People Ex Rel. Witte v. . Roberts

Per Curiam. Prior to 1891 various statutes in this state authorized the comptroller to cancel tax sales upon discovery that they were for any reason illegal or invalid. Those statutes did not specify the persons who could apply to the comptroller for such cancellations and invoke his action. (Laws *236 of 1823, chap. 26; 1 R. S. 413, secs. 89, 91; Laws of 1851, chap. 98, secs. 102, 104; Laws of 1855, chap. 427, secs. 83, 85.) In People ex rel. Wright v. Chapin (104 N. Y. 369) we held that under the statutes then in force the application to the comptroller for the cancellation of the tax sale could only be made by the purchaser at the sale. Thereafter, by chapter 217 of the Laws of 1891, the previous statutes were amended by the following provision: “All applications heretofore or hereafter made to the comptroller for the cancellation of any tax sale, by any person interested in the event thereof, shall be heard and determined by him, and his determination shall be subject to review by certiorari or otherwise.” Notwithstanding that amendment we again held in the Hamilton Park case (139 N. Y. 240) that the application for cancellation could be made only by the purchaser, and that the owner had no standing whatever for that purpose. Before that decision was announced, and after the action of the comptroller there under review had been taken, the act chapter 711 of the Laws of 1893 had been passed, and in that act the language pertaining to the present inquiry is as follows : “ If he (the comptroller) shall not discover that the sale was invalid until after a conveyance of the lands sold shall have been executed, he shall, on application of any person having any interest therein at the time of the sale, on receiving proof thereof, cancel the sale, refund out of the state treasury to the purchaser, his representatives or assigns, the purchase money and interest thereon, and re-charge the county from which the tax was returned with the amount of purchase money and interest from the time of sale, which the county shall cause to be levied and paid into the state treasury; on any such application the comptroller may appoint a commissioner with like powers and duties as in case of an application for redemption.” The present application is made under that act, and the claim of the relator is that under its phraseology, he, as owner of the lot at the time of the sale, can make the application. It is very clear that if, under the act, he, as owner, can make *237 the application on the ground that he was interested in the land at the time of the sale, the purchaser at the sale cannot make the application, and that thus the entire policy of the state as to such applications which had existed for seventy years has been radically changed. If the legislature had intended to provide that the owner could make the application, we think in view of the prior decisions of this court that it would have so provided in plain terms. With the language as it now appears in the act we are quite unwilling to hold that the policy of the state has been changed, and that the effect of our prior decision has been subverted. We must adhere to those decisions until by satisfactory language the legislative intent to change the law so as to authorize the 'application for cancellation by the owner has been more plainly manifested. ' The order of the General Term should be affirmed, with costs. All concur, except Eakl, J., dissenting. Order affirmed.