#### Augusta Florence Zerega, as Executrix, Etc., Plaintiff, *v.*Katherine Berry Zerega et al., Defendants.

(Supreme Court, New York Special Term,

December 1912.)

Trusts — actions to enforce — advancements.

Where, in an action by an executrix to enforce a trust, it appears that the leasehold, against which charges for ground rent, taxes and mortgage interest had accrued, was the property of the wife of the son of testatrix though he was a party to the mortgage, and that the house "on the leased land was occupied by a tenant at the time of the alleged payments of interest and taxes' sought to be recovered which the son’s wife had covenanted to pay, the mere fact that plaintiff’s testatrix had paid such charges, in the absence of proof of any request on the part of her son, was as consistent with the theory that the' advances were made for his *467wife as that they were made for account of the son, and the action must fail.

But where a check for interest on the mortgage was filled in by the son with his name as an alternative payee, and he indorsed it to the mortgagee and took a receipt for the payment as having heen made by him, the transaction sufficiently shows an advance to him which plaintiff is entitled to recover.

Action to enforce a trust.

'Samuel Huntington (George H. Fletcher, of counsel), for plaintiff.

John A. Dutton, for defendants.

Giegerich, J.

The provisions of the judgment "in the former action appear *to be*wholly immaterial upon the issues of the present action, and the findings of the referee are of no effect except in so far as they can be seen to have heen the foundation for the adjudications upon the issues in that action. Springer v. Bien, 128 N. Y. 99; Rudd v. Cornell, 171 id. 114. The matter pleaded and proved by way of defense is, therefore, insufficient to defeat the cause of action pleaded in the complaint. I think, however, that with a single exception the plaintiff has failed to prove that the several payments made by her testatrix, and for which she seeks to recover, were advances made for the account of John A. Zerega, the son of the testatrix. The leasehold against which charges for ground rent, taxes and mortgage interest accrued was the property, not of John A. Zerega, hut of his wife. The house erected upon the land covered by the lease was not occupied by John A. Zerega or his wife, hut was at the time the alleged payments are claimed to have heen made occupied by a tenant. While it is true that John A. Zerega was a party to the mortgage, and his wife covenanted to pay the interest and taxes, still the mere fact that the plaintiff’s testatrix paid these charges, in the absence of proof of any request on the part of her son, is, to say the least, quite as consistent with the theory that the advances were made for the account of the wife, who was the owner of the property, as that they were made for the account of the *468son. It would have been a very simple matter to have taken proper acknowledgments for any advances made by the testatrix to her son, and the court cannot in any event resort to conjecture or surmise to supply deficiencies in the proof, which, if they exist at all, are chargeable solely to the indifference or neglect of the parties concerned in the transactions. As to the payments made in settlement of the various bills for merchandise, it does not appear either that these bills represented valid obligations of John A. Zerega or that they were paid at his request. With regard to the payment of the sum of $450 on account of mortgage interest, however, I think the case is different, for in that case John A. Zerega filled in his own name in the body of the check as an alternative payee, and the check was subsequently indorsed over by him to the mortgagee and a receipt taken for the payment as having been made by him. This transaction, I think, sufficiently shows an advance to John A. Zerega, which the plaintiff is accordingly entitled to recover, with costs. Bequests for findings may be submitted by either party, with proof of service on the other side, within five days after" the publication of this memorandum.

Judgment accordingly.