104 N.Y. 96 | NY | 1887
By petition verified October 6, 1885, the relator applied at Special Term for a peremptory mandamus, requiring the comptroller to pay him $721.57, the sum, with interest, of moneys paid by a purchaser of fifty or more lots of land at an invalid tax sale made in 1859. The application was denied at Special Term, but its order was reversed and the writ granted by the General Term.
The objection of the relator that the order is not appealable to this court, is not well founded. The discretion of the court to grant or refuse the writ is not absolute, but governed by legal rules, and its exercise is subject to review. (People exrel. Gas-Light Co. v. Common Council of Syracuse,
Osborn was grantee of Viele under a deed bearing date September 15, 1863, acknowledged February 28, and recorded in the proper clerk's office July 6, 1864. The learned counsel of the relator argues "that the comptroller had notice of this deed, and so is estopped from setting up any subsequent payments." But I find no evidence of that. The mere record of the deed was not notice. Nor is there any foundation for the assertion that the comptroller recognized its existence in any way. It is said upon the relator's points that "the comptroller made a payment to Osborn upon the deed for one lot which had been redeemed." I find nothing of the kind in the case, and the folio, to which alone we are referred, contains merely a description of the lot, and in substance that its sale was canceled and $15.68, the amount due, refunded by the comptroller to Ogden H. Osborn, March 21, 1864. Under what circumstances, or why this was done, does not appear; certainly there is no reference to a deed or other title acquired by Osborn. It, doubtless, indicates that Osborn was in some way shown to be entitled to the money, but it has no tendency to show that he was thought to be, or that he claimed to be entitled to the price paid for any other lot, or to be the assignee of the tax title or the sum bid, or the grantee even of the purchaser, or of the assignee of the purchaser. If any presumption is to be indulged in, it is that he made no such claim, for afterwards and in the same year, the comptroller refunded to Viele the price of other lots, and in successive years the residue, as above stated, to Viele or Peck. There is nothing to show that these payments were not made and received in good faith and under the belief on both sides that *102 Viele and Peck were entitled to them. Their conduct indicates that. On the contrary, Osborn, if he had any rights, slept upon them so long that he must be deemed to have acquiesced in the claim of Viele and of Peck, or at least to have consented by his silence and inaction to the dealings of the comptroller with them as the lawful assignees of the purchaser. And although the statute of limitations does not prevent the issuing of the writ of mandamus, the damage and inconvenience resulting from the lapse of time are to be considered and the writ should not be granted after the period fixed as a bar for actions has expired (People ex rel. Gas Light Co. v. Common Council, supra), and if, as is claimed in behalf of the relator, he has no other legal remedy, his condition in this respect is not improved by that circumstance. When another remedy exists, the writ will not issue. It may also, in the discretion of the court, be denied when the delay in moving it is unreasonable, although it falls short of the time given for commencing actions, but after that time, when the delay is unexplained and unaccounted for, it ought not to be granted. In this case the period of the longest limitation for bringing an action, was permitted to pass. Upwards of twenty years from the discovery of the invalidity of the sale to the relator's purchase. If any right at any time existed in the relator's assignor, his delay in enforcing it was not only unreasonable, but to the prejudice of others.
Without adverting to other grounds on which the appellant, not without reason, relies, we think the relator's claim too stale to justify the interference of a court in its favor. The State and its officers are entitled to no less protection than a private litigant.
The order of the General Term should, therefore, be reversed and the order of the Special Term affirmed, with costs.
All concur.
Ordered accordingly. *103