Baker v. Spector

• Decision Date: 03 March 1927
• Docket Number: 178-1926
• Parties: Baker, Appellant, v. Spector et al
• Court: Pennsylvania Superior Court

90 Pa.Super. 163

Baker, Appellant, v. Spector et al

No. 178-1926

Superior Court of Pennsylvania

March 3, 1927

Argued October 27, 1926

Appeal by plaintiff from judgment of C. P. No. 1, Philadelphia County-1924, No. 7398, in the case of Sara Baker v. Harry Spector, owner, Samuel C. Cohen, Agent, Edward E. Abrams Constable.

Trespass to recover damages for unlawful seizure of goods under a landlord's warrant. Before Bartlett, J.

The facts are stated in the opinion of the Superior Court.

The court directed a verdict in favor of the defendants. Plaintiff appealed.

Error assigned was the directed verdict.

Simon Garlic for appellant.

Thomas C. Egan, and with him Wolf, Block, Schorr & Solis-Cohen for appellees.

Before Porter, P. J. Henderson, Trexler, Linn, Gawthrop and Cunningham, JJ.

OPINION

TREXLER J.

Spector through his agent, leased certain premises to Swinton. The rent due January 1, 1924, was not paid. On January 2, 1924, a landlord warrant was issued and the goods of Sara Baker were seized and removed. She then brought this action in trespass. The basis of her claim is that as January 1st was a holiday, the tenant was not required to pay the rent on that day but had the whole of January 2nd in which to pay it. As the rent was not due, the landlord had no right to distrain and was a trespasser ab initio. She avers that the remedy provided by an action of replevin under the Act of March 21, 1772, 1 Sm. L. 370, Sec. 1, does not apply where no rent was due. This is the sum and substance of her contention. Counsel frankly admits " if rent was due at the time of the levy, then we must agree that the trial judge was clearly right and the plaintiff's only remedy was by a writ of replevin."

January 1st, as well as all other designated holidays are only such in relation to the presentation and payment of instruments such as bills, checks, notes, etc. The Act of February 16, 1911, P. L. 3, Sec. 4, provides " That all the days and half days herein designated as legal holidays shall be regarded as secular or business days, for all other purposes than those mentioned in this act." " The legal holidays created by the Act of June 23, 1897, P. L. 188, and February 16, 1911, P. L. 3, are permissive only and the operative force of the statutes is limited to transactions regarding payments, protests, etc., of commercial paper: Robeson v. Pels, 202 Pa. 399, 51 A. 1028." Dawson v. Vrostyak, 71...