
    McCarthy v. Crowley.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. Appeal—From Inferior Courts.
    A defendant on the return-day of a summons asked the justice issuing it to wait until she could obtain a lawyer or adjourn the hearing; but, though she could not find an attorney after diligent search, the justice allowed the plaintiff to take judgment by default. Held, that defendant “failed to appear, ” within the meaning of Code Civil Froc. B. T. § 3064, providing that, if the appeal is taken by a defendant who failed to appear before the justice either upon the return of the summons or at the time to which the trial of the action is adjourned, the appellate court may, in its discretion, set aside the judgment.
    2. Same.
    Where the defendant, by mistake, asked for a new trial in his notice of appeal to the county court, when he was not entitled to it, the county court could allow- an amendment to the notice, under Code Civil Proc. R. Y. § 3049, providing that the court may, in its discretion, permit an omission to be supplied or an amendment to be made to a notice of appeal.
    3. Same.
    The refusal of the county court to exercise its discretion in the matter was reversible error.
    Appeal from Westchester county court.
    Action by Henry McCarthy against Mary Crowley. The action was brought in justice’s court, and on the return-day of the summons the defendant was present, and asked for an adjournment while her son went out to find an attorney, but before he returned judgment was given for plaintiff. In her notice of appeal to the county court the defendant by mistake asked for a new trial, when she was not entitled to it, and asked for leave to amend the notice. From a judgment dismissing the appeal the defendant appeals-.
    Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    
      J. S. Millard, for appellant. William H. H. Ely, for respondent.
   Pratt, J

If there is no remedy against such practice as appears in this case, it is high time for an amendment to the law regulating procedure in justice’s courts. The request the defendant made to the justice to wait until she could obtain a lawyer, or adjourn the hearing, was reasonable, and should have been granted. There was, in contemplation of law, no appearance by the defendant on the return-day. Merely sitting by, waiting for her son’s return, was not an appearance. But, however this may be, there was as much of an adjournment for the hour to expire as there was of an appearance, and defendant certainly did not appear when default was taken and judgment rendered. - Hence she came within section 3064 of Code of Procedure, which is as follows: “Sec. 3064. If the appeal is taken by a defendant who failed to appear before the justice either upon the return of the summons or at the time to which the trial of the action is adjourned, * * * the appellate court, in its discretion, may set aside the judgment,” etc. I think it clear, within the authorities, that the defendant did not appear on the return of the summons. 2 Wait, Pr. 217; People v. Wilgus, 5 Denio, 58, 62. We also think it was within the power of the county court to permit an amendment of the notice of appeal, under section 3049 of Code of Procedure. The default had been satisfactorily excused, and it seems manifest that injustice had been done, and the proper course would seem to have been for the county court to have directed a new' trial. At all events, a refusal to exercise discretion upon the matter was error sufficient to permit a reversal of the judgment, without costs to either party.  