
    The People of the State of New York ex rel. The National Park Bank, Appellant, v. Herman A. Metz, as Comptroller of the City of New York, and Daniel Moynahan, as Collector of Assessments and Arrears of the City of New York, Respondents.
    First Department,
    December 30, 1910.
    Mandamus to compel cancellation of tax sale — answering affidavits — writ may issue although, not. binding upon purchaser — statutes authorizing taxation strictly construed — presumption as to regularity — tax roll not complying with statute — defective description — reference to survey — evidence—judicial notice of private survey — failure to publish notice of sale — evidence — presumption as to performance of official duty.
    Where the petition for a writ of mandamus to compel the cancellation of a tax sale alleges that no lease of the premises was issued to the purchaser, an allegation in the answering affidavit that leases were issued to such purchasers as surrendered the certificates of sale is' no proof that such certificate was surrendered.
    
      Mandamus lies against the proper public officers to compel them to accept payment of a void tax and to cancel a sale based thereon, even though the purchaser at the sale is not a party to the proceeding so that his rights cannot be adjudicated therein.
    Statutes authorizing taxation and assessment are construed strictly in favor of the landowner, and the court cannot declare any act, step or proceeding required by the Legislature to be immaterial. To render an assessment, or a tax sale based thereon, valid every requisite of the statute having a semblance of benefit to the owner must be strictly or substantially complied with.
    Any presumption that a tax lease is evidence that the tax was legally imposed and that the proceedings were regular fails where the assessment roll shows that the statutory requirements were not'complied with.
    An assessment roll purporting to assess the lands of a non-resident owner which failed to comply with the provisions of the Revised Statutes in that the quantity of land was not given in the second column, and in the column headed “ Description óf Property and Supposed Owner,” nothing but the word “Unionport” appeared, is insufficient to sustain the assessment, even though the land be regarded as a part of a tract not subdivided within the meaning of the statute.
    The defect in describing the land by the word “ Unionport” is not cured by the fact that a preceding page of the roll shows that reference was made to a map of Unionport, a village in the county, for a description' of land in a tax roll cannot be sustained by consulting other parts of the roll to. which the particular assessment makes no reference.
    Moreover, even if it be assumed that the preceding part of the roll containing the words, “Map of Unionport,” may be read into the description, it is still insufficient where there is nothing to show what particular map of that village' is intended.
    The court cannot take judicial notice of private- surveys.
    The question of the sufficiency of a description of property for the purpose of assessment or taxation is not to be determined by the intention of the assessors, but depends upon whether the statutory requirements have been followed, and whether the land has been described with sufficient definiteness to enable the 'owner and all persons interested therein to know by an examination of the roll, or to ascertain by inquiry at the proper office, what lands are assessed.
    Although the Revised Statutes did not require proof of the publishing and posting of a notice of sale to be made a matter of record, a tax sale is void where it does not appear from the records of the town board that it designated papers in which the notices should be published, if it do not otherwise appear that the notices were published in. papers designated by the board as required by law. '
    The usual presumption of due performance of official duty does not obtain in matters relating to taxation which involve a forfeiture of ownership or right to possession of property. Nor is there a presumption of due performance of official acts owing to mere lapse of time when the act if performed Would be.a matter of record, and there is no such record, or evidence that it has been lost or destroyed.
    
      Appeal by the relator, The National' Park Bank, from an order of the Supreme Court, made at the New York Special- Term and entered in the office of the clerk of the. county of New York on the 5th. day of October, 1908, denying the relator’s motion for a peremptory writ of mandamus to compel defendants to receive and receipt for a certain tax and to cancel the record of a tax sale of certain premises owned by the relator.
    
      Hcurold Swain, for the appellant.
    
