they been in a condition to perform. 53 N. Y., 114. Also held. That the formal demand of the goods by the plaintiffs on the 31st of December and their offer to pay for the same on the delivery were strong evidence of their readiness to perform. The complaint averred a readi ness to perform on the part of the plaintiffs. Evidence was offered by plaintiffs to show that the defendants had waived tender. They also offered to show performance. This evidence was excluded. ercise of a just discretion, sanction or disap prove of it. Where the receiver of a corporation in selling stocks belonging to it under a decree of the court acted in ignorance of a material fact known to the purchaser the court is not bound to order a transfer of the shares to the purchaser if in its judgment the sale was inequitable, although the purchaser was under no legal duty to disclose his information and the receiver omitted to exercise the diligence which is expected of a prudent officer. This was an appeal from an order of the General Term, affirming an order of Special Term denying a motion of one H. to compel the receiver of the Continental Life Held, Error; that it was admis- Insurance Company to execute an sible for the purpose of showing assignment of certain shares of that plaintiffs were not bound to bank stock purchased by H. at a tender the money upon the con- sale by said receiver. The receiver tract, or to designate the place of refused to transfer the stock undelivery; that if the evidence less H. would consent to the reshowed that plaintiffs were ready servation of any claim the insurand willing to perform at the ap-ance company or the receiver, as pointed time and place and de- stockholders, had against the offifendants did nothing, it was sufficers of the bank or other persons. cient to sustain the averment of the complaint of a readiness to perform without proving a demand or a tender of the money. 9 N. Y., 525; 87 id., 594; 1 Hill, 519. Judgment of General Term, affirming judgment of non-suit, reversed, and new trial granted. Opinion by Miller, J. All con cur. JUDICIAL SALES. N. Y. COURT OF APPEALS. In re Atty. Gen. v. The Continental Life Ins. Co. In re Hancy. Decided Dec. 4, 1883. It appeared that the receiver in making the sale acted in ignorance of a material fact which was known to H., viz.: That certain directors of the bank, in an action brought by certain of its stockholders in behalf of themselves and the other stockholders, had been adjudged, by reason of their misconduct as such directors, to be liable to the stockholders for the market value of the stock April 23, 1873, immediately before the failure of the bank, and for the amount paid by them respectively upon an assessment made by the comptroller of the currency, and that under the A judicial sale is subject to the supervisory interlocutory judgment and the power of the court, which can, in the ex stockholders' action the insurance company or its receiver was entitled to be made a party to the action and prove its claim and have judgment therefor against the directors. George C. Holt, for applt. Prior to the time when the New Code took The scope of § 414 makes applicable in the case This action was brought to compel payment of dividends upon certain shares of stock. It was commenced about two years before the New Code took effect. The defendant is a corporation in this Edward H. Hobbs, for respt. Held, That the motion was properly denied; that although there was a complete executory contract in form for the transfer of the shares, while executory it was subject to the supervisory power of the court, which could, in the exercise of a just discretion, sanction or disapprove of it, and the purchase must be deemed to have been made subject to this implied condition. The purchaser by in-state, and is sued here by plaintiff, voking the power of the court submitted himself to its jurisdiction, and in deciding the question presented the court was not bound to grant the motion, if in its judgment the contract was inequitable, although there was no technical legal duty resting upon the purchaser on the sale to disclose his information in respect to the judgment or although the receiver may have omitted to exercise that diligence which is expected of a prudent and careful officer. Order of General Term, affirming order of Special Term denying motion, affirmed. Opinion by Andrews, J. All concur. LIMITATION. N. Y. COURT OF APPEALS. a non-resident. Defendant is the successor of the original debtor, whose corporate origin was under the laws of Michigan and Illinois. Upon the trial it introduced in evidence the statutes of limitation of those states, and claimed that they constituted a bar to the recovery. James Matthews, for applt. Lucien Birdseye, for respt. Held, Untenable; that prior to September, 1877, when the Code of Civ. Pro. took effect, the statutes of limitation of a foreign state constituted no defense to an action brought here. 20 N. Y., 210; 68 id., 83. Section 414 of the Code provides that the provisions of Chap. 4 "apply and constitute the only rules of limitation applicable to a civil action or special proceeding, except in the following cases. Clark, respt., v. The L. S. & Four exceptions are specified, the M. S. RR. Co., applt. Decided Dec. 11, 1883. third of which is: "A case * * * in which a person is entitled. when this act takes effect to com * * mence an action * where he commences * * * the same before the expiration of two years after this act takes effect," in which case "the provisions of law applicable thereto immediately before this act takes effect continue to be so applicable notwithstanding the repeal thereof." Held, That the entire scope of the section makes applicable in the given case the previous "provisions of law" precisely as they stood before the Code, whether formulated in statutes or resting in judicial decisions, and notwithstanding their repeal or abrogation by the new and substituted law. The purpose appears to have been to leave the plaintiff in the excepted case precisely with the same rights and remedies he would have had if the Code of Civ. Pro. had never been enacted. The phrase "provisions of law" cannot be justly confined to statutes or legislative enactments. A rule or doctrine established by judicial decision is "a provision of law" equally with one enacted by the Legislature. The use of the word "repealed" cannot narrow the phrase "provisions of law" to such only as are statutory, in the face of an evident legislative intent to leave the parties in the excepted cases exactly in the same situation as if the Code, 1877, had never been enacted. Judgment of General Term, reversing judgment dismissing complaint, affirmed. Opinion by Finch, J. All con