App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. The assessment roll was filed in the office of the board of assessors of the county of Richmond on October 30, 1897, and public notice thereof given on that day, but the writ of certiorari was not applied for until July 18, 1898. Section 8 of the Laws of 1892, chapter 489, as amended by chapter 286 of the Laws of 1896, which is a special act relating to the county of Richmond, provides that "in the county of Richmond the time when the completed assessment rolls shall be delivered to the proper officer, to remain with him for a period of fifteen days for public inspection, shall be on or before the first day of November, and the proper public officer shall be deemed to be the board of county assessors at their office." This act, which prescribes the time and place of filing the completed assessment rolls in the county of Richmond, was made in contemplation of the general act of 1880 (Laws of 1880, chap. 269), and must be read in connection with the provisions of that act. Section 9 of the act of 1880 provides that "All assessment rolls, when finally completed and verified by the assessors, shall in towns, on or before the first day of September, and in incorporated villages and cities at the time prescribed by their respective charters, or laws applicable to them, be delivered to the town, village or city clerk, or other officer to whom such rolls are, or may be required by law to be delivered, and there to remain with such clerk or other officer for a period of fifteen days for public inspection. The fifteen days from which to complete the time within which the application for the writ of certiorari can be made under this act shall be the time when said public notice is first given." * * * * * The special act of 1896, above referred to, expressly preserved "all remedies now afforded by law to owners of property for erroneous assessments or valuations subject to the changes made therein hereby " (§ 8), and repealed all acts "inconsistent with or repugnant to the provisions of this act so far as the same affects the county of Richmond" ( 13). This special act became a law before the General Tax Law (Laws of 1896, chap. 908), which repealed the pre-existing general law (Chap. 269, Laws of 1880) and required "the assessment roll, when thus completed and verified, to be filed on or before September first in the office of the town or city clerk, there to remain for fifteen days for SECOND DEPARTMENT, MARCH TERM, 1899. [Vol. 38. public inspection," etc. (§ 38), and limited the time for applying for a writ of certiorari to "fifteen days after the completion and filing of the assessment roll and the first posting or publication of the notice thereof, as required by this chapter" (§ 251). The relator claims that the completed assessment roll in this action was never properly filed, for the reason that it was not filed in the office of the town or city clerk, as provided by the General Tax Law of 1896, last cited, and that, in order to limit the time within which a writ of certiorari might be applied for, the assessors of Richmond county should have complied with the provisions of section 251 of said General Tax Law of 1896, and that no other filing than that prescribed by the general law could be effectual to limit the period within which the relator must apply for the writ. The adoption of this construction would bring the provisions of the general law in conflict with those of the special act relating to the county of Richmond which the former did not repeal. The rule of procedure prescribed by the act of 1880 was in existence when the special act of 1896 (Chap. 286) was passed, and has been continued in force by that act, so far as the latter referred to and adopted it, although the earlier act was afterwards repealed. (Endl. Interp. Stat. ¶ 492.) The assessment roll was properly filed on the 30th day of October, 1897, in the office of the board of the county assessors of the county of Richmond, and the notice on that day posted limited the time to apply for a writ of certiorari to fifteen days from the time when such public notice was first given. It follows that the time prescribed by law having expired before application was made for this writ of certiorari, the motion to vacate said writ must be granted for this reason without considering the objections made to the sufficiency of the petition upon which the writ was based. In the Matter of the Estate of SARAH E. LONGBOTHAM. Compulsory accounting by an administrator-barred by the ten-year Statute of A proceeding to compel an administrator to account is controlled by the ten-year Matter of Taylor (30 App. Div. 213), overruled. APPEAL by the petitioner, James F. Longbotham, from an order of the Surrogate's Court of Kings county, entered in said Surrogate's Court on the 8th day of February, 1899, dismissing the proceedings instituted by the petitioner to compel an accounting by Joseph C. Longbotham, as administrator, etc., of Sarah E. Longbotham, deceased. Daniel T. O'Brien, for the petitioner, appellant. Robert H. Wilson, for the administrator, respondent. GOODRICH, P. J. : In Matter of Taylor (30 App. Div. 213) we held, in an opinion written by the present writer, that where funds had come into the hands of an administratrix, for which she had never accounted, and