Welstead v. Jennings

93 N.Y.S. 339 | N.Y. App. Div. | 1905

Woodward, J ;

The plaintiff brings this action to. remove a cloud from. his title, and upon the merits of the case there does not appear to be room for any serious controversy. The assessors did not comply with the provisions of law necessary to gain jurisdiction'of the property for the purposes of divesting the owner of his title by- a tax sale,-but it is urged on this appeal that the action was barred by reason of the operation of certain statutes of limitation, designed for the purpose - of malting tax sales effectual. The plaintiff has a judgment in his favor, directing the cancellation of the defendant’s tax deed, and the latter appeals to this court.

In the year 1873 the Legislature enacted a special statute governing the collection of taxes in Suffolk county, known as chapter 620 of the Laws of that year, and section 9 of this act provided as follows : " Every such conveyance (to a purchaser at a tax sale) shall be executed by the treasurer of Suffolk county, under his hand and seal, and the execution thereof shall be acknowledged before a proper officer the same as other conveyances of real estate are executed and' acknowledged under the laws of this State; and such conveyance ' shall be conclusive evidence that the sale was regular, and also ■ presumptive evidence that all the. previous proceedings were regular, according to the provisions of this act.” • Thera can be no doubt, therefore^ that if this act is still in force, one whose property has been taken from him by a.tax sale based upon an assessment invalid for want of regularity in the making up of the assessment roll, may properly apply to the courts to protect his rights.- It is claimed, however, by the appellant that while this act has not been specifically repealed, it has been superseded, or its terms ¡added to in "such a manner that the plaintiff is without remedy. .

The repeal of statutes by-implication is not favored by, the courts, and local or special acts governing any particular subject are not deemed to have been repealed unless such an intention is clearly manifest. (People ex rel. Fleming v. Dalton, 158 N. Y. 175.) And in dealing with the case now before us, it is important to remember that the defendant’s title is gained through a tax sale conducted in accord with the act of 1873, as amended by chapter 80 of the Laws of 1875 without affecting the question involved here. With chapter 620 of the Laws of 1873, as amended in 1875, in full force the Legislature in 1885 enacted chapter 448 of the Laws of that, year, amending section 65 of chapter 427 of the Laws of 1855 ■ in reference' to the sale of non-resident lands for the non-payment of taxes, limiting its operation to certain enumerated counties in' the eastern part of the State, which are in the territory now known as the forest preserve. By chapter 217 of the Laws of 1891 the provisions of the act last above cited were extended to “ all the counties in this State,” except Cattaraugus and Chautauqua, and the act, as thus extended, provided that the conveyance or the certificate of the Comptroller or county treasurer should be “ conclusive evidence” of the regularity of all procedings “from and after the expiration of two years from the date of recording such other conveyances or of four years from and after the date of issuing such other certificates,” and it is claimed that this act operated to provide a two years’ statute of limitations in the case at bar. Assuming, without deciding, that the effect of this general act extending generally to all of the counties of the State, with the exceptions noted, operated to read into the special act for Suffolk county a short statute of limitations, it did not repeal the statute as a whole; at most it operated to add to its provisions by amending the provision that the conveyance should be presumptive evidence of the regularity of proceedings, and made this read conclusive evidence after the expiration of two years. But in the year 1893 the Legislature, in enacting chapter 711 of the Laws of that year, specifically repealed section 65 of chapter 427 óf the Laws of 1855, and provided for the purposes which had been ¡previously covered by the original act and its amendments, and there can be no doubt that with the repeal of the original'section the subsequent amendments to that section fell. (26 Am. & Eng. Ency. of Law [2d ed.], 744.) Subsequently the Legislature adopted the Tax Law (Laws of 1896, chap. 908), and by this act it repealed all of chapter 427 of the Laws of 1855, as well as all of chapter 711 of the Laws of 1893, so that upon the enactment of the Tax Law the local and special statute referring to Suffolk county remained as it was originally adopted, with the amendment of 1875 ; and as chapter 620 of the Laws of 1873, as amended by chapter 80 of the Laws of 1875, was not repealed by the schedule attached to such general act, we are of opinion that the Suffolk county act is still in fqrce, as it does not seem to have been since specifically repealed, and that tax sales and the certificates resulting are governed by the provisions of that act. This' is in harmony with the case of Bennett v. Kovarick (23 Misc. Rep. 73; affd. on opinion below, 44 App. Div. 629), and we are persuaded is in accord with the current of authority in this State.

Upon the merits we are persuaded that the judgment is- right and that it should be affirmed. ' '

• The. judgment appealed from should be affirmed, with costs.

Bartlett, Rich and Miller, JJ., concurred,; Jenks, J., concurred-in result.

Judgment affirmed, with costs.