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LIMITATION. PAYMENT. C. W. Pleasants, for applt.

N. C. Moak, for respt.

Held, That defendant, being a Bean, respt., v. Tonnele, applt.

non-resident of the state from the

date of the note until 1876, could Decided Jan. 15, 1884.

not plead the statute of limitaDefendant, who made the note in suit in 1859, tions; that as matter of fact the

was then and continued to be a non-resi- action was commenced within six dent until 1876. The action was brought in

years after that time. 1880. Held, That defendant could not

Defendant offered to show the plead the statute of limitations. A promissory note is presumed to be paid poverty of the plaintiff during the after the lapse of twenty years.

time of the running of the note. In an action on a promissory note evidence

This evidence was excluded. of the plaintiff's poverty during the time it was running is relevant and material on

Held, Error; that the proof the question of payment. An error in re. offered was relevant and material jecting such evidence is not cured by re- as it tended to fortify the prejecting evidence explaining plaintiff's de sumption that the note had been lay.

paid or otherwise satisfied. WharThis was an action upon a prom-ton on Ev., $ 1363; 4 Munf., 428; issory note for $650, dated May 16 Wend., 425 ; 10 N. Y., 170. 12, 1859, payable six months after Evidence explaining plaintiff's date, made by defendant payable delay was rejected on defendant's to the order of one D., who died objection. in 1876. The action was com- Held, This did not cure the ermenced Oct. 18, 1880.

The note

ror of the court in rejecting the was indorsed by D. in blank, and evidence offered as to plaintiff's plaintiff claims to recover as in- poverty. dorsee. The note was made in At common law payment of a Jersey City, where both the maker bond or other specialty would be and payee resided when it was presumed after the lapse of twenty made, the plaintiff then and ever years from the time it became due since has been a resident of New in the absence of evidence exYork. The payee removed to the plaining the delay, although City of New York about 1860 and there was no statute bar. 15 Vin. resided there until his death. De Abr., Length of time pl. 5, 6; fendant continued to reside in 6 Mod., 22 ; 7 T. R., 270 ; 7 Johns., Jersey City until 1876, when he 556 ; 10 id., 381 ; 1 Brad., 192. removed to New York. Defend In respect to simple contracts ant testified that he made the note the same presumption has been for the ‘accommodation of the applied after the lapse of twenty payee and this evidence was not years. 6 Mod., 22 ; 5 Esp., 52; 1 controverted. It did not appear Root, 312: 8 Conn., 168 ; 6 Munf., what consideration plaintiff paid. 532 ; 8 Pick., 187; 7 Wend., Defendant pleaded the statute of 94. limitation and payment.

Judgment of General Terin, af

firming judgment for plaintiff, re. | by the statute. Laws 1871, chap. versed and new trial granted. 481, § 2. The debt remained due

Opinion by Andrews, J. All and unpaid, and prior to Dec. 22, concur.

1879, the formal consent of the

stockholders required by the act INSOLVENCY. CORPORA

of 1871 and the Act of 1878 (chap. TIONS.

163) was given and filed, and on

that day the mortgage in suit was N. Y. COURT OF APPEALS.

duly executed to secure the same Paulding, trustee, applt. v. The debt, and, as the court finds, “ in Chrome Steel Co. et al., respts.

lieu of and as a substitute for the

said two prior mortgages and each Decided Jan. 15, 1884.

of them, and for the purpose of To render a transfer by a corporation invalid giving security, and in pursuance as having been made in contemplation of and fulfillment of the original insolvency, it is not sufficient that insol agreement” made by the company vency and the act co-exist; it must have

prior to the loaning of the money been made because of existing or anticipated insolvency or it is not prohibited.

and in consideration of and in reIn determining whether such a transfer is liance upon which the said money fraudulent the date of the agreement pur

was loaned."

The trial court suant to which it was made, and not the

found that the company was day when the conveyance was in fact executed, is to be regarded. The question insolvent, and while in this condidepends on what was passing in the minds tion made, and the plaintiff reof the company's officers when the transfer ceived, the mortgage in controversy was executed.

