FOURTH DEPARTMENT, FEBRUARY TERM, 1897. [Vol. 14. attorney, and without right, the court had lost jurisdiction of the action. This objection was overruled, to which decision an exception was duly taken. Section 3226 of the Code of Civil Procedure provides that chapter 19, which regulates and defines the powers and jurisdiction of, and the proceedings in, courts of justices of the peace, shall, with the exception of titles 10 and 11 thereof, apply to the Municipal Court of the city of Rochester. And section 2960 of article 1, title 4 of such chapter reads as follows: "At the time of the return of a summons, or of the joinder of issue without process, the justice must, upon the application of the plaintiff, adjourn the trial of the action not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial." This section contains the only provision which permits an adjournment at the instance of the plaintiff, save where one is rendered necessary by an amendment of the defendant's pleading ($ 2944), or where a commission is issued for the examination of a witness (§ 2983). It is conceded that at the time issue was joined an adjournment was had to the seventeenth day of June, and it may be assumed that such adjourned day was, as is ordinarily the case, agreed upon by the parties. However this may be, the adjournment thus taken exhausted the plaintiff's right to a postponement of the trial, and the judge of the court had no power to grant a further adjournment at his instance, without the consent of the defendant's attorney. (Aberhall v. Roach, 11 How. Pr. 95; Redford v. Snow, 46 Hun, 370; Crisp v. Rice, 83 id. 465.) But it is insisted that, inasmuch as the twenty-sixth day of June was fixed upon in order to meet the convenience of both parties, at which time the defendant appeared and proceeded with the trial, she thereby waived her objection to the second adjournment. Upon the facts appearing in the record before us, we are unable to concur in this view of the case. It appears that the defendant's attorney not only strenuously insisted that the plaintiffs were not entitled to a further adjournment, but that he vigorously objected to such an adjournment App. Div.] FOURTH DEPARTMENT, FEBRUARY TERM, 1897. being granted, and the only legitimate inference which we think ought to be drawn from the statement contained in the return is, that when the court ruled against him upon this objection he simply fixed upon such a day as would best suit his convenience. Having done all that he could to prevent an unauthorized adjournment, he was not bound to abandon the case in order to protect his client's interests. (See Baird v. Helfer, 42 N. Y. Supp. 484.) This view of the situation is strengthened by the fact that before entering. upon the trial upon the adjourned day, the defendant's attorney again insisted that the case had been adjourned without authority, and that in granting such adjournment the court had lost jurisdiction of the case. We are clearly of the opinion that in granting this second adjournment the Municipal Court was deprived of further jurisdiction in the case, and that there is nothing in the record which fairly amounts to any waiver upon the part of the defendant of her right to raise this question. This being so, the judgment subsequently entered was unauthorized and void. (Stoutenburg v. Humphrey, 9 App. Div. 27.) And having reached this conclusion, it becomes. unnecessary to consider the other questions in the case. The judgments appealed from are, therefore, reversed, with costs. All concurred. Judgment of the County Court and of the Municipal Court of the city of Rochester reversed, with costs. ALFRED LYTH and Others, Appellants, v. EDWARD J. HINGSton, Respondent, Impleaded with Others. Bond by a city contractor to pay employees and materialmen — privity between the promisee and the party to be benefited is necessary — an extension of time discharges the surety. A bond executed to a city by a contractor, conditioned that the contractor shall pay his employees and materialmen, and providing that any one of them to whom the contractor shall be indebted may bring an action upon the bond for the recovery of the sum due him, in the same manner as if such person was a party named in the instrument, will not sustain a suit thereon by an employee or FOURTH DEPARTMENT, FEBRUARY TERM, 1897. [Vol. 14. materialman in the absence of a provision of the city charter giving that right. There must be not only an intent to give a right of action, but some privity between the promisee and the party to be benefited to sustain it. The fact that the city charter gives the common council general powers to make ordinances, not inconsistent with the laws of the State, for the good government of the city and the benefit of trade and commerce, and to make such other ordinances as may be necessary to carry into effect the power given to the common council by the charter, is not sufficient. Where such a bond obligates the contractor, as principal, to pay the price of all materials purchased by him when "the same shall become due," and a materialman, instead of enforcing the obligation as of that time, extends, without the consent of the sureties, the time of payment to the contractor by accepting his negotiable notes for the surrender, the liability of the sureties has been altered and the time extended, and the materialman cannot recover against the sureties. APPEAL by the plaintiffs, Alfred Lyth and others, from a judg ment of the Supreme Court in favor of the defendant, Edward J. Hingston, entered in the office of the clerk of the county of Erie on the 20th day of March, 1896, upon the decision of the court rendered after a trial at the Erie Circuit on the 29th day of March, 1895, before the court