
    Enos G. Laney, Individually and as Adm’r, Resp’t, v. Mary K. Laney, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Payment—Y oltjntaby.
    Where an administrator, without authority, collects rents of premises which belonged to his intestate, and with full knowledge of the facts pays them over to one net entitled to receive them, without any agreement for their repayment, such payment will be considered as voluntarily made, and cannot be recovered.
    Appeal by the defendant from a judgment entered in Monroe county upon the report of a referee, on the 26th day of October, 1891.
    Action to procure an adjudication that a decree directing the plaintiff to pay certain moneys to defendant, made on a final accounting, h.as been paid, and that defendant account for moneys advanced to her by plaintiff as administrator.
    The following is the opinion of the referee:
    E. M. Morse, Referee.—On the facts of this case the plaintiff is equitably entitled to relief, but not to the extent he claims. He has had two accountings, as administrator, in the surrogate’s court of Monroe county and these adjudications apparently cover his entire liabilities to the parties interested in the estate of James Laney. He was charged in the first decree with the amount which, in the opinion of the court, should then be distributed; and this is the basis of the defendant’s judgment for $5,881.30. The remainder of the estate in his hands was left in the business then being conducted by plaintiff and Barker, under the peculiar co-partnership agreement executed before James .Laney’s death; and the second decree charges the plaintiff with all the personalty in his hands, not embraced in the first decree, including interest, and profits of the business, as well as the capital invested when the co partnership was formed. This decree awards the defendant $6,878.49 as her distributive share, and cancels and discharges the bonds given by the plaintiff, administrator, with the Fidelity & Casualty Company of New York. These accountings were in all respects regular, all parties interested were represen ted,, and the defendant widow, and the next of kin, filed objections, and the decisions of the court were made after long and evidently bitter contests. The decrees following the accountings, are the adjudications of a competent tribunal, and concerning matters within its jurisdiction, and are conclusive as to the amounts with which the plaintiff was chargeable and with which he should be credited as administrator.
    Neither of these decrees has been paid, in the ordinary signification of payment of a decree. The judgment debtor has not paid, or tendered, to the judgment creditor, or her attorneys, the sums due, stating them to be in payment, and asking a satisfaction and discharge. But since James Laney died, the defendant in this action has received from the plaintiff a large amount of money, and considerable merchandise, none of which came from the estate in such manner that plaintiff has been credited with it as administrator. He is liable to pay both decrees, unless he has already advanced the amounts due on both, and under such circumstances as require this court to adjudge.that defendant has been, in equity, fully paid, and that plaintiff’s payments should beset off against the decrees, and the decrees discharged and satisfied of record. But if the plaintiff has already paid the defendant,, or in any way advanced her moneys which he did not otherwise owe her, then he certainly ought not to be compelled to pay a second time.
    The distributive shares of thé defendant widow, and of the next of kin, as adjudicated by both decrees, are the same as though plaintiff had let defendant have no money or merchandise. The questions in this controversy therefore arise out of facts not involved in the plaintiff’s administration of the estate. Those facts are simple. The defendant has received from the plaintiff, by way of checks, $28,650.00, and the interest of this sum is $5,-846.27. She has received merchandise of the'value of $1,405.90 on which no interest is chargeable. These sums aggregate $30,-902.17, and were advanced at different times from April 10, 1885, to January 28, 1890. During that period plaintiff collected rents of the real estate owned by James Laney at his decease, amounting to $13,122.50. The interest on those rents is $3,120.77. The checks given defendant represented rents as far as the rents would go, and the rents and interest, amounting to $16,243.27, deducted from the $30,902.17, leave the sum of $14,658.90. From this deduct the amount now due on the first decree, $7,112.46, and we have $7,546.44, due from the defendant to the plaintiff, at the date of this report. In other words, the defendant has received that sum from the plaintiff in excess of what plaintiff has received from all sources, except what he has been charged with on his accountings in surrogate’s court. I can discover no reason why he should not have judgment for this sum, and satisfaction of the defendant’s judgment based on the decree of $5,881.30 and on which is now due said sum of $7,112.46. The further remedies of the parties, each having a judgment against the other, is a matter which is not in issue here, the • first decree only being within the pleadings. Against that should be set off enough of the moneys advanced by plaintiff over and above rents, to extinguish the plaintiff’s liability. That decree, like all other final decrees of a surrogate’s court against administrators, adjudging moneys in their hands due and payable to parties entitled, runs against him personally and de bonis propriis, Power v. Speclcman, 126 N. Y., 354; 37'St. Rep., 474, and all payments made, or moneys advanced, by him as an individual, are proper matter of set-off against the decree.
