Zink v. McManus

• Decision Date: 29 April 1890
• Citation: 121 N.Y. 259,24 N.E. 467
• Parties: ZINK v. McMANUS et al.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 259

24 N.E. 467

ZINK

v.McMANUS et al.

Court of Appeals of New York.

April 29, 1890.

Appeal from supreme court, general term, fifth department.

Ejectment by George W. Zink against Anne McManus and her tenant, Joseph Ryan. A judgment entered upon a verdict for defendants was reversed at general term, and defendants appeal.

Leory Parker, for appellants.

Moses Shire, for respondent.

O'BRIEN, J.

This is an action of ejectment brought to recover certain lands in the city of Buffalo. The plaintiff proved title to the premises described in the complaint under a deed executed to him in 1874 by the then owners of the lands, and this entitled him to recover, unless his title was subsequently divested by proceedings for the sale of the lands for taxes. The defendant claimed to have obtained title under a deed from the comptroller of the city of Buffalo, dated May 25, 1886, which recites that in 1883 the land was assessed for taxes which remained unpaid, and that proceedings were instituted under the statute for the sale of the same; and that it was duly advertised and sold for the taxes levied for that year to the defendant, and that it had not been redeemed by the plaintiff. Under the statute prescribing the proceedings for the sale of land for unpaid taxes in the city of Buffalo this deed is made conclusive evidence of the regularity of the sale, and presumptive evidence that all previous proceedings were regular, according to law and the provisions of the act. Laws 1880, c. 275, §§ 8, 9. It appears that the lands in question were not assessed to the plaintiff, although he was the actual owner, but to other parties, for the reason that about the year 1876 the plaintiff executed and acknowledged a deed of the premises in form conveying them to P. and J. Zimmerman. This deed, however, was never actually delivered to the grantees named therein; but under the provisions of the charter of the city of Buffalo, requiring the assessors to note upon every deed of lands in the city presented to them the fact of such presentation, and prohibiting the county clerk from recording any deed which shall not have been so marked by the assessors, under a penalty of $10, the deed, after execution and acknowledgment, was presented to the assessors, stamped by them as required by the statute, and the names of the grantees mentioned in the deed entered upon a map kept by the assessors; and thereafter, although the deed never became operative as a conveyance of the land, the premises were assessed to the Zimmermans. On the trial of the action the court directed a verdict for the defendant, holding that the title to the premises had become vested in her under the comptroller's deed. Upon appeal to the general term the judgment was reversed, upon the ground, as appeared by the opinion, that the assessment, not having been made against the plaintiff, who was the true owner of the lands, was invalid, and all subsequent proceedings for the sale of the lands were unauthorized and void.

If the sale and conveyance of the lands to the defendant by the comptroller were in other respects valid, we should hesitate to hold that the assessment was made without jurisdiction. The lands were assessed to the Zimmermans because the plaintiff, under the provisions of the statute, caused to be delivered to the assessors a deed in which they were named as grantees, and the assessors thereupon treated the deed as operating to change the title, and thereafter, without any notice or objection from the plaintiff, or any one else, they continued to assess the lands to the Zimmermans. We think that when the owner of real property, under such circumstances, and in view of the statute applicable to the city of Buffalo, procures it to be assessed to other persons, he cannot be permitted to claim that the assessment is invalid because the assessors acted upon the information thus given to them, and assessed the land to the persons who appeared as grantees in the deed.

It is not necessary, however, to pass upon that question in this case, as we are of opinion that the conveyance by the comptroller to the defendant is fatally defective for other reasons. The lands to which the plaintiff proved title, and which he sought to recover in the action, are described in the complaint as follows: ‘All that certain piece or parcel of land situate, lying, and being in the city of Buffalo, county of Erie, aforesaid, and state of New York, bounded and described as follows: Beginning at a stake in the New York state reservation line distant one hundred and thirty-nine (139) feet southerly from a stake set at a point where the northerly line of William A. Bird's farm intersects...