The provision consists of two entirely distinct clauses. The first one protects this defendant from legal responsibility for failure to transfer the vessel as the result of any cause beyond its control, and no attempt is now being made by plaintiff to recover damages for breach of contract. The second clause literally entitles the plaintiff to recover back the moneys paid on the contract if defendant has been prevented from performance by a cause beyond its control, and, concededly, such cause has arisen. We shall assume, however, upon the allegations of the complaint that our interpretation ought not to be literal, but should embrace two qualifications of plaintiff's right to recover back its money, although defendant was prevented from consummating the contract. We shall assume that, if at the time the contract was executed plaintiff was aware of a situation of which the defendant was ignorant, and which the plaintiff knew or ought to have known then did prevent or thereafter would prevent the consummation of the contract, it cannot recover back moneys voluntarily paid on the contract under such circumstances. And, secondly, we shall assume that, if after the contract was made a situation arose attributable in whole or part to the plaintiff, although not acting in bad faith, which prevented the consummation of the contract but which, in the language of the clause, was not "beyond the control" of itself, it was its duty to remove such cause, and in case of its failure so to do it cannot recover back the money which it has paid on the contract. The question is whether plaintiff comes within either of these qualifications. We do not think that it does. the indebtedness for which the stock was held and from which very possibly, if proved, the inference of fact might be drawn that plaintiff was a party to and knew all about the transaction at the time it executed this contract. But we are not dealing with questions of fact; we are considering the question whether as matter of law this complaint on its face closes the door to the relief which plaintiff is seeking. In the second place, we do not believe that the allegations of the complaint lead to the conclusion as matter of law that plaintiff, even if chargeable with knowledge of the situation of its capital stock, was bound to assume that such situation was or would prove an irremovable obstacle to the transfer of the vessel. The agreement under which the stock was deposited is not very completely set forth in the complaint. It does not appear who had previously held the title to the stock and had deposited it with the stakeholder. It does appear that the substance of the agreement was a deposit of the stock as security for the payment of an indebtedness. It is true that prior to the execution of the agreement the plaintiff and Interchange had come to a deadlock in respect of the amount of this indebtedness. But eight months intervened between the date of the contract and the date for transfer of the ship, and the plaintiff might reasonably apprehend, or at least the contrary cannot be said as matter of law, that within that time either more successful negotiations would be voluntarily concluded by the parties or that by litigation such as was thereafter instituted a settlement of the indebtedness would be obtained and transfer of the stock completed. But, fur[2] In the first place we fail to find any ther, the existence of this indebtedness was allegations in the complaint which disclose the only thing which could justify the govthat the plaintiff corporation at the time the ernmental boards in withholding their apcontract was executed was responsible for proval of transfer, and, even if it was not or knew of the deposit of its capital stock settled, we do not think that as matter of in the manner hereinbefore described. It law the plaintiff was bound to anticipate is well established that a corporation is a that the government would prohibit a transcreation ordinarily separate and distinct fer. Plaintiff was an American corporafrom one of its stockholders, even though tion, Shapiro, the stockholder, was an Amerthat stockholder owns the control of its ican citizen, and the stakeholder was an capital stock. There is nothing in the com- American citizen, and the stock, as we have plaint disclosing the relationship of Shapiro, pointed out, was really held as security for the stockholder, to the plaintiff corporation the payment of an indebtedness, and there or to its capital stock prior to the time when was no limit upon the term within which the same was deposited in escrow or that the indebtedness could be paid and possession plaintiff was a party to such deposit. He obtained of the stock free from any claims. does not appear as one of plaintiff's officers Under these circumstances we think it beexecuting the contract, and the deposit of the came a question of fact and judgment for stock may have been made without any the governmental boards to decide whether knowledge on its part either actual or im- plaintiff came within the meaning of the putable. There are allegations of a rela- statute that "no corporation * * shall tionship between plaintiff and payment of be deemed a citizen of the United States (146 N.E.) unless the controlling interest therein is the stock, for it is plainly and broadly and owned by citizens of the United States," repeatedly alleged by the complaint that the and the War Board might have found that plaintiff did everything it reasonably could, under that statute this stock, in the hands both by negotiation, by application to the of a citizen and going to a citizen, and simply governmental boards, and by litigation to held as security for the payment of indebted- get rid of its dispute. Within a fair inness to an alien, was "owned by a citizen terpretation of the clause which governs of the United States." Certainly we do not the decision of this question we do not think think that plaintiff as matter of law on that it was the duty of plaintiff to pay the these allegations was bound to assume that Interchange Limited $100,000 when it actualit would hold adversely to it on that ques-ly owed it only $1,702 