20 N.Y.S. 602 | N.Y. Sup. Ct. | 1892
The decree from which the appeal is taken in this cause declared that a certain tax lease of premises described in the complaint, made and executed by the proper authorities of the city of New York to the defendant, was void, and directed it to be canceled of record as a cloud on the plaintiff’s title, for the reason that excessive interest had been added to the amount of an assessment for nonpayment of which the property was sold. It has been held by this court that a tax sale made under such circumstances is void, (In re Willis, 30 Hun, 13,) and by the court of appeals that, where the facts constituting the illegality of the sale do not appear of record, but must be proven by extrinsic evidence, a suit will lie to remove as a cloud upon title a lease or deed based upon such a void sale, (Stewart v. Crysler, 100 N. Y. 378, 3 N. E. Rep. 471.) The burden of proving the facts constituting illegality in this case was upon the plaintiff, for the statute makes the lease prima facie evidence of the regularity of all proceedings resulting in its execution and delivery. Laws 1871, c. 381, § 941, “Consolidation Act.” Sufficient was shown on the trial to authorize the finding that the sale was void, but it is claimed that for other reasons the learned judge erred in holding that the plaintiff was entitled to a decree. It is alleged in the complaint that the plaintiff is the owner and in possession of the premises described therein. The answer puts that allegation in issue. It was therefore necessary for the plaintiff to establish title in himself by competent evidence. That he did by grants or conveyances sufficient to vest a.paper title in him, and, although there was some dispute as to possession, he showed that he had it when this suit was begun. On the trial, the defendant, as evidence against the plaintiff’s asserted title, introduced, and, as would appear, without objection, a judgment record entered in the superior court of the city of New York in an action of ejectment brought by one Moores, the present plaintiff’s immediate grantor, against this defendant and his tenant in possession, for the recovery of the same premises. That action was tried October 4, 1886, and a verdict was directed for the defendant, subject to the opinion of the court at general .term. Judgment on the verdict, and directing the dismissal of the complaint, was ordered by the general term, and was
We agree with the special term that the superior court judgment is not conclusive in this action on the question of title, because it is not clear that that court intended to make a final and binding adjudication on that subject; and it is at least very doubtful, under the statute, if it had the power to do so, under the facts certified by it to the court of appeals. The conclusiveness of a judgment in ejectment on the question of title is a matter of express statutory provision in the state of Eew York. Before the Bevised Statutes, as is well known, a judgment in ejectment was not a bar or an estoppel to new actions on new demises, but as many subsequent actions might be brought as there were new leases made; and the only way to prevent fur
The judgment must be affirmed, with costs. All concur.