
    Caroline K. Brennan, Appellant and Respondent, v. The City of Buffalo, Respondent and Appellant.
    
      Actian to remove a cloud on title — it is not an action to test the validity or regula/rily of an illegal assessment— nor tarred ty lapse of time—form of the judgment.
    
    Special and local statutes in derogation of the general statutes of the State, limiting the time in which a citizen may seek redress for illegal and fraudulent assessments and the sale of property by virtue thereof, are not to be extended. by construction so as to bring within their provisions actions and remedies not withiu the words of the statute.
    The assessors of the city of Buffalo, whose charter provided that, if the expense of a local improvement exceeded §20,000, it might be paid in five equal annual installments, in order to bring the expense of a local improvement within the above provision under the direction of its common council, arbitrarily increased ' the assessment upon the premises of a property holder beyond the amount warranted by the estimated expense of the improvement, and subsequently, upon the refusal of' the owner to pay such assessment, her property was sold by the city.
    The statute provided that any action “ to test the validity or regularity of any tax levied or assessment made shall be commenced within one year from the time of the delivery of the roll in which said tax or assessment is contained to the treasurer,” and in this case more than a year had elapsed, from the time of the delivery of the assessment roll to the city treasurer, when an action was commenced to set aside the assessment and the sale thereunder, and the certificate of sale.
    
      Meld, that such lapse of time was not a bar to the action, which was, in effect, an action to remove a cloud upon the title of the property thus sold, and not one primarily to test the validity or regularity of the assessment;
    That in such an action the court had not authority to adjudge a portion of the tax to he void and the rest valid.
    Gross-appeals by the plaintiff, Caroline K. Brennan, and by the ■defendant, The City of Buffalo, from portions of a judgment of the Superior Court of the city of Buffalo, entered in the office of the ■clerk of said court on the 27th day of December, 1895, upon the decision of the court rendered after a trial before the court without a jury.
    The judgment rendered reduced an assessment of $2,916.98 for taxes levied against the plaintiff’s land by the sum of $581, and set aside the sale of the plaintiff’s premises for the non-payment of the taxes and canceled the ■ certificates of sale. The plaintiff appeals from that part of the judgment which sustains the assessment, except the sum of $581; and the defendant from that part of. the judgment which reduces the assessment by the sum of $581.
    
      Adolph Rebadow, for the plaintiff.
    
      Charles L. Feldman, for the defendant.
   Follett, J.:

This action was begun November 19, 1890, to set aside an assessment levied August 1, 1887, on plaintiff’s land for the payment of its share of the expenses of paving School street, in the city of Buffalo, and the sale of plaintiff’s land so assessed, made April 29,1890, for the non-payment of the taxes, and the certificates of sale issued by the defendant’s comptroller to the defendant, in pursuance of said sale.. By section ,23 of title 6 of defendant’s charter (Chap. 519, Laws of 1870), as amended by section 16 of chapter 181 of the Laws of 1885, it was provided that in case a local improvement should be ordered by the common council, the expense of which would exceed the sum of $20,000, to be defrayed by money raised by a local assessment, such assessment might be paid in five equal annual installments, the first to be due from and after the date of the first publication of the notice of the assessment by the treasurer of the city, pursuant to section 17 of title 6 of the charter, and the remaining installments in one, two, three and four years from and after the date of such publication of the notice; 'all the installments, except the first, to bear interest at the rate of' six per cent per annum, to-be computed from three months after the date of the publication of the.treasurer’s notice.

In 1887 the common council of the city of Buffalo ordered that a part of School street' should be paved, at an expense not exceeding $19,420, which sum was to be assessed upon the property benefited.' The expense of this'improvement not exceeding $20,000, the assessment-therefor could not be paid in installments. Upon the basis of $19,420 the assessment upon the plaintiff’s land would have been-$2,335.98; but for the purpose of-making it appear that the expense exceeded $20,000, so as to enable the payment of the assessment to-be made in five equal installments, the assessors, under the direction of the common council, arbitrarily increased the assessment against the plaintiff’s property by the sum of $581; thus making her assessment $2,916.98 and the total assessment for the improvement $20,001, so that the payment therefor by the various persons whose property was assessed as benefited could be made in five equal annual installments.

By the seventh finding the court found: That this (the assessment) was done unlawfully, fraudulently and arbitrarily, and without regard to any benefit to the land of this plaintiff or any other person by reason of the improvement aforesaid; and thereby this plaintiff (under her maiden name ‘ Caroline Ketchum ’) was assessed in said assessment roll (being rol'1 number 3790 of the year 1887) at the total sum of $2,916.98.”

January 9, 1888, the plaintiff, in ignorance of the unlawful manner in which the assessment had been levied,'paid the first annual installment and all arrears of interest to that date, amounting in the whole to $612.53, leaving unpaid four annual installments amounting to $2,333.61. In 1888 the plaintiff first learned of the manner in which her property had been assessed, and then refused to pay any of the four annual installments then unpaid. After her refusal, and in 1888, the treasurer of the city added to $2,333.61 (the amount of the unpaid assessment) the sum of $490.05 for interest and penalties for non-payment, making $2,823.66, which sum he returned to the comptroller of the city as the amount then due from the plaintiff on account of the assessment for paving School street. In 1889 the assessors, as a basis for levying the general city tax, divided the plaintiff’s property, which had theretofore been assessed as one lot, into two lots, which, for convenience, may be designated as lot Ho. 1 and lot Ho. 2. The comptroller of the city, instead of placing $2,823.66 upon the entire block as originally assessed, put the entire assessment against lot Ho. 1 and delivered the roll to the treasurer of the city; and thereafter it became the duty of the treasurer to make trans-scripts of all unpaid assessments, general and special, and deliver them to the - comptroller, who was required to annex his warrant to said transcripts, commanding the collector to collect from the persons named in the transcripts. The treasurer returned the transcripts to the comptroller, showing that taxes assessed against lot Ho. 1 had not been paid and showing that the taxes against lot Ho. 2 had been paid. Upon receiving the transcript the comptroller instead of issuing his warrant for the collection of the taxes assessed against lot No. 1, changed the assessment so as to assess the sum upon both lots as assessed in 1888, and then issued his warrant to the collector ; upon which the plaintiff’s entire premises were,. April 29, 1890, sold, bid in by the city, and a certificate of sale issued to the. city, which now holds it and claims to be the owner of the premises by virtue thereof.

