
    William Strang, Resp’t, v. Boswell Cook, App’lt.
    
      Supreme Court, General Term, Fifth Department,
    
    
      Filed January 20, 1888.)
    
    1. Town bonds—Railroad—Judgment—When defective petition jurisdictional—Laws 1869, ch. 907, as amended by laws 1871, ch. 925.
    This action was brought under Laws 1881, ch. 531, known as “An act for the protection of tax payers ” to prevent the payment of certain bonds of the town of Mentz, in the county of Cayuga, held by the defendant and to require him to deliver them up to be canceled. The bonds in question were issued pursuant to an adjudication of the county judge of that county in a proceeding taken and had under Laws 1869, ch. 907, as amended by Laws 1871, ch. 925, which provides that whenever a majority of the tax payers of any municipal corporation who are taxed or assessed for property not including those taxed for dogs or highway tax only, upon the last preceding assessment roll or tax lists, shall make application to the county judge * * * by petition verified by one of the petitioners, setting forth that they are such majority of taxpayers, and are taxed or assessed for or represent such majority of such taxable property, etc., the proceeding provided for shall be had in the manner prescribed. Held, that the adjudication of the county judge founded upon a petition which set forth that the petitioners were a majority of the tax payers of the corporation, cts., but did not exclude from the calculation those taxed for dogs or highway tax only, was void for want of jurisdiction, -and open to collateral attack.
    2. Same—Person holding right acquired under void judgment—Not PROTECTED BY FACT THAT HE IS BONA FIDE HOLDER.
    
      Held, that if the petition was such as to furnish evidence however slight of jurisdiction to permit judicial action upon the question, although insufficient to support the judgment on direct proceedings to review it in that case, a bona fide holder of rights taken under the "judgment while it remained unreversed would be protected, but that the judgment being void the fact that this defendant was such holder did not avail.
    3. Same—Cloud on title—Right of action to remove—Is continuing AND NOT BARRED BY STATUTE OF LIMITATIONS.
    Bonds issued pursuant to the provisions of Laws 1869, ch. 907, are by its provisions declared to be a charge upon the real and personal estate within the limits of the municipal corporation. Held,, that this action was analogous in principle to an action to remove a cloud upon the title to land and that the right to bring such an action was a continuing one and not barred by the statute of limitations while the cloud continued to exist.
    Appeal from judgment entered upon decision of Cayuga special term.
    The action was brought by the plaintiff as a tax-payer of Mentz in the county of Cayuga, against the supervisor, the bonding commissioners of the town, and the appellant to restrain the proceedings to provide funds to pay certain town bonds issued in aid of the, construction of the Cayuga Northern railroad, and to require the appellant to deliver up those of them owned by him that they might be canceled. The plaintiff recovered judgment for such relief.
    
      
      Howland, & Wheeler, for appl’t; F. D. Wright, for resp’t.
   Bradley, J.

This action was brought under Laws of 1881, chapter 631, known as “an act for the protection of tax-payers to prevent the payment of $3,000 of the bonds •of the town of Mentz in the county of Cayuga, held by the defendant Cook, and to require him to deliver them up to be canceled. Those bonds were issued pursuant to the adjudication of the county judge of that county made in July 1872, in a proceeding taken and had under Laws of 1869, chapter 907, as amended by Laws of 1871, chapter 925, with a view to aid the construction by the Cayuga Northern Railroad Company of its road and in the manner which the •statute then provided were transferred to that company. The plaintiff charges that the bonds were illegally issued on the ground that the petition by which the proceeding before the county judge was instituted was defective, and as a consequence the adjudication was without jurisdiction, and the bonds void; and although the petition stated that the subscribers to it were a majority of the tax payers of the town, whose names appeared on the last preceding assessment roll as owning or representing a majority of the taxable property of the town, and the fact was so adjudged by the county judge, the petition failed to state that the petitioners were such majority of tax payers who were taxed or assessed for property “not including those taxed for dogs or highway tax only” upon such roll.

It has been held that this omission in the petition is jurisdictional and has the effect to render the proceeding and the bonds issued pursuant to it invalid. Town of Wellshoro v. N. Y. and C. R. R. Co., 76 N. Y., 182; People v Smith, 55 id., 135. And this view is founded upon the construction and effect given to the statute, which provides that “ whenever a majority of the tax payers of any municipal corporation,—who are taxed or assessed for property not including those taxed for dogs or highway tax only, upon the last preceding assessment roll or tax list, shall make application to the county judge—by petition verified by one of the petitioners, setting forth that they are such majority of tax payers and are taxed or assessed for or represent such majority of taxable property *' etc., the proceeding provided for shall be had in the manner prescribed. If the question were res nova we might have some difficulty in reaching the conclusion that the omission referred to was a defect rendering the petition insufficient to support the validity of the proceedings founded upon it, in view of the later provision in the same section that “the word tax .payer” shall mean any corporation or person assessed or taxed for property either individually or as agent, trustee, guardian, executor or administrator, or who shall have been intended to have been thus taxed and shall have paid or are liable to pay the tax as hereinbefore are provided, or the owner of any non-resident lands taxed as such, not including those taxed for dogs or highway tax only.” Laws 1871, chapter 925, section 1.

