This is a judgment creditor's action brought to set aside an assignment made by the defendant Frederick J. Syme to his wife, the defendant Mary A. Syme, of the former's interest as residuary legatee in the estate of an uncle, David H. Syme. The learned Appellate Division not only decided that the evidence was insufficient to uphold the finding of the trial court that the assignment was fraudulent, but further held that the execution on the plaintiff's original judgment, which is the foundation of the present action, was issued after the statutory period of five years (Code Civ. Pro. § 1375), and, hence, was void. On this latter ground, instead of granting a new trial, the court dismissed the complaint absolutely.
The plaintiff's judgment was recovered and entered on November 14, 1889; the execution thereon was issued on the 14th day of November, 1894. The first question presented, therefore, involves the proper computation of time, and is whether the 14th day of November, 1894, is within five years from the 14th day of November, 1889, upon which day the judgment was entered. The Statutory Construction Law (§ 27) provides that, for the purpose of reckoning time, "The day from which any specified number of days, weeks or months of time is reckoned shall be excluded in making the reckoning." No similar provision is made by the statute in the case of computation of years. For this reason, the late General Term of the first department, in a previous litigation between these parties (91 Hun, 632), held that the rule which governs computations of days, weeks or months does not apply to years, and that, as the plaintiff could have issued an execution on the very day on which it entered its judgment, that day was not to be excluded in the calculation of time. We think that there is no force in the argument based on the omission to *Page 67 include years in the provision of section 27 cited. In section 25 of the same statute are found two definitions of a year: "The term year in a statute, contract, or any public or private instrument, means three hundred and sixty-five days," and "In a statute, contract or public or private instrument, the term year means twelve months." Therefore, whatever lapse of time is three hundred and sixty-five days or twelve months and nothing else is a year, and reference to years in section 27 was unnecessary. If the rule declared in the court below is to prevail, this incongruity seems necessarily to follow. Two obligations for the payment of money are made bearing date the same day, one to be discharged within a year, the other within twelve months. These obligations would mature and upon failure of performance the obligors come into default, not on the same day, but on succeeding days. And this, too, in spite of the declaration of the statute that a year means twelve months. Nor is the consideration that the plaintiff might issue an execution on the same day on which he enters his judgment controlling. Not only under our statute, but generally throughout the country, fractions of days are not considered and a day is treated as a mere point of time not having duration; but, of course, a day in fact is not a mere point of time, but has substantial duration. It, therefore, necessarily follows that when a day is taken as a point of time and its fractions ignored any rule of computation must either extend or diminish the accurate period of time computed. The difficulty is inherent in the subject and impossible to avoid. It is true that, under the rule declared by the statute, as we interpret it, the plaintiff may have a longer period than five years composed of 365 days (366 days in leap years) of 24 hours each, within which he may issue an execution, but it is equally true that, under the rule laid down by the court below, the plaintiff would have less than a full five years of time within which he could issue the writ. The situation necessarily presents merely a choice between two inaccuracies, and the almost uniform tendency of the courts has been to adopt the one which gives a party *Page 68 the longest time in which either to assert a right or perform an obligation. Such was the law in this state prior to the enactment of the Statutory Construction Law. (Vandenburgh v. VanRensselaer, 6 Paige, 147; Snyder v. Warren, 2 Cow. 518; Exparte Dean, 2 Cow. 605; Homan v. Liswell, 6 Cow. 659;People ex rel. Collier v. Sheriff of Broome, 19 Wend. 87;Cornell v. Moulton, 3 Denio, 12; Davison v. Budlong, 40 Hun, 245; Mygatt v. Washburn, 15 N.Y. 316; Morss v.Purvis, 68 N.Y. 225.) And this court has held that the statute "discloses no intention * * * to materially change the existing rule for the computation of time, except, perhaps, to more definitely fix the event from which the count is to be made." (People v. Burgess, 153 N.Y. 573.) Such is also the rule in the Federal courts. (Sheets v. Selden's Lessee, 2 Wall. 177, 190; Dutcher v. Wright, 94 U.S. 553.) The case of Taylor v.Brown (147 U.S. 640) does not overrule these earlier cases; though, in that case, the day on which the patent was issued was included in the computation of time. The decision is placed on the doctrine enunciated in Griffith v. Bogert (18 How. [U.S.] 158), that where the exclusion of the day of the date is invoked, not to avoid a forfeiture or to confirm a title, but to destroy one, it will not be adopted. It must be confessed that the courts have at times juggled with the computation of time, and computed it in that mode which supported what they have considered the equities of the parties in the particular cases. But no case can be found in the Supreme Court of the United States which either directly or in the argument of its opinion, includes the day of the date of an act for the purpose of upholding a bar of the Statute of Limitations. The rule that the day of the date should be excluded prevails in most of our sister states. (Bemis v.Leonard, 118 Mass. 502; Weeks v. Hull, 19 Conn. 376;Cromelien v. Brink, 29 Penn. St. 522; Brown v. City ofChicago, 117 Ill. 21; McCulloch v. Hopper, 47 N.J.L. 189.) The execution was, therefore, issued in time.
But if I am incorrect in this view as to the proper method of computing time, still the plaintiff's case was not fatally *Page 69 defective. An execution issued without leave, after the lapse of five years, is not void, but only liable to be set aside on motion. (Bank of Genesee v. Spencer, 18 N.Y. 150, 154; UnionBank of Troy v. Sergeant, 53 Barb. 424.) In this it differs from an execution against a deceased person, which is an absolute nullity. (Prentiss v. Bowden, 145 N.Y. 342.) The judgment of the Appellate Division dismissing the complaint is, therefore, erroneous.
We are also inclined to the opinion that the evidence in the case was sufficient to support the findings of fact made by the trial court, and that the Appellate Division erred in holding to the contrary. The question, however, is not now one of practical importance. Pending this appeal the order of the Appellate Division has been resettled so as to show that the reversal was on questions of fact as well as on those of law. Therefore, unless the evidence conclusively established the right of the plaintiff to recover, we have no jurisdiction to review the determination of the Appellate Division as to the facts. No attack is made on the bona fides of the debt of $10,000 owing by the defendant Frederick J. Syme to his wife, Mary J. Syme, in consideration of which the former assigned to the latter his interest in the residuary estate of David H. Syme. The transfer, not being voluntary, was not fraudulent, as matter of law, even if the assignor was insolvent at the time. The fact that the debtor assigned to his wife, for the sum of $10,000, an interest in an estate on which she realized, within thirty days, a sum exceeding $60,000, would seem very strong evidence of fraudulent intent on the part of both parties. Still, the inference is one of fact and not of law. (Wait on Fraud. Conv. § 232.) On the evidence in the case the insolvency of the debtor at the time of the transfer was also a question of fact.
The judgment should be modified so as to grant a new trial, instead of dismissing the complaint, and as so modified, affirmed, without costs of this appeal to either party.
PARKER, Ch. J., GRAY, BARTLETT and MARTIN, JJ., concur with WERNER, J.; VANN, J., concurs with CULLEN, J.
Judgment modified, etc. *Page 70