Matter of Applicat'n of Clementi v. . Jackson

Rapallo, J. Under the decision of this court in Brevoort v. The City of Brooklyn (89 N. Y. 128), the taxes in question were illegally assessed and the assessment was void. This is not disputed by the appellant. The sales of respondent’s property for the non-payment of these taxes were consequently also void, and the purchaser acquired no right or title to respondent’s property by virtue of those sales or of the leases subsequently granted. Chapter 363 of the Laws of 1882 did not validate those sales. It validated the taxes, but only suh-modo. It did not validate the penalties by way of interest and expenses, which would have been a lien on respondent’s property, and for nonpayment of which, as well as the original taxes, the property was sold, but the validating act was accompanied by the condition that the taxes thus validated and remaining unpaid should be payable with interest at the rate of six per cent per annum, from the date of the original confirmation thereof by the supervisors, provided .such payment be made before the 1st of- December, 1882, and if not so paid, then that interest should be collected thereon at the rate of nine per cent per annum from the date of such original confirmation. This was the extent to which the taxes were validated. All the provisions of the act must be read and construed together, and thus read and construed, it appears that these void taxes were made valid only on condition that property owners might discharge them by paying the reduced amount specified in the act. It could not have been the intention of the act that if the city had attempted to enforce payment of these void taxes, by sales and leases, the validation should stand and the landowners be deprived of the provision for their benefit, which *595 was one of the terms upon which the legislature cured the defect in the assessment of the taxes. Chapter 348 of the Laws of 1882 has no bearing on this case. That was not an act to validate void taxes or assessments, but a gratuitous rebate from taxes and assessments supposed to be valid, made for the purpose of inducing prompt payment. It permitted “ any person owing the city of Brooklyn any taxes, assessments or water-rents,” to pay the same at any time before the 1st of December, 1882, with interest at six per cent per annum from the date of confirmation. Chapter. 443 of the Laws of 1881 also assumed the taxes to be valid, and provided for their collection. It was not passed for the validation of void taxes or assessments. It is contended by the appellant that the respondent was not entitled to the benefit" of the portion of the act of 1882 (Chap. 363) which was beneficial to her, because that provision applied only to such of the void taxes validated by the act as remained unpaid, and that in her case the taxes did not remain unpaid, as the purchaser at the tax sale had paid them. We do not think that the payments made by the purchaser were payments of the taxes. He did not make the payments for the benefit of the relator, or in her behalf, nor for the purpose of discharging the property from the lien of the taxes, but made them in his own behalf, for the purpose of acquiring an interest in the property by virtue of the sales made by the city to enforce that lien, in consequence of the non-payment of the taxes and penalties. The payments made by him were no more a payment of the taxes than would a payment made by an assignee to an assignor of a bond, in consideration of the assignment thereof, be a payment of the bond. We are of opinion, therefore, that it was the duty of the appellant to accept the sum tendered to him by the respondent, pursuant to section 2 of the act of 1882 in discharge of these taxes. The further point that the purchaser at the tax sales was a necessary party to this proceeding is not, we think, tenable. He had no right or title to the property if the sales were void, *596 and if they were valid, or were made so by the act of 1882, the payment of the taxes by the relator would not affect him. This proceeding is not for an adjudication upon the title, but is a matter wholly between the relator and the respondent, to compel the latter to perform a statutory duty, the effect of which, in case of dispute, must be determined hereafter. The purchaser at the sales is no more proper a party to such a proceeding than would an adverse claimant of title to land be to a proceeding by mandamus to compel a county clerk to record a deed or satisfaction piece affecting the title. The question whether the purchaser can recover back the sums paid on the tax sales is one between him and the city and does not concern the relator. The order should be affirmed, with costs. All concur. Order affirmed.