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Dorgeloh v. Bassford

50 N.Y. Super. Ct. 450 18 Jones & S. 450 Court N.Y. Super. Ct. Decision date 1884-06-26 English

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p. 450
HENRY DORGELOH v. SARAH E. BASSFORD.
Decided June 26, 1884.

Headnote

Taxes and assessments—lien of, when extinguished 5y lapse of time.
The right of the corporation of the city of New York, to enforce an assessment, and the lien thereof, exists for twenty years after the confirmation of the same. A presumption of payment then attaches, which can be rebutted only in cine of two ways: first, by proof of payment of some part of the claim; or, second, by a written acknowledgment of the indebtedness, or of the right of action for the same, in this case more than forty years had elapsed since the assessment was confirmed, and it is conceded that neither payment of any part thereof, nor acknowledgment of the same, was ever made.
Reid, that it must be conclusively presumed that the assessment was paid, and consequently was not a lien upon the property conveyed.
^Before Sedgwick, Ch. J., Trtiax and Ingraham, JJ.
Submission of controversy to the general term.
Prior to this submission the-defendant had conveyed to the plaintiff certain real estate in the city bf New York, arid the deed contained a covenant against assessments and incumbrances. Plaintiff claimed that an assessment of
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forty years’ standing remained a lien upon the premises, and that defendant was liable for the payment of the same by reason of said covenant.
Marshall P. Stafford, for plaintiff.
The outstanding uncanceled assessment *is a lien upon the property. So long as the official records fail to show that the assessment is paid and canceled it constitutes a cloud upon the title* and a purchaser is entitled to have it removed before he can be compelled to take title.
Lapse of time raises no presumption that a tax or assessment has been paid. Laying taxes and assessments is an act of sovereignty (McColloch v. State of Md., 4 Wheat. 316 ), and no presumption whatever as to their payment arises, for presumptions are never indulged against the sovereign power. The assessment is not affected by any statute of limitations. No statute of limitations expressly relating to rights under taxes and assessments has ever been passed in this state. Hence, they are never outlawed and never cease to be a lien and incumbrance upon property upon which they are assessed.
Thomas B. Smith, for defendant.
This assessment constitutes no existing lien against said premises, was barred by time twenty-four years ago, and therefore defendant is not liable for the payment of the same under her covenant against incumbrances (Fisher v. Mayor, 67 N. Y. 73 ). It is conceded that defendant has not revived the liability by payment on account or acknowledgment as provided by statute.

The defendant conveyed to plaintiff certain property on Avenue D, in the city of New York, April 5. 1884, and in such conveyance covenanted against assessments and other incumbrances. It appears from a record of confirmed assessments in the office of the Bureau of Arrears of the city of New York, that in the year 1840 an assessment on said property was confirmed for filling sunken lots, amounting to $183.98, and this submission is to

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determine whether such assessment was, at the time of said conveyance, an incumbrance on said property.

It appears that no payment or written acknowledgment of the liability of the owner of the property for such assesment has ever been made.

In the case of Fisher v. Mayor ( 67 N. Y. 78 ), it was held that the right of the mayor, etc., of New York to enforce an assessment, existed for twenty years after it was confirmed, and that after twenty years the presumption of payment attaches, which could be rebutted only in one of two ways. First, by proof of actual payment of part of the claim ; or second, by a written acknowledgment of the indebtedness or of the right of action.

In this case it appears that néither of these facts exist.

The only record of this assessment is that it was confirmed September 24, 1840, and no proceedings have ever been taken by the corporation of New York to enforce the assessment. We can see no distinction between the case of Fisher v. Mayor (supra), and it is therefore controlling on us; and as it is more than forty years since the assessment was confirmed, it must be conclusively presumed that the assessment was paid, and consequently it was not at the time of the conveyance by plaintiff to defendant a lien on the property conveyed.

Defendant is therefore entitled to judgment. As costs are expressly waived by the parties, it should be without costs.

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