187 A.D. 662 | N.Y. App. Div. | 1919
The action was to recover damages for the wrongful discharge of the plaintiff under an oral agreement of employment for a year. The evidence of the plaintiff, which was believed by the jury, was briefly as follows: The plaintiff was employed as a pattern maker on Monday, September 10, 1917, on trial for one week. On the following Saturday, the fifteenth, he was employed for another week on trial. On the morning of the twenty-second the secretary and treasurer of the defendant who had employed the plaintiff during the trial periods, said to him: “ I want a man for the whole year, you will have the whole year a job with me; you go ahead.” After this conversation the plaintiff continued to work for the defendant until he was discharged on the 27th day of March, 1918. The defendant set up as a defense the Statute of Frauds. Upon the trial the defendant’s counsel took exception
When construing section 31, subdivision 1, of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45) in computing the period of time within which the contract must be performed, recourse must be had to the General Construction Law (Consol. Laws, chap. 22 [Laws of 1909, chap. 27], § 110), section 20 of which prior to the amendment of 1910 read: “ Day, computation. A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. Sunday or a public holiday, other than a half holiday, must be excluded from the reckoning if it is the last day of any such period, or if it is an intervening day of any such period of two days. 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.” In construing section 27 of the'Statutory Construction Law (Gen. Laws, chap. 1 [Laws of 1892, chap. 677], as amd. by Laws of 1894, chap. 447), which was the predecessor of section 20‘of the General Construction Law, the Court of Appeals said: “ It specifically declares that ‘ the day from which any specified number of days, weeks or months is reckoned shall be excluded in making the reckoning.’ The statute makes no provision for computing periods of years. It is urged for the appellant that we may supply by
The time within which the contract in this action was to be performed should be reckoned, therefore, from Sunday, September 23, 1917, the day following the day on which it was made, and the period would expire on Sunday, September 22, 1918, which is within one year from the making thereof. The defense of the Statute of Frauds was not available to the defendant, and the request to charge was properly refused.
The determination of the Appellate Term should be affirmed, with costs.
Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concurred.
Determination affirmed, with costs.