Slater v. Jackson — 55 N.Y.S. 581

Majority

p. 581

SLATER v. JACKSON.

(Supreme Court, Appellate Term.

January 23, 1899.)

Headnote

Holidays—Service of Process.

A summons may be legally served on the 4th day of July.

Appeal from municipal court, borough of Manhattan, Eighth district.

Action by Amelia Slater against Mary C. Jackson, as treasurer, etc. There was a judgment for defendant, and plaintiff appeals.

Reversed.

Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERIOH, JJ.

Emanuel I. S. Hart, for appellant.

T. F. Gibbons, for respondent.

The justice below rendered judgment in favor

of the defendant, dismissing the case, on the ground that the summons was served on the 4th day of July, which was a legal holiday; holding that the service of process on that day was illegal. In this he erred. Didsbury v. Van Tassell, 56 Hun, 423 , 10 N. Y. Supp. 32 . In that case the summons was served on Christmas day, and the service was sustained as valid. At page 426, 56 Hun, and page 33, 10 N. Y. Supp., the court says:

“It would have been easy to prohibit the commencement of actions and the transaction of legal business upon holidays, and make them Sundays for all purposes, but it was not done; and the issuance and service of legal process remains unrestricted, as it was anterior to this law, and holidays are yet juridical.”

A similar question arose, and was similarly decided, in the case of In re Bornemann, 6 App. Div. 524 , 39 N. Y. Supp. 686 , on the authority of the case first above cited. It follows that the judgment must be reversed.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.