in order to secure the release of its stock. tion. [3] It is suggested that plaintiff knew that by reason of the deposit of its stock the agreement for the transfer of the vessel could not be consummated without the consent of the governmental boards; that it paid its money on a conditional or inchoate contract; and that, when the contract failed because of lack of such consent, it must bear the consequences. This argument suggests considerations rather akin to those already discussed. If plaintiff did not participate in or know of the deposit of the stock, this view suggested is not applicable. If it did know of the deposit of the stock, we do not think that it was bound to appreciate that such deposit would disqualify it from being a “citizen" under the statute, and, if it did not, no consent was necessary. Therefore we do not think that on the face of the complaint plaintiff is to be charged as matter of law with having made a contract to whose consummation a bar had been erected by itself and for which, therefore, it could have no relief. To sum up, we think the complaint does not show upon its face that there was any affirmative misrepresentation by plaintiff in respect of its capacity to buy, or any concealment from defendant of a known incapacity. If the litigation of such issues becomes necessary upon the trial, it will be in connection with the defense of fraud pleaded in the defendant's answer, the sufficiency of which is not before us on this appeal. [4] Thus we come to the final question whether the situation which arose out of the deposit of plaintiff's stock and which became a bar to the transfer of the vessel as set forth in the complaint was one which could not be said to be beyond its control within the provisions of the contract, but, on the other hand, was one which should have been eliminated by it. This question, of course, resolves itself into the final inquiry whether it was the duty of plaintiff to relieve both the vendor and itself from inability to consummate this contract by paying the excessive amount demanded by the Interchange Limited as a condition of releasing This case, in our opinion, is not at all governed by the authorities cited by and in behalf of the defendant and in which it is held that a person positively and specifically contracting to do a certain thing as, for instance, to lay a pavement or erect a building is not relieved from his contract because through increased cost its performance is made more burdensome. In such a case performance of a definite agreement is not excused because of some incident which makes its performance more expensive. In this particular case, if the plaintiff had agreed that within a certain period it would procure a discharge of the claims of the Interchange Limited and thus release its stock, we assume that it would be responsible for failure to perform this agreement even though the indebtedness was larger than it had expected. But such is not this case. We are not dealing with a positive agreement to do something and of which performance will not be excused for what we may term equitable considerations. On the other hand, we are dealing with an excuse provided by the parties for nonperformance of a contract. This contract was made in the midst of war conditions, and both parties must have assumed that its consummation might be prevented by some unexpected obstacle due to such conditions, and that under such circumstances liability for damages for nonperformance ought not to be imposed, provided the parties were restored to their original condition. The excuse for nonperformance was made for the benefit of both parties, and not as a matter of favor to one. It provided for an excuse based on specified causes, and then, not content with this, it enumerated the general cause of something beyond the control of the parties. Under such circumstances we do not think that the clause is to have the rigid construction which would be applied to an agreement of performance but that it is to have the reasonable interpretation which the parties must have contemplated when they were seeking to provide for protection against the legal consequences which otherwise might flow from a failure to consum 2. Judgment 876(1)-Statute making presumption of payment arising from lapse of time conclusive, construed. Civil Practice Act, § 44, providing that presumption that judgment or decree for sum of money has been paid after expiration of 20 entitled to a mandate to enforce it shall be years from time party recovering it was first conclusive, means that when limitation applies, fact of nonpayment is immaterial, and may not be shown to rebut conclusive presumption. 3. Limitation of actions 165-Court may not pervert purpose of statute to avert an unjust result. Statute of limitations is one of repose, and court may not pervert its purpose to avert an unjust result. mate their contract because of some unanticipated reason. It hardly seems possible that these parties by the word "control" used under these circumstances meant the widest boundaries of possibility no matter at what cost or consequence. Because, of course, if defendant is right that this clause required plaintiff to pay $100,000 to satisfy a real indebtedness of $1,702, the same argument would compel it to pay $1,000,000 or any other sum within its financial capacity to satisfy the indebtedness. We think that the control which the parties contemplated should be exercised by the one charged with that obligation meant in this case the exercise of those ordinary and reasonable methods which a person would exercise under the circumstances for the purpose of getting rid of an obstacle which arose to the consummation of this particular contract, and did not mean a control purchased by submission to duress or surrender to blackmail. While they do not treat of this precise question, we think that in principle the following authorities sustain the interpreta-solidation Act, § 990, within meaning of stattion which we have placed on the contract: Delaware, L. & W. R. R. Co. v. Bowns, 58 N. Y. 573; Mineral Park Land Co. v. Howard, 172 Cal. 289, 156 P. 458, L. R. A. 1916F, 1; Columbus Ry., Light & Power Co. v. City of Columbus, 249 U. S. 399, 39 S. Ct. 349, 63 L. Ed. 669, 6 A. L. R. 1648. These views lead to the conclusion that it was error to dismiss the plaintiff's complaint, which we think under this appeal is the only question before us. The judgment of the Appellate Division should be reversed, and order of Special Term denying, defendant's motion for judgment on the pleadings affirmed, with costs in this court and in the Appellate Division. 