
    BUFFALO LOAN, TRUST & SAFE DEPOSIT CO. v. DEPEW MFG. CO. et al.
    (Erie County Court.
    March 7, 1910.)
    1. Taxation (§ 693)—Sale—Validity—Burden oe Showing Validity.
    The right of taxation should be preserved in all lawful ways, and the burden is upon one seeking to foreclose a mortgage on property sold for taxes to show the invalidity of the tax sale.
    [Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1388; Dec. Dig. § 693.]
    2. Taxation (§ 615)—Sale—Compliance with Statutes—Necessity.
    To make a tax sale valid, the statutory requirements in levying and assessing the taxes and making the sale must be substantially followed.
    [Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1264; Dec. Dig. § 615.]
    3. Taxation (§ 433)—Assessment—Posting Notice—Evidence.
    Affidavits as to the posting and serving of notices and the completing and filing of assessment rolls, not duly filed when the assessment was made, but produced and filed later, were not admissible as evidence that such proceedings were taken in the assessment proceeding.
    [Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 747-753; Dec. Dig. § 433.]
    4. Municipal Corporations (§ 972)—Assessment of Taxes—Proceedings— Description of Land Assessed—“Tax District.”
    Village Law (Laws 1897, c. 414) § 104, provides that the village assessors shall prepare an assessment roll of the persons and property taxable in the village in the same manner and form as required by law for the preparation of a town assessment roll. Tax Law, § 2, subd. 1, provides* that “tax district” as used in the chapter means a political subdivision of a board of assessors authorized to assess property therein for state and county purposes. Section 29 provides that, realty of nonresidents of the tax district shall be designated in a separate part of the assessment roll, and, if it be part of a lot, such part must be identified by boundaries or otherwise, and, if a part of a tract, that part or the part not liable must be described. Held, that section 104 referred to Tax Law, §§ 21, 29, 30, regulating town assessments, so that villages were “tax districts” within section 2, subd. 1, and in assessing the property of nonresidents a description of the property as a certain number of acres situated on a certain side of a road named, within certain farms of larger acreage, was insufficient, so as to make a tax sale under such assessment void.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 2080; Dec. Dig. § 972.]
    5. Municipal Corporations (§ 972)—Assessment of Taxes—Seal—Necessity.
    The law requiring assessments of land by a village to be under the village seal is mandatory.
    [Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 972.]
    
      Suit by the Buffalo Loan, Trust & Safe Deposit Company, as trustee, against the Depew Manufacturing Company and others.
    Judgment for plaintiff.
    Messer & Groat, for plaintiff.
    S. Jay Ohart, for defendant Village of Depew.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   TAYLOR, J.

The plaintiff is foreclosing a trust mortgage executed by the defendant Depew Manufacturing Company to secure an issue of corporate bonds aggregating $100,000. Said company is a Maine corporation, with its principal office at Portland, Me. It has never had an office in the village of Depew, and none of its officers or directors have resided in that village. Issue is joined here by the village of Depew, defendant, which claims that it has levied and assessed taxes against the property involved for the years 1899 to 1909, inclusive, and that it has sold said premises for such taxes for the years 1899 to 1907, inclusive. The sales claimed to have been made for the first four years were for terms of 50 years each, and for the remaining 5 3rears the entire interest is claimed to have been sold. I enter upon consideration of this case with a feeling that our systems of taxation should be upheld in all lawful ways—that courts should not go out of their way to assist persons or corporations -in evading either the payment of taxes or the enforcement of such payment by any of the methods prescribed by law.

The plaintiff contends that certain formalities were not observed by the defendant village of Depew precedent and prerequisite to such sales, and the burden is upon the plaintiff to establish such contention. I believe that this burden has been sustained, for reasons that will appear later. The points raised by the plaintiff relative thereto, among others, are the following:

First. That the village of Depew in levying and assessing said taxes- and making said sales must strictly have observed all statutory requirements. With this contention I am inclined to agree, perhaps substituting the word “substantially” for the word “strictly,” in the belief that I am justified therein by the remarks of the court in Hilton v. Bender, 69 N. Y. 75; May v. Traphagen, 139 N. Y. 481, 34 N. E. 1064; Sanders v. Downs, 141 N. Y. 426, 36 N. E. 391.

The plaintiff contends, secondly, that the maps produced by the defendant village of Depew and the affidavits introduced in evidence as to posting and service of notices and completing and filing of assessment rolls not duly filed, but produced and filed later, were improperly admitted in evidence. With this view I agree in spite of the remarks made by Justice Hardin in Supervisors v. Betts, 53 Hun, 638, 6 N. Y. Supp. 934. The doctrine laid down in Martin v. Barbour (C. C.) 34 Fed. 701, seems better to me. However, it is hardly necessaty for me to pass on these matters adversely to the said defendant, since I find that the plaintiff must prevail for other reasons.

