NICHOLS v. KELSEY

NICHOLS v. KELSEY. N. Y. Supreme Court; Special Term, May, 1887. T. Leame to issue execution.] "Where five years have elapsed since the recovery of judgment, without issue of execution, the judgment creditor, upon compliance with Code Civ. Pro. §§ 1877,1878, is.entitled, as of right, to leave to issue an execution. Service of papers on Saturday; half-holiday act.1 The act of 1887 • (c. 289),—making Saturday, after 12 m., a half-holiday, for certain purposes,—does not prevent the service of papers or the execution of writs in legal proceedings on that day, or any part of it; and hence notice of a motion may he properly served on Saturday afternoon. Motion for leave to issue execution. After the lapse of five years from the plaintiff’s recovery of judgment against the defendant, without execution meanwhile, plaintiff moved for leave to issue execution for the amount due. The notice of motion, with the affidavit on which it was founded, were served after the hour of noon on Saturday, May 21, 1887. Defendant appeared by attorney, and objected that service after 12 m. on Saturday was not, under the half-holiday act (Z. 1887, c. 289), good service. Justin B. Cowles (Henry I). HotcKMss, attorney), for the motion. Mr. Spooner (defendant appeared in person), opposed. Compare preceding case, .ante, p. 11. N. T. Civ. Pro. C 1377 requires leave in such a case. [MAJORITY — McAdam, Ch. J.] McAdam, Ch. J. The plaintiff has complied with the provisions of the Code (§§ 1377, 1378), and is entitled, as of right, to leave to issue a new execution. The recent half-Saturday holiday act does not prevent the service of papers or the execution of writs in legal proceedings on that day or any part of it. Application granted.