App. Div.] FOURTH DEPARTMENT, JULY TERM, 1896. ment. (Id.) And in a conflict of equitable claims, the rule of law as well as in equity is, qui prior est tempore potior est jure. As between different assignees of a chose in action, by express assignment from the same person, the one prior in point of time will be protected, though he has given no notice to either the subsequent assignee or the debtor. (Muir v. Schenck, 3 Hill, 228.) And the assignee is subject to the equities existing in favor of third persons. (Owen v. Evans, 134 N. Y. 514.) The provisions of the Code make no distinction between nonnegotiable things in action and evidences of debt and commercial paper overdue, as regards the protection of a bona fide purchaser without notice and why should we draw such a distinction, when no substantial distinction exists? More reason why the assignee of commercial paper should be protected. Prior to the Code provision the equitable lien attached to all things in action and evidences of debt, without regard to the particular character of the instrument, whether negotiable in its inception or otherwise. The doctrine applied equally to both kinds of paper. So this exception in favor of bona fide purchasers must have application to all kinds of instruments or evidences of debt, excepting, of course, commercial paper negotiated before maturity to a bona fide purchaser for a valuable consideration. The words "without notice" mean without actual notice of the proceedings, or a knowledge of such circumstances as may be deemed equivalent to such notice. (Wilson v. Marion, 147 N. Y. 589.) Several inquiries are suggested here in respect to actions in the nature of creditor's bills under the Code. Is an equitable lien upon the things in action and evidences of debt created by the mere service of the summons and complaint, or is the service of an injunction order requisite to its creation? (See Stewart v. Isidor, 5 Abb. [N. S.] 68, 70; Clark v. Brockway, supra; Code, §§ 1871, 1876.) When the lien attaches, is it superior to the claim of a bona fide assignee, as formerly, or is such an assignee to be protected? The Code makes no provision upon the matter. If the old rule in respect to creditor's bills still prevails, we have this anomaly: That if the creditor institutes supplementary proceedings no equitable lien attaches to the choses in action and equitable assets of the debtor as against a bona fide purchaser, without notice, and for a valuable consideration; but otherwise, if he proceeds by action. FOURTH DEPARTMENT, JULY TERM, 1896. [Vol. 8. But why should such a purchaser or assignee be protected in the one case and not in the other? However, these are simply suggestions, and not matters presented here for judicial determination. The conclusion of the court is that the claim of a bona fide assignee or purchaser for value, without notice of the proceedings supplementary to execution commenced against the assignor, is superior to the equitable lien of the judgment creditor and to the title of the receiver appointed subsequent to the assignment or purchase. The referee allowed the purchaser (Charles A. Miller) the amount which he paid for the notes, and no claim is made for a greater amount, but he acquiesces in the decision. The referee finds that John P. Zimmer, the judgment debtor, transferred the notes to Charles A. Miller at the request of the makers, Stephen T. Miller and Charles M. Allen, the assignors of the assigned estate, and that said Charles A. purchased the notes at the latter's request and for their benefit, but he also finds that he paid his own individual money for the notes. Counsel for the receiver contends that this is equivalent to a finding that Miller purchased the notes as agent for the makers, and consequently he was not a bona fide purchaser, without notice and for value. The finding does not warrant that construction, nor was it contemnplated by the referee. In effect, the referee finds that Miller purchased for himself, and there is no finding of a purchase as agent. That he purchased at the request and for the benefit of the makers of the note (one of whom was his brother) may be understood as meaning that he would return to them the excess, over and above the amount that he paid for the notes, that he might receive from the assignee of the estate, and it is only that amount which he claims as against the receiver of John P. Zimmer. The decree, so far as appealed from, is affirmed, with costs, pay able out of the fund. All concurred. Decree, so far as appealed from, affirmed, with costs, payable out of the fund. App. Div.] FOURTH DEPARTMENT, JULY TERM, 1896. THE CENTRAL PRESBYTERIAN CHURCH OF Rochester, Respondent, v. JAMES J. THOMPSON, Appellant. Subscription to build a church - when it expresses a sufficient consideration. " An instrument in writing, directed to the trustees of a church, by which the subscriber agrees to pay "the sum of one hundred dollars a year for five years toward the purchase of land and the erection of a new auditorium, and such improvements as the trustees of the church "have contemplated," where the church, upon the faith of this and other subscriptions, has proceeded to purchase land and construct a building at a cost exceeding the amount subscribed, expresses a sufficient consideration to sustain the promise. APPEAL by the defendant, James J. Thompson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 21st day of April, 1896, for $336, upon the decision of the court rendered after a trial at the Monroe Trial Term before the court without a jury. Medcalf & Burns, for the appellant. Horace McGuire, for the respondent. WARD, J.: The plaintiff is a religious corporation located in the city of Rochester, N. Y. It