Werking v. Amity Estates, Inc.

• Decision Date: 11 July 1956
• Citation: 2 N.Y.2d 43,137 N.E.2d 321,155 N.Y.S.2d 633
• Parties: , 137 N.E.2d 321 Arthur WERKING, Appellant, v. AMITY ESTATES, Inc., et al., Respondents. Board of Supervisors of GreeneCounty, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 633

155 N.Y.S.2d 633

2 N.Y.2d 43, 137 N.E.2d 321

Arthur WERKING, Appellant, v. AMITY ESTATES, Inc., et al., Respondents. Board of Supervisors of GreeneCounty, Respondent.

Court of Appeals of New York.

July 11, 1956.

Joseph Malone, Jr., Greenville, for appellant.

A. H. Waisman, New York City, for Amity Estates, Inc., respondent.

Francis A. Ruf, Catskill, for Board of Supervisors of Greene County, respondent.

CONWAY, Chief Judge.

In 1934, plaintiff, as tenant, entered into possession of a 135-acre farm in the town of Greenville, Greene County, New York, under a lease with one Marilla Whitbeck, landlord, at a yearly rental of $150. Plaintiff remained in possession under the lease until about 1948, when the landlord and he entered into an agreement whereby plaintiff could purchase the farm for the sum of $4,000 and, upon the payment of that sum in full, would receive a deed. Plaintiff, thereupon, made and completed such payment, and in 1952, received a deed from Mrs. Whitbeck, which was recorded in Greene County the same year. Pursuant to the lease and agreement to purchase, plaintiff was to pay the taxes. He paid the taxes for 1948, but failed to pay any taxes thereafter. Because of plaintiff's failure to pay the 1949 taxes, defendant, Amity Estates, Inc., hereinafter referred to as 'Amity', purchased the farm at a tax sale on April 23, 1951 for the sum of $230.21. Amity thereafter received a tax deed from the County Treasurer, dated August 5, 1952, and a certificate of nonredemption, dated April 26, 1954, both of which instruments were recorded in the office of the County Clerk oif Greene County on April 30, 1954.

It was not until April of 1954 that plaintiff learned for the first time that his farm had been sold for taxes and that Amity held a tax deed to the premises. Plaintiff obtained that knowledge from an insurance broker who, at the request of Amity, visited the farm to inspect it with reference to prospective insurance. On April 29, 1954 plaintiff visited and inquired of the County Attorney and the County Treasurer as to his right, if any, to redeem the property. He was advised at that time that he was entitled to redeem. On the next day, however, plaintiff received a letter from the County Attorney which indicated that plaintiff had been given incorrect information and that under the Tax Law, McK.Consol.Laws, c. 60, he did not have the right to redeem the property. Thereafter, on May 11, 1954, plaintiff received a letter from Amity's attorney, who was also an officer and director of Amity, hereinafter referred to simply as 'Amity's representative,' in which Amity's representative stated that he wished to afford plaintiff the opportunity to voluntarily vacate the premises. In a postscript, Amity's representative said: 'It may be that you would wish to remain in occupancy under a rental arrangement. If so, let me know.' Plaintiff did not reply to the above communication from Amity.

After receiving such communication, plaintiff inquired of two lawyers in Catskill as to his statute. The first lawyer told the plaintiff that it was out of his line and the second lawyer, after communicating with the County Treasurer's office, told the plaintiff tht he could not do anything for him. On May 15, 1954 Amity's representative visited the plaintiff at his farm. Amity's representative, at that time, inspected the premises, and inquired whether plaintiff had consulted anyone regarding his alleged ownership of the farm. Plaintiff replied that he had consulted counsel of his own choosing and was under the belief that he no longer had any title or interest in the farm. Plaintiff asked amity's representative if he could buy the farm from Amity. When plaintiff stated that he did not have the requested sum of $400 for a down payment, Amity's representative said that there was no sense in talking about a sale. Plaintiff stated that it would be a hardship to surrender the farm, to which Amity's representative countered that he would not be ousted if some fair, businesslike arrangement could be made. Plaintiff asked how much the rental would be, and Amity's representative replied that he would take up that matter when he returned to the city. After that meeting with Amity's representative, plaintiff received a letter from such representative, dated May 27, 1954, which stated, in essence, that the monthly rental would be $100. Amity took out fire and liability insurance some time during May, 1954, and paid the premiums of $85.46 therefor. Plaintiff paid Amity $100 rental for June and $100 rental for July. Thereafter, plaintiff commenced this action seeking to have the tax deed which was received by Amity, set aside as void.

