TITLE IV. Proceedings between the joinder of issue and the trial. ARTICLE 1. Adjournments. 2. Compelling the attendance of a witness. 3. Commission to take testimony. ARTICLE FIRST. ADJOURNMENTS, SEC. 2959. Adjournment by justice. 2960. Adjournment on application of plaintiff. 2962. Id.; undertaking thereupon. 2963. Undertaking to procure discharge of defendant from custody. 2964. When defendant to be discharged. 2965. Subsequent adjournments. 2966. Justice may impose conditions upon adjournment. 2967. Adjournment when warrant to attach absent witness is issued. 2968. Adjournment not to exceed ninety days. $2959. Adjournment by justice.-At the time of the return of a summons, or of the joinder of issue without process, but at no other time, the justice may, in his discretion and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant has been arrested; in which case, no such adjournment shall be made. 2 R. S. 238, 22 67,68 (2 Edm. 254). Houghhey v. Wilson, 1 Hilt. 259; Allen v. Edwards, 3 Hill, 499; Wilcox v. Clement, 4 Den. 160; Speidell v. Fash, 1 Cow. 234; Thompson v. Sayre, 1 Den. 175; Nellis v. McCarn, 35 Barb. 115; Proudfit v. Henman, 8 Johns. 390; Hogan v. Baker, 2 E. D. S. 22; Kimball v. Mack, 10 Wend. 497; Palmer v. Green, 1 Johns. Cas. 101; Colden v. Dopkin, 3 Cai. 171; Gamage v. Law, 2 Johns. 192; Dunham v. Heyden, 7 id. 381; McCarty v. McPherson, 11 id. 406; Payne v. Wheeler, 15 id. 491; Redfield v. Florence, 2 E. D. Smith, 339; Wight v. McClave, 3 id. 316; Alberhall v. Roach, id. 345; McCollum v. McClave, 1 Hilt. 140; 3 Abb. 106; Hard v. Shipman, 6 Barb. 621; Seymour v. Bradfield, 35 id. 49; Willoughby v. Carleton, 9 Johns. 136; Tift v. Culver, 3 Hill, 180; Fanning v. Trowbridge, 5 id. 428; Weeks v. Lyon, 18 Barb. 530; Peck v. Andrews, 32 id. 445; Fiero v. Reynolds, 20 id. 275; Kilmore v. Sudam, 7 Johns. 529; Peck v. McAlpine, 3 Cai. 166; Mason v. Campbell, 1 Hilt. 291. § 2960, Adjournment on application of plaintiff. — At the time of the return of a summons, or of the joinder of issue without process, the justice must, upon the application of the plaintiff, adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial. 2 R. S. 238, part of 2 69 and 70 (2 Edm. 254, 255). Pope v. Hart, 39 Barb. 360. 2961. Adjournment on application of defendant.At the time of the joinder of issue, the justice must, upon the application of the defendant, adjourn the trial of the action, upon his complying with the following requirements: 1. The defendant or his attorney must, if required by the plaintiff, or by the justice, make oath that he verily believes that the defendant has a good defence to the action, and that he cannot safely proceed to trial, for want of some material testimony or witness, speci fied by him. 2. If required by the plaintiff, and the defendant has not been arrested in the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertak. ing need not be given, where the action is to recover a chattel. Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or witness. Id., 22 74 and 70. Muber v. Held, 3 Abb. 110; Burgett v. Edwards, 3 Lans. 193; Humburch v. Hubbell, 19 Alb. L. J. 399; Peck v. Andrews, 32 Barb. 445; Onderdonk v. Ranlett, 3 Hill, 323; Nellis v. McCarn, 35 Barb. 115. 2962. Id.; undertaking thereupon.- The undertaking prescribed in the last section must be executed by one or more sureties, approved by the justice; and must be to the effect that, if the plaintiff recovers judg ment in the action; and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of any part of his property, liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned wholly or partly unsatisfied; the sureties will, upon demand, pay to the plaintiff the sum due upon the judgment. L. 1831, ch. 300, 40 (4 Edm. 474). Stewart v. McGuin, 1 Cow. 99; see, also, Fondey v. Cuyler, 1 Wend. 464. $2963. Undertaking to procure discharge of defendant from custody.-Where the defendant has been arrested, the trial must be adjourned upon his applica tion, upon the same terms, and in the same manner, as where he has not been arrested; except that the undertaking prescribed in the last section need not be given. A defendant, who procures such an adjournment, must continue, during the time of adjournment, in the cus tody of the constable: unless he gives an undertaking to the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the plaintiff recovers judgment in the action; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, that the defendant cannot be found; the sure. ties will pay to the plaintiff the amount due upon the judgment. If such an undertaking is given, the de fendant must be discharged from custody. 