
    Mary Ann Graham, Plaintiff and Respondent, v. Owen Dunigan, Defendant and Appellant.
    1. Where certain apartments in a dwelling-house, in the City of New York, are assigned to a widow on an assignment of dower in her husband’s real estate, and the residue are in possession of the heir-at-law, or his grantee, the taxes and assessments are the subject of equitable apportionment between her and such heir, or his grantee.
    2. But no such apportionment can be made, by the assessors or collectors of taxes, etc., or other public authorities of the city, so that either can pay a portion thereof, and discharge his or her part of the premises from the charge or incumbrance.
    3. If, in order to relieve her own share of the premises from the charge, prevent the accumulation of a percentage imposed as a penalty for the non-payment, and save the premises from sale for taxes or assessments, the widow pays the whole amount, she may recover from the heir-at-law, or his grantee, his just share or proportion of the amount paid, with interest from the time of such payment.
    4. Such share or proportion of the taxes is to be ascertained by taking into view the relative annual value of those parts of the premises held by each respectively ; and, in dividing the assessment, the nature of the improvement for which the assessment is made should be considered, having regard also to the benefit resulting therefrom, and its probable permanency, and also the age of the tenant in dower, and the probable duration of her estate.
    6. The annual water rate, for the use of the Croton water, is subject to the same division. But a charge for Croton water, separately and specifically made for a particular use, which use is exclusively confined to the apartment of one of the parties, should be borne in whole by such party.
    6. In an action brought by, the widow to recover from the heir-at-law, etc., his just share of taxes and assessments paid by her, it is not competent to read in evidence an affidavit of one of the commissioners, by whom the ad-measurement of her dower was made, to show that the commissioners took into consideration the taxes which would probably be imposed upon the particular dwelling-house in question, and assigned her dower in that house on the assumption that she would pay the whole of the taxes; nor to prove by that or by other evidence, that upon any other assumption there was assigned to her for her dower an under-proportion of her husband’s real estate. Such an affidavit, although found on file annexed to the record of the proceedings for the admeasurement of dower, forms no proper part of the record.
    7. If the commissioners made the admeasurement upon any erroneous principle or assumption, the heir-at-law, etc., should set it aside by the proper direct impeachment thereof in the proceeding itself.
    8. Where it is stated in the case that a witness named was sworn and examined “ under objection and exception by the defendant’s counsel,” the Court on appeal will only consider whether the witness was, upon the facts appearing in the case, a competent witness for the plaintiff. Such an objection and exception does not bring under examination the particular testimony given by the witness, not further objected to, nor any part of it, if any of such testimony was admissible.
    Before Bosworth and Woodruff, J. J.
    (Heard, Dec. 1857;
    decided, Feb. 27th, 1858.)
    This action comes before the Court by appeal from a judgment for the plaintiff, ordered on the trial of the action at Special Term, before Mr. Justice Hoffman, without a jury.
    The action is brought by the plaintiff, the widow of one Graham, who died seized of two lots of land, and the dwelling-houses thereon, in the City of New York, who, after the death of her husband, took the usual proceedings to obtain an assignment of her dower, and to whom dower was assigned jn one of the houses by appropriating to her several of the apartments and the privilege of the yard, etc. After such assignment of her dower, and while in possession, the defendant (who was the grantee of the. heirs-at-law) was in the possession and enjoyment of the remaining apartments.
    The annual taxes, and some assessments for public improvements, and also the annual Croton water rate, from time to time became payable and the plaintiff paid the whole amount, and brought this action to recover from the defendant his just share thereof.
    The complaint was demurred to, but the same was held sufficient at Special Term, and on appeal to the General Term, the decision was affirmed on the 7th of November, 1857.
    It is not material to state the pleadings, since no question arose, on this appeal, which does not sufficiently appear in the opinion of the Court; and the questions arising on the trial are there stated.
    The following were the facts found on the trial at Special Term, and the conclusions of Mr. Justice Hoffman thereon:—
    
