
    Bassie Jaffee and Another, Respondents, v. Elias Wistreich and Others, Appellants.
    Supreme Court, Appellate Term, Second Department,
    January 28, 1933.
    
      Geis, Forman & Schulze [Herman B. Forman of counsel; Thilo C. Schulze on the brief], for the appellants William Beyer and Louis Schmidt.
    
      Israel & Schuhmann [Mortimer H. Israel of counsel], for the appellant Elias Wistreich.
    
      Harry Aaron [Myron Wisoff of counsel], for the respondents
   Per Curiam.

Judgment against appellant Wistreich affirmed, with twenty-five dollars costs. Judgment against appellants Beyer and Schmidt unanimously reversed upon the law, with thirty dollars costs to such appellants, and complaint dismissed as to them, with appropriate costs in the court below.

Under the provisions of section 266 of the Tax Law, in the absence of stipulation, appellant Wistreich was liable to pay the mortgage tax. The court below apparently has found that he promised, if he was liable, to reimburse the plaintiffs if the latter would pay. His liability was created by law, and if he desired to avoid such liability he should have exacted an agreement from the other appellants to pay the tax. The plaintiffs can have no recovery against the other appellants, since the law imposed no liability upon them, and they did not assume any either under an agreement with appellant Wistreich or with the plaintiffs.  