      William H. King [Curtis A. Peters with him on the brief], for the respondents.
   Laughlin, J. :

The petition of the relator, shows that by two- deeds of conveyance, one dated September 18 and the - other September 20, 1888, each duly recorded in the office of xthe register of the county of New York in liber 1146 at pages 474 and 4YY respectively on the third day of October in the same year, it duly acquired title to a plot, of- land then in the town of Westchester, county of Westchester, but now in the borough of the Bronx, known as lot No. 239 on. a certain map entitled “ Map of Unionport, Westchester County, New York,” made by Bennett & Savery, civil engineers, bearing date the 1st day of November, 1852,-and filed in the office of -the register of the county of Westchester on the 23d day of August, 1854, as map No. 29, having a frontage aiid boundary of 205 feet on the southerly side of Tenth street, bounded easterly by lot No. 238, 216 feet, southerly on Ninth street 205 feet and westerly on Avenue E, 216 feet, the premises being uninclosed and vacant. On the annual assessment roll for the year 1888 there was an attempt made to assess these premises and to impose a tax of eight dollars and eighty-eight cents thereon, and on the 1st day of October, 1889, they were sold " by one Michael Eaucli, the supervisor of the town, to one Benjamin Sprague for the term of 1,000 years on account of the non-payment of the tax and interest, penalties and other charges aggregating ten dollars and ninety-five cents. The petitioner avers that no lease was issued to the purchaser on the tax sale and the answering affidavit states that leases were issued to such purchasers as surrendered the certificates of sales is no proof that Sprague surrendered his certificate of sale. This proceeding has been instituted to compel the comptroller of the city and the collector of assessments and arrears of taxes to accept payment of the tax together with interest thereon, and to have the alleged tax sale canceled; and the theory on which that relief is predicated is that the tax has not in fact been paid for the reason that both the tax and the tax sale were void.

Were it not for precedents I would not hesitate to express the opinion that after the public officials have collected a tax or assessment by a sale of the premises, and have issued to the. purchaser a certificate which may ripen into a lease, the owner claiming that the sale was void should be left to the remedy which he has by a suit in equity for a cancellation thereof as a cloud or threatened cloud on title (King v. Townshend, 141 N. Y. 358; Stewart v. Crysler, 100 id. 378), or for redemption to which the purchaser at the tax sale would be a party and in which his rights could -be adjudicated (People ex rel. Andrews v. McGuire, 126 N. Y. 419), for since the purchaser is not a party to a mandamus.proceeding, his rights cannot be affected thereby (Matter of Clementi v. Jackson, 92 N. Y. 592; People ex rel. Andrews v. McGuire, supra), and, therefore, nothing of practical substance is accomplished by a cancellation of a tax sale in a mandamus proceeding to which the appropriate public officials alone are parties; but although the adjudication in such a mandamus proceeding can have no- effect on the rights of the purchaser at the tax sale, it has been authoritatively decided that an owner of real estate is entitled to bring a mandamus proceeding to compel acceptance of payment of a void .tax and to cancel a tax sale based thereon, and if the sale be void it is the duty of the court to direct its cancellation. (People ex rel. Townshend v. Cady, 51 N. Y. Super. Ct. 316; affd., 99 N. Y. 620; Matter of Clementi v. Jackson, 92 id. 591; People ex rel. Cooper v. Registrar of Arrears, 114 id. 19. See, also, People ex rel. Andrews v. McGuire, supra, and Matter of Jones, 18 Hun, 327.) The authorities sustaining the landowner’s right to this remedy were not overruled by People ex rel. Andrews v. McGuire (supra), where it was held, on the particular facts then before the court, that the tax sale was not void,'and, therefore, -the owner, if entitled to any relief, should seek it by an action in equity to be relieved of the sale or for redemption. The theory on which ' the remedy is given is that-the officials owe a duty, to the owner to accept payment'and to discharge the lien of the tax, and that this can only be met.by showing that the tax has been collected by valid statutory proceedings, and that the' decision is not an adjudication with respect to the title, and is not binding'on. the purchaser at the tax sale. We are,- therefore, required to pass upon the validity of the tax and of the tax sale on the facts presented by the record, - and if it be'clear that the tax sale is void, then it appears to be our duty to direct its cancellation.

