
    The People of the State of New York ex rel. Theodore W. Myers, Appellant, v. Daniel Moynahan, as Collector of Assessments and Arrears in the Finance Department of the City of New York, Respondent.
    First Department,
    January 8, 1909.
    Mandamus—return to peremptory writ conclusive—tax sale, city of Mew York — failure to publish name of owner—when sale not invalid.
    Where affidavits opposing an application for a peremptory writ of mandamus conflict with the allegations o£ the relator, the right to the writ must be deter- . mined upon the assumption that the averments of the respondent’s affidavits are true.
    Hence, although the applicant for a peremptory writ directing -the cancellation of a tax sale alleges that the sale was not made on the day and at the place advertised the alleged defect will not be considered when the opposing affidavits show, that the sale took place as advertised.
    On a tax sale made under section 1027 of the charter of the city of Hew York, the pamphlet giving “ a.particular and detailed statement of the property to be sold ” need not state the name of the owner in order to give validity to the sale.
    Although said section states that the notice of sale shall state that the “ ownership” of the property is published or printed, the name of the real owner need not he published, but only the. names of the persons to whom the property is assessed.
    Moreover, in. the city of Hew York taxes upon lands are assessed upon the property, not upon the' owner; arid although the name of the owner or occupant is to he given, if known, a tax is not invalidated because the-name of the true owner is hot given in the assessment roll. It is not intended that upon " such sale the title to the property shall be searched and the nalne ■ of the real owner ascertained.
    Appeal by the relator, Theodore W. Myers, from an order of the Supreme Court, made at the New York Special Term and entered in the office of' the clerk of the county of New York on the 27th day of April, 1908, denying the relator’s motion for a peremptory writ of mandamus.
    
      James Kearney, for the appellant. .
    
      David Rumsey, for the respondent.
   McLaughlin, J.:

The relator was the owner of a certain lot of land in the city of New York, upon which the taxes for the years 1893 to 1898, inclusive, and 1900, and the water rents for the years 1897 to 1899, inclusive, were not paid. The city in 1905, assuming to act under the provisions of section 1027' of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466) caused the property to be advertised for sale by reason of the unpaid taxes thereon, and the same was subsequently sold and a certifícate of sale issued to the city, and thereafter assigned by it to one Phyfe. Subsequent to the sale and assignment the relator applied for a peremptory writ of mandamus directing the respondent, as collector of assessments and arrears in the finance department of the city, to furnish him with bills for the taxes and water rents referred to, to accept payment thereof, and to cancel the record of the sale of the property which he claimed was invalid. His application was denied, and he appeals.

Section 1027 of the Greater New York charter provides that when any taxes on lands remain unpaid for three years, or rents for water shall have been due and unpaid for four years, the collector of assessments and arrears, under the direction of the comptroller, shall advertise such lands for sale at a day and place specified, and there shall be appended to the notice of sale a particular and detailed statement of the property to be sold * * * or the said detailed statement and description, instead of being published * * * shall, at the option, of the said comptroller, be printed in a pamphlet * * *. And the notice * * * shall also state that the detailed statement of the taxes * *' * and the ownership of the property * * * is published in [certain • newspapers] or in a pamphlet, as the case may be, and that copies of the pamphlet are deposited in the office of the said collector, and will be delivered to any person applying for the same.” In the present case the detailed statement of the property was published in a pamphlet. The relator alleges that it did not appear in the pamphlet whether the lot in question was vacant or improved, and that it was stated to be owned by or ássessed to one B. F. Beekman, who was not the owner thereof, by reason of which he claims that the sale was invalid. The relator also alleges that the property was not sold oti the day it was advertised to be sold, but that subsequently, on the. application of Phyfe,-an alleged certificate of. sale was made out to the city and by it assigned to Phyfe.

- It is unnecessary to consider the claim that the property was not sold on the day alleged, since the opposing affidavits show that the sale took place at the time advertised and that an assignment was actually made. The rule is well settled that where, upon motion for a peremptory writ of mandamus, opposing affidavits are read, which are in conflict with the averments in the affidavit of the relator, then the right to the writ must be determined upon the assumption that 'the averments in the opposing affidavits are true. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215.)

