
    George Morris and Edward Lewis, Respondents, v. Susselia Hays, Appellant.
    
      Municipal Court of Rochester — can grant to the plaintiff hut a single adjowrnment, not to exceed, eight days — waiver.
    
    The provisions oí section 3960 of the Code of Civil Procedure, permitting, in Justices’ Courts, but a single adjournment o£ not more than eight days, upon' the application of the plaintiff, at the time of joining issue, is made applicable, by section 3336 of the same Code, to the Municipal Court of the city of Bochester; and where a justice of that court grants a second adjournment, at the instance of the plaintiff and against the objection of the defendant, jurisdiction is lost, ¡notwithstanding- the fact that the defendant’s attorney, after his objection has been overruled, agrees upon a subsequent day to suit his convenience; such act on his part will not constitute a waiver of the objection, nor prevent its presentation upon an appeal. .
    
      Appeal by the defendant, Susselia Hays, from a judgment of the ■County Court of Monroe county in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 19th day ■of October, 1896, upon the decision of the court affirming a judgment of the Municipal Court of the city of Rochester.
    
      James Break Perkins, for the appellant.
    
      'Horace McGuire, for the respondents.
   Adams, J.:

The plaintiffs, who are copartners, and carrying on business as such in the city of Philadelphia, bring this action tó recover of the defendant upon her written guaranty of credit of the firm of Schreier Brothers, of the city of Rochester, to whom credit was given by the plaintiffs in reliance upon such guaranty.

The action was brought in the Municipal Court of the city of Rochester, where the plaintiffs obtained judgment against' the ■defendant for the sum of $841, damages, together with their costs ■of the action.

An appeal was subsequently taken to the County Court of Monroe county, where the judgment appealed from was affirmed, and from the judgment of affirmance this appeal is brought.

It appears that issue was joined in the Municipal Court by the service of the defendant’s answer upon the 10th day of June, 1896, at which time both parties were represented by their respective .attorneys, and the case was adjourned until the seventeenth day of •June, following. Upon the adjourned day the parties again .appeared by their attorneys, and an adjournment of two weeks was .asked for by the plaintiffs. Such application was granted over the ■objection of the defendant’s attorney, upon the ground of' the ■absence of material witnesses, and, as appears by the return of the judge of the court, which is contained .in the record, “ Friday, June 26th, 1896, being the first day which best suited the convenience of all parties, was.finally fixed as the adjourned day.”

Upon the adjourned day the parties again appeared, when the defendant’s attorney promptly objected to the jurisdiction of the ■court, upon the ground that the case having been adjourned for more than eight days, and over the objection of the defendant’s attorney, and without right, the court had lost jurisdiction of the action. This objection was overruled, to which decision an exception was duly taken. - - •

Section 3226 of the Code of Civil Procedure provides that chapter 19, which regulates and defines the powers and jurisdiction of, and the proceedings in, courts of justices of the peace, shall,- with the exception of titles 10 and 11-thereof, apply to the Municipal Court of the city of Rochester. And section 2960 of article 1, title 4 of such chapter reads as follows : At the time of the return of a summons, or of the joinder of issue without process, the justice must, upon the application of the plaintiff, adjourn the trial of the action not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or -witness, specified by him, safely proceed to trial.”

This section contains the only provision which permits an adjournment at the instance of the plaintiff, save where one is rendered necessary by an amendment of the defendant’s pleading (§ 2944), or where a .commission is issued for the examination of a witness (§ 2983).

It is conceded that at the time, issue was joined an adjournment was had to the seventeenth day of June, and it may be assumed that such adjourned day was, as is ordinarily the case, agreed upon by the parties. However this may be, the adjournment thus taken exhausted the’plaintiff’s light to a postponement'of the trial, and the judge of the court had no power’ to grant a further adjournment at his instance, without the consent of the defendant’s attorney.. (Aberhall v. Roach, 11 How. Pr. 95; Redford v. Snow, 46 Hun, 370; Crisp v. Rice, 83 id. 465.)

But it is insisted that, inasmuch as the twenty-sixth day'of June was fixed upon in order to meet the convenience of both parties, at which time the defendant appeared and proceeded with the trial,, she thereby -waived her objection to the second adjournment.. Hpon the facts appearing in the record before us, we are unable to-concur in this view of the case.

It appears that the defendant’s attorney not only strenuously insisted that the plaintiffs were not entitled to a further adjournment, but that he .vigorously- objected to' such an adjournment being granted, and the only legitimate inference which we think ought to be drawn from the statement contained in the return is, that when the court ruled against him upon this objection he simply fixed upon such a day as would best suit his convenience. Having done all that he could to prevent an unauthorized adjournment, lie. was not bound to abandon the case in order to protect his client’s, interests. (See Baird v.Helfer, 42 N. Y. Supp. 484.) This view of the situation is strengthened by the fact that before entering-upon the trial upon the adjourned day, the defendant’s attorney again insisted that the case had been adjourned without authority, and that in granting such adjournment the court had lost jurisdiction of the case.

We are clearly of the opinion that in granting this second adjournment the Municipal Court was deprived of further jurisdiction in' the case, and that there is nothing in the record which fairly amounts to any waiver upon the part of the defendant of her right to raise this question. This being so, the judgment subsequently entered was unauthorized and void. (Stoutenburg v. Humphrey, 9 App. Div. 27.) And having reached this conclusion, it becomes, unnecessary to consider the other questions in the case.

The judgments appealed from are, therefore, reversed, with costs¿

All concurred.

Judgment of the County Court and of' the Municipal Court of the city of Rochester reversed, with costs.  