Aultman & Taylor Co. v. Syme , 98 N.Y. Sup. Ct. 632 ( 1895 )

PER CURIAM.

It is claimed upon the part of the appellant that the motion to set aside the orders for examination in this case should have been granted, because the judgment in the action was entered on the 14th of November, 1889, and the execution, which formed the foundation of those orders, was issued on the 14th of November, 1894, and therefore not issued within five years after the entry of judgment; and the question to be determined is whether, in the calculation of time, as prescribed by law, the first day is to be included in the computation or not. It seems to us, upon an examination of the statutes in respect to the computation of time, that a different rule prevails in computing any specified number of days, weeks, or months from a specified event, from that which obtains in the computation of any specified number of years from a specified event. By the provisions of the statutes, the day from which any specified number of days, weeks, or months of time is reckoned shall be excluded in making the reckoning. Laws 1894, c. 447, § 27. But the section relating to computation of time by the year contains no such provision. Laws 1892, c. 677, § 25. In order that the day upon which happens the event from which the computation is to take place should be excluded, it seems to have been thought necessary to so provide by legislation, which would not have been the case had this been the general rule in respect thereto. The computation of time, in order to determine whether an execution has been issued within five years after the entry of judgment, must, therefore, necessarily commence with the day on which the judgment is entered, as there is no provision of law, where the computation is made by years,- giving the party the benefit of the exclusion of the day upon which the act is done which sets the limitation running; 1 and as the court, in considering the question of time, takes no notice of the fraction of a day, that portion of the day which remains after the act is done must be treated as the first day.

It follows, therefore, that the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.'