Connecticut National Bank v. Bayles

45 N.Y.S. 305 | N.Y. App. Div. | 1897

Goodrich, P. J.:

The only question arising in this case’ is whether the summons was served within twenty years, allowed by the Statute of Limitations.

On January 27, 1876, the plaintiff recovered a judgment, in the Supreme Court of Suffolk county, the docket being made at one o’clock p. m. of that day.

On January 27, 1896, the plaintiff obtained leave of the Supreme Court to bring this action on.the judgment, and on the same day placed the summons in the hands of the sheriff for service. The summons was thereafter. duly served on the defendant John R. Bayles, who set .up the- Statute of Limitations, and claimed that the time for commencing the action expired at midnight of January 26, 1896, and that hence the action was commenced one day too late.

Section 376 of the Code of Civil Procedure provides as follows: “ A final judgment or decree for a sum of money, * * * is presumed to he paid .and satisfied, after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it.”

The plaintiff became entitled to a mandate or execution on January 27, 1876. His time, therefore, to serve the summons expired twenty years from January 27, 1876, and we should have no question that the proper construction of the section of the Code above cited gave the plaintiff the whole of January 27, 1896, in which to serve the summons, except for the fact that the learned General Term of the first department has construed section 1375 of the Code, containing language which is analogous to the language of section 376, and its construction has been twice announced in that action, the second time on a reargument. We refer to the case of Aultman & Taylor Co. v. Syme (87 Hun, 295; 91 id. 632), in respect to the issuing of an execution which, by section 1375 of the Code, of Civil Procedure, must be issued “ within five years after the entry of the judgment.” The court held that where the judgment was entered on the 14th of November, 1889, and the execution was issued on the 14th of November, 1894, the execution was not issued within five years, and that the computation of the time necessarily commenced “ with the day on which the j udgment is entered, as there is no provision of law, where the computation is made by years, giving the party the benefit of the exclusion of the day upon which the act is done which sets the limitation running, and as the court in considering the question' of time takes no notice of the fraction of a day, that portion of the day which remains after the act is done must be treated as the first day.”

It is to be observed that the learned General Term of the first department made no reference to authorities, but an examination of the briefs used upon the argument and reargument discloses the fact that the respondent’s counsel cited three cases, Vandenburgh v. Van Rensselaer (6 Paige Ch. 147); People ex rel. Collier v. Sheriff of Broome (19 Wend. 87) and Young v. Whitcomb (46 Barb. 615). The case'of Vandenburgh v. Van Rensselaer exjwessly decided that where, by the rules and practice of the court, any subsequent proceeding in a cause is required to be had within a limited time., or within a certain number of days • from Or after any previous proceeding, as from the entry of an order or the service of a notice or other paper in the cause, the' whole of the day on which the order was entered, or the notice or other paper was served, is to be excluded in the. computation of time, so as to give the full time after that day. People ex rel. Collier v. Sheriff of Broome (supra), referred to-below, also decided that in respect to notices, or where ah act is to be done, the 'first day must be excluded. Young v. Whitcomb (supra) held that where a judgment in a. Justice’s Court was entered o'n-November fourteenth, and notice of appeal was served-on December fifth, the notice was not served in time, as section 353 of the Civil Code, which was then in force, required notice of appeal to be served within twenty days after judgment; but. the court distinctly recognized the principle that the-first day, the day upon which the judgment was entered-, must be excluded from -the calculation of the twenty days ; and. in view of the other authorities cited-below it; is difficult for us to understand how the learned General Term arrived -at its conclusion. • It is to be observed that an -appeal was taken to. the Court of Appeals from the judgment in 91 Hun, but the appeal was dismissed, no opinion being Written. (148 N. Y. 755.)

It is elementary doctrine that the common' law. can only be abrogated in a statute .by express terms or by necessary intendment. The common law of this State is clearly stated, in the following authorities and "wé cannot construe section 376 as stating or intending to state a different rule.

