Levy v. Newman — 21 N.Y. St. Rep. 115

Majority

p. 115

Michael Levy and Henry May, Resp’ts, v. Emanuel Newman, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

Taxation—Sale—Redemption—Infancy—Brooklyn, City of.

By the charter of the city of Brooklyn, Laws of 1873, chapter 863, title 8, § 7 it is provided that the register of arrears shall postpone the giving of a deed for lands sold for taxes which belonged to infants, if bebas “ satisfactory evidence ” that the lands are owned by the infants. A. full month's notice is given to redeem after the appointment of a guardian. By section 5 of chapter 163, Laws 1885, a year’s notice of sale must he given, and any person having an estate in the lands may redeem during; that time. No mention is made of the fact of infancy or the appointment, of a guardian in such cases, with a definite period to redeem after such appointment. Held, that section 7 of the charter is not repealed by the act, of 1885, and that notice to an infant, who has no guardian, is invalid,, though the register has no knowledge of his infancy.

Appeal from a judgment in favor of plaintiffs against the defendant entered at a special term, Kings county, during specific performance, and directing the defendant to> accept the deed of said premises.

•. The action is for specific performance of a contract to> convey land.

Fernando Dollinger, for app’lt; William J. Gaynor, for resp’ts.

By the provisions of the charter of the-city of Brooklyn, the register of arrears can give no deed for lands sold for taxes which belonged to infants, when the register had satisfactory information” that the lands belonged to the infants. Title 8, section 7, chapter 863, Laws of 1873.

A full month might elapse after the appointment of a guardian. All owners and persons interested in the lands were entitled to personal notice of the sale for at least six months before the deed was given if they were residents

p. 116

of Kings county. In the present case three infants have an interest in the lands and had personal service of the notice of sale, but no guardian had ever been appointed.

By section 5 of chapter 16.3, Laws of 1885, a year’s notice of sale must be given, and any person having an, estate in the lands may redeem during that time.

Under the Laws of 1885 no mention is made of the fact of infancy or of the appointment of guardians in such cases with a definite period to redeem after such appointment. Two questions are presented by the appeal. Is the section, giving time for an infant to redeem (sec. 7), repealed by the arrears law % and second, is a notice under the arrears of 1885 complete by a simple service of notice of sale upon the infant ? It seems to me, no service is complete, made upon an infant in the absence of a positive law to that effect. No such provision is contained in either law.

The charter excused the register when he is informed of the infancy, but is the service good made upon an infant when the register has no information on the subject ? Our law. is based upon the fact that a service of a paper on an infant is of no force of itself to bind heirs. Such a service furnishes jurisdiction to appoint a guardian but the infant’s estate is not taken away unless a guardian is appointed. The charter is therefore more favorable to the plaintiff if unrepealed than if the case rested on the arrears law alone. Under the arrears law a year must be given, but the year would be for such a term after a guardian was appointed, but, under the charter, only a month after the guardian is appointed is given to redeem.. The arrears lavv of 1885 protects the owner by requiring the notice of sale to' be given to the owner, but until an infant can be served so as to be bound, no notice at all is given him and the result does not .depend upon the fact whether the infancy be known or unknown to the register. This view of the effect of a service on the infant leads me to the conclusion that the section (7) of the charter in. respect to infants is not repealed by the subsequent act which contains no direct words of repeal. The same minute care is observed in respect to the notice to be given to the owners in both laws, and this section is an aid to the enforcement of the new arrears law as well as in the case under the charter of 1873.

At all events the question is not so plain that a title which depends for its validity upon its correct adjudication can be forced upon, the purchaser. The purchase of a doubtful title will not be specifically decreed in equity.

The judgment should therefore be reversed, and a new trial granted, with costs to abide event.

Pratt and Dykman, JJ., concur.