[Sup.Ct. to put in the lateral sewers, and M. completed them at a cost of $180. There were some trifling defects in plastering, etc., for which the referee allowed. Held, that there was a substantial performance, and that plaintiffs were entitled to recover the amount of their lien out of the balance of the contract price after making deductions for the aforesaid omissions. APPEAL by the defendant from a judgment entered in Monroe county upon the report of a referee.

M. M. Waters, for app'lts; F. L. & J. E. Durand, for resp'ts.

CORLETT, J.-On the 22d day of April, 1887, Philander Mott and John H. Huls entered into a written agreement whereby Huls agreed to build for Mott three dwelling houses on the same number of lots of land on the north side of Clifford street in the city of Rochester. The price of the dwelling houses, finished, was to be $990 each. The size, time and mode of finishing and all the particulars were set out in the agreement. It was also provided that Huls should put in a sewer for all the houses, connecting with the sewer Mott had built on the south side of Crawford street the season before, of the same size, so as to drain all the cellars of said houses with laterals for the sewers. The laterals for all the sewers were to be laid under ground and run from the back end of each cellar, and all the conductors should be so arranged as to convey the water from the roof to the laterals at the back end of each cellar. It was afterwards ascertained that the sewer referred to as the one into which the sewer agreed to be built in the contract was to connect was not deep enough for that purpose. Huls upon the request of Mott delayed the construction. of the sewer and the putting in of the water works.

In September, 1887, Mott agreed with one Tripp and others for deepening the shallow sewer, and for its expansion over the courses specified in the contract with Huls, so as to drain the three houses, which job Tripp was to complete within ninety days. Huls consented to this agreement, and allowed for its completion $120, that being the sum paid by Mott to Tripp.

After the completion of the houses in other respects Huls neglected to put in the lateral sewers, which Mott completed at an expense of $180. Huls also neglected to properly plaster the houses, and the expense of remedying this was ten dollars. One of the chimneys was also improperly built; this defect cost $3.50 to remedy. There were no other defects.

Mott paid Huls upon the contract $1,900, and $120 to Tripp. making in all, $2,020. The defendants furnished to Huls after making the contract lumber of the value of over $800 to be used in the construction of the houses, which was so used. That sum for lumber remains unpaid. Huls performed extra work at Mott's request on the houses of the value of thirty-five dollars.

Mott took possession of the houses in October, 1887, and on the 10th of October of that year the plaintiffs, who were lumber dealers, filed notice of lien upon the premises for $800. Mott was indebted to Huls upon the building contract, and for extras, including interest to September 21st, 1889, the date of the report, the amount of $876.58.

The action is brought to foreclose the lien. Issue was joined;

the case was referred; the referee found the above facts upon sufficient evidence, and after deducting the above amounts for defective construction, and non-performance, judgment was entered upon his report, and the defendant appealed to this court.

The evidence shows that the plaintiffs furnished lumber to various contractors, and that payments were made to them by different persons without a full account being kept. The defendants claim that the amount found was not shown to be due on account of lumber furnished Huls. An examination of the evidence shows with reasonable certainty that the amount found for which the lien was filed was correct. The appellant further contends that on account of the various defects and omissions it was not a case for deductions, but one of substantial non-performance, and that a lien could not be enforced.

The plaintiffs contend that there was a substantial performance, also that under chap. 342 of the Laws of 1885 it was not necessary to prove full performance of the contract to enable them as lienors to maintain the action, and refer in support of their contention to the following cases. Wright v. Roberts, 43 Hun, 413; 6 N. Y. State Rep., 769; Larken v. McMullin, 12 id., 123; Graf v. Cunningham, 109 N. Y., 369; 15 N. Y. State Rep., 524; Van Clief v. Van Vechten, 48 Hun, 304; 15 N. Y. State Rep., 896; Miller v. Mead, 3 N. Y. Supp., 784; S. C., aff'd, 6 id., 273; 26 N. Y. State Rep., 155.

The defects in the chimney and plastering were of trifling im portance. Full compensation was made, and a recovery ought not to be defeated on those grounds. The $180 expense to complete the water connections was more important, but to some extent the difficulty over that question grew out of the shallow sewer. Full allowance was made by the referee for this expense, and within the above cases, the plaintiffs as lienors should not be defeated on account of this omission. There were no errors on the trial in matters of substance which could prejudice the defendant. The judgment must be affirmed.