In Snyder v. Warren (2 Cow. 518) a mandamus was asked, coim-. manding the sheriff to convey to-the plaintiff a farm, under the following circumstances: On August 15,' 1822, the sheriff sold the farm of one Wagar to the plaintiff and executed the usual certificate - of-sale'; on November 15, 1823, Wagar confessed, a judgment and on the same day the judgment creditor applied to -the sheriff to redeem the farm, tendering the necessary money, and it. was claimed that the. tender was made one day too late, the. law allowing a subsequent judgment creditor fifteen . months within which he must redeem. The court held t,hat the creditor had the whole of. the fif-' teenth of November on'which to redeem.

In Ex parte Dean (2 Cow. 605) the court, referring to the rule of the English courts which was supposed to include a day on which an act is to be done as the day on which the time limited by statute commences to run, used the following language: “We have departed from the rule of construction adopted by the English courts, and hold that the same mode of computation is to be adopted upon statutes which prevails both in England and in this State as to notices; that is to say, one day is to be counted inclusive and the other exclusive.”

In the case of Homan v. Liswell (6 Cow. 659), where the execution was dated March seventh, returnable thirty days from date, it was held that the thirty days did not expire till after the sixth of April, and that where the computation of time in a statute is to be from an aet done, the first day should be excluded.

The case of Wilcox v. Wood (9 Wend. 346) arose upon the provision of a lease, and while the rules of construction which apply to a lease differ from those which apply to a statute, in the former it being a question of the- intention of the parties (Buchanan v. Whitman, 151 N. Y. 253), yet the opinion delivered by Chief Justice Savage clearly states the general rule as to the computation of time: “ In this State, in questions of the computation of time arising under our own rules, our statutes and upon promissory notes, we hold that the day of the date is excluded.”

Chief Justice Nelson, in The People ex rel. Collier v. Sheriff of Broome (19 Wend. 87), where a creditor’s redemption of lands, sold on July 18, 1835, was sought to be made on October 19,1836, said: “ The rule of computation of time in respect to notices, or where an act is to be done, in which we usually exclude the first and m,elude the last day, does not apply, as here there can be no fraction of the nineteenth day of October to be disregarded, as the whole of it necessarily comes within the three months, by the statute commencing on the expiration of the year, which is the last moment of the eighteenth day of October. This principle of construction I understand has been adopted in the court for the correction of errors in an analogous case.”

The case of Cornell v. Moulton (3 Den. 12) was commenced on February 14, 1845, upon a note which was due on February 14, 1839, and the question was whether the Statute of Limitations had run, the language of the statute being that such action should “ be commenced within six years next after the cause of action accrued.” Bronson, Ch. J., said : “ When the act is to be performed within a certain period from or after a particular event, the time is reckoned by entire days; and the only difficulty is in determining whether the day on which the particular event occurred shall be included or excluded from the computation. Eor example: If a party may appeal within ten days after judgment, and the judgment is rendered on the first day of the month, then, if the first day be included, the right of appeal will terminate with the tenth day of the month; but, if the- first day is excluded, the party will have the whole of the-eleventh day of the month to bring the' appeal. Where the question lias arisen under the rules of practice, it has been generally agreed that the first day should be excluded. But, in the construction of statutes, the decisions have not been uniform, either in England or in .this, country. Sometimes the first day has been included, and at other times it has been excluded. The case of Presbrey v. Williams (15 Mass. 193) is precisely in point for the defendant. The action was on a promissory note which the defendant had admitted to be due and unpaid on the first day of November, 1811. The action was commenced on the first day of November, 1811, and the court held that the Statute of Limitations had run and the plaintiff was a day too late. But that case is not in accordance with the decisions in this State. Our cases all go to establish one uniform rule, whether the question arises upon -the practice of the court or the construction of a statute, and the rule is to exclude the first day from the computation. The question 1ms not before arisen upon the Statute of Limitations, but it has' been fully settled in the decisions upon other statutes involving the same principle. * "x" "x" When the period allowed for doing an act is to be reckoned from the making of a contract or the happening of any other event, the day on which the event happened may be regarded as an entirety, or a point of time, and so be excluded from the computation.” This latter sentence was quoted with approval by the United States Supreme Court,. Mr. Justice Field writing the opinion, in Sheets v. Selden’s Lessee (69 U. S. 190).