2 R. S. 239, 240, part of 22 71, 77 and 76 (2 Edm. 255). Pope v. Hart, 35 Barb. 630. $2964. When defendant to be discharged. If the trial of an action, in which the defendant has been arrested, is adjourned with the consent of both parties, or upon the application of the plaintiff, the defendant must be discharged from custody. Id., 272. § 2965. Subsequent adjournments. The justice must, upon the application of the defendant, grant a second or subsequent adjournment of the trial of the action, upon the defendant's giving security, if required, as prescribed in the foregoing provisions of this article, where he applies for a first adjournment; and upon his proving, by his own oath or otherwise, to the satisfac tion of the justice, that he cannot safely proceed to trial for want of some material testimony or witness; and that he has used due diligence to obtain the testi mony or witness. But if the defendant has given an undertaking upon a former adjournment, a new under taking need not be given, unless it is required by the justice, or by the sureties in the former undertaking. Id.. 75. Edwards v. Drew, 2 E. D. S. 55; Shear v. Willis, 5 Lans. 329; Ouderdonk v. Ranlett, 3 Hill, 323; Weed v. Lee, 50 Barb. 354; Powers v. Lockwood, 9 Johns. 133; St. John v. Benedict, 12 id. 418; Farrington v. Payne, 15 id. 432; Sears v. Grundy, 1 id. 514; Easton v. Coe, 2 id. 383; Sebring v. Wheedon, 8 id. 458; Beekman v. Wright, I id. 442; Annin v. Chase, 13 id. 462; Cross v. Moulton, 15 id. 469; Christian v. Paul, 16 How. 17; Day v. Davidson, 8 Week. Dig. 96; Brill v. Lord, 14 Johns. 341; Rose v. Stuyvesant, 8 id. 426; Ranney v. Gwinne, 3 E. D. S. 79; Weeks v. Lyon, 18 Barb. 530; Richardson v. Brown, 1 Cow. 255; Deland v. Richardson, 4 Den. 95; Lynsky v. Pendergrast, 2 E. D. Smith, 43; Aberhall v. Roach, 11 How, 95; Green v. Angell, 13 Johns. 469; Day v. Wilber, 2 Cai. 134; Wight McClave, 3 E. D. Smith, 316; Story v. Bishop, 4 id. 423; Redfield v. Florence, 2 id. 339; Fairbanks v. Corlies, I Abb. 152; Fink v. Hall, 8 Johns. 437; Parmalee v. Thompson, 7 Hill, 77. § 2966. Justice may impose conditions upon adjournment. Upon granting the defendant's application for an adjournment, where the trial has been once adjourned, or where the plaintiff is a non-resident of the county, the justice may, in his discretion, upon the plaintiff's application, direct that any witness on the part of the plaintiff, who is in attendance, be then examined under oath before the justice. Thereupon the testimony of the witness must be reduced to writing, certified by the justice, and retained by him; to be read upon the trial, with the same effect, and subject to the same objections, as if it was then given orally by the witness. Id., 8 70. § 2967. Adjournment when warrant to attach absent witness is issued.-Where, upon a trial, a warrant of attachment is issued to compel the attendance of a witness, who has failed to appear in obedience to a subpoena, the justice may, in his discretion, adjourn the trial, for such a time as he deems necessary for the return of the warrant, not exceding five days. New. See Board of Excise v. Sackrider, 35 N. Y. 154. $2968. Adjournment not to exceed ninety days. The trial of an action shall not be adjourned to a time beyond ninety days from the joinder of issue, without the consent of both parties, except in one of the following cases: 1. Where a venire has been duly issued, but a jury has not been procured, so that it is necessary to issue a new venire, or to summon one or more talesmen, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable the jury to be procured. 2. Where a jury has not been able to agree upon a verdict, and is discharged, the trial may be adjourned a sufficient time beyond the ninety days, to enable a new jury to be procured, as prescribed in title fifth of this chapter. 3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a recusant witness, as prescribed in title fifth of this chapter, an adjournment made thereupon, as prescribed by law, is not deemed a part of the ninety days. New in substance. See id., 278. ARTICLE SECOND. COMPELLING THE ATTENDANCE OF A WITNESS. SEC. 2969. When justice may issue subpoena. 2970. Subpoena; how served. 2971. Warrant of attachment against defaulting witness. 2972. Id.; how executed; fees thereupon. 2973. Id.; when witness is in adjoining county. 2974. Fine for refusing to attend, or to testify. 2975. Id.; how imposed. 2976. Minute of conviction. 2977. Execution thereupon. 2978. Money collected; how applied. 2979. Defaulting witness liable for damages. § 2969. When justice may issue subpoena. A justice of the peace may issue a subpoena, to compel a witness to attend, in the county where the justice resides, or in an adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action, pending before himself, or before another justice. The subpoena may require the witness, except as otherwise expressly prescribed by law, to bring with him any book or paper, relating to the merits of the action. But a justice shall not issue a subpoena to compel the attendance of a witness before another justice, unless the person applying there for proves, by his own oath, or the oath of another person, that an action is actually pending before the other justice. * See post, § 3135. J., 280 and 81. |