Opinion
May, 1908.
Present — Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ.
Judgment affirmed, with costs.
In the present case the forged check went to pay taxes upon defendants' lands which had been levied during the lifetime of their testator. These taxes were a debt against the testator's estate. ( Smith v. Cornell, 111 N.Y. 554.) The money, therefore, did not go to relieve defendants' real property from a lien because it was the duty of the testator's estate to pay them and defendants could have compelled it so to do. There is no finding that there was no personalty in the Ogden estate from which the taxes could be paid, and it cannot be assumed there was none. The money in the present case was paid, therefore, not for the benefit of the defendants, but for the benefit of the Ogden estate, and any cause of action which the plaintiff may have lies against that estate rather than these defendants. Because of this fact I concur in an affirmance of the judgment. Laughlin, J., concurred.