The case of Presbrey v. Williams, referred to by Mr. Chief Justice Bronson in Cornell v. Moulton (supra), was overruled in Bigelow v. Willson (18 Mass. 485), although not mentioned in the opinion, having been cited by counsel in his argument; and the court distinctly held that, even in the matter of a lease, the words “from the day of the date” are words of exclusion ; and the right of redeeming mortgaged land, attached-on mesne process and afterwards sold on execution, being in question, time for redeeming which, by statute then in force, was “ within one year next after the time of executing, by the officer to the purchaser, the deed thereof,” the day on which the deed is executed is to be excluded.

In the later case of Bemis v. Leonard (118 Mass. 502) Mr. Chief Justice Gray refers to the case of Bigelow v. Willson and says, in reviewing the law upon the subject, that: “ In this Commonwealth, the general rule, as applied in a variety of circumstances and now well established, is that, in computing time from the date, or from the day of the date, or from a certain act or event, the day of the date is to be excluded, unless a different intention is manifested by the instrument or statute under which the question arises. * * * It was, indeed, decided in Presbrey v. Williams (15 Mass. 193) and assumed, though not necessary to the decision, in Little v. Blunt (9 Pick. 488, 491) that, in computing the period of limitation of actions, the'day on which the cause of action accrued should be included, because the action might have been brought on that day. But the decision rested on the authority of Norris v. Gawtry (Hob. 139; S. C. Mo. 878; 1 Brownl. 156) and can hardly stand with the later adjudications,” citing several cases.

In McGraw v. Walker (2 Hilt. 404) a similar question arose upon a note due October 4, 1852, upon which the action was commenced October 5, 1858, and the court held that the action was commenced within the limitation of the statute.

In Davison v. Budlong (40 Hun, 245) a summons was served on September 18, 1884, in an action upon a note which. fell due on September 18, 1878. This was held by the General Term of the fourth department to be within the statute.

In Morss v. Purvis et al. (68 N. Y. 225) a redemption by a creditor of lands sold upon execution on January 15, 1869, was held to be valid when made on April 16, 1870. '

We are referred by the appellant’s counsel to the Statutory Oonstraction Act (Chap. 677 of the- Laws of 1892, as amended by chap. 447 of the Laws of 1894), which was the- basis of the decision" of the learned General Term. of the first department. An examination of this statute leads us to a different conclusion from the one entertained by that court. Section 27. uses the following language: “ In computing any specified number of "days, weeks or months from a specified- event, the day upon which the event, happens is deemed the day from which the reckoning is made. • The-day from which, any specified number of days, weeks or months of-' time is reckoned shall be excluded in making the reckoning.”

Turning now to section 25, which defines a year, the following- ■ language is used-: “ In a statute, contract or public or private instrument, the "term year means twelve months, the term half year six months, and the term a quarter of a year three months.” Inasmuch .as the section is silent as to the day' from which the computation of' a year is to be made, we may say that, as the term year is defined tornean twelve months, it was the intention of the- Legislature to-adopt the same computation as to a year, L e., “ twelve months,” as-it meant to adopt in regard to any other period of months as used in section 27.

Under this long-current of authorities and under the terms of the Statutory Construction Act, we are constrained to differ with the-learned' General Term of the first department, and to hold, as-.we do,, that this action was not. commenced after the “ expiration of twenty years from the time when the party recovering it (the judgment)-was. first entitled -to a mandate to enforce i-t;” and that, as the. judgment was recovered on January 27> 1876, that day must be excluded from .the computation of the twenty years. In other words, that January-27, 1896-,-the day upon Which the summons was served, was the last day upon which this action could be commenced.

The judgment must be affirmed, with costs.

. All concurred.

Judgment affirmed, with- costs.