
    Fred. Newman, Respondent, v. William Woodcock et al, Appellants.
    (County Court, Oneida County,
    February, 1896.)
    Justice’s Court — Adjournments.
    On the day to which an action had been adjourned the plaintiff asked for a further adjournment on the ground of the absence of a material witness, to which the defendant objected. The justice thereupon granted an adjournment for fourteen days, on condition that plaintiff paid the defendant’s witness fees. Held, that such adjournment was unauthorized and deprived the justice of jurisdiction.
    This is an appeal from a judgment rendered by Elljs W. Griffiths, justice of the peace, upon the verdict of a jury for $53 damages and $10 costs, rendered on the 25th day of June, 1895. ■ Issue was joined in the action May 4, 1895, and the cause adjourned till May 11, 1895: At the joining of issue the plaintiff demanded a- jury. On the adjourned day plaintiff applied for a ■ further adjournment on the ground that he could not safely proceed to trial without the evidence of an absent witness whose presence he had been unable to obtain. Defendants objected to a further adjournment. The objection, however, was overruled by the justice, and, upon plaintiff’s motion, the case was adjourned until May 25, 18"95, upon the payment by the plaintiff of the defendants’ witnesses fees, amounting to $2.25, which sum was paid by the plaintiff. Upon the adjourned day the defendants did not appear, and in their absence the jury wás impaneled, evidence taken, verdict rendered and judgment entered.
    George E: Pritchard, for appellants.
    .Geiorge M. Wirt, for respondent.
   Dunmore, J.

The second adjournment was unauthorized. The justice had no right to grant plaintiff’s application for a second adjournment. By the provisions of the Oo.de the plaintiff is entitled to an adjournment only upon" the return' day of the summons. § 2960. When a commission is granted a further adjournment may be had to procure the execution and return of the commission. • Code, § 2983. Here the adjournment was granted on plaintiff’s motion and against the defendants’ objection for more than eight days, and was after one adjournment had been had. The-adjournment was, therefore, irregular and as between the parties the case was out of court. The respondent claims that the irregularity was Waived because a condition, to wit, the payment of the defendants’ witnesses fees, was imposed, and cites Weeks v. Lyon, 18 Barb. 530; Hart v. Small, 4 Paige, 288; Clarke v. Meigs, 10 Bosw. 337, and Peck v. McAlpine, 3 Caines, 116. Those authorities do not support the respondent’s contention. The fact that the court imposed a condition would not bind the defendants without their consent. As the judgment must be reversed because of this irregularity it is unnecessary to examine the other questions in the cáse. . .

Judgment reversed, with .costs.  