Hyperlawhypertext legal database Smith v. Walker 56 N.Y. Super. Ct. 391

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Smith v. Walker

56 N.Y. Super. Ct. 391 24 Jones & S. 391 Court N.Y. Super. Ct. Decision date 1889-01-07 English

Decision Majority — By the Court.—Ingraham J. · Concurring — Freedman, J., ( concurring).

Contents

Majority

p. 391
MORRIS H. SMITH, Appellant v. JOHN WALKER, Receiver and MAGDALENA BUHLER, Impleaded, etc., Respondents.

Headnote

Tax lease, notice to redeem must be given after delivery to bar owner—Tax sale, insufficiency of description in—Franklin v. Pearsall, 53 Super. Gt. 271, the court disclaims having decided in that case that the lease in question there, did not pass any interest on the second ground stated in the head note thereto.
A notice to redeem from a tax sale given before the delivery of the lease, is ineffectual to bar the owner of his rights in the premises; the owner’s
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rights to pay the taxes and redeem the land is wholly ineffectual thereby—Per Ingbaham, J.
In the pamphlet for a tax sale, something else is necessary than a number I of a lot on a map, especially, where by the appearance of the map itself the exact boundary of the property is uncertain—Per Ingbaham, J. Fbeedman, J. concurring.
In Franklin v. Pearsall, 53 Super. Ot. 271, it was not intended to decide that a tax warrant was void unless signed by the Mayor or Recorder.— Per Ingbaham, J., Fbeedman, J. concurring.
Before Freedman and Ingraham, JJ.
Decided January 7, 1889.
Appeal from judgment in favor of defendant entered on a verdict of a jury by direction of the court.
The pamphlet for the tax sale in question in this action contained nine columns.—The first was headed “Number.”—The second “On or between what streets or avenues.”—The third “Between what streets or avenues.”—The fourth “Description.”—The fifth “To whom assessed.”—The sixth “ Block number.”—The seventh “ Ward map number.”—The eighth and ninth had but one heading, viz.: “ Amount of taxes.”
On the tax sale a lot described in said pamphlet by the following entries in the columns respectively, to. wit: In the first column the figures “1573.” In the second column the figures “ 123rd—124th.” In the third column the figures and words “ 1st and 2nd Avenues.” In the fourth column nothing. In the fifth column the letters and words “J. W. Walkhill.” In the sixth column the figures “ 239.” In the seventh column the figures “ 10.” In the eighth column nothing. In the ninth column the figures “ 168,” on a line with the other entries with the figures 1876 above, was sold to the plaintiff, and thereafter the mayor, aider-man and commonalty executed and delivered to plaintiff a lease of a certain lot, describing it by metes and bounds, and ending with “ said lot being lot 10 in Block
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239 on the Tax Receiver’s map of the 12th ward of said city, and also known by the street number 321.”
By the appearance of the map referred to in the seventh column of said pamphlet and in said lease, the exact bounds of lot 10 thereon are uncertain.
This action is brought to recover the possession of the premises included within the- metes and bounds given in the description in the lease.
Other matters appear in the opinion.
John Townshend, attorney and of counsel for appellant, argued:—
I. The party against whom a verdict is ordered is entitled to have every doubtful fact found in his favor. Colgraves v. N. Y. R. R., 20 N. Y. 494 .
II. The court will consider, therefore, that plaintiff proved his case, and that the only objections to his recovery were the four enumerated by defendants.
III. The first ground for verdict for defendants, namely, that the affidavit of the deputy tax commissioner does not conform to the statute' was not well taken. (1) The objection is too general; it does not, as it should, state in what particular the affidavit was defective. (2) Literal compliance with the statute is not required. Substantial compliance is sufficient. Parish v. Golden, 35 N. Y. 462 . “The verification of the assessment roll is to be regarded as directory rather than as jurisdictional ” (p. 467). Buffalo Bank v. Super, of Erie, 48 N. Y. 93 : “Informalities of the assessors’ affidavit do not render the assessment void” (p. 100). (3) But the affidavit complies with the statute. The statute requires each deputy tax commissioner to furnish under oath a detailed statement of all the taxable property in his district ; that said deputies have personally examined each and every house, etc., “ giving the street and ward map number” of such real estate embraced within said districts, together with the name of the owner or occupant if known. Laws 1859, ch. 302, § 7. (4) The alleged
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defect in the affidavit is that it states deponent has given the “ ward and block numbers ” instead of saying he has given the “ street and ward map numbers.” There are many lots that have no street numbers. (5) The assessment roll was in evidence and showed that in fact the deputy had given the street number, and that the block was between First and Second avenues and One Hundred and Twenty-third and One Hundred and Twenty-fourth streets and the. ward map wa.s in evidence showing this lot 10 was on One Hundred and Twenty-third street. So that if the affidavit is defective, it appears that in fact the deputy had done his full duty. The affidavit and. assessment roll are to be construed together. In passing upon the sufficiency of a description the court said: “If they had- referred to the map and mentioned lots as there laid down that would have answered.” Sharp v. Johnson, 4 Hill, 103 .
