

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1274

                CITY OF PORTSMOUTH NEW HAMPSHIRE,

                     Plaintiffs - Appellants,

                                v.

            RICHARD SCHLESINGER AND WILLIAM WEINSTEIN,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Paul J. Barbadoro, U.S. District Judge]                                                                

                                           

                              Before

                      Boudin, Circuit Judge,                                                     

                  Aldrich, Senior Circuit Judge,                                                         

                   and Young,* District Judge.                                                       

                                           

     Steven E.  Grill, with  whom Alexander  J. Walker,  Jr., and                                                                      
Devine, Millimet &amp; Branch, P.A. were on brief for appellants.                                         
     Christopher  Cole, with  whom  Peter S.  Cowan and  Sheehan,                                                                           
Phinney, Bass &amp; Green, P.A. were on brief for appellees.                                     

                                           

                           May 9, 1996
                                           

                                                  

*  Of the District of Massachusetts, sitting by designation.

          Per Curiam.  The Supreme Court of New Hampshire  issued                              

its  opinion  on  March  12,  1996,  in  City  of  Portsmouth  v.                                                                       

Schlesinger, et al., No.  95-399, 1996 WL 112,644 (N.H.  Mar. 12,                             

1996),  responding to  the question  certified by  this  court on

June 13,  1995.  See City  of Portsmouth v.  Schlesinger, 57 F.3d                                                                  

12, 18 (1st Cir. 1995).

          Having dealt  with appellant's  other arguments in  our

earlier  decision, the  sole remaining  issue  in this  appeal is

whether the  appellees' so-called  "illegality" defense  was time

barred.  The district  court held the defense timely  and, ruling

that it applied to appellant's  conduct, entered judgment for the

appellees.  On appeal, this court considered that  the timeliness

issue turned on whether the short statutes of limitation found in

New Hampshire Rev. Stat. Ann. sections 677:2 and  :4 apply in the

circumstances  of this case.  The New Hampshire Supreme Court has

now responded in the negative when that question was certified to

it.  The  New Hampshire  Supreme Court ruled  that the  questions

presented by  this case --  questions of an  ordinance's legality

and  ultimately the binding effect  of a promissory  note -- were

not questions of  administrative action subject to  RSA 677:2 and

:4,  but were  affirmative  defenses relating  to the  underlying

legality of the appellant's legislative action.

          In light of  the opinion  of the Supreme  Court of  New

Hampshire,  we hold  that the  district court's judgment  for the

appellee must be affirmed.                                   

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