Cromwell v. Nichols — 139 N.Y.S. 1051

Majority

p. 1051

CROMWELL et al. v. NICHOLS et al.

(Supreme Court, Appellate Division, Second Department.

February 14, 1913.)

Headnote

1. Taxation (§ 788^[1] )—Tax Titles—Lease—Presumption.

On the production oí a tax lease, it is presumed that the tax was legally imposed, and the proceedings and sale regular.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1555, 1557, 1559-1569; Dec. Dig. § 788.*]

p. 1052

2. Appeal and Ekrob (§ 1170*)—Disposition on Appeal—Technical Errors Disregarded. :

In view of the express provision of Code Civ. Proc. § 1317, as amended by Laws 1912, c. 380, inconsistency in the conclusions of law adopted by the trial court, not affecting any substantial rights of the parties, does not require a disturbance of the judgment.

[Ed. Note.—Dor other cases, see Appeal and Error, Gent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]

Appeal from Special Term, Queens County.

Action by Hester A. Cromwell and others against Robert C. Nichols and others. From part of an interlocutory judgment of the Special Term, plaintiffs and certain defendants appeal.

Judgment, so far as appealed from, affirmed.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, THOMAS, and CARR, JJ.

H. R, Noyes, of New York City, for appellants Cromwell et al.

Clarence R. Freeman, of New York City, for appellants Nichols et al.

James W. Treadwell, of New York City (Joseph F. ICeany, of New York City, on the brief), for respondent.'

[1] The question as to the presumption arising from the tax lease involved in this action was necessarily involved in the decision made in Eott v. De Graw, 30 Hun, 417 . An examination of the printed record on appeal in that case shows that this precise question was sharply and elaborately presented to the court by the briefs of the respective counsel. We do not feel at liberty, under the circumstances, to consider that question now open in this court, in view of the fact that it has stood unquestioned for a generation or more, and may be considered to have become the rule as to the statutes in question, all of which have been long since repealed. As to the conflict of presumptions arising from the proofs offered by the plaintiff, we are of opinion that a question of fact was presented for the determination of the trial court, and that its decision thereon is supported by the evidence and should not be disturbed on appeal.

[2] Whatever inconsistency may appear in the conclusions of law adopted by the trial court dties not require any disturbance of "the judgment on this appeal, in view of the power-conferred upon this court by section 1317 of the Code of Civil Procedure, as amended in 1912 (Laws 1912, c. 380).

The interlocutory judgment, in so far as appealed from, is affirmed with costs.