McGraw v. Walker

By the Court, Hilton, J. The only question presented for determination upon this appeal is, whether the action before the justice was commenced within the period limited by statute. Although the justice returns that the action was commenced [405] on October 2,1858, by a summons issued out of his court by the clerk thereof, yet that fact was not proved before him, nor does it appear from the evidence when the summons was actually delivered for service. District Court Act 1857, § 22. In the absence of proof showing when'the summons was issued or actually delivered for service, the day of its service, which was October 5, 1858, must be deemed by us the time when the action was commenced. Cornell v. Moulton, 3 Denio, 12. The action was upon a negotiable promissory note made by the defendant, dated July 2,1852, payable on the first of October then next, and, being entitled to days of grace,-the defendant had the whole of the three following days in which to pay it. He could not have been sued upon it until the 5th of October, and on that day, therefore, the cause of action accrued. Osborn v. Monsure, 3 Wend. 170; Edwards on Bills and Notes, 527; Hogan v. Cuyler, 8 Cowen, 203. The Code of Procedure has limited the time within which an action of this nature can be commenced, and has also declared the manner in which that time shall be computed. By Title II, (§ 74), civil actions can only be commenced within the periods in that title prescribed “ after the cause of action shall have accrued,” and by sections 89 and 91 of the same title, this period, in actions upon contracts, is prescribed to be “ within six years.” By § 407, the time within which an act is to be done, as in the Code provided, shall be computed by excluding the first day and including the last. The rule thus declared, in respect to the computation of time in a statute, had been previously settled by a number of decisions in this state, several of which are cited in Cornell v. Moulton, (supra). Applying it to the present case excludes the day on which the right of action accrued upon the note, namely, October 5,1852, and includes that on which the summons was served on the defendant, namely, October 5, 1858. The action having therefore been commenced within the period prescribed, it follows that the judgment of the justice was right, and should be affirmed. Judgment affirmed.