      “ This cause having been tried before me, without a jury, I find the following facts:—
    “ That the rental of the whole premises, upon which an apportionment is to be made, is the sum of $600 per annum. That the proportion which the property not occupied by the plaintiff should bear to this valued rental, is the sum of $84; that the taxes proven to have been paid amount to the sum of $269.98, and the defendant’s proportion, on the basis of the rent, is the sum of $37.
    “ That the plaintiff has paid the sum of $35 for an assessment for a permanent improvement, of which the defendant’s proportion is $5.
    “The plaintiff’s life-estate should be charged with $11 of the remaining $30, and the estate in remainder with the balance of $19.
    “The sum of $9 was likewise paid for a permanent improvement, of which the plaintiff should pay $2.50, and the defendant the balance of $6.50. That the authorities of the City and County -of New York do not apportion taxes or assessments in cases like the present; and that the plaintiff, under the advice of counsel, (as to the saving her dower,) made the payment in full.
    “ The total amount, chargeable to the defendant, is the sum of $67.50, which, together with $7.50 interest thereon, make in all, $75.25. The decision of the General Term in this case, upon the demurrer, entitles the plaintiff, as matter of law, to recover, upon proving his case.
    “I therefore decide, that judgment should be rendered for that amount, in favor of the plaintiff, with costs.”
    Judgment having been entered in conformity with this decision, the defendant appealed to the General Term.
    
      3. Brewster, for appellant (defendant).
    I. The exception to Mrs. Park’s testimony was well taken. What rent she pays now was wholly irrelevant, as the action applied to 1852-1856. '
    II. The testimony does not sustain the finding of facts by the Judge.
    III. The taxes and assessments were on the land, not on the upper rooms, and cannot be apportioned. The plaintiff ought, therefore, to have paid for herself, and has no claim over against the defendant. (2 R. S. 4th edition, 731, § 18.)
    IV. The payment was voluntary, and confers on the plaintiff no right to recover. (10 J. R. 361; 2 Denio, 27; 3 J. R. 434; 10 J. R. 404.)
    V. The statutes provide for the proper mode of apportioning taxes in all cases, when they can be apportioned, and the party should resort to the remedies there provided. And this action will not lie, nor has this Court jurisdiction of the action. (1 R. S. 4th ed. 776, §§ 82-89, p. 779; Laws 1821, p. 143, ch. 149 ; Laws 1843, p. 325, § 11.)
    VI. The amount allowed is more than the plaintiff is entitled to. None of the Croton-water tax should be charged to these upper rooms, and certainly nothing for the bar on the premises, that being in the portion occupied by the plaintiff. (See Ordinance of 1851, approved March 20; Bleecker v. Ballou, 3 Wend. 263.)
    VII. It was wrong to allow the plaintiff to pay, without defendant’s knowledge or consent; and then, without showing the account, making a bill or asking the defendant to pay, to charge him interest and costs; and the various exceptions on those points are well taken.
    VIII. The exception to the ruling of the Judge, that the defendant should not read the part of the judgment-roll of the proceedings for the admeasurement of dower, offered in evidence, is well taken.
    
      Warren G. Brown, for the respondent (plaintiff).
    I. The decision of the General Term of this Court, upon the. demurrer in this case, having decided, as a matter of law, that the plaintiff is entitled to recover, upon proving his case, that point is res adjudieata here, and will not be again inquired into.
    II. The equitable apportionment of taxes and assessments between tenants is, in some measure, a matter of equitable discretion, depending upon all the circumstances, and to be exercised by the Judge who makes the apportionment, and will not be interfered with, unless clearly excessive in amount.'
    III. No objection was made at the trial, that defendant should not pay his proportion of the entire charge for Croton; nor does it appear in whose part of the premises the bar is situated. The charge for the bar is only $15, of which defendant’s proportion would be but $2. Lex non curat de minimis. But the entire water-tax cannot be so divided.
    IV. The interest upon defendant’s proportion of the taxes and assessments to 20th of June, 1857, was $13.41, instead of $7.50, the amount allowed to plaintiff, making a difference of $5.91, which will more than offset the Croton charge for the bar, or any other excess claimed, if any really exists.
   By the Court. Woodruff, J.

