#### The First National Bank of Buchanan, Respondent, *v.*B. Eugene Smith, Appellant.

(Supreme Court, Appellate Term,

October, 1898.)

Municipal Court of New York — Jurisdiction not lost by total adjournments for more than ninety days, sought by both parties.

The provisions of the Consolidation Act (Laws of 1882, chap. 410, § 1364), applicable to the Municipal Court of the city of New York, and enacting that “An adjournment may be had either at the joining of issue, or at any subsequent time to which the cause may stand adjourned on application of either party'for a period longer than eight *710days, but not to exceed ninety days from the return of the summons ”, apply only to adjournments granted in spite of the opposition of the other party; and the contention that the Municipal Court has lost jurisdiction- of an action because the total of all adjournments, granted upon the application of either party, exceeds ninety days from the return of the summons, is untenable.

Appeal from a judgment of the Municipal Court, of the city of Rew York, borough of Manhattan, second district, in favor of the plaintiff. 1

Samuel S. Watters, for appellant.

Elisha K. Camp, for respondent.

Beekman, P. J.

The only question raised on this appeal is with respect to the adjournments of the cause granted by the court below, the appellant claiming that as the total number of such adjournments exceeded ninety days from the return of the summons, the court had lost jurisdiction to. proceed with the cause; LaWs 1882, chap. .410, § 1364. One of the difficulties with the appeal is that the' return- of the justice does. not show what' took place when each adjournment was had or on. whose motion it was granted. Much on the subject that is contained in the brief for the appellant cannot be found in the record, and must, therefore, be disregarded. It does appear that on the return day, after the answer had been interposed, an adjournment for over one month was granted upon a stipulation to that effect entered into between counsel. Thereafter, but on whose motion it does not appear, further adjournments were granted from time to time, until February 24th, on which day the trial was had. On that day, when the case was called, counsel for the appellant appeared and stated that he objected to proceeding further with the cause on the ground thát the justice had “ adjourned the case altogether for a longer period than ninety days from the return day of the summons.” The court overruled the objection on the ground that most of the adjournments had been had by consent of both parties.

It will be observed that the objection is not to any one or more adjournments granted, in violation of the statute, on the motion of the respondent and against the opposition of the appellant, but is placed solely on the ground that the aggregate time covered by such *711adjournments, whether granted on the application of the appellant or his opponent, exceeded the statutory limit of ninety days. The appellant is making a highly technical objection, and under such circumstances will be held rigidly to the exact limit of the objection made, especially as it does not appear that he has been in any way prejudiced by the continuance granted. Eis contention that the ninety-days’ limit specified in section 1364, above referred to, is not confined to a single adjournment but includes the aggregate of all that may have been granted is untenable. Section 1362 (chap. 410, Laws of 1882) provides that the trial of an action in these courts may be adjourned by the court or on the application of either party for a period not exceeding eight days at any one adjournment, unless the defendant is under arrest, to meet which case special provisions are made. It also declares that “ the trial may be adjourned for a longer period by consent or where neither party objects to the same.”

Section 1364 provides for cases where an adjournment is sought for a longer period than eight days by either party, and presupposes a situation where the other side is unwilling to consent thereto. In such a case the justice is authorized to grant the application for a period *“*not to exceed ninety days from the return of the summons ” upon certain terms not necessary to refer to here. Manifestly this maximum limit applies only to the period of the particular adjournment asked for. Any other construction would not only be against the plain language of the statute, but would also be unreasonable, for it would require the court to count against the moving party all of the adjournments which had been obtained by his opponent. The objection then as taken by the appellant cannot be sustained. As has been already said, the propriety of the various adjournments which were granted cannot be reviewed here in the absence of any evidence on the record of the circumstances under which they were respectively allowed, beyond the fact that most of them were granted on the consent of counsel for appellant, which, of course, to that extent, renders them unimpeachable.

Gildersleeve and Giegerich, JJ., concur.

Judgment affirmed, with costs.