p. 181Appeal from final order denying application for mandamus.
Thomas JMJ. Wyatt, attorney, and George W. Stephens of counsel, for appellant, argued:—
, I. The lease to the purchaser at the tax sale was void. It was conceded upon the trial, and found by the decision of the court, that the only notice to redeem ever published was insufficient and void. Its defect consisted in not fixing a day certain within which the redemption should be made. The lease was void under the authority of the following cases: Donahue v. O’Conor, 45 Super. Ct. 278; Bensel v. Gray, 44 Ib. 375; Willis v. Gehlert, 34 Hun, 566 ; Townshend v. Cady, 51 Super. Ct. 318; 50 Ib. 399.II. The amount tendered was sufficient.III. The sale became void ab initio in consequence of the defect in the redemption notice.The publication of a proper redemption notice is one of the successive steps by which the ownership of property is divested, and if it becomes impossible by lapse of time to publish such a notice, the sale falls through completely. People v. Mayor, 10 Wend. 395 ; Doughty v. Hope, 3 Denio, 594 .IV. The sale having been made for an amount in excess of that allowed by law was void.Henry JR. Beelcman, counsel to the corporation, attorney, and George S. Coleman and Woolsey Carmalt, of counsel, for respondent, argued :—
I. The sale was valid. Only two defects are claimed by the relator, (a) That the sale was for an excessive amount, (b) That the notice to redeem was invalid. It is expressly held in Clarke v. Mayor, 13 N. Y. S. R. 290, decided by this court, that a sale under the present law is not void, because an excessive amount of interest is charged.On the day of the sale a bid is made, and, being the
p. 182lowest, is accepted. The sum which the bidder agrees to advance, in consideration of the certificate and subsequent lease is, by the terms of the law and the advertisement of sale, the tax, with the legal interest and costs of advertising. The amount of the tax is necessarily inserted in the advertisement, the interest is, until the date of the sale, an unascertained quantity, ascertainable only when a sale takes place.The bid is, therefore, without a taint of irregularity, and the subsequent erroneous computation (assuming it to be erroneous) is a simple irregularity, which does not impair the validity of the transactions of the day of sale, to wit, the bid and its acceptance.The sale was not void by reason of the invalidity of the notice to redeem. It is now firmly established by a series of decisions presenting many phases, that under the act of 1871, an invalidity in any of the successive steps by which the defaulting tax-payer is deprived of the possession of his property, does not have a retroactive effect, so as to impair the validity of the previous regular proceedings. Peo. ex rel. Haddock v. Cady, 41 Hun, 539 ; Clarke v. Mayor (supra); Lockwood v. Cady, and Townshend v. Cady (Unreported. Decided by Judge Freedmax at Special Term of this court, January 9, 1888). The plaintiff below cited Doughty v. Hope, 3 Denio, 594 , in favor of the contention that any invalidity was fatal to the whole proceeding. That case arose upon an earlier law, which required the notice to redeem to be published six months prior to the expiration of two years after the sale. This special provision was held to be mandatory, and time to be of the essence of the transaction. The court, however, carefully limited the effect of its decision in the opinion. The act of 1871 was clearly drawn by the light of this decision, and in it no language is employed which either expressly or by implication contains a prohibition against taking any step in the series after the minimum time fixed by the act. Under its provisions time ceases to be “ of the
p. 183essence,” and consequently if the notice to redeem is irregular, it is, to use the language of the court below in this case, “ as if no notice to redeem had ever been given.”Such a construction is not prejudicial to the owner, his time to redeem is extended until all steps to divest have been legally taken, and his possession cannot be disturbed until the last step has been legally completed. Donahue v. O’Conor, 45 Super. Ct. 278; Lockwood v. Gehlert, Barrett, N. Y. Daily Reg., Apr. 2, 1888, cited as Lockwood v. Ehbert.II. It is not contended that the notice to redeem or any of the proceedings subsequent thereto were valid. The contrary was decided as to this very notice in Donahue v. O’Conor, 45 Super. Ct. 278. This did not, however invalidate the sale, but merely gave a right to redeem. Clarke v. Mayor, 13 N. Y. S. R. 290.The relator obtained an alternative writ of mandamus requiring the respondent as clerk of arrears either to accept in payment of the taxes for the years 1869 and 1870, on premises owned by the relator, the amount of such taxes with interest thereon at the rate of seven per cent, per annum, to cancel said taxes in the proper books, and to deliver receipted bills for the same, or to show cause to the contrary.
The respondent, in opposition, showed that the premises had been sold for non-payment of such taxes on March 9, 1874, and that a lease had been delivered to the purchaser.
The issues were brought on for trial before the special term and a trial by jury was waived. Upon such trial it was held that the sale was valid and that upon the whole case the relator was not entitled to the relief prayed for in the writ, although the notice to redeem required by law to be published before the execution and delivery of the lease, was insufficient and void.
p. 184From the final order entered to this effect the present appeal is taken. Under the decision of Clarke
v. The Mayor, etc., 55
Super. Ct. 259, the sale was not void for any of the reasons urged by the relator.
On the other hand the insufficiency and invalidity of the notice to redeem has been determined in Donahue v. O’Conor, 45 Super Ct. 278, and this is conceded by the counsel for the respondent. The case therefore stands as if no notice to redeem had ever been given, but this circumstance, under the doctrine of Clarke v. The Mayor (supra), does not render the sale invalid. The relator therefore was not entitled to the relief prayed for. Upon the present appeal, however, the point was raised that the amount tendered to the clerk of arrears was sufficient not only for the payment of the taxes with interest as required by statute, but also for the redemption of the premises from the sale, and that consequently redemption should have been decreed. This is controverted by the counsel for the respondent. The determination of the point involves the construction of sections 941 and 943 of the consolidation act in view of the policy of the whole act as regards redemption, and if it were necessary to make such determination, the question involved would be an intricate and serious one. But I do not think that it is necessary. The point was not raised below and should not be entered on appeal for the first time against the objection of the respondent.
The application of the relator was that the respondent should be compelled to receive payment and to deliver receipted bills of the taxes, etc. That application is somewhat inconsistent with and antagonistic to an application to redeem. The first denies and ignores the rights of the purchaser, while the second respects them. The one requires a tender of money to the corporation of the city of New York in payment of taxes, the other a tender of money “ to the use of the purchaser.” This being so, the relator should have amended her applica
p. 185tion, if that could have been done, so as to be in a position to claim redemption. Such amendment was not applied for, nor was the court below requested in any way to order redemption.
In no aspect of the case therefore can it be held that there was error in refusing redemption.
The order should be affirmed with costs.
Sedgwick, Ch J.,and Truax,J., concurred.