234 A.D. 214 | N.Y. App. Div. | 1932
The petitioner, Economy Holding Corporation, was the assignee of one Samuel Levine, one of its officers, who, on July 17, 1929, attended the auction sale conducted by the city of New York of a parcel of real property located at the southeast corner of Rivington and Allen streets in the borough of Manhattan, New York city, and who bid in said parcel for the price of $46,500. The parcel in question was not actually required for the physical improvement of Allen street, in which scheme of improvement various parcels of real estate had been acquired by the city. In connection with such auction sale the city of New York issued and published a catalogue, which, among other things, provided, as to various parcels conveyed, including the parcel bid off by Levine, that the property to be sold at public auction would be conveyed by the city of New York free and clear of all taxes and assessments, and that each parcel of property would be conveyed by a full covenant and warranty deed in accordance with the schedules set forth in the resolutions of the commissioners of the sinking fund and contained in the catalogue and subject to any leases, easements, incumbrances or restrictions specified in the description thereof or announced by the auctioneer on the day of sale, as well as subject to existing tenancies or any state of facts that an accurate survey would show, etc. It was expressly provided in such terms of sale that “ The liability of The City of New York upon such covenant and warranty to be limited, however, to the return of the purchase price with interest at six per cent and the payment of costs and a reasonable counsel fee to be fixed by the Court and taxed in the action or proceeding wherein . the City’s liability is determined.” The date for the closing of title to the parcel here involved was set for August 17, 1929. Because of the fact that there were mortgages affecting the property which were not satisfied until about the middle of October, 1929, the purchaser did not take title until October twenty-second of that year, when the Economy Holding Corporation, as assignee of Levine, paid the amount fixed by the terms of sale and in accordance therewith gave a mortgage for seventy-five per cent of the purchase price. The closing of title and all adjustments were made as of August 17, 1929. Prior to the closing of title the attorney for the Economy Holding Corporation communicated with the office of the comptroller advising him that various hens and incumbrances against the property which
We are of the opinion that the court at Special Term was without authority to grant a mandamus order against the comptroller requiring the comptroller to strike said assessment from the fists. Said assessment for benefit was levied in a proceeding duly instituted for the acquiring of title of real property for the widening of Allen street from Schiff parkway (Delancey street) to East Houston street and First avenue from East Houston street to First street, in the borough of Manhattan, New York city. In that proceeding the final decree was dated July 30, 1929, and was duly entered on August 2, 1929, when it became a final judgment of the Supreme Court and conclusive upon all questions subject to litigation in the proceeding. In our opinion said final decree may not be attacked collaterally, as the petitioner is attempting in the proceeding at bar. Section 995 of the Greater New York Charter (added by Laws of 1915, chap. 606, and amd. by Laws of 1917, chap. 259) provides as follows: “ * * * An appeal from the final decree of the court must be taken within thirty days after notice of the fifing of said final degree. * * * But the taking of an appeal by any person or persons shall not operate to stay the proceedings under this act, except as to the particular parcel of real property with which the appeal is concerned; and the final decree of the court confirming the report or reports, as the case may be, shall be deemed to be final and conclusive upon all parties and persons affected thereby, who have not appealed. * * (Italics are the writer’s.) Section 1003 of the charter (added by Laws of 1915, chap. 606, and amd.
The law is well settled that an officer cannot be compelled by mandamus to perform an act beyond his power. Chief Judge Church, writing for the Court of Appeals in People ex rel. Hammond v. Leonard (74 N. Y. 443), stated (at p. 445)-: “ While a mandamus is an appropriate remedy to enforce the performance of a
We know of no authority in the comptroller to vacate an assessment for benefit duly made by the Supreme Court. Furthermore, the petitioner has an adequate remedy at law to determine its rights under the contract of sale, wherein, as above stated, it is provided that the liability of the city of New York upon its covenant and warranty is limited to the return of the purchase price with interest at six per cent and the payment of costs and a reasonable counsel fee to be fixed by the court and taxed in the action or proceeding wherein . the city’s liability is determined. Where the
We are, therefore, of the opinion that the court improperly granted the mandamus order appealed from, and that the same should be reversed, with ten dollars costs and disbursements, and the motion denied, with fifty dollars costs.
Finch, P. J., McAvoy, Maetin and Shebman, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.