
    Theodore W. Stemmler, Respondent, v. Edward G. Alsdorf and Others, Appellants.
    First Department,
    May 7, 1915.
    Mortgage — foreclosure — liability of purchaser at foreclosure sale to mortgagor for amount saved in settlement of claim for taxes — pleading— failure to allege promise to pay.
    A purchaser of lands at a foreclosure sale, subject to “theliens of all valid taxes, assessments, water rates and sales thereunder,” who makes a settlement of the claim for taxes for a smaller amount than actually due, is not liable to the mortgagor or his successor in title for the amount saved in settlement of the taxes.
    In an action by the mortgagor to recover such amount, an allegation that on or about a certain date the defendants received and collected to and for the benefit of the plaintiff over $49,000, which said sum the defendants retained and, though duly demanded, refused to pay, is insufficient, because no express promise is alleged, nor any fact from which an implied promise may be presumed.
    Appeal by the defendants, Edward G-. Alsdorf and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of October, 1914, overruling a demurrer to the complaint interposed on the ground that it failed to state facts sufficient to constitute a cause of action.
    
      Marinus Willett, for the appellants.
    
      Merle I. St. John, for the respondent.
   Hotchkiss, J.:

In the first cause of action it is alleged that in December, 1870, one Bragaw was the owner of certain real property; that in December, 1870, Bragaw conveyed to Babette Stemmler, who gave back a purchase-money mortgage. In June, 1878, Babette conveyed to trustees to sell and apply the proceeds as in said deed set forth; ” that the trustees found it impossible to execute their trust and brought an action to have that fact decreed; that they be discharged, and that a receiver be appointed; that in August, 1875, a judgment to that effect was entered and one Stevens appointed receiver, who died in June, 1894, and thereafter Gitterman was substituted in his place. In May, 1907, Gitterman filed his petition that he be appointed substituted trustee under the aforesaid deed of trust, and that as such trustee he be authorized to quitclaim to Casserly subject to the purchase-money mortgage, and also subject to all taxes, assessments and sales, which petition was granted by order duly entered. In the meantime Bragaw brought an action to foreclose his purchase-money mortgage^ and in June, 1903, a decree of foreclosure and sale was entered in pursuance of which, on December 17, 1908, the premises were sold to defendant Alsdorf subject to “ the liens of all valid taxes, assessments, water rents, and sales thereunder,” which with interest to December 31, 1908, were recited in the decree to amount to $126,267.20. In March, 1909, Alsdorf assigned his bid to defendant Anonymous Company, and on March seventeenth the referee’s deed was delivered to that company, and on the next day it conveyed the premises to the defendant Cabinet Land Company. In April, 1909, the referee’s report was filed showing that he had sold the property subject to taxes and assessments and had realized a surplus of $3,800. Between 1870 and 1898 the property, which was located in Long Island City, had been subjected to excessive taxes. By chapter 686 of the Laws of 1904, one year after the decree of foreclosure was entered and four years before the sale was had, the city was authorized to compromise with Long Island City property owners for back taxes, assessments and sales. In May, 1906, and again in May, 1907, “deponent” filed his petition under the act, and in May, 1906, Gitterman filed a similar petition. But on or about March 19,1909, the defendants “ or some one of them,” had apparently accomplished a settlement with the city, for they then paid $77,245.75 in settlement of the $126,267.20 in taxes and assessments found to be due by the foreclosure decree—a difference of over $49,000, which amount plaintiff claims to recover from these defendants, having by various means, all of which are alleged, succeeded to the interests of Babette Stemmier and Gitterman as trustee in the premises.

The theory of the complaint' is that the purchaser at the foreclosure sale took the property charged with a lien for taxes and assessments in the sum of $126,267.20, and inasmuch as he succeeded in settling with the city for a smaller amount, plaintiff is entitled to recover the difference. It needs no extended argument to show that the law affords no basis for any such claim. When the decree of foreclosime was entered the premises were subject to liens as therein stated. The purchaser at the subsequent sale bought at his peril and to him equally inured the right to resist the liens, or any of them, and to obtain whatever reduction he could. Whatever reduction he or his assignor so secured was in his own right and not in the right of plaintiff’s predecessors in title.

The second cause of action alleges that on or about a certain date the defendants received and collected to and for the benefit of the plaintiff over $49,000, which said sum the defendants retained and, though duly demanded, refused to pay. This is clearly insufficient, because no express promise is alleged, nor is any fact alleged from which an implied promise can be presumed. (Van Santvoord Pldgs. [2d ed.] 259, 260.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and, inasmuch as the form of the motion below involved the issue of law raised by the attack on the demurrer (See National Park Bank v. Billings, 144 App. Div. 536; and cf. Godwin v. Liberty-Nassau Building Co., Id. 164), the demurrer should be sustained and the motion denied, with ten dollars costs, with leave to plaintiff to serve an amended complaint within twenty days after service of the order to be entered hereon upon payment of costs in this court and in the court below.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements. Motion denied, with ten dollars costs, and demurrer sustained, with leave to plaintiff to serve an amended complaint upon payment of costs in this court and in the court below.  