
    Henry H. Jackson and Others, as Executors of and Trustees under the Last Will and Testament of Peter A. H. Jackson, Appellants, v. Mary E. Rowe, Respondent.
    
      Purchase of latid by the Comptroller at a tax sale— the two years’ time within which an action may be brought to cancel the sale is a Statute of Limitations — neither irregularities nor jurisdictional defects, except those specified, in section 132 of the Tax Law, can be considered after two years and within the five years’ limitation — estoppel of one making an application to the Commissioners of the land Office for a sale of the State’s title, resulting in a sale thereunder — irregularities in not assessing land as subdivided and in not subscribing the oath annexed to the assessment roll—presumption as to an assessment roll being the original or a copy.
    
    Section 131 of the Tax Law (Laws of 189P, shap. 908, as amd. by Laws of 1898, chap. 339), whicli makes the conveyance by the Comptroller of property purchased by the State at- a- tax sale conclusive after two years from its date, is a Statute of Limitations, and, except as provided in section 132 of the Tax Law, is a bar to an action brought by the former owner of the premises for the. cancellation of the tax sale, whether such action is founded upon the existence in the proceedings resulting in the tax sale of jurisdictional defects or, mere, irregularities;
    The failure of the assessors to certify that the unoccupied lands assessed were .not subdivided or that they could not ascertain the subdivisions as provided in the statute (1 R. S.-.391, § 13, subd. 1), and their failure to subscribe the oath annexed to the assessment roll, do not constitute defects “in the proceedings affecting the jurisdiction upon constitutional grounds,” within the meaning of section 182 of the Tax Law, prescribing a five year's’ Statute of Limitations for the bringing of an action for the cancellation of. the tax sale upon such grounds.
    Where, subsequent to the conveyance'by the State Comptroller to the People of the State of New York of lands which the State had purchased at a tax sale,, the executors and trustees under a will, who held the title of the premises at the time of the tax sale, apply to the Commissioners of the Land Office, to advertise the land for sale pursuant to the Public Lands Lav. ¡Laws of 1894, chap. 317, § 30 et seq.), they thereby waive any irregularities. in the proceedings resulting in the tax sale, and are estopped from asserting such irregulars ties as against a person who purchases the premises at the sale ordered by the Land Commissioners.
    The fact that the signatures to the verification of an assessment roll' on file in a public office are all in the same handwriting does not warrant the inference that the assessors did not subscribe the oath or verification, where it appears that the statutes under which the assessment roll was prepared permitted, before the tax was finally collected, the making, in addition to the original, of a fair copy thereof, and also required the making of an abstract of the tax ' rolls, and there is no proof that the assessment roll in question is the original roll except the statement of the. official, who, some twelve years after the-assessment roll in- question was made, was in charge of the said public office.:
    Appeal by the plaintiffs, Henry H. Jackson and others, as executors of and trustees under the last will and testament of-Peter A, H. Jackson, deceased, -from an order of the Supreme Court, made at the Kings County Special Term and entered jin the office of the clerk of the county of Richmond on the 30tli day of July, 1903, denying the -plaintiffs’ motion to vacate a judgment theretofore entered in-favor of the defendant and for a, new trial of the action upon the ground of newly-discovered evidence.
    
      John L. Wells [Charles T. Lark with him on the brief], for the appellants,
    
      Frederick B. Woodruff [Frank E. Smith, Smith M. Weed and George S. Bixby with him on the brief], for the respondent.
   Miller, J.:

