
    Fanny F. Wallace and Lulu J. Wallace, as Executrices and Widow and Sole Heir at Law and Devisees under the Will of Edwin R. Wallace, Deceased, Respondents, v. The International Paper Company and William McEchron, Appellants, Impleaded with Warren Curtis and Others.
    
      Tax—effect on a tax sale of a statement by the Comptroller that there was no tax — chapter 908 of 1896 is a shm't Statute of Limitations.,
    
    A statement made by the Comptroller of the State of New York to the owner of certain lands upon which an unpaid tax was then a lien, to the effect that there was no unpaid tax thereon for the year in question, does not render a subsequent-sale of the land for such unpaid tax void, but at most merely voidable; • and where the owners fail to assert their right to have the sale set aside within the time fixed by section 182 of the Tax Law (Laws of 1896, chap. 908) they cannot thereafter assert- it. (Per Kellogg and Fuesman, JJ.) ;
    
      The provision of the Tax Law relative to the effect of a deed executed by the Comptroller, pursuant to a tax sale, is a Statute of Limitations and applies to such a case. (Per Parker, P. J., Smith and Chase, JJ.)
    Appeal by the defendants, The International Paper Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hamilton on the 28th day of September, 1901, upon the decision of the court rendered after a trial at the Fulton Trial Term before the court without a jury, holding that certain taxes had been paid and that plaintiffs were owners of two-thirds of 1,128 acres of land in the northwesterly corner of township 4, Totten and Orossfield’s purchase, in Hamilton county, and William McEchrou, one of the defendants, had no interest therein.
    
      Griffin & Ostrander, for the appellants.
    
      Homer Weston and Waldo Weston, for the respondents.
   Kellogg, J.:

This case has been twice tried. The testimony on the second trial does not in any material respect differ from the testimony presented to this court on review of the first trial. We then held that the books in evidence from the office of the State Comptroller (and the same books were in evidence on the second trial) showed conclusively a tax assessed for the year 1862 upon the land in question included' in a larger unallotted tractthat such tax was called the “ H. H. & L. Road ” tax, arid was a proper lien upon the premises claimed by plaintiff in this action. No one testifies to having paid this tax or to having seen it paid. No receipt for this tax was offered in evidence from the Comptroller’s office. We must, therefore, conclude that the tax was not paid before the sale of 1871, and, therefore, the Comptroller had jurisdiction with power to enforce payment. Whatever there may be in the testimony from which any inference can be drawn that the Comptroller at any time before the sale declared to plaintiffs or their predecessors in title that there was no unpaid tax for the year 1862 on these lands could at most only make the sale voidable. The fact remains-that there was an unpaid tax and the sale was not void. If for the inferences suggested the sale was voidable, this infirmity could be only available to the plaintiffs by the assertion of their rights to set the sale aside within the time fixed by the Laws of 1896 (Chap. 908, § 132). They failed to do this, and it is too late to' make the defense available in this action.

The judgment is reversed, a new trial granted, with costs, to the appellant to abide the event.

Fursman, J., concurred; Parker, P. J., Smith and Chase, JJ., concurred in result.

Chase, J. (concurring):

Whether or not the .Hamilton, Herkimer and Lewis road tax for 1862 on that part of township 4 lying in the town of Morehouse has been actually paid to the State, the evidence on the last trial, in my opinion, discloses a state of facts which brings this ease within the rule laid down in People ex rel. Cooper v. Registrar of Arrears (114 N. Y. 19). Were it not for the provisions of section 132 of •chapter 908 of the Laws of 1896 relating to the effect of the Comptroller’s deed, I would, for the reason stated, be in favor of affirming,the" judgment tp the éxtent of the lands in the town of Morehouse in the plaintiff’s deed described. - It is very doubtful whether the land described in the tax deed of December 22, 1845, is identical with the land, described in the tax deed of December 29, 1886. With these suggestions, I concur in the result on the ground that the Court of Appeals in Meigs v. Roberts (162 N. Y. 371) has practically held that the said act of 1896 is a Statute of. Limitations and that as such it applies to a case like the one now under consideration, not alone for the reason stated by Justice Kellogg, but generally against the plaintiff.

Parker, P. J., and Smith, J., concurrred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event. . .  