Tax Lien Co. of New York v. Schultze

• Decision Date: 10 November 1914
• Citation: 213 N.Y. 9,106 N.E. 751
• Parties: TAX LIEN CO. OF NEW YORK v. SCHULTZE et al.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 9

106 N.E. 751

TAX LIEN CO. OF NEW YORK

v.SCHULTZE et al.

Court of Appeals of New York.

Nov. 10, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Tax Lien Company of New York against Catherine E . Schultze and others, to foreclose a tax lien. From an order of the Appellate Division (161 App. Div. 693,146 N. Y. Supp. 902) reversing an order of the Special Term, which granted a motion of Wesley E. Barker, purchaser, to be relieved from his bid at the sale pursuant to a judgment of foreclosure of a tax lien, and denied a motion by plaintiff to compel the purchaser to complete his purchase, the purchaser appeals. Reversed, and order of Special Term affirmed.

The action was brought pursuant to sections 1035-1039 of the Greater New York Charter (Laws of 1901, c. 466, as amended by chapter 490 of the Laws of 1908 and chapter 65 of the Laws of 1911), to foreclose a tax lien upon premises described in the judgment as follows:

‘Borough of the Bronx. New description, section 9. Block 2277, lot 50. Location, East 132d street, between Willis avenue and Brown place; assessed to unknown owner; on the land and tax map, city of New York, borough of Bronx.’

Upon the sale pursuant to the judgment, the appellant, Wesley E. Barker, bid the sum of $5,000 therefor, and the property was struck off to him. He signed the terms of sale and paid $500 on account thereof. He subsequently refused to complete his purchase, for the alleged reason tht the premises are affected by easements of light, air, and access in favor of adjoining owners, which are not cut off by the foreclosure of the tax lien, and which said liens were in no way referred to by the terms of sale. The plaintiff, so far as appears from the record, does not deny that there were easements of light, air, and access in favor of adjoining owners, but alleges that all of the adjoining owners were made parties defendant in the action to foreclose the tax lien, and that some of them appeared in the action, and others defaulted after being duly served with process, and that the judgment in the action provides:

‘That each and all of the defendants in the action who have been served with a summons, and all persons claiming under them or any of them after the filing of the notice of pendency of action, be and they are hereby forever barred and foreclosed of all right, claim, lien, title, interest, easement, and equity of redemption in the premises affected by the said transfer of tax lien, and each and every part thereof.’

The motions were made at the Special Term and were heard together, one by the plaintiff to compel the appellant Barker to complete his purchase, and one by the appellant Barker to be relieved from his purchase.Edward Miehling, of New York City, for appellant.

August Weymann, of New York City, for respondent.

CHASE, J. (after stating the facts as above).

[1] When an easement is carved out of one property for the benefit of another, the market value of the servient estate is thereby lessened, and that of the dominant increased, practically by just the value of the easement; the respective tenements should therefore be assessed accordingly. People ex rel. Poor v. Wells, 139 App. Div. 83, 87,124 N. Y. Supp. 36, affirmed on opinion below 200 N. Y. 518, 93 N. E. 1129. See Blenis v. Utica Knitting Co., 73 Misc. Rep. 61,130 N. Y. Supp. 740, affirmed 149 App. Div. 936,134 N. Y. Supp. 1126, affirmed 210 N. Y. 561, 104 N. E. 1127;Smith v. Mayor, etc., of N. Y., 68 N. Y. 552, 557;People ex rel. Topping v. Purdy, 143 App. Div . 389,128 N. Y. Supp. 569, affirmed 202 N. Y. 550, 95 N. E. 1137;Matter of Hall, 116 App. Div. 729,102 N. Y. Supp. 5, affirmed 189 N. Y. 552, 82 N. E. 1127.

[2] The assessment of the lot described in the judgment did not include the easements appurtenant tot he adjoining real property. The assessment of the servient estate was subject to the easements included in the assessments of the dominant estate . As a necessary consequence it has been held that, on the foreclosure of a tax lien and a sale of the premises pursuant to sections 1035-1039 of the Greater New York Charter, private easements of light, air, and access of adjoining owners over the land sold are not extinguished. If property rights, which are excluded from an assessment, are sold or extinguished by a tax sale, there would be a taking of property without due process of law. Jackson v. Smith, 153 App. Div. 724,138 N. Y. Supp. 654, affirmed on opinion below by decision handed down herewith, 213 N. Y. -- 107 N. E. --.

[3] The owners of the property adjoining the property described at the tax sale, including the easements over the property so described, were not necessary parties to the action to foreclose the tax lien. They were made parties to the action, and the question now arises whether the easements of those who made default in appearing in the action are cut off by the judgment taken against them by such default. We are not in this case considering the propriety of making a person who claims in hostility to a tax lien a party defendant in an action to foreclose such lien. The question before the court is as to the effect of making a person claiming an interest superior to a tax lien a party in a case, where the propriety of making such a person a party defendant is not in any way presented in the action.

[4] It is a general rule that a judgment is conclusive between the parties and their privies upon all matters embraced within the issues in the action which were or might have been...