People ex rel. Ryan v. Bleckwenn — 29 N.Y. St. Rep. 826

Majority

p. 826

The People ex rel. James Ryan, Resp’t, v. Frederick W. Bleckwenn, Treasurer, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

Municipal corpobations—Assessments—Laws 1874, chap. 326.

Redemption from a sale for assessments under chap. 326, Laws 1874, can be made in improvement certificates issued under that act to the extent of the amount due on the assessment for principal and interest accrued at the time of sale.

Appeal from final order granting motion for mandamus.

Proceeding to compel the treasurer and receiver of taxes of Long Island City to accept improvement certificates for redemption of property sold for nonpayment of assessment under chap. 326, Laws 1874.

The following opinion was delivered at special term.

Cullen, J.—While the mode of sale was governed by the act of 1886, the disposition of the funds arising upon the sale is prescribed by the original act of 1874, which provided for the improvement for which the assessment has been laid. By that act the moneys produced either by the payment of the assessments or by the sale for an unpaid assessment do not pass into the general treasury of the city, but are held as a separate and distinct fund to be applied only to satisfaction of the improvement certificates; by § 9 of the act it is provided that those certificates shall “ At all times ” be receivable at par and interest in payment of the assessments!

The language of the statute is very broad “ Shall be receivable at all times ” in payment of the assessments. I do not think the

p. 827

'certificate on the sale is a substantially different thing from the assessment. ■

The owner has the right to redeem within a given time, and until the expiration of the time for redemption is not divested of his property, the redemption is substantially a payment of the assessment with the expenses of the sale and interest. I think therefore a payment in improvement certificates good, and no harm or loss can occur to the city if enough is paid in cash to defray the expenses of the sale and the interest payable to the purchaser. This the petitioner is willing to do. To the extent of the amount due on the assessment for principal and interest accrued at the time of sale, the redemption in my opinion can be made in the certificates.

Motion granted.

The order appealed from should be affirmed on the opinion of the court below, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., dissents.