
    Florence S. Clark, Respondent, v. Elizabeth H. Sprague and Others, Defendants. William G. Schmidt and Others, Appellants.
    (No. 2.)
    Second Department,
    June 8, 1906.
    Municipal corporations—taxation of lands owned by municipality not held for public purposes — when title of purchaser at tax sale is marketable.
    Premises conveyed to the city of Brooklyn by the Brooklyn and Jamaica Railroad Company in 1864, pursuant to chapter 320 of the Laws of 1853, and pursuant to an agreement ratified by chapter 475 of the Laws of 1855, not held by said city for public purposes, were subject to taxation and sale under the Revised Statutes as they stood in 1889.
    The Revised Statutes as then existing, as well as the present Tax Law, made lands owned by a municipality not held for public purposes liable to taxation. Hence, a title to such lands acquired under a tax s.ale is marketable, and a vendee will not be relieved from his agreement to purchase.
    Moreover, when the vendor has since obtained a quitclaim deed to said lands from the city of New York, said city has ratified the' prior tax sale, and the . title is marketable.
    Appeal by William G. Schmidt and others 'from an order of the Supreme Court, made- at the Kings County Special Term and entered in the offied of the clerk of the county of Kings on the 6th day of October, 1905, directing the appellants to complete their purchase of certain premises.
    
      W. H. Burby, for the appellants.
    
      James C. Foley, for the respondent.
   Miller, J.:

The appellants, purchasers at a partition sale, decline to complete their purchase upon the ground of defect in the title. It appears that the parties to the partition suit derive their title from a tax sale and deed thereunder, made February 4, 1889, by the register of arrears of the city of Brooklyn. The premises had been conveyed to the .city of Brooklyn by the Brooklyn and Jamaica Railroad Company by deed dated December 29, 1864, which was given pursuant to chapter 220 of the Laws of 1853, and an agreement made pursuant thereto April 10, 1855, ratified by chapter 475 of the Laws- of 1855. The appellants claim that the city could 'only-part with its title in the .manner pointed out by said act'of 1-855, to wit, by conveyance to the adjoining owners, or by sale at public auction, and that taxes could' not validly be levied against it, or a valid sale of the premises be made for unpaid taxes thus unlawfully levied. No question is raised respecting the regularity, of the assessments,, fax sale or deed .thereunder, except as aforesaid. When the objection of the appellants to the title was raised, the plaintiff’s attorney volunteered to obtain,"and has since obtained, ,a quitclaim deed of- the premises from the city of New York, which has been tendered the appellants together with the referee’s deed.

Atjthetime of the imposition of the taxes for which'the land was sold, the statute (R. S. [7-th ed.] pt. 1, chap. 13, tit. 1) provided ■: “ Section 1, All lands and all personal estate within this State, whether owned by individuals or by corporations, shall be liable to taxation, ■ subject to the exemptions ■ hereinafter specified.” [Section 4 contained the provisions for exemptions, and while " said section expressly included lands belonging to the State or the United States, no reference was made to lands belonging to municipal corporations. It was nevertheless held that it'was not.the intention of the Legislature, to tax the lands of'municipal corporations held for public, purposes, (People ex rel. Mayor, etc., of N. Y. v. Assessors, 111 N. Y. 505 ; City of Rochester v. Town of Rush, 80 id. 302.) If the lands in question were held by the city of Brooklyn for a public purpose, it may be assumed that the assessments (except possibly such as were for public improvements),,the tax-sale thereunder, and the deed pursuant thereto, were void, but no case has been called fo our attention holding that real property owned by -municipal corporations and not held for public purposes; could not be taxed under the tax laws then existing; on the contrary, every case which held that lands so owned were not taxable proceeded upon the distinct theory that the lands were held for public 'purposes.- The distinction between the ownership by a municipality of property for public or governmental purposes, and for -purely private or commercial pur-' poses, was., early .recognized in this State,- and has always been observed. (See Bailey v. Mayor, 3 Hill, 531 ; Lloyd v. Mayor, 5 N. Y. 369.) The present Tax Law (Laws of 1896, chap. 908) provides: “ § 4. Exemption from taxation.—The following property shall be exempt from taxation; * * * 3. Property of a municipal corporation of the State held for a public' use, except the portion of such property not within the corporation.” It is clear that under the statute as it now exists all property of municipal corporations not held for public use is taxable. It seems to me clear that said act of 1896 did not change the existing law in this respect,, and that the only change in the law effected by the statute was to make taxable lands held for a public use but not located within the corporation owning them. (See People ex rel. City of Amsterdam v. Hess, 157 N. Y. 42.) Certainly if a municipality is to be considered a private individual in respect to its ownership of lands not held for public use, no reason can be suggested for saying that it was not the intention of the Legislature to include such lands in a general statement providing in effect that all lands should be liable to taxation, except such as the statute exempted, especially when it is considered that taxes were levied for other than municipal purposes.

It is not suggested that the lands in question were held for a public purpose, even assuming that they were originally conveyed to the city for such purpose. It appears by the statutes referred to supra, which respectively authorized and ratified the agreement-pursuant to which the conveyance was made, that the transaction had to do with a public improvement, but the city could not by holding the land for thirty years, afterwards insist that it should continue exempt from taxation as being held for a public use; moreover, the city does not so "insist, but has ratified the tax deed by its quitclaim deed. We are of the opinion that the appellants are offered a perfectly good title, and that they should, therefore, be compelled to complete their purchase.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred.

Order affirmed, with ten-dollars costs and disbursements.  