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Berthold v. Wallach

35 N.Y.S. 208 Court N.Y.C.P. Decision date 1895-09-04 English

Delivered by GIEGERICH, J.

Contents

Majority

p. 208
(14 Misc. Rep. 55.)
BERTHOLD v. WALLACH.
(Common Pleas of New York City and County, Special Term.
September 4, 1895.)

Headnote

Holidays—Courts—Notice op Motion.
Laws 1892, c. 681, § 41, declaring that holidays shall be considered as Sundays for all purposes relating to the transaction of business “in public offices,” does not have the effect of rendering such a day a dies non as respects courts, but a motion being returnable on such a day at chambers stands over, in the absence of a judge, till the next day.
Frederick or Fritz Berthold filed a mechanic’s lien against the property of Moses K. Wallach. The owner moves to compel the claimant to commence action, or, in default thereof, that the lien be vacated and canceled of record. Granted.
Dittenhoefer, Gerber & James, for the motion.

The notice of motion was made returnable at chambers upon the 2d day of September, 1895,«which was a legal holiday, being the first Monday of September, known as “Labor Day.” Laws 1892, c. 677, § 24. With regard to the transaction of business “in public ofiices” such a day is assimilated in nature to Sunday (Id. c. 681, § 41); but while the courts cannot sit for the purpose of hearing motions upon Sunday (Code Civ. Proc. § 6), and a notice returnable upon that day is void (Insurance Co. v. Hicks, 7 Abb. Prac. 204 ), yet it has been held that statutes similar to that above cited, as to “public offices,” do not have bearing upon the courts (People v. Supervisors of Oswego, 50 Hun, 105 , 3 N. Y. Supp, 751 ; People v. Kearney, 47 Hun, 129 , reversed upon another point, 110 N. Y. 188 , 17 N. E. 736 ). While it is the custom of the court to adjourn upon the days enumerated in the act of 1892 as holidays (chapter 677, § 24), yet the legal effect of a public holiday is a matter resting entirely upon the statute; and I am constrained .to hold that the first Monday of September is not a dies non with regard to the return of process, and that; in the absence of a judge at chambers, a motion, such as that before me, stands over, as of course, until the next day. Mathis v. Vail, 10 How. Prac. 458. Motion granted.

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