Keen v. County of Suffolk

Appeal from an order denying appellant’s motion for injunctive relief, pendente lite, and granting respondents’ cross motions to dismiss the complaint for insufficiency. On April 22, 1955 respondent County of Suffolk conveyed by quitclaim deed certain lots, which it had previously acquired through tax sales, to one Alexander T. -Bloom for $10,386.69. The deed described and identified the lots by numbers only and as being on “Plate 10, Map 502, Highland Park. As per map filed in the Suffolk County Clerk’s Office at Riverhead, New York, June 6, 1904 and July 6, 1904.” On April 29, 1955 Bloom conveyed the same lots to appellant by a deed containing the same description and identification. In his complaint appellant alleges that he paid taxes assessed by the respondent Board of Assessors for the tax years 1955^-56 and 1956-57. He further alleges that the above-mentioned map was never filed or indexed, that it never existed and does not now exist. Because of the nonexistence, nonfiling and nonindexing of the map, appellant claims that neither he nor his grantor acquired title to the numbered lots recited in the conveyances. On the basis of the foregoing facts, appellant brought this action against the County of Suffolk, the Town of Brookhaven and the Board of Assessors of said town, inter alia, to recover (1) the consideration paid by Bloom, his grantor, to the county and (2) the tax assessments paid by him, and to enjoin further assessments upon the lots. Appellant then moved to restrain the board and the town from further assessment of the property and to restrain the county from advertising and selling the property for the unpaid 1957-58 taxes. Respondents cross-moved to dismiss the complaint for insufficiency. The Special Term denied appellant’s motion and granted respondents’ motions. Order modified by adding at the end of the second ordering paragraph the words “with leave to plaintiff to serve an amended complaint ”. As so modified, order unanimously affirmed, with $10 costs and disbursements to appellant. The amended complaint is to be served, if appellant be so advised, within 20 days after the entry of the order 871 hereon on payment of $10 to the respondents. The complaint fails to state facts sufficient to sustain a recovery of the consideration paid by appellant’s grantor to the County of Suffolk, or of the taxes alleged to have been paid for the years 1955-1956 and 1956-1957. It is not alleged that he paid any taxes which were illegally assessed against property owned by him or in which he had an interest, nor is it alleged that any such payment was made under a mistake of fact, under a mistake of law, under protest, or under duress (cf. Mercury Mach. Importing Corp. v. City of New York, 3 N Y 2d 418; Adrico Realty Corp. v. City of New York, 250 N. Y. 29; People ex rel. Wessell, Nickel & Gross v. Craig, 236 N. Y. 100). Present — Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.