Porter v. Pierce

• Decision Date: 15 April 1890
• Citation: 24 N.E. 281,120 N.Y. 217
• Parties: PORTER v. PIERCE et al.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 217

24 N.E. 281

PORTER

v.PIERCE et al.

Court of Appeals of New York,

Second Division.

April 15, 1890.

Appeal from supreme court, general term, fourth department.

Action by Oliver Porter against Franklin Pierce and Harlow C. Borthwick. Plaintiff appeals from a judgment affirming a judgment entered on the decision of the special term dismissing the complaint.

O. U. Kellogg, for appellant.

Pierce & Stone, for respondents.

BRADLEY, J.

The premises in question were sold by the defendant Borth wick, as sheriff of the county of Cortland, upon two executions issued upon judgments held by the defendantPierce 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 premisses from the sale by paying the sheriff the amount paid for them on such sale, with interest, and by 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 2d,) 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 after wards made to him a deed pursuant to such redemption. The certificate made to Esther K. Porter was afterwards 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 in 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.’ Id. § 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 in 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;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 Johns. 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; Salter v. Burt, 20 Wend. 205;Howard v. Ives, 1 Hill, 263; Campbell v. Assurance Soc., 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...