
    John Molinski, Appellant, v. L. Harry Burnett, Respondent.
    Second Department,
    September 10, 1912.
    Practice — Justice’s Court—adjournment—appeal — affidavit not considered—harmless error.
    An adjournment after issue joined in a Justice’s Court on the application of the defendant under section 2961 of the Code of Civil Procedure is not limited to eight days,, nor need the defendant, as a condition precedent, make the affidavit provided for in subdivision 1, nor give the Undertaking required by subdivision 2 of said section unless the plaintiff so requires.
    Hence, where the plaintiff does not require such affidavit or undertaking the justice should grant an adjournment for such time as he deems reasonable.
    
      On an appeal from a judgment of the Justice’s Court the County Court cannot act upon any statements contained in an affidavit detailing occurrences at the trial.
    But where the only material fact disclosed by such affidavit not appearing in the return is that the defendant’s application for adjournment was accompanied by a statement to the justice that it was desired for the purpose of procuring the testimony of a material witness and documentary proof, the error of the County Court in considering the document is immaterial, for such statement by the defendant was not necessary hi order to entitle him to an adjournment unless the plaintiff required an affidavit disclosing that fact.
    Burr, and Woodward, JJ., dissented.
    Appeal by the plaintiff, John Holinski, from a judgment of the County Court of Suffolk county, entered in the office of the clerk of said county on the 3d day of April, 1911.
    On December 16, 1910, a justice of the peace of the town of Southampton issued a summons in the above-entitled action, returnable on December twenty-seventh following. On December twenty-third the parties appeared before the justice and “ asked for a hearing, as they were ready for trial, not to wait for the return day.” After the plaintiff had stated his complaint and the defendant his answer, the latter asked for ■ an adjournment to a day more than eight days distant. The plaintiff not consenting, the justice refused to grant an adjournment, his minute entry being, “At this stage defendant asked for an adjournment, naming a date more than eight days. Plaintiff refused to consent. Nothing was said by either party about bonds. Under sections of the Code, 2959-2961, the adjournment was not granted.” The trial thereupon proceeded, resulting in a judgment for the plaintiff which, upon appeal, was reversed by the County Court, and it is from the judgment of reversal accordingly entered that this appeal is taken.
    
      Harri M. Howell, for the appellant.
    
      Jetur W. Hand, for the respondent.
   Rich, J.:

It is apparent, I think, that the ■ justice denied the application for an adjournment because it was asked for a longer period than eight days. At the time of the joinder Of issue the defendant applied for an adjournment, which he was absolutely entitled to under the provisions of section 2961 of the Code of Civil Procedure. An adjournment under the latter section is not limited to eight days, nor is the defendant required, as a condition precedent to such adjournment, to make the affidavit provided for in subdivision 1, nor give the undertaking required by subdivision 2 of the section, unless the plaintiff so requires. The return does not show that the plaintiff required either an ■ affidavit or undertaking, and the justice erred in not granting an adjournment for such period of time as he deemed reasonable. The order for reversal in the County Court states that it was granted upon the return and upon the affidavit of L. Harry Burnett, read upon such hearing.” (The affidavit referred to purports to have been sworn to on December 10,1910, seven days before the summons was issued, yet it details the occurrences at the trial on December twenty-third.) It is contended by the appellant that, it thus appearing from the order that this affidavit was considered and acted upon in reaching a conclusion by the County Court, its judgment must be reversed. It is true that the court had no right to act upon any statement contained in the affidavit in reaching a conclusion upon the appeal (Code Civ. Proc. § 3063), and unless we are. justified in the conclusion that its consideration in no manner affected the appellant or prejudiced his case the judgment must be reversed. The only material fact disclosed by the affidavit and not appearing in the return is that the application for an adjournment was accompanied with a statement to the justice that it was desired for the purpose of procuring the testimony of a material witness and some additional documentary proof. It was not necessary to make such a statement to entitle the defendant to the adjournment, ■ unless the plaintiff required an affidavit disclosing that fact. The plaintiff’s case on appeal, therefore, could not have been injuriously affected by the act of the learned county judge taking the affidavit into consideration, and the judgment must be affirmed, with costs.

Jenks, P. J., and Thomas, J., concurred; Burr and Woodward, JJ., dissented.

Judgment of the County Court of Suffolk county affirmed, with costs.  