    The plaintiff, in his complaint, alleges a much smaller amount advanced than was proved on the trial, and demands judgment for $4,567.77 with such interest as might be properly allowed.
    The complaint contains no allegation concerning rents, and ■ on the evidence a judgment is asked for the difference between the total advances and interest thereon, and the amount of the decree with interest on the same. I do not think the plaintiff is entitled to such judgment. He paid the defendant $13,122.50 from the rents of the real estate belonging to James Laney, at his decease. These rents he had received from his partner, Barker, and from the firm of Laney & Go. He also owed $1,560.00 for rent of premises of the decedent occupied by himself, but it cannot be said he had collected these rents, nor that he paid them to defendant. Of course he had no authority, from any source, to collect any rents whatever, unless they had become due before James Laney died. Nevertheless he collected them; and after such collection he was under no obligation to pay them to defendant; but he did pay them to her, and the amount of them must be eliminated from his advances. The only person entitled to" these rents was the general guardian of the infant heirs, who owned" the property. The defendant as dowress had no right to any part of them, for her dower had not been admeasured.
    The fact that plaintiff had no right to the rents is immaterial. He received them, and the heirs may have the power to compel the lessees to pay a second time. But that does not affect the rights of the parties of this action. The heirs cannot compel plaintiff to pay them; and if they could it would be of no consequence. The lessees have paid a person who was destitute of authority, and he has subsequently paid to another person not entitled. No one’s legal rights in these rents have been affected ; but the sum collected illegally, and paid defendant illegally, can neither be recovered back nor set off in this action. Plaintiff swears the rents were charged to him as administrator, but that does not aid him. As administrator he had no right to the rents, unless they had accrued before James Laney died. He paid them to defendant, and she received them; neither party can now repudiate the transaction, nor can either base any legal proceeding on it. The plaintiff has not loaned these rents to defendant, nor advanced them to her; he paid them, he so swears, and both so understood it. He supposed they belonged to the estate, and that he could legally pay them to the defendant; she labored under the same delusion.
    Had the evidence shown, as one of the facts, that the tenants paid their rents to the plaintiff, and as another fact and an independent one, that plaintiff let defendant have money from time to time, as she requested, and with no connection proved between the two facts, then the plaintiff would be entitled to allowance for all the moneys so advanced subject to no deduction on account of illegally received rents. But, to the extent of the rents, all he did was to pay to a person, not entitled,.moneys he had no right to receive. The difference between the aggregate of the checks delivered to the defendant, with interest, and the amount he received for rents, with interest, is what must be considered in this action, and the only way of stating that difference properly, under the peculiar manner of transacting business adopted by the parties, is to charge the defendant with the aggregate of the sums received from the plaintiff, with the interest on each sum, from the date of its receipt, and charge the plaintiff with the rents and interest on the several items from date of receipt. That defendant should pay interest on all sums received by way of checks requires no argument; and it is equally certain that plaintiff must be adjudged to do the same on the rents from the time he received them. Had he turned them over at the dates of their payment to him, then there would have been no interest on either side; but he did nothing of the sort He paid defendant such sums, and at such times, as she requested, and kept the rents without keeping a separate rent account; and the only equitable way of doing justice between the parties is to charge interest on receipts and payments. It must be assumed as a matter of law that the rents were in plaintiff’s hands as a fund from which he made payments to defendant, so far as the fund would go; then he used his own money. He had the use of the rents from the times they were paid, and should allow for that use; and defendant should pay interest on all receipts by check, or where otherwise liquidated.
