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Appellate Division.

mean that the sheriff must needs lay aside all other business the instant he receives the process, and proceed to execute it, in the absence of special reasons for urgency or haste. The same is true of the direction in section 644 of the Code that the sheriff shall "immediately" execute the warrant of attachment. But it does mean that the sheriff is bound to use all reasonable endeavors seasonably to execute the process. Hinman v. Borden, 10 Wend. 367. This duty may include the exercise of his official functions after nightfall (Phillips v. Ronald, 3 Bush, 244), and hence after the sheriff's regular office hours. The measure of the sheriff's duty in such cases is his obligation to act reasonably (Tucker v. Bradley, 15 Conn. 46, 49); and it seems clearly unreasonable to refuse to receive and execute process under the circumstances alleged by the plaintiff to have existed in the case at bar. The county law requires every sheriff to keep an office in some proper place in the city or village in which the county

[Jan.

SATURDAY HALF-HOLIDAY,-continued.

Service of a writ of mandamus on Saturday after 12 o'clock, M. is regular and proper.

People v. Oswego, Sup'rs of, 50 Hun, 105; 19 St. Rep. 24; 3 Supp. 751; 15 Civ. Pro. 379.

In the case last cited Martin, J. said that the statutory provision for the half-holidays, "relates only to the transaction of business in the public offices of the state and county. Surely the service of the papers in this case cannot be regarded as the transaction of business in a public office of the state, or in a public office of a county. We do not think teh language of this statute broad enough to prevent the service of process or papers on Saturday after 12 o'clock M., nor do we think such was its purpose or intent. Nichols v. Kelsey, 2 City Ct. 410; 13 Civ. Pro. 154; 20 Abb. N. C. 14; Fries v. Coar, 13 Civ. Pro. 152; 19 Abb. N. C. 267."

In Matter of Borneman, 6 App. Div. 524; 39 Supp. 686, the appellate division of the first department held that service of an order to show cause made upon Lincoln's birthday was regular, following Didsbury v. Van Tassel, 56 Hun, 423; 31 St. Rep. 204; 10 Supp. 32; 18 Civ. Pro. 372.

It is no objection to the service of a summons that it was made on Christmas day.

Didsbury v. Van Tassel, 56 Hun, 423, 31 St. Rep. 204; 10 Supp. 32; 18 Civ. Pro. 372.

Dailey v. Fenton.

courts of his county are held, and prescribes that it shall be kept open between certain hours, except on Sundays and other days and half days declared by law to be holidays or half holidays. Laws 1892, c. 686, § 184, as amended by Laws 1895, cc. 150, 718. The section cited provides that every notice or other paper required to be served on the sheriff may be served, with an effect equal to that of personal service, by leaving the same at such office. There is nothing in the county law, however, nor in any other statute which has been brought to our attention, that compels litigants always to resort to the office of the sheriff in order to set the sheriff in motion for the execution of a mandate directed to that officer. The provision of the law which relieves him from keeping his office open on a half holiday does not deprive him of his official powers, or relieve him of the obligation

1900]

SATURDAY HALF-HOLIDAY,-continued.

In the case last above cited, Dykman, J., discussed the question as to what judicial proceedings can be had on the statutory holidays and halfholidays and indicated that only Sunday was dies non juridicus, and that the issuance and service of legal process remain unrestricted as they were previous to the holiday statute and that the holidays are judicial days.

When the last day to serve a pleading falls on Saturday, the fact that the part of the day after 12 o'clock noon is a holiday, requires that the entire day be excluded from the computation and the party has the next secular day within which to serve the pleading.

Reynolds v. Palen, 20 Abb. N. C. 11; 13 Civ. Pro. 200.

Rumsey, J., at Monroe special term, August, 1887.

McAdam, J., in Fries v. Coar, 13 Civ. Pro. 152; 19 Abb. N. C. 267, held directly contrary to Justice Rumsey on this identical question. (N. Y. City Court, Special Term, September, 1887).

d. Presentment of negotiable instruments.

For reference to statutes, see supra, a.

While an instrument may be presented for payment or acceptance on Saturdays, which are not entire holidays, before 12 o'clock, M., protest need not then be made for nonpayment or dishonor but it may be again presented on the following Monday and then protested, if not paid or accepted. Sylvester v. Crohan, 138 N. Y. 494; 34 N. E. 273.

Appellate Division.

to perform any of his official duties on Saturday afternoon which are capable of being exercised or discharged outside of his office. The half-holiday law relates only to the transaction of business in public offices. People v. Supervisors of Oswego, 50 Hun, 105; 19 St. Rep. 24; 3 N. Y. Supp. 751.

