Nichols v. Kelsey

2 N.Y. City Ct. Rep. 410

• Court: City of New York Municipal Court
• Decided: May 15, 1887
• Status: Published

Opinion

Execution of Writs on Holidays,

In Hortson v. Biggs (Marine Ct., MS opinion filed March 2,1877), a motion was made to set aside the service of an attachment because levied on a legal holiday, and the following decision was rendered.

McAdam, Ch. J.

The objection is that the service of the attachment was made on the 22d day of February—a legal holiday.

The answer to this is, that although Washington’s birthday is dies non juridieus,—that is, not a court day,-—it neither prevents nor excuses the service or execution of legal process on that day by ministerial officers, nor does it even prevent the granting of ex-parte orders by what is known in practice as a judge out of court. In Mackally’s case (9 Coke, 66), a distinction was taken between judicial and ministerial acts. The former, it was said, could not, though the latter might be performed even on Sunday, for otherwise perádventure they could never be executed (Citing Cro. Joc. 280, 496). This case was decided before the Statute of 29 Car. I., which made void the service of process upon Sunday. A similar statute was passed in this State (2 R. L. 194, published in 1813; 1 Edm. R. S. 628, § 69), making void the service upon the Sabbath of all writs, processes, warrants, orders, judgments, or decrees (except in certain specified cases), and subjecting the officer violating its provisions to an action at the suit of the party aggrieved. So the service of process upon an elector on an election day, in any city or town where he is entitled to vote, is prohibited by statute (1 Edm. R. 8. 116, $4); but in the absence of any statutory restrictions, the service of process upon any day will be legal.

There is no statute in this State prohibiting the service of process upon what is strictly known as a legal holiday, and the service and execution thereof on that day are therefore legal.

Motion denied.