89 A.D. 421 | N.Y. App. Div. | 1903
I am for affirmance upon the opinion of Gaynor, J., who presided at the Special Term. And, save upon a single point, no further comment seems necessary. The learned justice held that sec- . tion 65 of the act of 1855, as amended by chapter 448 of the Laws of 1885, and made applicable. to Kings county by chapter 217 of the Laws of 1891, did not apply to the case at bar, but that the conveyances referred to in the statute are those of lands assessed as non-resident. The" Attorney-General contends that this view is erroneous. But the Court of Appeals has sustained the justice. (Bennett v. Peck, 112 N. Y. 649.)
The judgment should be affirmed, with costs.
Goodrich, P. J., Woodward, Hirschberg and Hookeb, Jj., concurred.
Judgment affirmed, with costs.
The following is the opinion of Gayhor, J., delivered at Special Term: - - .
The land was returned to the State Comptroller and sold as though the unpaid taxes had been assessed and made a lien upon it, but they had not been. The statute required that the names of the
Section 1 of chapter 411 of the Laws of 1885 purports to legalize and confirm “ taxes * * * on lands of non-residents ” in the towns of Kings county, “ whether said lands were entered in the several assessment-rolls separately as the lands of non-residents or otherwise.” The taxes here in question were not in form assessed upon the land at all. If they had been, even though in the wrong part of the assessment roll, this curative act would in terms cover them, but as it is it does not. It only purports to validate taxes in form laid on non-resident lands, whether in the wrong part of the roll or not. • It does not purport to validate taxes not so in form laid, i. e., taxes not in form laid on the land, but only laid against individuals. If the intention was to change these latter into liens On land, it should have been so stated. The forms and requirements for assessing non-resident lands are materially different from those for assessing the taxable inhabitants (Sanders v. Downs, 141 N. Y. 422), and these latter forms were the only ones complied with.
But this does not apply to the present case at all. The conveyances therein referred to are by the express words of the statute-only conveyances of lands assessed as non-resident. The Comptroller could not by selling other lands bring them under the said, statute. No lien is obtained on any other lands, and the Comptroller is empowered to sell no other. Whether we look at the scheme, or the express words, of the said act of 1855, we find that it relates-wholly to lands set down in the non-resident part of the assessment, roll; and that is the only place in which lands could be assessed at all. If the Comptroller were to sell my land, although I was a-resident, and my name set down and assessed in the resident list, and my land was therefore not assessed at all (as indeed it could not be), would this statute apply ?. No more does it apply to.the present-case, where the owner, though a non-resident, was set down in the resident list, and his land was not set down in the non-resident list and assessed at all. If the land has been assessed, or it may be, if there has been an attempt to assess it in due form, then the conveyance becomes conclusive evidence of a good title in the manner pre
That this action is maintainable against the State officials though not against the State has been heretofore decided (33 Mise. Rep. 389).
Judgment for the plaintiff.