Misc.] Supreme Court, July, 1896. carefully provided against any such contention as this by providing that nothing contained therein should affect "any agreement between landlord and tenant or any other contracting parties respecting the payment of any such assessment or charges," but that they should be answerable to each other in the same manner as if the provisions in this title contained concerning the same had never been made." The lease in question was made for a term of twenty-one years, with provision for a renewal or the purchase by the landlord of the building, which belongs to the tenant, the rent which is reserved being a ground rent. It was plainly within the contemplation of the parties that this rental should be a net sum, and should not be subject to any diminution by reason of any of those charges or impositions by way of taxes, assessment or penalty which grow out of the ownership, occupation and use of real estate. It is plainly stipulated that all of such charges shall be borne by the tenant, who has his compensation in the increased rental value which may reasonably be expected from the property. Stripping the matter of all technicalities, the fact is beyond dispute that the plaintiffs are out of pocket in the sum of $835.70 by reason of the fact that the commissioners of estimate and assessment have subjected them as owners of the demised premises to the payment and discharge, in some form, at least, of that amount upon an assessment of the same as their proportionate share of benefit resulting from the widening of College place; and I think it equally clear that there is an obligation on the part of the defendant to make good this amount to the plaintiffs under the covenant in question according to its plain meaning and intent. It follows, therefore, that there must be judgment for the plaintiffs, with costs. Ordered accordingly. ELIZA W. PATRICK, Plaintiff, v. THEODOSIA J. UNDERWOOD, Defendant. (Supreme Court, New York Special Term, July, 1896.) Mortgage Deficiency - Liability of one not a party to the instrument. An associate and agent of the defendant purchased certain land of plaintiff, taking title in his own name and giving back his individual notes and a mortgage and a declaration of trust which stated the interests of the associates in the land and their respective liability on the mortgage. The mortgage contained no covenant for payment. Held, that no covenant on defendant's part was to be implied and that she could not be held liable, under the circumstances, for a deficiency arising on a foreclosure of the mortgage. DEMURRER to complaint. E. Wakely, for plaintiff. Samuel F. Jarvis, Jr., for defendant. PRYOR, J. A demurrer challenges for insufficiency a complaint which alleges: That one Allen, as associate and agent of defendant and others, bought land of plaintiff for the price of $510,000; that of this sum $110,000 was paid in cash; that in payment of the residue Allen executed his promissory notes, took title to himself, and gave back a purchase-money mortgage as security for the notes; that defendant contributed her share of the cash payment and acquired a proportionate interest in the land; that Allen made and delivered a "declaration of trust" acknowledging the respective interests of the associates in the land and stating that "the same are liable in the same proportion upon the mortgage given to secure the deferred payments upon the said property;" that defendant, with her associates, caused Allen to convey the land to a corporation which they had organized, and for her interest received a proportional part of the stock of the corporation; that upon default in the payment of interest on the mortgage debt, plaintiff procured a judgment of foreclosure; that on the foreclosure sale a deficiency resulted of $101,278.76, for which judgment was entered against Allen; that defendant here was a party defendant in that suit, but no personal judgment was entered against her, and the prayer for relief is that plaintiff recover "the Misc.] Supreme Court, July, 1896. portion of said judgment" (of deficiency) "for which defendant is liable," namely, $38,705.21. That the defendant was a purchaser of the land and that the mortgage was made on her behalf to secure payment for her interest is an express allegation of the complaint, and, indeed, is a fundamental fact in plaintiff's case. Hence it was that defendant was made a party in the foreclosure suit; and hence this action to recover of her a proportion of the deficiency on the foreclosure sale. In legal effect, then, the action is by vendor against vendee for so much of the purchase price of land as remains unpaid after foreclosure of a mortgage to secure it. But, by positive provision of statute, "No mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured; and where there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage." 1 R. S. 738, § 139. This enactment, being a remedial regulation, is the law of the forum and determines plaintiff's right of recovery. Conceding defendant a party to the mortgage through the agency of Allen, still, upon the complaint, it is not apparent that the mortgage contains an express covenant for payment of the money; and none can be interpolated by construction of the pleading. Clark v. Dillon, 97 N. Y. 370. Nor was Allen's note