
    Thomas Cary, Plaintiff, v. Albert G. Hatch et al., Defendants.
    (Supreme Court, Erie Special Term,
    July, 1915.)
    
      City of Buffalo — action to recover back moneys alleged to have been paid for taxes — assessments made to persons appearing to be owners under tax deeds sufficient compliance with charter — when cause of action accrues — failure of assessors to certify and deliver two copies of assessment rolls — constitutional law.
    The charter of the city of Buffalo (Laws of 1891, chap. 105), as amended by chapter 384 of the Laws of 1909, provides (section 115a) that the holder of any certificate of a tax sale instead of taking a conveyance of the property may recover the amount paid therefor. In an action brought under said statute to recover back moneys claimed to have been paid for taxes against the lands of defendant, held, that the failure of the city assessors to certify and deliver two copies of the assessment rolls, one to the comptroller and one to the board of supervisors, was covered by section 115f of. the statute which provides that “no such certificate of sale * * * shall be deemed invalid or impaired on account of any irregularity or illegality therein, or in the proceedings relating thereto, * * * or impaired on account of any error or omission in the description of the property assessed or sold if the description is sufficient to identify such property with reasonable certainty,” and such statute is clearly constitutional.
    Assessments made to persons appearing to be the owners of land under tax deeds open to the inspection of the assessors were a sufficient compliance with section 136 of the charter, as the assessors could not be required to go beyond the record nor could they assume that such a title was invalid.
    Where the frontage and depth of the property were particularly specified, the description was sufficient and met the requirements of said section 115f.
    Where defendants’ assignor by his answer elected to recover back his money instead of taking a conveyance, defendants was estopped as against plaintiff from claiming under his deed from the city.
    
      Defendant’s claim that all tax sales embraced in the action which were more than twenty-two years old when the action was commenced were outlawed was completely answered by the fact that plaintiff's cause of action did not accrue until the charter was amended in 1909, and was not barred even by the six-year statute of limitations.
    A claim of defendant, who acting upon legal advice as to the legality of the assessment took title to the property in 1897, that he has “suffered actual injury” within the meaning of said section 115f, held untenable.
    Action to-recover back moneys claimed to have been paid for taxes levied against lands of another.
    John E. Barry, for plaintiff.
    Clifford P. Fell (Percy S. Lansdowne, of counsel), for defendant Albert Gf. Hatch.
   Taylor, J.

Plaintiff brings this action under the provisions of chapter 384 of the Laws of 1909 of this state, as amended, to foreclose a claimed lien of city and county tax certificates of sale; it is not an action to divest or forfeit title to land, but an action to recover back moneys claimed to have been paid for taxes levied against the lands of another.

A considerable number of points have been raised by defendant Hatch. Inasmuch as I have decided to find for the plaintiff I shall discuss these points separately in order that the parties may have my reasons for reaching my conclusion.

Defendant Hatch’s first claim is that none of the assessment rolls upon which these tax sale certificates were based were -verified or certified as required by law. Section 138 of the charter provides that the first part of said assessment rolls “ shall contain the assessed valuations of the taxable lands of each ward substantially in the form in which town assessors are required to make them.” Defendant Hatch claims that this means that the whole first part of the roll, including everything, shall be in the form substantially in which town assessors are required to make such rolls; however, it seems that this provision of the statute seems to require the board of assessors to follow the form used by the town assessors-only in respect to the form in which statements of assessed valuations shall be made. The question to be determined is, are the claimed defects and deficiencies mere omissions ” or “ informalities? ” If so, section 115-f of chapter 384 of the Laws of 1909 applies; otherwise not. If it were a matter of transferring title by legislation, if the proceeding had been so contrary to the provision of the statute that there had been no valid assessment whatever, then no title passed, in spite of section- 115-f. The city assessors were required to certify and deliver two copies of the rolls, one to the comptroller and one to the board of supervisors. The original roll is evidently to be retained by the assessors. The defendant Hatch claims that the law requires both of these copies to be authenticated by original oaths and certificates written on them, and that such authentication in some instances is lacking. The presence of a copy oath even does not seem to be essential on these copy rolls thus furnished and certified. Bradley v. Ward, 58 N. Y. 401. No defect is claimed to be more fatal than the absence of certification on the roll for 1896; this sort of a defect is covered by the curative statute hereinbefore mentioned (Laws of 1909, chap. 384, § 115-f), and I think that such statute is clearly constitutional. Matter of Lamb, 51 Hun, 633; affd., 121 N. Y. 703.

The assessments were made to the persons appearing to be owners under tax deeds open to the inspection of the assessors. This is a sufficient compliance with the charter, since the assessors cannot be required to go beyond such a record; nor can they assume that such a title is invalid. Laws of 1891, chap. 105, § 136; Smith v. Hempstead, 106 App: Div. 253.

Defendant Hatch claims that the descriptions of the property were incomplete and insufficient. Inasmuch as the frontage and depth were set forth, the frontage being specified as on the northeast corner of Sixth street, at the north corner of Hudson street, in the city of Buffalo, I think that the sufficiency of the description is sustained by the opinion in Fulton v. Krull, 200 N. Y. 105. It also meets the requirements of section 115-f, supra.

Defendant Hatch claims that the acquiring by him of a tax deed on October 7, 1913, bars the plaintiff from asserting any rights under this statute. As to this,it suffices to say that defendant Hatch’s assignor, Wiltsie, in his answer herein elected to recover his money back instead of taking a conveyance. 1 think that thereby defendant Hatch is estopped from claiming under his deed from the city of Buffalo as against this plaintiff, who is endeavoring merely to recover amounts paid as mentioned in certificates of tax sales. The claim is further made that all tax sales embraced in this action which were more than twenty-two years old at the time the action was brought are outlawed. The answer to this is that the plaintiff’s cause of action did not accrue till 1909; therefore it is not barred even by the six-year statute of limitations. Carey v. Kerner, 200 N. Y. 253.

The claim of the defendant Hatch that he has “suffered actual injury” (§ 115-f, supra) is not tenable. To be sure, when he took title in 1897 he acted upon what we should all probably deem to be good legal advice as to the legality of these assessments. But that legal advice seems to have turned out not to have been good, on account of its not having been based on foreseeing the remedy created by chapter 384 of the Laws of 1909.

Plaintiff is entitled to the relief demanded in his complaint, ‘with costs, and he may present findings.

Judgment accordingly.  