• In considering the points presented it.is necessary to bear in mind the rules of law by which; they are to be determined. Although it is entirely competent for the Legislature to levy, or authorize the levy, of taxes and assessments upon land, -.yet due regard to the' rights and interests of property owners requires that statutes authorizing the imposition of taxes and assessments must be construed strictly in favor of the landowner, and it is not competent for the courts to declare immaterial any- act, step or proceeding required by the Legislature (Stebbins v. Kay, 123 N. Y. 31; Clason v. Baldwin, 152 id. 204), and, therefore, in order to render a tax or assessment, or a s'ale of the premises therefor, valid, every requisite of the-statute, strictly construed, having a semblance of benefit to the owner, must be complied with, if not strictly, at least substantially. (Clason v. Baldwin, supra; Sanders v. Downs, 141 N. Y. 422; Lockwood v. Gehlert, 127 id. 241; Schreiber v. L. I. R. R. Co., 127 App. Div. 286; King v. Townshend, 141 N. Y. 358; Cromwell v. MacLean, 123 id, 474, 487; People v. Ladew, 189 id. 355; Saranac Land & T. Co. v. Roberts, 195 id. 303; Zink v. McManus, 49 Hun, 583; affd., 121 N. Y. 259.) As illustrating the extreme limit to. which this doctrine is carried, attention may be drawn to the cases of Lockwood v. Gehlert and Clason v. Baldwin (supra), where it was held that tax deeds were Void on account of the mere' omission of a. seal from a certificate made by the Comptroller, when every other statutory requirement had been complied with, and the. facts essential to warrant, the making of a proper certificate were duly established. In-Sanders v. Downs (supra), notwithstanding a statute which made the county treasurer’s deed on a sale of land foi’ unpaid taxes conclusive evidence that the sale was regular arid presumptive evidence of the regularity of all prior proceedings, it was held that the insertion of the name of the owner of unoccupied lands, who was a non-resident of the town, in a column Hinder the heading non-residents, with his address which plainly showed his non-residence, invalidated the assessment, because the law only required the insertion in the assessment roll of the names of residents of the town who would become personally liable for the nonpayment of the tax. The court was' of opinion that the assessors only intended to assess the land, and that the name of the owner ■ was doubtless inserted for identification, or as part of the description of the land, and yet the court, conceding that there would have been no harm in inserting the name in the second column for the purpose of describing or identifying the land, held that the insertion of the name in the first column left it doubtful whether it was inserted as part of the description and for the purpose of identifying the premises, or for the purpose of including the owner among the taxable inhabitants and thus making him personally liable, and in so holding, the court say: The case is, doubtless, what may be termed a border one, and the deviation from the express direc- ' tions of the statute providing for the manner of imposing taxes in such cases may appear to be slight, but the judgment below is sustained by the decisions of this court in. cases that differ in no important element -of fact from this. (Stewart v. Crysler, 100 N. Y. 378 ; People v. Hagadorn, 104 id. 516.) Any construction of the statute which would in any degree encourage erroneous, lax or careless methods of making up the assessment roll, would disturb the Security with which the law guards private rights, and at the same time prove detrimental to public interests.

“ If it was possible by any fine distinction to take this case out of the general rule applicable to assessments of this character, it would not be desirable to weaken or qualify by any such exception the safeguards which the Legislature and thecourts have erected against the invasion of property rights otherwise than in strict compliance with law.”

In the case at bar it is not claimed that there is any statutory presumption with respect to the validity of the tax, or of the tax sale, or -any of the steps or proceedings' upon which the sale was founded. It ■ appears, however, that a tax lease on such a sale was made “ presumptive evidence that such tax was legally imposed, and of the regularity of all the proceedings, attending the assessment and sale, and of the sale.” (Laws of 1874, chap. 610, § 6, as amd. by Laws of 1877, chap. 193, § 5.) As has been seen, there is- no competent evidence that a lease was issued, but even if it had been issued that would not avail respondents, for when there is a statutory presumption that a tax or assessment, or a sale for non -payment thereof, of the steps or proceedings relating thereto, are valid, sucpresumption is at once overcome on the production of the assessment roll or official'action, showing that the statutory requirements have not been complied with. (Sanders v. Downs, supra; Stewart v. Crysler, supra; People v. Ladew, supra; Schreiber v. L. I. R. R. Co., supra)

The first objection to the validity .of the tax presented by the petitioner is that the description of the land is insufficient. The assessment is on page 96 of the assessment roll: • The following is presented by respondents as a transcript of the assessment-roll with respect to the premises in question :

Assessment Roll of Non-Resident Peopeety, Town of Westchesteb, Westchesteb County, New Yoek, 18.

