
    William H. Hall, Plaintiff, v. The City of Lockport, Defendant.
    (Supreme Court, Niagara Special Term,
    May, 1915.)
    City of Lockport — charter of — provision as to general taxes — advertisement of tax sale — duration of lien for taxes — when court without jurisdiction.
    Under section 271 of the charter of the city of Lockport (Laws of 1911, chap. 870), which provides that all general city taxes thereafter levied shall be a lien upon the land on which they are assessed for ten years from the first publication of the notice of such tax by the city treasurer, the lien is for ten years only except upon a stay of proceedings to enforce said lien.
    The common council of said city on the expiration of the ten-year period should not cancel and discharge a lien for taxes; such action is improper and unnecessary as the statute itself cancels the lien.
    There can be no presumption that proceedings to enforce such a lien have been stayed or that the city can make such a claim, and no relief can be granted in an action brought under section 1638 of the Code of Civil Procedure to compel the determination of a claim to real property, as the necessary element of an apparent lien is absent, and the court is without jurisdiction to grant the relief asked for.
    Action to compel the determination of the question as to whether certain unpaid taxes are liens on the property assessed, and whether the common council should cancel and discharge the same.
    Charles L. Nicholls, for plaintiff.
    Roy H. Ernest, for defendant.
   Pound, J.

This case is submitted upon an agreed statement of facts for the purpose of obtaining a judicial construction of section 271 of the present charter of the city of Lockport (Laws of 1911, chap. 870)-, which reads as follows:

§ 271. Tax liens. All general city taxes hereinafter levied in said city shall be a lien upon the lands on which they are assessed, for ten years from the first publication of the notice of such tax or assessment by the treasurer, and shall have priority in the order of time in which they become liens. If the proceedings to enforce said 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. Such liens shall be superior to any mortgage, judgment or other lien of any nature affecting said premises except state and county taxes- and liens in favor of the United States.”

This provision of the revised charter is a re-enactment of section 237 of the revised city charter of 1886 (Laws of 1886, chap. 120).

The charter of the city of Lockport provides for the foreclosure by action of the lien of city taxes as mortgages on real property are foreclosed in courts- of record, culminating in judgment of foreclosure and sale by the city treasurer. See City Charter, Art. XI, §§ 225-296, inc.

The first question is whether the taxes are a lien upon the lands assessed for more than ten years from the first publication of the notice thereof by the treasurer, except when proceedings to enforce the same have been stayed.

The Code of Civil Procedure, section 1251, provides that judgments docketed in the county clerk’s office are a charge upon real estate for ten years after filing the judgment roll, and no longer.” The words- “ and no longer ’ ’ are missing from the charter provision, but I am unable to attach any especial significance to their absence. If the taxes are a lien “ for ten years ” the words are meaningless unless it is implied that the lien then lapses.

These tax foreclosures are supposed to be begun forthwith when the city treasurer certifies to the corporation counsel the unpaid taxes which have been in his hands for one year, if they amount to fifty dollars, or for three years, in any event. Ten years is ample time to put taxes into judgment if the city officials move promptly. If they are dilatory and proceedings to enforce the tax liens are not stayed, the lien may be lost. All this seems so plain as to require no argument beyond the mere statement of fact.

The next question is whether the common council should cancel and discharge taxes when ten years have expired since the first publication of the notice of such tax by the treasurer and the lien has lapsed.

Such action is improper and unnecessary and beyond the powers of the common council. The law cancels the lien of such taxes and one might with equal propriety expect a judgment creditor to satisfy a judgment after it has ceased to be a lien on real estate as to expect the common council — even if it had the power to do so — to cancel taxes after they cease to be a lien.

The final question is what relief can be granted in this action which is brought' under the Code of Civil Procedure, sections 1638,1639, subdivision 3, to compel the determination of "a claim to real property.”

It must be shown in order to obtain a judgment in plaintiff’s favor (1) that the taxes are an apparent lien on the property assessed therefor, void in fact though seemingly valid, having some show of validity; and (2) either that defendant (a) unjustly claims that such lien is valid or (b) that it appears from the public records that such a claim might unjustly be made.

There can be no presumption that proceedings to enforce the lien have been stayed or that the city can make such a claim. The necessary element of an apparent lien is absent, as the records disclose when the taxes set forth in the complaint cease to be a lien, and the city makes no claim of a lien by virtue of a stay of proceedings, or otherwise. The court is without jurisdiction to grant relief.

Ordered accordingly.  