desired to purchase land and build a new auditorium for religious purposes. About the 10th of March, 1890, a large church meeting was held upon the subject, and the meeting determined to obtain promises or subscriptions for the purchase of land and for the building of the structure. The trustees of the plaintiff concurred and subscriptions were obtained to the amount of $104,000, and the plaintiff proceeded and purchased the land needed and constructed the building at a cost exceeding the amount subscribed, relying upon those subscriptions, among which was the undertaking of the defendant in writing which the plaintiff received, executed on the 10th day of March, 1890, of which the following is a copy: March 10th, 1890. "To the Trustees of Central Presbyterian Church : 66 agree to pay the sum of one hundred dollars per year for five years toward the purchase of land and the erection of a new audi FOURTH DEPARTMENT, JULY TERM, 1896. [Vol. 8. torium, and such improvements as you have contemplated. Payments to be made quarterly, commencing April 1st, 1890. "J. J. THOMPSON, "Residence, 24 So. St. Paul." The defendant paid $200 upon the subscription at various times from April 17, 1890, to March 31, 1892, inclusive, but he refused to pay the balance, and a recovery was had against him therefor upon which judgment was entered, and from that judgment an appeal brings the question before us, and the appellant makes the point that there was not sufficient consideration shown by the evidence to support the promise. In examining the appeal book we find no statement that it embraces all the evidence and proceedings upon the trial, so that the respondent may stand upon the presumption, in the absence of such statement, that there was evidence sufficient upon the trial to sustain the judgment. But assuming that, as is very likely the case, we have all the evidence before us, and that the omission of the statement referred to was accidental, we have reached the conclusion that there was evidence sufficient to sustain the finding of the trial court, that, relying upon the said subscriptions made by the defendant and other subscribers, and pursuant to the requests therein implied to purchase the lands and construct the church edifice, the plaintiff, by its trustees, after the execution of the defendant's subscription and others, did purchase land at an expense of $36,500, and proceeded to erect thereon a church edifice for the use of the plaintiff, expending therefor between $80,000 and $90,000. A careful examination of the instrument signed by the defendant will disclose that it is addressed to the trustees of the plaintiff; that it contains an agreement to pay the $500 towards the purchase of land and the erection of the new building "as you (the trustees) have contemplated." Here is an agreement, first, to pay; second, to pay for such building as the plaintiff has contemplated. This, therefore, is at least an implied proposition on the part of the defendant that, if the plaintiff will go to the expense of this structure, the defendant will pay the money at the stipulated period; and when it appears, as in this case, that the plaintiff has complied with the conditions imposed upon it by the defendant's writing, a sufficient consideration is shown to support the defendant's promise and he is App. Div.] FOURTH DEPARTMENT, JULY TERM, 1896. liable; and this position is abundantly sustained by authorities. (M'Auley v. Billenger et al., 20 Johns. 89; Barnes et al., Trustees, v. Perine, 12 N. Y. 18; Richmondville Union Seminary v. Me Donald, 34 id. 379; Roberts v. Cobb, 103 id. 600.) The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs. WILLIAM DUFFUS, Respondent, v. HOWARD FURNACE COMPANY, Appellant. Conditional sale of a portable furnace — rights of a mortgagee of the house in which it is put, where the conditional rendor fails to file the conditional contract of sale · burden of proof as to bona fides and notice — effect of the amendment of chap. 315 of 1884 by chap. 684 of 1893. Where a portable furnace has been purchased by the owner of a house, subject to the condition that it shall remain the property of the vendor until fully paid for, and has been placed in the house in such wise that it can be removed therefrom without injury to the freehold, there remains impressed upon it the character of personal property, and the vendor has a right to remove it from the house upon the failure of the vendee to pay for it. In such a case the holder of a mortgage upon the house is not entitled to claim that the furnace is covered by his mortgage, because of the provisions of chapter 315 of the Laws of 1884, as amended, to the effect that, upon a conditional sale of goods, accompanied by immediate delivery and followed by an actual continued change of possession, all conditions and reservations, which provide that the ownership of the goods is to remain in the vendor until the goods are paid for, shall be absolutely void as against subsequent purchasers and mortgagees in good faith, unless the contract of sale, or a copy of it, be filed in the proper county clerk's office — unless he shows affirmatively that he is a mortga gee in good faith, and without notice of the rights of the vendor, and he is not relieved from making such proof by the omission of the defendant to file the mortgage or bill of sale. Quare, whether the fact that "portable furnaces" were taken out of the provisions of chapter 315 of the Laws of 1884, by chapter 684 of the Laws of 1893, did not operate to take away the plaintiff's cause of action which was based upon the former statute. APPEAL by the defendant, the Howard Furnace Company, from a judgment of the County Court of the county of Onondaga in |