128 N.Y.S. 153 | N.Y. Sup. Ct. | 1910
This action was brought to foreclose a first mortgage upon premises in East Eighty-sixth street, borough of Manhattan; and the premises in question were sold pursuant to judgment in foreclosure on September 15, 1910. The contract of sale entered into between the referee and the purchaser contained the following provision: “All taxes, assessments and water rates which at the time of sale are liens or incumbrances upon said premises will be allowed by the referee out of the purchase money, provided the purchaser shall, previous to the delivery of the deed, produce
Under the terms of her contract with the referee, as embodied in the terms of sale, the purchaser would be entitled to an allowance only of such taxes as constituted a lien or incumbrance against the property on the date of sale. The contract is not indefinite or ambiguous on this point, but the taxes and assessments or other incumbrances which are to be paid by the seller, the referee, or allowed to the purchaser, upon the closing of title are clearly and definitely stated. The purchaser, however, claims that as, upon the confirma
In Coudert v. Huerstel, 60 App. Div. 83, the court, in passing upon this question, said: “At tbe time that this
In Lathers v. Keogh, 109 N. Y. 584, the court passing upon the same- question said: “ That the property was the subject of taxation does not control the question. Until the amount of the tax is ascertained and determined no lien or incumbrance exists by reason thereof, and we think that the proper construction of this covenant merely calls for the freedom of the property, at the lime of conveyance, from what can be considered an incumbrance upon the property. * * * We do not think, therefore, that an assessment or a tax exists as an incumbrance, or as a charge upon lands in the roll, within the meaning of a covenant in a deed against charges, taxes, assessments and incumbrances, until it has been confirmed and the amount thereof has been determined in the methods prescribed.” And in a preceding part of the opinion the court said: “ Until these requirements of the law have been fulfilled the tax is not due or payable and no lien attaches to the property nor can any, legal charge for any tax be said to rest upon it.”
Again in Barlow v. St. Nicholas Nat. Bank, 63 N. Y. 399, the court has said: “If the plaintiff had brought his action the day after he took his -deed eo-uld he hav-e maintained it? I think not The answer would have been perfect, that the entry of the land in the assessment roll constituted no incumbrance.”
In the more recent case of Buckhout v. City of New York, 176 N. Y. 363, where the city had acquired title to plaintiff’s property by condemnation, title having vested in the city by virtue of a resolution of the board of estimate on July 6, 1897, and the report of the commissioners having
The purchaser, however, urges that, while the terms of sale are silent as to unconfirmed taxes, .they must be construed in the light of existing law, -and invokes in support of her claim chapter 512, Laws of 1875, now embodied in section 2720 of the Code of Civil Procedure, which provides that: “All rents reserved on any lease made after June seven, eighteen hundred and seventy-five, and all annuities, dividends and other payments of every description made payable or becoming due at fixed periods under any instrument executed after such date * * * shall he apportioned * * * according to the time which shall have elapsed from the commencement or last, period of payment thereof.” The omission of all reference to taxes and other charges of like character against real estate is significant. The purchaser herein cites various English authorities in support of her contention that unconfirmed taxes which, when confirmed, would be a charge
The referee is, therefore, advised to refuse to comply with the demand made upon him by the purchaser of the property to allow her any part of the tax of' 1910, which was confirmed after the date of sale.
Ordered accordingly.