“in contemplation of the insolThis action was brought to fore- vency of the company,” and held close a chattel mortgage executed that the mortgage was invalid. by the President and Secretary of B F. Tracy, for applt. the corporation defendant. On Winchester Britton, for respts. October 2, 1874, under the direc- Held, Error; that the fact that tion of its trustees, who were also when the last mortgage was made its only stockholders, a chattel the company was insolvent was mortgage was executed, which not conclusive evidence that the conveyed the property described mortgage was made in contemplain the complaint. After the ma. tion of insolvency and the mortturity of the debt, in September, gage void within the statute, 1 1877, a new mortgage was executed R. S., 603, $4; the other circumby the same authority in lieu of stances in the case should not have and as a substitute for the one of been disregarded. 4 Burr., 2235 ; 1874, conveying the same property 18 Wall., 375, 388; 59 N. Y., 5. and securing the same debt. In An act in contemplation of exneither case was the written as-isting insolvency is as much within sent of the stockholders or any the statute as one done in anticiof them filed in the office of the pation of future insolvency. The clerk of the county, as required I act must have been done because of existing or anticipated insol- by one joint tort feasor of the damages oc vency or it is not prohibited. It

casioned by the joint wrongful act of both

is proper in mitigation of damages. is not enough that insolvency and the act co-exist. 59 N. Y., 5.

This action was brought by A company, although insolvent, plaintiff, as receiver of the Bewl. may deal with its creditors by ing Green Svgs. Bk. against its making payment, or in the ordi- vice-president, to recover for losses nary course of business transfer occasioned by alleged illegal loans or sell its property. Some other

Some other made by him of the funds of the fact, therefore, must be proved bank. The only damage occurring before it can be held that a transfer in consequence of such loans was thus made is fraudulent, and in that they remained due and unconsidering that question the date paid at the time of the commenceof the agreement pursuant to which ment of the action. Defendant any transfer is made, and not the interposed a general denial to this day when the conveyance is in fact part of the answer and, by a supexecuted, is to be regarded. As

As plemental answer pleaded that between the parties at any rate the president and secretary of the the fulfillment of the agreement bank were jointly liable with de relates back to the time when the fendant for the causes of action alobligation was incurred. 9 Ch. leged in the complaint, and that App. Cas. 752 ; 78 N. Y., 131 ; 1 for a good consideration paid by Cowper, 117; 16 B. & C., 44. The said president and secretary to statute makes the question depend plaintiff they had been released upon what was passing in the and discharged from liability on minds of the officers of the com- account of said several causes of pany when the mortgage was exe action, and thereby said defendcuted.

ant became discharged therefrom. Judgment of General Term, Plaintiff gave evidence tending to affirming judgment for defendants, show that said president and secreversed and new trial granted. retary and defendant as vice-presiOpinion by Danforth, J. All dent co-operated in making the

alleged illegal loans, and that por:

tions of said loans remained unPLEADING. PAYMENT. paid when the case was tried. N. Y. COURT OF APPEALS.

Defendant offered to prove the pay.

ment to plaintiff by the president Knapp, recr., respt., v. Roche, of $45,000 on account of the alapplt.

leged overdrafts which the eviDecided Jan. 15, 1884.

dence showed were the basis of When the fact of non-payment is alleged in plaintiff's claim against defendant.

the complaint as a necessary and material This evidence was objected to and fact to constitute a cause of action a de

excluded. fense of payment is admissible under a gen

Erastus Cooke, for applt. eral denial. Evidence of satisfaction, in whole or in part,

John E. Develin, for respt.



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Held, Error; that it was an es- Opinion by Ruger, Ch. J. All sential part of plaintiff's case to allege the non-payment of the loans in question; that a general REFEREE. COSTS.

. denial of the allegations of the complaint put in issue the fact of N. Y. SUPREME COURT. GENERAL non-payment and rendered evi

TERM. FIRST DEPT. dence controverting the fact ad- The N. Y. Elevated R. R. Co., missible under the answer. When applt. v. The Philadelphia Archithe fact of non-payment is alleged tectural Iron Company et al., in the complaint as a necessary respts. and material fact to constitute a cause of action, a defense of pay.

