Tilden v. Duden — 15 N.Y. St. Rep. 800

p. 800

Milano C. Tilden, App’lt, v. Hermann Duden, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Tax sales—Laws 1874, chap. 610—Failure to pile certificate within REQUIRED TIME INVALIDATES SALE.

It is provided by Laws 1874, chap. 610, entitled an act to authorize the sale of land for non-payment of taxes, and for the collection of unpaid taxes in the several towns of the county of Westchester, that a duplicate of the certificate of sale of premises under the authority of that act shall be filed in the office of the county treasurer by the supervisors making the sale. within thirty days thereafter, Held, that the provisions of the statute respecting the time within which such duplicate certificate should be filed was mandatory, and that failure to comply with it invalidated the sale. Dykman, J. dissenting, Held, that so far as regarded time, this provision was merely directory and that failure to file the certificate within the required time did not invalidate the sale.

Appeal from a judgment entered on a verdict rendered at a circuit court in Westchester county. ,

This is an action of ejectment, by plaintiff, as owner in fee against defendant, as holder of a tax lease, given upon a sale made October 7, 1884.

The property is in Westchester county, which has a local law on sales of land for taxes, found in chapter 610, Laws of 1874, and the acts amendatory, chapter 193, Laws 1877; chapter 506, Laws 1880, etc. This property was sold Octobor 7, 1884, by the supervisor of the town of Westchester to the. town of Westchester for taxes of 1883 ($193.12), for the term of 1,000 years. The sale was had under the provisions of chapter 610, Laws of 1874 (and amendatory acts). Chapter 610, Laws 1874, and amended by chapter 506, Laws, 1880; amending section 5, provides among other things, that

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within thirty days after every sale the supervisor, by whom the sale has been made, shall file a duplicate of such certificate in the office of the county treasurer, and it shall be the duty of the county treasurer to make an alphabetical index of said certificates, first, by the names of the several towns, etc., and second by the names of the persons or corporations to whom the property sold was assessed, etc., * * * and no such sale shall be valid unless such certificaté shall be so filed and indexed.

The duplicate certificate of sale was filed in the county treasurer’s office on the 12th day of November, 1884 (thirty-six days after the sale).

David J. Neuland, for app’lt; H. J. Stillman, for resp’t.

—The proof shows that the certificate of sale was not filed within thirty days after the sale. By the express declaration of the act under which the sale was made, the sale is invalid.

The case is not one which comes within the authorities which hold the filing, within a certain time, to be directory only. If not filed, the sale is bad. The tax title must depend on a valid sale.

Judgment reversed, and a new trial granted; costs to abide event.

Pratt, J., concurs.

—This is an action of ejectment, and the defendant justifies and claims title to the premises under a tax lease, for the same.

But one claim of irregularity is set up against the proceedings which eventuated in the lease now held by the defendant, and that is this: By the law under which this property was sold for the non-payment of taxes, within thirty days after every such sale, the supervisor, by whom the sale was made, is required to file a duplicate of the certificate of sale in the office of the county treasurer, and it is made the duty of the county treasurer to make an alphabetical index of such certificates, first, by the names of the several towns; and second, by the names of the persons or corporations to whom the property sold was assessed, and no such sale shall be valid, unless such certificate shall be so filed and indexed. In this case the duplicate certificate of sale was not filed within thirty days in the office of the county treasurer, but it was so filed thirty-six days after the sale.

We think the statute respecting the time within which such duplicate certificate is required to be filed is directory, and that the failure to file the same within thirty days prescribed, did not invalidate the sale.

The judgment should be affirmed with costs.