If correctly understood here this provision so defines the term “tax payer” as to exclude from it for the purposes of the act and the proceedings under it “those taxed for dogs or highway tax only,” and it would seem that the latter are no less not included by the omission than by the use of the words in question, and that nothing would be added to the import of the petition by the insertion of them because the petition was made under the statute which for the purpose of its interpretation it would also seem may be referred to as effectually as if such definition had been inserted in the petition. Union Hotel Co., v. Her see, 79 N. Y., 454, 458.

No reference appears by the report of the cases before cited to have been made to this defining provision in the act, and the apprehension that the attention of the court there may not have been called to it is somewhat permitted by the remark of Finch, J., in Hills v. Peekskill Savings Bank (101 N. Y., 490), that “the existence of this defect, it is said, we are bound by a precedent of our own making to declare stripped the proceeding * * * of jurisdiction and left it absolutely void '* * *. There appears not to have been presented to the mind of the court a provision of the act of 1869, now brought to our attention, which bears strongly upon the inqniry involved. It is not necessary to say whether to that new consideration there is or is not a satisfactory answer.” The learned judge evidently had reference to this definition of the tax payer given by the provision of the act of 1869, as amended in 1871, as none other is found to which the remark is deemed applicable. But whatever may otherwise have been our views we must be governed in the conclusion upon that question by the determination of Town of Wellsboro v. N. Y. and C. R. R. Co. (76 N. Y., 182), from which in that respect the case at bar is not distinguishable.

In that case it was also held that the adjudication founded upon such a petition was more than a mere judicial error,, and that the defect went to the jurisdiction, and did not, permit judicial action, and therefore was subject to collateral attack. And in view of the doctrine applied in this state in that respect the fact that the defendant is a bona% fide holder of the bonds is not important.

The rule would, however, be otherwise if the petition. could be deemed to furnish any evidence however slight, of jurisdiction to permit judicial action upon the question, although insufficient to support the judgment on a direct proceeding to review it. In such case a bona fide holder of rights taken under the judgment while it remained unreversed would be protected. Skinnion v. Kelley, 18 N. Y., 355; Kissock v. Grant, 34 Barb., 144; Jackson v. Rosevelt. 13 John., 97; Woodcock v. Bennet, 1 Cow., 711.

But the character given to the petition ..by the town, of Wellsboro case does not, we think, permit the application of that rule although the plaintiff be such bona fide holder of the bonds issued pursuant to the adjudication.

The contention that the relief sought is not available" to the plaintiff because the subject of it may be made a matter of defense, would be supported in an action dependent only upon the general equity powers of the court for relief, inasmuch as the alleged defect appears by record, upon which the holder of the bonds must rely to support his right to recover upon them or to enforce their payment. Town of Venice v. Woodruff, 62 N. Y., 462. But the. right of action is given by the statute to taxpayers,.for the purposes of the relief in question, and the circumstances which are required to support for such purpose, and the reasons which deny a right of action under such general equity powers of the court are not applicable as an objection to the maintenance of this action. Metzger v. Attica and Arcade R. R. Co., 79 N. Y., 171. This action was commenced more than ten years after the bonds were issued and transferred by the commissioners of the town; and for that reason it is contended that it is barred by the statute of limitations. There is no limitation specially prescribed for such an action by the statute, which in such case provides that the action must be commenced within ten years after the cause of action accrues. Code Civ. Pro., § 388. The force of this contention may not be free from doubt. The statute declares the bonds issued pursuant to its provisions, to be a charge upon the real and personal estate within the limits of the municipal corporation. Laws 1869, chap. 907, § 6. And the only ground upon which the action seems to be supported as against the statute of limitations is that its purpose and the effect of the relief is the removal of a cloud from the title to real property. In Town of Venice v. Breed (65 Barb., 598), the opinion was expressed by Mullin, P. J., to the effect that the statute of limitations in such case was. applicable as a bar.

And, on review (Town of Venice v. Woodruff, 62 N. Y., 471,.472), doubt was expressed by Rapallo, J., about the availability of the statute of limitations to such a case, and suggestion was made that the action was analogous in principle to one instituted for the removal of a cloud upon the title to land, which would bring it within the doctrine of Miner v. Beekman (50 N. Y., 337), where it was held that the right of action to remove a cloud from the title to land is a continuing one that may be asserted at any time during its existence, and is never barred by the statute of limitations while the cloud continues to exist. People v. Cady, 18 J. & S., 399. .

We are inclined to think that this principle is properly applicable to an action having the purpose of the one at bar as it may in some sense be treated as having in view the removal of a cloud upon the title to the land within the town. And the fact that the right to maintain this action is statutory, does not so qualify the remedy as to deny to it the application of the principles of law applicable to those for similar relief not dependent for their creation and support upon the statute. There seems to be no other question requiring consideration.

The judgment should be affirmed.

Barker, P. J., and Haight, J., concur.  