McCarthy v. Crowley

Pratt, J If there is no remedy against such practice as appears in this case, it is high time for an amendment to the law regulating procedure in justice’s courts. The request the defendant made to the justice to wait until she could obtain a lawyer, or adjourn the hearing, was reasonable, and should have been granted. There was, in contemplation of law, no appearance by the defendant on the return-day. Merely sitting by, waiting for her son’s return, was not an appearance. But, however this may be, there was as much of an adjournment for the hour to expire as there was of an appearance, and defendant certainly did not appear when default was taken and judgment rendered. - Hence she came within section 3064 of Code of Procedure, which is as follows: “Sec. 3064. If the appeal is taken by a defendant who failed to appear before the justice either upon the return of the summons or at the time to which the trial of the action is adjourned, * * * the appellate court, in its discretion, may set aside the judgment,” etc. I think it clear, within the authorities, that the defendant did not appear on the return of the summons. 2 Wait, Pr. 217; People v. Wilgus, 5 Denio, 58, 62. We also think it was within the power of the county court to permit an amendment of the notice of appeal, under section 3049 of Code of Procedure. The default had been satisfactorily excused, and it seems manifest that injustice had been done, and the proper course would seem to have been for the county court to have directed a new' trial. At all events, a refusal to exercise discretion upon the matter was error sufficient to permit a reversal of the judgment, without costs to either party.