30 N.Y.S. 503 | N.Y. Sup. Ct. | 1894
On the 28th of March, 1893, a writ of certiorari was sued out of the supreme court, on the petition of Ferdinand W. Chase, directed to Frank Campbell, comptroller, and Edward Wemple, late comptroller, of the state of New York. To this writ sep
It is insisted on the part of the relator, and there is some proof in support of that contention, that pending that action, and before the determination of the motion for the redemption of this land was made, there was an understanding or agreement with the comptroller or his deputy that, as the ejectment suit would determine effectually the right of Hall to redeem, no action would be taken on this application to redeem until the determination of that action; and the petitioner alleges in his petition that, relying upon such understanding, he submitted no affidavits to the comptroller in opposition to the motion to redeem. The case discloses that that action was tried December, 1890, and resulted in the determination by the trial court against the plaintiff, and in favor of the relator herein, and judgment was entered accordingly on the 18th day of September, 1891, and that no determination of the motion to redeem these lands was made by Comptroller Wemple during his term of office, but that his successor, Comptroller Campbell, on the 28th day of November, 1892, granted such application to redeem, on the ground that lot No. 181 was actually occupied on September 23, 1873, October 18, 1879, and November 23, 1883. After procuring the allowance of such redemption, Charlotte G-. Hall moved for a new trial of the action of ejectment, under section 1525 of the Code of Civil Procedure, which motion was granted February 23, 1893. “The return of Comptroller Wemple discloses that, after the judgment in favor of the relator in the ejectment case, one of relator’s attorneys informed the deputy comptroller of the judgment in favor of the relator in that action, and that the deputy informed such attorney that such judgment was practically conclusive against the rights of the applicant to redeem. The return of Comptroller Campbell shows that he entered upon the duties of his office January 1,1892; that he found pending in his office
Charlotte Gr. Hall, who made the application in this case to. redeem, through her father, Mourol Hall, as her attorney, claims to be owner of this lot through a deed from the original patentee thereof. The case does not disclose that she had any notice of the talks or understanding between Comptroller Wemple or his deputy as to the effect of the ejectment action upon these proceedings, nor was Comptroller Campbell informed of the same. The right of Miss Hall to redeem upon these tax sales, through an application to the comptroller, is purely a statutory right, and the powers and duties .of the comptroller, upon an application to redeem, are all regulated by statute; and, while it is true that the party claiming rights under such a statutory proceeding must show that the requirements of the statute have been strictly complied with, it is equally true that when, by a strict compliance with the requirements of the statute, rights have been established and fixed, the courts, when applied to for that purpose, must protect the party in the enjoyment of such rights. Nor do wre think that in a strict statutory proceeding, of this character, the court can look beyond the plain requirements of the statute for the purpose of subserving some supposed equities that may seem to exist in favor of one or the other of the parties, not embraced w'ithin the letter or spirit of the statute. The comptroller having jurisdiction of the parties and subject-matter of these proceedings to redeem expressly conferred on him by statute, we are not permitted to look beyond the proceedings taken by and before him, in determining the validity of his acts. Section 74 of chapter 427 of the Laws of 1855, as amended by section 1 of chapter 556 of the Laws of 1890, provides as follows: “In all cases of tax sales heretofore made by the comptroller, where the land sold was in the actual occupancy of any person at the expiration of two years * * shall become absolute,” etc. This amended section is a qualification of the provision of the act of 1855, under which a redemption of tax sale was allowed, and a redemption can now be made only in the manner indicated by section 74 of that act, as amended by the Laws of 1890. The
But it is urged by the relator that the evidence of occupancy at the time claimed in the motion to redeem was too slight, and that the comptroller erred in allowing a redemption on the same. The proof was made in the application, and was supported by the affidavits of • four apparently disinterested affiants. Evidence in that form was admissible, and it was the duty of the comptroller to pass upon its sufficiency. It was a question of fact, for him to find upon - the proofs, whether or not this lot was occupied, and, upon evidence satisfactory to him, he found that fact in favor of the applicant; and this court, in reviewing his action and determination, ought not, unless his determination is either entirely unsupported by evidence, or against the clear weight of evidence, to reverse his decision upon the facts. People v. Keator, 17 Abb. N. C. 369; People v. Zoll, 97 N. Y. 203. The relator had notice of the original application to redeem, and an opportunity to controvert before the comptroller the truth of the fact of occupancy of these lands, or of any other fact material to the question of redemp
