
    County of Nassau, Appellant, v. Charles L. Phipps, as County Treasurer of the County of Queens, Respondent.
    
      County of Nassau — action by it to restrain a sale,of property therein by the county treasurer of Queens county for unpaid taxes of 1897 — authority of that officer to conduct the sale.
    
    The county of Nassau, which was created by chapter 588 of the Laws o'f 1898 out of the towns of Hempstead, North Hempstead and Oyster Bay in the county of Queens, cannot maintain an action to restrain the county treasurer of the county of Queens from selling property in the new county for unpaid . taxes levied in 1897, as the sale, if illegal, will not deprive the officers of the county of Nassau of the power to resell the land sold, and will not operate as a cloud on the title to such land, the illegality of the sale, if it be illegal, appearing on its face.
    
      Semble, that the county treasurer of the county of Queens having examined, corrected and verified the returns of unpaid taxes for the towns comprised in the new county prior to December 81, 1898, was empowered to conduct the sale for such unpaid taxes by section 8 of the act creating the county, which provides, “Every duty now imposed by law upon any county officer of the county of Queens to be done or performed in regard to any proceeding, record, document, certificate, or other instrument in writing, after the same shall have been commenced, filed or recorded by him, shall continue to be done and performed by such officer in regard to all proceedings commenced or papers filed or recorded by him on of before December thirty-first, eighteen hundred and ninety-eight, as if this act had not been passed ” — especially as section 13 of such act provides that the books, records and documents relating to the towns included in the new county shall remain the property of the county of . Queens.
    Appeal by the plaintiff, the County of Nassau, 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 Nassau on the 6th day of June, 1899, denying a motion for an injunction restraining the defendant from assuming to conduct a sale óf lands for unpaid taxes in the towns of North Hempstead, Hempstead and Oyster Bay, in the county of Nassau.
    
      Edward E. Sprague [Fred Ingraham with him on the brief], for the appellant.
    
      George W. Davison, for the respondent.
   Willard Bartlett, J.:

By chapter 588 of the Laws of 1898 the towns of Hempstead, North Hempstead and Oyster Bay were taken from Queens county and erected into the new county of Nassau.

The question in controversy in this litigation is, whether the county treasurer of the new county or the county treasurer of Queens county has the right to sell for unpaid taxes the property in these three towns, upon which the taxes for 189,fr remain unpaid ; and the complaint prays judgment declaring that the latter officer has no lawful power or authority to sell lands in' the county of Nassau for unpaid taxes or assessments, and asks that he may be perpetually enjoined from so doing.

Upon the oral argument, I expressed considerable doubt as to whether the plaintiff showed any such interest in the subject-matter as would entitle it to maintain this suit for equitable relief. 1 am satisfied, on reflection, that such doubt is well founded. If the sale by the Queens county treasurer was void, it would be ineffectual for any purpose, and the county of Nassau would lose nothing by it. So, also, whichever officer conducted the sale, the proportion of the proceeds to be received by the county of Nassau (irrespective of the question of fees) would remain unaffected. Assuming that under the statutes relating to the subject, the tax sales should be made by the officials of the county of Nassau, which is the plaintiff’s claim, then it follows that the sale by the defendant not only cannot deprive the Nassau county officers of their right and duty to sell, but will not operate as a cloud upon the title to the lands sold, for the illegality of the sales will appear on their face. Under the rule declared in Marsh v. The City of Brooklyn (59 N. Y. 280), the owner of the land could not maintain an action to set aside such a tax sale; therefore, much less the plaintiff, whose only interest in the land is a claim against it for taxes. It is true that an instrument void on its face may practically operate as a cloud upon the title of real estate and affect its value, but the law does not recognize such an injury as sufficient ground for the interposition of equity.

Apart from this conclusion, however, as to the status of the plaintiff county to invoke equitable relief, upon the construction which its counsel give to the legislation which brought it into existence, I am not convinced that such construction is correct. The question is one which involves no important or general principle, and the arguments in favor of one view are, perhaps, but little stronger than the arguments in favor of the other; yet, to my mind, the result reached by the learned judge at Special. Term. seems, on the -whole, to be the most satisfactory.

It is plain that section 8 of the Nassau County Act empowers the county, treasurer of Queens county to complete any proceeding commenced by him before December 31, 1898. “Every duty,” it provides, “ now imposed by law upon any county officer of the county of Queens to be done or performed in regard to any proceeding, record, document, certificate, or other instrument in writing, after the same shall have been commenced, filed or recorded by him, shall continue to be done and performed by such officer in regard to all proceedings commenced or papers filed or recorded by him on or before December thirty-first, eighteen hundred and ninety-eight, as if this act had not been passed.” (Laws of 1898, chap. 588.)

It was held at Special Term that the proposed sale for the arrearages of taxes levied in 1897 was merely “ the final step in the articulated procedure for the collection of these taxes,” and the learned counsel for the appellant concede that this is true in a general sense. They insist, however, that this final step is a separate proceeding within the meaning of the Nassau County Act; and that in order to retain control thereof it was necessary that the county treasurer of Queens county should actually have done something in that separate proceeding during the year 1898. But even if we concede the correctness of this position, I think the papers show that he had actually done the required something. The collection of taxes in Queens county is regulated by special statutes. (Laws of 1877, chap. 268, as amd. by Laws of 1878, chap. 226.) Section 15 of the act first cited requires the county treasurer, at any time within twelve months after receiving the final return of the . receiver or collector, to cause to be published a list of all unpaid taxes or assessments in each town, together with a notice that if the taxes are not paid before the date of sale, the lands described in said notice will be sold alt a specified time and place. The defendant received the final returns of unpaid taxes in Hempstead, North Hempstead and Oyster Bay for 1897 in August, 1898. Immediately upon the receipt thereof, and beginning in that month, he says: “ I made an examination of the same and compared the same with the assessment rolls of said towns for the year 1897, and corrected and examined and verified said return until I was satisfied that it was .'correct, to the end and preparatory and as part of the preparation of the list required by section 15 of chapter 226 of the Laws of 1878.” Thereafter the entries were changed from time to time as some of the arrears were paid up by the owners.

The appellant’s counsel argues that the proceeding to sell lands for unpaid taxes begins with the publication of the list prescribed by the statute, and that the preparation of the list is no part of the proceeding, and he likens such preparation to the drafting of a complaint which could in nowise be deemed the commencement of an action. But work done;by a public officer in a public office which is'absolutely necessary to the fulfillment of a public duty imposed upon him by law bears no very close analogy to the composition of a pleading in a private lawsuit which may never be begun at all; and it seems to me that the proceeding to sell for unpaid taxes may fairly be regarded as having been commenced by the defendant when he began to prepare the list in August, 1898. The Nassau County Act (§ 12) provides that the books, records and documents' relating to Hempstead, North Hempstead and Oyster Bay shall remain the property of the county of Queens; and the fact that the returns of the unpaid taxes for these towns are thus left in the custody of the treasurer of Queens county is some indication of the legislative intent to allow that officer to deal with such arrears therein as had been returned to him before the erection of the new county. To compel the county treasurer of Nassau county to prepare the list of lands to be sold in these towns for the unpaid taxes of 1897 would be to require him to duplicate to a great extent labor which has already been performed by the county treasurer of Queens county.

I think that the order of the Special Term should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  