The defendant concedes that the action of its common council and of its assessors in imposing the tax in 1887 was illegal, but insists that the plaintiff - is barred of all remedy by section 9 of chapter 275 of the Laws of 1880, which provides: “ Any action or proceeding commenced by any person or persons to test the validity or regularity of any tax levied or assessment made shall be commenced within one year from the time of .the delivery of the roll in which said tax or assessment is contained to the treasurer.; the invalidity .or irregularity of any tax or assessment shall not be available as a defense to any action of proceeding commenced after the expiration of one year from the delivery of -the roll as aforesaid for the óollection of said tax or assessment, or for the enforcement of any right or title by virtue of any sale thereunder, unless an action or proceeding to test the validity or regularity of such tax or assessment shall have been commenced within the time hereinbefore limited for commencing the same, and shall be still pending, or such tax or assessment shall have been adjudged to be irregular and invalid.”

■ This statute is pleaded in the answer as a bar'to this action. The primary object- of this action is to set aside the tax sale and the certificate issued pursuant thereto, which is now held by the defendant, on the ground that such certificate is a cloud on the plaintiff’s title. It is not an action or proceeding primarily to test the validity or regularity of the assessment, but to remove a cloud on the title to plaintiff’s realty, and it is not within the words of the statute. Special and local statutes in derogation of the general statutes of the State, limiting the time in which ;a citizen may seek redress for illegal and fraudulent assessments and the sale of property by virtue thereof, are not to be extended by construction so as to bring within their provisions actions and remedies not within the words of the statute. (Endl. Interp. Stat. § 343, and cases cited.)

Zink v. McManus (49 Hun, 583; affd., 121 N. Y. 259) was an action of ejectment brought to recover land in the city of Buffalo, which was sold in April, 1884, for the non-payment of taxes assessed thereon in 1883. The action was begun May 25, 1887, more than one year after the roll on which the tax was assessed had been delivered to the treasurer of the city of Buffalo. It was insisted by the defendant that the section above quoted was a bar to the action, hut it was held that the section did not apply to an action of ejectment brought for the recovery of land sold for the non-payment of taxes illegally assessed. The General Term, in discussing the question, held: “ The first clause of the statute now under consideration applies to equitable actions instituted for the purpose of testing the validity of any assessment made or tax levied upon the property, either real or personal, before the proceedings have been conducted to a sale of the property of the owner, and also to such proceedings as are authorized by the statute to set aside any irregular assessment, or erroneous levy of taxes. * * * The limitation created by the statute clearly applies to an action prosecuted to procure a personal judgment against the person assessed, and also to actions or proceedings instituted for the enforcement- of any right or title arising out of the sale of property, real or personal, other than real estate assessed, and which was sold to pay the tax levied thereon. In other words, that these precisions have no application when the question litigated relates wholly to the title to real estate which has been sold for the non-payment of taxes imposed thereon.”

It was held that the limitation prescribed by section 9 applied only to “ the instances specifically enumerated ” therein. The limitation prescribed by the section is not applicable to this action, and the defense that the action is barred by that Statute of Limitations cannot be sustained.

The trial court, in disposing of this case, adjudged the sale of the plaintiff’s premises void, and set aside the certificates of sale as void, and directed that they be canceled and surrendered to the plaintiff; and further held that the tax assessed against the plaintiff’s land should be reduced by the sum of $581, together with all interest, additions and charges assessed or charged against the plaintiff on account of such sum, thus, in this action, determining the validity of the original assessment, and granted affirmative relief in respect to it on the assumption that the court could, in this action, not only pass upon the validity of the assessment, but confirm it in part and set it aside in part. . I do not think that the exercise of the power in this action was justified, In certain cases the court may declare a tax bad in part and sustain it for the remainder; but I know of no authority for sustaining any part of a tax in case the entire assessment is, as was found in this case, unlawfully, fraudulently and arbitrarily ” assessed and levied. It may be doubtful whether, in this action, brought to remove a cloud upon the title and not directly to review the assessment, the court had authority to determine that a portion of the tax was void and the remainder valid.

In Poth v. The Mayor (77 Hun, 225; affd., 151 N. Y. 16) it was held that when an assessment sought to be enforced is made up of legal and illegal items, blended in a single assessment, the ■ person against whom the tax was assessed might recover the whole sum involuntarily paid, in the absence of a statute modifying the general rule, and that his recovery was not limited to the portion of the tax which had been illegally assessed.

The judgment, in so far as it sets aside the sale and the certificates issued thereunder is affirmed, and in so far as the judgment determines that any portion of - the sum assessed for taxes was valid it is reversed, with costs of this appeal in favor of the plaintiff and against the defendant.

All concurred.

Judgment, in so far as it sets aside the sale and the certificate issued thereunder, affirmed, and in so far as the judgment determines that any portion of the sum assessed for taxes was valid, reversed, with costs of this appeal in favor of the plaintiff and, against the defendant.  