#### Samuel E. Merwin *et al.,*Appellants, *against*Andrew J. Rogers, Respondent.

(Decided June 27th, 1889.)

On the return, in a district court in the City of New York, of a summons with which a verified complaint had been served, the justice, although no answer was filed by defendant, refused to give judgment for plaintiffs as required by sections 3126 and 3207 of the Code of Civil Procedure, and, against plaintiffs’ objection, adjourned the cause. Pending the adjournment, other creditors of defendant procured and levied an attachment on his property, whereby plaintiffs lost their debt. *Held,*that the justice was not liable in damages to plaintiffs, as his action was not without color of authority or in excess of his jurisdiction, but merely error of judgment.

Appeal from a judgment of the General Term of the City-Court of New York affirming a judgment of that court sustaining a demurrer to a complaint.

The facts are stated in the opinion.

*J. Homer*Hildreth, for appellants.

*James De La Mare,*for respondent.

J. F. Daly, J.

It appears that the defendant,while sitting as a justice of a district court in the City of New York, that being an inferior court of limited jurisdiction, and having before him a' certain action of Merwin and others (these *335plaintiffs), against John A. Mapes, upon the return day of the summons therein, and having the summons, verified complaint, and due proof of service thereof upon the defendant before him, and no answer being filed by defendant, refused then and there to give judgment for the plaintiffs as required by the Code, sections 3126 and 3207, but adjourned the cause for three days, against the objection of the plaintiffs, and rendered judgment in their favor on the adjourned day and not before.

This action is brought to recover, as damages against the justice, the amount of plaintiffs’ said judgment; certain other creditors of said Mapes having, between the return day of the plaintiffs’ summons and the said adjourned day, procured and levied an attachment on the property of Mapes, whereby plaintiffs have suffered the loss of their debt. The plaintiffs claim that the justice exceeded his jurisdiction and acted without color of authority in adjourning their cause and disregarding the provisions of the sections in question, which declare that in an action upon contract, where a verified complaint is served with the summons, unless the defendant upon return' of the summons files a written and verified answer denying each allegation of the complaint, or one or more material allegations thereof,, or setting forth new matter constituting one or more defenses or counterclaims, the justice must render judgment for the plaintiff for the sum claimed in the complaint, with costs, without putting the plaintiff to any proof.

It is conceded that the justice had jurisdiction of the subject matter of the action, and also jurisdiction of the parties. This being the case, he did not act without color of authority, nor did he exceed his jurisdiction in adjourning the ease without summarily rendering judgment. The precise point was passed upon in *Horton*v. *Auchmoody*(7 Wend. 200), where it was held that the unauthorized adjournment of a cause of which the justice had jurisdiction was error of judgment and did not subject him to action, he being entitled to the protection afforded to a judge of a court of record. In that action Auehmoody was sued by one Wilson before Hor*336ton, who was a justice of the peace; the parties appeared on the day to which the case was adjourned, when the plaintiffs applied for a further adjournment, which was granted against the objection of the defendant; judgment was rendered after-wards for the plaintiffs, and execution was issued and the property of the defendant levied upon and sold thereunder. The defendant sued the justice as a trespasser in rendering judgment after he had lost jurisdiction by the unauthorized adjournment of the cause. The court held that under the authorities the justice had no authority to grant an adjournment, and that such unauthorized adjournment was an end of the suit, but that where a remedy is sought against a justice the principle of judicial irresponsibility should be interposed so far as it is applicable; that the justice had jurisdiction of the case, of the parties," and of the question of adjournment ; his error was an error of judgment; and that, while the judgment entered after such adjournment would be reversed upon appeal, such judgment was not a proper subject of inquiry as to its merits in another tribunal; that if the justice were liable it would have to be conceded that such liability arose from a judicial act, which is contrary to established principles ; that the judgment of the justice was not void but voidable only; that it was valid until reversed, though founded in error, and that the justice was not a trespasser.

Applying the principles of this decision to the case before us, it must be held that, the justice having the cause, the parties, and the question of adjournment before him, his decision as to such adjournment was a judicial act, for error in which he cannot be held liable (See also opinion of Folger, J., in *Lange*v. Benedict, 73 N. Y. 36, referring to *Striker*v. *Mott,*6 Wend. 465).

The judgment of the City Court should be affirmed, with costs.

Vah Hoesen, J., concurred.

Judgment affirmed, with costs.