Levy v. Newman

• Decision Date: 20 October 1891
• Citation: 130 N.Y. 11,28 N.E. 660
• Parties: LEVY et al. v. NEWMAN.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 11

28 N.E. 660

LEVY et al.

v.NEWMAN.

Court of Appeals of New York, Second Division.

Oct. 20, 1891.

Appeal from supreme court, general term, second department.

Action by Michael Levy and Henry May against Emanuel Newman for the price of land. Defendant appeals from a judgment of the general term affirming a judgment for plaintiffs, entered on the decision of the circuit court upon trial without a jury. Affirmed.

Fernando Solinger, for appellant.

Ira Leo Bamberger, for respondents.

FOLLETT, C. J.

This action was brought to recover the purchase price of land, which, September 1, 1887, the plaintiffs contracted to sell and the defendant to buy by an executory contract to be performed October 17, 1887. The defense interposed is that the plaintiffs were unable to convey a perfect title. February 3, 1886, the registrar of arrears of the city of Brooklyn sold the lot in question to David J. Eisner (from whom the plaintiffs, through mesne conveyances, derived their title) for unpaid taxes pursuant to chapter 114 of the Laws of 1883. At this time three infants owned four-ninths of the land, as tenants in common with several adults, who owned four-ninths. The adults and infants were personally served with notice of the sale, but failed to redeem within the time prescribed by statute. Neither of the infants had a general guardian, and the defendant insists that their right of redemption has not been cut off. By title 8 of chapter 863 of the Laws of 1873 (the late charter of the city of Brooklyn) a department of arrears was created, and charged with the duty of selling property for unpaid taxes. By this title the procedure by which sales were to be made and redemptions effected was prescribed with particularity. Section 9 of this title provides: ‘Sec. 9. Whenever such registrar shall receive satisfactory information that the land so sold belongs to an idiot or insane person, for whose estate no committee shall have been appointed, or to an infant having no guardian, he shall not execute a conveyance of their lands until at least one month after he shall have legal evidence that such disability has been removed or a committee or guardian of the estate has been appointed; and until the expiration of said month such committee or guardian may redeem such land, in the same manner as hereinbefore provided.’ On the 16th of March, 1883, the taxes in arrear in this city exceeded $10,000,000, and on that date chapter 114, Laws 1883, was passed, by which the board of assessors was authorized to determine the proportion of the taxes in arrear, assessed prior to July 1, 1882, which ought to be paid. The amounts found to be equitably chargeable to each piece of property were to be a lien on the land, and a complete scheme was provided for collecting the readjusted taxes, and, in case of their non-payment, for the sale of the property against which they were assessed, and for the redemption of the property sold pursuant to the act. It is not asserted, and could not be successfully, that the readjusted taxes could be collected...