Peterson v. Martino

• Decision Date: 03 March 1914
• Citation: 210 N.Y. 412,104 N.E. 916
• Parties: PETERSON et al. v. MARTINO.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 412

104 N.E. 916

PETERSON et al.

v.MARTINO.

Court of Appeals of New York.

March 3, 1914.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Mary E. Peterson and others against Mary R. Martino. From a judgment of the Appellate Division (151 App. Div. 894,135 N. Y. Supp. 1137) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Robert W. Thompson, Jr., of New York City, for appellant.

I. R. Oeland, of Brooklyn, for respondents.

CARDOZO, J.

The action is brought to recover possession of land in Suffolk county. The defendant claims title by reason of a sale for taxes. The conveyance by the county treasurer pursuant to that sale was made in November, 1904, and recorded in January, 1905. The plaintiffs had no knowledge of the sale till about October, 1909. Indeed, the finding is that in November, 1906, they asked the county treasurer to search for any taxes or tax sales affecting their land, and received an official certificate that no such sale had been made. When at last they learned the truth, they contested the validity of the sale on two grounds: First, that the assessment roll for the land of nonresidents should have been kept separate from that for the land of residents (Schreiber v. Long Island R. R. Co., 127 App. Div. 286,111 N. Y. Supp. 123), and, second, that the description both in the assessment roll and in the tax deed was so indefinite as to give no notice to the owners that their land had been assessed or sold (People ex rel. Nat. Park Bank v. Metz, 141 App. Div. 600, 609,126 N. Y. Supp. 986). In October, 1910, more than five years after the record of the county treasurer's deed, this action was begun.

[1][2][3] The defendant meets this attack upon the tax title by invoking the protection of section 132 of the General Tax Law. Laws 1896, c. 908. That section declares in substance that such a conveyance, after being recorded for two years, shall be conclusive evidence of the regularity of the sale, and of the proceedings prior thereto from and including the assessment of the lands. It provides, however, that the sale and conveyance shall still be subject to cancellation ‘by reason of the payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid, or by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds,’ if an action for appropriate relief is brought within five years after the period allowed by law for redemption. The defendant's position is that this statute is applicable to tax sales in Suffolk county, and that it forecloses inquiry in respect to the validity of this conveyance. The plaintiffs, however, contend, and the court below has held, that an earlier statute applicable to Suffolk county only (Laws 1873, c. 620, § 9, as amended by Laws 1875, c. 80) makes a conveyance by the county treasurer presumptive and not conclusive evidence, and that this statute, being a special and local one, has survived the enactment of the General Tax Law, which did not expressly repeal it.

The subject is one which has occasioned contradictory decisions. In Bennett v. Kovarick, 23 Misc. Rep. 73,51 N. Y. Supp. 752,Id., 44 App. Div. 629,60 N. Y. Supp. 1133, and in Welstead v. Jennings, 104 App. Div. 179,93 N. Y. Supp. 339, affirmed in this court without opinion 185 N. Y. 588, 78 N. E. 1114,the view was expressed that the General Tax Law left the Suffolk County Tax Law in force. The facts in Welstead v. Jennings would probably have sustained the judgment on different grounds. On the other hand, in Cone v. Lauer, 131 App. Div. 193,115 N. Y. Supp. 644, it was held that the Suffolk County Tax Law had been repealed by implication; and recently in Carroll v. McArdle, 157 App. Div. 404,142 N. Y. Supp. 657, the ruling in Cone v. Lauer was followed, and Welstead v. Jennings was criticized and limited.