without a jury. Upon the 31st day of March, 1891, the defendant John MacGregor entered into a contract with the city of Buffalo to construct a sewer in Stanislaus street, in that city, for the sum of $979. Concurrently therewith, MacGregor, as principal, and his co-defendants, Hingston and Reading, as sureties, executed a bond in the penal sum of $490 to the city of Buffalo for the faithful performance of such contract, and at the same time MacGregor, as principal, and the other defendants, as sureties, also executed another bond to the city of Buffalo in the penal sum of $490, which contained the following provision, viz. : "The condition of this obligation is such that if the above-bounden John MacGregor, heirs, executors or administrators, or any of them, shall well and truly pay, or cause to be paid in full, the wages stipulated and agreed to be paid to each and every person employed by him to perform any labor or services by the said John MacGregor above named, or his agent or agents, in the construction of a 10, 12, 15 and 18-inch tile sewer on Stanislaus street * * * as specified in a certain contract made between the said John MacGregor and the city of Buffalo, hereunto annexed, as often as once in each App. Div.] FOURTH DEPARTMENT, FEBRUARY TERM, 1897. two weeks during the progress of said work, and shall pay, when the same shall become due, the price of all material provided or used in the performance of said work, pursuant to the provisions of a resolution of the common council of the city of Buffalo, adopted the 31st day of March, 1869, then this obligation shall cease, otherwise be and remain in full force and virtue. "And in case the said John MacGregor shall fail to pay each and every of the persons employed to perform labor or services aforesaid, or to whom anything shall be due for material provided or used in the performance of said work, as hereinabove provided, then each and every of said persons to whom the aforesaid John MacGregor shall be then indebted may bring an action on this instrument in his or her name, for the recovery of the amount of such indebtedness, and in the same manner as if such person was a party named in this instrument." After the execution of this second bond, the contractor commenced work upon the sewer in question, and the same was completed on or about the tenth day of June following. Between April 1 and May 15, 1891, the plaintiffs sold and delivered to MacGregor sewer pipe, tile and cement, which were used in the construction of such sewer and were of the value of $400.63. On September 22, 1891, the plaintiffs rendered a statement to MacGregor of his indebtedness for the materials furnished by them upon this and other contracts which he had with the city, which statement showed that there was then owing the plaintiffs a balance of $1,273.23. For this balance, the plaintiffs took MacGregor's note, which was given for three months and bore interest. This was renewed from time to time, but has never been paid in full, and this action is brought upon the second of the above-mentioned bonds to recover the sum of $400.63, the amount claimed to be due from MacGregor for materials furnished for the Stanislaus street sewer. Such additional facts as are material will be found in the opinion which follows. William L. Jones, for the appellants. Henry B. Loveland, for the respondent. ADAMS, J.: FOURTH DEPARTMENT, FEBRUARY TERM, 1897. [Vol. 14. The plaintiffs seek to maintain this action upon the theory that, although not parties to the bond upon which their action is founded, nor privy to its consideration, they may, nevertheless, avail themselves of the indemnity which it assumes to furnish to parties who supplied labor and materials used in the performance of a contract entered into by the principal obligor with the city of Buffalo. The case of Lawrence v. Fox (20 N. Y. 268) and other kindred cases of a later date are cited by the learned counsel for the plaintiffs, and it is claimed that they furnish ample authority to support the proposition thus stated. There are few reported cases which have been cited with more inaptitude than this oft-discussed and much-misconstrued case of Lawrence v. Fox, and whatever legal principle it may establish, it certainly is not, in our opinion, authority for the one here contended for, which is, in effect, that a third person, who is not a party to an obligation similar to the one in suit, may maintain an action thereon, in the absence of any liability due or to grow due upon such obligation, from the party to whom the promise was made. In the case of Townsend v. Rackham (143 N. Y. 516, 522) Judge PECKHAM, with his accustomed perspicuity and terseness, reviewed and analysed Lawrence v. For and other related cases; and in his opinion he takes occasion to say that in none of them is there an intimation of the doctrine sought to be applied to this case; but that, on the contrary, an action like the present one cannot ordinarily be maintained by a third party in the absence of some liability to him on the part of the promisee. (See, also, Carrier v. U. P. Co., 73 Hun, 287.) It must, therefore, be regarded as the settled law of this case that before the plaintiffs can avail themselves of any indemnity which the bond in suit assumes to afford they must show (1) an intent upon the part of the promisee to secure to them such benefit; and (2) some privity between the two, the promisce and the party benefited, and some obligation or duty owing from the former to the latter, which would give them a legal or equitable claim to the benefit of the promise. (Vrooman v. Turner, 69 N. Y. 280.) So far as the question of intent is concerned there is ample evidence in the record to show that one of the objects which the city |