There then remains only the question of whether the sale was invalid because the name of the owner of the property sold was not given. Ho attempt was made in the published pamphlet to give the name of the owner of the property, but there did appear opposite the description of the lot the name B. F. Beekman ” under the heading“To Whom Assessed.” The claim that the property was not sufficiently described is not seriously urged, so that the only question which need be considered is whether the sale was invalid by reason of the failure to name the plaintiff as owner. -1 am of the opinion that it was not. On turning to section 1027 of the charter it will be observed that it does not specifically require the owner’s name to be given. It provides- that “ a particular and detailed-statement of the property to be sold ” shall be published - or printed -in a pamphlet, but that this statement must contain the name of the owner is to be implied only from the provisions which follow. These aré to the effect that the notice of sale shall state that the detailed statement of the taxes and the ownership of the property is so published or printed. This section and the following one (§ 1028) which provides that contiguous lots belonging to the samé owner shall be ad vertised in one parcel, unless the owner otherwise requests, are substantially re-enactments of sections 926 and 927 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1883- chap. 276) and of the 1st and 8th sections of article 3 of chapter 230 of the Laws of 1843. - The latter section was_ construed by the Court of Appeals in.- People ex rel. Morgenthau v. Cady (105 N. Y. 299), which was a case quite similar to the one now before us and in which it was sought to avoid a sale because contiguous lots belonging to the same owners, but assessed to different individuals, had been advertised in separate ¡.jareéis. Judge Peckham, who delivered the opinion of the court, after quoting the section, said : “We are of the opinion that the words ‘ belonging to the same owner ’ in the above section do not mean simply the technical owner of the title, but as therein used they mean the person in whose name as owner or occupant the lots are assessed. The assessment rolls are the only .record the comptroller has before him from which to decide wdio is the owner and in cases where the land was assessed to the occupant * ■ * * the comptroller would be without any evidence of ownership'. It cannot be supposed that under such circumstances the statute contemplated a search by the comptroller through the register’s office. * -x- * ]r01. this purpose the person assessed must be assumed to be the owner.”

The Morgenthau case, it seems to me, is directly in point and decisive of the case now before us. The statutory provisions under which the lots were sold in that case, so far as requiring the owner’s name to be stated, were substantially identical with section 1027, and while it is not so stated, and the precise point was apparently not raised, it is fairly to be inferred from the opinion that the names of the owners were not stated in advertising the lots, but only the names of the persons to whom they were assessed. And if it had been necessary in advertising the lots to state the names of the owners, the question which was decided would not have arisen. No further search would have been necessary, and the comptroller would have known that the contiguous lots were owned by the same owners. In any event, the reasons assigned in that case are applicable to the present one, and if the word owner ” means the per-, son to whom the property is assessed in the one section, for the same reason the same meaning should be given to ownership of the property ” in the preceding section.

Not only this, but under the provisions of the Greater New York charter and provisions of the statute existing prior to its adoption, taxes upon realty in the city of New York are assessed upon the property and not upon the owner. The name of the owner or occupant is to be given if known (§ 889), but a tax is not invalid because the name of the rightful owner is not inscribed in the assessment roll (§ 894). The assessment is by lot and block numbers, and when land is sold for unpaid taxes it is no protection to the, owner to have his name stated, as exemplified in the present case, for the method of identifying the land is by lot and block number. Such being the case, it cannot be that the Legislature intended that upon such sale the title to the property must be searched and the name of the real owner ascertained, with the result of rendering the sale invalid in case the real owner was not determined, as might well happen in many cases where the title was defective" or doubtful. „

For these reasons, I am of the opinion that the statute was sufficiently complied with, that the sale was valid, and that the motion for the writ was properly denied.

■ If these view's be correct, then it follows that the order appealed from,should be affirmed, with ten dollars costs and disbursements.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order affirmed, with ten" dollars costs and disbursements. 
      
      See Laws of 1871, chap.- 381, §§ 3, 8, 23, and Laws of -1881, chap. 537, § 1, p. 749.—[Rep. ' - -
     