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KREIMER v. SMITH (04/22/52)

April 22, 1952

KREIMER
v.
SMITH, APPELLANT



Appeal, No. 24, March T., 1952, from order of Court of Common Pleas of Allegheny County, July T., 1951, No. 793, in case of Charles Kreimer v. David A. Smith, Treasurer of City and School District of Pittsburgh and Charles F. Dinan, Treasurer of County of Allegheny. Order affirmed.

COUNSEL

Niles Anderson, Assistant School Solicitor and Joseph A. Cirillo, Assistant County Solicitor, with them Anne X. Alpern, City Solicitor, Joseph A. Langfitt, Jr., Assistant City Solicitor, Mortimer B. Lesher, School Solicitor, Oscar G. Peterson, Assistant School Solicitor, Alvin J. Porsche and N. K. Beck, County Solicitor, for appellants.

Hillard Kreimer, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Drew

[ 370 Pa. Page 243]

OPINION BY MR. CHIEF JUSTICE DREW

Plaintiff, Charles Kreimer, instituted this action in mandamus to compel David A. Smith, Treasurer of the City and School District of Pittsburgh, and Charles F. Dinan, Treasurer of the County of Allegheny, to pay over to him or credit to his account towards the redemption of property in which he had an interest, certain rentals which defendants had collected from that property for a period of two years after acquiring it at a tax sale.

The property, a warehouse at 832-834 Second Avenue, Pittsburgh, was conveyed to defendants for costs by sheriff's deed, acknowledged June 21, 1947, following a sale initiated by the City of Pittsburgh, at which no one bid the upset price for the property. Pursuant

[ 370 Pa. Page 244]

    to an existing agreement between them, defendants turned the management of the property over to the Department of Lands and Buildings of the City of Pittsburgh, which leased it for $200 per month between June, 1947 and August, 1949, and collected a total of $5,408 in rents. Of this amount $3,600 was turned over to the three taxing bodies in proportion to their tax claims, the County of Allegheny applying its share to the back taxes on the property while the City and School District placed their shares in their general treasuries. The remaining $1,808 was credited by the Department of Lands and Buildings as follows: $300.64 for management commission; $324.45 for insurance; $208.00 for repairs; $263.68 as costs for sheriff's sale proceedings and $711.23 which it now holds for eventual distribution.

Plaintiff's interest in the property grew out of an assignment to him of the rights of the original mortgagee by written instrument, recorded July 19, 1949. Thereafter plaintiff, exercising his right of redemption, offered an initial installment payment on the price of the property to defendants which was accepted by them on August 31, 1949.*fn1 Defendants did not grant plaintiff the credits he claimed, but it was understood by the parties that, in making his installment payment, plaintiff did not waive his rights to pursue his claims. Subsequently he brought this action in mandamus, praying that all rents collected by defendants and not applied as a credit to back taxes be so applied or remitted to plaintiff in cash; that the sum of $711.23, in the hands of the Department of Lands and Building be paid to plaintiff and that the further sum of $263.68 in sheriff's costs, listed in the redemption agreement to be paid by plaintiff, be noted as paid. Following a hearing

[ 370 Pa. Page 245]

    on a motion for judgment on the pleadings, the learned court below granted the prayer of plaintiff's motion and ordered defendants to pay over or credit to plaintiff the sums he averred ...


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