This proceeding to punish the sheriff for contempt in refusing to receive and execute the plaintiff's warrant of attachment was instituted by an order to show cause, under subdivision 1, § 2269, of the Code of Civil Procedure. Upon the return to the order, the sheriff submitted affidavits to the court denying that the warrant of attachment had ever been offered to him. These affidavits raised an issue of fact as to the alleged misconduct, which does not appear to have been decided by the learned court at special term. It is only where it is determined that the accused has committed the offense charged, and that it was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of the complaining party, that a final order for punishment can be made. Code Civ. Proc. § 2281. In the record before us there is no such adjudication. The order appealed from does not determine that the sheriff has committed the offense charged, or that such offense was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of the plaintiff. It does not even contain any recitals from which such facts might be inferred. An adjudication of this character is essential as the basis for the imposition of punishment under section 14 of the Code of Civil Procedure, relating to civil contempts. Mahon v. Mahon, 50 N. Y. Super. Ct. 92, 95; Fischer v. Raab, 81 N. Y. 235; First Nat. Bank of Plattsburgh v. Fitzpatrick, 80 Hun, 75; 61 St. Rep. 766; 30 Supp. 15. The cases cited show that an adjudication to the ef fect that the alleged misconduct has been committed, to the prejudice of the complaining party, is essential as a basis for such an order as that under review. That foundation being absent here, we are compelled to reverse the order.

Order reversed, without costs.

All concur.

Wittleder v. Citizens' Electric lui. Co.

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WITTLEDER v. CITIZENS' ELECTRIC ILLUMINATING CO. OF BROOKLYN.

[47 App. Div. 543; 96 St. Rep. 488; 62 Supp. 488.]

(Supreme Court, Appellate Division, Second Department. February 6, 1900.)

1. APPELLATE DIVISION-JUDGES-PARTICIPATING IN DECISION.

Under Code Civ. Pro. § 46, as amended by Laws 1897, c. 268, providing that "a judge other than a judge of the appellate division shall not decide or take part in the decision of a question,

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NOTE. WHAT 18 UNANIMOUS DECISION OF APPELLATE DIVISION.

It constitutes a unanimous decision of the appellate division of the supreme court within the meaning of article 6, § 2, constitution of the State of New York and subd. 2, § 191 of the Code of Civil Procedure, where four justices holding an appellate division and listening to the argument all vote to affirm the judgment appealed from.

Harroun v. Brush Electric Light Co., 152 N. Y. 212; 46 N. E. 291.

That portion of § 2, article 6 of the constitution referred to in the case last cited provides as follows: "There shall be an appellate division of the supreme court, consisting of seven justices in the first department, and of five justices in each of the other departments. In each department four shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case.”

Since the adoption of the constitution containing the above provision, sections 220 and 230 of the Code of Civil Procedure have been amended so as to conform to such provision. These sections originally related to the organization and the operation of the general terms.

Subdivision 2, § 191 Code of Civil Procedure provides that "No appeal shall be taken to said court (court of appeals) from a judgment of affirmance hereafter rendered in an action to recover damages for injuries resulting in death, or in an action to set aside a judgment, sale, transfer, conveyance, assignment or written instrument, as in fraud of the rights of creditors, or in an action to recover wages, salary or compensation for services including expenses incidental thereto, or damages for breach of any contract therefor, or in an action upon an individual undertaking on appeal, when the decision of the appellate division of the supreme court is unan

[Feb.

Appellate Division.

which was argued orally in the court, when he was not present and sitting therein as a judge,” a judge of such court may participate in the decision though he did not hear the oral argument.

2. UNANIMOUS DECISION.

A decision of a court is none the less unanimous because a judge who heard the oral arguiment because disqualified before the decision.

Motion by defendant-appellant to resettle order. Denied.
For former opinion, see 62 Supp. 297.

Argued before GOODRICH, P. J., and BARTLETT, HATCH, WOODWARD, and HIRSCHBERG, JJ.

Butler, Notman, Joline & Mynderse, for motion.

Foster L. Backus, opposed.

HATCH, J. This is a motion to resettle the order entered

WHAT IS UNANIMOUS DECISION OF APPELLATE DIVISION,-Continued.

imous, unless such apppellate division shall certify that in its opinion a question of law is involved which ought to be reviewed by the court of appcals, or unless in case of its refusal to so certify, an appeal is allowed by a judge of the court of appeals."

In Harroun v. Brush Electric Light Co., 152 N. Y. 212; 46 N. E. 291, the court said "We are of opinior that a quorum of four justices, holding an appellate division, are in contemplation of law, the appellate division, and that their unanimous vote of affirmance is a compliance with the provision of the constitution and code.

'When the constitution provides that four justices shall constitute a quorum, it is in effect conferring upon four the powers with which five were invested. A quorum is the aumber of the members of a body competent to transact business."

The question as to what constitutes a unanimous decision of the appellate division also arises under article 6, § 9 of the constitution, which contains the following provision: "No unanimous decision of the appellate division of the supreme court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the court of appeals."

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