This is an action to determine conflicting claims to real property. The plaintiffs claim title tinder the will of Peter A. H. Jackson, deceased, who is conceded to have been the owner. The defendant claims under letters patent from the State. The lands were sold by tlie'State Comptroller in December, 1895, for taxes assessed against the property for the years 1890 and 1891, returned to the Comptroller by the county treasurer as unpaid. At such sale the State became the purchaser, and the Comptroller, pursuant to statute, conveyed the property to the People of the State by deed dated October 7, 1898, which deed was recorded in the county clerk’s office of Richmond county, where the property was situated, on the 2d day of April, 1900. On or about the 13th day of August, 1900, the plaintiffs presented a petition to the Board of Commissioners of the-Land Office of the State of New York setting forth that they were the owners in fee simple of the property; that the same had been sold and bid in by the State; that the title thereto was then in the State, and requesting said board to advertise the said land for sale and to take the usual procedure required in such case, and deposited with the State Treasurer the sum of twenty-live dollars to cover the costs of advertising said parcel for sale. Thereupon, pursuant to notice duly published according to the statute and the rules of said board, said land was sold at public sale on the 19th day of December, 1900, and the defendant, being the purchaser at such sale, received the patent aforesaid. (See Public Lands Law [Laws of 1894, chap.-317], § 30 et seq.) The land "is unoccupied land. The action was begun on the 7th day of February, 1901. It was claimed on the trial by the plaintiffs that the assessment was void because it did not contain a certificate of the assessors that the tract was not subdivided, or that they could not ascertain the subdivisions, as provided by statute. (1 R. S. 391, § 13, subd. 1.) The trial court held that this defect was an irregularity which plaintiffs were precluded from asserting by section 131 of the Tax Law, which provides that after two years from the date of the conveyance by the Comptroller the presumption of regularity becomes conclusive, and directed judgment for the defendant. Thereafter the plaintiffs moved for a new trial on the ground of newly-discovered evidence, and they .appeal to this court from the order denying such motion, and. also from the judgment rendered in the action.' The notice of motion.ánd. the order appealed from distinctly state that the ruction is made on .the ground of newly-discovered evidence. The appellants insist, however, that it should also be treated as having been made pursuant to section 1646 of the Code of Civil Procedure, which provides that ,a new trial in such an action as this may be granted, with.certain exceptions not important here, upon an application made by any party within one year after judgment, in the discretion "of the court in the interest of justice.

The plaintiffs claim to have discovered since the trial that the ’ signatures to the.verification of. the roll of 18.90, on file in the office of the bureau for the collection of assessments and arrears in the county of Richmond, are all in the- same handwriting, from which the inference is sought to he. deduced that the assessors never subscribed the oath. There is no evidence that the roll examined was the Original except that the person who makes the affidavit states that he w.as so informed by the deputy collector who was in charge of sáid office at the time the affiant made the examination on the 6th day of October, 1902. It is to ¡he observed that when the assessment complained of was made, Richmond county was not a part of Greater New. York, ..and the statute provided that when the assessment roll had been properly signed and certified it should be delivered by the town .assessors to the supervisor of the town, who should deliver the same to the board of supervisors at their next meeting.. (1 R, S, 394, § 27.) The board of supervisors after the equalization of .the assessments, correction of errors and levy of the tax (1 R. S. .395, §§' 31-3.3; Laws of 1865, chap. 453, §§ 2-4, as amd. by Laws of 1868, chap, 575), were required to deliver the corrected assessment roll, o.r a fair copy thereof, to the collector- of the town. (1 R. S. 396, § 36.) The board of supervisors were also required to transmit an- abstract of the tax rolls to the county treasurer. (Id. ■§ 38.) There is no evidence, therefore, that the roll,, which found its way into the office of the bureau for' the collection of assessments and arrears after the consolidation with the greater city, was the. original. The statement-of the deputy in charge of such office in 1902 that it was such original can have no probative force. In view of the presumption that these officers discharged their duty in the manner required by law, the presumption would be, in the absence of some proof to overcome it, that the roll inspected was a copy. No reason is given .why the affidavit of the assessors or of the officer who administered the oath was not obtained. It ought not to have been difficult to have produced some evidence tending to show whether the roll inspected was an original or a copy, and certainly if nó such evidence could be produced, effect would have to be given to the presumption to be indulged in in such case. If all of the evidence claimed to have been discovered were produced on a new trial, it would-fall far short of establishing the fact relied upon, to wit, that the oath to the original assessment roll was not subscribed by the assessors, even conceding that such fact, if established, would enable the plaintiffs to prevail. Therefore, treating, the motion as having been made on the ground of newly-discovered evidence, and passing the very serious objection that, this being a public record: accessible to- the plaintiffs, upon which they relied to defeat the defendant’s claim of title, in the exercise of due diligence they should have discovered the evidence before trial, the motion was properly denied because the evidence presented is hot sufficient to change the result if a new trial Were granted.

