LIMITATION. PAYMENT.

N. Y. COURT OF APPEALS.

Bean, respt., v. Tonnele, applt.

Decided Jan. 15, 1884.

Defendant, who made the note in suit in 1859, was then and continued to be a non-resident until 1876. The action was brought in

1880. Held, That defendant could not plead the statute of limitations.

C. W. Pleasants, for applt.
N. C. Moak, for respt.

Held, That defendant, being a non-resident of the state from the date of the note until 1876, could not plead the statute of limitations; that as matter of fact the action was commenced within six years after that time.

Defendant offered to show the

In an action on a promissory note evidence of the plaintiff's poverty during the time it was running is relevant and material on the question of payment. An error in rejecting such evidence is not cured by rejecting evidence explaining plaintiff's de

lay.

This was an action upon a promissory note for $650, dated May 12, 1859, payable six months after date, made by defendant payable to the order of one D., who died in 1876. The action was commenced Oct. 18, 1880. The note was indorsed by D. in blank, and plaintiff claims to recover as indorsee. The note was made in Jersey City, where both the maker and payee resided when it was made, the plaintiff then and ever since has been a resident of New York. The payee removed to the City of New York about 1860 and resided there until his death. Defendant continued to reside in Jersey City until 1876, when he removed to New York. Defend. ant testified that he made the note for the accommodation of the payee and this evidence was not controverted. It did not appear what consideration plaintiff paid. Defendant pleaded the statute of limitation and payment.

time of the running of the note. This evidence was excluded.

Held, Error; that the proof offered was relevant and material as it tended to fortify the presumption that the note had been paid or otherwise satisfied. Wharton on Ev., § 1363; 4 Munf., 428; 16 Wend., 425; 10 N. Y., 170.

Evidence explaining plaintiff's delay was rejected on defendant's objection.

Held, This did not cure the error of the court in rejecting the evidence offered as to plaintiff's poverty.

At common law payment of a bond or other specialty would be presumed after the lapse of twenty years from the time it became due in the absence of evidence explaining the delay, although there was no statute bar. 15 Vin. Abr., Length. of time pl. 5, 6; 6 Mod., 22; 7 T. R., 270; 7 Johns., 556; 10 id., 381; 1 Brad., 192.

In respect to simple contracts the same presumption has been applied after the lapse of twenty years. 6 Mod., 22; 5 Esp., 52; 1 Root, 312: 8 Conn., 168; 6 Munf., 532; 8 Pick., 187; 7 Wend., 94.

Judgment of General Term, af

of existing or anticipated insolvency or it is not prohibited. It is not enough that insolvency and the act co-exist. 59 N. Y., 5.

A company, although insolvent, may deal with its creditors by making payment, or in the ordinary course of business transfer or sell its property. Some other fact, therefore, must be proved before it can be held that a transfer thus made is fraudulent, and in considering that question the date of the agreement pursuant to which any transfer is made, and not the day when the conveyance is in fact executed, is to be regarded. As between the parties at any rate the fulfillment of the agreement relates back to the time when the

obligation was incurred. 9 Ch. App. Cas. 752; 78 N. Y., 131; 1 Cowper, 117; 16 B. & C., 44. The statute makes the question depend upon what was passing in the minds of the officers of the company when the mortgage was executed.

Judgment of General Term, affirming judgment for defendants, reversed and new trial granted. Opinion by Danforth, J. All

by one joint tort feasor of the damages oc casioned by the joint wrongful act of both is proper in mitigation of damages.

This action was brought by plaintiff, as receiver of the Bowling Green Svgs. Bk. against its vice-president, to recover for losses occasioned by alleged illegal loans made by him of the funds of the bank. The only damage occurring in consequence of such loans was that they remained due and unpaid at the time of the commencement of the action. Defendant interposed a general denial to this part of the answer and, by a supplemental answer pleaded that the president and secretary of the bank were jointly liable with defendant for the causes of action alleged in the complaint, and that for a good consideration paid by said president and secretary to plaintiff they had been released and discharged from liability on account of said several causes of action, and thereby said defendant became discharged therefrom. Plaintiff gave evidence tending to show that said president and secretary and defendant as vice-president co-operated in making the alleged illegal loans, and that portions of said loans remained unpaid when the case was tried. Defendant offered to prove the payment to plaintiff by the president of $45,000 on account of the alleged overdrafts which the evidence showed were the basis of plaintiff's claim against defendant. This evidence was objected to and excluded.

Erastus Cooke, for applt.
John E. Develin, for respt.

Opinion by Ruger, Ch. J.

