
    Nichols v. Place.
    (Orleans County Court —
    January, 1893.)
    The failure of a justice of the peace to wait one hour on the adjourned day before proceeding with the trial of an action, is error sufficient to reverse his judgment.
    1Appeal from judgment rendered by a justice of the peace in favor of respondents against the appellant. The facts are stated in the opinion.
    
      Thomas A. Kirby, for plaintiffs (respondents).
    
      W. P. L. Stafford, for defendant (appellant).
   Signor, J.

The action was commenced by service of a summons. On the return day, the parties appeared and an adjournment was had to a future day at 2 p. m. The plaintiff appeared at 2 p. m., and waited one-half hour when the justice took the proofs offered and as appears by his return entered judgment, and as he had completed his entry and at about a quarter before 3 o’clock the defendant appeared and asked to have the case held open an hour or so and on being informed that judgment had been entered he went away hut returned a few minutes before three and asked to have the case opened. This was refused unless plaintiffs should consent, which plaintiffs refused to do. From this judgment an appeal is taken to this court. The main ground of error urged, is the failure of the justice to wait one hour for the defendant to appear.

Counsel for the plaintiffs claims that the rule requiring the justice to wait one horn’ applies only to the return day of the summons and not to an adjourned day. Wait, in his Law and Practice in Justices’ Courts, volume 3, page 696, says: “The same rule applies to the adjourned day ; and a justice must in all cases wait one hour before proceeding to trial on an adjourned day unless the parties sooner appear,” citing in support thereof, Sherwood v. Saratoga & Washington, R. Co., 15 Barb. 650; Stafford v. Williams, 4 Denio, 182; Shufelt v. Cramer, 20 Johns. 309.

He also lays it down as a rule that when a case is held open to a particular time for a reasonable cause as for return of an attachment against a defaulting witness the same rule applies, citing Clark v. Garrison, 3 Barb. 372.

It has been held that when the defendant did not appear at all on the adjourned day, and judgment was rendered before the hour had expired the judgment should be reversed for that reason Miller v. Larmon, 38 How. 417, 423

Benedict in his work on Civil and Criminal Practice in Justice’s Court says: “ Where a cause before a justice of the peace is held open to a particular hour on a subsequent day, the justice should in analogy to the time given on adjournment, wait an hour after the time specified for the parties to appear.” Vol. 1 (6th ed.), 285.

The Code, section 3013, provides for judgment of nonsuit against the plaintiff “ If he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned.” There seems to be no reason why on an adjourned day the defendant should not have the same consideration and be allowed the same time as the plaintiff. It was on the like provision found in 2 Revised Statutes, 246, section 119, which is renacted in Code of Procedure, section 3013, that Clark v. Garrison was decided.

The same rule is also laid down in Cowen’s Treatise and seems to have prevailed from the earliest organization of these courts.

In this case it would seem that the plaintiffs or their attorney were still in court when the defendant appeared and requested to have the case opened, though it is not positively so stated in the return, but the justice says he refused to open the case without consent of plaintiffs and they did not consent thereto and the request was denied.

The judgment must be reversed for the failure to wait one hour before proceeding with the trial on the adjourned day.

Judgment reversed.  