Simon v. Sheridan & Shea Co.

The first ground of error assigned is the refusal of the justice to adjourn the trial notwithstanding the absence of a . material witness.

The return fails to show, except by inference, that any application for an adjournment was made. Annexed, to the return is a certificate from a physician in Jersey City, dated July 30, 1897, that the -witness Sheridan was under his treatment- for neurasthenia, and would-be unable to appear in court for two weeks; also an affidavit showing the materiality of his evidence, that Sheridan had promised to attend court, that the defendant’s counsel had relied on such assurance (Abb. Tr. Pr. in Civ. Act. 5), and that if an adjournment was had until August 10th the defendant believed it would be able to procure such attendance.

Ordinarily the proof given would be sufficient to entitle the defendant to an adjournment. But the difficulty is that the adjournment applied for was one expressly stated to be for 'eleven days, and the question presented is whether the justice was bound or even had power to grant such adjournment.

The statute relating to District Courts provides that an adjournment may in a proper case be granted for a period longer than eight days on the execution of an undertaking to the effect that the defendant will pay any judgment that may be recovered against the defendant in the action; Consol. Act, §§ 1362, 1364. Without such an undertaking- the power of the justice to adjourn is limited to eight days. Id., § 1362; Finelite’s Dist. Ct. Pr. 225, 226. No such undertaking was offered, and as it would have been idle to grant a shorter adjournment than eight days, in view of the physician’s certificate that Sheridan would' be unable to attend court within two weeks, it is difficult to hold that the justice erred in denying the application.

If the defendant had in consequence, of the absence of the witness and his inability to attend applied for an adjournment' for a period not exceeding the statutory limit of eight days, and accompanied the motion by an application -for a commission to take his testimony in the meantime, a different question would be. presented.

The next "error assigned is the failure to- prove a cause of action.

Hpon the trial the plaintiff proved satisfactorily that he rendered services as an attorney and counselor-at-law in prosecuting two accounts belonging to the defendant, the value of which services *491was clearly established. The claims so prosecuted were assigned by the defendant to Sheridan in his individual right to enable him, as was supposed, to sue in the courts of this state without inviting the objection that a foreign corporation was attempting to do business herein without the necessary certificate from the secretary of state authorizing it to do so. It is evident that the claims prosecuted really belonged to the defendant, and were put in judgment for its benefit, that Sheridan was acting for the defendant in employing the plaintiff, and that it is liable for the compensation claimed. Sheridan’s official connection with the corporation was sufficiently shown, and his acts were within the general scope and apparent sphere of his duties.

It was not made to appear that the contract sued on was made out of the state or that the plaintiff was a nonresident; and hence there is no force in the suggestion made at the close of the trial that the court was without jurisdiction, simply because the defendant is a foreign corporation. Code, § 1780; Maas v. Cunard S. S. Co., 10 Misc. Rep. 100.

The defendant appeared in the action generally, without tendering any plea to the jurisdiction or offering any affirmative evidence that at the time the action was commenced it had no office within the city of ¡New York. Indeed, the point as to jurisdiction was not urged upon the argument,- and may, therefore, be considered waived!

The judgment must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.