
    Gabriel Jourdan, Resp’t, v. Warren M. Healey et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. Appeal—District courts—Code Civ. Pro, § 3057.
    Section 3057 of the Cede refers exclusively to appeals from justices’ couits, and not to appeals from district courts.
    2. District courts—Adjournment—Surprise.
    A district judge has ample power under chapter 334, Laws 1857, to adjourn the tiial of an action to enable the defendant to procure witnesses to meet testimony of the plaintiff which could not have been anticipated from the pleadings, if in his discretion he thinks such an adjournment should be granted.
    Appeal from a judgment rendered in the district court of the city of New York for the third judicial district.
    
      Robert Thorne, for app’lts; Emile B. Morel, for resp’t.
   Bookstaver, J.

Although the appellant has appealed from the judgment rendered in the court below, he relies chiefly upon an error in fact in the proceedings at the trial, and upon the argument presented affidavits setting forth what he regarded as such error. For this procedure appellant relies upon § 8057 of 'the Code of Civil Procedure, which provides that “ where an appeal is founded upon an error in fact in the proceedings not affecting the merits of the action and not within the knowledge of the justice, the court may determine the matter upon affidavits, or in its discretion upon the examination of witnesses, or in both methods b.ut after a careful examination we are convinced that this section refers exclusively to appeals from justices’ courts and not to appeals from district courts. This section is a part of article 1, title 8, of the Code, which relates exclusively to appeals from justices’ courts. As far as we have been able to discover, no such provision is made for appeals from the district courts of this city. But if the section under consideration did apply, we think the alleged error shown in the affidavits not covered by the provisions of that section. The errors in fact referred to in that section relate to some incapacity of the party, such as infancy, coverture, or some irregularity in the service of process, or misconduct of the jury, or other error not within the knowledge of the justice at the time of the trial. Biglow v. Sanders, 22 Barb., 147, 149; Adsit v. Wilson, 7 How. Pr., 64, 68, 69; Kasson v. Mills, 8 id., 877; Hurd v. Beeman, id., 254; Wavel v. Wiles, 24 N. Y., 685, 637. But the error complained of was fully within the knowledge of the justice on the trial, and he denied the motion to adjourn on the ground that he had no power to do so.

From the return it appears that the action was brought by the plaintiff against the defendants to recover wages which the former claims to have earned from the latter under a contract made, as he claimed on the trial, with the defendant Healey personally. As all contracts of that character, according to the custom of the house, were made not by Mr. Healey, but by defendant’s foreman, who was present’ at the trial, and as the pleadings did not disclose that it was claimed to have been made with either of the defendants personally, we think they were not guilty of negligence in not having Mr. Healey present as a witness, and it is apparent from the return that the testimony of the plaintiff was a surprise to the defendants, and they immediately moved for an adjournment for a time long enough to procure the attendance of Mr. Healey. This the court below refused on the ground that it had no power to adjourn a case after trial commenced, except by consent. The learned judge who made this decision doubtless had in mind, at the time of rendering it, the cases of Edwards v. Drew, 2 E. D. Smith, 55; Aberhall v. Roach, 11 How. Pr., 95; Wight v. McClave, 3 E. D. Smith, 316; Story v. Bishop, 4 id., 423; Giberton v. Ginochio, 1 Hilt., 218; Redfield v. Florence, 2 E. D. Smith, 339, decided in this court, which abundantly sustain his ruling. But all of these cases were decided before the act of 1857, chap. 344, § 78, which expressly provided that the trial of an action or special proceeding may be continued from day to day, or from one day to any other day or days, until the same is finished.” This provision was retained in the consolidated act of 1882. We think it gives the district judge ample power to adjourn a case, under circumstances like these, for a sufficient time to procure the attendance of witnesses, if in his discretion he thinks such an adjournment should be granted, and from the return it appears that the justice did think so, as he said on denying the motion, If I had such a right, I should certainly give you an opportunity to bring Mr. Healey.”

Although not necessary to a decision in this case, it may be added that even in justices’ courts it has been held that after amendment it was discretionary with the justice to grant an adjournment or not on the ground of surprise. Sherar v. Willis, 5 Lans., 329. So, too, it was long ago held that it was a matter of discretion on the part, of the justice to hold a case open in order to allow one or the other parties to obtain witnesses, and that it was not error to do so for a period of two hours. Pease v. Gleason, 8 Johns., 409. And in Day v. Wilber, Coleman & Caine’s Cases, 381, 385, in was held that it was not error to continue the case from the 2d of June, when the venire was returned, to the 3d of that month, when the cause was tried; and on appeal in that ease it was said, “ there is nothing in the law to prohibit a justice from continuing his court from one day to the next when the exigencies of the case require it” Although it is true that in Green v. Angel, 13 Johns., 469, it was decided that, under the circumstances in that case, holding it open for twenty hours to procure the attendance of a witness was unreasonable. It, therefore, seems that the matter of continuing the case is in the sound discretion of the justice. See, also, Cowen’s Treatise, §§ 1219, 1220.

But, in addition to this, it may be said that the decisions of this court, above cited, were rendered when it had no power to grant a new trial as it now has, and, on a review of this case, we are of the opinion that justice-requires a new trial should be had, even had no error of law been shown, under Curley v. Tomlinson, 5 Daly, 283.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Bischoff, J. concurs.  