit. See Village of Suspension Bridge v. Bedford, 10 N. Y. St. Rep. 850. As such attorney, he could answer for the defendant, as he did. He could consent to the adjournment to July 2d for the purpose of summing up the case, and, in our opinion, he could also stipulate to give the justice additional time in which to render his decision. The stipulation in question was executed on the final submission of the case to the justice. Until after such submission, the authority of Mr. Boynton to appear for the defendant, and to act for him in the action, continued. He was, it is true, the agent of the defendant; but, as attorney, he was an agent with full power to control the conduct of the suit, and, as such, had power to enter into the stipulation in question on the final submission of the cause. This case is not like that of Flynn v. Hancock, 46 Hun, 368, where an oral stipulation was entered into by the attorneys of the parties out of the office of the justice, not in the presence of each other, and after the final submission of the cause. The stipulation in this case was made by the attorneys on the trial, on the final submission of the cause, on the minutes of the justice, and when Mr. Boynton was acting as attorney for the defendant, and had a right to under his employment as attorney. The affidavits made by Mr. Boynton and the defendant that the stipulation in question was made by the former without the knowledge of or authority from the latter cannot be deemed as intended to contradict the oral testimony of Mr. Boynton, made at the time of the joinder of issue, as to his authority to appear for the defendant as attorney in the action, and must be understood to mean that Mr. Boynton had no special authority from the defendant to give the justice additional time in which to render his decision, and as expressing the opinion of Mr. Boynton and his client that the general power of the former as attorney did not confer on him authority to enter into the stipulation. We think, however, that as attorney in the action before the justice, until after the final submission of the case, Mr. Boynton had ample power to act for his client. He could do whatever his client could have done, if present, in the conduct of the case. He could answer for him, adjourn the trial from time to time, enter into stipulations, and consent to extend or adjourn the time in which the justice should render his decision. Section 2886 of the Civil Code, which provides that a party to an action before a justice of the peace may appear and prosecute or defend by attorney, we think, confers upon a duly-authorized attorney in a justice’s court full power and authority to represent his client during the trial and until after the final submission of the cause. His authority, undoubtedly, terminates at that time; but until then we see no reason to doubt that his client is bound by his acts, admissions, and stipulations made in the conduct of the cause..

Although the statute provides that a justice of the peace must render judgment and enter it in his docket book within four days after the submission of a cause to him (Civ. Code, § 3015), it is held that this provision of the statute may be waived. Barnes v. Badger, 41 Barb. 98; Keating v. Serrell, 5 Daly, 278; In re New York El. Ry. Co., 7 Hun, 239-241. A party may waive a constitutional provision made for his benefit. Embury v. Connor, 3 N. Y. 511; Fiero v. Reynolds, 20 Barb. 275. We think the parties in this case, by their attorneys, duly extended the time in which the justice should render his decision, thus waiving the statutory requirement that the judgment should be entered within four days after the submission of the case, and hence that the judgment rendered is valid.

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with costs. A ll concur.  