
    City of White Plains, Plaintiff, v. Kenneth F. Hadermann, Defendant.
    Second Department,
    June 30, 1947.
    
      
      Samuel Faile (William R. Condit, Corporation Counsel), for plaintiff.
    
      Charles A. Voss for defendant.
    
      Aaron Simmons, Corporation Counsel (Murray C. Fuerst with him on the brief), for City of New Rochelle, amicus curia.
    
   Hagarty, Acting P. J.

Defendant, as vendee, has refused to accept delivery of a deed from plaintiff, which acquired title by default judgment entered the 20th day of September, 1946, in a summary tax lien foreclosure action instituted pursuant to article VII-A, title 3, of-the Tax Law. Section 165-b of the Tax Law provides for notice of pendency of such action of seven weeks from the date of first publication of notice required to be published at least once a week for six successive weeks in two newspapers, during which every person having any right, title or interest in an affected parcel may redeem it. In this case the last day for redemption fixed in the notice as published was July 15, 1946, a period of forty-seven days, or less than seven weeks, from the date of the first publication. A news item appearing in a local newspaper on the 16th day of July, 1946, to the effect that the Common Council of plaintiff had extended the time for redemption to September 1, 1946, obviously was without legal efficacy to cure the failure to comply, with the statute.

The statutory provision for notice is designed to protect property owners and is subject to strict construction. (Clason v. Baldwin, 152 N. Y. 204, 210; Lockwood v. Gehlert, 127 N. Y. 241, 248.) Compliance is a prerequisite to jurisdiction (Olds v. City of Jamestown, 280 N. Y. 281; Matter of Seidl v. Zauner, 247 N. Y. 17) and upon failure no title passes. (Westbrook v. Willey, 47 N. Y. 457, 459-460.)

Attacks on the constitutionality of title 3 primarily have been based on the ground that the statute itself fails to prescribe sufficient notice. (City of New Rochelle v. Echo Bay Waterfront Corp., 268 App. Div. 182, affd. 294 N. Y. 678, certiorari denied 326 U. S. 720.) Its constitutionality, prior to authoritative determination, had been regarded with such uncertainty that it was held that title of a vendor derived as a result of such a foreclosure action was open to such serious challenge that he was not entitled to judgment of specific performance. (Lynbrook Gardens, Inc., v. Ullmann, 291 N. Y. 472.) A fortiori, title which rests on a judgment rendered "without jurisdiction is one upon which there has been cast a shadow o£ doubt ” and is unmarketable. (Lynbrook Gardens, Inc., v. Ullmann, supra, p. 477.) There is a serious possibility that, upon application of an interested party, a court will not uphold the contention of plaintiff that such party is precluded by his alleged default despite insufficient notice and, instead, "will follow authority which holds that a judgment made without jurisdiction is void, a nullity for all purposes, and does not estop even an assenting party. (Risley v. Phenix Bank of City of N. Y., 83 N. Y. 318; Matter of Will of Walker, 136 N. Y. 20, 29; McConnell v. Williams Steamship Co., Inc., 239 App. Div. 393, 395, affd. 265 N. Y. 594; Davidson v. Ream, 178 App. Div. 362.)

Judgment is directed for defendant, without costs.

Johnston, J.

(dissenting). I dissent and vote to direct judgment for plaintiff, without costs.

There is no dispute that the tax which plaintiff sought to enforce by the in rem foreclosure action, pursuant to title 3 of article VII-A of the Tax Law, "was validly assessed. Nor is there any dispute that all parties in interest received proper notice of the pendency of the foreclosure action by all the methods prescribed by the Tax Law (filing of the list of delinquent taxes, publication, mailing, and posting). The sole objection to plaintiff’s title is that the last day for redemption contained in the notice of foreclosure published pursuant to section 165-b of the Tax Law was forty-seven days after the date of the first publication of the notice, instead of forty-nine days from that date. It is not necessary to determine whether a party in interest would have seven full weeks from the date of the first publication of the notice for redemption despite the statement of a shorter period therefor in the published notice of foreclosure. It is conceded that all parties in interest were, in fact, given the full period for redemption required by the statute regardless of the lesser period stated in the notice of foreclosure.