IV. The second objection—namely, that the tax warrant was not signed by the mayor or recorder, was not' well taken. (1) In support of this objection a decision at a general term of this court is cited, Franklin v. Pearsall, 53 Super. Ct. 271. On reference to that case it will be observed that no opinion was written at general term, it was decided upon the opinion of the referee, and he stated seven grounds for his decision; among them that the warrant to the receiver of taxes was not signed by the mayor and recorder. (2) The objection to the warrant, it is submitted, was not well taken, and the court could not have rested its decision upon that point. An examination of the statutes will show this. Laws 1843. ch. 230, art. 11, § 2. Laws 1857, ch. 590. Laws 1858, ch. 321, § 2. Laws 1870, ch. 137, 5 Apl. Laws 1870, ch. 190,12 Apl. Laws 1872, ch. 860. Laws 1873, ch. 335, § 4. Laws 1873, ch. 757. Laws 1873, ch. 763, § 1. Laws 1874, ch. 304, § 1. Laws 1874, ch. 515, § 1.
V. The third objection, namely, that the pamphlet did not give a sufficient description of the property or
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of the ownership of the property, was not well taken. (1) The pamphlet referred to is a catalogue of the property advertised to be sold. Laws 1871, ch. 381, § 3. (2) The pamphlet did give a detailed statement of the property to be sold by stating that it was situated between One Hundred and Twenty-third and One Hundred and Twenty-fourth streets, and between First and Second avenues; that it was ward map number 10, in block 239, It also stated the property was assessed to J. W. Walk-hill. This was such a description ,as informed every one of the location of the property. Detailed statement of the property to be sold, does not mean a minute or particular description of each piece of property to be sold, but a detail of the lots to be sold. (3) The obvious intent of the statute is to : 1st. Enable an owner to know whether or not his property is advertised, and, 2d. To enable intended purchasers to know what is the property to be sold. This is done with sufficient certainty by stating between what streets and avenues the property is situated and upon what block of the ward map the property is shown, and the number of the lot upon said map. Then in addition to this it is stated to whom the property is assessed. This may be surplusage but it is really within the contemplation of the statute a statement of the ownership of the property. (4) The word owner does not mean the technical owner of the title but the person in whose name as owner or occupant the land is assessed. People v. Cady, 105 N. Y. 299 .
YI. The fourth objection, namely: That in each of the records where the statute required the ownership to be set forth, it was inaccurately set forth in naming Walkhill as the owner, where there is proof that Meagher was the owner, was not well taken. Laws 1867, ch. 410, § 5. Haight v. The Mayor, 99 N. Y. 280 -2. .
Norwood & Coggeshall, attorneys, for respondent Walker, Gustams U. Hawson, attorney for respondent Buhler, and Carlisle Norwood of counsel, argued :—
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I. The warrant required by law to be annexed to the assessment roll for the tax of 1876, upon the premises in question, commanding the Receiver of taxes to collect the same, was defective in that the warrant was not signed by the Mayor or Recorder. Laws 1843, chap. 230, art. II., § 2; 1 R. S., Banks’ 6 ed., chap. 13, art. 3, p. 1001, § 61. Franklin v. Pearsall, 53 Super. Ct. 271, 274.
II. The affidavit of the deputy tax commissioner attached to the assessment roll, stated: “ That in the assessment rolls is set down and given the ward and block numbers of such real estate within the said district.” .... The defect was in the failure to state first, that in the assessment roll was set down and given the street number; and second, to state that in the assessment roll was set down the ward map number. The mere “Ward Number” would be the number of the ward, which was the 12th ward ; but the ward map number would be the number of the lot in question put on the map of that ward. The complaint herein stating the same to have been number 10. Sec. 7 of chapter 302 of Laws 1859, Shattuck v. Bascom, 105 N. Y. 39 , 45, and cases there cited. Laws 1859, chap. 302, § 7.
III. The' plaintiff wholly failed to prove that the property described in the complaint by metes and bounds, and further described as lot 10, in block 239, was identical with the property described in the lease.
IV. The description of the property, contained in the pamphlet of the sales for taxes of 1876 was insufficient. Sec. 3, of chap. 381 of Laws of 1871. The entries relating to the premises in question were as follows. The column headed: “ On or between what streets or avenues,” was filled in with the words, “ 123d and 124th.” The column headed: “ Between what streets or avenues ” was filled in with the words “ 1st and 2d avenues.” The column headed, “ Description ” was a blank. It was proved that the column headed, “Description” is supposed to designate whether it is a house and lot or
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merely a lot. .It is meant for some further description of the property. As we have shown ante there were no ditto marks even continued down opposite this entry to describe the property. The column headed “ to. whom assessed” was filled in with “J. W. Walkhill.” The block number was stated to be “ 239,” and the Ward map number “ 10.” The page in pamphlet was headed “ Twelfth Ward.” This description was clearly insuEcient. Lalor v. Mayor of New York, 12 Daly, 235 , 239; Hubbell v. Weldon, Lalor's Supp. to Hill & Denio, 139, 144; Ronkendorff v. Taylor’s Lessee, 4 Peters, 349, 362; Blackwell on Tax Titles, 4 ed., p. *226; Ib. § 81, and cases cited.
YI. Service of the notice to redeem required by § 13 of chap. 381, Laws 1871, was made upon the alleged owner and occupant before the delivery of the lease to the plaintiff. This is a fatal defect. Laws 1871, chap. 381, §§ 13, 21; Donahue v. O’Conor. 45 Super. 278, 302 ; Paillet v. Young, 4 Sand. 58 ; Hand v. Ballou, 21 N. Y. 541 ; § 13 of chap. 381 of Laws 1871.