The petition shows, however, that the word “Unionport” is only at the head of the column on the page containing this assessment, opposite the first assessment on the page, and is not repeated by ditto marks or otherwise opposite this assessment. It appears ■ by an affidavit, read in opposition to the motion, that on a preceding page of the assessment roll, at the beginning of assessments against numbered lots of. Unionport, there is entered in ' the' column, “Description of Property and Supposed Owner,”, the words, “Map of Unionport,” but the assessment roll contains nothing further to identify the lot or the map. There is no reference to the date of the map, or by whom made, or where it is filed. The return of this tax unpaid contains, no description of the premises other than the designation of the lot as 239 in a column under the heading, “¡No. of Lot,” and the word, “ TJnronport,” in another column, headed, “Location,” opposite the lot number. In the certificate of sale the only description of the land is that in a column headed, “Acres,” the words, “Lot No.” and “239,” under them appear, and in a column headed, “ Description of Land,” are the words, “ Map of Unionport.” It is eoncéded that the provisions of the Revised Statutes govern in the determination of the questions presented.

The premises were vacant and unoccupied and owned by a nonresident of the town. The controlling provisions are contained in article 2 of title 2 of chapter 13 of part 1 of the Revised Statutes as they existed at the time in question. (See 1 R. S. 391; 2 R. S. [Banks’ 7th ed.] 991.) The first part of the article is devoted to - assessments of land owned by residents of the town or occupied. Sections 11, 12 and 13 relate to the assessment of unoccupied lands owned by non-residents, and they are as follows :

“§ 11. The lands of non-residents shall be designated in the same assessment roll, but in a part thereof separate from the other assessments, and in the manner prescribed in the two following sections.

“ § 12. If the land to be assessed be a tract which is subdivided into lots, or be part of a tract which is so subdivided, the assessors shall proceed as follows :

“ 1. They shall designate it by its name, if known by one, or if it be not distinguished by a name, or the name he unknown, they shall state by what other lands it is bounded ;

“ 2. If they can obtain correct information of the subdivisions they shall put down in their assessment rolls, and in a first column, all the unoccupied lots in their town or ward, owned by non-residents, by their numbers alone and without the names of their owners, beginning at the lowest number and proceeding in numerical order to the highest;

“ 3. In a second column, and opposite to the. number of each lot, they shall set down the quantity of land therein, liable • to taxation; .

“ 4. In a third column, and opposite to the quantity, they shall set down the valuation of such quantity ;

“ 5. If such quantity be a full lot, it shall be designated .by. the number alone; if it be a part of a lot, the part must be designated by boundaries, or in some other way, by which it may be known.

“ 13. If the land so to be assessed be a tract which is not subdivided, or if its subdivisions can not be ascertained by the assessors, they shall proceed as follows:

“ 1. They shall enter in their roll the name or boundaries thereof, as above directed, and'certify in the roll that such tract is not subdivided, or that they can not obtain correct information of the subdivisions, as the case may be ; * * * ”

It will be observed that, these statutory provisions require that if the land to be assessed be a tract, or part of a tract, subdivided into lots, not only must the numbers of ¿lie lots be given in the first column, but the .trad itself must be designated by its name if known, and otherwise it must be stated by what lands it is bounded. That requirement was wholly omitted here. The statute' required that the quantity of land be given in the second column, while here the second column was headed “ Description,” and was vacant. The designation of the tract in the case of a non-resident is a substitute for the name of the owner or person in possession required in the case of the assessment of lands as resident lands. (Hubbell v. Weldon, Hill & D. 139.) It is manifest that the assessment cannot be sustained on the theory that the land Was part of a tract not subdivided within the meaning, of the statute, for viewed in' that light, there would be a total failure to comply with the requirements of section 13.

