
    Charles W. Cardwell, Plaintiff v. Therese C. Clark et al., Defendants.
    (Supreme Court, Queens Trial Term,
    March, 1916.)
    Taxes — assessment of unoccupied lands of nonresidents — assignment of tax lease — when doctrine of laches applicable — Tax Law, § 132-.
    The assessment of the unoccupied lands of a nonresident in a separate part of the assessment roll under a tract designation headed “ Talfourd Lawn ” is not a compliance with the statute then in force requiring such lands to be placed in a separate part of the roll expressly set apart for assessments against the property of nonresidents and designated “ lands of nonresidents.”
    An assessment roll on which assessments against individuals for real and personal property are interspersed between the assessment of real property under tract or map designations does not comply with the statute and is void.
    The provision of section 132 of the Tax Law that an application or action to challenge the validity of a tax lease made by the comptroller, a county treasurer or a county judge prior to 1895 must be made within one year from June, 15, 1896, is a statute of limitation and cannot be taken advantage of. unless pleaded.
    While the possession of the holder of a tax .lease of two lots cannot be adverse to the owner of the fee yet where said holder having contracted to convey the lots to one who went into possession assigned to him the tax lease covering one lot and gave him a quitclaim deed purporting to convey the fee of both lots, the possession of the grantee under the quitclaim deed and of his widow as his devisee was adverse to the true owner.
    The doctrine of laches is applicable only where equity is asked to grant a purely equitable remedy to which the petitioner has no strict legal right.
    Where in partition no claim is made against any defendant for use and occupation no allowance can be made in favor of such of the defendants as have made improvements or paid taxes on the premises or any part thereof;
    Action for partition.
    Robert B. Honeyman, for plaintiff.
    Edward R. Clark, for defendant Clark.
    Lawrence T. Gresser and H. C. Underhill, for defendants Kiaser and another, as executors.
    Leander B. Faber, for defendants Macbeth.
    Gillen & Weller, for defendants Endlekofer and others.
    Bunn & Collins, for defendant Tadevaia.
    Herbert A. O’Brien, for defendant'Grass.
   Benedict, J.

This is an action for the partition of real property. It was tried before - a jury. • At- the conclusion of the trial the court ruled that there were no questions of fact to be submitted to-the jury and reserved decision on the questions of law.

I indicated on the trial that I thought the defendants Macbeth could make no claim to the premises under the alleged deeds from Lawrence V. Husted and Jennie Husted, and I am still of that opinion. It only remains, therefore, to consider the claims of the holders of the several tax leases.

The plaintiff challenges the validity of all these leases upon the ground, among others, that the assessments upon which they were .based were void in that the property of non-residents was not separately listed. Title II, chapter XIII, part I, of the Revised Statutes, as in force at the time the assessments in question were levied, prescribed the manner of making up the assessment-roll. Section 1, article 1, of said title provided as follows: “Every person shall be assessed in the town or ward where he resides when the assessment is made, for all lands then owned by him within such town or ward, and occupied by him, or wholly unoccupied. ’ ’

Section 2 originally read as follows: “Land occupied by a person other than the owner may be assessed to the owner or occupant, or as non-resident lands.” As amended by Laws of 1878, chapter 152, it provided: “ Lands occupied by a person other than the owner may be assessed to the occupant, as lands of non-residents, or, if the owner resides in the county in which such lands are located, to such owner.”

This amendment does not, however, affect the rights of the parties in the case at bar, because the owners of the property in question at the times of the assessments to be hereafter considered were non-residents of Queens county. ’ ' :

Section 3 provided: “ Unoccupied-lands, not owned by a person residing in the ward or town where the same are situated, shall be denominated ‘ lands of "non-residents,’ and shall be assessed as hereinafter provided.”