cur. MECHANICS' LIENS. N. Y. COURT OF APPEALS. Gibson, respt., v. Smith et al., applts. Decided Nov. 27, 1883. The right of sub-contractors and material men to establish a lien under Chap. 379, Laws of 1875, depends on the liability of the owner of the premises to the contractor at the time of filing such lien. The acceptance by the owner of orders drawn upon him by the contractor operate as payments on the contract from the time of acceptance, although an arrangement is made with the payee for payment in the future. Such an acceptance operates as an equitable assignment of so much of the fund as is required to satisfy the order, and the contractor's interest in it thereby ceases to that extent. This action was brought to foreclose a mechanic's lien on premises in New York city belonging to defendants P. & T. L. The Ls. S. & McK., the original contractors, and H. & Sons, the prior lienors, were made parties defendant. Plaintiff's claim and that of H. & Sons were both for supplies furnished to S. & McK., the contract ors. The Ls set up as a defense payment to the contractors of the full consideration before the filing of the attempted liens. The statute under which these liens were filed, Laws of 1875, Chap. 379, provides "that the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay at the time of the filing of the claim." The referee found that several orders drawn upon the owners by the contractors in favor of parties furnishing labor and materials under the contract were accepted by the owners before the filing of the first lien, and that all of said orders. were included in the release subsequently executed by the contractors to the owners. The referee excluded the amount of those orders as payments upon the con tract. Joshua M. Van Cott, for applts. Samuel Hand, for respt. Held, Error; that the acceptance of these orders by the owners operated as payments upon the contract from the time of accept ance, and should have been credited to the owners on their accounting with the contractors. The right of sub-contractors and material men under the statute to establish a lien upon the property of an owner depends upon the liability of such owner to the contractor at the date of filing the lien. 60 N. Y., 127; 9 Daly, 218. Unless prohibited by the statute, it is competent for the owner and contractor to agree upon the method and time of payment of moneys then, or to become due upon a building contract, and when payment is made in accordance with such agreement it is binding upon all parties, unless impeached for fraud or collusion. 60 N. Y., 127; 47 id., 348. It is competent for an owner, on accepting an order drawn upon him by the contractor, to make an arrangement with the payee for its future payment, and such extension of the time of payment between the owner and payee would not extend the application of such acceptance or payment upon the The acceptance original contract. of the order by the owner operates as an equitable assignment of so much of the fund in his hands as is required to satisfy the order, and the contractor's interest therein thereby ceases to that extent whether such fund exists in favor of a debt or moneys held for his use. 83 N. Y., 318; 77 id., 46. If the fund exists in the form of a debt due the drawer, the acceptance of the order by the debtor operates as the novation of a debt to the amount of such order. Parsons on Contract, 221; 77 N. Y., 301. Judgment of General Term, affirming judgment for plaintiff, reversed and judgment ordered for defendants. Opinion by Ruger, Ch. J. All concur, Andrews, J., in result. PRACTICE. N. Y. COURT OF APPEALS. Colleran et al., applts., v. Kennedy et al., respts. Decided Nov. 27, 1883. Where the written evidence presents a case of plain contradiction of two living witnesses and no conclusive fact and none from which any legal presumption would follow has been proved, this court will not interfere with the decision of the trial court, but is concluded by the affirmance at General Term. This was an action to foreclose a mechanic's lien against defendant K. as contractor on property owned by defendant C. There was an issue in regard to the terms of the contract. Plaintiff C. and defendant K. both testified, each E. G. Whitaker, for respts. Held, Untenable; that while the written evidence may present a case of plain contradiction of two living witnesses, one or the other might to the trial court, by manner, voice or otherwise, present tokens to his discredit, of which an appellate court would have no notice; that the burden was upon plaintiff. Plaintiffs claimed that C. was corroborated by facts and circumstances. No conclusive fact was proved and none from which any legal presumption would follow. The General Term affirmed the finding of the referee. Held, That this court is concluded by the holding of the General Term. answer admitted. Held, That that fact was to be taken as true; that from the moment of such delivery the mortgages had a valid inception and might be sold by the mortga gee at any price without the imputation of usury; that the fact that they were executed after an understanding with plaintiff that he would purchase them for less than their face did not make the purchase usurious or change the contract into a loan; but that, the mortgages being for a greater amount than the debts actually due H. & M., plaintiff could not enforce them for more than the true amount. This action was for the foreclosure of a mortgage for $4,000, given by defendant C. and wife to H., and by him assigned to plaintiff. C. alone answered and set up as a defence that the mortgage in suit was given in pursuance of a usurious agreement between him and plaintiff, by which C. was to make the bond and mortgage in suit and another to M. for $3,000, and that H. & M. should assign their respective mortgages to plaintiff, who should pay and advance thereon $6,000, retaining the other $1,000 as a bonus; that in pursuance of this agreement C. made All and delivered to M. & H. said bonds and then assigned them to plaintiff, who paid $6,000 and no more; that at the time of making this agreement C. was indebted to M. & H. and agreed out of the $6,000 to pay M. $2,000 and H. $3,000. The answer further states that the bonds and mortgages Judgment of General Term, affirming judgment for defendants, affirmed. Opinion by Danforth, J. concur. USURY. N. Y. COURT OF APPEALS. Dunham, applt., v. Cudlipp et al., impl'd, respts. Decided Nov. 20, 1883 C. stated to plaintiff that he owed H. & M. $7,000 and that he would give mortgages to them for that amount which plaintiff might cash for $6,000 and so receive $1,000. This was done. In an action on the mortgages the complaint alleged that they were delivered to the mortgagees, which the |