We think that the true view is that the General Tax Law supplies the final and exclusive rule. In many cases decided by this court, both before the decision in Welstead v. Jennings and afterwards, the supremacy of that statute over the local acts that preceded it has been consistently upheld. It has been declared to be ‘a codifying act, designed to reduce all statutes relating to taxation into a complete and harmonious system,’ and ‘to exhaust the subject to which it relates.’ Pratt Institute v . City of N. Y., 183 N. Y. 151, 75 N. E. 1119,5 Ann. Cas 198;People ex rel. Roosevelt Hospital v. Raymond, 194 N. Y. 189, 197,87 N. E. 90. It has accordingly been held to override earlier statutes relating to taxation, even though the laws thus displaced were not enumerated ‘in the schedule of 153 acts and parts of acts expressly repealed.’ In re Huntington's Estate, 168 N. Y. 399, 61 N. E. 643; Pratt Institute v. City of New York, supra. In a later case (In re Troy Press Co., 187 N. Y. 279, 79 N. E. 1006) the court dealt with a conflict between a provision of the General Tax Law governing the publication of notices of sale (Laws 1896, c. 908, §§ 130, 151) and a provision of a local law regulating advertisements in the county of Rensselaer (Laws 1892, c. 512). It was again held that the earlier law had been repealed by implication. The conclusion was that the provisions of the General Tax Law establish ‘a complete and harmonious system of taxation and procedure,’ and that they ‘irresistibly lead to the inference that the Legislature intended that they should become a substitute in place of the local previously existing statutes.’ The act regulating taxation in Suffolk county contains provisions for the publication of notices similar to those which, in Re Troy Press Co., were held to have been repealed by implication. It is not possible that the Legislature intended to repeal by implication part of the act, and to let other parts of it stand. The ruling in Re Troy Press Co. has been applied by the Appellate Division to tax laws in other counties. In re McIntyre, 124 App. Div. 66,108 N. Y. Supp. 242;Kelly v. Austin, 132 App. Div. 522,166 N. Y. Supp. 728. We think it is the ruling that controls the case at hand.

Reference is made by plaintiff's counsel to recent opinions of this court as supporting a contrary view. When read in the light of the questions then up for decision, they are not inconsistent. One of the cases is Fulton v. Krull, 200 N. Y. 105, 93 N. E. 494. There the provisions of the charter of the city of Niagara Falls governing assessments in that city were held to have survived the enactment of the General Tax Law. The ruling was based upon the ground that the charter established a complete scheme for taxation of property from the assessment to the sale, and that a local system, consistent in all its parts, constituting a special code for the city affected by it, ought not to be held repealed by implication through a statute of general application. Again, in Grimmer v. Tenement House Dept., 204 N. Y. 370, 378,97 N. E. 884, the Building Code of the city of New York was held not to have been repealed by the Tenement House Act (Laws 1901, c. 334); but there, also, the earlier statute embodied a comprehensive code, designed to establish a separate system for the area affected by it.

We think that all these decisions are consistent with principle and with one another. It is the law, declared on many occasions by this court, that a repeal by implication is not favored, and that it will be upheld only where the repugnancy is plain and unavoidable. Grimmer v. Tenement House Dept., supar; Davis v. Supreme Lodge, 165 N. Y. 159, 58 N. E. 891;People ex rel. Fleming v. Dalton, 158 N. Y. 175, 52 N. E. 1113. It is also the law that a statute, applicable to a particular class of cases, is not repealed by a general statute broad enough in terms to embrace the cases covered by the special law, unless the intent to work a repeal is manifest. Grimmer v. Tenement House Dept., supra; City of New York v. Trustees of Sailors' Snug Harbor, 85 App. Div. 355,83 N. Y. Supp. 442;Id., 180 N. Y . 527, 72 N. E. 1140. Such an intent, however, must commonly be held to be manifest where the later statute is intended as a revision or codification of earlier enactments. Pratt Institute v. City of N. Y., supra, and cases there cited; In re Troy Press Co., supra; In re N. Y. Institution, 121 N. Y. 234, 24 N. E. 378;People v. Jaehne, 103 N. Y. 182, 194,8 N. E. 374;City of Buffalo v. Lewis, 192 N. Y. 193, 200,84 N. E. 809. In such cases the very purpose of the later legislation is to substitute uniformity for diversity. This fundamental purpose will be upheld, even though the earlier statutes are not mentioned in the schedule of laws repealed. When we trace the course of legislation following the enactment of the Suffolk County Tax Law as sketched in Welstead v. Jennings, supra, we have little occasion for surprise that the Legislature omitted to unearth that statute from the mass of later legislation which buried and concealed it. The very purpose of the Tax Law was to supplant the earlier statutes which had become so numerous and confusing that they...