Henry B. Hardenburgh and Charles J. Tiensch, Appellants, v. Frank Fish, Respondent

Henry B. Hardenburgh and Charles J. Tiensch, Appellants, v. Frank Fish, Respondent. Justice's Court—holding a case for a few. minutes to accommodate counsel does not deprive it of jurisdiction — a record “ adjourned by consent" implies the presence of the parties—proof of a copartnership—what amswer does not deny delivery . of goods. Where the attorney for the plaintiff in an action brought in a Justice’s Court informed the justice personally by telephone a few minutes before the expiration of the hour to which the cause had been adjourned that he was detained, but would shortly arrive, the justice does not lose jurisdiction by holding the case open for five or ten minutes after the expiration of the hour. Where the. record on an appeal from a judgment rendered by a justice of the ■ peace recites that the cause was from, time to time “ adjourned by consent ” to a day and hour specified, the court will not indulge the presumption that the parties were not present in court when they consented, in order to reverse the judgment. Any one having knowledge of the existence of a partnership may testify to that fact. Where the complaint in an action alleges that the plaintiffs Were copartners and that they sold and delivered to the defendant goods of the value of twenty-one dollars, which sum was then due and owing, an answer which “ denies that he (the defendant) has any knowledge or information sufficient to form a belief as to the truth of the allegation of the complaint as to the copartnership of plaintiffs, and denies that he owes said plaintiffs twenty-one dollars,” admits, by not denying it, the delivery of the goods. Appeal by the plaintiffs, Henry B. Hardenburgh and another, from a judgment of the County Court of Washington county in favor of the defendant, entered in the office of the clerk of the county of Washington on the 19th day of December, 1900, upon the decision of the court reversing a judgment of a justice of the peace in favor of the plaintiffs. This action was brought in a Justice’s Court by the personal service of a summons and verified complaint on the defendant. The complaint alleged the copartnership of the plaintiffs and the sale and delivery by them to the defendant on or about May 11, 1899, of goods, wares and merchandise of the value of twenty-one dollars, for which the defendant has not paid ; and further alleged that there was due and owing .the plaintiffs the sum of twenty-one dollars, with interest from May 11, 1899. The defendant appeared in person on the return day and filed a verified answer which “ denies that he has any knowledge or information Sufficient to form a belief as to the truth of the allegation of the complaint as to the copartnership of plaintiffs, and denies that he owes said plaintiffs twenty-one dollars.” The answer further alleged that certain goods furnished defendant by plaintiffs were not as represented to be; that the defendant refused to accept said goods and offered to return them and plaintiffs refused to receive them; that the defendant has tendered to - plaintiffs the sum of eleven dollars and ten cents, the amount defendant owes plaintiffs, and hereby again tenders said amount to plaintiffs. By consent of the parties the case was adjourned from time to time until March 9, 1900, at nine a. m. On that day, at about nine forty-five a. m., the defendant appeared at the office of the justice and left before ten a. m. and did not return. The .case was called at ten a. m., when Mr. Northup, an attorney, appeared at the request of the plaintiffs’ attorney, and stated to the justice that Mr. Arnold, the plaintiffs’ attorney, would appear in a few minutes and asked to have the case held open until his arrival. The case was held open by the justice and within ten minutes after ten o’clock the plaintiffs’ attorney appeared, put in his evidence, and on the following day judgment was entered for the plaintiffs for the amount of then* claim, from which judgment an appeal was taken to the County Court. The County Court, on appeal, reversed the justice’s judgment, and from the judgment of reversal this appeal is taken. A. D. Arnold, for the appellants. T. D. Trumbull, Jr., for the respondent. [MAJORITY — Edwabds, J.:] Edwabds, J.: It does not appear on what grounds the judgment of the justice was reversed by the County Court, but the respondent has presented several reasons in justification of such reversal, which will be considered in their order. It is a contention of the respondent’s counsel that the appearance of Morthup for the plaintiffs should not have been permitted by the justice, for the reason that his authority was not “ proved by the affidavit or oral testimony of himself or another,” as required by section 2890 of the Code of Civil Procedure, and that for this reason, after the hour had expired to which the cause had been adjourned, the justice was without jurisdiction. I do not think it necessary to consider the question of the authority of Morthup to appear, for the reason that without such appearance the justice, with knowledge that Mr. Arnold, the plaintiffs’ attorney, who was concededly authorized to appear, was detained and would very soon appear, did not lose jurisdiction by holding the case for from five to ten minutes to await his arrival. A justice has a reasonable discretion to exercise after the expiration of the hour to which the cause is adjourned, and where he has knowledge or information that the' party intends to appear and will soon arrive, he does not lose jurisdiction by granting a reasonable indulgence. (Barber v. Parker, 11 Wend. 52; Pickert v. Dexter, 12 id. 151; Wilcox v. Clement, 4 Den. 160.) In this case the plaintiffs’, attorney, whose office was in the same village with that of the justice, informed the justice personally by telephone a few minutes before ten- o’clock that he was detained but would shortly arrive, and requested that Mr. Hortlmp appear for him and that the case be held open. This was communicated to the defendant, who left the office of the justice before the hour of ten arrived, preferring, perhaps, the chance of success on an appeal, through some technicality, to a trial of the merits before the justice. The indulgence of between five and ten minutes granted by the justice was not unreasonable and no advantage was taken of the defendant. The second ground urged by the respondent to sustain the judgment of reversal is, that the record shows six adjournments of the case and to a time more than ninety days after the return day of the summons, and does not expressly state that plaintiffs or defendant were present and consenting to such adjournments.- The record does show that the case was regularly called each time at the hour to which it had been adjourned, and that it was “ adjourned by consent ” to a day and hour sjDecified. This, I think, is sufficient. The court will not indulge the presumption that the parties were not present in court when they consented. It is contended by the respondent, that the allegation of the partnership of the plaintiffs formally put at issue by the answer' was not proved by competent evidence. Arnold, the attorney for the plaintiffs, testified: “ The firm of H. B. Hardenburgh & Co. is composed of the plaintiffs, Henry B. Hardenburgh and .Charles J. Tiensch.” The criticism made on this is, that it does not appear that the witness was qualified to testify in relation to the copartnership, and that his statement is a conclusion and hearsay. The fact of partnership may be testified to by any one who has knowledge ■ of the fact. The witness has assumed to testify from his knowledge, and there is no presumption to the contrary. It is further claimed that the evidence does not show a delivery of the goods to the defendant. The answer toThis is that he has admitted it in his answer by not denying it. The only denial in the answer is of the. copartnership of the plaintiffs and a denial “ that he owes said plaintiffs twenty-one dollars.” The latter is a denial of a conclusion of law. Ho sufficient reason appears for the reversal of the justice’s judgment and the judgment appealed from should be reversed, with Costs to the appellant in this court and in the court below. All concurred. Judgment of the County Court reversed and judgment of Justice’s Court affirmed, with costs in this court and' in the court below.