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they been in a condition to per- ercise of a just discretion, sanction or disap form. 53 N. Y., 114.

prove of it.

Where the receiver of a corporation in selling Also held, That the formal de.

stocks belonging to it under a decree of mand of the goods by the plain- the court acted in ignorance of a material tiffs on the 31st of December and fact known to the purchaser the court is their offer to pay for the same on

not bound to order a transfer of the shares

to the purchaser if in its judgment the sale the delivery were strong evidence

was inequitable, although the purchaser of their readiness to perform. was under no legal duty to disclose his in

The complaint averred a readi. formation and the receiver omitted to exerness to perform on the part of the

cise the diligence which is expected of a

prudent officer. plaintiffs. Evidence was offered by plaintiffs to show that the de- This was an appeal from an orfendants had waived tender. der of the General Term, affirming They also offered to show per. an order of Special Term denying formance. This evidence was ex- a motion of ore H. to compel the cluded.

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 suffi- cers of the bank or other persons. cient to sustain the averment of It appeared that the receiver in the complaint of a readiness to making the sale acted in ignorance perform without proving a demand of a material fact which was known or a tender of the money. 9 N. to H., viz.: That certain directors Y., 525; 87 id., 594; 1 Hill, 519. of the bank, in an action brought

Judgment of General Term, af- by certain of its stockholders in firming judgment of non-suit, re- behalf of themselves and the other versed, and new trial granted. stockholders, had been adjudged, Opinion by Miller, J. All con

All con- | by reason of their misconduct as cur.

such directors, to be liable to the

stockholders for the market value JUDICIAL SALES.

of the stock April 23, 1873, immeN. Y. COURT OF APPEALS.

diately before the failure of the

bank, and for the amount paid by In re Atty.-Gen. v. The Conti- them respectively upon an assessnental Life Ins. Co. In re Hancy.

In re Hancy. ment made by the comptroller of Decided Dec. 4, 1883.

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 enti. | Prior to the time when the New Code took tled to be made a party to the

effect the statutes of limitation of a foreign

state constituted no defense to an action action and prove its claim and

brought here. have judgment therefor against The scope of $ 414 makes applicable in the case the directors.

specified in subd. 3 the previous provisions George C. Holt, for applt.

of law precisely as they stood before the

Code, whether formulated in statutes or Edward H. Hobbs, for respt.

resting in judicial decisions and notwithHeld, That the motion was prop- standing their repeal by the new law. A erly denied ; that although there rule or doctrine established by judicial dewas a complete executory contract

cision is a provision of law within the in form for the transfer of the

meaning of the section.

Affirming S. C., 14 W. Dig., 177. shares, while executory it was subject to the supervisory power

This action was brought to comof the court, which could, in the pel payment of dividends upon exercise of a just discretion, sanc-certain shares of stock. It was comtion or disa pprove of it, and the menced about two years before the purchase must be deemed to have New Code took effect. The de been made subject to this implied fendant is a corporation in this condition. The purchaser by in- state, and is sued here by plaintiff, voking the power of the court sub- a non-resident. Defendant is the mitted bimself to its jurisdiction, successor of the original debtor, and in deciding the question pre- whose corporate origin was under sented the court was not bound to the laws of Michigan and Illinois. grant the motion, if in its judg. | Upon the trial it introduced in evment the contract was inequitable, idence the statutes of limitation of although there was no technical those states, and claimed that they legal duty resting upon the pur- constituted a bar to the recovery. chaser on the sale to disclose his James Matthews, for applt. information in respect to the judg

Lucien Birdseye, for respt. ment or although the receiver

Held, Untenable; that prior to may have omitted to exercise that September, 1877, when the Code diligence which is expected of a

of Civ. Pro. took effect, the statprudent and careful officer.

utes of limitation of a foreign state Order of General Term, affirm-constituted no defense to an action ing order of Special Term denying brought here. 20 N. Y., 210 ; 68 motion, affirmed.

id., 83. Opinion by Andrews, J. All Section 414 of the Code provides concur.

that the provisions of Chap. 4

"apply and constitute the only LIMITATION.

rules of limitation applicable to a N. Y. COURT OF APPEALS.