Treating the motion as having, been made under section 1646 of the Code' of Civil Procedure, no fact is presented tending to indicate that' the interest of justice requires a new trial, unless there be some error disclosed in the record which requires a. reversal of the judgment. The- facts are practically undisputed,, and" the sole question presented by the record is whether the plaintiffs are how in a position to assert that the proceedings resulting, in the sale and the issuance of the letters patent to the defendant were void by reason of the defect in the original assessment roll to which reference lias been made, and it may be observed that even though' the alleged newly-discovered evidence were in the case and warranted a finding that while the oath attached to the roll was sworn to-by the assessors it'was not signed, the plaintiffs would still be in no better position, because' we may assume that the failure of the assessors- to certify that the land assessed was not subdivided rendered the assessment invalid and constituted as serious a defect as the failure to subscribe the oath. Although the Legislature might in the first instance have dispensed with either of these requirements, having imposed them, a substantial compliance therewith was necessary to make a. valid assessment, but although.the failure tó comply with some statutory requirement has frequently been referred to as a jurisdictional defect, the assessors had jurisdiction to assess the property. The difficulty was that in •the exercise.of that jurisdiction they committed irregularities which .undoubtedly invalidated the assessment. . The distinction between . jurisdictional defects and irregularities is "clearly pointed out by. Judge Finch in Ensign v. Barse (107 N. Y. 329), and although Chief Judge Ruger, in People v. Turner (117 id. 227, 234), says “an omission by the ■ assessors to hold meetings for the review of their assessments, and to give notice therefor as required by statute, is a jurisdictional defect,” Judge Gray, in People v. Turner (145 N. Y. 451, 457), says: “Some confusion of thought may be occasioned by the unguarded language of Chief Judge Roger in People v. Turner (117 N. Y. 227), who speaks of the irregular proceedings by the assessors as jurisdictional defects. But it is very clear that he did not intend the full force of that expression, and that lie used those words in the sense in which they were used by-Judge Finch in Ensign v. Barse (107 N. Y. 329).” Where the party is not precluded from asserting the invalidity of the assessment it is quite immaterial whether the defect be treated as jurisdictional or as an irregularity, because in either case the assessment is wholly invalid for the reason that the right to take property for taxes is purely statutory, and this, doubtless, accounts for the confusion between jurisdictional defects and irregularities in cases where it was quite immaterial whether the defect was treated as jurisdictional or as an irregularity. Section 131 of the Tax Law (as amd. supra) makes the conveyance of the Comptroller conclusive after two years from its date. That this is a statute of limitations and is a bar to an action, whether founded upon jurisdictional defects or mere irregularities, is settled by Meigs v. Roberts (162 N. Y. 371), but the appellants insist that said section 131 is limited by section 132 of the statute, which, so far as material to the question here, provides that “such conveyances and certificates * * * shall be subject to cancellation, by reason of the payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid, or by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds, on direct application to the Comptroller, or in an action brought before a competent court therefor;” and it is also therein provided that “ in the case of the sale of eighteen hundred and ninety-five and of all sales hereafter held, that such, application shall be made, or such action brought, within five years from the expiration of the period allowed by law for the redemption of lands sold at the particular sale sought to be cancelled,” and they, therefore, assert that the action was properly brought within the five years specified. It is to be observed that while section 131 makes the deed conclusive after two years from its date, section 132 permits an action .to be brought for cancellation within five years from the expiration of the period allowed by law' for redemption, for the three grounds stated, first, payment of the taxes ; second, levying of the taxes by a-town having no legal right to assess the land; third, by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds, and it is urged that the defect complained of here is a defect affecting the jurisdiction upon constitutional grounds. We may assume that section 132 limits section 131, and extends the Statute of Limitations in the three cases mentioned, still the two sections should be construed together so as to harmonize both if possible, and if it be ui-ged that every non-compliance with the statute in any substantial respect is such a defect as constitutes the taking of property without due process of law, then every defect, whether termed jurisdictional or an irregularity merely, would be a defect in the proceedings affecting the jurisdiction upon constitutional gi’ounds. Certainly this could not have been the legislative intent, else there would be no case in which the two years’ limitation provided by section 131 would not be extended to five years by section 132. It was held in Wallace v. McEchron (176 N. Y. 424) that the failure of the Comptroller to comply with the statute requiring him to furnish a statement to any person requiring it of the taxes, interest and charges due on any piece of land, was not a defect in the proceedings affecting the jurisdiction on constitutional' grounds, although it avoids a sale thereafter made, and we think the defect complained of here was not such a defect but that the two years’ limitation provided by. section. 131 applies. As these lands were unoccupied, the question as to the éffect of the Statute of Limitations, upon- the rights of an owner in possession are not involved.

