
    The People of the State of New York ex rel. Robert W. Boenig, Relator, v. Daniel J. Hegeman, County Treasurer of Nassau County, Respondent.
    Second Department,
    March 17, 1916.
    Tax — failure to affix county seal to warrant — when tax deeds should he canceled as void — Tax Law, section 132, construed—constitutional law — curative statute — vested rights.
    A tax warrant and a sale thereunder are void where the warrant issued to the receiver of taxes was not under the seal of the county as required by law.
    For such jurisdictional defect a tax deed may be canceled within five years after the redemption period.
    The said right to the cancellation of tax deed for jurisdictional defects is not affected by section 133 of the Tax Law creating the presumption of the regularity of a tax sale where the deeds have been recorded for two years.
    A subsequent statute designed to cure the omission of the county seal from the warrant did not take away rights of the owner previously vested.
    Carr, J., and Jerks, P. J., dissented, with memorandum.
    Certiorari issued out of the Supreme Court and attested on the 26th day of February, 1915, directed to Daniel J. Hegeman, county treasurer of Nassau county, commanding him to certify and return to the office of the clerk of the county of Nassau all and singular his proceedings had in canceling certain tax deeds.
    The relator, who attended a tax sale December 21, 1909, bid in five lots sold for the Hempstead taxes of 1906. Having paid in the sums bid relator received five tax deeds dated January 31, 1911, which were recorded October 18, 1911. It does not appear that relator paid any further taxes on such lands. On a petition by the owner of the lands, and on an agreed statement of facts, the county treasurer, on January 13, 1915, ordered relator’s tax deeds canceled, because the warrant issued to the receiver of taxes for said town was not under the seal of the county as required by law. This proceeding was taken to review such order.
    
      Frederick B. Maerkle, for the relator.
    
      Charles 1. McCarthy, for the respondent.
   Per Curiam:

The failure to affix the county seal was fatal to the tax warrant and to the attempted sale under it. (Brase v. Miller, 195 N. Y. 204; Matter of City of Rochester v. Bloss, 77 App. Div. 28; affd., 173 N. Y. 646.) For such jurisdictional defects tax deeds may be canceled within five years after the redemption period. (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 132.)

As his deeds had been on record over three years, relator invokes the presumption of regularity of the tax sale, and the proceedings prior thereto, declared by section 132 as to conveyances which have been two years recorded. While certain irregularities may be thereby cured, the Legislature has extended to five years the period within which tax deeds may be canceled for jurisdictional defects. (Adirondack League Club v. Keyes, 122 App. Div. 178.)

The special statute designed to cure this omission of the county seal (Laws of 1911, chap. 470) could not transfer title to the relator by taking away rights already vested. (People v. Inman, 197 N. Y. 200.)

The determination should be confirmed and the writ of certiorari dismissed, hut without costs.

Thomas, Eich and Putnam, JJ., concurred; Carr, J., read to sustain the writ, with whom Jenks, P. J., concurred.

Carr, J. (dissenting):

I dissent. The absence of the seal of the county from the warrant created a fatal defect. (Brase v. Miller, 195 N. Y. 204.) But this defect did not enter into the assessment itself, and I think it was not “jurisdictional ” on constitutional grounds. (See Hagner v. Hall, 10 App. Div. 581; Ensign v. Barse, 107 N. Y. 329.) That part of section 132 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) which provides a five years’ limitation applies to cases where the defects arise from constitutional grounds, that is, where they permeate the assessment itself and do not arise from mere irregularities as to details which the Legislature might have dispensed with in the beginning, as might have been done in this case without infringing any constitutional right of the landowner. I think the limitation of two years, provided by section 132 of the Tax Law, applies here. As the curative act of 1911 (Chap. 470) was enacted after the sale, I do not consider it. (Cromwell v. MacLean, 123 N. Y. 474.)

Jenks, P. J., concurred.

Determination confirmed and writ dismissed, without costs.  