Hardenburgh v. Fish

Edwabds, J.: It does not appear on what grounds the judgment of the justice was reversed by the County Court, but the respondent has presented several reasons in justification of such reversal, which will be considered in their order. It is a contention of the respondent’s counsel that the appearance of Morthup for the plaintiffs should not have been permitted by the justice, for the reason that his authority was not “ proved by the affidavit or oral testimony of himself or another,” as required by section 2890 of the Code of Civil Procedure, and that for this reason, after the hour had expired to which the cause had been adjourned, the justice was without jurisdiction. I do not think it necessary to consider the question of the authority of Morthup to appear, for the reason that without such appearance the justice, with knowledge that Mr. Arnold, the plaintiffs’ attorney, who was concededly authorized to appear, was detained and would very soon appear, did not lose jurisdiction by holding the case for from five to ten minutes to await his arrival. A justice has a reasonable discretion to exercise after the expiration of [336] the hour to which the cause is adjourned, and where he has knowledge or information that the' party intends to appear and will soon arrive, he does not lose jurisdiction by granting a reasonable indulgence. (Barber v. Parker, 11 Wend. 52; Pickert v. Dexter, 12 id. 151; Wilcox v. Clement, 4 Den. 160.) In this case the plaintiffs’, attorney, whose office was in the same village with that of the justice, informed the justice personally by telephone a few minutes before ten- o’clock that he was detained but would shortly arrive, and requested that Mr. Hortlmp appear for him and that the case be held open. This was communicated to the defendant, who left the office of the justice before the hour of ten arrived, preferring, perhaps, the chance of success on an appeal, through some technicality, to a trial of the merits before the justice. The indulgence of between five and ten minutes granted by the justice was not unreasonable and no advantage was taken of the defendant. The second ground urged by the respondent to sustain the judgment of reversal is, that the record shows six adjournments of the case and to a time more than ninety days after the return day of the summons, and does not expressly state that plaintiffs or defendant were present and consenting to such adjournments.- The record does show that the case was regularly called each time at the hour to which it had been adjourned, and that it was “ adjourned by consent ” to a day and hour sjDecified. This, I think, is sufficient. The court will not indulge the presumption that the parties were not present in court when they consented. It is contended by the respondent, that the allegation of the partnership of the plaintiffs formally put at issue by the answer' was not proved by competent evidence. Arnold, the attorney for the plaintiffs, testified: “ The firm of H. B. Hardenburgh & Co. is composed of the plaintiffs, Henry B. Hardenburgh and .Charles J. Tiensch.” The criticism made on this is, that it does not appear that the witness was qualified to testify in relation to the copartnership, and that his statement is a conclusion and hearsay. The fact of partnership may be testified to by any one who has knowledge ■ of the fact. The witness has assumed to testify from his knowledge, and there is no presumption to the contrary. It is further claimed that the evidence does not show a delivery [337] of the goods to the defendant. The answer toThis is that he has admitted it in his answer by not denying it. The only denial in the answer is of the. copartnership of the plaintiffs and a denial “ that he owes said plaintiffs twenty-one dollars.” The latter is a denial of a conclusion of law. Ho sufficient reason appears for the reversal of the justice’s judgment and the judgment appealed from should be reversed, with Costs to the appellant in this court and in the court below. All concurred. Judgment of the County Court reversed and judgment of Justice’s Court affirmed, with costs in this court and' in the court below.