Proudfit v. Henman & Henman
New York Supreme Court
IN error, on certiorari, from a justice’s court. The defendants in error sued the plaintiff in error for overflowing their land by his mill-dam. Issue was joined and a venire returned, on the 28th of February. By agreement between the parties, the cause was adjourned to the 22d August. The plaintiffs appeared, but the defendant did not appear.
Read the full summary
IN error, on certiorari, from a justice’s court. The defendants in error sued the plaintiff in error for overflowing their land by his mill-dam. Issue was joined and a venire returned, on the 28th of February. By agreement between the parties, the cause was adjourned to the 22d August. The plaintiffs appeared, but the defendant did not appear. The plaintiffs stated that the defendant and they had agreed to adjourn further, until notified by the plaintiffs, and that they had given notice for the 19th September ; and the plaintiffs also made oath, that they could not safely proceed to trial,…
1Per curiam
The last adjournment was without proof of any consent by the defendant. It was upon the suggestion of the plaintiffs, and without authority. The plaintiffs did not show that they had used due diligence to procure the attendance of the absent witness, nor at what distance he lived. There is no provision in the act *392giviiig to the magistrate unlimited discretion to adjourn, for any length of time, upon the suggestion, and at the pleasure of the plaintiff. This adjournment amounted to a discontinuance, and the cause was out pf court.
Judgment reversed.
2Cited by4 opinions
- Austin v. . VroomanNew York Court of Appeals · 1891
- Stadler v. MoorsMichigan Supreme Court · 1861
- Stoutenburg v. HumphreyAppellate Division of the Supreme Court of the State of New York · 1896
- Mayor of New York v. HussonNew York Court of Common Pleas · 1858