Carter v. Koezley — 22 N.Y. Super. Ct. 583

Majority

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George Carter, Plaintiff and Appellant, v. Frederick Koezley, Defendant and Respondent.

Headnote

1. It is essential to the sufficiency of an answer stating new matter as a defense, that it state facts which, if true, will bar the action, or so much of it as is attempted to be answered.

2. In an answer setting up title or right of possession to land, under a sale for taxes, it is not enough to allege that the property was duly sold for non-payment of a tax duly imposed according to the statute. It is essential to state facts showing that a tax was duly imposed on the property, for the non-payment of which the authorities might lawfully sell it, and that the proof of non-payment required by the statute to authorize a sale, had been made.

3. An answer, which is defective in this respect, is not aided by section 161 of the Code of Procedure, which authorizes pleading a judgment or other determination of a Court or officer of special jurisdiction, by stating that it was duly given or made, without stating the facts conferring jurisdiction. If the imposition of a tax could be deemecf to be within this provision, the answer should designate by whom the tax was imposed.

(Before all the Justices.)

Heard, December 7, 1861;

decided, December 21, 1861.

This was an appeal from an order overruling a demurrer to an answer.

The action was brought to recover possession of a lot

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of land in Eighty-third street, in the City of Hew York, with damages for withholding possession.

The answer interposed, in addition to a general denial, two defenses, the purport of which is sufficiently stated in the opinions. To these defenses the plaintiff demurred, on the ground that they were insufficient.

At Special Term the demurrer was overruled, the Court holding that it is needless to set forth the whole chain of facts necessary to be proved, citing Gihon v. Levy, ( 2 Duer, 180 .) From the order entered on this decision, the plaintiff appealed.

John Townshend, for the plaintiff, appellant.

I. Section 162 of the Code does not apply, and the former rule should govern.

H. An answer must contain, * * * a statement of new matter constituting a defense. This is imperative, (M’Kyring v. Bull, 16 N. Y. R., 297,) and the statement must be of all those facts which defendant must prove to defeat a recovery. (Catlin v. Gunter, 1 Duer, 266 ; Manning v. Tyler, 21 N. Y. R., 567.) That the answer would entitle the defendant to prove his case on a trial, does not make it sufficient. (White v. Spencer, 14 N. Y. R., [4 Kern.,] 248; Voorhies’ Code, 227, ƒ, 229, a; Smith v. Lockwood, 13 Barb., 209 ; Hatch v. Peet, 23 Id., 575; Farrington v. Morgan, 20 Wend., 207 .) The facts must be set forth, so that the Court can determine whether they constitute a defense. Alleging that an act was duly done, alleges no fact other than the doing. ‘ ‘ Duly ’ ’ expresses no fact. (Graham v. Machado, 6 Duer, 517 ; Myers v. Machado, 14 How. Pr., 149 .) All the cases in which the allegation that an act was “duly” performed has been upheld, are cases where the word was mere surplusage, and where the allegation would have been sufficient without it, but, perhaps, uncertain. (People v. Walker, 23 Barb., 304 ; People v. Ryder, 12 N. Y. R., [2 Kern.,] 433; Fowler v. N. Y. Indemnity Ins. Co., 23 Barb., 143 ; Woodbury v. Sackrider, 2 Abbotts’ Pr., 405; Sere v. Coit, 5 Id., 482; Farmers' Bank v. Empire Stone Dress. Co., 10

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Abbotts’ Pr., 47; French v. Willet, 10 Id., 102; Scrantom v. Farmers' Bank of Rochester, 33 Barb., 527 ; Stewart v. Beebe, 28 Barb., 34 .) Such cases afford no ground for demurrer; but when the word “duly” is put in lieu of some traversable fact not stated, it is no excuse for the omission, and the pleading is demurrable. (Dayton v. Connah, 18 How. Pr., 326 ; White v. Joy, 3 Kern., 86; Chautauque Co. Bank v. White, 2 Seld., 236; Bangs v. McIntosh, 23 Barb., 591 ; Myers v. Machado, 6 Abbotts’ Pr., 198; Hulburt v. Young, 13 How. Pr., 414 ; Graham v. Machado, 6 Duer, 517 .)

III. It might be sufficient to state enough to show jurisdiction to sell, and allege taliter processum fuit that a lease was made. Nothing is alleged to have occurred intermediate the sale and lease, but in the interim a redemption notice is to be published. The lease is, by statute, conclusive evidence of the regularity of the sale, but not of the redemption notice. (Doughty v. Hope, 3 Denio, 603 ; 1 Comst., 79 ; Van Alstyne v. Erwine, 1 Kern., 331.)

IY. The lease might have been duly made, and yet the redemption notice be defective. Supposing the proceedings all regular to the lease. The lease is not to become absolute until a subsequent notice is given, the proof of service of such notice filed, and a certificate of compliance with the statute obtained. (Laws 1841, ch. 230, §§ 3, 4, 6, 7; Laws 1843, ch. 235, § 6, p. 335; Laws 1843, ch. 230, art. III, §§ 20, 21, 24, p. 327; Laws 1853, ch. 579, § 3, p. 1065; Curtis v. Follett, 15 Barb., 342 .)

The pleadings will be taken to be as strong as the facts will warrant. (Cruger v. Hudson R. R. R. Co., 2 Kern., 201.)

