People ex rel. Andrews v. McGuire — 29 N.Y. St. Rep. 674

Majority

p. 674

The People ex rel. John Andrews, Resp’t, v. John C. McGuire, Registrar of Arrears, App’lt.

(City Court of Brooklyn, General Term,

Filed February 24, 1890.)

Headnote

1. Mandamus—Issue not joined by denial upon want of information.

Allegations in answering affidavits of knowledge or information sufficient to form a belief as to the truth of positive statements in the moving affidavit, do not raise an issue.

.3. Taxes—Sale.

Relator was the owner of lot Ro. 113, block 64, of the twenty-fifth ward of Brooklyn, upon a portion of which a tax was levied. Thereafter defendant sold a parcel of land in said ward described as block 54, lot 113 pt. Feld, that this failed to give any notice to the owner of lot 113, and that said lot 113 was not legally sold, or sold at all, and that plaintiff had aright to redeem.

Appeal from order granting a writ of mandamus.

John Andrews, for resp’t; Almet F. Jenks, for app’lt.

This is an appeal from an order of the special ■term of this court directing the issuance of a writ of mandamus to •the registrar of arrears to receive from relator the amount of an assessment tax lien filed by the assessors upon “ lot 112,” block 54, of the twenty-fifth ward, with interest thereon from the date it was .so fixed, and upon receipt of such tax and interest to mark the :same paid and cancelled by some appropriate entry upon the books or records of his office.

The primary duty of the registrar is to receive and receipt for •taxes in arrears. Laws 1883, chap. 114, § 3.

To defeat this order¡ the registrar insists, first, that there was an issue of fact raised by the allegation in his deputy’s affidavit that 'he had no knowledge or information sufficient to form a belief as to 'the truth of the positive statement in the affidavit of relator 'that he was the owner of the premises. We cannot assent to such a proposition. People ex rel. Harriman v. Paton, 20 Abb. N. C., 195 ; 5 N. Y. State Rep.,313; People ex rel. Carleton v. Assessors, 52 How., 140 . Second. The registrar insists that he had sold the premises in question for the tax sought to be paid. If true, it would defeat the order.

He advertised and sold a parcel of land in Twenty-fifth ward under the following description, viz.: Block 54, “lot 112 pt.” The registrar now contends that there was no “lot 112 pt.” in ■that ward, therefore, the owner was bound to know it was his lot 112. That the cabalistic “ pt.” was used by him to mean “ part ”

p. 675

of lot 112 in arrears for tax, without designating what part, and that this meaning should have been thought of by the relator when he examined the advertised list of lots to be sold. This notice of sale should receive no such construction, for it certainly fails to give any information to owner of “ lot 112 ” that his lot was to be sold, or was being sold, if he had been present at the alleged sale. We do not think that lot 112 has been legally sold, or sold at all. “Lot 112 pt.” has been sold, but we are not called upon to determine whether there is such a lot, or whether it was properly sold.

For the foregoing reasons the order must be affirmed, with costs.

Osborne, J., concurs.