
    Margaret Culnane, Appellant, v. Andrew J. Dixon, Respondent, Impleaded with G. T. Conine, Late County Treasurer of the County of Steuben, and Others.
    
      Section 131 of the Tax Law, making a tax deed conclusive evidence as to regularity, does not preclude an attack because of jurisdictional defects ■—burden of establishing their existence —pleading — construction of an (admission in an answer.
    
    While it may be assumed that section 131 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1898, chap. 339, and Laws of 1903, chap. 344), making a tax deed conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment, were regular and in accordance with the provisions of law, will not bar a person attacking the tax sale and deed from asserting some j urisdictional defect in the proceeding, the burden is upon such person to establish the existence of such jurisdictional defect.
    The complaint in an action alleged that “ at all times between January first, One thousand eight hundred and ninety-four, and March fourth, One thousand eight hundred and ninety-nine, Frank E. Doolittle was the owner in fee simple ” of certain premises, and that on March 4, 1899, he conveyed the same to the plaintiff. The defendant in his answer admitted “ that prior to the 4th day of March, 1899, Frank E. Doolittle was the owner of the premises * ' * * and conveyed the said premises to the plaintiff.” The answer then continued, “ said defendant further answering the said complaint * * * denies the same and each and every allegation therein contained, except those parts and allegations hereinbefore expressly admitted or otherwise denied.” '
    
    
      Held, that the answer should be construed to admit that upon March 4, 1899, when Doolittle conveyed to the plaintiff he held the title so that his conveyance was effective, and that such answer should not be construed as admitting the allegation of the complaint that “at all times between January first, One thousand eight hundred and ninety-four, and March fourth, One thousand eight hundred and ninety-nine, Frank B. Doolittle was the owner in fee simple ” of the premises.
    Appeal by the plaintiff, Margaret Culnane, from a judgment of the Supreme Court in favor of the defendant, Andrew J. Dixon, entered in the office of the clerk of the county of Steuben on the 1st day of December, 1904, upon the decision of the court, rendered after a trial at the Steuben Special Term, dismissing the complaint upon the merits.
    The defendant holds the title and possession of certain real estate situate in the town of Corning, Steuben, county, through various mesne conveyances-from the county treasurer of said county. Said official, in December, 1899, duly advertised and sold said premises for non-payment of taxes claimed to have been assessed for the year 1897 and reassessed as unpaid in 1898. The premises were assessed as lands, of a resident taxpayer to one Mary M. Oulnane.
    Plaintiff is seeking by this action to have set aside said tax sale and the conveyances founded thereon upon the ground that in 1897 said lands belonged to one Doolittle,'who was a non-resident, and that, therefore, the original assessment of them, other than as non-resident lands, was invalid and void.
    
      Willard S. Reed, for the appellant.
    
      Warren S. Cheney, for the respondent.
   Hiscock, J.:

It seems to us that plaintiff has failed to establish the facts necessary as a basis for her action.. . The tax deed under which defendant claims at the date of commencement of this action was made conclusive evidence that the sale and all proceedings prior thereto from and including the assessment were regular and in accordance with the provisions of law. (Tax Law [Laws of 1896, chap. 908], § 131, as amd. by Laws of 1898, chap. 339, and Laws of 1902, chap. 344.)

While it may be assumed that this would not bar plaintiff from asserting some jurisdictional defect, there can be no doubt that under her complaint and the principles of law applicable the burden rested upon her of attacking and overturning the sale and deed by proof of irregularities. (City of New York v. Matthews, 180 N. Y. 41,47.)

She bound herself, by her complaint, to do this by establishing that in 1897 the premises belonged to Doolittle, who was a non-resident, and that the assessment was to Mary M. Culnane as a resident. There is no doubt about the latter fact, but I think the ownership by Doolittle has not been established. There is no testimony to do this and the decision of the question rests upon the allegations and admissions of the pleadings.

The complaint alleges that “at all times between January first, One thousand eight hundred and ninety-four, and March fourth, One thousand eight hundred and ninety-nine, Frank E. Doolittle -was the owner in-fee simple ” of the premises, and further, in another paragraph, that upon March 4, 1899, he conveyed the same to the plaintiff. His and plaintiff’s non-residence are undisputed.

The defendant, Andrew J. Dixon’s, answer admits “ that prior to the 4th day of March, 1899, Frank E. Doolittle was the owner of the premises * * * and conveyed the said premises to the plaintiff.” Then “said defendant further answering the said complaint * * * denies the same and each and every allegation therein contained except those parts and allegations hereinbefore expressly admitted or otherwise denied.” A fair construction of the answer is an admission that upon March 4, 1899, when he conveyed to plaintiff, Doolittle had become invested with the title so as to make his conveyance effective, and it should not be construed as admitting the allegation of the complaint that for' five years before that he had at all times so held the title. This view is rendered more easy, and one in favor of plaintiff more difficult, by the evidence which she drew out from the witness Chambers that Mrs. Culnane had “ owned this property for more than ten years.”

There is no finding of ownership by Doolittle prior to March 4, 1899. I also think that there was no sufficient proof that the property was not properly assessed to Mary M. Culnane as a resident in 1897. The only evidence directly upon this point was given by plaintiff, who said, “ I know of no such a person as Mary M. Culnane belonging to me. I had a sister-in-law by that name and she never had any interest in this lot and she died prior to 1897.” This evidence was so limited by its form and the further fact that the witness at all the times in question lived in Pennsylvania, as to fall short of satisfactorily proving the non-existence of the person assessed.

Plaintiff is not in position to urge that the evidence of the witness Chambers above quoted showed her to be the owner of the property in 1897, and that for that reason the assessment was invalid The record title shows that evidence to have been incorrect as a whole, and moreover plaintiff's complaint was not framed and the action was not tried upon- any theory of ownership by her in 1897.

These views render it unnecessary to consider other questions presented.

The judgment should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  