Fink v. Hall
New York Supreme Court
IN error, on certiorari, from a justice’s court. Hall brought an action against Fink, for work, labour and services, done and performed by his son, for Fink, The defendant below pleaded the general issue, and offered to set off damages for a breach of a contract, sta- . , . ting, at the same time, that he had once sued Hall on this contract, in the Otsego common pleas, and that judgment had been rendered in favour of Hall.
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IN error, on certiorari, from a justice’s court. Hall brought an action against Fink, for work, labour and services, done and performed by his son, for Fink, The defendant below pleaded the general issue, and offered to set off damages for a breach of a contract, sta- . , . ting, at the same time, that he had once sued Hall on this contract, in the Otsego common pleas, and that judgment had been rendered in favour of Hall. The claim offered was the same as had been there tried. The par-r ties agreed to an adjournment, and ■ a venire was issued, at the request of the defendant below. On the…
1Per curiam
The judgment must be affirmed. Without deciding whether the justice ought to have granted the adjournment, (notwithstanding his opinion as to the admissibility of the evidence,) had the application been in season, yet the application was too late, after the jury was empannelled. The trial of the cause must be deemed to have commenced.
It does not appear from the return, that the jury withdrew from the court; and if not, it was not necessary to swear a constable. In the case of Van Down v. Walker, (2 Caines, 373.) it appeared that the jury retired, and the court there say, it should appear that…
2Cases cited1 opinion
- Van Doren v. WalkerNew York Supreme Court · 1805
3Cited by2 opinions
- Douglass v. BlackmanNew York Supreme Court · 1852
- Bidell v. PoyerMichigan Supreme Court · 1835