Article 2, after providing for the listing of all taxable inhabitants of the town or ward, as the case might be, and the quantities and values of their lands to be taxed and the value of their taxable personal property, provided in section 11 as follows: ‘ The lands of nonresidents shall be designated in the same assessment-roll, but in a part thereof separate from the other assessments, and in the manner prescribed in the two following sections.”

Section 12 provided that if the land to be assessed be a tract subdivided into lots, or a part of which is so subdivided, the tract should be designated by its name if it had one, otherwise it should be stated by what lands it was bounded. This was followed by a provision that if the assessors could obtain correct information as to the subdivisions they should put down all the unoccupied lots owned by non-residents by numbers alone without the names of the owners.

The first question to be considered is whether the assessment-rolls of the town of Jamaica for the years 1874, 1876 and 1884 comply with these provisions of law. Taking the assessment-roll of 1884 we find that it begins with a list of names of individuals who are assessed for real property, or real and personal property. After most of the names appears the letter 1 ‘ E ” and after some of them the letters ‘ ‘ 1ST. E. ” This is followed by a list of incorporated companies assessed for real property only, and this by a list of individuals assessed for personal property only. Then follow assessments of several tracts of real property divided into lots, such tracts being designated by name or by reference to some map. To each such tract a part or section of the roll is devoted. Among them is a tract designated as Talfonrd Lawn, which included the premises involved in this action. In many cases in the assessment of lots on this tract, as of those in other tracts, the names of the owners are entered in the second column, the first being reserved for the date of payment; while in other cases, comparatively few in number, the words “ unknown owner ” are placed in the second column. Some of the lots are stated to have ' buildings upon them, so that all the property assessed under this head was, apparently, not unoccupied. The lands so assessed are in no manner designated as the lands of non-residents. It is shown that the owners of the lots involved in this action were at the time of such assessment non-residents of Queens county.

On the part of the plaintiff it is argued that the presence of the owners’ names opposite many of the lot numbers in the assessments on Talfonrd Lawn lots indicates that such lots were owned by residents, since the assessors were forbidden to use the names if the owners were non-residents, and hence that the roll itself shows that the real property of non-residents was not assessed separate and apart from that of residents. .

On the other hand it is urged by the defendants who claim under the several tax leases that the property in question was placed in a part of the roll separate from other assessments, to wit, in the part headed Talfonrd Lawn ”; that the use of the names of owners in certain cases does not of itself show that such property was owned by residents, and that the burden was on the plaintiff to show that some of the persons named in the assessments upon lots in Talf ourd Lawn were residents in order that the assessment — at least as to lots assessed against ‘‘ unknown owner ’ ’ as were some of the lots in question — should be void.

Obviously the statute required the division of assessments into two classes: (1) the real and personal property owned by residents; (2) the real property owned by non-residents. Newman v. Supervisors, 45 N. Y. 676, 678; Hilton v. Fonda, 86 id. 340, 346, 347; Stewart v. Crysler, 100 id. 378, 382. It further required that the assessments of the second class should be placed1 in a separate part of the roll; and that unoccupied lands belonging to non-residents should be denominated “lands of non-residents.” § 3, supra. All these provisions taken together strongly indicate that the section of the roll set apart for the assessments upon real property of non-residents should have an appropriate designation or heading, indicating that the lands listed therein were assessed as property of non-residents. In other words the fact that lands involved in this action, being the property of nonresidents, are .assessed in a separate part of the roll merely under a tract designation is not a compliance with the statute. They should have been placed in a separate, part of the roll expressly set apart or designated for assessments against the property of nonresidents. Hubbell v. Weldon, Hill & D. 139, 144; Hilton v. Fonda, 86 N. Y. 340, 347; Franklin v. Pearsall, 53 N. Y. Super. 271, 273. See, also, Thompson v. Burhans, 61 N. Y. 52, 64. A section of the roll was devoted to the Talfourd Lawn tract, another section to the Clarenceville tract, another to the Van Wyck tract, and so on, but none to the assessment of real property of non-residents.

