(77 Hun, 236.)

#### PAPE v. SCHOFIELD et al.

(Supreme Court, General Term, First Department

April 13, 1894.)

1. Opening Judgment—Conditions—Questions Litigated.

In an action by a tenant by the curtesy of an undivided interest in land against his cotenants for an accounting of rents due to him, an interlocutory judgment was rendered in his favor, directing a reference, and *341adjudging that on confirmation of the referee’s report plaintiff have judgment for the sum found to he due him. After the referee reported, plaintiff died. His executrix was substituted as plaintiff, and final judgment was entered confirming the report, and directing payment of the sum reported to be due. The judgment was subsequently opened on application of certain defendants, with leave to litigate as to the amount due plaintiff’s estate, on condition that no technical objection should be taken to the right to continue the action as then framed. *Held,*that such defendants could not object that plaintiff’s claim for money due by reason of his tenancy by the curtesy abated on his death.

2. Estoppel—Ih Pais.

The claim of a tenant in common for his share of the rents being disputed by his cotenants, it was agreed, in order to induce him to execute a conveyance of the premises, that the amount of his claim should be retained out of the proceeds, and the amount actually due him ascertained and paid. The parties failed to agree on the amount, and claimant sued his cotenants. *Held,*that defendants could not object that plaintiff’s claim was personal against the cotenant who had collected the rents, and could bo enforced only against him personally.

Appeal from judgment on report of referee.

Action by Julia V. Pape, as executrix, against Joseph L. Schofield and others, for an accounting of the rents of certain premises. From a judgment in favor of plaintiff for $6,341.23 and costs, and directing defendant Thomas McKee to pay said amount to plaintiff out of moneys in his hands to the credit of this action, defendants appeal. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, J J.

F. I. Moissen, for appellants.

John Delahunty, for respondent.

PARKER, J.

Prior to the 22d day of December, 1883, Joseph L., Simon R., and Helen Schofield, Mary Rich, and Catherine R. Pape were tenants in common of certain premises situated in this city. On that day Catherine R. Pape died, leaving, her surviving, her husband, Ernest D. Pape, who thereupon became vested with a tenancy by the curtesy in an undivided one-fifth share of such premises. About the 1st of August, 1888, the owners of the fee had presented to them an opportunity to sell the real estate at what seemed a favorable price, and their agent and attorney, Thomas J. McKee, thereupon undertook to induce Pape to join in the conveyance. This at first he refused to do, unless he should be paid a proportion of the rents due him as tenant by the curtesy, together with the unpaid rents which were due to his wife at the time of her death, and the value of his interest as such tenant, to be computed according to the method provided by law. Pape prepared and presented an itemized statement of his claim, aggregating $7,775. The correctness of the claim was not admitted, and, the time for the completion of the sale being near at hand, it was agreed between the agent for the owners of the fee and Dr. Pape that a sum of money equal to the amount claimed by him should be retained out of the' purchase money, for the purpose of paying whatever amount it should afterwards be agreed of right belonged to the claimant. *342Accordingly the sale took place, the money was retained hy the agent, McKee, as stipulated, but, the parties being unable to agree upon the amount due, Pape instituted this suit, in which he demanded an accounting for the rents to which he made claim indiYidually, as well as those alleged to be due him as administrator of his wife’s estate, and for the gross value of his tenancy at the time of the conveyance. Two of the defendants answered, the others suffered default, and, the case being at issue, the special term sent the matter to a referee, to take and state the accounts, and report; the interlocutory decree further adjudging that upon the coming in of the report of the referee, and the confirmation of the same, plaintiff have judgment that the defendant pay to the plaintiff out of the moneys in his hands, mentioned in the complaint, the sum which may be found due him as tenant by the curtesy in said premises, and as administrator of Catherine B. Pape, deceased. The referee reported that there was due to the plaintiff the sum of $6,341.23, the report being dated and filed December 13, 1889. Two days later the plaintiff, Pape, died. Shortly afterwards his executrix was substituted in his place as plaintiff, and on November 29,1890, final judgment was entered, confirming the referee’s report, and directing payment to the plaintiff, by McKee, out of the funds in his hands, the sum reported due, with costs. Thereafter Simon B. and Helen Schofield and Mary Bich, who had not appeared in the action, made application to the court that the default be opened. The motion was granted, the order providing that they be allowed “to come in and litigate the question as to the amount that should be paid Dr. Ernest D. Pape’s estate from the fund in the hands of Thomas J. McKee (one of said defendants), and for that purpose interpose answers to the amended complaint in said action, and said motion to that extent is hereby granted, upon condition—First, that said defendants will not and do not take or interpose any technical objection to the right of the said plaintiff to continue the action as it is now framed; second, that said action be sent back to the referee appointed by the interlocutory judgment therein for trial upon the issues made by the answers to be interposed to said complaint by said defendants, respectively, such answer or answers to be served within ten days after the entry of this order, and the reference to proceed thereafter upon two days’ notice.” The proceedings thereafter had resulted in a report by the referee that there was due the plaintiff the aggregate sum of $6,309.54, which report was confirmed at special term, and judgment accordingly entered. Under this state of facts, it seems a little remarkable that the defendants, who were allowed to come in by the court, after judgment had been rendered, for the purpose only of litigating the sum due, should contend with apparent seriousness—First, that, however substantial the claim of Dr. Pape may have been for moneys accrued to him by reason of his tenancy by the curtesy, it abated on his death; second, that the plaintiff failed to prove any personal liability on the part of the cotenants other than Joseph L. Schofield, who collected rents; third, that the agreement did not provide that the sum set apart to secure Dr. Pape, or any part of it, *343should be applied in the payment of rents due him, either individually or as administrator.

