William J. P. McCrystal, as Administrator, etc., of Edward T. McCrystal, Deceased, Respondent, v. George E. Weller, Appellant

William J. P. McCrystal, as Administrator, etc., of Edward T. McCrystal, Deceased, Respondent, v. George E. Weller, Appellant. First Department, November 19, 1915. Principal and agent — mortgage — payment of moneys to mortgagee with direction to satisfy assessment of mortgaged premises—when agency of mortgagee not terminated by death of mortgagor. Where a mortgagor, who by the terms of the mortgage was required to pay assessments levied on the premises for street improvements, paid a portion of the amount of such assessment to the mortgagee in order to avoid foreclosure, the money to be applied on the assessment, and promised to pay the balance of the assessment to the mortgagee, but failed to -do so, the agency of the mortgagee to apply the moneys for the purpose aforesaid was not revoked by the death of the mortgagor. Hence, the mortgagee, on receiving the balance of the amount due on the assessment from the holder of a second mortgage who had bought in the property on foreclosure, was justified in devoting the moneys' formerly advanced by the decedent to the satisfaction of the lien of the assessment. The administrator of the mortgagor is not entitled to recover back the moneys advanced on the theory that the mortgagee’s agency to pay the assessment was terminated by the death of the mortgagor. Appeal by the defendant, George E. Weller, from a determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1915, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, third district, in an action for money had and received. Arthur Knox of counsel [Percy F. Griffin with him on the brief], for the appellant. William E. Murphy, for the respondent. [MAJORITY — Clarke, J.:] Clarke, J.: Plaintiff is the administrator of Edward T. McCrystal, who died February 7, 1913. The complaint alleges that on or about the 7th of June, 1912, Edward T. McCrystal delivered to defendant Weller $500 to be applied against certain assessments levied on property then owned by the said McOrystal; that Weller failed and neglected to apply the said money for the purposes for which it was given and still has in his possession the said sum; that due demand has been made therefor and refused, and that this action is brought by the plaintiff in his representative capacity for the benefit of the estate only. The agreed facts are as follows: On April 14, 1909, plaintiff’s intestate executed and delivered to defendant a first mortgage on certain premises owned by him in the Bronx to secure an indebtedness on his bond for $4,500. On July 28, 1909, McOrystal executed and delivered to one Anne Bergin a second mortgage on said property and a bond for $1,000. On June 27, .1911, an assessment levied upon said premises for the grading of the Grand Boulevard and Concourse became due and payable. The assessment, with interest, amounted to more than $500 and was a lien on the premises. McOrystal, plaintiff’s intestate, was obligated to pay this assessment by the terms of the mortgage and also by express oral agreement. On June 7, 1912, he paid to the defendant the sum of $500 to be applied against this assessment, and as further security against said indebtedness promised to pay the balance within a short time, but this he-never did. On February 7, 1913, McOrystal died.' On July 30, 1913, the second mortgage was foreclosed and was bought in by Anne Bergin, the mortgagee, with a resulting deficiency judgment of $1,000. The attorney for Anne- Bergin requested defendant to apply the sum of $500 given him by the intestate to the payment of the assessment. Upon payment by Anne Bergin of the balance of the assessment the defendant paid to the collector of assessments and arrears this sum of $500, thereby canceling and discharging of record the assessment lien. On May 26, 1914, a demand was made on the defendant for the return of the $500, which was not complied with. Thereafter the second mortgagee, Anne Bergin, assigned the bond of the plaintiff’s intestate secured by the second mortgage to the defendant/ No part of this bond has been paid. The Municipal Court held that the plaintiff’s intestate gave this money to the ..defendant, for a special purpose,, and .-.that, heveas vested solely with the power of paying this money to reduce -the lien; that he was not a trustee nor was it the intention of the parties to create a trust; that he possessed a power founded on a consideration, hut there was lacking that interest in the subject of the power which makes it survive the principal’s death, and that as the principal had died before the payment of the installment the authority of the defendant was thereby revoked; that he held the fund as money had and received to the intestate’s use, and that the administrator could recover. The judgment of the Municipal Court was affirmed by the Appellate Term, and on leave of a justice of this court defendant appeals. The holding that Weller was the agent of McCrystal for the purpose of paying the assessment levied upon the property and that by McCrystal’s death said agency was revoked is clearly erroneous. The levying of the assessment seriously affected the value of the property, which was the security for the indebtedness of $4,500, and the failure to pay the assessment would have constituted a default which would have given to Weller the right to foreclose. To prevent foreclosure McCrystal gave the $500 to Weller as further security for the mortgage debt. It is conceded that the amount of the assessment exceeded this siun. Partial payment of the assessment could not have been made to the collector of assessments and arrears. Therefore, the $500 was not given to Weller to pay the assessment, and he was not constituted an agent for that purpose, because it was insufficient in amount, and partial payment could not be made. It was given as further security, and to be applied upon the payment of the assessment when the balance should be furnished. This event did not occur in McCrystal’s lifetime, but said sum has now been applied with other moneys to the payment of the assessment. The property has been relieved of this lien, and stands thus unimpaired by said lien "as security for the original debt to Weller, precisely as was intended when the sum was given to him by McCrystal. The money was' not had and received to'plaintiff’s intestate’s use, "and plaintiff has no right to recover the' same of any part thereof: The'determination-and'judgment appealed- from'.should be reversed and the complaint dismissed, with costs in the courts below and in this court to the appellant. Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred. Determination and judgment reversed, with costs in this court and at the Appellate Term, and complaint dismissed, with costs.