146 N.Y.S. 949 | N.Y. App. Div. | 1914
This is an action to foreclose a tax lien under the provisions of chapter 17, title 5, of the Greater New York charter (Laws of 1901. chap. 466, as amd. by Laws of 1908, chap. 490, and Laws of 1911, chap. 65). By the terms of section 1035 of the charter, as added in 1908 and amended in 1911, such an action is to be “regulated by the provisions of the Code of Civil Procedure and by all other provisions of law and rules of practice applicable to actions to foreclose mortgages on real property, ” except as otherwise especially provided in said title. The exceptions are of minor importance. The general scheme of the title is that when taxes, assessments or water rates, which are by law made a lien upon real property, shall remain unpaid and overdue for a certain period, the city may sell at auction and transfer to the purchaser thereat the lien upon the real estate, for the amount of the unpaid charges, which lien the purchaser may at the time and by the means provided in said title, proceed to foreclose by action.
The complaint in the present case alleges in its 1st and 2d paragraphs that at a public auction 'held on April 21, 1913,
The 3d paragraph alleges that on June 2, 1913, the said Lillian C. Schwartzman duly sold, assigned and transferred the said transfer, of tax lien and all moneys due and to become due thereunder to the plaintiff.
The 4th paragraph reads as follows: “That the defendants have failed to pay the taxes which became due on said property, as required by the provisions of Chapter 17, Title 5, of the Greater New York Charter.”
The 5 th paragraph alleges that there is now due upon the said transfer of tax lien the sum of fifteen dollars and six cents, with interest.
The defendant the Bungay Company “Denies that it has any knowledge or information sufficient to form a belief as to the truth of any of the allegations made and contained ” in paragraphs 1, 2, 3 and 6.
The court at Special Term was of the opinion that this form of denial was insufficient and raised no issue because the matters attempted to be thus denied were of public record. While this criticism may be well founded as to the first and second allegations of the complaint, as to which we express no opinion (See Kirschbaum v. Eschmann, 205 N. Y. 127), it is inapplicable to the 3d paragraph, which sets up the plaintiff’s right and title to sue. That paragraph merely asserts that an assignment was made to plaintiff which is not, however, alleged to be a matter of record. It is improbable that the defendant could have any knowledge of such an assignment, and it was entitled to put plaintiff to his proof in that regard. This denial was, therefore, certainly not frivolous. The positive denials of the allegations of non-payment contained in the 4th and 5th paragraphs of the complaint were deemed to be insufficient because “payment is an affirmative defense, and cannot he raised by a mere denial.” As a general rule, this proposition is unassailable, but where the non-payment of a sum of money is a fact upon which plaintiff bases a cause of action for the recovery of a separate and distinct sum of money, the bur
To demonstrate the .application of this rule to the present case it will be necessary to read the complaint in the light of the statute, and incidentally to consider the sufficiency of the complaint.
The act provides (§ 1032, as added' supra) as follows:
“ § 1032. The aggregate amount of each tax lien transferred pursuant to this title, shall be due three years from the date of the sale. Until such aggregate amount is fully paid and discharged, the holder of the transfer of tax lien shall be
Section 1035 (as added and amd. supra) provides:
“ § 1035. If the amount of any tax lien which shall have been transferred by a transfer of tax lien shall not be paid when under its terms and the provisions of this title such amount shall be due, the holder of such tax lien may maintain an action in the Supreme Court to foreclose such tax lien.”
These provisions, read together, provide that the amount of a tax lien shall become due three years from the date of sale, unless the due date is accelerated by default in the payment of interest upon the amount paid for the tax lien for thirty days, or by default for six months after delivery of transfer of tax lien in the payment of any taxes, assessments or water rents which become a lien on or subsequent to the date mentioned in the advertisement of sale as the date of the tax lien sold.
The complaint does not state when the transfer of tax lien was delivered to plaintiff’s assignor, but it must have been at some time subsequent to April 21, 1913, alleged to have been the date of sale. Three years had not elapsed since the date of sale when this action was commenced, and it was, therefore, necessary for plaintiff to allege, in order to maintain the action at all, that the due date had been accelerated for one of the reasons provided in the statute and to specify in intelligible language which reason so accelerated it. He has apparently attempted to do so in his fourth allegation that “ the defendants have failed to pay the taxes which became due on said property, as required by the provisions of Chapter 17, Title 5, of the Greater New York Charter. ” This is clearly an insuffi
To properly allege acceleration of the due date of the transferred lien under this provision, the pleader should allege (1) the date specified in the advertisement of sale as the day of the date of the tax lien transferred to and held by plaintiff; (2) that on or after that date taxes, assessments or water rents became a lien on the property, and these should be stated specifically; (3) the date of the delivery of the transfer of tax lien sought to be foreclosed, with an allegation that the subsequent liens have not been paid. Even if properly pleaded it would still be the allegation of the non-payment of a sum of money as the basis of a cause of action to recover a separate and distinct sum of money, and this allegation would be put in issue by a denial, without the necessity of a positive allegation of payment, under the rule quoted from Gruenstein v. Jablonsky (supra).
What has already been said is sufficient to necessitate the reversal of the order appealed from. There are other omissions in the complaint to which attention is called and which are claimed to render it insufficient. While it is alleged that the city on a given date sold a tax lien, there is no allegation that at the time of sale there were any unpaid taxes, assessments or water rents for which the city had a lien which it could sell. It is not alleged that the necessary statutory proceedings were duly had prior to the sale. The only authority of law for a sale and transfer of the city’s lien is the statute above cited, and no valid sale can ¡be 'made under it unless the prescribed preliminary steps are duly taken. Nor is it alleged that the holder of the transfer of tax lien has elected to consider the amount thereof due in consequence of the'failure to pay subsequent taxes, assessments or water rents. Such failure does not ipso facto accelerate the due date, but merely gives the holder of the transfer of tax lien the option to consider the amount as
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., McLaughlin, Laughlbst and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.