p. 335In the Matter of Richard Saxton et al., Appellants, v. Frederick B. Hose, Jr., as County Treasurer of Suffolk County, Respondent.Submitted October 12, I960;decided November 17, 1960.
p. 337Joseph T. Losee and Douglas E. Brown for appellants.
I. Section 63 of the Suffolk County Tax Act is not applicable to this proceeding. (Smith v. Albertson, 201 Misc. 940 , 281 App. Div. 990 , 282 App. Div. 741 ; Kassam Corp. v. Walsh, 285 App. Div. 955 ; Matter of Kantor [Hutner], 280 App. Div. 605 .) II. This proceeding is properly brought under the provisions of section 40-c of the Suffolk County Tax Act. No necessary parties to this proceeding have been omitted therefrom. (People ex rel. Cooper v. Registrar of Arrears, 114 N. Y. 19 ; People ex rel. Ostrander v. Chapin, 105 N. Y. 309 ; People ex rel. National Park Bank v. Metz, 141 App. Div. 600 ; Werking v. Amity Estates, 2 N Y 2d 43 ; Bandler v. Hill, 84 Misc. 359 ; Matter of Lyons v. State Tax Comm., 235 App. Div. 474 ; People ex rel. Staples v. Sohmer, 206 N. Y. 39 ; Hunt v. Dekin, 187 Misc. 649 .) III. The denial of respondent’s motion to dismiss the petition as insufficient required a denial of this motion under rule 112 of the Buies of Civil Practice.Henry M. Zaleski, County Attorney (Stanley S. Corwin of counsel), for respondent.
I. Applications to the County Treasurer of Suffolk County to cancel tax sales prior to conveyance of lands so sold are not authorized by applicable law. After conveyance, such applications are authorized but cancellation is discretionary with the County Treasurer. II. The facts alleged in the petition to the County Treasurer did not justify bim to cancel the tax sales in question herein on his own motion. (Matter of Phillips, 60 N. Y. 16 .) III. Tax deeds having been executed and delivered to tax purchasers who are not parties herein, this proceeding must be dismissed. (People ex rel. Staples v. Sohmer, 206 N. Y. 39 .) IV. The denial of respondent’s motion to dismiss the petition as insufficient did not require a dismissal of respondent’s motion under rule 112 of the Buies of Civil Practice. V. Petitioners have an adequate remedy at
p. 338law where the rights of all interested persons can be determined. This proceeding cannot adjudicate such rights and should be dismissed. VI. The application to the Suffolk County Treasurer under law applicable to Suffolk County for cancellation of tax sales can only be made by purchasers at the sale. (People ex rel. Witte v. Roberts, 144 N. Y. 234 .) VII. Section 63 of the Suffolk County Tax Act is a controlling Statute of Limitations applicable to this proceeding. VIII. The provisions of section 22 of the Suffolk County Tax Act are directory only.Although a triable issue was presented because the record does not contain evidence which conclusively established the purchasers at the tax sales as necessary parties (see People ex rel. Cooper v. Registrar of Arrears, 114 N. Y. 19 ), and although section 63 of the Suffolk County Tax Act by its terms is not applicable to an action based on alleged defects in a tax sale proceeding which allegedly occurred subsequent to the date of the receipt of the tax warrant by the Town Receiver, the order of the Appellate Division should be affirmed, but on another ground. An application to the Suffolk County Treasurer pursuant to section 40-c of the Suffolk County Tax Act in connection with the cancellation of tax sales may only be made by the purchaser at the sale. We construe section 40-c of the Suffolk County Tax Act as we have construed section 140 of the Tax Law as giving the former owner no standing to apply for cancellation. (People ex rel. Witte v. Roberts, 144 N. Y. 234 , 237; People ex rel. Staples v. Sohmer, 206 N. Y. 39 , 42.) Since the application of the former owners to the County Treasurer to cancel the tax sales was not authorized by law, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.
Order affirmed.