such "separate instrument as imposes upon the defendant a personal obligation for the price of the land. It is not her promissory note, and " a person not a party" (to negotiable paper) "cannot be charged upon proof that the ostensible party signed or indorsed as his agent." Briggs v. Partridge, 64 N. Y. 357, 363; Tuthill v. Wilson, 90 id. 423. Neither is the declaration of trust by Allen the "separate instrument" of defendant, nor a security from her to the plaintiff for the price of the land. Indeed, the learned counsel for plaintiff asserts no express engagement by defendant for the mortgage debt, and in the absence of such obligation the plaintiff can have recourse only to the land. Mack v. Austin, 95 N. Y. 513; Gaylord v. Knapp, 15 Hun, 87; Hone v. Fisher, 2 Barb. Ch. 559; Severance v. Griffith, 2 Lans. 38; Coleman v. Van Rensselaer, 44 How. 368; Vrooman v. Dunlap, 30 Barb. 202. Supreme Court, July, 1896. [Vol. 17. Upon the facts of the complaint the inference is obvious that the plaintiff sold the land on the personal responsibility of Allen and the mortgage security; and these failing her, she cannot recur to the defendant, especially after pursuing Allen to judgment. Apart, then, from the statutory obstacle to her suit, she shows no right of recovery. Williams v. Gillies, 75 N. Y. 197; Tuthill v. Wilson, 90 id. 423; Patterson v. Brewster, 4 Edw. Ch. 352, 355; Coleman v. First Nat. Bank, 53 N. Y. 388. And such is the justice of the case between the parties. The plaintiff has now the cash payment of $110,000 and the price of the land on foreclosure. For the deficiency she has a judgment against Allen; and rightfully, too, because he expressly agreed to pay the purchase money. Why should she fasten on the defendant a liability for which she did not stipulate and which defendant did not assume? In any aspect the complaint is untenable. Demurrer sustained, with leave to amend. JACOB MOYER, Plaintiff, v. GEORGE MOYER et al., Defendants. (Supreme Court, Oswego Special Term, July, 1896.) 1. Executors and administrators — Payment of debts and legacies — Lien on real estate. Where there is a sufficiency of personal assets to pay all debts, funeral expenses and expenses of administration, the creditor must first resort to them as the primary fund; and if they are wasted or misappropriated by the administrator, the land cannot be reached after the expiration of three years subsequent to the granting of letters, until the personal responsibility of the administrator and his sureties are exhausted, and on failure in that direction, against the husband or wife, legatees and next of kin to the amount of personal assets they have received. A creditor or legatee who has consented to the misappropriation of the personal assets by the administrator to his own use is thereby estopped from proceeding against him or his sureties or any of the next of kin. THIS action is brought by the plaintiff, an heir-at-law, on a claim which existed originally against the estate of his intestate. First, Misc.] Supreme Court, July, 1896. to recover a judgment thereon against the defendant, George Moyer, for $2,406.33, on his agreement to pay the same; and, second, to obtain an adjudication that said claim is a lien upon a portion of the lands owned by the deceased at his death, which were conveyed by certain of the heirs to George Moyer, a co-heir, and that said claim be adjudged such lien prior to a certain mortgage, and prior to certain judgments thereon, and also prior to a deed of a portion of the same. O. M. Reilly, for plaintiff. John J. Lamoree, for defendants George Moyer and Mary E. Moyer, and for himself, as defendant in person. WRIGHT, J. Bartholomew Moyer died intestate January 23, 1888, owning a farm of sixty-five acres, worth $3,000, and personal assets worth $4,418.71. The debts and funeral expenses of the deceased were about $3,000, including the claim of the plaintiff against the estate, amounting to $1,794.24, and consisting at said. date of the following items, viz.: A promissory note of $1,000, dated January 1, 1881, with interest, less $9 paid thereon December 30, 1886; a promissory note for $36.50, dated January 1, 1881, with interest, less $1 paid thereon December 30, 1886; an assigned account of $28.75, and a claim of $300 for two years' work for the deceased. On March 5, 1888, the plaintiff and the defendant George Moyer were appointed administrators of the estate of said Bartholomew Moyer, and substantially all of said personal assets came into George Moyer's hands as such administrator. The deceased left no widow or children. The defendant George Moyer, with the consent and agreement of the plaintiff and all the other heirs and next of kin, used the proceeds of this personal estate to the extent of $1,212 in paying to himself a personal claim of that amount which he held against the estate. He also purchased and took conveyances and releases of the interests and titles of all the heirs and next of kin in the real and personal estate, except the plaintiff's, and in paying for the same (except as to one who is unpaid), he used, with the consent and agreement of the plaintiff, all the proceeds of said personal estate which were left after paying his own personal claim and all the debts, except the plaintiff's claim; and he also agreed, orally, |