Molinski v. Burnett (152 A.D. 428, 1912)

Rich, J.:

It is apparent, I think, that the ■ justice denied the application for an adjournment because it was asked for a longer period than eight days. At the time of the joinder Of issue the defendant applied for an adjournment, which he was absolutely entitled to under the provisions of section 2961 of the Code of Civil Procedure. An adjournment under the latter section is not limited to eight days, nor is the defendant required, as a condition precedent to such adjournment, to make the affidavit provided for in subdivision 1, nor give the undertaking required by subdivision 2 of the section, unless the plaintiff so requires. The return does not show that the plaintiff required either an ■ affidavit or undertaking, and the justice erred in not granting an adjournment for such period of time as he deemed reasonable. The order for reversal in the County Court states that it was granted upon the return and “ upon the affidavit of L. Harry Burnett, read upon such hearing.” (The affidavit referred to purports to have been sworn to on December 10,1910, seven days before the summons was issued, yet it details the occurrences at the trial on December twenty-third.) It is contended by the appellant that, it thus appearing from the order that this affidavit was considered and acted upon in reaching a conclusion by the County Court, its judgment must be reversed. It is true that the court had no right to act upon any statement contained in the affidavit in reaching a conclusion upon the appeal (Code Civ. Proc. § 3063), and unless we are. justified in the conclusion that its consideration in no manner affected the appellant or prejudiced his case the judgment must be reversed. The only material fact disclosed by the affidavit and not appearing in the return is that the application for an adjournment was accompanied with a statement to the justice that it was desired for the purpose of procuring the testimony of a material witness and some additional documentary proof. It was not necessary to make such a statement to entitle the defendant to the adjournment, ■ unless the plaintiff required an affidavit disclosing that fact. The plaintiff’s case on appeal, therefore, could not have been injuriously affected by the act of the learned county judge taking the affidavit into consideration, and the judgment must be affirmed, with costs.

Jenks, P. J., and Thomas, J., concurred; Burr and Woodward, JJ., dissented.

Judgment of the County Court of Suffolk county affirmed, with costs.