The plaintiff, as tenant in dower of certain portions of the house at the corner of the Eighth Avenue and Thirty-fifth street, assigned to her by commissioners, in a proceeding brought to obtain an admeasurement and assignment of her dower, sues the defendant, the owner of the fee of the premises, and in possession of the portion not assigned to her, to recover an equitable share or portion of the taxes and assessments paid by her for the protection of the whole premises.

The question in controversy was, whether she can recover for moneys so paid; and, if so, what proportion is she entitled to recover from the owner of the fee of the premises, who is also in possession of some of the apartments in the house.

The plaintiff held, as tenant in dower, the larger portion of the apartments in the dwelling, the defendant the residue; the taxes and assessments were laid upon the whole, (i. e., upon the lot of ground, with the dwelling-house thereon); a failure to pay would result in a sale of the entire premises. It was the plain duty of each party, as between themselves, to contribute and pay a just proportion; and we have no hesitation in saying that, if either pay the whole, he or she is entitled to recover back from the other a just proportion thereof. It is not a voluntary payment, but one which the plaintiff is compelled to make to save his own property.

The statutes cited to us, authorizing an apportionment of taxes and assessments in the City of Hew York, do not- provide for an apportionment among owners of different estates in the same land, —as between the owner of the reversion and the tenant in dower. (Laws of 1821, c. 149, p. 143; sess. of 1843, c. 230, p. 325, § 11 of Art. 3.)

The statute declaring the effect of the admeasurement of dower and the recovery thereof, (2 R. S. 491, § 18,) provides, that the widow shall hold the same during her natural life, subject to the payment of all taxes and charges accruing thereon, subsequent to her taking possession. This makes her liable for the taxes upon the premises assigned to her, but by no means for the taxes upon that portion not assigned to her; and it therefore becomes the subject of equitable apportionment, when a part of a house is assigned to her, and the residue is held by the heirs-at-law, or their assigns.

In a case like the present, the duty of each is the proper subject of equitable apportionment, having regard to the benefit accruing from the assessment, whether more or less permanent, and considering also the age of the tenant in dower, and the probable duration of her estate. And, as to the annual taxes, it seems quite clear, that they should be contributed, to by each in the ratio which the annual value of the apartments, etc., held by each bears to the annual value of the whole premises.

The decision at Special Term, was based upon this view of the rights of the parties; and we think the basis of the decision was entirely correct.

Upon the questions of fact, what is the annual value of the whole premises, and what is the value of the respective portions held by the plaintiff and the defendant? the evidence is not very clear, nor free from contradiction; but we can by no means say that the finding of the Court is so clearly against the weight of the evidence, or without evidence, that it should be reversed.

And, in estimating the benefits resulting from the assessments, for permanent improvements, and apportioning them in view of the probable duration of the estate of the plaintiff, it must suffice to say, that there is nothing in the case which indicates to our minds that the apportionment made at the Special Term was not, in all respects, just and equitable, and made in the exercise of that discretion which properly controls a subject of that nature.

The case states, that “Mrs. Sarah- Parks, a witness sworn on the part of the plaintiff, under objection and exception by defendant’s counsel,” testified, etc., (giving her testimony.) The points submitted on the argument by the appellant, urge that this exception is well taken. What is meant by the witness “ being sworn, under objection and exception,” is not very obvious; it would seem that the defendant claimed, that she was an incompetent witness, and that he therefore objected to her being sworn, and excepted to her admission as a witness; but, as there is nothing in the case, and nothing is now suggested indicating that she was incompetent, it is quite possible, that it was intended to represent that the testimony which she gave was objected to on some other ground, and that the Court overruled the objection, and that the defendant excepted to such ruling. We should be reluctant to reverse a judgment upon such a conjectural construction of the meaning of an exception, even if we could find any thing in her evidence that we thought might or ought to have been excluded, if specifically objected to. We cannot sanction that kind of wholesale exception to the whole of the testimony of a witness; and if such exception be taken, and any part of the evidence be legal and proper, the exception ought to fail. It is only just to the adverse party, and to the Court itself, to require the objecting and excepting party to put his finger on the very subject of his objection and exception.

