Dorsey v. Pike — 11 N.Y. St. Rep. 227

Majority

p. 227

James Dorsey, Resp’t, v. Rosella E. R. Pike, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October, 1887.)

Headnote

1. Justice’s court—Appeal from judgment—Teme limited for—Code Civ. Pro., § 3046.

It is provided by Code Civil Procedure, § 3046, that where an appeal is taken from a judgment rendered in a justice’s court, such appeal must be taken within twenty days after the entry of the judgment in the justice’s ducket.

3. Same—In computing time for appeal, day of docketing judgment-must BE EXCLUDED.

The day on which the judgment was docketed must he excluded from the computation.

8. Same—Statutory act—Time limited for doing—Sunday when last DAY CANNOT BE EXCLUDED FROM COMPUTATION IN THE ABSENCE OF A STATUTE PERMITTING IT.

In computing the time within which an act must he done required by any statute, if the last day falls on Sunday, that day cannot be excluded and the act he done on the Monday following, unless there is some statute providing that the Sunday should be excluded from the computation.

4. Same—Courts not of record—Code Civ. Pro., § 788, applicable THERETO.

The reference made in Code Civil Procedure, § 788, to the preceding section, is not made for the purpose of defining and limiting the instances in which the rule of computation should he applied, hut for the purpose of making the rule applicable to actions and proceedings originating in courts not of record.

5. Same—Municipal court of Rochester—Code Civ. Pro., § 788, applicable THERETO.

Held, that the provision made in Code Civil Procedure § 788, that, in certain instances, where the last day for doing a statutory act falls on Sunday, that day should be excludeU in making the computation, applied to a':!s to he do e in actions or proceedings originating in the municipal court of Rochester.

6. Same—Appeal from judgment when seasonably taken.

Held, that where the twentieth day from the entry of a judgment in the docket of that court was Sunday, an appeal taken on the following Monday was seasonably taken.

Appeal from an order of the Monroe county court denying the appellant’s motion for an order dismissing the respondent’s appeal. Judgment was rendered in the municipal court of the city of Rochester in the appellant’s favor for $6.30 costs, and from the same the respondent appealed to the Monroe county court.

William M. Bates, for app’lt; Henry J. Sullivan, for resp’t.

—The motion to dismiss the appeal was made upon the sole ground that the same was not taken within

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twenty days after the entry of the judgment as required by section 3046 of the Code of Civil Procedure, which provides that such appeal “ must be taken within twenty days after the entry of the judgment in the justice’s docket.”

The judgment was rendered on the'22d day of November, 1886, and the twenty days after the entry of the judgment would expire on the 12th day of December, 1886, which day was Sunday. The notice of appeal was served on Monday following, the 13th day of December.

The question is, was such service timely? Without the aid of the provision found in section 788, it is clear that the notice of appeal was served too late, as the day on which the judgment was rendered is to be excluded from the computation. Ex parte Dodge, 7 Cow., 147 ; Marvin v. Marvin, 75 N. Y., 240 .

In computing the time in which an act must be done required by any statute, if the last day falls on Sunday, that day cannot be excluded and the act be done on the Monday following unless there is some statute providing that the Sunday should be excluded from the computation. In certain instances where the last day for doing a statutory act falls on Sunday, it is provided that in making the computation that day should be excluded. New Code, § 788.

We think this provision is applicable to this case, and that the notice of appeal was served in due time. All agree that the.day on which the judgment was entered is not to be counted.

The reference made in section 788 to the preceding section 787, is for the purpose of defining the actions and proceedings in which the rule must be applied. Courts not of record are included within'phrases of sections 787 and 788, and the rule of computation, we think, applies to acts to be done in actions or proceedings originating in the municipal court of Rochester. The language used in section 788, relative to the subject in question,, is very general and should be liberally construed; and we see no reason for giving it an interpretation limiting its operation to actions and proceedings in a court of record.

It was expressly held in Gribbon v. Freel ( 93 N. Y., 93 ), that where the last day for the service of summons issued out of the marine court for the city of New York in an action where an attachment had been granted, as required by section 638, fell on Sunday, it was timely to serve the summons on the Monday following. In support of the rule the court cited section 788, and relied upon its provisions, as establishing the rule for making the computation. The referance made in section 788, to the preceding section was not made for the purpose of defining and limiting the instances in which the rule of computation should be ap

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plied, but for the purpose of making the rule applicable to actions and proceedings originating in courts not of record.

We are cited by the appellants counsel, to the case of Marvin v. Marvin ( 75 N. Y. 242 ), as an authority in support of his position that the provisions of the section 788 do not apply to an action originating in a justice court. That case holds among other things that section 788 does not apply to acts where the law specifically prescribed a different rule of computation, than the one laid down in that section, and that in the case before it, a different rule had been prescribed by another section of the Code.

In that case the provisions of the section, relating to the mode of computation when the last day within which an act should be done, fell on Sunday, was brought before the court for its consideration. The order appealed from should be affirmed with $10 costs and disbursements.

All concur.