People ex rel. Johnston v. Hegeman — 22 N.Y. St. Rep. 109

Majority

p. 109

The People ex rel. Cornelia Johnston, Resp’t, v. Elbert Hegeman as Treasurer of Queens County, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Taxes and assessments—Sale on lands for unpaid taxes—Notice required—Laws 1877, chap. 368, as amended by Laws 1878,chap. 226.

The act of 1878 (Laws 1878, chap. 326, amending Laws 1877, chap. 268) which provided that when a sale of lands in Queens county for unpaid taxes is had, notice must be given by the purchaser to the owner and mortgagee, being resident within the county and to non-resident mortgagees, within one year after the sale, carries with it the repeal of all sections of previous acts relating thereto except those which are retained in the act. The sale was made in 1879, and the relator being a resident of New York and the owner of the property was not entitled to notice of sale.

:3. Same—When and on what terms owner may redeem.

An owner whose lands have been sold may redeem by paying the expenses in addition to the tax and interest.

Appeal from an order of the special term granting an application for a peremptory mandamus to compel the Queens county treasurer to receive the amount of tax levied during the years 1875, 1876, 1877, 1878 and 1879, by the town of Jamaica on certain lots belonging to the relator with interest thereon, without receiving payment for the ■expenses incurred by the county treasurer in the sale, and to compel cancellation of the taxes of record in the office of the county treasurer and to deliver to the relator receipts in full therefor.

Benjamin W. Downing, for app’lt; Thomas M. Wyatt, for resp’t.

affidavit of the supervisor, Mr. Rrinkerhoff, makes an issue as to the service of a notice of time within which to redeem. The notice was addressed to a wrong place in Hew York, but it was never returned, and the supervisor states his belief that Mrs. Johnson received it. Ho notice of the time of redemption was needed. In 1873 the legislature passed an act authorizing the sale of lands in Queens county for unpaid taxes. The county treasurer is required to give six months’ notice before giving the lease, to the owner, and mortgagee, and if they could not be found, two weeks’ notice was to be published.

Chapter 135, Laws of 1873, section 17.

In 1876 this act was amended. The notice requir by the ■seventeenth section of act of 1873, was omitted, and in the thirteenth section was inserted a requirement that the purchaser at the sale should give six months’ notice of such sale to the owner, mortgagee, lessee or assignee.

This service was to be made in case of non-resident by deposit in the post-office, and addressed to the place of residence as stated in the instrument under which he holds . such interest as owner, mortgagee, lessee or assignee.

p. 110

Chapter 261, Laws of 1876, sections 17 and 18. _

_ In 1877 the act was again amended, and notice only required to be given 'to the owner when a resident of the town, where the property was situate.

Chapter 268, Laws of 1877.

In 1878, the act was amended. The time to redeem was fixed at fifteen months, and the purchaser was to give-within one year after the sale notice to owner and mortgagee, being resident within the county, and to non-residents mortgagees only. The sale was made in 1879, and the relator resided in the city of New York, and is the owner of the property. He was' entitled to no notice of sale. The-claim that the parts of the omitted section of the law of 1876, which give her a right to notice, are to be considered as still standing, is unwarranted. The section is changed so as to read as amended. This language carries with it a repeal of all provisions in these sections, but those retained in the new section. There is then no reason why the tax should be annulled. The relator can redeem by paying certain expenses in addition to the tax.and interest which are proper if the sale was proper.

The order should,' therefore, be reversed, with fifty dollars costs, and the motion denied with ten dollars costs.

Pratt and Dykman, JJ., concur.