James Riley, the plaintiff’s testator, in October, 1891, conveyed two parcels of real estate in the city of New York, subject to mortgages then thereon amounting to $37,966 and accrued interest, to the defendant Richard Cummings; and simultaneously with the delivery of the deed, Cummings entered into a written agreement with Riley and his wife, to the effect that the conveyance was made for the purpose of enabling him to sell the premises as soon as possible upon the best terms obtainable, and to apply the proceeds of the sale; after deducting the expenses incident thereto, to the payment and satisfaction of certain indebtedness of Riley and his wife, and after such application to pay whatever remained, if anything, to Riley. Cummings went into possession, and on the fifth of April following, by a deed bearing date on that day, but acknowledged on the next day, he and his wife Elizabeth, the other defendant, conveyed one of the parcels (no question is presented as to the *514other parcel) to one Lawson for the expressed consideration of $50,000, who on the same day that he received the deed, after placing three mortgages upon the premises, one to the United States Trust Company for $31,000, ope to Seymour P. Kurzman for $3,755, and one to the Bradley & Currier Company for $5,855, reconveyed to Cummings for the same consideration expressed in the deed to him. In August, 1893, the defendant Elizabeth Cummings purchased the Bradley & Currier Company mortgage; and some time thereafter foreclosure proceedings were commenced on the Kurzman mortgage by one Katharine Yale, who had become the owner thereof by mesne assignments. The action to foreclose was prosecuted to a judgment, and upon the sale thereunder the defendant Elizabeth Cummings purchased the premises and received in May, 1894, a deed from the referee therein.
Riley died on or about the 2d of September, 1893, leaving a will which was thereafter admitted to probate and letters testamentary thereon issued to this plaintiff. She thereafter, as such executrix, commenced this action, to compel the defendant Richard Cummings to account for the moneys received by him from the premises conveyed by her husband, and also to procure a judgment setting aside the deed from the referee to the defendant Elizabeth Cummings upon the ground that it was fraudulent and void as to the plaintiff, and also for a resale. The court dismissed the complaint as to the defendant Elizabeth, but directed that an interlocutory judgment be entered requiring the defendant Richard Cummings to account for all his acts and proceedings concerning said transaction, including all moneys received and disbursed by him on account thereof, and that final judgment be reserved until such accounting was had. An interlocutory judgment was thereupon entered to this effect from which the defendant has appealed.
We are unable to see how the trial court could have reached any other conclusion than it did. There is nothing in the record before us which shows or tends to show that the defendant Elizabeth Cummings, either in taking the assignment of the mortgage referred to, or in becoming the purchaser at the sale, did not act in good faith, or that she did not pay all the property was worth. There is nothing from which even an inference can be drawn that she either had knowledge of the agreement which her husband had made with the *515Rileys, or that her purpose in making the purchase was to injure or defraud them in any way. The deed to her husband was absolute upon its face, and no reference was made therein to the agreement. It cannot, therefore, be said, because she joined in the deed to Lawson, that she knew of the terms and conditions under which her husband held the title. Indeed, the only thing that has been or can be suggested from which it can be inferred that she had knowledge of that agreement is that she-is the wife of the defendant Richard Cummings, and this, of itself, we do not think sufficient to justify the court in granting the relief asked for against her. From anything that appears, the plaintiff’s rights will be fully protected by the accounting directed.
The judgment should be affirmed, with costs.
Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Patterson, J., dissented.