
    William Augustus Spencer and Lorillard Spencer, Respondents, v. William Augustus Spencer and Lorillard Spencer, as Executors, etc., of Charles G. Spencer, Deceased, and Others, Defendants, Impleaded with Eleanora L. S. Cenci and Beatrice Fiorenza Cenci, Appellants, and Lorillard Spencer, 3d, Respondent.
    
      Partition — interest on taxes paid by one cotenant.
    
    Appeal from an interlocutory judgment, entered in the Hew York county clerk’s office on the 5th day of April, 1911, upon report of the referee in action for partition.
   Scott, J.:

We concur in the result arrived at by the referee, except that we think that interest should be allowed upon the taxes paid upon the property in -dispute by the parties who made such payments in the belief that they were the owners. It may be that under ordinary circumstances a cotenant paying taxes for the benefit of himself as well as of his cotenants would not be entitled to charge his cotenants with interest, but the circumstances here were extraordinary in that the appellants’ ownership was virtually conceded by all parties when the taxes were paid. Under these circumstances it would be inequitable to charge appellants with interest on the award paid to-them by the city and to refuse-interest on the taxes paid- by them.. In this respect the judgment appealed from is modified and as modified affirmed, with costs in this court, payable out of the fund, to- all parties who have separately appeared and filed briefs. Settle order on notice. Ingraham, P.. J., Miller and Dowling, JJ., concurred; Laughlin, J., dissented.

LAUGHLIN, J.

(dissenting): I dissent and vote for reversal.

Judgment modified as stated in opinion and as modified affirmed, with costs- to all parties appearing, payable out of the fund. Order to be settled on notice.  