
    Thomas Cary, Appellant, v. Hazel M. Koerner, Individually and as Administratrix, etc., of Charles D. Marshall, Deceased, Respondent, Impleaded with Charles Fazler and Others, Defendants.
    Fourth Department,
    July 12, 1910.
    Tax -- tax certificates, city of Buffalo — Statute of Limitations—right of holder to sue for sum paid with interest.
    Under the charter of the city of Buffalo as it existed prior to the amendment made by chapter 384 of the Laws of 1909, the holder of a tax sale certificate issued by the comptroller had the right to enforce it by giving the prescribed notice, to the owner to redeem, and, if the redemption was not made, was entitled to an absolute deed and could maintain ejectment within twenty years from the date of the certificate.
    The right of the holder of a tax sale certificate to maintain an action under section 115a of the charter of the^city of Buffalo (added by chapter 384 of the Laws of 1909), which authorizes an action to recover the amount paid for such certificate with interest instead of taking a deed therefor, is -not limited by section 106 Of the charter (Laws of 1891, chap. 105), which provides that taxes shall he a lien 'for ten years from the delivery of the assessment roll to the treasurer and the first publication of notice of its receipt. Said section 106 only limits the time within which the city' may sell the premises.
    Spring and Williams, JJ., dissented.
    Appeal by the plaintiff, Thomas Gary, from an interlocutory judgment of the Supreme Court in favor of the defendant, Hazel M. Koerner, individually, etc., entered in the office of the clerk of the county of Erie on t.he 11th day of February, 1910, upon the decision of the court, réndered after a trial, at the Erie Special Term, overruling the plaintiff’s demurrer to certain defenses set up in the said defendant’s answer. •• •
    The answer set up as practically the only defense the Statute of Limitations. Such defense was demurred to under section 494. of the Code of Civil Procedure upon the ground that it is insufficient in law.
    The action was, commenced on the 21st day of June, 1909, to foreclose the lien of certain tax sale certificates issued by the comptroller of the city of Buffalo on tax sales made between April, 1891, and May, 1898, and to recover the amounts paid for the property purchased, with interest allowed by law.
    
      
      William H. Cuddeback, for the appellant.
    
      Adolph Rebadow, for the respondent.
   McLennan, P. J.:

The cause of action asserted by the plaintiff depends upon the rights which he acquired under certificates issued to him by the comptroller of the city of Buffalo. The first one was issued on April 29,1891, and one each year thereafter, the last two having been issued respectively ■ on May 28, 1897, and May 26, 1898. Such certificates certified, in substance, that the plaintiff-was the purchaser of the land sold for taxes described in the plaintiff’s complaint. The rights of the plaintiff in the premises clearly must be determined by the law as' it existed when he Obtained such certificates, except as such rights may have been broadened or extended by act of the Legislature. At the times the plaintiff obtained the certificates in question it was only incumbent upon him, in case he desired that such certificates should become in effect an absolute deed, to give notice to the owner of the property against which the tax had been assessed to redeem, and under the law (Laws of 1891, chap. 105, § 114) such notice, in the case of the certificates issued in 1891, 1892, 1893, 1894, 1895 and 1896,- could not be given until after the expiration of eighteen months from the date of sale, and in the case of the certificates issued in 1897 and 1898 not sooner than nine months from the date of the sale. (Laws of 1898, chap. 280, §§ 3, 6.) There was no provision of law which made it mandatory upon the holder of such certificates to give'such notice, but the failure to give such notice, when it was provided that it might be given, extended the time within which the owner might redeem. (Laws of 1891, chap. 105, § 112.). Under the law as it thus stood there can be no question but that the holder of a tax certificate issued by the comptroller had the right to enforce it by giving notice to the owner to redeem, and that if pursuant to such notice redemption was not made, he was entitled to an absolute deed and was entitled to maintain ejectment to recover possession of the premises within twenty years from the date of the certificate. Under the provisions of the charter, as amended, by chapter 384 of the Laws of 1909,' the holder of a certificate was given the right to recover in an action the amount paid for such certificate, with interest, instead of taking a deed therefor, and it is under this provision that this action is brought.

Section 115a of said charter, added by the act of 1909, is as follows : “ The holder, including the city, of any certificate of sale heretofore or hereafter executed by the comptroller, instead of taking a conveyance of the property purchased, may recover the amount. paid therefor as in such certificate mentioned with all interest, additions and expenses allowed by law, and for that purpose may maintain an action in the Supreme Court or in the County Court of Erie county to sell such real property. Jurisdiction of such action is hereby conferred upon said County Court.”

Section 115b of said charter, added by the act of 1909, provides that “ the action provided for in the last section may be commenced at any time after five years from the date of sale mentioned in the certificate of sale; * *

Section 115g of said charter, added by the act of 1909, is as follows : “ The remedy herein provided shall be in addition to all other remedies allowed by law with regard to certificates of sale, and shall not be dependent upon them, or any of them, and may be had whether notice to redeem has been given or not; provided, however, that nothing in this act contained shall be held to revive or validate any claim or demand, the enforcement of which otherwise is barred by lapse of time.”

These provisions were for the benefit of the landowner because he was not deprived of his remedy to redeem and was only required under the provisions of the statute quoted to pay the amount of the taxes, costs and interest. He could redeem if he desired. He was hot compelled to redeem and, in any event, there was to be no personal judgment against him.

It is insisted by the respondent that section 106 of the charter (Laws of 1891, chap. 105), which provides that all taxes and assessments shall be a lien upon the lands on which they are assessed for ten years from the delivery of the tax or assessment roll to the treasurer and the first publication of notice of receipt of same, and shall have priority in the inverse order of time in which they become liens. If the proceedings to enforce such liens have been stayed by a court- or judge, the period of such stay shall not be taken as a part of said ten years ” precludes the plaintiff from recovering the taxes upon the property in question which he paid and which are certified as so paid by the certificate of the comptroller of the city of Buffalo. . .

My notion is that this provision of the charter in no way affects the plaintiff’s rights in the premises; that his rights accrued under section 112 of the charter and that section 106 only limits the time within which the city may make a sale of the premises..

We think it ought not to be held that under conditions such as are presented by the record in this case the taxes against the property have been paid and discharged without any contribution by the owner of such property, or without any surrender of any rights on his part in the premises.

We think the interlocutory judgment should be reversed and the demurrer sustained, with costs of this appeal, and with leave to the defendant to plead over upon payment of the costs of the demurrer and of this appeal. '

All concurred, except Spring and Williams, JJ., who dissented.

Interlocutory judgment reversed, with costs, and. demurrer sustained, with costs, with leave to defendant to .plead over within twenty days upon payment of the costs of tiie demurrer and of this appeal. 
      
       Amdg. Laws of 1891, chap. 105, § 114.— [Rep.
     
      
       This section was materially amended by chapter 641 of the Laws of 1910.—[Rep.
     