DWIGHT, P. J., and MACOMBER, J., concur.

ANTOINETTE MACAULEY, App'lt, v. ROBERT H. SMITH et al., Resp'ts.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) ATTACHMENT-DEED.

One T., being the owner of certain premises, conveyed the premises in 1871 by deed, and took back an agreement stating that the conveyance was security for a loan for a term not exceeding one year; that if the loan was repaid within the year the grantees would reconvey; if not, the deed was to be absolute; which agreement was never recorded. The loan was not repaid, and at the end of the year the grantor surrendered the premises, and the same were afterwards sold to a bona fide purchaser. In an action by judgment creditors of T. to have the deed declared a mortgage and the real estate adjudged to be subject to the lien of the judgment, which had been recovered by default on service by publication, Held, that the rights of T. in the premises after the expiration of the year were at most of an equitable nature and not subject to attachment, and, therefore, the lien of the judgment could not attach thereto.

N. Y. STATE REP., VOL. XXXII.

94

APPEAL by the plaintiff from a judgment, entered on the findings and decision of the court at special term.

J. Van Voorhis, for app'lt; R. Tracy, for resp'ts.

DWIGHT, P. J.-The judgment dismissed the complaint on the merits. The action was in the nature of a creditor's bill to have certain conveyances of real estate, by warranty deeds, declared to be mortgages, and to have the real estate adjudged to be subject to the lien of a certain judgment recovered by the plaintiff against the grantor in such deeds, and of an execution issued thereon. The action in which the judgment was entered was for the recovery of money only, and was commenced in August, 1879, by publication of a summons against the defendant therein as a non-resident, and an attachment was at the same time issued against her property, which was in form levied upon the real estate in question. Judgment by default was entered in that action in July, 1883, and an execution issued thereon to the sheriff of the county where the property was situated, which has never been returned.

The facts bearing upon the status of the title to the property in question at the time of the commencement of the plaintiff's action, and the issue of the attachment therein, were as follows:

On and prior to the 6th day of July, 1871, Lucilia Tracy was the owner and in possession of that property, consisting of two parcels of real estate on Alexander street in the city of Rochester, known as the Tracy seminary property, upon one of which parcels there were two mortgages of $5,000 and $2,000 respectively. On the 5th day of July, 1871, she entered into an agreement in writ ing with the defendants, Robert H. Smith and Calvin Tracy, and one Slocum Howland, since deceased (who is represented in this action by the defendants, William and Emily Howland, as his executors) whereby in consideration of and for the purpose of securing a loan of $8,240, she agreed to execute and deliver to them a good and sufficient warranty deed of both parcels of land above mentioned; and the agreement proceeds as follows: "And the said Howland, Smith and Tracy, in consideration of, and before the execution and delivery of, said deed, hereby agree to advance the said sum of $8,240 (in a manner specified) to the said Lucilia Tracy. It is also hereby agreed by and between the parties hereto that the said deed is to be and is a security for said loan for a term not exceeding one year from the date of said deed, which is to be hereafter executed; and that upon the repayment of said sum of $8,240, with interest, within or at the expiration of said one year, by the said Lucilia Tracy, her heirs, executors, administrators or assigns, the said Howland, Smith and Tracy, their and each of their heirs, executors, administrators or assigns, are to reconvey said premises so conveyed, to said Lucilia Tracy, her heirs, executors, administrators and assigns, free from all incumbrances or liens thereon, except such as exist and are liens or incumbrances upon said premises at the time of the conveyance thereof as aforesaid by the said Lucilia Tracy.

"And in case the said sum of $8,240 shall not be repaid dur

ing or at the expiration of one year as aforesaid, then it is understood and agreed that the said deed so as aforesaid to be executed by the said Lucilia Tracy is to become and be a deed absolute, and the said Howland, Smith and Tracy, or their heirs or assigns are to become and be the owners thereof in fee simple absolute." Accordingly, on the following day, Miss Tracy executed and delivered to the other parties to the agreement deeds of the two parcels of land, containing the usual covenants of warranty, which were on the same day duly recorded in the clerk's office of Monroe county, in and by one of which deeds the grantees, as part consideration of the conveyance, assumed the payment of the two mortgages above mentioned.