The plaintiff has produced evidence tending to show various particular defects in perfecting these levies and assessments and sales. For example, as to 1899 and 1900, no warrant appears. As to 1900 and 1901, the premises are described as being in the wrong lot. As to 1907 and 1908, there is no village seal, and the law is mandatory as to this. Lockwood v. Gehlert, 127 N. Y. 250, 27 N. E. 812. The plaintiff further claims that proper and sufficient service of notices of sale on the owner have not been made; the proof of service on Mr. Carstensen not showing with sufficient definiteness that Mr. Carstensen was a proper representative of the owner, or that the notice was served at the proper office of the owner. However, neither is it necessary to hold this in itself to be a defect sufficient to warrant a judgment for the plaintiff.

The next point raised by the plaintiff I consider far more vital. The plaintiff claims that these lands, being lands of nonresident owners, were wrongfully assessed the same as if they belonged to resident owners, and that this error makes all proceedings void. In the case at bar we have no special charter provision, but must depend upon the New York village and tax laws, as they existed prior to the consolidated laws. The defendant makes an ingenious and able argument to the end that the language of the statute relative to resident and nonresident classifications in the tax law is merely directory, not mandatory, where village property is involved, and that compliance with said statute in this particular may be dispensed with. He relies largely on People ex rel. Champlin v. Gray, 185 N. Y. 196, 77 N. E. 1172, and Collins v. Long Island City, 132 N. Y. 325, 30 N. E. 835. The former case, holding that a village is not a “tax district” under subdivision 1, § 2, Tax Law (Laws 1896, c. 908), should not be too broadly construed. The question in that case was whether a part of a farm situated within a village, the other part being outside the village and the owner residing in that part, could be assessed for village purposes in view of the provisions of section 10 of the tax law reading as follows:

“If a farm or lot is divided by a line between two or more tax districts and the owner lives therein, it shall be assessed to him. in the district in which he resides.”

The court answers this question in the affirmative, holding in this -connection only, as I read it, that a village is not a “tax district,” and that this portion of the farm in question should not escape taxation for village purposes by hiding behind this section of the tax law. But section 104 of the village law (Laws 1897, c. 414) says that:

“The assessors of a village shall * * * prepare an assessment roll of the persons and property taxable within the village in the same manner and form as is required by law for the preparation of a town assessment roll.”

This is the only section of the village law referring to manner and form of preparation of village assessment rolls, and must relate to sections 21, 29, and 30 of the tax law, .which is the law regulating town assessments. And so I believe that in the matter of preparation of assessment rolls villages are “tax districts” within the meaning of section 2, subd. 1, Tax Law. The opinion in the Champlin Case in my judgment reaches no further than I have above indicated; that is, to cover the particular point involved in the situation there considered.

Collins v. Long Island City, 132 N. Y. 321, 30 N. E. 835, was an action brought to set aside tax sales in Long Island City. The charter of that city contained a provision that no separation of residents’ and nonresidents’ property should be made as provided in the tax law, and a further provision that in case vacant land in the city were owned by a nonresident the first column of the roll, instead of the name of the owner, as in case of residents, should contain a designation or description of such land as prescribed by statute. In the roll in question the assessors met every requirement, but, in addition, inserted the name of the owner. The court held that this was mere surplusage; that, at most, it was an unwarranted act by the assessors against which, if necessary, the owner had ample remedy, and that the assessment was valid. This is as far as this case goes as authority here.

One of the main questions now to be determined, if not the principal one, is that of sufficiency of description of the property sought to be sold. And it seems to me there is no authority or reason for my holding that section 39 of the tax law, particularly the last sentence of subdivision 5 thereof, that section being applicable, as I have herein before stated, could be so plainly disregarded by the village of Depew in preparing these assessment rolls and making these sales; for it cannot seriously be claimed that, even if the maps were properly in evidence, there is anywhere and altogether a description of the property of the particularity required by the section last mentioned. People ex rel. Buff. B. P. Ass’n v. Stillwell, 190 N. Y. 284, 293, 83 N. E. 56; Zink v. McManus, 121 N. Y. 259, 24 N. E. 467; In re N. Y. Central, 90 N. Y. 342. These descriptions are surely not sufficiently definite by metes and bounds or otherwise to pass a good title to any particular tract. They cover at best a certain number of acres situated on a specified side of a road named and within the confines of certain including “farms” of much larger acreage. But the spots where a grantee under such descriptions might safely drive his corner stakes would be as difficult of permanent location as the storied flea.

For the reasons hereinbefore given, I believe plaintiff is entitled to a judgment of foreclosure and sale, and decreeing that all claims of the defendant village of Depew under taxes, levies, assessments, and sales claimed to have been had be declared invalid and of no effect as to this plaintiff and inferior to its claim. The plaintiff may have the usual foreclosure costs and disbursements and an allowance of $75 costs additional against the village of Depew, defendant. Thomas H. Noonan, Esq., referee to sell.  