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.

third of which is: “A case Decided Dec. 11, 1883.

* in which a person is entitled



when this act takes effect to com

MECHANICS' LIENS. mence an action

where he commences

the same

N. Y. COURT OF APPEALS. before the expiration of two years Gibson, respt., v. Smith et al., after this act takes effect," in

applts. which case the provisions of law

Decided Nov. 27, 1883. applicable thereto immediately before this act takes effect continue The right of sub-contractors and material to be so applicable notwithstand- men to establish a lien under Chap. 379,

Laws of 1875, depends on the liability of ing the repeal thereof."

the owner of the premises to the contractor Held, That the entire scope of

at the time of filing such lien. the section makes applicable in the The acceptance by the owner of orders drawn given case the previous " provis- upon him by the contractor operate as ions of law” precisely as they

payments on the contract from the time of

acceptance, although an arrangement is stood before the Code, whether

made with the payee for payment in the formulated in statutes or resting future. Such an acceptance operates as an in judicial decisions, and notwith- equitable assignment of so much of the standing their repeal or abroga

fund as is required to satisfy the order, and

the contractor's interest in it thereby tion by the new and substituted

ceases to that extent. law. The pnrpose appears to have been to leave the plaintiff in the This action was brought to foreexcepted case precisely with the close a mechanic's lien on premises same rights and remedies he would in New York city belonging to have had if the Code of Civ. Pro. defendants P. & T. L. The Ls, had never been enacted. The S. & McK., the original contractphrase “ provisions of law” can- ors, and H. & Sons, the prior liennot be justly confined to statutes ors, were made parties defendant. or legislative enactments. A rule Plaintiff's claim and that of H. or doctrine established by judicial & Sons were botlı for supplies furdecision is “a provision of law” nished to S. & McK., the contractequally with one enacted by the ors. . The Ls set up as a defense Legislature. The use of the word payment to the contractors of the “repealed” cannot narrow the full consideration before the filing phrase "provisions of law” to of the attempted liens. The statsuch only as are statutory, in the ute under which these liens were face of an evident legislative in filed, Laws of 1875, Chap. 379, protent to leave the parties in the ex- vides "that the aggregate amount cepted cases exactly in the same of such liens must not exceed the situation as if the Code, 1877, had amount which the owner would never been enacted.

be otherwise liable to pay at the Judgment of General Term, re- time of the filing of the claim." versing judgment dismissing com- The referee found that several orplaint, affirmed.

ders drawn upon the owners by the Opinion by Finch, J.

All con

contractors in favor of parties furcur.

nishing labor and materials under

the contract were accepted by the original contract. The acceptance owners before the filing of the first of the order by the owner operates lien, and that all of said orders as an equitable assignment of so were included in the release subse- much of the fund in his hands as quently executed by the contract is required to satisfy the order, ors to the owners. The referee and the contractor's interest thereexcluded the amount of those in thereby ceases to that extent orders as payments upon the con- whether such fund exists in favor tract.

of a debt or moneys held for his Joshua M. Van Cott, for applts. use. 83 N. Y., 318; 77 id., 46. If Samuel lland, for respt.

the fund exists in the form of a Held, Error; that the acceptance debt due the drawer, the acceptof these orders by the owners ance of the order by the debtor operated as payments upon the operates as the novation of a debt contract from the time of accept to the amount of such order. Parance, and should have been cred- sons on Contract, 221 ; 77 N. Y., ited to the owners on

their ac

301. counting with the contractors. Judgment of General Term, afThe right of sub-contractors and firming judgment for plaintiff, rematerial men under the statute to versed and judgment ordered for establish a lien upon the property defendants. of an owner depends upon the Opinion by Ruger, Ch. J. All liability of such uwner to the concur, Andrews, J., in result. contractor at the date of filing the lien. 60 N. Y., 127; 9 Daly, 218. Cnless prohibited by the statute,

