
    The People of the State of New York ex rel. Alexander McClinchie, Respondent, v. William A. Prendergast, as Comptroller of the City of New York, Appellant.
    Second Department,
    October 20, 1910.
    Tax—right to surplus on tax sales in former city of Brooklyn where deed has not been given within ten years — mandamus proper remedy to compel cancellation of sale and payment of surplus—defect of parties.
    The assignee of certificates of a tax sale made in the city of Brooklyn in 1895 is entitled to the surplus and accumulated interest held by the comptroller and to an order compelling him to cancel the sale where no deed was given within ten years from the time of the sale, so that by limitation of time the certificates have ceased to be a lien and the title has reverted to the original owner.
    The cancellation of the sale and the payment of the surplus may be compelled by mandamus and the certificate holder is not required to recover a judgment as a condition precedent.
    But as the Greater New York charter (§ 1587) as amended provides that all payments by or on behalf of the corporation shall be made through the proper disbursing officer of the department of finance on vouchers filed in said department by means of warrants drawn on the chamberlain by the comptroller and countersigned by the mayor, such part of the order on mandamus as requires the payment of the surplus will be reversed if the mayor has not been made a party.
    Appeal by the defendant, William A. Prendergast, as comptroller, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of April, 1910, granting the relator’s motion for a peremptory writ of mandamus.
    
      
      James D. Bell [Archibald R. Watson with him on the brief], for the appellant.
    
      Wilmot I. Morehouse, for the respondent.
   Thomas, J.:

In 1895 and 1896 lands in Brooklyn were sold for unpaid taxes, at sums that left a surplus of $454, and this action is by the assignee of the certificates of sale to compel the comptroller of the city of New York to cancel the sales and to pay him such surplus and accumulated interest. No notice of sale was served on the owner. No deed has been given, or can be given, after the expiration of ten years, and, under section 4 of title 8 of the charter of the city of Brooklyn (Laws of 1888, chap. 583, as amd. by Laws of 1894, chap. 580), it was the duty of the registrar of arrears “ to cancel on the records in his office all such sales where no deed shall have been delivered within ten years from the date of sale.” Section 6 of said title provides that the registrar of arrears shall deposit the money with the treasurer of the city of Brooklyn, and that the surplus “ shall be held for the use of, and paid over to, the person legally entitled, upon his establishing his rights thereto.” Who is such person in the present case? Certainly not the city. The owner of the land has it, and as all rights to it pursuant to the tax sale have ceased by limitation of time, his title and enjoyment is freed from disturbance. The purchaser has assigned the certificates, and, although they had ceased to be liens on the land, they carried to the assignee the purchaser’s rights under the sale. Section 5 of said title (as amd. by Laws of 1889, chap. 368) provides that in case of redemption payment of the sum paid on the sale with certain additions shall be made. This .includes the surplus. Such payment must be made to the person entitled, if redemption be not had, to take the land. Such person is the holder of the certificate. Hence the certificate carries the title to the surplus upon failure to redeem. But the defendant urges that the remedy is by action to recover judgment preliminary to mandamus to compel the comptroller -to pay, and that relator has not such status as enables him to compel cancellation of the certificates. The intention of the statute is that at the expiration of ten years ■ the right of the purchaser to take the land or of the owner to redeem it shall expire, that is, that the sale shall be ineffective to convey title, that the surplus shall be returned to the purchaser or his assigns or successors in ownership, and that the récord shall show that all rights under the sale are closed. The landowner has an interest in compelling cancellation of the sale, as the record is a cloud on his title to the land and the purchaser has an interest, as the transaction leaves in apparent doubt his right to the surplus. It is true that after the ten years the owner cannot redeem, but within .that time he is entitled to the surplus if the purchaser gives notice of the sale and the time to redeem thereupon shall have expired. The purchaser has the right to have the record show that the sale has been canceled because no- deed has been given, and no right to the surplus transferred thereby to the owner of the land. In such way the purchaser’s title to the surplus is evidenced. It is considered that as regards the cancellation of the certificate the relator is entitled to remedy by mandamus. But the chamberlain of the city of New York is the custodian of the money, inasmuch as he is the successor to the treasurer of the county of Kings, who on January 1, 1896, succeeded to the powers and duties of the treasurer of the city of Brooklyn and who was thereafter ex offieio the treasurer of the city of Brooklyn. (Laws of 1895, chap. 954; Greater N. Y. Charter [Laws of 1897, chap. 378], § 1587, as amd. by Laws of 1899, chap. 433; Laws of 1901, chap. 466, and Laws of 1903, chap. 395.) Section 149 of the Greater New York charter (as amd. by Laws of 1901, chap. 466, and Laws of 1904, chap. 247; since amd. Laws of 1910, chap. 545) requires that “All payments by or on behalf of the corporation, except as otherwise specially provided, shall be made through the proper disbursing officer of the department of finance, on vouchers to be filed in said department, by means of warrants drawn on the chamberlain by the comptroller, and countersigned by the mayor.” The petitioner is entitled to the money, but as the mayor has not been made a party, the order must be modified so as to deny the writ for the payment of the money, and as so modified the order is affirmed, without costs.

Hirschberg, P. J., Woodward, Jenks and Burr, JJ., concurred.

Order modified so as to deny the writ for the payment of the money, and as so modified affirmed, without costs.  