1 N.Y.2d 465 | NY | 1956
The sole question presented, in this action to foreclose certain transfers of tax liens, is whether the suit is subject to the bar of the six-year statute of limitations (Civ. Prac. Act, § 47-a, § 48, subd. 2).
The liens in question were sold by the City of New York, in November, 1943, to plaintiff or to others from whom plaintiff subsequently acquired them. The transfers were made pursuant to the Administrative Code provisions authorizing the sale by the City of the “ right to receive taxes, assessments * * * and the lien thereof ” (Administrative Code of City of New York, § 415[l]-23.0). A transfer of tax lien operates “to transfer and assign the tax lien ” to the purchaser (§ 415[1]-31.0), who has 11 all the rights and remedies of a holder thereof ’ ’ (§ 415[1]-33.0, subd. [c]).
Plaintiff instituted the present suit in February, 1955, eight years after the cause of action had accrued.
Plaintiff’s motion to strike was granted by the court at Special Term, but the Appellate Division unanimously reversed. The appeal is before us, by leave of the Appellate Division, upon a certified question.
"Whether there should be any limitation of the time in which an action to foreclose tax liens must be instituted is, of course, a question for legislative decision. (Cf. Gautier v. Ditmar, 204 N. Y. 20, 28.) There is no provision of law specifically limiting the time for the institution of such an action. On the contrary, as plaintiff maintains, the City Charter expressly recites that all taxes shall “ become liens on the real estate affected thereby * * * and shall remain such liens until paid ” (§ 172), and the Administrative Code is just as explicit (§ 415[1]-7.0).
Defendants contend, though, that the obligation to pay taxes is a “ liability created by statute ” and, by that token, subject to the six-year limitation imposed by section 48, subdivision 2, of the Civil Practice Act upon actions to enforce such a liability. Furthermore, they argue, even if subdivision 2 of section 48 were to be held inapplicable, the suit would still be barred by section 47-a of the Civil Practice Act, requiring actions ‘
The, court at Special Term concluded that the Charter and Code provisions continuing the liens in effect until paid rendered inapplicable the statutes of limitation prescribed by the Civil Practice Act. The Appellate Division, however, without stating whether section 47-a or section 48, subdivision 2, was controlling, held that the action was barred under either the one or the other. It found no conflict between its decision and the
Although there are a number of decisions in other jurisdictions— reaching divergent results (Holding statute of limitations inapplicable: see, e.g., City of Hartford v. Mechanics Sav. Bank, 79 Conn. 38; Greenwood v. Town of LaSalle, 137 Ill. 225; Wells County v. McHenry, 7 N. D. 246, 264-266; Iowa Land Co. v. Douglas County, 8 S. D. 491, 503-504; Port Townsend v. Eisenbeis, 28 Wash. 533. Holding statute of limitations applicable and action barred: see, e.g., Barden v. City of Duluth, 28 F. 14; State v. Bellin, 79 Minn. 131, 133; Board of County Comrs. v. Story, 26 Mont. 517, 521-522; San Francisco v. Luning, 73 Cal. 610; State of Nevada v. Yellow Jacket Silver Min. Co., 14 Nev. 220, 228-235)—they help us but little, since they rest for the most part upon the particular statutory provisions and enforcement procedures involved. The answer in cases such as the one before us necessarily lies in the explicit language of the City Charter and Administrative Code declaring that the lien of the tax “ shall remain ” and “ shall continue ” until paid.
By these provisions, the law-making body clearly manifested its design that the tax liability should be enforcible against the affected property perpetually or, more accurately, until it is actually discharged by payment. Indeed, under a similar provision in the Act incorporating the City of Tonawanda, we decided that real estate tax liens might be ‘ ‘ enforced, irrespective of the time when actions or proceedings were taken to enforce the same.” (County of Erie v. Lowenstein, 235 N. Y. 458, 461.) As originally enacted, the Tonawanda statute had provided that taxes were to remain a lien “ for ten years from the time of filing the said assessment rolls * * * until paid or otherwise satisfied and discharged” (L. 1903, ch. 22, tit. VIH, § 7). The ten-year limitation was eliminated by an amendment in 1917. Conflicting claims asserted by the City of Tonawanda and Erie County were resolved by the holding that the liens in issue had become perpetual by reason of the amendment and that the action to foreclose was not barred although the liens were more than ten years old when the action was instituted.
The recital, in section 415(1)-39.0 of the Code, that actions to foreclose a tax lien “ shall be regulated by the provisions of the civil practice act ” applicable to realty mortgage foreclosures is, as the Appellate Division itself intimated, nothing more than a provision for ‘ ‘ the regulation of the procedure in such an action, ’ ’ having nothing to do with the problem of limitations. That statement is subject, too, to the proviso, ‘ ‘ Except as otherwise provided in this title ”, and it could hardly have been meant to derogate in any way from the force of the explicit pronouncement that tax liens shall remain effective ‘
It is no answer, to language so plain, that the statute of limitations affects only the remedy and not the right, and that it may, therefore, be applied without conflicting with the provision that the lien continues until paid. Although a few courts have, in fact, adopted this reasoning (see, e.g., Board of Comrs. v. Story, supra, 26 Mont. 517, 521-522; State of Nevada v. Yellow Jacket Silver Min. Co., supra, 14 Nev. 220, 232), such doctrinal niceties have no place in a case such as the present. This right-persists-
Plaintiff stands in the same position as the City with respect to his rights and remedies as a holder of a tax lien (Administrative Code, § 415 [l]-33.0, subd. [c]; see Gautier v. Ditmar, supra, 204 N. Y. 20, 28-29); if his remedy of foreclosure were subject to the statute of limitations, so too would be the City’s as to the liens that it holds. But it is clear to us that the provisions in the New York City Charter and in its Administrative Code, that the lien of a real estate tax continues until paid, are specific pronouncements which were not intended to be overridden by general, state-wide statutes of limitation.
The order of the Appellate Division should be reversed, the question certified answered in the negative, and plaintiff’s motion to strike defendants’ answers granted, with costs in this court and in the Appellate Division.
Conway, Ch. J., Desmond, Dye, Froessel, Van Vooehis and Burke, JJ., concur.
Order of Appellate Division reversed, and that of Special Term reinstated, with costs in this court and in the Appellate Division. Question certified answered in the negative.
. The amount of the liens became due in November, 1946, three years after they had been sold (Administrative Code, § 415[l]-36.0).
. The Administrative Code provision (§ 415[l]-7.0), differing slightly in wording, declares that “All taxes and all assessments * * * and the interest and charges thereon * * * shall continue to be, until paid, a lien