    The advances to the defendant as alleged in the complaint were not made on account of her distributive share in James Laney’s estate. The surrogate’s court has so adjudged, necessarily, by granting a decree which gave the widow and next of kin their legal shares in the moneys then in plaintiff’s hands for distribution diminished by no payments to any of them. • The moneys for which the plaintiff claimed credit on the first accounting were a part of those proved in this action, and the surrogate’s court expressly adjudged that they be stricken out of the plaintiff’s account, because they related to transactions not involved in that proceeding and of which the court had no jurisdiction. In the second accounting the plaintiff did not include advances in paymente made since the first accounting and of the same character as these stricken out in the first one.
    The surrogate’s court has not decided whether these advances be allowed or disallowed; it has simply declined to consider the question, and this court has at both special terms and general terms approved the dectsion of the surrogate’s court. The doctrine that any relief which the surrogate’s court ought to have granted on plaintiff’s accounting cannot afterward be obtained by him by action in another court needs no authority in its support. Hyland v. Baxter, and kindred cases, contain, of course, the settled law of the state; but they only decide that the decrees of surrogate’s courts are conclusive on such matters as are- within their jurisdiction. Whether that court decided correctly in regard to these advances is a question with which I have no concern. The decision must be considered final, and this controversy must be settled on that basis.
    These payments and advances were, not made defendant as administrator of James Laney’s estate, but were made to her individually; she so understood, for she charged herself with only $175 on her accounting in 1887, after a large portion of the money and merchandise had been received by her. One administrator does not pay to another. He can only discharge his duty and relieve himself from responsibility by paying creditors, widow or next of bin. The fact that plaintiff paid these moneys and delivered this merchandise to the defendant for the support and maintenance of herself and sons does not contribute any defense here. The defendant might do what she chose with what she received, but she continued liable to account for it. It was not paid to the next of kin nor to their guardian. The plaintiff had no right to pay the infante and did not pay them, and the defendant had no authority to receive money from the other administrator in their behalf. She might under the two orders of the surrogate’s court have properly received moneys from the general guardian during two years, but no claim is made that she did or did not.
    Were it not for the fact that plaintiff has accounted for the $3,000 'represented by the checks drawn in favor of defendant, as administrator, and that he has been adjudged to pay that sum, with the other moneys of the estate, to the defendant and her children, I should be disposed to hold that so much of what plaintiff claims had been paid by the firm, under the strange provisions of the co-partnership agreement. But after an adjudication by a competent court, in a proceeding to which defendant was a party, and in which she and her sons have once received the benefit of the moneys represented by these checks, there is no equity in adjudging that plaintiff must lose the benefit of his advancements of that amount to defendant.
    The sum paid for feed, repairs of wagons, veterinary bills, etc., were all at defendant’s request, and for debts contracted for her since James Laney’s decease, and for which she was personally liable ; she may, perhapr, be properly credited with them on her accounting as administrator, but the plaintiff could not have had credit for them. The personal property affected was not in his hands, and he, had no right to feed horses, mend wagons, or do any other act relating to them. As to taxes and repairs on real estate, neither administrator, of course, had any authority, but as to all these the defendant substantially borrowed-of plaintiff the moneys used in these various matters, and she must account for them.
    On the whole case, there seems to be no way of doing justice to the parties, except on the basis which I have adopted; and, in view of the extraordinary facts developed by the evidence, an absolutely just judgment cannot, probably, be awarded. After a careful and diligent examination of the facts and the law, I must hold that plaintiff should have the relief he asks so far as set-off and injunction are concerned, but that he should be allowed a smaller money judgment against the defendant than he demands since the trial though larger than his complaint calls for.
    
