Adriance v. McCafferty — 25 N.Y. Super. Ct. 153

Majority

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Margaret E. Adriance, executrix, &c. plaintiff and respondent, vs. Bernard McCafferty et al. defendants and appellants.

Headnote

1. Sales for taxes and assessments, in the city of New York, are a mode of transferring title by operation of law, in the nature of a forfeiture; and all the conditions of such sale required by law being conditions precedent, must be literally followed.

2. A notice, published by the assessors, requiring all persons opposed to an assessment to present their objections, in writing, to the assessm-s, instead of to the chairman of the board, as required by the statute, is not a compliance with it but is irregular, insufficient and void.

3. The publication of a notice in papers, after the period for which they were appointed corporation papers, according to law, has expired, without any renewal of the appointment, is void.

4. To render sales for assessments Valid and binding, the city corporation should, at the end of each and every year, designate, by ordinance, the proper newspapers for the publication of notices. Per McCtoN, J.

(Before Robertson, Garvin and McCunn, JJ.)

Heard February 9, 1864;

decided April 23, 1864.

This was an action of ejectment by the plaintiff to recover possession of a lot of ground on the east side of Fourth avenue, between Twenty-seventh and Twenty-eighth streets, in the city of Hew York. The complaint was in the usual form, and simply set up possession from prior grantors. The defendant’s answer set up the purchase of said lot by one John L. Brouwer, under a corporation sale for assessments, made the 18th of July, 1862 ; that, under such purchase, so made by said Brouwer, he obtained the usual lease from the corporation in such cases, and that on the 21st day of December, 1855, the said Brouwer duly assigned said lease to the defendant, Mc-Cafferty, who immediately took possession of the premises.

On the trial, the plaintiff simply proved title and rested. The defendant then offered in evidence the corporation ordinance under which the assessment was made, the appointment of assessors and a notice to owners, &c. The defendant further proved and offered in evidence the ordinance of the common council, approved July 7, 1848, designating the Hew York

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Evening Post and Commercial Advertiser as corporation papers for one year from that date, and also proved the publication in said papers for ten consecutive days, from July 26, 1849, of the following notice i

“ Corporation Notice.—Public notice is hereby given to the owner or owners, occupant or occupants of all houses and lots, improved or unimproved lands affected thereby, that the following assessments have been completed by the assessors, and are lodged in the office of the bureau of assessments, for examination by all persons interested, viz : for regulating and setting curb and gutter stones in the Fourth avenue, from 28 th to 38th streets, and flagging a space four feet wide through the side walks of the same. The limits embraced by such assessment include all the several houses and lots of ground, vacant lots, pieces and parcels of land, situated on both sides of Fourth avenue, between 28th and 38th streets on the northerly side of 28th street, between Lexington and Madison avenues on both sides of 29th, 30th, 31st, 32d, 33d, 34th, 35 th, 36 th and 37th streets, between Lexington and Madison avenues, and on the southerly side of 38th street, between Lexington and Madison avenues. All persons whose interests are affected by the above named assessments, and who are opposed to the same, or either of them, are requested to present their objections in writing to the undersigned, at their office, within 30 days from the date of this notice. Samuel H. DeMott,

Francis Eicholson,

William Wells,

Assessors.

Office Bureau of Assessments, Street Department, July 26th, 1849.”

The plaintiff’s counsel objected to the notice as not being in accordance with the statute, Which requires the objections to be presented not to the board of assessors, but to the chairman of the hoard ; and that said notice was not, as required by law, published in the corporation papers, the year for which the Evening Post and Commercial Advertiser were appointed having expired, and no further appointment of said papers having been made. The judge who tried the case sustained

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the objection on the first ground, and charged the jury accordingly, who found a verdict for the plaintiff, with §500 damages. Judgment having been entered upon the verdict, the defendants appealed.

Schell, Slosson & Hutchins, for the appellants.

Adriance & Vanderpoel, for the respondent.

By the Court,

I fully concur in the rúling of the judge, at the trial. My view of the case is that both of the objections taken by the plaintiff to the introduction of the notice, are valid objections, and go to defeat the defendant’s entire case.

Where a statute, in effect, strips an individual of his property or title, or which in any way affects the same, its requirements must be strictly complied with to enable parties purchasing to acquire a title. Moreover, the requirements of the statute are the very conditions upon which the owner is divested of his title and property ; and it does not lie with the court to consider whether the statute was reasonable, or whether the notice in this case nearly complied with the act ; but whether the provisions of the statute have been literally pursued, and strictly complied with. The two cases, (Culver v. Hayden, 1 Ver. R. 359, and cases therein cited; Spear v. Ditty, 9 id. R. 282,) cited in the plaintiff’s points establish this view.

The requisitions of the law are the substantial parts of the title, and cannot in the slightest degree he dispensed with. Sales of property, similar to the one in question, are invariably • attended with great hardships to the owners of such lands, and purchasers at such sales, purchase therefor' at their peril. They calculate on great profits from small investments, and it behooves them to see that the proceedings, under which they claim title, have been strictly complied with.

These sales for taxes and assessments, are a mode of transferring title by operation of law, without the consent or sane

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tion of the owner, and are in the nature of a forfeiture, and all the conditions being conditions precedent must be literally-, followed.

The authorities cited by the defendant do not apply to this case.

In my view, the form of the notice did not comply with the language of the statute, and was clearly irregular and insufficient, and consequently void. I am also of opinion, that to make these sales valid, and binding on the parties against whom they are intended to operate, the corporation should, at the end of each and every year, designate by ordinance the proper newspapers for such publications.

Judgment affirmed.