Lillie Seibold Sage, Respondent, v. The City of Gloversville and O. L. Everest, Chamberlain of the City of Gloversville, Appellants, Impleaded with Lemuel Wooster and Others

Lillie Seibold Sage, Respondent, v. The City of Gloversville and O. L. Everest, Chamberlain of the City of Gloversville, Appellants, Impleaded with Lemuel Wooster and Others. Real property — a life tenant thereof should pay the ordinary taxes — remedy of the remainderman where the life tenant fails to do so. As between the life tenant of real property and the remainderman, the duty of paying the ordinary taxes imposed upon the premises by the municipality in which it is situated is upon the life tenant. If the life tenant neglects to pay such taxes and is financially irresponsible and the premises are duly and regularly advertised for sale because of the default, the remainderman is not entitled to an injunction staying the sale; his remedy is to procure the appointment of a receiver of so much of the. income of the real estate as is necessary to discharge the taxes in arrear, unless the life tenant shall discharge them within a time to he fixed by the court. The remainderman may then advance the receiver money with which to pay the taxes in arrear and be subsequently ' reimbursed by the receiver from the rents and income. Appeal by the defendants, The City of Gloversville and O. L. Everest, chamberlain of the city of Gloversville, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Fulton on the 25th day of April, 1899, granting a temporary injunction staying the sale of certain real estate for unpaid taxes. The taxes were duly levied. The defendant Wooster as the life tenant is in possession of the premises. The defendant The City of Gloversville by the defendant Everest, its chamberlain, duly and regularly advertised the premises for sale, because of the non-payment of the taxes. The life tenant, Wooster, neglects or refuses to pay the taxes. He is irresponsible, except to the extent of his life tenancy in the premises. Frank Talbot, for the appellants. Roswell R. Moss, for the respondent. [MAJORITY — Landon, J.:] 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.