Lamb v. Connolly

The actions are ejectment, brought to recover the possession of certain lands in the city of Brooklyn, which had been sold pursuant to the provisions of chapter 114, Laws of 1883, concerning the settlement and collection of arrearages of unpaid taxes, etc., in that city, and purchased by the plaintiff. And against the recovery it is contended that such statute is unconstitutional for the reason that it failed to provide for any apportionment of the taxes, assessments or water rates to be levied, or for any sufficient notice to the owners of the property to be affected by the proceedings taken under it The object and effect of the act of 1883 was not to make original assessments, but to provide for the adjustment of those which had been made or attempted to be made prior to July 1, 1882, and remained unpaid and in arrears. They had accumulated to an amount exceeding ten millions of dollars, and the validity of some of them had been questioned. The purpose of the act was to determine, as to each parcel of land so affected, how much of such “ arrearages ought in the way of tax, assessments and water rates in fairness and justice” to be assessed, charged and collected from the, land, without regard to any supposed want of defect in any of the proceedings had for levying or ■confirming any of the assessments or water rates in arrears. And with that view the board of assessors of the city were directed to, within thirty days after the passage of the act, publish in the manner provided a general notice requiring the owners of all land in the city affected by any arrearage of taxes, assessments or water rates, and all other persons having an interest in or lien upon such lands, to present in writing to the board within ninety •days after the passage of the act their objections to any such tax, assessment or water rate, why such arrearages should be reduced or any part of them remitted And whoever should so furnish and serve such statement and objection, if he demanded a hearing in a notice endorsed upon such statement designating the name and place of business or residence of a person upon whom notice might be served, should be heard before the board, and for that purpose have notice of hearing, to be served, in the manner directed It was also provided that the board should keep a record of its proceedings, in which should be entered its determination as to the amount to be charged and assessed upon each parcel of land, designating the same by the block and lot numbers on the assessment maps in the office of the assessors, and certify the amount to the registrar of arrears and to the comptroller of the city; and that such determination should be conclusive, and the amount so determined in each case and certified should thereupon become and be a valid tax, assessment and lien upon the lands so designated in lieu of all outstanding claims of the city for arrear

There was a further provision for the collection by the registrar of arrears of the amount of the tax, assessment and lien, although, he was not required to make any demand of payment, but if unpaid within twelve months from the time of filing such certificate lie should sell the land at public auction, after publishing as directed an advertisement of the sale, in which should be included. “ a designation of the time and place of sale and of the ward or wards in which the property then and .there to be sold is situated and shall state that further particulars of the property to be sold may be obtained at the said registrar’s office, and it shall not be necessary in said advertisement to include any further particulars-of the property to be sold.” And from and after the first publication of the advertisement it was made the duty of the registrar to deliver to atiy applicant at his office a list of all tlie parcels of land intended to be included in the sale so advertised. On the receipt by him of the purchase money on any sale made by him, the registrar was directed to deliver to the purchaser a certificate of sale; and after the expiration of one year from the time of the service of the notice of sale by the purchaser in the manner provided, upon any person having an estate in or any mortgage of the land so sold whose estate or lien appeared of record, unless-in the meantime redeemed, he should execute and deliver to the purchaser a deed of the lands, who should thereby take title in fee simple absolute, of which the deed should be presumptive evidence. The plaintiff as purchaser of the premises in question had the relation to them given by such a deed made to him. The apportionment was made pursuant to other statutes existing in the period of nearly twenty years in which the assessments were made. And the irregularity to which our attention has been called, and so far as it appears by the judicial history on the subject, was in the defective verification of the assessment-rolls by the affidavits of the assessors. It was finally determined in 1882 that such defective verification rendered -the assessments invalid. Brevoort v. City of Brooklyn, 89 N. Y., 128 . And following it in June of that year, an act was passed to confirm and legalize taxes levied or attempted to be levied since the year 1861, and the validity of which was affected by such defect. Laws of 1882, chap. 363. The act was effectual for such purpose and the taxes- and assessments thus defectively levied were legalized. In re Clementi v. Jackson, 92 N. Y., 591 . And the act of 1883 was passed to fully accomplish it without unnecessary prejudice to the owners of property upon which those in arrears had been levied legally or otherwise prior to July 1, 1882.

