41 N.Y.S. 465 | N.Y. App. Div. | 1896
This action was brought for the foreclosure of a mortgage held jointly by the plaintiff and the defendant Humphrey upon real estate in the village of Goshen, in Orange county, and the usual judgment of foreclosure and sale was entered, which directed the referee to pay the taxes and assessments which were liens upon the property at the time of the sale. Subsequent to the judgment and before the sale of the property, an • assessment for certain improvements upon the sidewalk in front of .the mortgaged premises was
The order appealed from was granted at Special Term on July 25, 1896, and was made upon the application of the trustees of the village of Goshen and directed the referee to pay said assessment from the purchase money in his hands to the trustees of said village, and perpetually stayed compliance with the order of Mr. Justice Smith. Section 1676 of the Code of Civil Procedure is cited to sustain this order, the argument being that this section was intended for the protection of municipalities to which taxes or assessments which should be liens upon the property adjudged to be sold, should be due -and payable. The section is as follows :
“ Where a judgment, rendered in an action for partition, for dower, or to foreclose a mortgage upon real property, directs a sale of the real property, the officer making the sale must, out of the proceeds, unless the judgment otherwise directs, pay all taxes, assessments and water rates, which are liens upon the property sold and redeem the property sold from a,ny sides for unpaid taxes, .assessments or water rates which have not apparently become absolute. The sums necessary to make those payments and redemptions are deemed expenses of the sale within the meaning of that expression as used in any provision of article second, third or fourth of this title.”
We are of the opinion that this section was intended solely for the benefit of the purchaser. It is not the design of the Code that the State or municipal corporations, to which taxes or assessments should Jbe due, should be made parties to actions for the sale of
The suggestion of the learned counsel for -the village, that there was no other way by which the village could collect the assessment, except by a sale or lease of the premises, in pursuance of the provisions of the -statute under which it is incorporated, would be more properly addressed to the Legislature than to the court. The validity of the assessment was disputed, and the parties interested in the land were entitled to have its validity tried and determined in a, proceeding where the question would be directly presented. It could not be determined upon a motion made in this action.
We think that it was entirely competent for the parties to make the stipulation upon which Justice Smith’s order was based, and that the order appealéd from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs against the village of Goshen.
All concurred.
Order- reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs against the village of Goshen. ‘