M. L. Townsend, for the defendant, respondent.

The answer sets up facts, which, being admitted by the demurrer, show a right of possession in defendant, viz.: 1st. A sale duly made in pursuance of the statute, by the Mayor, &c., for a tax duly imposed, to defendant’s grantof (prior to plaintiff’s seizin); 2d. Due execution and delivery of a lease on such sale pursuant to the statute, to defendant’s grantor (prior to the plaintiff’s seizin); 3d. “That

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defendant had at the time of the action and now has, a leasehold interest in the premises, and a right to possession of the same;” (Under this allegation alone, defendant might prove any facts which would show any leasehold interest, or any right to the possession); 4th. That Boss, (prior to plaintiff’s seizin), being in possession and having a leasehold interest for 98 years, leased the same to defendant’s assignor for 15 years. This gives defendant a title and a right of possession, prior to plaintiff’s seizin.

In this case, which is an action of ejectment to recover possession of a lot of land in 83d street, in'the City of Hew York, the defendant attempts to interpose a special answer or plea of title in himself, to the possession of the premises, by virtue of a lease for a term of years not yet expired, executed by the Mayor, Aldermen and Commonalty of the City of Hew York, upon a sale made by them for non-payment of taxes duly imposed on said lot; and which lease and term of years had come to him by assignment, and are now, and were, at the commencement of the action, owned by him. The main allegation in the answer states, that the premises “were duly sold in pursuance of the “ statute in such case made and provided by the Mayor, “Aldermen and Commonalty of the City of Hew York, to “ one Arthur Boss, for the term of twenty years, for the “non-payment of a certain tax duly imposed thereon, in “pursuance of the statute in such case made and pro- “ vided; and that'the said Mayor, Aldermen and Oommon- “ alty did, thereupon, in pursuance of the statute in such “ case made and provided, and on or about 27th April, “1855, duly execute, acknowledge and deliver to said “ Arthur Boss, in due form of law, a lease of said lots, Hos. “14 and 15, for the term of twenty years, then next ensu“ing.” Then follows an allegation of the assignment of the lease to the defendant, and that by virtue- thereof he possessed a leasehold interest in and to, and a right to the possession of, the lot described in the^lease, which is the same land mentioned in the complaint,. &c.

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A further attempted defense is set up, stating, in substantially the same terms, a second sale and lease, by the Mayor, Aldermen and Commonalty, of the same premises, and a possession by the defendant, of a leasehold interest thereunder.

The plaintiff demurs to all that part of the answer, which sets up these pretended defenses, on the ground that they constitute neither a counterclaim nor a defense.

We think that the above allegations, contained in the answer, show no valid, title to the possession of the premises. It is not affirmatively, and in direct terms, stated in them, that a tax had been imposed upon the land in question by the proper authorities, and in the proper manner, setting all forth specifically ; nor is it stated that the proof of non-payment of the tax, (which is a preliminary required by the statute,) had been made to the officer designated in that behalf by the statute; all of which allegations are necessary to show a right in the Mayor, Aider-men and Commonalty to sell the land and .give a lease of it; and there being, therefore, no right to sell or to lease shown to exist in the Mayor, Aldermen and Commonalty, in this particular case, the lease affords no protection or justification to the defendant.

The order made at Special Term must, therefore, be reversed, the costs of the appeal to abide the event of the suit; and the defendant, upon payment of the costs of the demurrer at the Special Term, to have leave to serve an amended answer in ten days after service upon his attorney, of the order to be entered upon this decision.

neither of the defenses demurred to states when, by whom, for what cause, or under what statute, the alleged tax was “imposed” on the premises in question; neither does it state the amount of the tax imposed, nor expressly aver that any part of it was unpaid at the time of the alleged sale of the said premises.

That such a plea was bad on general demurrer, prior to the Code, is settled by the cases of Frary v. Dakin, ( 7

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Johns., 75 ,) Morgan v. Dyer, (10 Id., 161 ,) Wyman v. Mitchell, ( 1 Cow. 316 ,) Dakin v. Hudson, (6 Id., 220,) Bowman v. Russ, (Id., 234,) Sheldon v. Hopkins, ( 7 Wend., 435 ,) and City of Buffalo v. Holloway, (7 N. Y. R., 493.)

It is as essential to the sufficiency of an answer under the Code, stating new matter as a defense, as to that of a special plea, prior to the Code, that it state facts which, if true, will bar the action, or so much of it as is attempted to be answered.

The Code has not introduced any new definition of the word fact, nor any new test of the sufficiency of new matter which will constitute a defense.'

Section 161 of the Code does not aid the answers in question. They do not allege, nor purport to allege, a judgment or other determination of a designated Court, or officer of special jurisdiction. If the imposition of a tax upon real property under any statute of this State, for any cause, can, by any liberal interpretation of language, be regarded as a determination of an officer or officers of special jurisdiction within the meaning of this section, the answer does not attempt to state by whom the tax was imposed.

The parts of the answer demurred to are, in brief, that the defendant has a right to the possession of the premises in question, as assignee of a lease, of a specified date, for a term of years, executed by the Mayor, &c., in pursuance of a sale, by them duly made on a day named, of the premises in question, for the non-payment of a tax duly imposed thereon.

Such an answer is insufficient; it states none of the facts relied upon to show that a tax was duly imposed on the property, for the non-payment of which, the Mayor, &c., of New York might lawfully sell it; nor, if one had been imposed, does it aver the further facts essential to create authority in that body to advertise and sell.

The order appealed from must be reversed, and judgment ordered for the plaintiff; but with liberty to the defendant to amend his answer, on payment of the costs of

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the demurrers, prior to the appeal; the plaintiff’s costs of the appeal to abide the event.

Cases cited

Wyman v. Mitchell 1 Cow. 316 N.Y. Sup. Ct. p. 588