Under it the board of assessors could levy no new taxes, nor could they increase the amount of those so levied. The purpose in view was to reduce them in cases where in “ fairness and justice ’’ the proper adjustment required it. And it may be assumed that many had paid the taxes upon their property levied during the time that those in arrear had accrued. That it was within the legislative authority to devolve upon the board of assessors the

The preliminary notice given by the board of assessors was in compliance with the provision of the statute before mentioned on the subject. It called attention to the lands in the city affected by arrearages of taxes, assessments and water rates, and called upon the owners and all persons having any interest in or liens upon them to make their objections to any taxes, etc., so in arrears. It also referred to the act under which the proceedings were taken by the provision of which such owners and persons so interested were given an opportunity to be heard upon the subject And in the act was defined what were taxes, assessments and water rates in arrears. That was a notice to all persons who were brought within it by the statute. They were those who owned and had such interest in any portion of the lands designated in a particular manner as a class.

There was, therefore, not a want of notice. And the kind of notice and the mode of giving it were a matter of legislative judgment and direction. While a notice was essential to the validity of the proceedings, it cannot be said that the legislature failed to prescribe a sufficient notice. The difficulty in Stuart v. Palmer, 74 N. Y., 183 , was that no notice of the assessment was provided for, and the owner of the property was given no opportunity to be heaid, and the execution of the statute would have resulted in the taking of property without due process of law. But it was there held that the legislature might prescribe the kind of notice and the mode of giving it. In Eaton v. Reed (Ms. opinion of Mason, J., court of appeals), there was not only practically no notice, but that given was not such as the statute required. And the contention to the latter effect in the present case is.founded upon the following provision of section 3: “It shall not be necessary in the said list, nor in the certificate of the said board of assessors hereinbefore mentioned, nor in any notice required to be given or published by any of the provisions of this act, to state the name ■of the owner of the premises affected, nor describe the premises

In the present case the notice of the board of assessors, as required by the statute and given, did designate in a manner the lands so affected By it the assessors- acquired jurisdiction of the proceedings, and in the registrar’s advertisement of sale designating the ward or wards in which it was situated, the persons interested were advised where they could obtain the particulars of the property to be sold, and all persons having an estate or mortgage, appearing of record, in or upon the land sold, were entitled to notice of the sale and a year to redeem before a deed could be taken by the purchaser. There seems to be no defect in the provisions of the act of 1883, nor any want of observance of them in the proceedings had, which resulted in the sale of the land in question, essential to the validity of the deed given by the registrar of arrears to the plaintiff.

In the Connolly case there was in arrear, aside from taxes and assessments, as such, charges for water rates, amounting to less than twenty dollars, and the point is made that those water rates were invalid as liens upon the property, for the reason that the statute providing for assessment of such rates upon vacant lots is. void, as it gives the owner of the premises no opportunity to be-heard upon the subject. Laws of 1859, chap. 396, § 24. It was. so held in Remsen v. Wheeler, 105 N. Y., 573 ; 8 N. Y. State Rep., 202. Without considering whether this property may or not be treated as then vacant, and the effect upon it-if not so, we think the question raised is not available to the defendant, upon the facts presented by the record before us. The taxes, assessments and water rates in arrear in this case amounted altogether to $771.43, and by the action and determination of the-board of assessors there was of that amount cancelled or taken from it $403.43, leaving as the amount for collection $368. In view of the presumption given by the statute that the purchaser took a good title by the deed to him, it cannot be assumed, without evidence to that effect, that such reduced sum embraced any

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Haight, J., absent.