PRACTICE. it is competent for the owner and

N. Y. COURT OF APPEALS. contractor to agree upon the method and time of payment of Colleran et al., applts., v. Kenmoneys then, or to become due nedy et al., respts. upon a building contract, and

Decided Nov. 27, 1883. when payment is made in accordance with such agreement it is Where the written evidence presents a case binding upon all parties, unless of plain contradiction of two living wit

nesses and no conclusive fact and none impeached for fraud or collusion.

from which any legal presumption would 60 N. Y., 127; 47 id., 348.

follow has been proved, this court will not inIt is competent for an owner, on

terfere with the decision of the trial court, accepting an order drawn upon

but is concluded by the affirmance at Gen

eral Term. him by the contractor, to make an arrangement with the payee for its This was an action to foreclose a future payment, and such exten- mechanic's lien against defendant sion of the time of payment be- K. as contractor on property tween the owner and payee would owned by defendant C. There not extend the application of such was an issue in regard to the terms

1 acceptance or payment upon the of the contract. Plaintiff C. and defendant K. both testified, each answer admitted. Held, That that fact was for himself. It was claimed by

to be taken as true ; that from the moment

of such delivery the mortgages had a valid plaintiffs that standing by them

inception and might be sold by the mortgaselves they balanced each other.

gee at any price without the imputation of E. H. Benn, for applts.

usury; that the fact that they were executed E. G. Whitaker, for respts.

after an understanding with plaintiff that

he would purchase them for less than their Held, Untenable; that while the

face did not make the purchase usurious written evidence may present a or change the contract into a loan; but case of plain contradiction of two that, the mortgages being for a greater living witnesses, one or the other amount than the debts actually due H. &

M., plaintiff could not enforce them for might to the trial court, by man

more than the true amount. ner, voice or otherwise, present tokens to his discredit, of which This action was for the forean appellate court would have no closure of a mortgage for $4,000, notice; that the burden was upon given by defendant C. and wife to plaintiff.

H., and by him assigned to plainPlaintiffs claimed that C. was tiff. C. alone answered and set up corroborated by facts and circum- as a defence that the mortgage in stances. No conclusive fact was suit was given in pursuance of a proved and none from which any usurious agreement between him legal presumption would follow. and plaintiff, by which C. was to The General Term affirmed the make the bond and mortgage in finding of the referee.

suit and another to M. for $3,000, Held, That this court is con- and that H. & M. should assign cluded by the holding of the Gen- their respective mortgages to plaineral Term.

tiff, who should pay and advance Judgment of General Term, af- thereon $6,000, retaining the other firming judgment for defendants, $1,000 as a bonus; that in pursuaffirmed.

ance of this agreement C. made Opinion by Danforth, J. All and delivered to M. & H. said concur.

bonds and then assigned them to

plaintiff, who paid $6,000 and no USURY.

more; that at the time of making

this agreement C. was indebted to N. Y. COURT OF APPEALS. M. & H. and agreed out of the Dunham, applt., v. Cudlipp

$6,000 to pay M. $2,000 and H. et al., impl’d, respts.

$3,000. The answer further states

that the bonds and mortgages Decided Nov. 20, 1883

were made for the purpose of C. stated to plaintiff that he owed H. & M. being discounted in pursuance of $7,000 and that he would give mortgages to

this agreement. The complaint them for that amount which plaintiff averred the delivery of the bond might caslı for $6,000 and so receive $1,000 and mortgage in suit to H. and the This was done. In an action on the mort

answer admits it. The gages the complaint alleged that they were

i delivered to the mortgagees, which the found the agreement as stated in


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