
    William G. Crisp, App’lt, v. Francis Rice, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    1. Justice’s court—Adjournment.
    The power- of the justice to adjourn a case upon the application of the plaintiff, except in cases provided for in § 2944 of the Code, is restricted to the return of the summons or the joining of issue, unless a commission has been issued.
    
      2. Same—Objection—Waiter.
    An objection that the justice has no power to adjourn the cause on an adjourned day upon the motion of plaintiff, is not waived by an appearance on the adjourned day in order to file such objection in writing.
    Appeal from a judgment, reversing a judgment in favor of plaintiff rendered in justice’s court.
    
      Charles D. Newton, for app’lt; Strang & Doty, for resp’t.
   Haight, J.

It appears from the return of the justice that the summons was issued by him March 7th, returnable March 15th and that it was personally served. On the return day the parties appeared, and the plaintiff filed his complaint in writing. The defendant answered by denying each and every obligation of the complaint. The case was then adjourned until April 12th, and on that day the parties again appeared, and the defendant filed an amended answer in writing. The plaintiff then asked for an adjournment, for the reason that his counsel was unexpectly detained in Rochester, and had in his possession, a note which was material evidence in the case. The defendant objected to a fur-i ther adjournment. The court thereupon adjourned the case until April 13th, at 9 o’clock. On the latter day the following appears from the return:

“ Parties appeared and answered. Defendant offered the objections, in writing, his counsel made to the adjournment, and went away. The plaintiff then went on with his claim, after hearing which I rendered judgment for the plaintiff.”

The written objections filed by the defendant were to the effect that the court had no authority "to adjourn the case on the plaintiff’s motion, as the case had beén adjourned once before, and asked for a dismissal of the case.

There appears to be no question that the power of the justice to adjourn the case upon the application of the plaintiff, except in cases provided for in § 2944 of the Code, is restricted to the return of the summons or the joining of issue, unless a commission has been issued, in which case he is entitled to one or more adjournments of the trial as may be necessary to procure a commission to be executed and returned. Code Civ. Proc. §§ 2960, 2983; Redford v. Snow, 46 Hun, 370. It is claimed, however, that the defendant waived the question by appearing on the adjourned day. As we understand the return, the parties were present, and the case was called. It says “ they answered,” from which we conclude that the names of the parties were called by the justice, and each answered, “ present.” The return then states that the defendant offered the objections, in writing, his counsel made to the adjournment. It appears to us that this act tends to show that his appearance and answering to his name was for the purpose only of filing the objections to the jurisdiction of the justice, which his counsel had prepared, and that it was not his intention to appear generally in the action. It is not claimed that any step was taken in the trial by him before such paper was filed. We think, therefore, that it cannot be said that he waived the question as to the power of the justice to adjourn. In this cáse the plaintiff did not comply with, the provisions of § 2944 of the Code.

The judgment appealed from should be affirmed.

All concur.  