
    CHARLES S. CLARKE, Respondent, v. THE MAYOR, &c., OF NEW YORK CITY, Appellants.
    
      Taxes and assessments—Money paid on tax sale, when cannot he recovered —Sale ivhen not void.
    
    To entitle the purchaser of property in New York city, at a sale under § 926 of the Consolidation Act, for non-payment of taxes, to recover back the amount paid, he must show that the sale made was void, and it is not enough to show that the certificate given by the clerk of arrears under § 941 of said act did not comply with the statute, or that the lease thereafter made was void.
    It cannot be held that such a sale is void because the books of assessment of property for taxation, required to be kept, by the tax commissioners, “ open for examination and correction, from the second Monday of January until the first day of May.....on the last mentioned day the same shall be closed ”—were not open for correction on May 1, of the year in question. It was not the intention of the statute that corrections should be received after April 30.
    It cannot be held that such a sale is void because the clerk of arrears, when the certificate aforésaid was given, exacted a greater sum for interest than was allowed by law; nor is it void on account of an excessive charge for advertising the sale, made by said clerk.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 3, 1888.
    Appeal from judgment.
    The facts appear in the opinion.
    
      Morgan J. O’Brien, corporation counsel, and Woolsey Carnalt, for appellants.
    
      John Townshend, for respondent, on the question considered in the opinion, argued :
    I. The alleged taxes were void because the books of record were closed on April 30 instead of on May 1, and because the commissioners did not in the manner required by law advertise that books open, etc. Laws 1859, Ch. 302, 8, 9, 10, 11; Laws 1881, Ch. 134, § 820 Consolidation Act. Instead of advertising that the books would be open until May 1, the commissioners advertised that the books would be open until April 30, inclusive. Instead of keeping the books open until May 1 they were closed April 30, after which applications for corrections were not received, (a) The meaning of the word until has been the subject of many adjudications, with the result that “until” a certain day named, will be inclusive or exclusive, according to the context. King v. Stevens, 5 East. 244; Kendall v. Kingsley, 120 Mass. 94; Isaac v. Insur. Co., L. R. 5 Exch., 296; Bellhouse v. Mellor, 4 Hurl. & N. 120; Ebeel v. Alexander, 45 Ind. 523; Webster v. French, 12 Ill. 302; Thomas v. Douglas, 2 Johns. Cas. 224; People v. Walker, 17 N. Y. 502. (b) In the statute noAV before the court there is much in the context to show that “ until ” Avas used in an inclusive sense. The books are to remain open until first day of May, on which day they are to be closed; and § 11, before the closing of the books of annual record “ on, the first day of May” in each year. The statute is imperative that the books shall not be closed until May 1. There is nothing in the law of 1881, to show a different intention, (c) The provisions for being heard, being of vital importance to the taxpayer, must be regarded as compulsory, and the strict compliance with them, as conditions precedent to any further step to charge him with a tax. Cooley on Taxation, 267; Thames Co. v. Lathrop, 7 Con. 550; State v. Jersey City, 25 N. J. 308; Sioux City v. Washington Co., 3 Neb. 30; Adriance v. McCafferty, 2 Robertson 153. (d) The court will give effect to the statute without regard to the consequences. Remson v. Wheeler, 105 N. Y. 575; Brevoort v. City of Brooklyn, 89 Ib. 128. (e) The construction of the statute by the commissioners will not control the court. Manhattan Savings Ins., 82 N. Y 144.
    II. Too much interest was charged. The tax for 1877 was not due until October 25, and interést could be computed only from that day.
    III. The charge of $ 3 for cost of sale was excessive. Laws 1882, Ch. 410, § 926.
    IV. The lease being void there was a total failure of consideration for the amount paid, and plaintiff was entitled to recover it from defendant. No lease was given. The void lease was not a lease, it wras no more than blank paper. The contract to deliver a lease has never been fulfilled. One who undertakes to convey undertakes to convey by a good title. Me Adam, Land. & Ten. 170, 2d ed; 1 H. Bl. 280 ; 1 Ib. 123. There being a total failure of consideration plaintiff was entitled to recover the amount paid. Chapman v. City of Brooklyn, 40 N. Y. 372. This case decided the exact point. The case has never been directly questioned or doubted, but has been referred to with approval in Nash v. Mayor, &c., 9 Hun 221; Rochester City v. Rush, 80 Ñ Y. 311; Dewey v. Niagara, 4 Sup. Ct. 
      
