Clarke v. Mayor

• Decision Date: 15 January 1889
• Parties: CLARKE v. MAYOR, ETC., OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 621

19 N.E. 436

CLARKE

v.MAYOR, ETC., OF NEW YORK.

Court of Appeals of New York.

January 15, 1889.

Appeal from superior court of New York city, general term.

The plaintiff, Charles S. Clarke, sues to recover back $3,190.65, money paid by him as purchaser of lands sold on the 7th of May, 1883, for the non-payment of taxes, under the direction of the comptroller of the city of New York. He received the usual certificate of sale, and subsequently, the premises not being redeemed, he surrendered the certificate, and took from the city a paper purporting to be a lease for the term of years mentioned in the certificate. He alleges the lease to be void, and that he received no value for the money paid. At the trial in the supreme court a verdict was directed in his favor, and upon it he had judgment. It was reversed by the the general term, and a new trial ordered. From this he appeals, after giving the usual stipulation for judgment, absolute in case the appeal fails.

John Townshend, for appellant.

D. J. Dean, for respondent.

DANFORTH, J.

We have carefully examined the various points made by the appellant, and think none important except those which relate to the validity of the sale. If the sale was valid, errors or defects in the subsequent proceedings are of no importance upon the question raised in this action.

1. It is argued that the taxes for the non-payment of which the sale was made were void. They were imposed in [111 N.Y. 623]1877, 1878, and 1879, and under the act then in force the tax commissioners were required to have in their office books ‘to be called the ‘Annual Record of the Assessed Valuation of Real and Personal Estate,’' and keep them ‘open for examination and correction, from the second Monday of January until the 1st day of May in each and every year;’ but the statute declares that ‘on said last-mentioned day the same shall be closed, to enable the commissioners to prepare assessment rolls,’ etc. Laws 1859, c. 302, § 8. They were in fact kept open from the time specified through April 30th, but no longer, and in this the appellant says the commissioners erred; the contention being that the word ‘until’ is inclusive, and required the books to be open for inspection and examination through the 1st day of May. The authorities cited by counsel show that the word is variously used, sometimes as inclusive and again as exclusive, and that no fixed rule has been laid down in regard to it. In each instance its construction must depend upon the circumstances and subject-matter of the case presented. By itself, however, it marks a limitation of time, and its more obvious meaning requires the exclusion of the day named, (People v. Walker, 17 N. Y. 502;) and in...