
    Lizzie E. Freeborn, Appellant, v. Coburn Badgley, Respondent.
    (County Court—Onondaga County,
    December, 1895.)
    1. Justice’s Court — Failure to wait one hour on adjourned day.
    A default cannot betaken in a Justice’s Court upon the adjourned day without waiting one hour after the time to which the case was adjourned. .
    2. Same — Agreement to waive delay.
    An agreement by the parties to waive the ordinary practice of waiting one hour should be reduced to writing ■ and made a part of the , justice’s return, or be made to appear in the return itself.
    Appeal from judgment of a Justice’s Court, entered upon a nonsuit. .....
    
      
      William Gilbert, for appellant.
    
      Levi S. Chapman, for respondent.
   Ross, J.

Appeal from a judgment of nonsuit, and costs, sixteen dollars and seventeen cents, rendered in favor of the defendant by F. L. Maine, Justice of theJPeace, May 31, ' ' 1895.

The return made by the ■ justice in relation to the adjourn- ■ mentis as follows: “ Adjourned by consént to May 31, "1895, at 9, o’clock a. m.”_ At which time judgment was rendered as above without waiting, one hour, which is claimed by the plaintiff and appellant to have, been error,.

An order for a new trial which had been, made in this case places the parties in exactly the same position as upon "the - return of a summons. It brings them into court, and “ thereupon the like proceedings must he had in the action as upon the return of a summons personally served.” Code Civ. Proc. ' .§ 3065.

If the parties made an agreement upon the return day that the ordinary practice of waiting an hour before moving the case should not apply,- it should either have been reduced- to writing and. "made part of the justice’s .return of-it should have been, made to appear in the return itself. Thefe is nothing in the return aboye as quoted to indicate "other than the ordinary adjournment. This is also, true as to any proceedings which took place befóte the justice on the return day which the . respondent argues" upon this appeal. The simple, fact that appears before me is the record of an adjournment and of a default taken without waiting one hour, - Ró case has.been Cited sustaining this" practice, and I am unable to .find, any, and, on the contrary, the decisions seem unmistakably to require the justice to wait one hour upon the adjourned as well as upon the return day. Clark v. Garrison, 3 Barb. 372; Sherwood v. S. & W. R. R. Co., 15 id. 650; Nichols v. Place, 1 Misc. Rep. 497.

The right to appear before a justice of the peace within one hour subsequent to which a case is adjourned is 'something more than a technical right, a right protected by statute and ■sanctioned by the authorities, a right which has existed for many years, and for the violatioh of this right the judgment must be reversed.

Judgment reversed.  