
    Michael B. Dinan, App’lt, v. William Coneys and Hannah Coneys, Resp’ts.
    
      (Supreme Court, General Term, Second, Department,
    
    
      Filed February 13, 1893.)
    
    1. Ejectment — Counterclaim—Legacy charged on land.
    Where land is devised charged with the payment of a legacy, the legatee, who is in possession of the land, may counterclaim the amount of said legacy in an action by the devisee to recover possession.
    
      2. Same.
    In such case it is not sufficient to give the legatee a judgment for the amount of the legacy; but a referee should he appointed to sell the land and pay the legacy from the proceeds.
    (Dykmah, J., dissents.)
    Appeal from judgment entered upon the report of a referee, and especially from that part which adjudges that defendant, Hannah Coneys, is entitled to recover of plaintiff the amount of' a certain legacy.
    
      Snider & Hopper, for app’lt; A. & A. X. Fallon, for resp’ts.
   Barnard, P. J.

Daniel R. Dinan devised a parcel of real estate situate in Rockland county to his son, the plaintiff. He gave the sum of $300 to the defendant, Hannah Coneys, and made the same a charge on the land. The defendants have occupied the land since the testator’s death in 1883. The plaintiff seeks to recover possession of the land. The defendant, Wm. Coneys, avers that he has a claim for repairs made at plaintiff’s request The defendant, Hannah Coneys, sets up the bequest and its charge upon the land, and asks judgment for its recovery of the plaintiff. The claim for repairs was rejected on the trial. No proof was given to show the payment of the $300, or of any part of it. The referee gave judgment for the recovery of the land by the plaintiff, and for a judgment for the bequest with interest in favor of Hannah Coneys against the plaintiff.

By § 501 of the Code, a defendant may set up a cause of action connected with the subject of the action. The subject of the action is the real estate in question. One party seeks possession, and the other seeks to recover the amount of a lien she has on the property created by the instrument which gave the title to the plaintiff. The G. & H. Mfg. Co. v. Hall, 61 N. Y., 226.

The judgment did not go far enough. There should have been appointed a referee to sell the land, and out of the proceeds to pay the legacy, and after payment of the same to pay over the balance to the plaintiff.

The judgment should be modified in this respect, and, as modified. affirmed, with costs.

Pratt, J., concurs.

Dykman, J. (dissenting).

This case presents some unusual features. The action is for the recovery of real property in Rockland county, formerly owned by Daniel Dinan, the father of the plaintiff and the defendant, Hannah Coneys, who is the wife of the defendant, William Coneys.

Daniel Dinan died in the year 1883, seized and possessed of the property, leaving a last will and testament by which he devised the same to the plaintiff, and gave to the defendant, Hannah Coneys, a legacy of $300, which he charged upon the land.

The defendants went into possession of the premises after the death of the testator, and were in possession at the time of the commencement of this action. The defendants answered separately.

William Coneys said in his answer that he had expended large sums of money in the reparation of the buildings upon the premises with the knowledge, permission and consent of the plaintiff, amounting to $1,175, for which he demanded judgment against the plaintiff..

The defendant, Hannah Coneys, set up her legacy and demanded judgment therefor with interest.

The plaintiff served a reply to the answer of Hannah Coneys, in which he admitted the claim, but said that she remained upon and occupied the premises under an understanding that the value of the use and occupation and the rents collected should be applied to the payment and satisfaction of the legacy, and charged that the value of the use and the rents received exceeded the amount of the legacy, and that the same was thereby paid and discharged.

The cause was referred to a referee to hear and determine, and upon the trial the plaintiff proved that he was the son to whom the property was devised, the death of his father, the possession of the defendants, and then offered the will in evidence and rested. He made no effort to prove the agreement set up in his reply for the satisfaction of the legacy of his sister.

The defendant, William Coneys, then undertook to prove the repairs he had made to the buildings on the premises, but the testimony was all excluded upon the plaintiff’s objection.

The interest upon the legacy of Hannah Coneys was computed and the testimony was closed.

The referee reported in favor, of the plaintiff for the recovery of the premises and in favor of the defendant, Hannah Coneys, for $447.45.

Judgment has been entered accordingly in favor of the plaintiff against the defendants for the recovery of the premises and in favor of the defendant, Hannah Coneys, against the plaintiff for $447.45.

From that judgment the plaintiff alone has appealed, but he only seeks to reverse the money judgment against him.

The defendant William Coneys has not appealed and, therefore, we cannot examine the rejection of his claim by the referee.

The sole question, therefore, for our determination upon this appeal is whether the referee committed an error in allowing the defendant Hannah Coneys to recover her legacy against the plaintiff in this action.

In the first place it was not set up and could not be allowed as a counterclaim. The plaintiff was entitled to the possession of the premises and this was an action at law for their recovery. No counterclaim could reduce his recovery, and the claim interposed against -him was not designed to work such reduction. It was an independent demand, and at most constituted a legal cause of action. In the next place, no action at law could be maintained against the plaintiff for the amount of the legacy without an express promise to pay, and no such promise was set up or proven.

No personal obligation ever rested upon the plaintiff for the payment of the legacy.- He could refuse to accept the devise and leave the legatee to her remedy against the land. The fact that her father gave her a legacy imposed no personal duty upon the plaintiff. He can only be sued at law as terre tenant, or upon a promise express or implied.

The portion of the judgment, therefore, in favor of the defendant, Hannah Coneys, against the plaintiff must be reversed, with costs.

Judgment modified as stated in opinion and as modified affirmed, with costs. •__  