ninety-days clause in § 74 is contained in § 2968, post. Held, in the superior court of Buffalo, that a defendant is entitled to an adjournment, on the return day of the summons, without oath and without security, unless the plaintiff requires them. Humburch v. Hubbell, reported in 19 Alb. L. J., 399.] ART. 1. taking § 2962. The undertaking prescribed in the last section must be Id.; underexecuted by one or more sureties, approved by the justice; and thereupon. must be to the effect that, if the plaintiff recovers judgment in the action, and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of any part of his property, liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned wholly or partly unsatisfied; the sureties will, upon demand, pay to the plaintiff the sum due upon the judgment. [L. 1831, ch. 300, § 40 (3 R. S., 5th ed., 464; 4 Edm., 474), amended by substituting an undertaking for a bond.] Undertaking to pro cure dis charge of from § 2963. Where the defendant has been arrested, the trial must be adjourned upon his application, upon the same terms, and in the same manner, as where he has not been arrested; except that the defendant undertaking prescribed in the last section need not be given. A de- custody. fendant, who procures such an adjournment, must continue, during the time of adjournment, in the custody of the constable: unless he gives an undertaking to the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the plaintiff recovers judgment in the action; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, that the defendant cannot be found; the sureties will pay to the plaintiff the amount due upon the judg ment. If such an undertaking is given, the defendant must be discharged from custody. [Sections 71 and 77, and part of § 76 of the R. S., with like amendments. The first sentence takes in the remainder of the provisions revised in the two preceding sections.] TITLE 4. When de fendant to be discharged. Subsequent adjourn ments. Justice may im pose conditions upon adjourn ment. Adjourn § 2964. If the trial of an action, in which the defendant has been arrested, is adjourned with the consent of both parties, or upon the application of the plaintiff, the defendant must be discharged from custody. [Id., § 72, first clause. The remainder of the section is provided for in § 2902, ante.] § 2965. The justice must, upon the application of the defendant, grant a second or subsequent adjournment of the trial of the action, upon the defendant's giving security, if required, as prescribed in the foregoing provisions of this article, where he applies for a first adjournment; and upon his proving, by his own oath or otherwise, to the satisfaction of the justice, that he cannot safely proceed to trial for want of some material testimony or witness; and that he has used due diligence to obtain the testimony or witness. But if the defendant has given an undertaking upon a former adjournment, a new undertaking need not be given, unless it is required by the justice, or by the sureties in the former undertaking. [Id., § 75 and the last clause of § 76, amended to conform to the statute revised in § 2962, ante.] § 2966. Upon granting the defendant's application for an adjournment, where the trial has been once adjourned, or where the plaintiff is a non-resident of the county, the justice may, in his discretion, upon the plaintiff's application, direct that any witness on the part of the plaintiff, who is in attendance, be then examined under oath before the justice. Thereupon the testimony of the witness must be reduced to writing, certified by the justice, and retained by him; to be read upon the trial, with the same effect, and subject to the same objections, as if it was then given orally by the witness. [Id., § 70, subd. 2, last clause, amended by defining the effect of taking the testimony. The amendments require the examination of the witness, in the discretion of the justice; and enlarge the provisions of the original, so as to embrace all kinds of actions, and an application for a second adjournment.] § 2967. Where, upon a trial, a warrant of attachment is issued when war- to compel the attendance of a witness, who has failed to appear in ment rant to at tach ab- obedience to a subpoena, the justice may, in his discretion, adjourn sent wit ness is the trial, for such a time as he deems necessary for the return of the warrant, not exceeding five days. [New. It was very doubtful, under the former statute, whether a justice had power to adjourn a cause, to allow time, for the return of an attachment; although there was no doubt, that he could "hold the cause open for a reasonable time for that purpose. See Board of Excise v. Sackrider, 35 N. Y., 154. There are many cases, where it is more convenient to adjourn to a specified time; and accordingly this section expressly empowers the justice so to do.] ART. 2. ment not § 2968. The trial of an action shall not be adjourned to a time Adjournbeyond ninety days from the joinder of issue, without the consent to exceed of both parties, except in one of the following cases: 1. Where a venire has been duly issued, but a jury has not been procured, so that it is necessary to issue a new venire, or to summon one or more talesmen, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable the jury to be procured. 