Heckman v. Stein

Giegerich, J. The action was tried in the Municipal Court, borough of Brooklyn, sixth district, on May 27, 1909, and upon its termination a verdict in favor of the plaintiff was directed. By the consent of the plaintiff’s attorneys, the trial justice granted a stay of execution and of proceedings for ten days. The tenth day fell on Sunday, June sixth, and on the following day, deeming that the stay had expired, the plaintiff’s attorneys filed a transcript of the [145] judgment in the office of the clerk of Hew York county, and issued an execution thereon. Section 20 of the General Construction Law (Laws of 1909, chap. 27) directs that Sunday must be excluded from the reckoning if it is the last day of any period from a certain day within which or after which or before which an act is authorized or required to be done. Under this provision the stay did not expire until Monday, June seventh, and the defendant had the whole of that day in which to pay the judgment (Gen. Const. Law, § 20), and hence the filing of the transcript of judgment and the issuing of the execution on said June seventh were premature. The plaintiff, however, argues that the Municipal Court had no power to grant a stay exceeding five days (Mun. Ct. Act, § 1, subd. 15), and, consequently, that the said provisions of the General Construction Law do not apply. Section 110 of said law, which the plaintiff relies upon, provides: “ Section 110. Application of chapter. This chapter is applicable to every statute unless its general object or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.” Conceding that the authority to grant a stay in the Municipal Court is purely statutory, nevertheless the consent of the attorneys for the plaintiff that a stay might be had for ten days had the effect, as I construe the situation, of extending such statutory power so as to cover a period of ten days instead of five days, without otherwise affecting such power or the rules of construction applicable to the period of time for which the stay was granted. The provisions of the General Construction Law are, therefore, applicable to this case and the filing of the transcript and the issuing of the execution on June seventh were unauthorized and should be set aside. Motion granted, with ten dollars costs.