126 N.Y.S. 986 | N.Y. App. Div. | 1910
The petition of the relator, shows that by two- deeds of conveyance, one dated September 18 and the - other September 20, 1888, each duly recorded in the office of xthe register of the county of New York in liber 1146 at pages 474 and 4YY respectively on the third day of October in the same year, it duly acquired title to a plot, of- land then in the town of Westchester, county of Westchester, but now in the borough of the Bronx, known as lot No. 239 on. a certain map entitled “ Map of Unionport, Westchester County, New York,” made by Bennett & Savery, civil engineers, bearing date the 1st day of November, 1852,-and filed in the office of -the register of the county of Westchester on the 23d day of August, 1854, as map No. 29, having a frontage aiid boundary of 205 feet on the southerly side of Tenth street, bounded easterly by lot No. 238, 216 feet, southerly on Ninth street 205 feet and westerly on Avenue E, 216 feet, the premises being uninclosed and vacant. On the annual assessment roll for the year 1888 there was an attempt made to assess these premises and to impose a tax of eight dollars and eighty-eight cents thereon, and on the 1st day of October, 1889, they were sold " by one Michael Eaucli, the supervisor of the town, to one Benjamin Sprague for the term of 1,000 years on account of the non-payment of the tax and interest, penalties and other charges aggregating ten dollars and ninety-five cents. The petitioner avers that no lease was issued to the purchaser on the tax sale and the answering affidavit states that leases were issued to such purchasers as surrendered the certificates of sales is no
Were it not for precedents I would not hesitate to express the opinion that after the public officials have collected a tax or assessment by a sale of the premises, and have issued to the. purchaser a certificate which may ripen into a lease, the owner claiming that the sale was void should be left to the remedy which he has by a suit in equity for a cancellation thereof as a cloud or threatened cloud on title (King v. Townshend, 141 N. Y. 358; Stewart v. Crysler, 100 id. 378), or for redemption to which the purchaser at the tax sale would be a party and in which his rights could -be adjudicated (People ex rel. Andrews v. McGuire, 126 N. Y. 419), for since the purchaser is not a party to a mandamus.proceeding, his rights cannot be affected thereby (Matter of Clementi v. Jackson, 92 N. Y. 592; People ex rel. Andrews v. McGuire, supra), and, therefore, nothing of practical substance is accomplished by a cancellation of a tax sale in a mandamus proceeding to which the appropriate public officials alone are parties; but although the adjudication in such a mandamus proceeding can have no- effect on the rights of the purchaser at the tax sale, it has been authoritatively decided that an owner of real estate is entitled to bring a mandamus proceeding to compel acceptance of payment of a void .tax and to cancel a tax sale based thereon, and if the sale be void it is the duty of the court to direct its cancellation. (People ex rel. Townshend v. Cady, 51 N. Y. Super. Ct. 316; affd., 99 N. Y. 620; Matter of Clementi v. Jackson, 92 id. 591; People ex rel. Cooper v. Registrar of Arrears, 114 id. 19. See, also, People ex rel. Andrews v. McGuire, supra, and Matter of Jones, 18 Hun, 327.) The authorities sustaining the landowner’s right to this remedy were not overruled by People ex rel. Andrews v. McGuire (supra), where it was held, on the particular facts then before the court, that the tax sale was not void,'and, therefore, -the owner, if entitled to any relief, should seek it by an action in equity to be relieved of the sale or for redemption. The theory on which
• In considering the points presented it.is necessary to bear in mind the rules of law by which; they are to be determined. Although it is entirely competent for the Legislature to levy, or authorize the levy, of taxes and assessments upon land, -.yet due regard to the' rights and interests of property owners requires that statutes authorizing the imposition of taxes and assessments must be construed strictly in favor of the landowner, and it is not competent for the courts to declare immaterial any- act, step or proceeding required by the Legislature (Stebbins v. Kay, 123 N. Y. 31; Clason v. Baldwin, 152 id. 204), and, therefore, in order to render a tax or assessment, or a s'ale of the premises therefor, valid, every requisite of the-statute, strictly construed, having a semblance of benefit to the owner, must be complied with, if not strictly, at least substantially. (Clason v. Baldwin, supra; Sanders v. Downs, 141 N. Y. 422; Lockwood v. Gehlert, 127 id. 241; Schreiber v. L. I. R. R. Co., 127 App. Div. 286; King v. Townshend, 141 N. Y. 358; Cromwell v. MacLean, 123 id, 474, 487; People v. Ladew, 189 id. 355; Saranac Land & T. Co. v. Roberts, 195 id. 303; Zink v. McManus, 49 Hun, 583; affd., 121 N. Y. 259.) As illustrating the extreme limit to. which this doctrine is carried, attention may be drawn to the cases of Lockwood v. Gehlert and Clason v. Baldwin (supra), where it was held that tax deeds were Void on account of the mere' omission of a. seal from a certificate made by the Comptroller, when every other statutory requirement had been complied with, and the. facts essential to warrant, the making of a proper certificate were duly established. In-Sanders v. Downs (supra), notwithstanding a statute which made the county treasurer’s deed on a sale of land foi’ unpaid taxes conclusive evidence that the sale was regular arid presumptive evidence of the regularity of all prior proceedings, it was
“ If it was possible by any fine distinction to take this case out of the general rule applicable to assessments of this character, it would not be desirable to weaken or qualify by any such exception the safeguards which the Legislature and thecourts have erected against the invasion of property rights otherwise than in strict compliance with law.”