2. Where a jury has not been able to agree upon a verdict, and is discharged, the trial may be adjourned a sufficient time beyond the ninety days, to enable a new jury to be procured, as prescribed in title fifth of this chapter. 3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a recusant witness, as prescribed in title fifth of this chapter, an adjournment made thereupon, as prescribed by law, is not deemed a part of the ninety days. [Id., the last four words of § 74 and § 78, amended by adding the three subdivisions. This amendment seems to be necessary, in order to avoid a clashing of contradictory statutory provisions. See § 2967, ante, and §§ 2996, 2997 and 3001-3003, post.] ARTICLE SECOND. COMPELLING THE ATTENDANCE OF A WITNESS. SEC. 2969. When justice may issue subpoena. 2970. Subpœna; how served. 2971. Warrant of attachment against defaulting witness. 2972. Id.; how executed; fees thereupon. 2973. Id.; when witness is in adjoining county. 2974. Fine for refusing to attend, or to testify. 2975. Id.; how imposed, ninety days. TITLE 4. When de fendant to be discharged. Subsequent adjourn ments. Justice may im ditions upon adjourn ment. § 2964. If the trial of an action, in which the defendant has been arrested, is adjourned with the consent of both parties, or upon the application of the plaintiff, the defendant must be discharged from custody. [Id., § 72, first clause. The remainder of the section is provided for in § 2902, ante.] § 2965. The justice must, upon the application of the defendant, grant a second or subsequent adjournment of the trial of the action, upon the defendant's giving security, if required, as prescribed in the foregoing provisions of this article, where he applies for a first adjournment; and upon his proving, by his own oath or otherwise, to the satisfaction of the justice, that he cannot safely proceed to trial for want of some material testimony or witness; and that he has used due diligence to obtain the testimony or witness. But if the defendant has given an undertaking upon a former adjournment, a new undertaking need not be given, unless it is required by the justice, or by the sureties in the former undertaking. [Id., § 75 and the last clause of § 76, amended to conform to the statute revised in § 2962, ante.] § 2966. Upon granting the defendant's application for an adpose con- journment, where the trial has been once adjourned, or where the plaintiff is a non-resident of the county, the justice may, in his discretion, upon the plaintiff's application, direct that any witness on the part of the plaintiff, who is in attendance, be then examined under oath before the justice. Thereupon the testimony of the witness must be reduced to writing, certified by the justice, and retained by him; to be read upon the trial, with the same effect, and subject to the same objections, as if it was then given orally by the witness. Adjournment [Id., § 70, subd. 2, last clause, amended by defining the effect of taking the testimony. The amendments require the examination of the witness, in the discretion of the justice; and enlarge the provisions of the original, so as to embrace all kinds of actions, and an application for a second adjournment.] § 2967. Where, upon a trial, a warrant of attachment is issued when war- to compel the attendance of a witness, who has failed to appear in rant to at tach ab- obedience to a subpoena, the justice may, in his discretion, adjourn sent wit ness is the trial, for such a time as he deems necessary for the return of the warrant, not exceeding five days. [New. It was very doubtful, under the former statute, whether a justice had power to adjourn a cause, to allow time, for the return of an attachment; although there was no doubt, that he could “hold the cause open for a reasonable time for that purpose. See Board of Excise v. Sackrider, 35 N. Y., 154. There are many cases, where it is more convenient to adjourn to a specified time; and accordingly this section expressly empowers the justice so to do.] ART. 2. ment not § 2968. The trial of an action shall not be adjourned to a time Adjournbeyond ninety days from the joinder of issue, without the consent to exceed of both parties, except in one of the following cases: 1. Where a venire has been duly issued, but a jury has not been procured, so that it is necessary to issue a new venire, or to summon one or more talesmen, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable the jury to be procured. 2. Where a jury has not been able to agree upon a verdict, and is discharged, the trial may be adjourned a sufficient time beyond the ninety days, to enable a new jury to be procured, as prescribed in title fifth of this chapter. 3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a recusant witness, as prescribed in title fifth of this chapter, an adjournment made thereupon, as prescribed by law, is not deemed a part of the ninety days. [Id., the last four words of § 74 and § 78, amended by adding the three subdivisions. This amendment seems to be necessary, in order to avoid a clashing of contradictory statutory provisions. See § 2967, ante, and §§ 2996, 2997 and 3001-3003, post.] ARTICLE SECOND. COMPELLING THE ATTENDANCE OF A WITNESS SEC. 2969. When justice may issue subpoena. 2970. Subpœna; how served. 2971. Warrant of attachment against defaulting witness. 2972. Id.; how executed; fees thereupon. 2973. Id.; when witness is in adjoining county. 2974. Fine for refusing to attend, or to testify. 2975. Id.; how imposed, ninety days. |