All

Held, Error; that it was an es

allege the non-payment of the

loans in question; that a general denial of the allegations of the

REFEREE. COSTS.

non-payment and rendered evidence controverting the fact admissible under the answer. When the fact of non-payment is alleged in the complaint as a necessary and material fact to constitute a cause of action, a defense of payment is admissible. 10 N. Y., 316; 16 id., 297; 41 id., 349. It is always competent to prove under a general denial any facts tending to controvert the material affirmative allegations of a complaint. 41 N. Y., 349; 32 Barb., 293; 62 id., 131. While a plea of payment by a stranger between whom and the defendant there is no privity has sometimes been held to be unavailable as a defense, 4 Paige, 654; 53 N. Y., 67, yet satisfaction by one joint tort feasor has always been held to be available as a bar to an action against another. 1 Johns., 291; 6 id., 31; 45 N. Y., 635; 75 id., 498. This rule applies with equal reason to a partial satisfaction by one of the wrong doers of the damages occasioned by the joint wrongful act of both. Such evidence is proper in mitigation of damages and under the former practice was admissible under the general issue. 19 Wend., 409; 11 N. Y., 347; 2 Hill, 194.

Judgment of General Term, affirming as modified judgment for plaintiff, reversed and new trial ordered.

TERM. FIRST DEPT.

The N. Y. Elevated R. R. Co.,

applt. v. The Philadelphia Architectural Iron Company et al., respts.

Decided Dec. 21. 1883.

When on the trial of an issue of fact before

a

referee judgment is rendered against

one defendant but in favor of another, the question of awarding costs to the successful defendant is not left to the discretion of the referee, under § 1018 of the Code of Civ. Pro., but that matter is committed to the discretion of the Court by $ 3229, and the proper practice is for the successful defendant to move the Court for an order awarding him costs.

This action was tried before a referee and judgment was rendered in favor of the plaintiff against the defendant Iron Company, but the complaint was dismissed as to the defendant M. The findings of the referee were silent on the subject of awarding costs to the defendant M.; but, before the entry of judgment, said defendant made a motion for an order awarding him costs. This motion was granted, and plaintiff appealed on the ground that the question of costs was in the discretion of the referee, and, he having failed to award costs to the defendant M., the Court had no power to make the order appealed from. Deyo, Duer & Bauerdorf, for applt.

Chas. W. Seymour, for respts.

Held, That the question of awarding costs to a successful defendant in a case where judgment is rendered against a codefendant is not one of the subjects which by 1018 of the Code is committed to the determination of the referee, but is confided expressly to the discretion of the court by § 3229 of the Code, and the practice pursued in this case has been considered the proper course of proceeding under provisions similar to those contained in the present Code. 18 How. 102; 43 How. 90; 49 How. 12.

Order affirmed as to costs, but reversed as to an extra allowance granted therein, on the ground that the action was not difficult or extraordinary.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

CREDITOR'S ACTION. N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

Peter Bowe, sheriff, et al., applts., v. John H. V. Arnold et al., respts.

Decided Dec. 21, 1883.

The sheriff and an attaching creditor cannot, either jointly or separately, maintain an action against the assignee of the debtor to set aside the assignment as fraudulent, either under the authority of §§ 655 and 677 of the Code of Civ. Pro., or for the purpose

of protecting and enforcing the lien of the attachment.

A creditor can maintain such an action only after judgment has been entered in his favor, and either after the execution has

been returned unsatisfied or before the return of the execution for the purpose of removing obstructions and setting aside

fraudulent dispositions of the debtor's property rendering the execution ineffectual. Appeal from judgment recovered at Special Term on the dismissal of the complaint.

An attachment was issued in favor of the plaintiffs, H. W. Smith, T. Gaff and R. S. Gaff, to to the plaintiff, Bowe, as sheriff of N. Y. Co. against the property of the defendants T. E. & M. T. Arnold, and a seizure was made by the sheriff under such attachment. The property so seized was claimed by the defendant J. H. V. Arnold as assignee of the other defendants, and the sheriff refused to retain it without a bond of indemnity, and thereupon this action was brought to set aside the assignment to J. H. V. Arnold as fraudulent, on the theory that such an action could be maintained by these plaintiffs under §§ 655 and 677 of the Code of Civ. Pro., or under the authority of Bates v. Plonsky, 28 Hun, 112, for the purpose of protecting and enforcing the lien of the attachment.

Walter Howe, for applts. J. H. V. Arnold, for respts. Held, That neither § 655 nor S 677 of the Code of Civ. Pro. authorized the maintenance of such an action; that those sections only authorized actions to collect and receive the debts, effects and things in action attached by the

sheriff.

That this action was not authorized by the case of Bates v. Plonsky, 28 Hun, 112, for that was an action brought to prevent the distribution of the proceeds of the prop