USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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          No. 94-1274



                          CITY OF PORTSMOUTH NEW HAMPSHIRE,



                               Plaintiffs - Appellants,



                                          v.



                      RICHARD SCHLESINGER AND WILLIAM WEINSTEIN,



                               Defendants - Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



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



                                        Before



                                Boudin, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                             and Young,* District Judge.
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                                _____________________



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



                                     May 9, 1996

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          *  Of the District of Massachusetts, sitting by designation.



























                    Per Curiam.  The Supreme Court of New Hampshire  issued
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          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,
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          1996),  responding to  the question  certified by  this  court on



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