Schell v. Elkins — 31 N.Y. St. Rep. 197

Majority

p. 197

Edward Schell, Trustee, App’lt, v. George B. Elkins et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 12, 1890.)

Headnote

Foreclosure—Sale subject to tax.

Certain premises were sold on foreclosure in April, 1881, the terms of sale providing that the taxes should be deducted from the purchase price. The sale was confirmed in 1889 as of the date of Hay 4, 1881. In the meantime the taxes had been reduced under chap. 114, Laws 1883. Held, that the purchaser was entitled to a deduction of the taxes as they were at the time of sale and that it was error to allow only the reduced amount.

Appeal from order denying plaintiff’s motion to be released from a purchase on foreclosure sale and granting motion of Townsend Dickinson to set aside order confirming said sale and directing the sheriff to make a new report, allowing plaintiff less on account of taxes and interest.

James Otis Hoyt and Frederic A. Ward, for app’lt; J. Ralph Burnett, for resp’t, T. Dickinson; J. Hunt Betts, for resp’t, John Heyser; Sherman Fvaris, for resp’ts, Mary 0. Elkins et al.

The plaintiff, in 1875, obtained a decree for the foreclosure and sale of certain mortgaged premises in Brooklyn. No sale was made under the decree until April, 1881, when the plaintiff bought in the property for $15,000. The taxes then upon the property were $4,505.53, which were, by condition of sale, to be deducted.

The title under this sale was left unperfected until 1889, when the sale was adjudged a good sale and the plaintiff was required to complete the purchase and take title under it. The taxes on the property in 1889 had been reduced under chap. 114 of the Laws of 1883 to the sum of $2,026. The sheriff, on giving the deed, allowed the tax as it stood when the bid was made and the order appealed from corrects this by allowing only the reduced tax under the arrearages act above mentioned. I think the sheriff’s report was correct The order appealed from is based upon the statement in it that the sale should have been closed on the 4th of May, 1881. If that had been done an allowance of the tax as it then stood would have been a matter of course. A subsequent reduction, under a law two years later, would not have enured to the benefit of the mortgagor or his representatives, but to the exoneration of the land which the plaintiff owned.

The arrearage law was designed to reduce a tax on the land to a sum which it justly ought to pay at the time of the passage of the act The tax was not necessarily bad, but it has become so large that it was deemed better to reduce it and get payment, than to sell the land for the larger amount and lose it, as the act states that the tax has become greater than the assessed value of the land in some cases. The accounting should be as of 4th May, 1881, allowing the tax as it then stood. The debt was then $11,437.31. The costs and interest on the amount $440.23.

The sheriff’s fees $211.50. The tax is $4,505.53.

This would leave a debt on May 4, 1881, of $1,594.57.

p. 198

The order should he modified so as to conform to this result

Dykman and Pratt, JJ., concur.