| N.Y. Sup. Ct. | May 15, 1833
By the Court,
In relation to the time of service of process and notices, the law does not regard fractions of a day. For the purpose of ascertaining the priority of liens upon real estate, the true time of docketing a judgment or recording a mortgage will be inquired into. So, for the purpose of ascertaining the conflicting claims of creditors upon personal property, the true time of delivering an execution to a sheriff, where several have been delivered on the same day* will be inquired into. But in the service of process, or of notices or pleadings in a cause, fractions of a day are not regarded. The service of the summons in this case, for the purpose of a day in the computation of time, was equally well served in the afternoon as in the morning. Our rule is well settled, that when days are mentioned in the statutes or our own rules, they are to be reckoned one exclusive and one inclusive. Thus a notice of argument is a notice of eight days. If the term commences on the ninth day of the month, the service must be on the first. If you include in the computation the day of service, you will have eight days, excluding the first day of term; if you exclude the day of service, you include the first day of term. So, when six days service of a summons are required, and it is returnable on the eighth, the service on the second is good. This rule of construction is said by the defendant’s counsel to be inconsistent with the decision in Small v. Edrick, 5 Wendell, 137; but it will be seen the phraseology of the two statutes under which the questions arise is different; the one requires the summons to be served at least six days before the time of appearance; the other requires no
Upon the merits, the facts proven were, that the defendant had on two occasions passed the gate without paying his toll; the first time was in the day time; the defendant stopped under a shed with his waggon after passing the gate, and came into the toll house; he did not pay the toll, nor was he asked for it. The second time was in a stormy night, he was asked for the toll after he had passed, the gate being open ; his answer was, that his son who was behind would pay it; the gate keeper went into the house, and the son, who was to have paid, passed unobserved, and neither paid his own toll nor his father’s, but would have paid it, had the gate keeper been at his post to receive it. On this evidence, the justices determined that the defendant was guilty of fraudulently passing the gate. The common pleas reversed the judgment. What part of the justices’ proceedings were adjudged erroneous by the common pleas does not appear by the record. I have endeavored to show that they decided correctly as to the time of service of the summons. It is said by the plaintiffs’ counsel, that the plea in abatement having been decided in favor of the plaintiffs, and the issue upon it being an issue of fact, they were entitled to judgment. To this it is answered, and I think conclusively, that the plaintiffs having given evidence upon the merits, they are now too late to complain of that erroneous decision. In Haight v. Holly, 3 Wendell, 263, the rule is correctly laid down by Mr. Justice Marcy, that when judgment is given for the plaintiff on a demurrer to a plea in abatement, the judgment is respondeos ouster; but when on an issue of fact, judgment is final. But no such question was raised before the justices’ court, their attention was not called to the point; both parties went into the merits apparently by consent ; it is now too late to derive any benefit from an error
The common pleas, it is presumed, reversed the judgment of the justices’ court upon the merits. They had a right to do so. The statute declares, that “ The judges of such court of common pleas shall proceed and give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits; and may affirm or reverse the judgment in whole or in part, and mayissue execution as upon other judgments rendered before them.”
When a certiorari laid directly to this court, a similar power was given, as follows: “That in all cases of judgment removed by certiorari, the supreme court shall proceed and give judgment according as the very right of the case shall appear, without regarding any imperfection, omission or defect in the proceedings before the court below in mere matters of form. Under this power this court formerly reversed the judgments of justices, as well for errors of law as errors of fact. The courts of common pleas have now the same power; and in the case now under consideration, the common pleas reversed the judgment of the justices’ court probably on the ground that the facts proved were neither evidence of force or fraud in passing the gate. If such was the ground of their decision, this court has no power to review it. Whether the defendant was guilty of force or fraud was a question of fact not to be reviewed on writ of error. As the record shews no error in the common pleas on any question of law, and as we have no right to inquire into the correctness of their decisions on questions of fact, the judgment must be affirmed. Had we the power, the judgment would not be reversed, as the court decided correctly. »
Judgment affirmed.