
    (3 Misc. Rep. 122.)
    YOUNG v. CONKLIN.
    (Rockland County Court.
    March, 1893.)
    1. JUDGMENT BY DEFAULT—SETTING ASIDE ON APPEAL FROM JUSTICE’S COURT.
    Code Civil Proc. § 3064, provides that if an appeal from a judgment of a justice of the peace is taken by a defendant “who failed to appear before the justice, * * * and he shows by affidavit or otherwise that manifest injustice has been done, and renders a satisfactory excuse for his default, the appellate court may, in its discretion, set aside the judgment appealed from.” Held, that a judgment will not be set aside where the moving affidavit does not show what the defense is to plaintiff’s claim, or that there is any defense at all.
    2. Parol Evidence—Contradictory Records—Return of Justice.
    A recital in the return on appeal from a justice’s court that the “parties stipulated to adjourn this matter to July second,” cannot be contradicted by extrinsic evidence, the return being a record, and therefore conclusive.
    3. Appeal from Justice’s Court—Correcting Return.
    If the return on appeal from a justice’s court is incorrect, insufficient, or indefinite, the remedy of the party aggrieved is by motion to correct the return, and he cannot attack the return on the hearing of the appeal.
    Appeal from justice court.
    Action by Young against Conklin. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Snider & Hopper, for appellant.
    Arthur S. Tompkins, for respondent.
   WEIANT, Judge.

This is an appeal from a judgment of a justice’s court, taken upon default in favor of the plaintiff for $38.71 damages and costs. The same is submitted upon the return of the justice and affidavits.

Two grounds for reversal are advanced,—one based upon section 3064 of the Code of Civil Procedure, providing for a new trial in certain cases where judgment is taken by default; the other upon the ground that the justice lost jurisdiction, because the case was not regularly adjourned to the time when the trial was had. The appellant had not made out a case, under section 3064 of the Code, for the relief therein provided. That section provides that—

“If the appeal is taken by a defendant who failed to appear before the justice upon the return of the summons, or at the time to which the trial of the action was adjourned, and he shows by affidavit or otherwise that manifest injustice has been done, and renders a satisfactory excuse for his default, the appellate court may, in its discretion, set aside the judgment appealed from.”

Thus it appears that, in order that the appellant may bring his case within this provision of the law, it is necessary for him to establish that “manifest injustice has been done,” and render “a satisfactory excuse for his default.” He has absolutely failed in the former. The defendant himself makes no affidavit whatever. It nowhere appears what his defense is to the plaintiff’s claim, or that he has any at all. How, then, does it appear that any injustice has been done him? His attorney, in his affidavit, does not make a single statement as to the defense, or that the defendant has any. He does not even submit the usual affidavit of merits. So that, if it be assumed that a proper excuse for the default be shown, still no injustice to the appellant appears. Both are essential, as we have seen from the express words of the statute. Section 366 of the old Code contained a similar provision, and the authorities so construed it. “To entitle a defendant to relief against a default in the court below it is not sufficient to show a good excuse for the failure to appear; it is also indispensable to show that manifest injustice has been done by the rendition of the judgment.” 2 Wait, Law & Pr. (2d Ed.) 847. “Proof either of a good excuse or manifest injustice, when taken separately, will not be sufficient, since it fails to meet the statutory requirement that both facts shall be proved before relief is to be granted.” Id. And the facts and circumstances must be shown from which it appears, or can be inferred, that manifest injustice has been done. An affidavit of merits alone is not sufficient. Id.; Fowler v. Colyer, 2 E. D. Smith, 125; Mix v. White, 1 E. D. Smith, 614; Armstrong v. Craig, 18 Barb. 387.

