THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARY G. STAPLES and Others, Appellants,
WILLIAM SOHMER, as Comptroller of the State of New York, Respondent.
APPEAL by the relators, Mary G. Staples and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 11th day of September, 1911, denying the relators' application for a writ of mandamus.
The petition of relators shows that they are the owners of certain property in the annexed district of the city of New
York, formerly in the town of Westchester, Westchester county, known and described as follows: 'All that certain lot, piece or parcel of land situate, lying and being in the Borough of the Bronx, City, County and State of New York, known as Lot No. 66 on certain map entitled 'Map of Unionport,' made by Bonnet & Savery, Civil Engineers, dated November 1, 1852, and filed in the office of the Register of Westchester County, August 23rd, 1854, as Map No. 29.' That in 1859 the then Comptroller attempted to sell said property for unpaid taxes for the year 1855, and that in 1862 the Comptroller executed and delivered to a certain party a deed purporting to convey the following premises: 'The following tract, piece or parcel of land situated in the County of Westchester, viz.: One-fourth of an acre of land to be laid out at the expense of the party of the second part, being lot No. 66 in the Village of Unionport, which said described piece or parcel of land was sold by the said Comptroller at the said sale under and by virtue of the said act.' Said deed was recorded in Westchester county in 1863. Relators claim that said sale and deed are void on account of the land being imperfectly described in the assessment rolls for the year 1855, and also for the reason that the description of the premises in the deed is indefinite, insufficient and does not identify any ascertainable plot of ground, although it constitutes a cloud upon their title. Relators further state that they have offered the present Comptroller an amount in excess of said amount for which said premises were sold with interest and have requested him to cancel said sale and deed. The application of relators was without notice and the Comptroller submitted no affidavits in opposition.
Merle I. St. John, for the appellants.
Thomas Carmody, Attorney-General, James A. Parsons and Valentine Taylor, for the respondent.
SMITH, P. J.:
Relators' claim that mandamus issue is apparently based upon section 140 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), which provides that the Comptroller upon discovering that a sale of lands for unpaid taxes is for
any cause invalid may cancel the sale upon receiving proof thereof and upon the application of any person interested. The statute was formerly construed as applying only to purchasers at tax sales ( People ex rel. Witte v. Roberts, 144 N.Y. 234; People ex rel. Millard v. Roberts, 8 A.D. 219; affd., 151 N.Y. 540), but by the amendment of 1896 the application for cancellation may also be made by the owner of the lands at the time of the tax sale. (Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap. 908], § 140; now Tax Law, § 140.) Such application is without notice to interested parties, but by section 141, as amended in 1897 (Chap. 392) and re-enacted in Tax Law of 1909, any person aggrieved may apply on notice to set aside any cancellation of sale so made. (People ex rel. McGuinness v. Lewis, 127 A.D. 107, 109, 110.) The Comptroller contests this appeal upon the authority of People ex rel. Sudam v. Morgan (45 A.D. 19), which was a claim by the representatives of a purchaser at tax sales in 1848 and 1852 for reimbursement under section 140, on the ground of certain jurisdictional defects including a claim of indefiniteness in the description. It was there held that the obligation of the Comptroller to refund was barred by lapse of time under the provisions of article 7, section 14, of the Constitution of 1874, which are revised in article 7, section 6, of the present Constitution of 1894. The Comptroller now claims that this decision is a bar to the present application, although made not by a purchaser but by an owner, on the ground that the Comptroller would be compelled if he should cancel this tax deed to refund the moneys received on the tax sale, which refund is prohibited by the constitutional provision mentioned. But this proceeding calls for a return of no money. The deed may be held void at the instance of the owner, even though the purchaser has lost his right to reimbursement for the moneys paid. The constitutional provision creating a limitation of time in which the purchaser can obtain from the State his money does not by indirection create a limitation of the right of an owner to apply for cancellation.
The respondent further claims that the present proceedings were long since barred by section 132 of the Tax Law and the statutes from which it has been derived.
Section 132, in effect June 15, 1896, provides that all tax deeds heretofore issued by the Comptroller 'and the taxes and tax sales on which they are based, shall be subject to cancellation * * * by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds, on direct application to the Comptroller; * * * provided, however, that such application shall be made, * * * in the case of all sales held prior to the year eighteen hundred and ninety-five, within one year from June fifteenth, eighteen hundred and ninety-six.' An imperfect description, as alleged by relators, in the assessment rolls sufficient to avoid the tax deed seems to fall within the class 'any defect in the proceedings affecting the jurisdiction,' so that any application now based thereon is barred by the statute. ( Shea v. Campbell,71 Misc. 222, 230.) Section 132 and the statutes from which it is derived have frequently been before the courts and have been held to be both curative laws and statutes of limitations. (Meigs v. Roberts,162 N.Y. 371, 377, 378.) Curative acts may affect irregularities or informalities, not jurisdictional defects, but 'in the operation of a statute of limitations, otherwise valid, there is no difference in its effect on jurisdictional defects or on irregularities.' (Bryan v. McGurk,200 N.Y. 332, 335; Meigs v. Roberts, supra, 378.) 'A statute of limitation to be valid must give a reasonable time after its enactment to enforce existing rights.' Section 132 as applied to tax proceedings had prior to 1895 gave the owner one year from the date of its enactment in which to enforce his rights on account of jurisdictional defects in the proceedings and is, therefore, a valid statute of limitations. (Bryan v. McGurk, supra, 338.) It follows that in the case at bar the relators, not having within the year limited by law instituted proceedings for ...