Coffin v. City of Brooklyn

• Decision Date: 08 October 1889
• Citation: 22 N.E. 227,116 N.Y. 159
• Parties: COFFIN v. CITY OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 159

22 N.E. 227

COFFIN

v.CITY OF BROOKLYN.

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from a judgment of the general term of the city court of Brooklyn, affirming a judgment of the special term, dismissing plaintiff's complaint, with costs. In 1872 a tax of $36.42 was attempted to be laid upon certain premises in the city of Brooklyn, and in the same year there was also unpaid a water-rate of $12. These taxes were not paid, and on October 5, 1875, the registrar of arrears of said city offered the premises for sale, as he was empowered to do by the charter, and, there being no bidders, said registrar bid in the premises for the city for the term of 100 years. Immediately after the sale he executed a certificate of sale which was as follows: ‘Lib. 32, vol. 3. City of Brooklyn, Reg. No. 5,607, 1872. $66.08. October 5, 1875. I hereby certify that at public auction held by me this day at the office of the registrar of arrears, in the city of Brooklyn, for the sale of property for unpaid taxes and water-rates, pursuant to an act entitled ‘An act to consolidate the cities of Brooklyn and Williamsburgh and the town of Bushwick into one municipal government, and to incorporate the same,’ passed April 17, 1854, and the acts amendatory thereof or supplemental thereto, the city of Brooklyn purchased the lot, piece, or parcel of land assessed for the tax and water-rate of 1872, and known by the number 5,607 in sales register of tax and water-rates, liber 32, for the term of one hundred years, for which he has paid the sum of $66.08, and which said purchase entitles him to a lease of the said premises for the term aforesaid, after the expiration of two years from the date hereof, unless said premises be redeemed within that time, or any irregularity shall be discovered in the proceedings prior to said sale, in which case said purchase money, and all sums paid for taxes, water-rates, or assessments on said premises, on account of the purchase hereinbefore stated, shall be repaid to said purchaser or his assigns, provided this certificate shall be surrendered to the registrar of arrears, and no further or other damage shall be claimed by said purchaser. 21 ward, page 6, block 32, lot No. 42. D. D. WHITNEY, Registrar of Arrears.' The premises were not redeemed by the owner, and on March 16, 1882, the said registrar of arrears assigned the said certificate of sale to the plaintiff by an instrument in writing reading as follows: ‘Department of Arrears, Brooklyn, March 16, 1882. I, Theodore F. Jackson, registrar of arrears for the city of Brooklyn, for and in consideration of one hundred and ten dollars and fifty-three cents, the receipt whereof is hereby acknowledged, hereby assign to John F. Coffin all the right, title, and interest of the said city of Brooklyn in the within certificate. THEODORE F. JACKSON, Registrar of Arrears. Witness: ‘R. S. STERES, Cashier.’ On March 20, 1882, the plaintiff surrendered his certificate of sale, and received a lease for the premises so sold, as he was entitled to do under the terms of the certificate. Subsequently the court of appeals decided that the tax levy for the year 1872 was invalid, on the ground that the certification of the assessment roll by the assessors was not in compliance with the requirements of the charter. Brevoort v. City of Brooklyn, 89 N. Y. 128. In June, 1882, plaintiff brought this action to recover the money paid to the city on the assignment of the certificate. A judgment of the special term dismissing the complaint was affirmed by the general term, and plaintiff appeals.

E. T. Brockett, for appellant.

Almet F. Jenks, for respondent.

BROWN, J.

The right to recover from the defendant the money paid for the assignment of the certificate of sale is claimed by the learned counsel for the appellant upon the ground that it was paid under a mistake of fact, and this claim rests upon the assertion that the transaction between the parties was not solely an assignment of the right, title, and interest of the defendant in and to the certificate of sale, but was a purchase of the outstanding term for which the property had been sold, which purchase was induced by the recital in the lease that ‘all the proceedings prior and subsequent to the sale, * * * required by law to authorize this conveyance, were duly had.’

It is not necessary to refer in detail to the numerous authorities cited by the appellant which he claims entitle him to a recovery in this action. So far as they are applicable to cases of this character, they hold that, when there is mutual error as to the existence of the subject-matter of the contract, the contract may be rescinded, and money paid under it may be recovered back. Martin v. McCormick, 8 N. Y. 331;Gardner v. Mayor of Troy, 26 Barb. 423. In the cases cited there was a supposition by both parties that, by means of the assessment and sale, the vendors had acquired an interest in the land which they could sell and convey. This erroneous supposition was the mutual error which gave the vendee a right to recover the money paid for the conveyance. I do not think this case falls within the principle of the authorities cited. The trial court found that the money was not paid under a mistake of fact, but solely in payment of defendant's interest in the certificate assigned to the plaintiff. There was no oral testimony given upon the trial, and the evidence consists of the admission in the pleadings, the certificate of sale, the assignment thereof, and the...