
    The People ex rel., The Lewis & Fowler M’f’g Co., App’lt, v. John C. McGuire, Registrar of Arrears, Resp’t.
    
      (City Court of Brooklyn,
    
    
      General Term,
    
    
      Filed December 22, 1890.)
    
    1. Taxes—Cancellation of sale.
    Where a lease has been delivered to the purchaser at a tax sale mandamus does not lie to compel a cancellation of the sale, as the lessee is not before the court and has no redress against the city.
    2. Same—Laws 1883, chap. 114.
    Persons holding tax leases are not bound to come in under a notice pursuant to § 1 of chap. 114, Laws 1883, and prove the validity of their leases.
    8. Same.
    Relator’s property was sold in 1876 for unpaid water rates and a sewer assessment and a lease was given to the purchaser. The assessors pursuant to chap. 114, Laws 1883, fixed and certified an amount to be assessed in lieu of all taxes, etc. On motion for a mandamus to have the sales can-celled, Held, that all that relator was entitled to was the entry of a memorandum that as between him and the city the water rates and assessment were included in the assessor’s certificate.
    Appeal from order denying motion for a writ of mandamus,
    
      David Barnett, for app’lt; Almet F. Jenks, for resp’t.
   Clement, Ch. J.

This was an application for a mandamus to compel the registrar of arrears of this city to cancel, discharge and mark paid, canceled and discharged upon the records in his office, the water rates of the years 1870 and 1871, and a sewer assessment on premises owned by the relator, and also to cancel alleged, sales for their non-payment, and the certificates granted and issued thereupon. The property in question was sold in 1875 to one D. H. Goodrich, and leases were issued to him. It is not denied by the respondent that the sales for the unpaid water rates and sewer assessment were invalid, but this admission does not bind Mr. Goodrich. The assessors, pursuant to chap. 114 of the Laws of 1883, fixed and certified to the registrar of arrears an amount to be assessed upon the property of the relator, in lieu of all arrearages, which included all taxes, assessments and water rates unpaid for which sales had been made, and which sales were, for any reason, invalid. The court, at special term, denied the application for the writ of mandamus, and the relator appeals.

We are of opinion that the relator was not entitled to all the relief asked for. He was not entitled to a mandamus commanding the registrar to cancel the sale, for the reason that leases had .been given to the purchaser, and by § 21 of title VIII of the charter of 1873, which was in force at the time of the sales in question, the registrar of arrears was bound to keep a record of all sales made for assessments, taxes and water rates. It is sought by this proceeding to compel the registrar to remove from his books the evidence of the sales, in a proceeding where the parties who "hold the leases have no opportunity to be heard. We do not think, as claimed by the counsel for the appellant, that the rights of parties who held tax leases were affected by the notice given under § 1 of chap. 114 of the Laws of 1883. The assessors were required to publish a general notice “ requiring the owner or owners of all land in said city affected by any arrearages of taxes, assessments or water rates, and all other persons having any interest in or lien upon such lands, to "present in writing to said board, within ninety days after the passage of this act, their objections to any tax, assessment or water rates, so in arrears, and any reason why any part of such arrearages should be reduced or remitted.” Parties holding tax leases were not bound to come in under such a notice and prove the validity of their leases.

It is contended that the cases of the People ex rel. Townshend v. Cady, 19 J. & S., 316, and Clementi v. Jackson, 92 N. Y., 591, are in point, but in so far as in this proceeding it is sought to cancel the tax leases, we think that they have no appplication. In the Clementi case, supra, a new tax had been levied in place of an invalid one on which a.sale had been made. Glementi sought to compel the registrar to receive the new tax in which the purchaser had no interest. In the case of the People ex rel. Cooper v. Registrar of Arrears, 114 N. Y., 19; 22 N. Y. State Rep., 158, Judge Follett says: “ Mandamus is the proper remedy to compel the defendant to receive the taxes and'cancel the sale, and the purchaser not having received a conveyance is not a necessary party thereto.”

We deduce from the foregoing decisions the principle that .the property owner may pay a tax or assessment, even though the "premises have been sold for the non-payment of such tax or assessment, provided the city cannot show, as against the .property owner, that the sale is valid. If no lease has been given, the sale may be canceled, because the purchaser is simply an assignee of the tax. If the lease has been delivered, the sale cannot be canceled, because the lessee is not before the court, and because he has no redress against the city. Coffin v. The City of Brooklyn, 116 N. Y., 159 ; 26 N. Y. State Rep., 421.

The relator was entitled to have entered on the records of the registrar of arears a memorandum showing that, as between the relator and the city, the water rates and the sewer assessment were included in the certificate of the board of assessors. Such an entry the relator is entitled to, and no more, and the books of the registrar of arrears should otherwise remain as they are.

The order denying a mandamus should be reversed, and the motion granted, without costs, in the form suggested in this opinion.

Osborne, J., concurs.  