| N.Y. App. Div. | Jul 8, 1908
It is conceded that the defendant, notwithstanding his fiduciary relation, acted in good faith in bidding in the real property of these plaintiffs sold at foreclosure sale, and no question is made that the money which he advanced to protect their interests should be repaid to him.
The trial court was of opinion that interest could not be allowed on these advancements. because he took title in his own name and appropriated the rents.
It is quite apparent that the plaintiffs would have lost' the property at the foreclosure sale and would have realized no surplus' had not the defendant advanced his own money and purchased the property. He made the mistake of taking the title in his own name, possibly to protect, the money he had advanced, but he now makes no claim to the property and is ready to transfer it to'his wards.
We think an allowance of interest at the rate of four per cent on the moneys advanced would be just and equitable. There is no reason why the surplus moneys on hand should not be immediately applied toward liquidation of defendant’s claim. The provision of the judgment charging appellant with the legal rate of interest on rents received by him was proper and is not appealed from. .
The interlocutory judgment should be modified by providing that defendant be allowed interest at the rate of four per cent per ■ annum on the moneys advanced by him, and by also providing that the surplus moneys be immediately applied toward liquidation of appellant’s claim, and as so modified the judgment is affirmed, with disbursements only to appellant, to be deducted from his indebtedness for rents.
Present—Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ.
judgment modified as directed in opinion. Settle order on notice.