In the light of the facts disclosed by this record, to the principal features of which we have briefly alluded, it is apparent that the points referred to ought not to have been insisted upon here; but, as they have been unsuccessfully presented, there will result no practical difference. Touching the first point, it is unnecessary for us to determine what would have been the effect upon the claim which Dr. Pape made had he died before the granting of the interlocutory judgment, and the making and filing of the report of the referee in pursuance thereof. That judgment was valid and final as to the rights of the parties until reversed on appeal, and, as no appeal has ever been taken from it, it is not before this court for review. The merits of the controversy being thus adjusted as between the parties, three of the defendants asked that their default might be opened, and they allowed to come in and defend. Apparently for the purpose of depriving the petitioners seeking relief from their default from making such use of the benefit which they sought as would work injustice to the estate of the deceased, Dr. Pape, the court established the limits of the answer, and inserted as a condition for the opening of the default that defendants should not interpose any technical objections to the rights of the plaintiff to continue the action in its present form. Now, having accepted the conditions of the order, and obtained the benefits which it granted to them, defendants are bound by it.

The point next made is that liability for rent collected by one tenant in common for his cotenant is a personal one, and can only be enforced against him personally. The applicability of that proposition to the situation which the facts of this case present is sought to be founded on the fact that the rents for a number of years, for which the plaintiff has recovered, were collected by Joseph L. Schofield, one of the cotenants. The contention is not well grounded, however, because the situation is changed by the stipulation and agreement of the parties. The owners of the fee, being anxious to sell the property, attempted to induce Dr. Pape to unite with them in a conveyance, but he refused on the ground that he had not received the proportion of the rent due to him individually and as administrator of Mrs. Pape’s estate. This refusal standing in the way of the consummation of their agreement to sell, they attempted to provide a method which should secure to him whatever should be found to be actually due. True, the several defendants did not sign the agreement, but McKee, their agent and attorney, signed it for them, as he was authorized to do, and some, if not all, of them knew what the arrangement was prior to the execution of the conveyance. The whole transaction, therefore, amounted, in effect, to an agreement between the parties that the whole or such part of the claim of Dr. Pape as should turn out to be well founded, which claim was then before them in the form of an itemized statement, should be paid out of the fund to be retained from the proceeds of the sale by the agent, McKee.

*344For the reason presented in the discussion of the first and second points, the third cannot avail the defendants.

It is further insisted that the referee erred in finding Dr. Pape to have been of the age of 63 years on the 1st day of August, 1888. An attentive reading of the evidence leads us to the conclusion that the referee’s finding has such support therein as denies to this court the right to interfere with it. The judgment should be affirmed, with costs. All concur.