If the adjournment had been on the motion of the justice, it could not have been beyond six days; (2 R. Laws, 371, § 87;) but it was made upon the application of the defendant and as the plaintiff wished time to give notice of his intention to examine the assignor as a witness. The 7th of June was fixed upon by the justice, *342without any objection on the part of the defendant. It was an adjournment by the consent of parties. The justice fixed the time, but neither party expressed any dissent, and the defendant attended on the adjourned day, by his counsel.
An adjournment to that day was regular, and the cause was not out of court, .for the justice bad a right to hold court upon that day, and proceed with the trial. (Matter of the Election Law, 7 Hill, 194.) The election directed to be held on the 7th of June, by the act of 1853, (Laws of 1853, p. 414,) was neither a general nor a special election, as defined by chapter 6 of part first of the Revised Statutes. The elections there referred to are elections for state, district, or county officers; hut this was an election to take the sense of the electors of the city and county of New York, in respect to certain proposed amendments to their charter.
On the 7th of June, the justice being absent, it was competent for the clerk to adjo.urn the cause to the following day. (2 R. S. 4th ed. 434, § 45; Laws 1840, p. 123.) The appellant’s attorney applied to the clerk, and was.informed by him that the cause would be adjourned until the next day. This was a sufficient adjournment on the part of the clerk; and the fact that the justice afterwards came in, and made an entry in his own handwriting of the adjournment of which the clerk had previously given notice, does not make it less ■ a regular adjournment by the clerk. The appellant, having been apprised by the clerk of the time to which the cause was adjourned, and the cause having been adjourned to that day; cannot urge this objection. He had notice, and could have attended and made his defence upon the following day. But he was evidently under the impi’ession that the cause was out of court—an election being held on that day, and that neither clerk or justice had any power to continue the process, in which opinion he was, I think, mistaken. He saw fit to rest the whole case upon this objection, instead of availing himself of the opportunity afforded him of making his defence upon the following day, if he had any, and he must now take the consequences. Judgment reversed.