In Hilton v. Fonda, supra, the Court of Appeals, per Folger, J., said (p. 347) that “ where lands in a town are unoccupied, and not owned by a person residing in the town, they- are to be named ‘ lands of nonresidents,’ and are to be assessed in still another mode. ’ ’

In Franklin v. Pearsall, supra, the referee, whose opinion was adopted by the General Term of the New York Superior Court, said (p. 273): “When lands situated in a county are owned by non-residents, the statutes have prescribed a different course; they must (among other things) be described as £ nonresident ’ lands.”

The assessment roll of 1876 follows the same gen-, eral plan as that of 1884. The assessment roll of 1874 is even more obviously in violation of the statute. It begins with a few names, then follows a tract, then more names, then another tract, and so on, so that assessments against individuals for real and personal property are interspersed between the assessment of real property under tract or map designations.

These considerations make it evident that there was no proper separation in these assessment rolls of the lands of non-residents from the property of residents, and hence that, the assessments, so far as they affected the lands involved in this action, which were at the times of such assessments owned by non-residents of Queens county, were void. Cromwell v. MacLean, 123 N. Y. 474, 486, 487; Schreiber v. Long Island R. R. Co., 127 App. Div. 286. In the latter of these cases the Appellate Division in the second department, in an opinion by Mr. Justice Gaynor, said: “ The assessment in 1900 of the tax for non-payment of which the sale was made was void. The land was of a non-resident. The statute required that non-resident lands should be set down and assessed in a separate part of the assessment roll. Tax Law (chap. 908, Laws of 1896), § 29. There being a dispute on the argument before us whether this had been done, it was agreed that the roll should be submitted to us. That has been done, and resident and non-resident lands are not separately set down and assessed in the roll, but promiscuously. The land was therefore never assessed, from which it follows that there was no jurisdiction to sell. ’ ’

The case of Van Rensselaer v. Witbeck, 7 Barb. 133, 140, cannot be regarded, at the present time, as an authority to the contrary. It was reversed by the Court of Appeals (7 N. Y. 517) although without consideration of the point here under discussion; and it has been recently disapproved, so far as it supports the doctrine that certain statutory provisions as to assessments are merely directory, by Erschler v. Lennox, 11 App. Div. 511, 516. In May v. Traphagen, 139 N. Y. 478, 481, the Court of Appeals said: “ That all* the proceedings prescribed by the law for the assessment of land for the purposes of taxation must be substantially, if not strictly, complied with, is a well-settled and a familiar rule. * * * That which the legislature has directed courts cannot declare immaterial.” See, also, Whiting v. Thomas, 23 N. Y. 281, 285; People ex rel. Nat. Park Bank v. Metz, 141 App. Div. 600, 604; Ventriniglia v. Eichner, 155 id. 236, 242; rev., on question of practice, 213 N. Y. 147. The case of Cromwell v. Nichols, N. Y. L. J., June 13, 1912; affd., 155 App. Div. 905, is not in point, as the assessment roll there under consideration differed materially from those under consideration in the case at bar.

None of the defendants makes any claim that the right of the plaintiff and the defendant Clark to challenge the validity of the tax leases is barred by the one year limitation provision contained in section 132 of the Tax Law, and no defendant has set up any such defense in his answer. That this provision is a statute of limitation is amply supported by authority (Meigs v. Roberts, 162 N. Y. 371, 377; Peterson v. Martino, 210 id. 412, 420), and it cannot therefore be taken advantage of unless it be pleaded. Nehasane Park Assn. v. Lloyd, 167 N. Y. 431, 437, 438. The cases of Bandler v. Hill, 84 Misc. Rep. 359, 370; affd., 163 App. Div. 970, and Shepard v. Kusch, 89 Misc. Rep. 112,114, are not inconsistent with this conclusion, so far as the present case is concerned; for in each of those cases the party who claimed that the statute should have been pleaded,was pursuing a strictly statutory remedy. The jurisdiction of the Court of Chancery over suits for partition, whatever its origin, seems to have been so well established prior to the American Revolution that it may be regarded as inherent: Freeman Cotenancy & Partition (2d ed.), §§ 423, 424; Smith v. Smith, 10 Paige, 470, 473; Gallie v. Eagle, 65 Barb. 583, 587.

