McLaughlin v. Miller — 32 N.Y. St. Rep. 1042

Majority

p. 1042

William R. McLaughlin et al., Ex’rs, App’lts, v. Ira O. Miller, Resp’t.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Deeds — Covenant against inOijmbrances — Taxes.

Prior to the delivery of the deed in question a public improvement had been authorized by the legislature, a portion of the expense of which was to be paid by the property benefited, one-twentieth thereof to be added to the tax in each year for twenty years. Meld, that the successive installments, although fixed in advance, were a part of the tax for the years in which they were collectible and were not liens on the land from the beginning within the covenant against incumbrances.

Appeal from judgment in favor of defendant.

Action to recover certain sums paid by plaintiff for assessments on property conveyed by defendant’s deed with full covenants of warranty.

Tunis (?. Bergen, for app’lts; Ira 0. Miller, (Alfred E. Mudqe, of counsel), for resp’t.

Ira 0. Miller and wife on the 1st of July’ 1872, conveyed a piece of property in the city of Brooklyn to Robert McLoughlin. The deed contained a covenant of warranty against all incumbrances except a mortgage of $1,900. The legislature had before this authorized the improvement of Fourth avenue. The property along the route was required to pay $150,-000 of the cost of the improvement, one-twentieth part of which was to be levied and collected in each year for twenty years. One hundred and seventy-five thousand dollars of the cost of the improvement was to be collected in 1870, from the property in the. first twelve wards of the city. All taxes and assessments imposed upon the lots in question before the delivery of the deed were paid by defendant The question therefore is, was the instalments of the one-twentieth part of $150,000 payable each year an incumbrance ? We think the successive instalments, although fixed by he legislature in advance, a part of the tax for the years in which hey were collectible, and that they were not liens on the land

p. 1043

from the beginning within the covenant against incumbrances. The tax was fixed so far that a certain sum was to be raised each year, but every year brings its burdens. There are various sums which are required to be annually collected, but the land is not incumbered thereby until the tax levy is actually made, and such taxes are alien on the land from the date of the confirmation of the yearly tax levy only. The evidence does not show an assessment for the entire number of yearly payments in 1870. A fair inference from the fact proven is that the first payment only was made a lien on the land. In order to arrive at the amount of the first payment all the cost of the work did appear, but it was not and could not be collected at once. There was therefore no cause of action proven. Barlow v. St. Nicholas Bank, 63 N. Y., 399 .

The judgment must therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.