White v. Wheeler — 4 N.Y.S. 405

Majority

p. 405

White v. Wheeler et al.

(Supreme Court, General Term, Second Department.

February 11, 1889.)

Headnote

1. Constitutional Law—Delegation of Legislative Powers—Taxation.

Laws N. Y. 1883, c. 114, conferring on the board of assessors of the city of Brooklyn, such board being a city agency in respect to taxation, power and authority to determine what proportion of the taxes, assessments, etc., assessed on any lands therein prior to July 1, 1882, and in arrear, should be justly and fairly charged against and presently collected from said lands, and making their determination a valid tax and lien thereon, in lieu of said arrearages, is constitutional. The arrear, thus ascertained, not being a new tax, but an abatement of the old, the objection that the legislature cannot delegate the power of taxation, within an incorporated city, to a commission newly created by itself, is irrelevant. Following Terrill v. Wheeler, 2 N. Y. Supp. 86 .

2. Taxation—Tax Titles—Evidence—Power of Legislature.

It is within the power of the legislature to declare (as in the above act) that a tax deed shall be presumptive evidence of title in fee in the holder; and, in an action by such holder to recover possession of the property, it is sufficient to prove the deed, without showing a non-payment of the tax to authorize the sale.

3. Same—Advertisement—Description of Property.

Under section 3 of that act, providing that the register of arrears, after receiving from the board of assessors their certificate of assessment, shall publish an advertisement of sale, which must state the ward in which the property to be sold is situated, and shall state that further particulars can be obtained at the register’s office, it is of no moment that the register’s advertisement, as a further description to that given in the certificate, also added the number of feet in a named street.

4. Same—Assessment—Reference to Maps.

The charter of the city of Brooklyn provided that all ward maps “made or to be made” should rdtnain with the assessors, and that all assessments should refer to “said maps.” A former map referred to the lots in controversy by one designation and number, and a later map referred to them by different numbers. Held, that the assessors were not required to refer to the former map.

6. Ejectment—Damages—Evidence—Rental Value.

Under Code Civil Proc. H. Y. § 1531, providing that the plaintiff in an action to recover real property, if successful, shall also be entitled to recover, as damages, the rents and profits, or the value of the use and occupation of the property, for a term not exceeding six years, evidence of the rental value is proper on the trial of such an action.

On exceptions from circuit court, Kings county.

Action to recover real property in the city of Brooklyn, brought by William A. White against George S. Wheeler and others. Verdict was directed for plaintiff, and defendants’ exceptions ordered to be heard at general term. Plaintiff claims title under tax deeds based on Laws iST. Y. 1883, c. 114, relating to arrearage tax sales in the city of Brooklyn. For an abstract of that act, see Terrill v. Wheeler, 2 N. Y. Supp. 86 . Code Civil Proc. FT. Y. § 1531, referred to in the opinion, is as follows: “In an action brought as described in this article, [action to recover real property,] the plaintiff, where he recovers judgment for the property, or possession of the property, is entitled to recover, as damages, the rents and profits, or the value of the use and occupation of the real property recovered, for a term not exceeding six years; but the damages shall not include the value of the use of any improvements made by the defendant, or those under whom he claims. * * *”

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Moore, Low <& Wallace, for plaintiff. James Stikeman, (John J. Townsend, of counsel,) for defendants.

It is provided by chapter 114, Laws 1883, under which the sale in question was made, that the purchaser “shall take a good and suf

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ficient title in fee-simple absolute to the property sold, of which the said deed shall be presumptive evidence.” The objection that it was not in the power of the legislature to so declare is not good. The power has been usually exercised in official sales for taxes. The same provision exists as to state comptroller’s deed, except that the words are absolute,—“shall vest in the grantee an absolute estate in fee-simple.” 2 Rev. St. (Banks’ 7th Ed. 1028,) § 63. The court of appeals made no question of the power of the legislature, but permitted proof of irregularities to destroy the conveyance. Johnson v. Elwood, 53 N. Y. 431 . Chapter 65, Laws 1878, and chapter 573, Laws 1880, make similar deeds on tax sales evidence of title. The present law makes the cleed presumptive evidence of title, thus in words making the conveyance conform in legal effect to the decision of the court of appeals as to deeds where the words are absolute as to the transfer of title. The plaintiff is therefore bound to prove nothing but his deed, and his title was presumed. If he was to prove the negative as to the non-payment of the tax to authorize the sale, the presumption of the deed is of no value to him. The uniform presumption is in favor of the performance of official duty. In the absence of proof to the contrary, the sale will and must be deemed to be based upon an existing arrear.

The proof shows that there had been a ward map before this assessment was levied, and that a new one had been made. The charter requires that all assessments must refer “to said maps.” The charter referred to maps “made or to be made, ” and required further that they should remain with the assessors. The old map referred to these lots by one designation and number, and the new map referred to them by different numbers, but according to the number on the new map. There was no necessity for the assessors to refer to both maps. Both maps were in the office, but only one was used-as a basis for assessment, and that was in the assessors’ office for reference for any tax-payer. A reference to any former map is not required by the charter. The case shows that the board of assessors mads their certificate, and delivered the same to the register of arrears. The advertisement of sale, by the terms of the act, must state the ward in which the property to be sold is situate, but shall state that further particulars could be obtained at the register’s office, “and it shall not be necessary to include any further particulars of the property to be sold. ” If the land was assessed properly, and the arrears properly determined, and advertised properly, it is of no moment that the register, as. a further description to that given by the map numbers, which was contained in his certificate, also added the number of feet in a named street. It was an addition to the certificate required by law, and designed to aid the tax-payer by giving a more specific description. The evidence of the rental value was proper, under section 1531 of the Code.

The question of the validity of the arrears law was decided at the May term of this court, in the case of Terrill v. Wheeler, 2 N. Y. Supp. 86 . We held in that case that the act was not in violation of the constitution, and until the court of appeals passes upon the question that conclusion is controlling in all actions involving the validity of the principles of the act itself. The exceptions should be overruled, and the plaintiff have judgment on the verdict, with costs. All concur.

Cases cited

Johnson v. Elwood 53 N. Y. 431 N.Y. 1873-09-23 p. 406