Van Orden v. Simpson

153 N.Y.S. 134 | N.Y. App. Term. | 1915

Pendleton, J.

The action is for broker’s commission in obtaining a loan. The defense is a denial. At the trial plaintiff testified to the employment, and any question as to plaintiff’s having been employed to secure a loan is, I think, settled by defendant’s letter of January fourth, which distinctly speaks of a loan. The substantial question involved is whether the commission was earned. It fairly appears from the evidence that plaintiff procured a lender able and willing to make the loan and so notified the defendant, and by agreement the closing was fixed for Saturday, no hour being named; the plaintiff called at defendant’s office a little after twelve o’clock on Saturday and found that defendant had gone for the day; that he thereupon sent defendant a letter to his residence appointing. Monday at one p, m. as the time to close; that on Monday just before one o’clock he received a letter dated that day from defendant saying he had waited on Saturday until eleven-forty a. m. and then made other arrangements about the loan; that when plaintiff called on Saturday at defendant’s office he did not have the money with him, but the lender was waiting for the papers to be signed by defendant and if defendant had not gone away, but had been there, the money was ready; but the plaintiff at no time actually brought the lender into defendant’s presence.

The physical production of a lender is not necessary if, as matter of-fact, there is a lender able and willing to loan. The question is thus presented, whether, no hour being fixed, plaintiff had the whole of Saturday, or only, up to twelve o’clock, to close, Saturday being what is known as á half holiday. In Page v. Shainwald, 169 N. Y. 246, it was held that an option to be exercised on a legal holiday must be exercised on that day and a tender to be effectual must be then made, the court holding that, except for the purposes expressly specified in the statute, legal holidays, unlike Sundays, are just as other days.

Subequently to the above case of Page v. Shainwald, 169 N. Y. 246, decided in 1901, the legislature passed Laws of 1902, chapter 39, from which the General Construction Law, section 25, is derived. That provides that the payment of money or the performance of a condition required on a public holiday may be made on the next business • day. It does not provide that it cannot be done on the public holiday, but only may be made on the next day. Saturday half holidays are covered first by the General Construction Law, section 24, which defines half holiday as “ from noon to midnight of each Saturday which is not a holiday. ’ ’ Under the General Construction Law, section 20, a half holiday is not excluded from the days counted in computing the number of days. Similarly, in the Negotiable Instruments Law, section 5, as to the last day falling on a holiday, half holiday is not mentioned. The Negotiable Instruments Law, section 145, specially provides that instruments falling due on Saturday are to be presented for payment on the next succeeding business day, except that instruments payable on demand may at the option of the holder be presented before noon on Saturday half holidays. The Negotiable Instruments Law, section 243, provides that when Saturday is not otherwise a holiday presentment for acceptance may be made before noon.

It seems, therefore, that when Saturday is not otherwise a holiday, the day after the noon hour is in practically the same condition as holidays were at the time that Page v. Shainwald was decided, and that, consequently, not only may any act not within the Negotiable Instruments Law be legally done when required by a contract during Saturday afternoon, but in order to comply with the contract calling for the doing of an act on Saturday it must be done on that day and may be done during the afternoon. Plaintiff had, therefore, the whole day within which to close, and, having been prevented from so doing solely by defendant’s absence, is entitled to recover.

Judgment reversed and judgment directed for plaintiff for $150, with costs and appropriate costs in the court below.

Gut and Bijur, JJ., concur.

Judgment reversed, with costs.