
    S. Alonzo Smith, Respondent, v. John W. Denton, Appellant.
    Second Department,
    April 19, 1907.
    Court — power of adjournment by justice, of peace—jurisdiction lost by unauthorized adjournment.
    The only authority for a justice of the peace to adjourn a cause upon the application of the defendant after issue joined is contained in sections 2944 and 2965 of the Code of Civil Procedure. Thus, he is without power to grant an adjournment upon the ground that no bill of particulars had been served <pr filed by the plaintiff.. By allowing such adjournment he loses jurisdiction. •
    
    Appeal by the defendant, John W. Denton, from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 10th day of July, 1906, upon an order of said County Court entered in said clerk’s office on the 10'th day of July, 1906, reversing a judgment of a justice of the peace in favor of the defendant, and also from the said order upon which the judgment appealed from was entered. ■
    . It appears from the return that on the return day of the summons both parties appeared by counsel; the plaintiff filed a written! coniplaint alleging the sale and delivery of goods, wares' and merchandise during the preceding ten years.. The defendant “ makes a general denial and pleads payment and asks for a bill of particulars ” . and the case was adjourned to March first following.. On February nineteenth a written answer- was filed,' containing the defenses pleaded orally, and further pleading the Statute of Limitations. On the adjourned day the parties again appeared by counsel. The ■ return of the justice shows the following entry made in his minutes on that day: “ March- 1 /06, .Court convened 9 a. m., cause called, plaintiff appeared by L. B. Haskins, attorney. Defendant appeared in person and by Parsons & Griffiths, attorneys. Attorney for defendant appeared add put in an oral answer and asked leave to put in a written answer in place of oral answer, and asked for a bill of particulars and Court granted permission to file written answer and the attorney for plaintiff stated that a new written complaint would be filed before trial; written answer of defendant was filed February 19/06.” The return then states that no-bill of particulars having been filed with the court, the defendant asks for an adjournment and that plaintiff ■ be.directed to file-a.bill of particulars. The attorney for che plaintiff objected to an adjournment; the justice directed a bill of particulars to be filed within four days, overruled the plaintiff’s objection and adjourned the case to March eighth, to which ruling the plaintiff excepted. On March eighth the- plaintiff appeared specially, by his attorney, and upon the calling of the case the defendant’s attorneys moved to dismiss the complaint upon the ground iha-t no bill of particulars had been served or filed as ordered by the justice, . and “ there being no proof offered in evidence, the motion co dismiss is granted, with costs to the defendant.” Judgment was accordingly entered, which was reversed on appeal to the County Court.
    
      Frederick H. Kellogg, for the appellant.
    
      lincoln JÍ. KasMn, for the respondent.
   Rich, J.:

The only authority of a justice of the peace to adjourn a cause, after joinder of issue, upon the application of the defendant, is contained in sections 2944 and 2965 of the Code of Civil Procedure. The plaintiff’s complaint had been in no manner amended, which excludes thé provisions of section 2944. The power given by section 2965 cannot be exercised except for a single reason, viz., that the defendant “ cannot safely proceed to tidal for want of some material testimony or witness ” which he has used due diligence to obtain, proof of which'facts must be made by the defendant’s own oath, or otherwise, to the satisfaction of the justice. The adjournment was asked and granted for an entirely different reason, viz., that no bill of particulars had been served or tiled. The' justice had no right to adjourn the case for this reason, and by his Unauthorized act lie lost jurisdiction of the action, and the judgment subsequently entered was void.

The judgment and order must, therefore, be affirmed, with costs)

Woodward, Jenks and Gaynor, JJ., concurred.

Judgment and order of the County Court of Nassau county . affirmed, with costs.  