2 N.Y.S. 253 | N.Y. Sup. Ct. | 1888
This is an action to recover for or carrying away trees on land belonging to the state. The jury rendered a verdict for the plaintiff, and the defendant appeals. On examining the case we find nothing showing that it has been settled, and of course no statement that the case contains all the evidence given on the trial. Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446. A motion was made for a new trial on the minutes, without specifying any ground, and that motion was denied. Ho appeal is taken from the order denying such motion. Code, § 1316.
The defendant offered in evidence copies of papers which he said he had received by mail from the comptroller’s office, and which he could not testify were correct copies of papers there on file. They were excluded. This was
The plaintiff had given in evidence a comptroller’s deed to the plaintiff, dated June 9, 1881, and recorded June 3, 1882, reciting a default in the payment of taxes prior to 1871, and a sale in October, 1877. The deed conveyed lot 219 and other lots. The defendant offered to show by an assessor—as to t'he years 1864,1867, and 1868—that there was no notice of review given, or review had. The court excluded this, holding that, as against the comptroller’s deed, defendant could not show irregularities in the assessment. It seems to have been assumed, but we do not see the proof, that the sale of 1877 was for taxes of those years. The deed only recites a levy of taxes prior to 1871. The plaintiff insists on the remedial effect of chapter 448, Laws 1885, amending section 65, Laws 1855. As to this sale that law declared that the deed should, six months after the act took effect, be conclusive evidence that the sale and all proceedings prior thereto were regular. But it provided that the conveyances, etc., might be canceled “as now provided by law,” (referring to section 85,) on direct application to the comptroller, or by an action, by reason of the payment of the taxes or the levying by a town which had no legal right to assess. Whether this last clause is a qualification of the right of the comptroller to cancel, or only a qualification of the right to bring an action, we need not inquire.
In Ensign v. Barse, 107 N. Y. 346, 14 N. E. Rep. 400, and 15 N. E. Rep. 401, the court of appeals points out the distinction between a defect which is jurisdictional as the law stood, and a defect so jurisdictional that the legislature could not cureit. Itis claimed that the absence of a notice of review was such k defect that it could not be amended. Const. U. S. amend. 14; Stuart v. Palmer, 74 N. Y. 183. It will be seen that the statute acted as a statute of limitations. If the owner had not paid his tax, and the town had the right to assess the land, then he must relieve himself within six months from the taking effect of the act, provided the comptroller’s deed had been recorded for two years. But if he had paid his tax, or if the town had no right to assess, then the statute imposed no limitation. The statute under which taxes are imposed provides for an annual assessment to be finished on a specified day. It is not like an assessment for an improvement, which Is made at no specified time. But it is known that, on or before the 1st day of August in every year,
It is further to be considered that the present defendant does not claim to be owner, orto have derived any rights from the original owner. It does not appear who was the original owner, or that he has ever asserted the invalidity of these proceedings. The principle that property shall not be taken without due process of law, and that such due process include notice to the -owner, is evidently one for his benefit; not for the benefit of third parties.
The further point was taken by defendant that the land was occupied at the expiration of two years from October, 1877. The court held that if any part was occupied the defendant was entitled to a verdict. The question of occupation was in dispute, and was submitted to the jury very fairly, and under full explanation from the court. We have examined the evidence, and we do not think that the court would have been justified in holding as matter of law that a part of lot 219 was occupied. The jury found that it was not.
The judgment should be affirmed, with costs.
Landon and Ingalls, JJ., concurring.