The loan was not repaid and in December, 1872, the grantor quit and surrendered possession of the premises to the grantees, who remained in possession thereof, by tenants or otherwise, until the 1st of January, 1875, when they sold and conveyed the same to the defendant, the New York Baptist Union for Ministerial Education, which has ever since been in possession of the premi ses, claiming title thereto.

The agreement of July 5, 1871, was never recorded and the defendant, the Baptist Union, etc., had no notice thereof at the time of its purchase of the property.

It is conceded, on the part of the plaintiff, that her judgment against the grantor in the deeds above mentioned is of no force or effect for the purposes of this action unless as a judgment in rem by virtue of a levy of the attachment upon the property in question. Code of Civil Procedure, § 707.

It is also in effect conceded that mere equitable assets or interests in property, real or personal, are not subject to the levy of an attachment; but the contention on the part of the plaintiff is that the interest of the defendant in that judgment, in the property against which the attachment was directed, was the legal title and not an equitable interest merely; that the conveyances to the defendants, Howland, Smith and Tracy, interpreted in the light of the instrument of defeasance executed between the same parties, were mortgages merely, and did not pass the legal title to the property, but that the legal title, notwithstanding such deeds, remained in the grantor and was subject to the levy and lien of the attachment issued in the plaintiff's action.

This contention, we think, cannot be sustained. The agreement of defeasance which preceded the execution of the deeds, while it provided that the deeds were to be security for the loan, also prescribed the mode and condition of defeasance, viz., by a reconveyance by the grantees, upon payment of the loan, with interest, within one year. The deeds were to be, and were, absolute in form and absolute in effect subject only to the right of the grantor to have a reconveyance upon repayment of the loan within the time prescribed. There was no undertaking or agree ment on the part of the grantor to repay the loan and no indebtedness was created by the agreement which could have been collected by the grantees in any form of action. The option to repay the moneys and take a reconveyance of the property was a privi

lege of the grantor and there was no corresponding option to be exercised by the grantees; they could not tender a reconveyance of the property and demand the repayment of their money.

We do not propose to extend the discussion to any inquiry as to what, if any, rights or remedy the grantor possessed under this agreement after the expiration of the time within which she might demand a reconveyance; whether, for example, she might, after that time, have maintained an action to declare the deeds to be mortgages, and for the right to redeem. It seems to us very clear, upon the case above stated, that whatever her rights or her remedy, they were of an equitable character, and could be estab lished only by a resort to equity; and that until they were so established she had no legal title or interest in or to the property conveyed which was subject to the levy or lien of an attachment. In Thurber v. Blanck, 50 N. Y., 80, 87, it was held that whenever debts and choses in action are so situated as to require the exercise of the equitable powers of the court to bring them within the reach of legal process, they must be treated as equitable assets only, and are not subject to attachment. See, also, Anthony v. Wood, 96 N. Y., 180.

And in this respect we suppose there is no distinction between real and personal property, rights and interests; that where the interest of the debtor in either class of property can be established only by resort to equity, it is to be treated in respect to the application of legal process as an equitable interest only, and is not subject to the lien of an attachment.

Upon the ground so far discussed, we think the complaint in this action was properly dismissed, and that the judgment must be affirmed.

MACOMBER and CORLETT, JJ., concur.

Judgment appealed from affirmed, with costs.

THE POST EXPRESS PRINTING COMPANY, Resp't, v. STEPHEN COURSEY, App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) 1. BUSINESS CORPORATIONS-DIRECTORS-LAWS 1875, CHAPTER 611.

At the organization, in 1886, of a corporation under chapter 611, Laws 1875, defendant, with others, was elected a director, the resolution adopted at the time providing that the directors should hold office until their successors were chosen. The by-laws provided for an election in January, in each year, and that the directors should hold office for one year, and until their successors were chosen; but in no case to hold longer than three months after the expiration of the year. No election was held in 1887, and no other directors have been elected. As late as December, 1887. defendant testified that he was one of the directors. In an action to recover a debt of the corporation from defendant on the ground of a falure to file the annual report, Held, that defendant was a director for at least one year from the date of his election, and was liable for the debt, as it was contracted within that period.

2. SAME EVIDENCE.

While the judgment-roll in an action against the corporation is not admiss ble as evidence of the debt in an action against a director of the corporation under the statute, its admission as proof of the costs awarded against the corporation, which plaint ff claims to recover in addition to