      (T. & C.) 611; Strusburg v. Mayor, &c., 45 Super. Ct. 516 ; Com’wealth B’k v. Mayor, &c., 43 N. Y., 191; Newman v. Livingston, 45 Ib. 685 ; B’k of Chemung v. Elmira, 53 Ib. 55; DeGrauw v. Queens Co., 13 Hun 384 ; Newell v. Wheeler, 48 N. Y. 490.
   By the Court.—Ingraham, J.

The plaintiff was the purchaser at a sale for non-payment of taxes of certain property in the city of New York, and brings this action to recover the amount that he paid on account of such purchase, on the ground that the sale and lease delivered under it were void.

The sale was made under provisions of section 926 of the Consolidation Act of 1882. By that section the clerk of arrears is required to cause such lands and tenements to be sold at public auction, for a term of years, for the purpose and in the manner expressed in the advertisement required to be made, viz.: for the lowest term of years at which any person or persons shall offer to take the same, in consideration of advancing the taxes, etc., and interest thereon to the time of the sale, together with the costs and charges of the advertisement, and the clerk of arrears is required to give to the purchaser a certificate of such sale.

Section 941 provides that the clerk of arrears shall, unless the owners redeem the lots within two years from the date of the certificate, execute to the purchaser a lease of the lands sold.

To entitle the purchaser to recover the amount paid . he must show that the sale made Avas void. It will not do to show that the certificate did not comply with the statute, or that the lease subsequently executed and delivered Avas void. The purchaser buys the right to a certificate which gives him the right to a lease unless the owners of the property redeem within íavo years.

On making such purchase at the auction sale and paying the money, he became entitled to the certificate from the clerk of arrears and he can enforce that right if it is denied him; hut the fact that the. certificate given, and which he accepts in satisfaction of that right, does not comply with the statute, does not avoid the sale or entitle the purchaser to the return of the purchase money paid. The remedy of the purchaser in that case, is to compel the delivery to him of a proper certificate, not the return of the money which he lias paid for the right to have the certificate.

Plaintiff relies upon several grounds to show that the sale was void. First, that the books of assessment of property for taxation were not open, during the year this tax was imposed, as required by § 8 of chapter 302, Laws of 1859. It is there provided that the tax commissioners “ shall keep in their office books.....to be called the annual record of the assessed valuation of real and personal estate.....which books shall be open for examination and correction from the second Monday of January, until the first day of May; but on the last mentioned day the same shall be closed to enable the commissioners to prepare the assessment rolls.”

The closing of the books contemplated by this section, • is not a physical act, but is a simple' limitation of the time during which those interested can apply to have mistakes in the assessments of property for taxes corrected. Putting the book away in the safe at four o’clock on April 30, was not a closing of the book, nor was the opening of the book on the first day of May an opening of the book, and when the statute says that on the first day of May the books shall be closed, it means that on the first day of May applications for the correction of assessments will not be received. T think therefore that this section of the statute was complied with.

The second objection taken is, that when the certificate was given, the clerk of arrears exacted a greater sum for interest than was allowed by law; but this did not affect the sale. The property was sold for the lowrest term at which any person wmuld offer to take the same, in consideration of advancing the tax, etc., and interest, together with the charge for advertising. The amount that the purchaser was to pay was fixed. The term of years that the purchaser was to obtain on the payment of that amount was uncertain, and the purchaser having offered to pay the amount required by the statute to be paid for the term of twenty-nine years, he was entitled to the certificate on paying the amount. If a larger sum was demanded, he should have refused to pay it and insisted upon the certificate being delivered to him on payment of the correct amount. If he paid too much it was paid voluntarily and could not avoid the sale.

The same remark applies to the third reason given by the plaintiff, viz.: that the charge for advertising was excessive.

As before stated the fact that the lease given two years subsequent was void, would not avoid the sale. Plaintiff would be entitled to a valid lease, and if refused might bring an action for damages for the breach of the agreement to give a lease, or for a specific performance of the agreement for a lease; but this would not be such a total failure of consideration as would entitle plaintiff to recover back the amount paid on the bid.

The cases cited by the plaintiff are not in conflict with this construction of the statute. In Chapman v. The City of Brooklyn, 40 N. Y. 375, the court held that the proceedings of the city in making the assessment were utterly and entirely void, on account of the omission to institute and carry on the proceedings as against the owner or occupants of the lands intended to be affected by them. It was not a case of a valid tax or valid sale, but the tax itself was void and consequently there could be no valid sale to enforce the tax and there was no consideration for the payment of the money.

The other cases -cited by the plaintiff have been examined, but in all of them it appears that the tax itself, or the sale under the tax, was void.

The judgment should therefore be reversed, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.  