This is an action of ejectment based upon a lease given by the city "and county of New York on a sale for non-payment of taxes.

The lease is dated on the 26th day of December 1883. The property was sold December 24, 1881, and from the record of the finance department, introduced in evidence, it is stated that the lease was delivered November 15, 1884.

There is no other evidence as to the time when the lease to plaintiff was actually delivered. There is evidence that this delivery refers to the date of the confirmation of the lease by the comptroller’s certificate of being satisfied that there had been no redemption and that notice had been served on the owner.

The notice to redeem was served on the 14th of February, 1884, and there is no evidence to show that the

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lease in question was actually delivered to plaintiff prior to that time.

It was held in the case of Donahue v. O’Conor, 45 Super. Ct. Rep. 301, that the service of the notice before the delivery of the lease, was premature and ineffective : that the title of the purchaser at the sale is only complete after service of the notice required by section 13, and proof thereof has been made and filed as provided in section 15, and that as no such notice had been served on the owner of the property, he was not barred of his right in and to the premises, and his right to pay the taxes and redeem the land was wholly unaffected.

It is clear that the land sold was not conveyed to the purchaser until the execution and delivery of the lease, and until the lease was actually delivered, the conveyance was not complete, and under the decision before cited, the notice to redeem, to be effectual, must be served after the conveyance, on the person in the actual occupancy of the premises, and upon the person owning the property so. conveyed.

We are also of the opinion that the property was not sufficiently described in the pamphlet containing the catalogue of the property advertised to be sold. The pamphlet is to contain a particular and detailed description of the property to be sold. Something else is necessary than a mere number on a map which describes the bounds of a particular piece of property, but which contains no other description of the pioperty. This is especially true when by the appearance of the map itself the exact bounds of the property are uncertain. In the pamphlet as offered in evidence, there is a column left which is headed “ Description.” In that column, however, no entries were made, and whether there was a building of any kind upon the property was not disclosed.

For these reasons we think the plaintiff failed to make out a cause of action, and the judgment should be affirmed with costs.

Concurrence

p. 399
In reference to the case of Frankland v. Pearsall, 53 Super. Ct. Rep. 271, we wish to state that it was not intended to decide that a tax warrant was void unless signed by the mayor or recorder. The judgment in that case was affirmed on the opinion of the referee by a majority of the court. That opinion does not expressly hold that, under the statute, a tax warrant was void unless signed by the mayor or recorder, and the decision was not put upon that ground by the referee.

That point was not pressed upon the attention of the court, nor was it considered in the decision of the case.

I agree to - affirm on the- second ground stated in the foregoing opinion: I also concur in the remarks made concerning the decision of the case of Frankland v. Pearsall, supra.

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