Sage v. City of Gloversville

60 N.Y.S. 791 | N.Y. App. Div. | 1899

Landon, J.:

We think the injunction order should be reversed as to the city of Gloversville and the defendant, its chamberlain. The taxes were duly imposed, payment was in default, and the notice of the sale of the real estate on account of such default was strictly regular. It is true that as between the defendant Wooster, who is the life tenant, and the plaintiff, who with other defendants, is a tenant in remainder, the life tenant should pay the ordinary taxes¿ But the plaintiff, as tenant in remainder, has her remedy in a proper action, to procure the appointment of a receiver of so much of the rents and income of the real estate as are necessary to pay off and discharge the taxes in arrear, unless the life tenant, within a short day to be fixed by the court, pay and discharge them. (Cairns v. Chabert, 3 Edw. Ch. 312; Sidenberg v. Ely, 90 N. Y. 257, 264.)

As such receiver can be authorized to collect the rents and pay them on the taxes, there seems to be no objection to the plaintiff, as she professes a willingness to do, advancing the receiver the money for that purpose in order to prevent the sale, the receiver after wards reimbursing her from the rents and income. If the life estate should terminate before sufficient amounts for reimbursement should he received, the deficit could be charged as upon the whole property. The plaintiff, in her notice of motion, asked for the appointment of a receiver, but none was appointed.

Order reversed as to the appellants, with ten dollars costs and disbursements, without prejudice to.the renewal of plaintiff’s motion at Special Term for the appointment of a receiver.

All concurred.

Order reversed as to the appellants, with ten dollars costs and disbursements, without prejudice to the renewal of plaintiff’s motion at Special Term for the appointment of a receiver.