Smith v. Buhler — 30 N.Y. St. Rep. 635

Majority

p. 635

Morris H. Smith, App’lt, v. Magdalena Buhler, impl’d, Resp’t.^[1]

(Court of Appeals,

Filed April 15, 1890.)

Headnote

Taxes—Notice to redeem must state the sale correctly.

A notice to the owner to redeem from a tax sale must state the sale and conveyance ■which actually occurred and against which he is called upon to redeem. A statement therein of a sale for taxes of "a different year is false and misleading in a material respect, and renders the notice inoperative.

. Appeal from judgment of the superior court of ¡New York, .■general term, affirming judgment in favor of defendant entered on verdict of jury directed by the court.

Action of ejectment based on a lease given by the city of ¡New York, on a sale for non-payment of taxes.

John Townshend, for app’lt; Carlisle Norwood, for resp’t.

There is one defect in the tax title of the plaintiff which we are unable to surmount. Due service upon the owner of a notice to redeem is made essential to the right of the purchaser to have his lease from the comptroller made absolute. Until then the lessee as against the owner obtains no title, and has only an imperfect or inchoate right which may ripen into one. That notice is for the protection of the owner and to give him a final opportunity to save his title from destruction. It is to him. ■the most important step in the proceeding, upon which he has a right to rely, and since its result is to finally divert his title, must be taken in strict accordance with the statute. That requires among other things that the notice “ shall state in substance the sale and conveyance,” by which is meant not a sale and conveyanee, but those which had actually occurred and as against which the purchaser calls upon the owner to redeem. Any material misstatement which describes a sale which never occurred must necessarily mislead the owner and throw him off his guard and operate as a fraud upon his rights.

In this case the sale made and the lease given were for the non-payment of the taxes of 1876, and it was upon those taxes that jurisdiction rested, and against them and the effect of their non-payment that the owner was to be called on to redeem. The notice in fact served did not state that sale or a conveyance founded upon it as the statute required, Laws of 1871, chap. 381, £ 13, but on the contrary stated a sale for a tax of 1874. Against that tax and a sale thereunder the owner may have had a perfect defense, and felt safe in omitting to redeem, and had a right to .rest upon the notice which called upon him to redeem from a

p. 636

sale for the taxes of that year. Of a sale for the taxes'of 1876, and a lease founded on such a sale, he never was notified by a redemption notice, or called upon to redeem from a purchase thereunder. ¡Ño notice of “ the sale and conveyance ” relied upon was given him, but instead of another and different sale and conveyance, from which it was not needed that he should redeem. The defect was more than a mere omission. It was a false statement of the facts ; and that shows why one of the answers to the difficulty furnished by the appellant is unsound. He says the statement was surplusage. I do not think it was, for instead of adding needless information, it so qualified the required statement of sale as to make that statement false and misleading in a material respect. He further says that the objection was not raised. But his own exception, upon which he founds his appeal, is to the direction which the court gave of a judg ment for the defendants. They not only asked for that decision upon specified grounds, but also generally, and may defend the direction given upon any grounds which the case presents. We think, therefore, the direction was right and the judgment should be affirmed, with costs.

All concur.