Lippmann v. Meade — 154 A.D. 464

Majority

p. 464

David Lippmann, Appellant, v. Roma H. Meade and Others, Defendants, Impleaded with The People of the State of New York, Bespondent.

First Department,

January 3, 1913.

Headnote

" State — consent of the State to be sued —provisions as to requisites of complaint—failure of plaintiff to comply therewith — suit to foreclose tax lien—possibility of escheat.

Where the State has consented to be sued and the statute provides that the complaint must be dismissed- unless certain matters are alleged therein, the plaintiff must comply with the provisions or the pleading will be dismissed.

The complaint in a suit to foreclose a transfer, tax lien in the city of New York should be dismissed as to the People of the State made a party • defendant where it merely alleges that the State is made a party by reason of the fact that the lands may have escheated, for section 1035 of the charter of the city of New York requires a dismissal of the complaint unless it sets forth “ detailed facts showing the particular nature of the interest ” and “ detailed facts showing the particular nature of the interest in or the lien on said real property which plaintiff has reason to believe that the People * * * has or may have, in said real property and the reason for making the People * * * a party defendant.”

The defects in such complaint cannot be cured by subsequent affidavits filed by the plaintiff in opposing the People’s motion to dismiss.

Appeal by the plaintiff; David Lippmann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of October, 1912, granting the motion of the defendant, The People of the State of New York, for an order dismissing the complaint as against the said defendant in an action for the foreclosure of a tax lien.

p. 465

Harold Swain, for the appellant.

Robert P. Beyer of counsel [Thomas Carmody, Attorney- General], for the respondent.

This is an action to foreclose a tax lien which had been transferred by a transfer of the tax lien. The complaint alleges the purchase of the tax lien, the situation of the property, the failure to pay the semi-annual interest, the election by the plaintiff' to deem the aggregate amount of said tax lien to be immediately payable, and then follow these two allegations: “ Seventh. The plaintiff is informed and believes or has reason to believe that the defendants and each of them have, claim to have or may have an interest in or claim upon the real property affected by the said tax lien, which interest or claim, if any, is subject and subordinate to the lien of the plaintiff herein. Eighth. The People of the State of New York is made á party defendant to this action by reason of the fact that the premises involved in this action may have escheated to said The People of the State of New York upon the death of one John Cotter the grantee in a certain deed made by Ely Moore and wife dated November 16, 1827, and recorded in the office of the register of the county of New York, on November 14, 1828, in liber 241 of Conveyances, page 542.”

Section 1035 of the Greater New York charter (Laws of 190.1, chap. 466, added by- Laws of 1908, chap. 490), as amended by chapter 65 of the Laws of 1911, provides as follows: “Where the People of the State of New York * * * is made a party defendant the complaint shall set forth, in addition to the other matters required to be set forth by law, detailed facts showing the particular nature of the interest in or the lien on the said real property of the People of the State of New York * * * and detailed facts showing the particular nature of the interest in or the lien on said real property which plaintiff has reason to believe that the People of the State -of New York * * * has or may have in the said real property, and the reason for making the People of the State of New York * * * a party

p. 466

defendant. Upon failure to state such facts, the complaint shall be dismissed as to the People of the State * *

Of course it is a fundamental proposition that the State cannot be sued except by its own permission. When it has provided how it may be sued and what allegations must appear in the complaint, and distinctly provides for a dismissal of a complaint which does not comply with the law permitting the suit to be brought, there is nothing to do but obey the law and dismiss the complaint. It is obvious that the law has not been complied with and that the mere statement that the premises may have escheated to the People upon the death of one John Cotter is not the “ detailed facts showing the particular nature ' of the interest ” and the “ detailed facts showing the particular, nature of the interest in or the lien on said real property which plaintiff has reason to believe that the People * * *■ has or may have in the said real property, and the reason for making the People * * * a party defendant.” ' In other words, if this allegation satisfies the law the statute was idle and we are back just where we were at the time the law was enacted. It was passed for the very purpose of relieving the Attorney-General’s office from a horde of cases upon the mere allegation that the State may have a lien, which is all that this complaint does.

Appellant claims that the facts set up in the answering affidavits satisfy the requirements of the statute. It is a sufficient answer that this order. was 'made on the. complaint which cannot he pieced out by subsequent affidavits.

The complaint, as framed,. fails to comply with the law. The order of dismissal as against the People should be affirmed, with costs and disbursements to the respondent.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order affirmed, with costs.