
    George Clinton, Appellant, v. Fred H. Krull, Respondent.
    Fourth Department,
    March 4, 1908.
    Real property — evidence — tax deed from county treasurer — presumption of regularity — assessment in city of Niagara Falls — constitutional law — tax provisions in charter.
    Seclion'131 of the Tax Law providing that a Comptroller’s tax deed is presumptive evidence of the validity of prior proceedings applies also to tax deeds executed and delivered by county treasurers.
    The assessors of the city of Niagara Falls are bound to follow the method of assessment prescribed in the city charter rather than that prescribed in section 29 of the General Tax Law, and an assessment made pursuant to the city charter is valid.
    The provisions of the charter of the city of Niagara Falls applicable to the assessment of lands of non-resident owners are not unconstitutional and void on the theory that they deprive an owner of property without due process of law in that the lands assessed are not located with reasonable definiteness.
    Appeal by the plaintiff, George Clinton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 3d day of July, 1906, upon the report of a referee.
    Judgment and order affirmed, with costs, upon the opinion of Tuttle, referee.
    
      George Clinton and George Clinton, Jr., for the appellant.
    
      David Tice, for the respondent.
   All concurred; Robson, J., not sitting.

The following is the opinion of the referee:

Tuttle, Referee :

The plaintiff brings this action under the provisions of article 5, title 1, chapter 14 of the Code of Civil Procedure to compel the determination of the defendant’s claim to certain real property situate in the city of Niagara Falls, Niagara county, N. Y.

The complaint alleges that the plaintiff has been in possession of the real property in question as the sole owner in fee thereof since the 5th day of December, 1898, on which day one Martin Clark and Cora Lee Clark, his wife, made, executed and delivered to this plaintiff a deed of said premises which deed was recorded in the office of the clerk of Niagara county on the 1st day of May, 1899, in liber 235 of Deeds, at page 170, apd further alleges that the defendant herein unjustly claims an interest or estate in said premises adverse to that of the plaintiff herein, to wit, the adverse claim that he is seized of said premises in fee by virtue of a pretended deed or conveyance executed and delivered to him on or about the 21st day of May,_ 1904, by the county treasurer of Niagara county.

The defendant herein does not deny in his" answer the plaintiff’s claim, but sets up by way of defense that said real property was duly assessed for taxation in the year 1900, when it was owned by and in the possession of the plaintiff, and that State and county taxes for said year were thereafter duly levied against it and returned unpaid to the county treasurer of Niagara county, and such regular proceedings thereafter were had and taken that the said real property described in the complaint was sold for such unpaid taxes according to the provisions of the General Tax Law of the State of New York, and the defendant herein became the purchaser at such sale and thereafter and on the 21st day of May, 1904, received from the county treasurer of Niagara county a deed or conveyance of the lands in question.

It is to be determined, therefore, upon the issues joined in this action, whether or not the deed from the county treasurer to the defendant herein, executed pursuant to the provisions of the General Tax Law of the State of New York, being chapter 908 of the Laws of 1896 and the acts amendatory thereof and supplemental thereto, conveyed to the defendant herein an absolute estate in fee, subject only to any claims the county or State might have thereon for taxes, liens or incumbrance, "'and thereby dives.ted the plaintiff herein of his prior title to the premises.

In order that said deed should have any legal effect in conveying any right or title to said premises, it will be conceded, I think, that it should conform to the provisions of said Tax Law relative to the assessment, levy and enforcement of payment of taxes against said property except as the same may be modified by the provisions of the charter of the city of Niagara Falls.

Upon the trial the defendant assumed the affirmative and showed that the treasurer of Niagara county !on the 18th day of November, 1902, sold at public auction and in parcels the lands described in the complaint to the defendant herein under proceedings specified by the Tax Law, subsequent to a regular assessment of said premises by the assessors of the city of Niagara Falls in the year 1900. Subsequent to such sale the deed from the county treasurer to the defendant herein was executed and delivered and this deed was offered and received in evidence. No proof was given of any of the proceedings provided by the Tax Law prior to the sale referred to and the execution and delivery of the deed. The defendant relying iipon the presumption that the deed itself was presumptive evidence that the sale and all proceedings prior thereto from and including the assessment of the lands sold, and that all notices required by law to be given previous to the expiration of the time allowed by law for the redemption thereof, were regular and in accordance with all of the provisions of the Tax Law relating thereto, which presumption is authorized by section 131 of the law referred to. This section applies to sales by the comptroller of the State, and it is claimed by the defendant that the presumption in favor of the deed in this case which was executed and delivered pursuant to the provisions of section 153 of the same law, is authorized by the provisions of section 151 which provides that “ the provisions of article six of this act, entitled sales by comptroller for unpaid taxes and redemption of lands,’ shall, in so far as it is not otherwise herein provided, govern and control the action of the county treasurer, who shall perform the duties therein devolved upon the comptroller, and the same rights and remedies shall be deemed to exist under the provisions of this article as are provided for in said article six.”

