Handshaw v. Arthur

PRATT, J. (dissenting).

It is conceded that on May 5th, when the parties failed to appear, the justice should have entered a judgment of nonsuit. Mistaking his duty, he adjourned the cause, on his own motion, to May 10th. Of that adjournment both parties had notice,—the plaintiff’s attorney giving notice to the defendant. On the adjourned day the plaintiff appeared, and, in the absence of defendant, proved his case. Judgment was entered, execution issued, property sold, and the justice is now sued in trespass* There was, •obvipusly, no intentional injustice; and we think it clear that the action complained of was judicial in its character, for which the justice is not responsible in damages. Lange v. Benedict, 73 N. Y. 12. The error was in failing to give a proper judgment. The remedy was by appeal. Judgment affirmed, with costs.