Although the defective notice may have constituted a good defense if pleaded and relied on by a party in interest (City of New Rochelle v. Stevens, 271 App. Div. 977), the defective notice would not constitute a bar to the entry of a judgment of foreclosure of the tax lien if not relied on, even if the defense were pleaded. (City of New, Rochelle v. Closter, 269 App. Div. 1053, appeal dismissed 296 N. Y. 506.) Where a party in interest fails to redeem before the expiration of the redemption period mentioned in the notice published pursuant to section 165-b of the Tax Law, the defective notice of foreclosure must be raised by answer setting forth “ any defense or objections to the foreclosure ” (italics supplied) of the tax lien, or the party in interest is barred and forever foreclosed of all his right, title, and interest in the property involved. (Tax Law, § 165-a, subd. [2].) Section 165-g of the Tax Law provides that a defendant alleging any jurisdictional defect or invalidity, either in the tax or in the sale thereof, must particularly specify in his answer such jurisdictional defect or invalidity and must affirmatively establish such defense. The language of the statute indicates, as this court has inferentially and the Court of Appeals has expressly held (City of New Rochelle v. Closter, supra; cf. Dodge v. Cornelius, 168 N. Y. 242), that the constitutional question arising by reason of the defective notice of foreclosure may be waived by failure to raise the objection by answer. The statutory provision as to notice of redemption was designed for the protection solely of the property rights of parties in interest in the property involved, who may consent to such action as Would be invalid if taken against their will. (Shepherd v. Mount Vernon Trust Co., 269 N. Y. 234, 246.)

Furthermore, pursuant to section 165-h of the Tax Law, the judgment of foreclosure entered was based on a conclusion of law that plaintiff had fully and completely complied with all the requirements of article VII-A of the Tax Law in question. The court had jurisdiction to hear and determine whether the provisions of the Tax Law had been complied with and its determination was authoritative of the question. The judgment of foreclosure based on that conclusion of law removed any shadow of doubt which may have been cast on. the title of plaintiff. Plaintiff’s title thus came within the test formulated in Lynbrook Gardens, Inc. v. Ullmann (291 N. Y. 472). Although the judgment of foreclosure was entered by default, a judgment based on a conclusion of due compliance by plaintiff with the Tax Law is conclusive between the parties upon the matters embraced within the issues. (Jasper v. Rozinski, 228 N. Y. 349, 357; Tax Lien Co. v. Schultze, 213 N. Y. 9.) Even if the conclusion were erroneous, it is binding until reversed. (John v. Berzon, 255 App. Div. 1023.) The default judgment of foreclosure against the owner is binding against him though he might have successfully interposed a defense to the action. (Slote v. Cascade Holding Corp., 276 N. Y. 239, 244.)

Moreover, this defendant may not raise the constitutional question resulting from the shorter period of redemption published in the notice of foreclosure when every party in interest having the power to raise the objection has waived it by defaulting. It is not within the province of this defendant to say that the property was illegally taken from the owner. (People v. Turner, 117 N. Y. 227, 234.)

Plaintiff has a marketable title and defendant should be compelled to perform his contract in accordance with its terms. City of Utica v. Proite (288 N. Y. 477) is direct authority for the proposition that a vendee may be compelled specifically to perform his contract of purchase with a tax district which acquired its title in an in rem proceeding, even though the vendee attacks the statute as unconstitutional.

Carswell, Adel and Sneed, JJ., concur with Hagarty, Acting P. J.; Johnston, J., dissents and votes to direct judgment for plaintiff, without costs, with opinion.

Judgment directed for defendant, without costs.  