Reynolds v. Palen , 20 Abb. N. Cas. 11 ( 1887 )

Btjmsey, J.

The fortieth day after service by mail of the notice of retainer was Saturday, June 11, 1887.

That day, from 12 A. M. to 12 M., was a secular day; after that time, it was a half-holiday.^* The plaintiff had, however, the whole, of the Saturday to serve his complaint. The last part of it being a holiday, he was not required to act during that part of it. Did this fact entitle him to exclude it in his computation ? I am inclined to think it did, within the rule laid down in Phelan v. Douglass,^* (11 How. Pr. 193). This being so, service of the order extending the time on the 13th was sufficient, and the plaintiff was not irregular in his practice.

The motion, so far as it is based upon an irregularity, should be denied.

The papers are not sufficient to open the default as a matter of favor, because a copy of the proposed answer is not served with the motion papers (Powers v. Trenor, 3 Hun, 3; Nelson v. McCormick, 3 Monthly L. Bull.).

It must be denied for that reason, but with leave to renew (Gulliver v. Newark Fire Ins. Co., 3 Monthly L. Bull. 52).

Motion to set aside judgment denied, with $10 costs, without prejudice to amotion by defendants to open default, and allow them to defend on proper papers.

* L. 1887, c. 289, amending L. 1875, c. 27, by providing (§ 1) that,

among other days named, “ every Saturday from twelve o’clock at noon until twelve o’clock at midnight, which is hereby designated a half-holiday . . . shall, for all purposes whatever as regards the presenting for payment or acceptance, 'and of the protesting and giving notice of the dishonor of bills of exchange, bank checks and promissory notes, made after the passage of this act, be treated and considered as the first day of the week commonly called Sunday, and as public holidays or half-holidays. . . . And provided, further, that in construing this section, every Saturday, unless a whole holiday as aforesaid, shall, until twelve o’clock noon, be deemed a secular or business day. And the days and half days aforesaid shall be considered as the first day of the week, commonly called Sunday, and as public holidays or half-holidays, for all purposes whatsoever as regards the transaction of business in the public offices of this State or counties of this State. On all, other days, or half days, excepting Sundays, such offices shall be kept open for the transaction of business.”

Code Civ. Pro. § 788, provides that, in computing time within which an act is to be done, including service of pleadings, “ if the last day is Sunday or a public holiday, it must be excluded.”

* The rule laid down in this case for computing time, is that whenever the whole day, and every moment of it, can be counted, then it should be; whenever, if counted, the party would, in fact, have but a. fractional part of it, then it should not be counted. The day of the service of a pleading should be excluded in the computation of time, because it is fractional— the party should have the whole number of full and entire days given him for that purpose. Phelan v. Douglass, 11 How. Pr. 193.

As to computation of time, see 1 Abbott’s New Practice, p. 83.