89 N.Y. 128 | NY | 1882
The complaint alleges that at a tax sale held in the city of Brooklyn in June, 1864, for unpaid taxes assessed in 1862, the plaintiff purchased several lots of land and paid therefor in the aggregate $342.66 and that it was "then and there expressly agreed by the defendant with the plaintiff that if there was any irregularity in the proceedings prior to said sale the said purchase-money should be repaid to the plaintiff, provided the certificates which were then and there delivered to the plaintiff and numbered be surrendered to the collector;" that the taxes assessed, on the lots so purchased, for the year 1862 were void because the assessment-roll was not at the time it was delivered to the board of supervisors, or at any other time, sworn to or verified as required by law; that the plaintiff, on the 11th day of April, 1878, tendered such certificates to the registrar of arrears, to the collector of taxes and assessments, and to the comptroller of the city, and offered to surrender the same to each of them; and the complaint also alleges that in *131 October, 1875, at a public auction held by the registrar of arrears in the city of Brooklyn for the sale of property for unpaid taxes pursuant to law, the city of Brooklyn purchased a lot of land assessed for the taxes of 1872, and a certificate of the sale was made to it, which certificate contained a provision that if any irregularity should be discovered in the proceedings prior to the sale, the purchase-money should be repaid to the purchaser or his assigns, provided the certificate should be surrendered to the registrar of arrears; that in March, 1878, the plaintiff paid to the registrar at his request the sum of $623.80, being an amount equal to an amount which would be required to redeem the lot sold on the day last mentioned, whereupon the registrar, for and in consideration of such payment, assigned to him all the right, title and interest of the city in the certificate and delivered the same to him, and that he has ever since been the holder and owner thereof; that the tax for which the sale was made was void because the assessment-roll for the year 1872, in which the tax was laid, was not sworn to or verified as required by law; that in April, 1878, he tendered the certificate to the registrar of arrears and to the comptroller of the city and offered to surrender the same to each of them; that on the 11th day of April, 1878, he presented a claim for the repayment to him of the two sums of money before mentioned, with interest, to the chief fiscal officer of the defendant; and judgment was demanded for the two sums with interest. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled at Special Term, and upon appeal to the General Term it was sustained and judgment given thereon to the defendant.
Section 31 of title 4 of chapter 384 of the Laws of 1854, as amended by section 21 of chapter 63 of the Laws of 1862, requires that the corrected assessment-roll of each ward in the city should be sworn to by at least two of the assessors, "according to the oath provided by law in regard to assessment-roll in the different towns in this State," and further to the effect that "they have together personally examined, within the year past, *132 each and every lot or parcel of land, house, building or other assessable property within the ward." The plaintiff alleges that the only verification of the assessment-roll was by an affidavit containing the statements provided by law for assessment-rolls in the different towns in this State, and a copy of the oath attached to each of the assessment-rolls is annexed to the complaint; but the further oath as to the personal examination of each and every lot or parcel of land within the year was wholly omitted. The claim of the plaintiff is that this defect in the assessment-rolls rendered them wholly void, and that the tax sales made under them were absolutely void, and we are of that opinion.
It was the duty of the assessors to make a fair, just and intelligent assessment of property liable to taxation, so that the burden of taxes could be equally and ratably distributed among the tax payers; and to secure a faithful performance of that duty the law required a prescribed oath to be taken. The purpose of the oath was to require, not only a valuation of the real estate to be assessed, but also a personal examination of all the parcels of real estate within the preceding year, so that the valuation might be intelligently and properly made.
Before the property of one can be compulsorily taken for the payment of taxes or assessments, the substantial requirements of the statute intended for his benefit or protection must be strictly followed. In Van Rensselaer v. Witbeck (
In the opinion at General Term, and in the brief of the defendant's counsel, some reliance is placed upon the cases ofParish v. Golden (
It is clear, therefore, that these taxes were void and that the sales made for their non-payment were also void. It is true, as claimed by the defendant, that the invalidity of the assessments appears upon the face of the assessment-rolls, and undoubtedly if the plaintiff had paid his money, as a simple purchaser at a tax sale, without any agreement for repayment in case any irregularity should exist or be discovered, he could not have recovered back the money thus paid. In such a case he would buy without warranty, and take such a title as the tax sale would give him. (Lynde v. The Town of Melrose, 10 Allen, 49.) But here it is alleged that at the sale made in 1864, the defendant expressly agreed that the purchase-money should be repaid if there was any irregularity in the assessment and tax proceedings prior to the sale. It is not alleged how that agreement was made by the city. Under the allegation the plaintiff could prove the making of the agreement in any way. The city was interested in this tax sale and was entitled to a portion or all of the proceeds thereof, and it cannot be said that it was not competent to make the agreement in some form, either by an ordinance of its common council, or by the action of some officer who had been for a long time accustomed, with the knowledge and acquiescence of the legislative and executive officers of the city, to make such agreements.
It matters not that there is no allegation in the complaint that the money paid at the sale in 1864 was paid into the city treasury for the benefit of the city. It is sufficient that the city was interested in the sale and entitled to at least a portion of the proceeds thereof. As to the tax sale made in 1875 the registrar of arrears had the right to bid in the land for the city under section 18 of title 8 of chapter 863 of the Laws of 1873, and he had the power, under section 19, to sell the certificate to the plaintiff, and by section 20 it appears that the money received by him for such assignment must be applied for the *136 benefit of the city. It cannot be doubted that the city could upon such a sale warrant the validity of the certificate.
We are, therefore, of opinion that the complaint stated a good cause of action against the defendant, and that the demurrer was not well taken, and that the judgment of the General Term should be reversed and that of the Special Term affirmed, with costs.
All concur, except TRACY, J., not voting.
Judgment accordingly.