
    The City of Rochester, Plaintiff, v. William J. Parker, Impleaded, etc., Defendant.
    (Supreme Court, Monroe Special Term,
    October, 1903.)
    Tax — Sale in Rochester for city taxes — Purchaser’s right to a lease from the city.
    The right of a purchaser, at a city treasurer’s sale in Rochester for city taxes, to a lease of the premises he bid in — provided the owner does not redeem — is under the city charter (L. 1880, eh. 14) subject to the payment of all taxes and assessments then due the city and therefore where it forecloses under its charter its lien for a tax of a subsequent year and sells, the said purchaser, made a defendant, is not entitled to be paid his lien first out of the proceeds of sale but only to the surplus after the taxes and assessments already due the city and the costs of the action have been paid it.
    Under the amended charter of the city of Rochester (L. 1880, ch. 14, tit. V) the city treasurer sellsi every December for taxes of that year remaining unpaid. If the premises are struck off to the city two years are allowed for redemption, after expiration of which the city is authorized to foreclose the lien of the said tax in the same manner as mortgages are foreclosed. In an action brought under this statute the defendant Parker, who had hid in the premises at a city treasureris tax sale in a year prior to the tax being foreclosed herein, objected to that portion of the relief demanded in the complaint which asked that the proceeds of sale be first applied upon taxes due the city and that only the surplus, if any after paying the costs, be applied upon his tax lien. His answer set up the lien of the tax he had bid in and asserted its superiority over the tax the city was foreclosing. A motion was made for judgment on the pleadings.
    W. A. Sutherland, for plaintiff.
    Everett O. Gibbs, for defendant.
   Nash, J.

In opposition to the motion authorities in other States are cited which hold that the sale of land for delinquent taxes of one year destroys the lien of all unpaid taxes of previous years. That when the State sells land in satisfaction of a tax judgment it cannot turn around and defeat the purchaser’s title by reselling the said land for taxes which were due and owing when the judgment was rendered and might have been included in it, but that such a sale must be regarded as an abandonment of all back taxes.”

This is a matter which is regulated by statute, and the rights of the parties are governed by the statute under which the tax is levied and payment enforced.

The charter of the city, under which the taxes here are sought to be collected by foreclosure, provides that the lease to which the defendant Parker may become entitled shall not be executed and delivered to him until all city taxes and assessments upon the lands have been paid.

This makes all prior taxes and assessments paramount to the lease.

Hnder the charter the lessee takes the lease subject to any taxes or assessments that may be charged upon the premises during the term.

The right of the lessee is, therefore, subject to the payment of all prior and subsequent taxes and assessments, and upon foreclosure the lessee becomes entitled only to the surplus arising upon the sale of the premises after all prior and subsequent taxes and assessments are paid.

This is all that the city demands upon this foreclosure.

It is urged that inasmuch as the owner has two years after the sale in which to redeem, and also until the expiraration of thirty days after notice has been served upon him to redeem, and that the defendant is entitled to one year after the 13th of December, 1902, in which to serve a notice to redeem, “ he is not required to pay such taxes until he makes application to the mayor for a lease or conveyance of such lands.”

In other words, the city must wait until the defendant takes a lease before the city can proceed to enforce the payment of any prior tax or assessment upon the land.

I am of the opinion that the statute will not bear that interpretation. The defendant, it is true, has until the time stated in which to perfect his title as lessee, but in the meantime his right is that of a mere lienor, with the right to a lease in case the owner does not redeem. He can pay the prior and subsequent taxes and enforce payment thereof by the owner as a condition of his right to redeem. The right of the city to foreclose the equity of redemption is absolute, and upon such foreclosure the owner and all lienors, including the city having liens, stand in the same position each relative to the other as the owner of land and lienors upon the foreclosure of a mortgage.

Motion granted, and judgment of foreclosure may be entered in accordance with the prayer of the complaint.

Motion granted.  