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Spencer v. Spencer

133 N.Y.S. 7 Court N.Y. App. Div. Decision date 1911-12-29 English

Delivered by SCOTT, J.

Contents

Majority

p. 7
SPENCER et al. v. SPENCER et al.
(Supreme Court, Appellate Division, First Department
December 29, 1911.)

Headnote

(Tenancy in Common (§ 30[1] )—Taxes—Payment by Cotenant—Interest. In partition, where defendant’s ownership of the entire property had been virtually conceded by all parties at a time previous to the action, and he had paid all the taxes thereon, defendant, upon recovery by the other parties of an award made by the city, is entitled to interest on such taxes, payable out of the fund.
IEd. Note.—For other cases, see Tenancy in Common, Cent. Dig. § 96; Dec. Dig. § 30.*]
Laughlin, J., dissenting.
Appeal from Judgment on Report of Referee.
Partition by William Augustus Spencer and another against William Augustus Spencer and others. E-rom an interlocutory judgment entered upon report of the referee, defendant Eleanora E. S. Cenci and another appeal.
Judgment modified and affirmed.
Argued before INGRAHAM,-P. J., and LAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.
Albert B. Boardman, for appellants.
Wolcott G. Lane, for respondents Spencer and Lane.
Morris Douw Eerris, for other respondent.

We concur in the result arrived at by the referee, except that we think that interest should be allowed upon the taxes paid upon the property in dispute by the parties who made such payments in the belief that they were the owners. It may be that under ordinary circumstances a cotenant, paying taxes for the benefit of himself as well as of his cotenants, would not be entitled to charge his cotenants with interest; but the circumstances here were extraordinary, in that the appellant’s ownership was virtually conceded by all parties when the taxes were paid. Under these circumstances it would be inequitable to charge appellants- with interest on the award paid to them by the city, and to refuse interest on the taxes paid by them.

In this respect the judgment appealed from is modified, and, as modified, affirmed, with costs in this court, payable out of the fund, to all parties who have separately appeared and filed briefs.

Settle order on notice.

INGRAHAM, P. J., and MILLER and DOWLING, JJ., concur. LAUGHLIN, J., dissents, and votes for reversal.