Werner v. Westchester Trust Co. ( 1937 )

In an action to foreclose a tax lien upon real property which is the subject of a foreclosure action brought by a number of certificate owners, where the mortgage under foreclosure is owned by various certificate holders, some of the owners and holders of such certificates counterclaim and ask for judgment declaring that plaintiff holds the tax lien for the benefit of all the holders of certificates. A conspiracy by the receiver in the pending foreclosure action, who was a former certificate holder in the mortgage with his wife, who is a certificate holder, and several other certificate holders, to defeat the rights of other co-owners in the mortgage, is alleged. The defense and counterclaim raise a triable issue. Arena v. Orange (247 App. Div. 892), heretofore decided by this court, is readily distinguishable. There, the owner of the tax lien under foreclosure was an owner of a certificate, with no other relationship to the co-owners. Here, the owner of the tax lien is the son and alleged “ dummy ” of a former owner of a certificate who occupies the fiduciary relationship of receiver. Orders granting plaintiff’s motions for judgment on the pleadings reversed on the law, with ten dollars costs and disbursements to appellants Larkin and also to appellant Westchester Trust Company, and motions denied, with ten dollars costs on each motion. Lazansky, ■P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.