Merwin v. Rogers

Pitshke, J.,

(concurring.) The justice sued herein had in the action in question eight days to decide any question of fact or Ifcw therein, after submission of the case. Consolidated Act, § 1384. The verification of the complaint is only a substitute for the giving of proofs; but the whole complaint, so before the justice for adjudication thereon, may, nevertheless, not amount to a cause of action, though all true; and hence the justice must have a reasonable time within the eight days to examine into that question, (which is one of law,) as well *ás to consider and examine into the sutBciéney of the verification.' The lapse of eight days will alone work a “discontinuance” of the case. That examination is necessarily the exercise of a judicial function. The justice has also power to adjourn the case to a later day than the return-day, for the purpose of enabling the defendant therein to plead. Consolidated Act, § 1346; also section 24, c. 793, Laws 1857, still in force. And he had otherwise discretionary authority to adjourn, for good grounds shown, not needful to be now referred to. Goff v. Vedder, 12 Civ. Proc. R. 358, 368. The said justice was not personally liable herein; nor would he be even for failure to render any judgment within the eight days. Evarts v. Kiehl, 102 N. Y. 296, 297, 6 N. E. Rep. 592. For the foregoing reasons, and those further stated in the opinion below of Chief Justice McAdam, and in that of Judge McGown on this appeal, the judgment must be affirmed, with costs.