
    TITLE GUARANTEE & TRUST CO. v. HAVEN et al.
    (Supreme Court, Appellate Division, First Department.
    May 22, 1908.)
    Appeal from Judgment on Report of Referee.
    Action by the Title Guarantee Ik Trust Company_ against Fanny Arnot Haven and another. From a judgment dismissing the complaint, plaintiff appeals.
    Affirmed.
    . Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
    Harold Swain, for appellant.
    John Vernon Bouvier, Jr., for respondents.
   PER CURIAM.

Judgment affirmed, with costs.

HOUGHTON, J.

(concurring). 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, 19 N. E. 271. 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., concurs.  