      Q. Van Voorhis, for app’lt; Fred. W. Smith, for resp’t.
   Lewis, J.

—We agree with the conclusions of the learned referee, with the exception that we think he should have deducted from the advances made to the defendant by the plaintiff the items of the rent of the Elm street house occupied by the plaintiff.

The referee correctly held that the plaintiff was not entitled to recover of the defendant the payments made to her which were represented by the rents of the real estate owned by the estate of James Laney, deceased, which had been occupied by the firm of Laney & Co., and by Mr. Barker.

These rents were not actually paid to the plaintiff by the firm or by Mr. Barker, but as they came due, by a system of bookkeeping adopted by the plaintiff, he in effect charged himself with the rents of the several pieces of real estate belonging to the estate and occupied by the firm, by Mr. Barker and by himself, respectively.

He did not pay his rent as it came due in any way except by charging himself with it on the books of the firm of Laney & Co., of which firm the plaintiff and Barker were members, and the estate of James Laney was interested.

There was no distinction made, so far as the entries in the books were concerned, between the rentals owing by the firm, by Mr. Barker and by the plaintiff. He paid to the defendant money, from time to time, as she called for it, and charged her with it.

The referee found, upon evidence sustaining his finding, that these advances were made by the plaintiff under circumstances entitling him to recover them of the defendant, with the exception of so much of said advances as equals the aggregate of the rentals of the real estate aforesaid, occupied by the firm of Laney & Co. and Mr. Barker, amounting to $13,122.50.

He did not deduct from the advances the amount of the rent of the house the plaintiff had occupied, being the sum of $1,560 and interest.

The referee very properly held that as the plaintiff had no authority to collect the rents, but having charged himself with them and assumed to pay them to the defendant, knowing all the facts of the case, the payments must be considered as having been made voluntarily and that he could not recover them of the defendant.

The facts upon which the referee based this finding came from the plaintiff as a witness.

He testified that he charged himself with the rents as they came due and paid them to the defendant.

He testified that he charged himself with the rent of the house belonging to the estate, which he occupied, upon the firm books, in the same manner as he charged the other rents mentioned, received from the other real estate, and he paid it to the defendant just as he paid the other rents as rents, understanding, so he testified, that he had the right to collect the rents and pay them to Mrs. Laney.

Having paid the rents to the defendant voluntarily in every instance, and there being no.express or implied agreement for their repayment, we find no reason for permitting the plaintiff to recover the payments made, represented by the rent of the house occupied by himself.

James Laney died on the 1st day of March, 1885, and the referee finds that the rent of the Elm street house, occupied by plaintiff, amounted, after the death of Laney, and before the 1st of February, 1887, to $1,170, and that subsequent to that date it was $390, making an aggregate of $1,560.

The account of rents produced by the plaintiff shows that the part of the rents which go to make up the $1,170 fell due before the death of Mr. Laney. The error is not important, as the plaintiff testified that the rent of the Elm street house, occupied by him, appeared in that account as rent received after Mr. Laney’s death, and was paid by him to the defendant as so much rent received.

The principle adopted by the referee in the computation of interest on the accounts requires that there should be added to this sum of $1,560 four years interest amounting to $374.40, making in all $1,934.40, which should be deducted from the $7,546.44 found by the referee as the sum for which the plaintiff was entitled to judgment against the defendant.

The finding of the referee that the payments to the defendant, by checks, amounted to $23,650, is correct, as the addition of the items of the amount will show.

He was in error when he found, at the request of the defendant’s counsel, that they aggregated but $23,050.

The judgment should be reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulate to deduct from the amount of his recovery, the sum of $1,934.40, but in case the plaintiff give the stipulation suggested, the judgment should be affirmed for the sum of $5,612.04 damages, with interest thereon from the 1st day of August, 1891, and for that amount affirmed, without costs of the appeal to either party.

Dwight, P. J., and Macomber, J., concur.  