she had not publicly and officially renounced her trust, the Statute of Limitations had not commenced to run in her favor. In our consideration of that case we overlooked Matter of Rogers (153 N. Y. 316) where it was held that a proceeding to compel an administrator to account is controlled by the ten-year Statute of Limitations applicable to suits in equity. The orderly administration of justice and obedience to authority compel us to say that our decision in Matter of Taylor was erroneous, and our decision of the present appeal must follow the decision in Matter of Rogers. Sarah E. Longbotham died in 1880, and letters of administration. on her estate were granted to her husband in the same year, but he has never filed any account of his proceedings. The present pro 40 Mis 326| SECOND DEPARTMENT, MARCH TERM, 1899. [Vol. 38. ceeding was not instituted till November, 1898, eighteen years after the appointment of the administrator. The surrogate, on the authority of the Rogers case, held that the Statute of Limitations operated, and dismissed the proceedings. The decree must be affirmed, with costs. All concurred. Order of the surrogate of the county of Kings affirmed, with ten dollars costs and disbursements. MORRIS FOSDICK, Plaintiff, v. CATHARINE C. LYONS and Others, Defendants, Impleaded with L. NAPOLEON LEVY, Appellant. WILLIAM L. PERKINS, as Committee, etc., of CATHARINE C. LYONS, Respondent. Mortgages given by a life tenant and by remaindermen — surplus moneys, arising on a foreclosure thereof the mortgagors' relative interests therein. Where the life tenant of certain premises and the two remaindermen execute mortgages thereon, which recite that the life tenant and the remaindermen are indebted to the mortgagee in the sum named in the mortgages, and it does not appear who received the money obtained upon the mortgages, nor to what purposes it was applied, the presumption is, as between the three mortgagors, that they were each liable for one-third of the debt; and in surplus money proceedings, instituted after the foreclosure of the mortgages upon a default in the payment of interest, the life tenant is chargeable with the unpaid taxes, and with one-third of the interest, and the remaindermen with the other two-thirds of the interest, the costs and expenses of the foreclosure being deducted from the proceeds of sale before any division is made. APPEAL by the defendant, L. Napoleon Levy, from an order of the County Court of Queens county, entered in the office of the clerk of the county of Queens on the 15th day of November, 1898, directing the distribution of the surplus moneys realized on a foreclosure sale had in the above-entitled action. Eugene V. Daly, for the appellant. Frank A. Butler, for the respondent. CULLEN, J.: The defendant Catharine C. Lyons was seized of an estate for life in certain real estate in the county of Queens. The defendants App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. Thomas F. Lyons and John J. Lyons owned the remainder after the death of Catharine. The life tenant and two remaindermen executed two bonds and mortgages, each for the sum of $500 to the plaintiff. Default was made in the payment of the interest. The mortgages were foreclosed and the premises sold. On the sale there was a surplus of $3,000 deposited with the county treasurer. Prior to the foreclosure, the defendants Thomas F. and John J. Lyons conveyed their remainder to the defendant and appellant, L. Napoleon Levy. Proceedings were taken to obtain the surplus, and a reference ordered to determine the rights and interests of the various claimants. On this reference the appellant Levy claimed that the life tenant should be charged with the defaulted interest due on the mortgages, the costs and expenses of the foreclosure sale and the unpaid taxes which had been allowed to accrue on the property. The referee charged the life tenant (the respondent, Catharine Lyons) with all these sums. The county judge modified the referee's report by charging the life tenant with the unpaid taxes, and disallowing the claims against her for the interest on the mortgages and the expenses of the foreclosure. From this order the remainderman has appealed. We think the decision of the learned county judge was clearly correct. The bonds and mortgages which were foreclosed recite that the three mortgagors, the life tenant and the two remaindermen, were indebted to the mortgagee in the sum named in the mortgages. No evidence was given tending to show who actually received the moneys borrowed, or for what purpose those moneys were applied. There being no proof, therefore, of any peculiar equities between the parties, the presumption resulting from the face of the instrument must obtain, that the three mortgagors and bondsmen were, as between themselves, each liable for one-third of the debt. To such a case the rule that where parties receive an estate subject to an incumbrance, the life tenant must discharge the annual interest on the incumbrance, has no application. The equity of the general rule and the principle on which it is based are perfectly apparent. If a piece of land subject to a mortgage of $10,000 is devised to one for life, and to another in remainder after the death of the first, the life tenant is entitled only to the income APP. DIV.- VOL. XXXVIII. 77 |