Berthold v. Wallach

35 N.Y.S. 208, 14 Misc. 55, 69 N.Y. St. Rep. 563

Opinion

GIEGERICH, J.

The notice of motion was made returnable at chambers upon the 2d day of September, 1895,«which was a legal holiday, being the first Monday of September, known as “Labor Day.” Laws 1892, c. 677, § 24. With regard to the transaction of business “in public ofiices” such a day is assimilated in nature to Sunday (Id. c. 681, § 41); but while the courts cannot sit for the purpose of hearing motions upon Sunday (Code Civ. Proc. § 6), and a notice returnable upon that day is void (Insurance Co. v. Hicks, 7 Abb. Prac. 204), yet it has been held that statutes similar to that above cited, as to “public offices,” do not have bearing upon the courts (People v. Supervisors of Oswego, 50 Hun, 105, 3 N. Y. Supp, 751; People v. Kearney, 47 Hun, 129, reversed upon another point, 110 N. Y. 188, 17 N. E. 736). While it is the custom of the court to adjourn upon the days enumerated in the act of 1892 as holidays (chapter 677, § 24), yet the legal effect of a public holiday is a matter resting entirely upon the statute; and I am constrained .to hold that the first Monday of September is not a dies non with regard to the return of process, and that; in the absence of a judge at chambers, a motion, such as that before me, stands over, as of course, until the next day. Mathis v. Vail, 10 How. Prac. 458. Motion granted.