No title has been acquired against the record owners by adverse possession, for the possession of the holder of a tax lease cannot be adverse to the owner of the fee (Sanders v. Riedinger, 30 App. Div. 277, 282; affd. on opinion below, 164 N. Y. 564), and there has been no possession under any other claim of title for a period of twenty years.

The defendant Mary Tadevaia, as she is now called, claims lots Nos. 126 and 127. A tax lease for lot No. 126 was made to John Canning on October 4, 1887, and on the same day a similar lease covering lot No. 127 was made to Mrs. John Canning. On March 29, 1899, John Canning contracted to sell these lots for $400 to Angelo Iatovaio, later known as Tadevaia, who thereupon went into possession. Subsequently Canning gave to Iatovaio an assignment of the lease covering lot 126, and later gave him a quitclaim deed purporting to convey both lots in fee. Angelo Iatovaio, or Tadevaia, has since died, and his will giving all his property to his wife, the defendant Mary Tadevaia, has been duly admitted to probate. Said Angelo and Mary have been in actual possession of said lots from 1899 to the present time. While Canning claimed only under a tax lease, and, as to lot No. 127, appears to have had no claim at all, the possession under the quitclaim deed aforesaid of Angelo latovaio, or Tadevaia, and his widow, as his devisee, has been adverse to the true owner. Sands v. Hughes, 53 N. Y. 287; Sanders v. Riedinger, 30 App. Div. 277, 281-283; affd., 164 N. Y. 564. The deed under which plaintiff claims bears date October 29, 1914, and was made and delivered during such adverse possession. As to Mary Tadevaia, therefore, such deed is void under section 260 of the Real Property Law, and plaintiff is not in a position to maintain this action as against her.

It is true that she did not in her answer plead the invalidity of the plaintiff’s deed on this ground (Ten Eyck v. Witbeck, 55 App. Div. 165, 167; affd., 170 N. Y. 564); but the evidence on which she relies to show it was admitted without objection based on failure to plead such defense. As to the defendant Clark, who also claims under deeds delivered during such adverse possession, defendant Tadevaia served an amended answer in which this defense is set up, which amended answer was accepted by Mrs. Clark’s attorney and admission of due service given. This answer does not seem to have been served on plaintiff’s attorney.

None of the other defendants in possession has shown any claim of title other than under tax leases or assignments thereof. Hence as to such others these considerations do not apply.

.The claim is made on the part of the' defendant Endlekofer that the plaintiff has been guilty of laches. The doctrine of laches is applicable, however, only to cases where equity is asked to grant a purely equitable remedy to' which the party has no strict legal right. 2 Pom. Eq. Juris. (3d ed.) § 817; Ode v. Manhattan R. Co., 56 Hun, 199, 202; Pollitz v. Wabash R. R. Co., 207 N. Y. 113, 130. Partition, on the other hand, is a matter of right. Smith v. Smith, supra; Gallie v. Nagle, supra.

No claim is made against any of the defendants for use and occupation, and hence no allowance can be made in favor of those who have made improvements or paid taxes on the premises or any part thereof. Wood v. Wood, 83 N. Y. 575, 581; Haight v. Pine, 10 App. Div. 470, 472-474.

Interlocutory judgment of partition between the plaintiff and the defendant Clark will be granted except as to lots 126 and 127, in possession of defendant Yadevaia. As to her the complaint will be dismissed, with costs, but without prejudice to an action to recover possession of such lots brought in the names of the grantors of the plaintiff and the defendant Clark, that is those who had title at the commencement of adverse possession under the quitclaim deed above mentioned.

Judgment accordingly.  