Clemens v. Werner Co. , 101 N.Y.S. 755 ( 1906 )

Fitzgerald, J.

The defendant’s attorneys appeared specially in this action to traverse the sufficiency of the return. Testimony was taken upon the issue raised, and, as appears by the stenographer’s minutes, “ Traverse overruled. Defendant granted leave to plead and case adjourned for that purpose to April 26th, 1906.” These words are written in ink and are not typewritten as is the evidence taken, and were evidently written in the minutes at a later day than when the issue was tried on April 5,-1906. The words above quoted would be conclusive upon this court as to the granting of an adjournment and the adjournment from April fifth to April twenty-sixth would be deemed to have been granted upon consent (Wood v. Spofford, 29 Misc. Rep. 357), but for the further fact that there appears in the return, a proposed amendment to the return, submitted by the plaintiff’s attorney, whereby he asks that there be inserted in the return an amendment setting forth that the defendant asked for five days’ time in which to plead after the decision was made as to the issue raised by the traverse. There is also a notice from the plaintiff’s attorneys served upon the defendant’s attorneys that the decision of the traverse had been made and the case set down for trial on April twenty-sixth. This notice was dated April sixteenth, thus showing that the decision of the traverse must have been given at or previous to April sixteenth and the case adjourned therefrom for over the five days asked for by defendant and more than the eight days provided for by section 193, Municipal Court Act. We must therefore assume, from the state of the record arid these facts, that the defendant did not consent to. an adjournment of more than eight days, and that the court, therefore, lost jurisdiction by an adjournment from April 16 to April 26, 1906.

Gildersleeve and Davis, JJ., concur.

Judgment reversed, with costs to appellant and complaint dismissed.