Fink v. Hall

Decided October 15, 1811

New York Supreme Court · decided 1811-10-15

IN error, on certiorari, from a justice’s court. Hall brought an action against Fink, for work, labour and services, done and performed by his son, for Fink, The defendant below pleaded the general issue, and offered to set off damages for a breach of a contract, sta- . , . ting, at the same time, that he had once sued Hall on this contract, in the Otsego common pleas, and that judgment had been rendered in favour of Hall.

Cited by 1 later decisions — most recently June 1835

1 state decisions

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Decided 1811-10-15

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Per Curiam.

¶1The judgment must be affirmed. Without deciding whether the justice ought to have granted the adjournment, (notwithstanding his opinion as to the admissibility of the evidence,) had the application been in season, yet the application was too late, after the jury was empannelled. The trial of the cause must be deemed to have commenced.

¶2It does not appear from the return, that the jury withdrew from the court; and if not, it was not necessary to swear a constable. In the case of Van Down v. Walker, (2 Caines, 373.) it appeared that the jury retired, and the court there say, it should appear that a constable was sworn to attend them.

¶3Judgment affirmed.