Decided Dec. 21. 1883. ment is admissible. 10 N. Y., 316; When on the trial of an issue of fact before 16 id., 297; 41 id., 349. It is al

a referee judgment is rendered against ways competent to prove under a one defendant but in favor of another, the general denial any facts tending to question of awarding costs to the successful

defendant is not left to the discretion of the controvert the material afflrmative

referee, under $ 1018 of the Code of Civ. allegations of a complaint. 41 N

Pro., but that matter is committed to the Y., 349; 32 Barb., 293; 62 id., 131. discretion of the Court by § 3229, and the While a plea of payment by a

proper practice is for the successful de

fendant to move the Court for an order stranger between whom and the

awarding him costs. defendant there is no privity has sometimes been held to be una- This action was tried before a vailable as a defense, 4 Paige, referee and judgment was 654; 53 N. Y., 67, yet satisfac- dered in favor of the plaintiff tion by one joint tort feasor has against the defendant Iron Comalways been held to be available pany, but the complaint was disas a bar to an action against missed as to the defendant M. another. 1 Johns., 291; 6 id., 31; The findings of the referee were si45 N. Y., 635; 75 id., 498. This lent on the subject of awarding rule applies with equal reason to a costs to the defendant M.; but, partial satisfaction by one of the before the entry of judgment, said wrong doers of the damages oc- defendant made a motion for an casioned by the joint wrongful act order awarding him costs. This of both. Such evidence is proper motion was granted, and plaintiff in mitigation of damages and un- appealed on the ground that the der the former practice was admis- question of costs was in the discresible under the general issue. 19 tion of the referee, and, he having Wend., 409; 11 N. Y., 347; 2 Hill, failed to award costs to the defend194.

ant M., the Court had no power to Judgment of General Term, af- make the order appealed from. firming as modified judgment for Deyo, Duer & Bauerdorf, for plaintiff, reversed and new trial applt. ordered.

Chas. W. Seymour, for respts.


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Held, That the question of fraudulent dispositions of the debtor's prop. awarding costs to a successful de- erty rendering the execution ineffectual. fendant in a case where judgment Appeal from judgment recovis rendered against a codefendant ered at Special Term on the disis not one of the subjects which by missal of the complaint. S 1018 of the Code is committed to An attachment was issued in the determination of the referee, favor of the plaintiffs, H. W. but is confided expressly to the Smith, T. Gaff and R. S. Gaff, to discretion of the court by $ 3229 to the plaintiff, Bowe, as sheriff of of the Code, and the practice pur- N. Y. Co. against the property of sued in this case has been consid- the defendants T. E. & M. T. ered the proper course of proceed Arnold, and a seizure was made ing under provisions similar to by the sheriff under such attachthose contained in the present ment. The property so seized was Code. 18 How. 102; 43 How. 90; claimed by the defendant J. H. 49 How. 12.

V. Arnold as assignee of the Order affirmed as to costs, but other defendants, and the sherreversed as to an extra allowance iff refused to retain it without granted therein, on the ground a bond of indemnity, and there that the action was not difficult or upon this action was brought to extraordinary.

set aside the assignment to J. H. Opinion by Daniels, J.; Davis, V. Arnold as fraudulent, on the P. J., and Brady, J., concur. theory that such an action could

be maintained by these plaintiffs

under SS 655 and 677 of the Code CREDITOR'S ACTION.

of Civ. Pro., or under the authorN.Y. SUPREME COURT. GENERAL ity of Bates v. Plonsky, 28 Hun, TERM. FIRST DEPT.

112, for the purpose of protecting

and enforcing the lien of the atPeter Bowe,

sheriff, et al., tachment. applts., v. John H. V. Arnold et

Walter Howe, for applts. al., respts.

J. H. V. Arnold, for respts. Decided Dec. 21, 1883.

Held, That neither $ 655 nors

677 of the Code of Civ. Pro. auThe sheriff and an attaching creditor cannot, thorized the maintenance of such

either jointly or separately, maintain an action against the assignee of the debtor to

an action; that those sections only set aside the assignment as fraudulent, ei authorized actions to collect and ther under the authority of SS 655 and 677 receive the debts, effects and

of . of protecting and enforcing the lien of the things in action attached by the attachment.

sheriff. A creditor can maintain such an action only

That this action was not authorafter judgment has been entered in his ized by the case of Bates v. Plons. favor, and either after the execution has ky, 28 Hun, 112, for that was an acbeen returned unsatisfied or before the return of the execution for the purpose of

tion brought to prevent the distriremoving obstructions and setting aside 'bution of the proceeds of the prop

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