FIRST DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. Legislature that section 998 was not to be entirely a new enactment applicable to future proceedings, but was a continuation of the Consolidation Act of 1882. This view is emphasized by many sections of the charter, notably section 1608, which in fact so provides. Nor do we find, upon an examination of the saving provisions in the charter, such as section 1614, that the fees of commissioners in pending proceedings are protected. Nor is the appellant's position strengthened by a reference to section 1448 of chapter 21 of the charter. That chapter provides generally for the acquisition of lands or interests therein for public purposes, but section 1448 expressly excepts street opening proceedings from the operation of the chapter. After providing that the chapter shall not apply to any proceedings for the opening of streets, etc., these words follow: "Or to any proceedings of any nature instituted prior to the time of the taking effect of this act, and such proceedings shall be conducted in all respects as if this act had not been passed." It is clear that this last part of the sentence refers to that part which immediately precedes it. When, therefore, the Legislature said that "such proceedings shall be conducted in all respects as if this act had not been passed," it referred, not to the proceedings which were wholly excluded from the operation of the chapter, but to such proceedings of any nature other than those so excluded as might have been previously instituted. Thus the reasonable construction is that the chapter does not apply (1) to street opening proceedings at all, past or prospective, or (2) to any other proceedings-even those embraced within the chapter instituted prior to the time of the taking effect of the charter. It is plainly these other proceedings, and these alone, which are contemplated by the concluding part of the sentence. Without attempting to refer to all the various sections of the charter bearing upon this question, it is sufficient to say that we concur in the conclusion reached by the learned judge at Special Term, that it was the intention of the Legislature, with reference to street opening proceedings, to have the charter provisions but a continuation of the existing provisions of law on that subject, and that, except so far as amendatory of or supplemental to then existing provisions, the proceedings were to be continued as though the charter had not been passed. Having given expression to an intention to change App. Div.] FIRST DEPARTMENT, OCTOBER TERM, 1898. the rate of the fees to be paid to commissioners after January 1, 1898, to that extent the charter must be regarded as an amendment of the Consolidation Act. The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements. VAN BRUNT, P. J., BARRETT, RUMSEY and MCLAUGHLIN, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. RACHEL J. RHODES, Respondent, v. JULIUS LEWIN, Appellant. 33 369 a57 30 Motion to amend a complaint - it should not be based upon the attorney's affidavit laches in making the motion. A motion for leave to amend a complaint by increasing the claim made therein APPEAL by the defendant, Julius Lewin, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of July, 1898, granting leave to the plaintiff to serve an amended complaint. FIRST DEPARTMENT, OCTOBER TERM, 1898. George Hahn, for the appellant. [Vol. 33. J. Aspinwall Hodge, Jr., for the respondent. VAN BRUNT, P. J.: This action was brought to recover damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. The original complaint alleged the damages to be $2,000. The action was commenced on the 14th of July, 1896; issue was joined therein on the 17th of August, 1896, and the case was noticed for trial in October, 1896. A motion was made for leave to amend the complaint by increasing the damages upon the ground that the injuries were more serious than they were supposed to be at the time the action was brought. The affidavit upon which the motion was founded was made by the plaintiff's attorney and not by the plaintiff, and no reason is given for the absence of an affidavit by the plaintiff. This fact alone would be sufficient to reverse the order. It is the well-settled practice that unless the facts upon which a motion is based are peculiarly within the knowl edge of the attorney, the 'affidavit should be made by the party. In the case at bar the facts must have been peculiarly within the knowledge of the plaintiff, and the affidavit of the attorney is necessarily founded upon information received from the party whose affidavit could easily have been produced. But there is another ground upon which this motion should have been denied. It seems that for a long period of time prior to the making of the motion the plaintiff's attorney had been aware of the facts upon which the same is based. It does not appear how long before this the plaintiff became cognizant of the same. Notwithstanding this fact, all that he did looking towards an amendment was to notify the defendant's attorney, some months before the case came on for trial, that he intended upon the trial to move for increased damages; and this is what he did when the case was called for trial. The court denied the motion, but gave the plaintiff leave to withdraw a juror for the purpose of moving at Special Term, and the case went over. It has long been settled that the Trial Term is not the place for the amendment of pleadings unless in respect to some feature of App. Div.] FIRST DEPARTMENT, OCTOBER TERM, 1898. the case which has unexpectedly developed itself. In this case the facts were known long before the trial. The proper practice, therefore, was to apply to the Special Term as soon as the facts are ascertained which made it necessary or advisable that an amendment should be had, so that when the case came up for trial the parties might have their pleadings in order, and the court might proceed to trial without hearing preliminary motions in regard to amendment of the pleadings. This rule the plaintiff wholly failed to observe, and the motion should have been denied on this ground as well. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. BARRETT, RUMSEY, PATTERSON and O'BRIEN, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. 33 371 WILLIAM T. GILBERT, as Receiver of the COMMERCIAL ALLIANCE Limitation of action the period of limitation cannot be so shortened as to bar existing common-law liabilities—claim by a receiver of a corporation. A statute of limitations, by which the period within which an action may be brought upon a common-law liability is shortened so that no time whatever is given within which an action may be brought upon such liability existing at the time when the statute is made to take effect, is not applicable to such liability. The fact that such a liability is sought to be enforced by the receiver of a corporation, representing a right of action which existed in the corporation prior to his appointment, does not make the statute applicable thereto. APPEAL by the plaintiff, William T. Gilbert, as receiver of the Commercial Alliance Life Insurance Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, Benjamin G. Ackerman, entered in the office of the clerk of the county of New York on the 8th day of July, 1898, upon the decision of the court rendered after a trial at the New York Special 159a 118 FIRST DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. Term, overruling the plaintiff's demurrer to the fourth defense contained in the said defendant's answer. Henry D. Hotchkiss, for the appellant. Michael H. Cardozo, for the respondent. VAN BRUNT, P. J.: This action was commenced on the 18th of March, 1898, against certain former directors of the Commercial Alliance Life Insurance Company, to recover moneys of the corporation alleged to have been misapplied by them. The defendant Ackerman alleged for a fourth defense that the alleged cause of action did not accrue within three years from the commencement of the action. It is conceded that unless chapter 281 of the Laws of 1897 (amending Code Civ. Proc. § 394) deprived the plaintiff of the right to maintain this action, the defense is bad. Prior to the passage of that act, the Statute of Limitations, in reference to actions against directors or stockholders of a moneyed corporation, required that actions to enforce a liability created by statute should be brought within three years after the cause of action had accrued; but where the liability was created by the common law, the six-year Statute of Limitations still applied, and this six-year statute was the one which was in operation at the time the liability of the defendant Ackerman, if any, accrued. The act of 1897 included, within the three years' Statute of Limitations, liabilities existing under the common law. This act was signed on the sixteenth of March, and by its terms went into effect the 1st of September, 1897. The court below held that the statute applied. Upan a consideration of the legislation in question, it appears that no time whatever was given to the plaintiff, after the act went into effect, within which to commence his action. In all of the cases cited, the time given was after the act went into effect; but in the case at bar, the moment the act went into effect the statute applied. It is true that it was a considerable period of time after the act was signed before it went into effect. By its own terms it had no vitality until the 1st of September, 1897, when the rights of the plaintiff were absolutely cut off by its terms. In all the cases cited, it is held that a party, after a new Statute of Limitations |