Dayton v. McIntyre

5 How. Pr. 117

• Court: New York Supreme Court
• Decided: October 15, 1850
• Status: Published

Opinion

Paige, Justice.

There is a difference in the phraseology of the Revised Statutes and the Code in relation to the service of notice of trial. The Revised Statutes declare that notice of trial shall be served at least fourteen days before the first day pi the court, &c. (2 Rev. Stat. 410, § 7). The Code provides that either party at least ten days before the court may give notice of trial (Code, § 256). The Supreme Court in Small vs. Edrick (3 Wend. 137), decided that as the statute expressly excluded the first day of the court and the rules the day of service, there must be a notice of fourteen days exclusive of both these days. The rules were subsequently altered so as to allow the day of service of a notice of trial to be included in the computation.

The Code does not exclude the first day of the court from the computation. The notice of triál, by the Code, is to be given at least ten days before the court—not ten days before the first day of the court (10 Wend. 422). If, therefore, section 407 of the Code excludes from the computation of time, the day of the service of the notice of trial, the first day of the court may be included. Hence the notice of trial in this case, having been served on the 11th for the 21st of October, was served in time.