Tilden v. Duden

1 N.Y.S. 292 | N.Y. Sup. Ct. | 1888

Dissenting Opinion

Dykman, J.,

(dissenting.) This is an action of ejectment, and the defendant justifies, and claims title to the premises, under a tax lease for the same. But one claim of irregularity is set up against the proceedings which eventuated in the lease now held by the defendant, and that is this: by the law under which this property was sold, for the non-payment of taxes, within 30 days after every such sale, the supervisor by whom the sale was made is required to file a duplicate of the certificate of sale in the office of the county treasurer, and it is made the duty of the county treasurer to make an alphabetical index of such certificates—First, by the names of the several towns; and, second, by the names of the persons or corporations to whom the property sold was assessed; and no such sale shall be valid unless such certificate shall be so filed and indexed. In this case the duplicate certificate of sale was . not filed within 30 days in the office of the county treasurer, but it was so filed 36 days after the sale. We think the statute respecting the time within which such duplicate certificate is required to be filed is directory, and that the failure to file the same within 30 days prescribed did not invalidate the sale. The judgment should be affirmed, with costs.

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Lead Opinion

Barnard, P. J.

The proof shows that the certificate of sale was not filed within 30 days after the sale. By the express declaration of the act under which the sale was made, the sale is “invalid.” The case is not one which comes within the authorities which hold the filing within a certain time to be directory only. If not filed, .the sale is bad. The tax title must depend on a valid sale. Judgment reversed, and new trial granted; costs to abide event.