The first question to be determined, therefore, is whether or not the contention of the defendant in this respect is correct because if the presumptions provided by section 131 do not apply to tax deeds executed and delivered by the county treasurer, then there .is no evidence in this case that the several acts required by the Tax Law have been performed which would authorize the execution and delivery of the deed in question.

On this point the plaintiff claims that section 157 does not refer to any presumption specified by section 131 upon the ground that said presumption is only a rule of evidence and that section 157 provides that “ the same rights and remedies ” deemed to exist under the provisions of section 131 shall be applicable to purchasers at a sale by a county treasurer and that the presumption provided in section 131 is neither a right nor a remedy.

I do not find that the courts have been called upon to decide this point in any previous case, and while it will be conceded that the presumptions relied upon are not in any sense a remedy, I am not prepared to agree with the contention of counsel that it is not a right or that it is nothing more than a rule of evidence.

The only cases in which I find that the question has been raised are those of Bennett v. Kovarick (23 Misc. Rep. 73) and Welstead v. Jennings (104 App. Div. 179). In these cases it seems- to have been assumed by the court that it was the intention of the Legislature that the rights mentioned in section 157 should include the presumptions provided for in section 131, and that, therefore, a deed of a county treasurer carried with it to a purchaser the same rights to assume that all proceedings prior thereto were regular as would be presumed in favor of a purchaser under a deed from the comptroller, and after a careful review of the Tax Law in question I am of the opinion that the presumptions relied' upon by the defendant in this action should be allowed.

Having disposed of this question, we pass to the question as to whether or not the original assessment of the property described in the complaint was legally made and' was in conformance with the general or special laws applicable thereto.

We are first called upon to decide as to whether or not the assessors of the city of ¡Niagara Falls were bound to follow the method of assessment as provided by the General Tax Law, or whether they were bound to follow the method of assessment as prescribed by the charter of the city of Niagara Falls, both of which laws were in effect at the time the assessment was made.

I am of the opinion that in making the assessment referred to the assessors were bound to conform with the provisions of the charter of the city of Niagara Falls applicable thereto at the time it was made. The charter of this city, which is known as chapter 143 of the Laws of 1892, was in force at the time of the making of these assessments and provided in section 68 thereof that “ the three city assessors shall constitute the board of assessors” and except as therein otherwise provided they should “perform all the duties and possess all the powers conferred by law upon the assessors of the different towns of the State in and for said city, and be subject to all the obligations and perform all’’ the duties specified in this act in reference to the assessment of property within said city for the purpose of levying the taxes imposed or which may be imposed by the common council as well as by the supervisors of the county of Niagara. * * * They shall make one general assessment-roll for each ward, acting jointly therein * * *; they shall assess each lot or parcel of land separately, giving the name of the owner, if known, or if not, the name of the occupant, if occupied, the part of the lot assessed, the number thereof, the street, side of street and number of feet fronting on street, or such other brief description as will enable the land intended to be known and located.”

The provisions of the General Tax Law (§ 29) applicable to the assessment of this property are as follows: “ The real property of

nonresidents of the tax districts shall be designated in a separate part of the assessment-roll, and if it be a tract subdivided into lots, or parts of a tract so subdivided, the assessors shall:

“ 1. Designate it by its name, if known by one, or if not distinguished by a name, or the name is unknown, state by what lands it is bounded.
“ 2. Place in the first column the numbers of all unoccupied lots of any subdivided tract, without the names of the owner beginning at the lowest number and proceeding in numerical order to the highest, but the entry of the name of the owner shall not affect the validity of the assessment.
“ 3. In the second column and opposite the number of each lot, the quantity of land therein.
“4. In the third column and opposite the quantity, the full value thereof.
“ 5. If it be a part of a lot, the part must be distinguished by boundaries, or in some other way by which it may be identified. If any such real property be a tract not subdivided or whose subdivisions can not be ascertained by the assessors, they shall certify in the roll that such tract is not subdivided, or that they can not obtain correct information of the subdivisions, and shall set down in the proper column the quantity and valuation as herein directed. If the quantity to be assessed is a part only of a tract, that part or the part not liable must be particularly described.”

