APPLEBY a. STRANG

APPLEBY a. STRANG. New York Common Pleas; General Term, December, 1854. Poweb of Justice of Distbict Coubt. — Cannot open his Judgment. A justice is entitled to proceed with a case immediately upon the expiration of the time named in the summons. "Where, so proceeding, he has rendered judgment, he has no power to open it upon the defendant’s coming immediately after and asking to be let in to defend. Appeal from a judgment of a district court. The suit was brought in the Sixth District Court. The summons was returnable at 9 a.m. It is the rule of the justice of that court to wait half an hour after the time of return, except where he is satisfied that the opposite party does not intend to appear, in order to give time for appearance. Through inadvertence it would seem, this case was called at about twenty minutes past nine ; the plaintiff proved his case and the justice rendered judgment in his favor. Within the half hour the defendant appeared, and moved to open the case that he might be allowed to defend. The plaintiff objected, and the justice sustained the objection. The defendant appealed from the judgment rendered for plaintiff. N. W. Clason for appellant. George A. Shufeldt for respondent. [MAJORITY — Daly, J.] Daly, J. The justice had the right to proceed with the case immediately upon the expiration of the time named in the summons; and having done so, and rendered judgment, he had no power to open it. As it appears from his return, that he had adopted the rule of waiting half an hour in ordinary cases for the appearing of the defendant, we might give relief upon an affidavit showing that the defendant was misled thereby, and setting forth such a defence as might satisfy us under the statute, that manifest injustice has been done. But there was no error in entering the judgment, and it should be affirmed.