(dissenting). I respectfully dissent. In my view, the common-law principle of not recognizing fractions of days in computing time is as much a fiction as the rule that a person is deemed to attain a given age on the day preceding the anniversary of his birth (Matter of Bardol, 253 App Div 498, affd 278 NY 543; see, People v Stevenson, 23 AD2d 472, *1034473, revd 17 NY2d 682 on dissenting opn below). New York courts, indeed, have, in the appropriate case, considered fractions of a day in computing time. "The law does not regard fractions of a day, except in cases where the hour itself is material, as is the case where priority of judgments is in question. (Judd v. Fulton, 4 How. Pr., 298; Phelan v. Douglass, 11 id., 193, 195; Haden v. Buddensick, 49 id., 246.)” (Marvin v Marvin, 75 NY 240, 243; see also, Matter of Lanni v Grimes, 173 Mise 614.) "As a general rule the court does not inquire into the fractions of a day, except for the purpose of guarding against injustice. (Small v. McChesney, 3 Cowen, 19. Clute v. Clute, 3 Denio, 263)” (Blydenburgh v Cotheal, 4 NY 418; emphasis added).
In the instant case, the precise hour of defendant’s birth is material because it is at that time, on his anniversary, that he turned 16. Injustice would be done if he is forced to face the criminal justice system rather that the juvenile delinquent justice system before he was truly an adult under the statute. "[Cjriminal statutes must be 'strictly construed against the party seeking their enforcement and in favor of the person being proceeded against’ (People v. O’Neill, 208 Mise. 24, 25; McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 271)” (People v Stevenson, supra, p 476, dissenting opn, Christ, J.). Under the circumstances, defendant should be given the benefit of the fractional hour of his birth in relationship to the time the crime was committed, and the writ should be granted because at that time the Criminal Court lacked jurisdiction over him. (Article 78.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.