But if we are wrong in this view, we think that the plaintiffs are estopped from asserting the invalidity of the proceedings resulting.' in the deed to the defendant, and that they have waived any irregularities in such proceedings. A party may even waive constitutional provisions designed for his protection (Phyfe v. Eimer, 45 N. Y. 102), and he may be estopped by his acts from asserting absence of .authority -or the invalidity of a proceeding. (People v. Fire Association of Philadelphia, 92 N. Y. 311, 326; Vose v. Cockcroft, 44 id. 415; McNeil v. Tenth National Bank, 46 id. 325; Sherman v. McKeon, 38 id. 266.) In this case the plaintiffs could have applied to the Comptroller for a cancellation Of the tax sale; instead they waited almost five years after the sale, and then filed a petition requesting the Board of Commissioners of the Land Office to cause the land to be sold at public sale, thereby inducing the defendant to bid for the property upon the theory that the plaintiffs did not question the regularity of the proceedings. If the claim of the plaintiffs be sustained, the defendant will lose the $605 -which she. paid, because she cannot recover it' back from the State; It will hot do for the plaintiffs to assert that they did not know of the irregularity; the proceedings Were matter of public record. Section 132 of the Tax Law gives ample time within which to apply to the Comptroller for a cancellation, and the plaintiffs should have ascertained whether they desired to question the regularity of the- proceedings before requesting a sale.

The appellants insist that there can be no estoppel against the plaintiffs who hold as trustees, because by the terms of the will they were .prohibited from selling the property without the approval of the beneficiaries. Did the question relate to the effect of a conveyance by the plaintiffs without such approval to one chargeable with notice of the powers of the trustees, the authorities cited would be in point. The trustees were the owners in fee of the property at the time of the tax sale. Thereafter the title was apparently in the State; no one will question their authority to attempt to- save the .property for their estate. They evidently believed at the time that the better course was to ask the State to sell, expecting undoubtedly, as is usual in such cases, that they would be able to purchase the property at the sale for the amount of the taxes, charges, etc.; in this they were mistaken, as the defendant overbid their agent. They could waive irregularities in the proceeding, and having actually procured the sale to be made, they are now estopped from asserting that they made a mistake in so doing.

The order denying a motion for a new trial should be affirmed, with costs.

Hirschberg, P. J., Woodward, Jerks and Rich, JJ., concurred.

Order denying motion for new trial affirmed, with costs. 
      
       Laws of 1896, chap. 908, as amd. by Laws of 1898, chap. 339.— [Rep.
     