Roffe v. Yerington Realty & Building Co.

Plaintiff in purchasing the two transfer of tax hens at a public sale, neither bought in any property of the defendant Yerington Realty and Building Company, Inc., nor did she deal with the corporation in any respect. In making her purchase, she dealt, not with the corporation, but with the city of New York, a third party fully capable of protecting its own rights. She bought nothing which the corporation owned or to which it had a right. In the circumstances plaintiff was under no duty, though an officer and director of the corporation, to make an outlay of her own funds for the benefit of the corporate defendant. (Seymour v. S. F. C. Assn., 144 N. Y. 333, 343; Hauben v. Morris, 255 App. Div. 35, 46; affd., 281 N. Y. 652.)

The same principle is equally applicable to the other parcel of real property in which plaintiff and defendants-respondents were tenants in common. The mere relationship of cotenancy did not prevent the purchase and enforcement by plaintiff of the transfer of tax lien incumbering the property referred to in the record as Parcel B. (Streeter v. Shultz, 45 Him, 406; affd., 127 N. Y. 652; Starkweather v. Jenner, 216 U. S. 524.)

The order and judgment should be reversed, with costs, and the motion for summary judgment denied.

Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.

Order and judgment unanimously reversed, with costs, and motion for summary judgment denied.