Porter v. . Pierce, 120 N.Y. 217

Porter v. . Pierce

120 N.Y. 217 | NY | 1890

The premises in question were sold by the defendant Borthwick, as sheriff of the county of Cortland, upon two executions issued upon judgments held by the defendant *220 Pierce, as administrator, etc., of Thomas Galvin, deceased, against Mary Sullivan, and bid off by Pierce, as such administrator, on the 1st day of August, 1884. No redemption was made within the year, and on Saturday, the 31st day of October, 1885, at 12 o'clock noon, Esther K. Porter, as assignee of Oliver Porter of a judgment recovered on that day by him against Mary Sullivan, redeemed the premises from the sale by paying the sheriff the amount paid for them on such sale with interest, and presenting the requisite papers for such purpose to the sheriff, who delivered to her the certificate required by the statute. (Code, § 1469.) The next day was Sunday, and on Monday following, November second, at 11:15 A.M., the defendant Pierce, as such administrator, proceeded to redeem the premises upon a judgment recovered by him as such administrator against Mary Sullivan, November 19, 1884, and then took a certificate of redemption from the sheriff, who afterward made to him a deed pursuant to such redemption. The certificate made to Esther K. Porter was afterward assigned by her to the plaintiff, and he brought this action to set aside that deed and to require the defendant Borthwick to make to him a deed. And the ground upon which such relief is sought is, that the redemption by the defendant Pierce, was not made within the time, which by the statute he was permitted to make it. The statutory provision from which was derived the right to make that redemption is that, "A creditor, who might have redeemed within fifteen months after the sale, * * * may redeem from any other redeeming creditor, although the fifteen months have elapsed; provided that he thus redeems within twenty-four hours after the last previous redemption." (Code, § 1454.) This was not done by the defendant within the requisite time and his redemption was ineffectual if Sunday should have been included within the time which he was permitted to make it. That day, like any other, occupies time, and except so far as prohibited by the common law or the statute, transactions on that day, not in themselves immoral, are not unlawful or invalid. (Story v. Elliot, 8 Cow. 27; *221 Sayles v. Smith, 12 Wend. 57.) But for reasons founded in public policy, the maxim dies non juridicus is given a liberal construction and effect so as to embrace in it that which may be deemed within its purpose and meaning. (Field v. Park, 20 Johns. 140; Van Vechten v. Paddock, 12 id. 178.) It is now quite well established that the observance of the Sabbath day as such, is a right which may be enjoyed without molestation by transactions of a secular character. Hence Sunday cannot for the purpose of performing a contract be regarded as a day in law, and when it is due on Sunday, performance on Monday following is in time. (Avery v. Stewart, 2 Conn. 69; 7 Am. Dec. 240; Salter v. Burt, 20 Wend. 205; Howard v. Ives, 1 Hill, 263;Campbell v. I.L.A. Society, 4 Bosw. 299.) When the statute requires that something be done within a given time, it must be so done, and although the last day be Sunday, it must be embraced in the computation of the time. (Ex parte Dodge, 7 Cow. 147;People v. Luther, 1 Wend. 42.) This is not uniformly the rule applied when the time is less than a week. (Anonymous, 2 Hill, 375.) But, however that may be, the situation in the present case was peculiar; and although the transaction of the redemption made by the defendant may not come within the acts prohibited by law to be performed on Sunday, there was a difficulty in the way of the exercise of that right by him on that day, arising out of the statute which provides, that a redemption made by a creditor on or after the last day of the fifteen months, must be made at the sheriff's office. (Code, § 1455.) And it cannot then lawfully be made elsewhere. (Morss v. Purvis, 68 N.Y. 225.) The sheriff is required himself or by his undersheriff or deputy to be in attendance at the sheriff's office, and keep it open on that day and each day thereafter on which redemption can be made. But the sheriff is not required to have his office open on Sunday. (2 R.S. 285, § 55.) The defendant, therefore, had not the right to make the redemption on Sunday. The purpose of the statute was that a judgment creditor should have such right, and for its accomplishment, twenty-four hours after the making *222 of the next previous redemption. If the statute should be given the construction and effect to include Sunday within that time when the last day of the fifteen months falls on Sunday, the redemption made on the Saturday before might operate to defeat the right of redemption by another creditor, however diligent he might be in his attempt to exercise it. The effect would be the same if the the last day of the fifteen months was Saturday and a redemption made on that day. It might be made at the last moment of Saturday, and the twenty-four hours would expire with Sunday. In practical effect the lawful denial of the exercise of the right of redemption on Sunday, would be no different than the inhibition of it by law on that day. The statute is entitled to a construction which will permit its purpose to be effectuated. The legislative intent evidently was to permit within the time prescribed, any creditor entitled to do it, to effect redemption by way of protection of his right as such; and that he should have twenty-four hours for that purpose. It would, therefore, seem that to carry out such intention when Sunday intervened, it must be deemed dies non within the contemplation of the statute. And the statutes before referred to may be treated asin pari materia, and taken to provide for redemption within twenty-four hours of the day or days in which the sheriff is required to be in attendance at his office, to enable the creditor to exercise his right in that respect. Any other view might deny to the statute the apparent purpose of its makers. If these views are correct, the redemption by the defendant on Monday, the second day of November, was in due time and regularly made.

The judgment should be affirmed.

All concur, except FOLLETT, Ch. J., not sitting.

Judgment affirmed. *223