A comparison of the provisions of these two methods of assessment will show at a glance that &n assessment made in strict conformity to one would not be valid under the provisions of the other. It is, therefore, necessary at the outset to determine, as stated before, which of these two laws apply.

After a perusal of the authorities I am of the opinion that the assessors were bound by the provisions of the charter of the city of Niagara Falls in force at the time the assessment was made. This charter was a special act, becoming a law on the 17th day of March, 1892.

The provisions of the Tax Law applicable to the assessment in this case became operative on the loth day of June, 1896. The Tax Law did not specifically' repeal the provisions of the charter referred to, and I take it to be a well-settled rule of construction that a special statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application unless the intention of the Legislature to repeal or alter the special law is manifest, although the terms of the general act would, taken strictly, and but for the special law, include the case provided for by it. (Matter of Wood, 35 App. Div. 363; Collins v. Long Island City, 132 N. Y. 321; Cottle v. Cary, 61 App. Div. 66; 73 id. 54; Buffalo Cemetery Association v. City of Buffalo, 118 N. Y. 61; Bennett v. Kovarick, 23 Misc. Rep. 73; Welstead v. Jennings, 104 App. Div. 179.)

Having, therefore, determined that the assessment should be made according to the provisions of the special act of the Legislature known as the charter of the city of Niagara Falls, and it appearing conclusively from the evidence that all the provisions relative to the assessment of non-resident lands as provided by said charter were complied with, we come to the question,. which it seems to me is the real point at issue in this case, as to whether or not the provisions of the charter of'the city of Niagara Falls applicable to the assessment of lands of non-resident owners are unconstitutional and void as claimed by the plaintiff herein by reason of the fact that they do not with reasonable definiteness allow the lands assessed to be located.

In making his claim the plaintiff relies particularly upon two decisions of the Court of Appeals of this State, to wit: Matter of New York Central & H. R. R. R. Co. (90 N. Y. 342); Zink v. McManus (121 id. 259). In both of these cases the assessment was made under the provisions of the General Tax Law and in both cases the assessment was against a part of a lot, and the law under which the assessment in both of these cases was made specifically provided that if a part of a lot is to be assessed the part must be distinguished by boundaries or in some other way by which it may be identified. In the first case referred to we find that the assessment was made against “part of outer lot number ninety-three, and bounded and described as follows: Beginning in the southerly line of Exchange Street at the point of intersection thereof with the easterly line of a lot of land formerly owned by Louis Le Couteulx, now deceased, and which point is supposed to be five hundred and nine and eight-twelfths feet distant easterly at right angles from the easterly line of Washington Street; thence south seventy-six degrees east along the southerly line of Exchange Street, sixty-five feet; thence south seventy-six degrees and thirty minutes east, one hundred and fifty-nine feet to the Little Buffalo Creek; thenoe down the said creek southwesterly thirty-two feet; thence north fifteen degrees and forty-five minutes west, one hundred and ninety-four feet to the place of beginning, containing more or less.” It is apparent that it would be impossible from the assessment as made in that case to designate the part of the property intended and especially owing to the fact that its northerly boundary was not at any time definitely situated, but followed the course of a creek. The court in the opinion says that it was the duty of the assessors to designate or describe the land by boundaries or in some other way by which it may be known.’ ” This is the provision of the Tax Law hereinbefore referred to. Testimony of surveyors was also introduced in that case by which it was definitely determined that the description for taxation was insufficient to enable any one to locate the land. The court in the same case states that the assessment “ is intended to be notice to the owner of the burden cast upon his lands.” In the case of ZvnJc v. McManus the assessment was against a part of a farm and being made under the General Tax Law it became necessary for the assessors in describing a part of a lot to distinguish it by boundaries. The court in its opinion states that “ a reasonably accurate designation or description of the land assessed and sold is necessary in order to give validity and effect to the conveyance.” In that assessment the feet frontage and the northerly boundary line alone were given and under such conditions the criticism of the court was properly made. In both of the cases referred to the court simply applies the rule that such a description should be used in making the ordinary assessment as would enable the land to be located, and in both of the cases referred to the assessors did not conform to the Tax Law relative to the method of assessing parts of lots.