4. Eminent domain 249-Award in street opening proceedings held to constitute a "final judgment" when confirmed by court within limitation statute. In street opening proceedings, first partial and separate report as to awards for lands acconstituted a final judgment, in view of Conquired in proceeding when confirmed by court ute of limitations, though it provided that commissioners might present their report as to assessments for benefits in their final separate reports, since landowner could enforce award without waiting an indefinite period for order confirming assessment for benefits. [Ed. Note.-For other definitions. see Words and Phrases, First and Second Series, Final Decree or Judgment.] 5. Limitation of actions 66(3)—That landowner receiving award of damages in street opening proceedings made no demand for amount thereof, held not to prevent running of statute of limitations. In street opening proceedings, that landowner receiving award of damages made no demand on city for amount thereof, did not prevent running of statute of limitations, in view of Const. art. 1, § 6; Civil Practice Act, § 15, since landowner became entitled to mandate to enforce award immediately, New York Charter (Laws 1897, c. 378) § 1001, providing that comptroller might have 30 days after demand for award before court should issue its mandate, being intended only to cut off right of claimant to interest on such award unless demand was made therefor. In re ELM STREET IN CITY OF NEW 6. Eminent domain 69-Right to payment YORK. constitutional right, not legislative creation. The right to payment is a constitutional (Court of Appeals of New York. Dec. 19, right, and not a legislative creation. 1924.) 1. Limitation of actions 165-Remedial right arising from nonperformance of a duty extinguished when statute of limitations deprives right of its judicial remedy. Remedial right arising from nonperformance of a duty is extinguished when statute of limitations deprives right of its judicial remedy. 7. Eminent domain 245-Relation between city and landowner receiving award for tak. ing of property in street opening proceedings, held to be that of vendor and vendee and debtor and creditor. In street opening proceedings, relation between city and landowner, who received an award of damages for taking of its property, (146 N.E.) but for which no demand was made, was that of 66(3)-Statute held to bar recovery on warrant for award of damages in street opening proceedings. Statute of limitations, which barred recovery of award of damages to landowner for property taken in street opening proceedings, also barred recovery on warrant issued for such award, where demand might have been made both for warrant and for payment on warrant at any time after award was firmed, in view of Civil Practice Act, § 15. con made of $36,226 for this parcel. On or about February 6, 1899, a voucher of the finance department was prepared in the sum of $40,122.28, which sum represents the amount of the award, together with interest from May 1, 1897, the date of vesting of title herein under a special statute covering these proceedings, to February 9, 1898. On the same day a warrant was drawn for this amount, and the American Express Company was notified by the comptroller that the warrant in payment of the award would be ready for delivery on February 9, 1899. The American Express Company did not call for the warrant, and it was not delivered to it. It Appeal from Supreme Court, Appellate has not been canceled, but is apparently still Division, First Department. In the matter of the application of the Mayor, Aldermen and Commonalty of the City of New York, relative to acquiring title to lands, tenements, and hereditaments required for the purpose of widening Elm street from City Hall Place, near Chambers street, to Great Jones street, opposite Lafayette Place, in the Sixth, Fourteenth and Fifteenth wards of the City of New York. From an order of the Appellate Division (208 App. Div. 844, 204 N. Y. S. 906) First Department, modifying, and, as modified, affirming, an order of the Special Term, which granted a motion requiring the Comptroller to pay an award in street opening proceedings to the American Express Company, the City of New York appeals. Order reversed, and claimant's motion denied. George P. Nicholson, Corporation Counsel, of New York City (Joel J. Squier and William B. R. Faber, both of New York City, of counsel), for appellant. William D. McNulty and Litchfield F. Moynahan, both of New York City, for respondent. outstanding. On February 18, 1903, an order was entered confirming the "last partial and separate report" of the commissioners which contained all the assessments for benefit, including an assessment in the sum of $6,537.- · 56 against "benefit parcel No. 5946," which represented that portion of the property of the American Express Company which was not acquired by the city in this proceeding. This assessment was paid by the American Express Company to the city, but it made no demand for the payment of the award to it by the city until May 31, 1921. The city then refused to pay the award on the ground that, under the provisions of sections 376 and 378 of the Code of Civil Procedure (now section 44 of the Civil Practice Act), the award is conclusively presumed to be paid. Civil Practice Act, § 44, reads as follows: "Section 44. When satisfaction of judgment presumed. A final judgment or decree for a sum of money or 'directing the payment of a sum of money, rendered in a court of record within the United States or elsewhere, or (a judgment of a court of this state not of record) docketed (in à county clerk's office upon a transcript filed therein