William N. Howell, Respondent, v. John Capelli, Appellant

William N. Howell, Respondent, v. John Capelli, Appellant. Duty of a justice of the peace, in case of the plaintiff’s failure to appeem' on the adjourned day, to render a judgment of nonsuit — what is not a consent by the defendant to an adjournment. The return filed on an appeal from a judgment rendered byn justice of the peace recited that, upon the adjourned day, a person appeared onbehalf of the defendant and stated that the defendant’s attorney had requested him- to appear for him, and if the plaintiff appeared, to secure an adjournment;' if he did not appear, to have the action dismissed. It further stated that a telegram having been received from the plaintiff to the effect that, on account of a severe snow storm, he would .be unable to be present on that day, the justice, on his own motion, no objection being made by the person appearing for the defendant, adjourned the case to a later day, on which day, the defendant hot appearing, the justice took the plaintiff’s evidence and rendered the judgment appealed from. Held, that the judgment was erroneous and should be reversed; That the plaintiff having failed to appear upon the adjourned day, the statute required the justice to render a judgment of nonsuit against him with costs; that the statement made by the person representing the defendant did not constitute a consent to the adjournment. Appeal by the defendant, John Capelli, from a judgment of the County Court of the county of Columbia in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 19th day of June, 1895, upon the decision of the court rendered upon an appeal from a judgment rendered by a justice of the peace, and also from an order of said County Court bearing date the 13th day of June, 1895, and entered in said clerk’s office, affirming the judgment rendered by the justice of the peace. Upon the return of the summons the parties appeared in the Justice’s Court, the plaintiff in person, the defendant by Mr. Crandell, his attorney; issue was joined and the case adjourned upon motion of the defendant until February 8, 1895, at two p. m. The return recites: “ Feb. 8. 3.00 p. m. Case called. Milton M. Hall, Esq., appears for defendant and states that he has been requested by Mr. Crandell to appear for him, and if plaintiff appeared to secure an adjournment; if plaintiff did not appear to have action dismissed. “A telegram having been received from plaintiff from Hew York, dated Feb. 8, 1895, stating that all trains upon Hew York Central railroad had been abandoned on account of severe snow storm, and it being a fact that all railroads and means of communication between Hew York and Hudson are blocked and impassable by reason of snow, the justice upon his own motion and upon the telegram herein referred to, filed and marked. ‘ B,’ adjourns this case to February 22d, 1895, at 2 p. m., no objection being made to said adjournment by Mr. Hall appearing for the defendant. “Feb. 22. 3 p. m. Case called. Plaintiff appears in person. Defendant does not appear either in person or by attorney. “ The Western Union Telegraph Company received at Hudson, NT. Y.,'11:45, Feb’y 8, 1895, dated New York, to H. W.. Alden (filed £B ’): Trains abandoned, cannot- reach Hudson to-day. Adjourn case and mail me notice two weeks from to-day if possible. Wm. N. Howell.” The justice then took the evidence of the plaintiff and thereupon rendered judgment in Ms favor. John L. Crandell, for the appellant. Mark Duntz, for the respondent. [MAJORITY — Landon, J.:] Landon, J.: The plaintiff having failed to appear upon the adjourned day, either in person- or by attorney or agent, we think the statute required the justice to render a judgment of nonsuit with costs against him. (Code Civ; Proc. §§ 2861, 3013.) We do not think, in view of the statement made by the person representing the defendant, that he consented to the adjournment. Judgment, reversed, with costs. All concurred. Judgment of County Court and of Justice’s reversed, with costs.