As to the erroneous adjournment, it is the general rule that an irregular or illegal adjournment is a discontinuance of the action, and that a judgment thereafter rendered is reversible on appeal. 2 Wait, Law & Pr. 358, and cases there cited. The justice’s return, however, shows that the .“parties stipulated to adjourn this matter to July second, at nine o’clock A. M.,” which was the day on which the trial was had. This entry does not show how the stipulation of the parties was made, and, in the absence of such stipulation in writing, as a part of the return, it is fair to infer that it was oral. The justice having made such an entry in his docket, and no writing being produced, it must, it seems, be presumed to have been made before him in open court, rather than that he made a false entry in his docket. The defendant’s attorney, by his affidavit, states that neither he nor the defendant, nor any one representing them, appeared before the justice after June 1st. He does admit, however, that about June 28th or 29th he met the plaintiff’s attorney on the street, and that he stated to said attorney that July 2d would suit him. The plaintiff’s attorney, however, states in his affidavit that he, “deponent, and the defendant’s attorney agreed and stipulated in open court before the justice that the trial of the case should be had on the 2d day of July, 1892, at nine o’clock sharp, in the forenoon, and that the adjournment and stipulation of the parties was entered in the justice’s docket.” If, then, it be true that a stipulation was thus made, it seems that it was binding upon the defendant. Richardson v. Brown, 1 Cow. 255.

It seems that, if the agreement between the parties had been entered into in the absence of the justice, it would not have been obligatory. Kimball v. Mack, 10 Wend. 497; Deland v. Richardson, 4 Denio, 95. The adjournment of a cause is a part of the trial, and the justice’s return as to the same is conclusive. The return made by a justice is the record of the evidence and proceedings in the court below, and, being an official act, it is held to be conclusive. 2 Wait, Law & Pr. 805. The operation of this rule is to exclude all extrinsic evidence which may be offered for the purpose of contradicting the return, or of adding to or diminishing the facts stated in it. 2 Wait, Law & Pr. 805. This does not appear to be a case coming within section 3057 of the Code of Civil Procedure, where the appeal is founded upon an error in fact in the proceedings, not within the knowledge of the justice, and where the court may determine the matter upon affidavits. Jourdan v. Healey, (Com. Pl. N. Y.) 19 N. Y. Supp. 240, and cases there cited. Where a return is made, and relief is sought in relation to matters which are properly a subject of return by the justice, his return as to those facts or matters is entirely conclusive. 2 Wait, Law & Pr. 805, and cases there cited; Bates v. Conkling, 10 Wend. 389; Haines v. Judges of Westchester, 20 Wend. 625; Spence v. Beck, 1 Hilt. 276; Beebe v. Roberts, 3 E. D. Smith, 195. Every justice of the peace shall keep a book, in which he shall make some 15 classes of entries, among which is “every adjournment, stating at whose request, and to what time and place.” 3 Rev. St. (5th Ed.) 457. It thus seems that the return of the justice as to this adjournment in question is conclusive, and cannot be made available upon this appeal. Hyland v. Sherman, 2 E. D. Smith, 235; Rawson v. Grow, 4 E. D. Smith, 18. If the return is incorrect or insufficient or indefinite, the remedy of the party aggrieved is to obtain an amended return. Bates v. Conklin, 10 Wend. 393; Beebe v. Roberts, 3 E. D. Smith, 195; Smith v. Johnston, 30 How. Pr. 374; Lynsky v. Pendegrast, 2 E. D. Smith, 43; Hyland v. Sherman, Id. 235; Rawson v. Grow, 4 E. D. Smith, 18. Such a motion is the only remedy for correcting the return, and if the party proceeds to argument without procuring an amendment he will be bound by the facts stated in the return. Capewell v. Ormsby, 2 E. D. Smith, 180. The court will not look into affidavits for proof of the existence of errors, and if a party neglects to procure an amendment or further returns which show them the judgment will be affirmed. Trust v. Delaplaine, 3 E. D. Smith, 219; Kilpatrick v. Carr, 3 Abb. Pr. 117. It is well to observe that in all cases where judgments of justices’ courts have been reversed because of an irregular or illegal adjournment the facts have appeared in the return or record upon which the appeal was heard, showing the adjournment to have be en illegal. The judgment of the justice’s court is accordingly affirmed, with costs.  