This witness testified, that she occupied, and for ten weeks had occupied, one of the defendant’s rooms and the wood-shed, and paid $3 per month rent. It is now urged, that what this witness paid at the time of, and for ten weeks prior to, the trial, was no evidence of the value of the premises in 1852, and onward. So far from this ground of objection appearing to have been suggested, it appears that most of the testimony given on the trial was of a similar character, and was received without question or objection. But, had the objection been specifically made, it is answered by the suggestion, that a material inquiry was, what is the relative yearly value of the different portions of the premises ? and how shall taxes, down to a period as late as 1856, be apportioned ? The trial was in 1857. Eor this purpose, the evidence was, we think, clearly relevant and proper.

The Court properly refused to allow an affidavit, made by the commissioners who admeasured the dower, to be read, to show' how they estimated the value of the premises, and that they took into consideration the large amount of taxes on the corner lot:—. 1st. It was no proper part of the record; 2d. If they made the admeasurement upon any erroneous principle or assumption, it could not affect the plaintiff’s rights, so long as the admeasurement remained in force; if wrong, the defendants, in that proceeding, should have had it set aside; and, 3d. It did not show, nor tend to show, that the admeasurement was made upon any idea that the plaintiff must pay more than her just share of the taxes, etc., upon the corner lot, however large they might be; and this answers, also, the offer, made by the defendant, to prove orally that the commissioners made the assignment of dower, assigning to her what was an undue proportion, unless apportioned to her on the basis of her paying the taxes and assessments.

Ho such evidence can be competent, in any view of the subject, in a collateral action: the assignment of dower must here be conclusively presumed to have been just and made upon correct principles.

It is insisted, that the Court erred in allowing interest to the plaintiff. Upon every just view of the subject, the plaintiff, if entitled to recover at all, should recover interest from the time of suit brought; and an exception to the allowance of any interest cannot therefore be sustained. From what precise day the Court below allowed interest, is not apparent, but a computation will show that the amount allowed is very little more,—less than two dollars more,—than the interest from the date of the summons.

We think, however, that the plaintiff might equitably have been allowed a greater amount of interest than was allowed on the taxes and water rate paid.

It was the duty of the defendant to pay his share of the taxes, etc. Had not the taxes been paid by the plaintiff, the rates of increase by law, imposed by way of penalty for suffering taxes to remain in arrear, greatly exceed the legal rate of interest, and that penalty is saved to the defendant; and this is also true of the water rate and assessments, after the lapse of certain periods prescribed by law.- The defendant, therefore, would have been a considerable gainer, even had he been charged with interest from the dates of the respective payments, as we think would have been equitable. So that, in this respect, we deem the judgment less than the plaintiff was entitled to.

But we find that, besides the tax for the Croton water for the use of the premises generally, there was a tax for water for the use of the bar in the store, which belonged exclusively to the plaintiff, and which tax it in nowise belonged to the defendant to pay or contribute to; and this last named tax, of five dollars a year for three years, is included in the aggregate apportioned between these parties, and by this means the sum of two dollars and seven cents is cast upon the defendant, which he was not liable to pay. We should do no injustice if we allowed this error to remain uncorrected. What we deem erroneous, in respect to interest, more than balances it. Still, as the plaintiff has not appealed, it will be safer as a precedent, if not our clear duty, to allow the defendant the two dollars and seven cents.

This sum must therefore be deducted from the judgment, and the judgment be affirmed for the residue, with costs of the appeal.

Ordered accordingly.  