#### Samuel E. Merwin, Frederick C. Lum and Robert A. Beers, Pl’ffs and App’lts, *v.*Andrew Jackson Rogers, Def’t and Resp’t.

*(New York Common Pleas,*

*General Term,*

*Filed June 27, 1889.)*

1. District court — Jurisdiction of justice as to adjournment— Duty of justice as to rendering judgment — Code Civ. Pro., §§ 3126, 3207.

Where a justice of a district court of the city of New York, upon the return day of the summons in an action, having the summons, verified complaint and due proof of service upon the defendant, before him, and no answer being filed by defendant, refused to give judgment for the plaintiff as required by sections 3126, 3207 of the Code, but adjourned the case for three days, and then entered judgment for the plaintiff-— the plaintiff commenced suit against the justice, setting up in his complaint the above facts, and alleging that by reason of the failure of the-justice to enter judgment for three days, other creditors in the interim,, had levied upon the property of the defendants in that action, and the-plaintiff has lost his debt. *Held*(1), that the justice did not exceed his. jurisdiction in adjourning the case for three days, without summarily entering judgment.

2. Same—Justice not riabde for error of judgment.

*Held,*that although a justice’s court is a court of limited jurisdiction, yet where a justice’s action is an error of judgment, it does not subject him to suit, but he is entitled to the protection afforded to a judge of a. court of record.

Appeal from a judgment of the general term of the city court, affirming a judgment of- the special term in favor of defendan t, upon demurrer to complaint.

*J. Homer Hildreth,*for pl’ffs and app’lts; *James C.. De La Mare,*for def’t and resp’t.

*497Daly, 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 *Mervjin et al.*(these plain tiffs) v. *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 plaintiff 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 counter-claims, 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 case 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; Auchmoody was sued by one Wilson, before Horton, who was a justice of the peace; the parties appeared on the day to which the case was adjourned, when the plaintiff applied for a further adjournment, which was granted, against the objection of the defendant. Judgment was rendered afterwards for the plaintiff, and execution was *498issued, 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 cause 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 nob a proper subject of inquiry as to its merits in another tribunal, and 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.

Van Hoesen, J., concurs.

1

 Affirming 15 N. Y. State Rep., 787.