It is contended by counsel for, the respondents that the word “Hnionport” in the column headed “ Description of Property and Supposed Owner ” relates to all of the assessments on the page and, by a reference to. a preceding page of the assessment roll, shows that it had reference to a" map of Hnionport, which was a village in the county of Westchester. . This was not, I think, a compliance with tile statutory requirements. I am of opinion that it will not do to sustain a description of land in a tax roll by consulting .other parts of the roll, to which the particular assessment contains no reference,*for that would'require an examination of.the entire roll, and-not merely the part which the statute contemplated should be complete 'in itself as to the property assessed. The only , authority

for describing the property in a subsequent proceeding for a sale' of the lands for the collection of the tax is the description as assessed. Manifestly, if the description be confined to' lot 239, Unionport, it is altogether too indefinite, and the tax would be invalid. Assuming, however, that the preceding part of the roll may be consulted and that the words Map of Unionport ” may be read into this description, still I am of opinion that the description would be insufficient, for it is not to be assumed that there is only one map of the village of Unionport, and with no other words of identity it cannot be said that the owner is chargeable with notice that the description has reference to a particular map of the village of Unionport, made by certain surveyors and filed in .the office of the register of the county of Westchester on a given day. Of course, if a tract'of which the court could take judicial notice had been specified by township range and lot number, that would have answered (Colman v. Shattuck, 2 Hun, 501; affd., 62 N. Y. 348), but the court cannot take judicial notice of private surveys. The question of the sufficiency of a description of property for the purposes of assessment or taxation is not to be determined by the intention of the assessors, but depends upon whether the statutory requirements have been followed and whether the land has been described with' sufficient definiteness to enable the owner and all persons interested therein to know by an examination of the roll, or to ascertain by inquiring at the proper office, what lands are assessed, and to identify them as one particular tract or parcel of land answering to a description upon-which a purchaser would be

entitled, to possession. (Hubbell v. Weldon, Hill & D. 139; People ex rel. Clark v. Oliver, 1 T. & C. 572; Oakley v. Healey, 38 Hun, 244; Dike v. Lewis, 4 Den. 237; 2 Barb. 344; Clark v. Holdridge, 12 App. Div. 613; Tallman v. White, 2 N. Y. 66; Clason v. Baldwin, supra; Zink v. McManus, supra; Matter of N. Y. C. & H. R. R. R. Co., 15 Wkly. Dig. 137; affd., 90 N. Y. 342; City of Rochester v. Farrar, 44 Misc. Rep. 394; Smith v. Walker, 21 N. Y. St. Repr. 453; People ex rel. Buffalo Burial Park Assn. v. Stilwell, 190 N. Y. 284; Lawton v. City of New Rochelle, 114 App. Div. 884; Black Tax Titles [2d ed.], 139.)

I am also of opinion that the tax sale was void on other grounds. The statute does:not seem, to require that- proof of publishing and posting the notice of sale be made a matter of record, 'and it cannot' be held, 1 think, as' matter of law on the record before us, that the notices were not published for the. requisite period and were not posted and were not in due form ;■ but the proceedings of the town board are matters of record, and it does not- appear therefrom that the board designated the papers in which 'the notices should be published, nor does it otherwise appear that the notices were published in papers-designated by the town board, as required by law, (Laws of 1874, chap. 610, § 4, as amd. by Laws of 1877, chap.193, § 4.) . The presumption -of the due performance of official duty which, prevails in■ other cases is not applicable to matters of taxation involving a forfeiture of the ownership .or right to possession of property, nor is there, in such cases, any presumption of the due performance-of official acts based on mere lapse of time, when the act if performed would be .a matter of record and there is no record of it and no. evidence that one .existed and has been lost’ or destroyed.. (Hilton v. Bender, 69 N. Y. 75; People ex rel. Townshend v. Cady, 51 N. Y. Super. Ct. 316; affd., 99 N. Y. 620.) The regularity and validity of the proceedings subsequent to the sale are not presented for decision by the1 prayer for relief contained in the petition, which, is limited to compelling the - acceptance of the tax with-lawful interest and the-cancellation of the tax sale, and, therefore, no opinion is expressed with respect thereto.

It follows, therefore, that the order should be-reversed, with ten dollars-costs and disbursements, and the motion .for a -peremptory writ of mandamus granted as prayed for, with ten. dollars costs. ■

McLaughlin, Clabke and Scott,. LL, concurred ; Ingraham, P. j., concurred in result. ’

Order reversed, with ten dollars costs and disbursements, and motion-granted, with ten dollars costs.  