In the case at bar I find that in making the assessment of the lands in question the assessors have treated it as a subdivided tract and that they have described each lot separately in direct accordance with the pi’o visions of the charter of the city of Niagara Falls applicable to such assessments, and in addition thereto have given the course and number of feet of each lot from intersecting streets. I also find that in the month of August, 1894, six years before the assessment in question wras made, the plaintiff’s grantor, with others, caused to be filed in-the Niagara county clerk’s office a map or subdivision of the property assessed and that the designation of the property by lots upon the assessment roll corresponds with the subdivision of the property into lots as laid down upon the map filed; that the map in question was drawn to a scale and the lots laid down thereon can be definitely located and their dimensions thereon given. I also find that in the year 1898, two years before the assessment in question was made, the charter of the city of Niagara Falls was amended so as to provide for the establishment of an assessors’ office, and the appointment of an assessors’ clerk, and for the preparation and filing in said office of assessors’ maps representing the subdivisions of property within the city of Niagara Falls together with the names of the owners. In complying with the provisions of this amendment, and in order to prepare the necessary maps referred to, among other records to which the assessors of the city of Niagara Falls had access were those of the Niagara county clerk’s office, and it is fair to assume that in the preparation of their records they consulted in regard to the property in question the map which had been filed some four years previous. (Matter of Wood, 35 App. Div. 363.) At any rate we find that an assessment, which was made in the year 1900, designates the lots by exactly the same letters and numbers as they are designated upon the subdivision map as filed, and certainly it cannot be said that under such conditions the plaintiff in this action was not definitely apprised of that portion of his property against which said assessment was levied.

It also appears that said lots were staked out and marked by use of ordinary wooden stakes such as surveyors use, and that they could be located with little difficulty by any person and with reasonable certainty. Owing to the fact that the distance and course from intersecting streets was given in the original assessment and having thus been located, the dimensions are readily ascertainable from the public records of the Niagara county clerk’s office, and it would seem, under such conditions, that the requisites as to location and quantity of laud contained in each lot or parcel were sufficiently complied with. The additional statement of the course and distance from intersecting streets is provided by the latter portion of the provisions of the charter, which, after prescribing a definite method of assessment, also provides or such other brief description as will enable the land intended to be known and located.” The deed from the county treasurer to the defendant herein specifically refers to the map filed by the plaintiff’s grantor and, therefore, the conveyance itself is definite and conclusive as to the property intended to be conveyed. The evidence showed that this was the same land referred to in the plaintiff’s complaint, and, therefore, the title of the plaintiff in the premises.was divested by the county treasurer’s deed. The evidence in the ease showed that the defendant himself, who is not a surveyor or one accustomed to perform the duties of such,, could locate the lots in question from the street lines and stakes which have been referred to and the dimensions stated in the original assessment roll. The plaintiff offered no evidence whatever except copies of the assessment rolls. The presumptions, if any, should be in favor of sustaining the assessment as made, as the law contemplates that all property shall bear its just proportion of taxes assessed for public purposes.

I am, therefore, of the opinion that the provisions of the charter of the city of Niagara Falls applicable to the assessment of the property in question are sufficient to allow the property so assessed to be located with reasonable certainty and to give sufficient notice to the owner or owners of said property of the part or portion intended to be assessed, and that the assessment as made in this case was fully sufficient for such purposes and, therefore, is not unconstitutional in that it deprives the owner of his property without due process of law. The lands in question being unoccupied, no notice was necessary to be given under the provisions of section 134 of the Tax Law. The conveyance, therefore, by the county treasurer of the property in question to the defendant herein created in him an absolute estate in fee therein, subject to all claims the' county or State might have for taxes, assessments or other incumbrances, and, therefore, the defendant is entitled to immediate possession of said premises and judgment should be entered herein barring the plaintiff and all claiming under him from any right or title therein. 
      
      Amd. by Laws of 1898, chap. 339, and Laws of 1902, chap. 344.— [Rep.
     
      
       Amd. by Laws of 1897, chap. 490, and Laws of 1898, chap. 339.— [Rep.
     
      
       See Tax Law, §§ 280, 281.—[Ref.
     
      
       See 1 E. S. 891, §§ 11, 13, subd. 5. Revised in Tax Law, § 39.— [Rep.
     
      
       See Laws oí 1892, chap. 148, § 72, as amd. by Laws of 1898, chap. 180.— [Rep.
     
      
      Amd. by Laws of 1903, chap. 171.— [Rep.
     