pursuant to law), is presumed to be paid and satisfied after the exPOUND, J. On March 25, 1898, an or- piration of twenty years from the time when der was entered in the office of the clerk of the party recovering it was first entitled to a This presumption is the county of New York confirming the "first mandate to enforce it. partial and separate report" of commission- conclusive, except as against a person, who within twenty years from that time makes a ers of estimate and assessment previously appointed in the above-entitled proceeding. payment or acknowledges an indebtedness of some part of the amount recovered by the judgThis report contained all the awards made ment or decree, or his heir or personal reprefor all the lands, tenements, and heredita-sentative, or a person whom he otherwise repments acquired in the above-entitled proceed-resents. ing. It did not contain any assessment for benefit, but the order provided "that the said commissioners present their report as to assessments for benefit in their final separate report." The American Express Company owned a parcel of land at the corner of Broome and Elm streets. The city ac quired part of this land in this proceeding. This part was denominated on the maps as damage parcel No. 71, and an award was Such an acknowledgment must be in writing and signed by the person to be charged A person may avail himself of the thereby. presumption created by this section under an allegation that the action was not commenced, or that the proceeding was not taken, within the time therein limited." [1-3] A remedial right arising from the nonperformance of a duty is extinguished when the statute of limitations deprives the right of its judicial remedy. When the stat-, the order of confirmation, provides as folute says that the presumption of payment lows: arising from lapse of time is conclusive it means that, when the limitation applies, the fact of nonpayment is immaterial and may not be shown to rebut the conclusive presumption. Fisher v. Mayor, etc., of City of New York, 67 N. Y. 73, 80; Brinkman v. Cram, 175 App. Div. 372, 161 N. Y. S. 965, affirmed 225 N. Y. 720, 122 N. E. 877. The statute is one of repose. The court may not pervert its purpose in order to avert an unjust result. The "period when one who was spoken to on the subject of an old debt, could not well give a civil answer, without saying enough to take the case out of the statute" is past. Bronson, J., in Van Keuren v. Parmelee, 2 N. Y. 523, 526, 51 Am. Dec. 322. All this is elementary, but it has been held below that the statute does not apply to prevent the enforcement of the award in this proceeding begun more than 20 years after the entry of the order of confirmation herein. An analysis of the principles upon which the claim of the city rests compels us to reach the opposite conclusion. [4] 1. Was the first partial and separate report as to awards when confirmed by the court a final judgment of the Supreme Court, or was the final judgment in the proceeding the order confirming the assessments for benefit? Consolidation Act (Laws 1882, c. 410) 990, in terms provides, as in force when the lands were taken, that the report when confirmed shall be final and conclu sive. Matter of Nunez, 226 N. Y. 246, 123 N. E. 492, suggests nothing to the contrary. There the awards and the assessments were commissioners of estimate and assessments "Section 1001. All damages awarded by the with interest thereon from the date of said report, and all costs and expenses which may be taxed, shall be paid by The City of New York to the respective persons and bodies politic or corporate mentioned or referred to in said report, or in whose favor such costs or expenses shall be taxed. Interest shall cease to run on date of the confirmation of said report unless sums awarded as damages six months after the within that time demand therefor be made upon the comptroller. Said damages, costs, and expenses shall be paid from the fund for street and park openings provided for in this act, and by existing laws. The person or persons to whom awards shall be made in such proceedings, and the person or persons in whose favor costs and expenses may be taxed, shall not have * an action at law against The City of New York for such awards, costs, or expenses, but the court in which said proceedings have been had, upon the application of any such person or persons, in case of the failure of the comptroller of said city to pay the same within thirty days after demand therefor, shall require costs, and expenses from the said fund, and enand direct the comptroller to pay said awards, force said order or mandate in the same manner as other orders and mandates of said court are enforced. At most But the provision that the comptroller court shall issue its mandate does not premay have 30 days after demand before the it extends it for 30 days. The right to payvent the running of the statute. ment is a constitutional right, not a legislative creation. The award is due imme confirmed at the same time. The city as-diately. The duty of payment is absolute. serted the right to set off an award against a benefit assessment when neither had been paid. The court held that "there is a manifest equity in the cancellation of mutual cred its." No set-off was demanded in this case. The American Express Company paid the damage assessment in full. The award of damages was binding on the city, and became a judgment within the meaning of the statute of limitations on March 31, 1898. Donnelly v. City of Brooklyn, 121 N. Y. 9, 24 N. E. 17. The landowner could enforce it without waiting an indefinite period for the order confirming the assessment for benefits. [5, 6] 2. When did the party recovering the judgment first become entitled to a mandate to enforce it? Although the award became a judgment it was to be enforced, not as judgments in common-law actions are enforced, by execution, but under the provisions of law relating thereto. Former section 1001 of the Greater New York charter (Laws 1897, c. 378), in force on the date of the entry of Const. N. Y. art. 1, § 6; U. S. v. Rogers, 255 demand for payment is no part or parcel of |