p. 489Wheeler v. Jackson, as registrar, etc., of Brooklyn. Macfarlane v. Jackson, as registrar, etc. of Brooklyn.(Supreme Court, General Term, Second Department,Headnote
1. Taxes and assessments—Sales for—Constitutional law—BrooklynCITY CHARTER—AMENDMENT OF, BY CHAPTER 405, SECTION 15, LAWS OF 1885, NOT UNCONSTITUTIONAL.
The Laws of 1885, chapter 405, section 15, which amends the Brooklyn charter, so that all sales for taxes, etc., made eight years or more previous to its passage, under which leases had not been given, should be cancelled if said leases were not demanded within six months, does not impair the obligation of a contract, and is constitutional.
2. Same—Statute of limitations.
The limitation of time within which leases could be obtained under the tax sale certificates to six months after the passage of the act, left a substantial remedy remaining in the hands of the holders of the said certificates, and, therefore, was a modification of the remedy, and not an impairment or suspension of the duty of performing a contract.
James StiJceman, for appellants, Wheeler and Macfarlane.
Ahnet F. Jenhs, for respondent, Jackson.
It is the object of this action to procure a perpetual injunction against the defendant, who is the registrar of arrears of the city of Brooklyn, which shall restrain and prevent the cancellation of certain sales for taxes, and also the records of such sales in his office. The plaintiffs in these actions became purchasers at various sales of real property for unpaid taxes and assessments, and
p. 490received certificates of such sales bearing dates from March 17, 1868, to May 22, 1877, inclusive. By the terms of these certificates the holders were entitled to a lease of the lots designated therein after the expiration of two years from their respective dates, unless they were redeemed, and if any irregularity .was discovered they could recover the money paid, without interest.. Such were the rights and such the relative situation of these parties down to the 6th day of June, 1885, when an act was passed by the legislature of the state amending the charter of the city in many respects enumerated therein. The portion brought into view by this action is section 15, in these words :
“ None of the provisions of this act hereinbefore contained shall affect any sale for taxes, assessments or water rates heretofore made in said city, or the rights of the parties or the proceedings thereunder, but the same shall remain the same as though this act had not been passed; provided, however, that no action or special proceeding shall hereafter be brought or maintained against the city of Brooklyn or the registrar of arrears of said city to compel the execution or delivery of a lease upon any sale for taxes, assessments or water rates made more than eight years prior to the passage of this act, and notice thereof filed in the office of the registrar of arrears; but this provision shall not operate to extend any statute of hmitation now applicable in such cases; and after the expiration of six months from the passage of this act it shall be the duty of the registrar of arrears to cancel in his office all such sales made more than eight years prior to the passage of this act, upon which no leases have been given; and every action commenced and notice thereof filed within the period hereinbefore limited therefor, and thereupon the hen of all such certificates of sale shall cease and determine.”
It is the claim of these plaintiffs that the second clause of this section of the law annuls their contracts, and is, therefore, void, because it is interdicted by that portion of the constitution which interdicts the passage of laws impairing the obligation of contracts. If the fact assumed in this proposition was established the result claimed would necessarily follow. But the difficulty encountered by the plaintiffs is that the assumption cannot be maintained. The section of the law construed together does not operate on the rights of the plaintiffs, except to preserve them. It imposes on the registrar of arrears a duty to cancel in his office all such sales made more than eight years prior to the passage of the law, where no leases have been given, six months after the passage of the act. This is a short statute of hmitation, affording the plaintiffs six months from its passage on which to exercise their rights to demand their
p. 491leases. Alter the expiration of that period their rights were barred and their sales were required to be canceled. The statute left a substantial remedy remaining in the hands of the plaintiffs, and therefore the obligation of their contract was not impaired. Within the meaning and prohibition of the fundamental law that restraint extends to the impairment and supervision of the duty of performance of the contract, and not to a modification of the remedy, is the wisdom of the legislature. The limitations prescribed by positive law constitute no part of a contract, and legislation which merely alters or limits a remedy, but yet presumes an existing remedy in substance, in the ordinary course of justice is not violative of the organic law. Cooley’s Constitutional Limitations, 358. Before the passage of the law under consideration the claims of a tax purchaser might be barred by lapse of time, and all that this effects is the curtailment of that period.
Our views coincide with the opinion of Mr. Justice Cullen, delivered at the special term, and the judgment there rendered should be affirmed, with costs.
Barnard, P. J., and Cullen, J., concur.