
    Samuel Aberhall v. Philip Roach.
    Where, after commencing the trial, the justice, upon the application of the plaintiff, opposed by the defendant, adjourned the cause for thirteen days, in consequence of the absence of a witness; held, that the adjournment was illegal ' and rendered further proceedings void. 
    
    
      In an action for injuries to a horse and wagon by negligently driving against them, no special damage being alleged in the complaint; held, that a question put to a witness, “ Whether the plaintiff hired another horse,” unconnected with evidence that his own horse was rendered in any degree useless by the inj uries, was inadmissible.
    Appeal by the defendant from a judgment rendered against him in the Fifth District Court. The facts are stated in the opinion.
    
      Isaiah T. Williams, for the defendant.
    
      Chauncey Shaffer, for the plaintiff.
    
      
       See Hogan v. Baker, 2 E. D. Smith, 22; Matthews v. Fiestel, id. 90; Redfield v. Florence, id. 339; Pollock v. Ehle, id. 541. By § 87 of the “ Act to reduce several laws relating particularly to the city of New York into one act,” passed April 9, 1813 (2 Rev. Laws, 370), the justice was required to “ proceed to hear and examine the allegations and proofs of the parties,” “ not exceeding six days” after the return of the summons or warrant. The recent “ Act to reduce the several acts relating to the district courts in the city of New York into one act, passed April 13, 1857 (Sess. Laws of 1857, vol. i., chap. 344, p. 711), contains provisions respecting adjournments in these courts, which, however, do not alter the application of the decision in Aberhall v. Roach, supra. All the provisions referred to are in §§ 25, 26, 27, 28,40, and 48. The ordinary period to which these courts are now limited in granting adjournments, where either party objects, is eight days. A longer period may be allowed, not exceeding ninety days, for good cause shown, upon securing the payment of the damages and costs. When the defendant is under arrest, the power to adjourn is placed under additional restrictions. And in all cases, the justice may impose reasonable conditions to the granting of an adjournment. Where the moving party has required a jury, he must pay for each juror twenty-five cents ; in addition to other conditions. By § 48, the 64th section of the Code is applied to these courts, the 11th subdivision of which makes provision for adjournments, in proper cases, when amendments to the pleadings are directed. In any case, the justice is empowered to adjourn a trial for a period longer than those prescribed, when the parties consent or neither of them objects. (§ 25, act of 1857.)—Rep.
    
   By the Court. Ingraham, First J.

This action was for damages occasioned by negligently driving against the plaintiff’s wagon, whereby the plaintiff’s wagon and the horse of the plaintiff were injured. A question was put to a witness whether the plaintiff hired another horse % which was admitted under exception. No special damages were claimed in the complaint. ■

This question should not have been allowed. It was immaterial. It neither tended to show the defendant’s negligence nor the injury to the plaintiff’s property. It is suggested that it is no ground of objection, because it is proven that the plaintiff’s horse was useless for a week, and therefore the answer could have no bearing on the mind of the justice in rendering judgment. This is not very clear. He may have increased the damages for this reason, and if so, it had an improper influence.

The justice, after commencing the trial on the 14th April, adjourned by consent to the 20th, and again to the 28th April. On that day, the plaintiff applied for a further adjournment, on account of the absence of a witness, duly subpcened, which was opposed by the defendant, and the justice adjourned the cause to the 11th May. This adjournment was without authority, and rendered the further pi'oceedings void.

We have heretofore held that an adjoum’nment by the justice for ten days, without the defendant’s consent, was unauthorized. (Redfield v. Florence, Jan. G. T. 1854, 2 E. D. Smith, 339.) If such a power cannot be exercised before trial, there can be no possible reason for sustaining it after the trial has commenced. It is against the whole theory of the laws organizing these courts, which contemplates a speedy trial of causes pending therein. If a witness, duly subpcened, does not appear, an attachment should be issued, and the trial not be commenced until the attachment is returned. After it has been commenced, there is no propriety in such an adjournment. I doubt whether an instance can be found, even in a court of record, where the court has adjoui’ned a cause half tried, to procure the attendance of a witness, without the consent of both of- the parties. In a justice’s court no such power exists.

Judgment reversed.  