
    Frederica H. Elwood and Walter W. Powers and Victoria Powers, as Trustees for Dorothy Elwood, Plaintiffs, v. Hyman Goldman, Defendant.
    Fourth Department,
    November 12, 1913.
    Vendor and purchaser — contract to convey lands construed—payment of city taxes.
    Where a contract for the purchase of real property provides that the vendor will furnish at his own expense abstracts of title and tax searches to the date of transfer, showing “good title and premises free and clear of all hens and incumbrances, ” and that on the delivery of the deed on June 1, 1910, “all taxes, insurance premiums and water rates are to be adjusted to and including May 31, 1910,” and the charter of the city in which the property is located provides that city taxes levied on the first day of April each year shall be liens upon the property taxed from the time of the levying thereof, a city tax levied on the property conveyed on the first day of April was a lien thereon at the time of the making of the contract, and should be paid by the vendor.
    Motion by the defendant, Hyman Goldman, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiffs rendered by direction of the court after a trial at the Monroe Trial Term in June, 1913.
    
      George S. McMillan, for the plaintiffs.
    
      Percival D. Oviatt and Louis E. Lazarus, for the defendant.
   Lambert, J.:

The action sounds in contract. Plaintiffs were the owners of the Elwood office building in the city of Bochester. On May 9, 1912, the defendant made a formal written offer to purchase same, which offer was accepted in writing by the plaintiffs. The contract thus effected affords the basis for the litigation.

Two clauses only of the contract are pertinent to the matters involved. Such read as follows: “ If this offer is accepted, you are to furnish at your own expense, warranty deed of said premises and abstracts of and tax searches to date of transfer, showing good title and premises free and clear of all liens and incumbrances,” and “If offer is accepted, possession of said premises is to be given to me on delivery of deed on said June 1st, 1912, at which time all taxes, insurance premiums and water rates are to be adjusted to and including May 31st, 1912.”

Conveyance of such premises was made on June first, at which time there came up for discussion a city tax thereon amounting to the sum of $2,732.10. Plaintiffs made claim that the contract required that such tax be prorated between vendor and vendee in proportion with the unexpired period of the fiscal year. Defendant insisted that the contract required vendors to pay the entire tax.

Eventually plaintiffs paid same under an arrangement that such payment should not affect any of the rights of the parties. This action was then brought to recover seven-twelfths of such tax, representing the' seven months unexpired of the fiscal year 1912. The trial court has directed a verdict for the plaintiffs and ordered the exceptions heard here in the first instance.

By section 109 of chapter 755 of the Laws of 1907 (Charter of the city of Rochester) the common council of such city is required to levy city taxes on the first day of April, each year, or within five days thereafter. By section 199 of such act such taxes are expressly declared to be liens upon the property taxed from the time of the levying thereof. This tax was, therefore, a lien at the time of the making of this contract.

No other construction of the 1st clause above quoted seems permissible than that these parties understood and provided therein that this title should be transferred free from all liens and incumbrances. That tax liens were intended to be included in such class is equally plain in the reference to tax searches as well as abstracts of title.

This 1st clause then requires vendors to pay this city tax for 1912 unless the scope of the 1st clause is reduced and cut down by the provisions last above quoted.

A construction of the 2d clause in derogation of the 1st should not be adopted unless clearly required. The familiar rule of construction requiring that effect be given to every portion of the instrument is to be observed as well as that equally familiar rule that different provisions are to be read into a consistent whole, if possible.

It is true that controversy has arisen in this action in connection with but a single tax. However, that fact should not overshadow the clear intent of this contract to embrace within its provisions all taxes. A construction is to be adopted which provides equally for county and State taxes with the city taxes here in dispute. As to the city tax, there is a definite statutory declaration of the commencement of the lien thereof. As to "the State and county taxes, there is no such provision of statute. In the absence of such statutory declaration of the commencement of the lien of a tax, the ordinary rule is that such lien attaches only after the tax has been extended upon the roll and levied, so that a particular sum has become a charge upon a particular parcel of land. (Lathers v. Keogh, 109 N. Y. 583; Cooley Taxn. [3d ed.] 872.)

Such taxes clearly would not be embraced within the clause first above quoted and for the sole reason that such were not liens or incumbrances. A similar situation may have existed with reference to other taxes, such as school and local improvement taxes, then also assessed, but not ripened into liens.

As we read the provision of such contract last above quoted, in its reference to taxes, it was designed to provide for such taxes, assessed, but not liens. (Equitable Life Assurance Society v. Toplitz, 69 Misc. Rep. 457.)

Such a construction fully recognizes the two provisions, and without taking from either any of its clearly expressed intent. It may be that the word “adjusted” in the second-quoted clause of the contract is to be given a significance such as is urged by plaintiffs with reference to such taxes as were not liens. That question, however, is not presented, inasmuch as the tax here involved was a lien and was distinctly provided for by the 1st clause.

The foregoing reasons lead to the sustaining of defendant’s exception to the direction of a verdict, and a new trial should be granted, with costs to the defendant to abide the event.

All concurred. .

Defendant’s exceptions sustained and motion for new trial granted, with costs to defendant to abide event.  