In the case at bar it is not claimed that there is any statutory presumption with respect to the validity of the tax, or of the tax sale, or -any of the steps or proceedings' upon which the sale was founded. It ■ appears, however, that a tax lease on such a sale was made “ presumptive evidence that such tax was legally imposed, and
The first objection to the validity .of the tax presented by the petitioner is that the description of the land is insufficient. The assessment is on page 96 of the assessment roll: • The following is presented by respondents as a transcript of the assessment-roll with respect to the premises in question :
Assessment Roll of Non-Resident Peopeety, Town of Westchesteb, Westchesteb County, New Yoek, 18.
The petition shows, however, that the word “Unionport” is only at the head of the column on the page containing this assessment, opposite the first assessment on the page, and is not repeated by ditto marks or otherwise opposite this assessment. It appears ■ by an affidavit, read in opposition to the motion, that on a preceding page of the assessment roll, at the beginning of assessments against numbered lots of. Unionport, there is entered in ' the' column, “Description of Property and Supposed Owner,”, the words, “Map of Unionport,” but the assessment roll contains nothing further to identify the lot or the map. There is no reference to the date of the map, or by whom made, or where it is filed. The return of this tax unpaid contains, no description of the premises
The premises were vacant and unoccupied and owned by a nonresident of the town. The controlling provisions are contained in article 2 of title 2 of chapter 13 of part 1 of the Revised Statutes as they existed at the time in question. (See 1 R. S. 391; 2 R. S. [Banks’ 7th ed.] 991.) The first part of the article is devoted to - assessments of land owned by residents of the town or occupied. Sections 11, 12 and 13 relate to the assessment of unoccupied lands owned by non-residents, and they are as follows :
Ҥ 11. The lands of non-residents shall be designated in the same assessment roll, but in a part thereof separate from the other assessments, and in the manner prescribed in the two following sections.
“ § 12. If the land to be assessed be a tract which is subdivided into lots, or be part of a tract which is so subdivided, the assessors shall proceed as follows :
“ 1. They shall designate it by its name, if known by one, or if it be not distinguished by a name, or the name he unknown, they shall state by what other lands it is bounded ;
“ 2. If they can obtain correct information of the subdivisions they shall put down in their assessment rolls, and in a first column, all the unoccupied lots in their town or ward, owned by non-residents, by their numbers alone and without the names of their owners, beginning at the lowest number and proceeding in numerical order to the highest;
“ 3. In a second column, and opposite to the. number of each lot, they shall set down the quantity of land therein, liable • to taxation; .
“ 4. In a third column, and opposite to the quantity, they shall set down the valuation of such quantity ;
“ 13. If the land so to be assessed be a tract which is not subdivided, or if its subdivisions can not be ascertained by the assessors, they shall proceed as follows:
“ 1. They shall enter in their roll the name or boundaries thereof, as above directed, and'certify in the roll that such tract is not subdivided, or that they can not obtain correct information of the subdivisions, as the case may be ; * * * ”
It will be observed that, these statutory provisions require that if the land to be assessed be a tract, or part of a tract, subdivided into lots, not only must the numbers of ¿lie lots be given in the first column, but the .trad itself must be designated by its name if known, and otherwise it must be stated by what lands it is bounded. That requirement was wholly omitted here. The statute' required that the quantity of land be given in the second column, while here the second column was headed “ Description,” and was vacant. The designation of the tract in the case of a non-resident is a substitute for the name of the owner or person in possession required in the case of the assessment of lands as resident lands. (Hubbell v. Weldon, Hill & D. 139.) It is manifest that the assessment cannot be sustained on the theory that the land Was part of a tract not subdivided within the meaning, of the statute, for viewed in' that light, there would be a total failure to comply with the requirements of section 13.
It is contended by counsel for, the respondents that the word “Hnionport” in the column headed “ Description of Property and Supposed Owner ” relates to all of the assessments on the page and, by a reference to. a preceding page of the assessment roll, shows that it had reference to a" map of Hnionport, which was a village in the county of Westchester. . This was not, I think, a compliance with tile statutory requirements. I am of opinion that it will not do to sustain a description of land in a tax roll by consulting .other parts of the roll, to which the particular assessment contains no reference,*for that would'require an examination of.the entire roll, and-not merely the part which the statute contemplated should be complete 'in itself as to the property assessed. The only , authority
entitled, to possession. (Hubbell v. Weldon, Hill & D. 139; People ex rel. Clark v. Oliver, 1 T. & C. 572; Oakley v. Healey, 38 Hun, 244; Dike v. Lewis, 4 Den. 237; 2 Barb. 344; Clark v. Holdridge, 12 App. Div. 613; Tallman v. White, 2 N. Y. 66; Clason v. Baldwin, supra; Zink v. McManus, supra; Matter of N. Y. C. & H. R. R. R. Co., 15 Wkly. Dig. 137; affd., 90 N. Y. 342; City of Rochester v. Farrar, 44 Misc. Rep. 394; Smith v. Walker, 21 N. Y. St. Repr. 453; People ex rel. Buffalo Burial Park Assn. v. Stilwell, 190 N. Y. 284; Lawton v. City of New Rochelle, 114 App. Div. 884; Black Tax Titles [2d ed.], 139.)
I am also of opinion that the tax sale was void on other grounds.
It follows, therefore, that the order should be-reversed, with ten dollars-costs and disbursements, and the motion .for a -peremptory writ of mandamus granted as prayed for, with ten. dollars costs. ■
McLaughlin, Clabke and Scott,. LL, concurred ; Ingraham, P. j., concurred in result. ’
Order reversed, with ten dollars costs and disbursements, and motion-granted, with ten dollars costs.