The theory of plaintiff's action is that the tax collector failed to comply substantially with section 69 of the Tax Law, and that such noncompliance, being a jurisdictional defect, rendered the subsequent tax sale void. The pertinent portion of section 69 of the Tax Law, entitled 'Notice by collector: general', provides: 'Every collector, upon receiving a tax-roll and warrant, shall forthwith cause notice of the reception thereof to be posted in five conspicuous places in the tax district, specifying one or more convenient places in such tax district, where he will attend from nine o'clock in the forenoon until four o'clock in the afternoon, at least three days * * * in each week for thirty days from the date of the notice * * * which days shall be specified in such notice, for the purpose of receiving the taxes assessed upon such roll. The collector shall attend accordingly, and any person may pay his taxes to such collector at the time and place so designated, or at any other time or place. * * *' (Emphasis added.)

Under section 131 of the Tax Law, such tax conveyance of Amity 'shall be presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of lands sold, and that all notices required by law to be given previous to the expiration of the time allowed by law for the redemption thereof, were regular and in accordance with all the provisions of law relating thereto.' Thus, in this action by plaintiff, wherein is sought a declaration that the tax deed is void and that it be set aside, Amity was entitled to rely on the abovedescribed presumption of regularity. However, as stated in Bunner v. Eastman, 50 Barb. 639: 'If it is only presumptive evidence of regularity, then that presumption may be overcome, and the only effect of the statute (precursor of present § 131) is to shift the burden of proof from the party claiming under the deed, to the other party who seeks to overthrow it.' And, as we said in People ex rel. Wallington Apts. v. Miller, 288 N.Y. 31, 33, 41 N.E.2d 445, 446, 141 A.L.R. 1036: 'Such a presumption (that of regularity of proceeding conducted by sworn tax officers) is not evidence but serves in place of evidence until the opposing party comes forward with his proof, whereat it disappears. It has no weight as evidence and is never to be considered in weighing evidence.' See, also, Wellisch v. John Hancock Mut. Life Ins. Co., 293 N.Y. 178, 184, 56 N.E.2d 540, 542. Upon the trial of the present case, plaintiff sought to and, in our opinion, did overthrow such presumption of regularity. Thus, plaintiff elicited from the tax collector himself evidence of the following noncompliance with the provisions of section 69: (1) The notice under that section must specify that the collector will attend to receive the taxes from 9 o'clock in the forenoon until 4 o'clock in the afternoon; the notice herein did not specify any particular hours. (2) The notice under section 69 must specify that the collector will attend to receive taxes on at least 3 days in each week for 30 days (this amounts to at least 12 different days); the notice herein specified only 6 different days. (3) Section 69 requires posting of the notice in 5 conspicuous places; the collector posted in only one place, and, as he testified, 'The postmaster, John Ives, I guess posted (the others)'. It is true that the tax collector testified on cross-examination that when he went to the places designated as those where taxes might be paid, he saw the notices then posted. That, of course, does not establish that such notices were posted 'forthwith' as required.

What we must determine is whether this noncompliance rendered the tax deed void.

In approaching that question we bear in mind the principle which is so well stated in Cooley on Taxation, 2d ed. (1886), p. 470: 'Tax sales are made exclusively under a statutory power. * * * The officer who makes the sale sells something he does not own, and which he can have no authority to sell except as he is made the agent of the law for the purpose. But he is made such agent only by certain steps which are to precede his action, and which, under the law, are conditions to his authority. If these fail the power is never created. If one of them fails it is as fatal as if all failed. Defects in the conditions to a statutory authority cannot be aided by the courts; if they have not been observed the courts cannot dispense with them, and thus bring into existence a power which the statute only permits when the conditions have been fully complied with. * * * It is therefore accepted as an axiom when tax sales are under consideration, that a fundamental condition to their validity is that there should have been a substantial compliance with the law in all the proceedings of which the sale was the culmination. This would be the general rule in all cases in which a man is to be divested of his freehold by adversary proceedings; but special reasons make it peculiarly applicable to the case of tax sales.' See, also, Lockwood v. Gehlert, 127 N.Y. 241, 248, 27 N.E. 812, 813; Neber v. Hatch, 10 Abb.N.C. 431, affirmed on opinion below 88 N.Y. 657; Saranac Land & Timber Co. v. Roberts, 208 N.Y. 288, 311, 101 N.E. 898, 905; Helterline v....