The opinion of the court was delivered by Larrabee, J.c.c.
Plaintiff ordered fire insurance on December 23, 1954 from the Edwards Agency which, as agent for the American Insurance Company, issued an oral binder. A fire loss occurred on January 3, 1955 and plaintiff sues on the oral binder, the policies not having been issued. The Edwards Agency has paid the loss claim of $1,500, taken an assignment of the claim and is added as plaintiff. These facts are stipulated and the case is submitted to the court for determination, the sole issue being whether or not R.S. 17:36-5.3 bars recovery. This statute reads as follows:
"Contracts for temporary insurance.
Binders or other contracts for temporary insurance may be made orally for a period which shall not exceed ten days or in writing for a period which shall not exceed sixty days and shall be deemed to include all the terms of such standard fire insurance policy and all
such applicable endorsements, approved by the Commissioner of Banking and Insurance, as may be designated in such contract of temporary insurance; except that the cancellation clause of such standard fire insurance policy and the clause thereof specifying the hour of the date at which the insurance shall commence, may be superseded by the express terms of such contract of temporary insurance."
Plaintiff contends that in counting the numbers of days, the first is excluded and the last included. 20 A.L.R. 2 d 1249, at 1250, and that since the last day is Sunday, January 2, 1955, it is a dies non and therefore the last day actually is January 3, 1955, the date of the fire.
Defendant contends that the cases which hold Sunday to be a dies non are cases where an act is to be performed within a certain time; that the statute quoted does not contemplate any act to be performed, it simply places time limitation on the term of a contract.
There is no New Jersey authority directly in point. In Decor-El, Inc., v. Bertsch , 13 N.J. Super. 166 (Law Div. 1951), the fire loss occurred October 9, 1949, after an oral binder was given on September 7, 1949. Since over a month elapsed from the date of the binder to the fire loss, the current problem was not there available for solution.
There is no doubt that Sunday is a dies non when it is the last day for performance of an act before the bar of limitations becomes effective. As stated in Poetz v. Mix , 7 N.J. 436, at 445 (1951).
"Although there is diversity of opinion elsewhere, it is well settled in this state that where, by statute, an act is due arithmetically on a day which turns out to be a Sunday or legal holiday, it may be lawfully performed on the following day, and if that day be also a dies non on which the public offices are closed to the transaction of business, according to the 'holiday' acts, supra , a similar rule applies."
In the instant case there is no act to be done which is barred by the lapse of a period of time. The act which plaintiff would normally do to remedy his difficulty would be to obtain a new binder from some other insurance company. Plaintiff had coverage during Sunday. ...