Winquist v. Preston , 102 N.Y.S. 1023 ( 1907 )

Williams, J.:

The order should he affirmed, with ten dollars costs and disbursements.

.The motion in County Court was based upon the claim that the judgment was void for want of.jurisdiction in the Municipal Court of the city of Buffalo to render the same. It was claimed the court lost jurisdiction' of the. action by adjourning the same against defendant’s objection. The case, having been adjourned from time to time by consent of the parties, on May 23,1906, it was.called for trial. A. commission had" previously been issued to take the evidence of - witnesses residing in Massachusetts, and had been returned. The plaintiff’s counsel attempted to read evidence from this commission, when objection was made by defendant’s counsel that the commission was not properly executed. The plaintiff then, before any evidence was read from the commission or taken from other witnesses, applied for an adjournment of the case to permit the-commission to be returned to Massachusetts for correction. The defendant objected to the adjournment upon the ground that the court had no power to adjourn at that time, the trial having been commenced. The court overruled the objection and adjourned the case to June 1, 1906. On the adjourned day the defendant made no appearance, except to object to the jurisdiction of the court to proceed further in the case, having lost jurisdiction thereof by adjourning it without defendant’s consent after the trial had begun. The plaintiff made his proof and the judgment was ordered. A transcript was filed in Erie county, and the supplemental proceedings were based thereon.

The question here is whether the judgment is void for want of jurisdiction in the Municipal' Court, for the reason alleged. It seemed to be assumed on the trial that the court had power to adjourn the case to have the commission corrected, if it had been done before the trial had commenced. There aré provisions in the Code of Civil Procedure for adjournment of cases in Justices’ Courts, where commissions are issued; to afford opportunity for the execution and return of the commissions (§ 2983), and this provision is applicable to proceedings in the Municipal Court of the city of Buffalo (Charter [Laws of 1891, chap. 105], § 456, as amd. by Laws of 1898, chap. 101). These provisions undoubtedly cover cases where commissions are defectively executed and need to be returned for correction. We might be willing to concur in the defendant’s position that a case' could not be adjourned in Justices’ Courts or in this Municipal Court after the trial has commenced. In this case, however, there had been really no commencement of the trial. The lawyers and the court had done some talking. Some offers, objections and rulings had been made, but no evidence had been taken, and we think the court correctly held, that the trial had not commenced in such a sense as to deprive the court of the power to adjourn the ease for the purpose of procuring the commission to be corrected and returned. Having arrived at this conclusion, we do not deem it essential to pass upon the other questions raised upon this appeal.

All concurred.

Order affirmed, with ten dollars costs and disbursements.