
    Lynsky v. Pendegrast.
    This court, on appeal, is bound by the justice’s return of the facts in the case.
    If important matter is omitted in the return, the party aggrieved should cause it to be amended, and affidavits may be used as the foundation of an order directing a more full or specific return.
    To entitle the defendant, in a justice’s court, to demand an adjournment when a day has been appointed for the trial, he must make oath that he cannot safely proceed by reason of the absence of material testimony.
    Where a justice, upon the plaintiff opposing an adjournment of the cause, denied the defendant’s application to adjourn, and afterwards, without proceeding to trial, departed from his office, stating that it was uncertain at what time he should return, and at about three o’clock in the afternoon he resumed the holding of his court, and suffered the plaintiff to proceed with the trial in the defendant’s absence; it was held, that the effect of the justice absenting himself was, under the circumstances, a discontinuance of the suit, and that he thereby lost jurisdiction thereof, unless the parties voluntarily awaited his return, or in some manner assented to the delay.
    Appeal from one of the district courts, where the plaintiff had judgment. The facts appear sufficiently in the opinion.
   By the Court. Woodruff, J.

Upon tire statements contained in the affidavits filed in this cause, it would seem to us impossible to hesitate in reversing this judgment. But we are bound by the justice’s return, and by that we must dispose of the appeal. If important matter is omitted in the return, the affidavits may be used as the foundation of an order directing a more full or specific return in regard to the grounds upon which a reversal is sought, and the appellant should, in such case, cause the return to be amended.

According to the return, there was no actual adjournment to a definite time, and it was not erroneous for the justice to refuse the defendant’s application for an adjournment, unless all the requisites of the statute were complied with.

To entitle the defendant to demand an adjournment, he must make oath that he cannot safely proceed to trial for want of some material testimony or witness. This oath the defendant refused to make, and he cannot now complain of the refusal to adjourn.

But we think the departure of the justice from the place of trial, after his refusal to adjourn the cause, to be absent for an uncertain period, informing the parties that it was uncertain whether he could proceed with the trial that day, and that he could not tell when he should return, was a discontinuance of the suit, and that he lost all jurisdiction to proceed further therein, unless the parties voluntarily submitted themselves to his jurisdiction, by some assent to such delay, or awaited his return. Justice to both parties required that the justice should order an adjournment either to a later day, or to some hour certain of the same day. If the plaintiff would not consent thereto, it is not unjust to him to require him to begin a new suit, when, in our judgment, it was plainly unjust to require the defendant to' wait with his witnesses during an interruption of the trial by the departure of the justice from.court, which might continue until the next day, or, according to the justice’s return, even later.

It does not distinctly appear how long the justice was absent. It does' appear that he did not proceed with the trial until about three o’clock, “ as nearly as he can recollect.” The hour at which the summons was returnable and the cause first called for trial, does not appear, but we can take notice, without proof, that the justice’s court room is nearly three miles from the City Hall, and he says he went to the City Hall in obedience to a subpoena. His absence from his court room was therefore not brief, and we think the defendant was not bound to wait in total uncertainty when the case would be resumed.

The rule recognised in Hunt v. Wickwin, 10 Wend. 102, is consistent with this view of the subject, and we are unwilling to sustain a judgment rendered under such circumstances.

The judgment must be reversed, with costs.  