10 Misc. 74 | New York City Court | 1894
It was decided by the learned judge of the United States Circuit Court, in the actions brought by these plaintiffs against the defendant, that the plaintiffs had no remedy in equity, for the reason that they could pay the taxes in question and that such payment would be under duress, and if the taxes were illegal the money so paid could be recovered by action at law. Whatever may be the rule as laid down by the United States Supreme Court I am not called upon to consider, for the reason that the question is not federal, and I am bound to follow the decisions of the courts of last resort of this state. The rule is well settled in this state that, where a tax deed is made presumptive evidence, a suit in equity may be maintained to remove the cloud. Judge Earl said, in the case of Fonda v. Sage, 48 N. Y. 173, 179, “ There are cases of tax deeds which were an apparent cloud upon title in which the courts refused to interfere because it would be necessary for the claimants under the deeds to prove certain preliminaries which would show the deeds to be invalid, but when the statute makes such a deedy> rima facie evidence that a valid assessment has been made, a court of equity will remove it, in a proper case, as a cloud upon title.” By chap
No cloud upon the title of the lands of plaintiffs yet exists, and the authority before cited and kindred ones are not, therefore, in point, except by analogy. But the courts in this state have gone further and held that an action in equity will lie, in a proper case, to prevent a threatened cloud. In 1835, Chancellor Walwobth said (Pettit v. Shepherd, 5 Paige, 493, 501), “ The jurisdiction of this court to set aside deeds and other legal instruments which are a cloud upon the title to real estate, and to order them to be delivered up and canceled, appears to be now fully established, * * * and if a court of chancery would have jurisdiction to set aside the sheriff’s deed which might be given on a sale and to order the same to be delivered up and canceled, as forming an improper cloud upon the complainant’s title to his farm, it seems to follow, as a necessary consequence, that the court may interpose its aid to prevent such a shade from being cast upon the title when the defendant evinces a fixed determination to proceed with the sale.” See, also, Oakley v. Trustees of Williamsburgh, 6 Paige, 262 ; Sanders v. Village of Yonkers, 63 N. Y. 489 ; King v. Townshend, 141 id. 358.
The plaintiffs are entitled to an injunction, pending the suit, provided they make out apri/ma facie case, and provided they are willing to do what is right and equitable under the circumstances. It is not necessary that they should show an absolute right to a final injunction. If the court is of opinion that the case, even on a single question, requires a more careful consideration than can be given on the hearing of a motion, then the preliminary injunction should issue and, on a full and fair hearing at the trial, the questions of law and fact may be determined.
, On the question of tender made by Hr. Litchfield under the law of 1880, I coincide fully with the opinion of Judge
It is claimed by the plaintiffs that the board of assessors, in levying a new tax under the act of 1883, determined one amount and certified to the registrar of arrears, not the amount determined, but a sum in excess. The plaintiffs insist that the assessors, after fixing the amount, delayed their certificate for several months, and then certified a new amount consisting of the sum fixed with interest to the date of the certificate. I am not prepared to hold that such action on the part of the assessors would be legal. If plaintiffs’ facts are correct, then they should have a trial of the question, and the same should not be disposed of summarily on a motion. When the law provides the method of levying taxes or assessments, it must be followed. Stebbins v. Kay, 123 N. Y. 31.
The question of law whether the pendency of another action in the Hnited States Circuit Court between the same parties is a bar to this action is intricate, and should not be decided on a motion, and I do not, therefore, discuss the same.
While I hold that the plaintiffs, on a single question, seem to be entitled to a preliminary injunction, I am clear that the same should be granted only on one condition. The property in question has been advertised for sale for a period of eight
The injunctions will issue in the six cases on the condition above stated, otherwise the motions are denied, with costs.