Opinion
November 18, 1910.
Michael J. Tierney, for the appellant.
Herbert H. Kellogg, for the respondent.
The plaintiff brings this action under the provisions of article 5 of title 1 of chapter 14 of the Code of Civil Procedure to compel the determination of a claim to real property, and the learned court at Special Term has given judgment in favor of the plaintiff, declaring null and void certain assessments made by the defendant, under which the plaintiff's property has been sold from year to year, dating back to 1900 and coming down to 1907. The complaint sets forth seven causes of action in the manner and form prescribed by section 1639 of the Code of Civil Procedure, and asks that the sales which have been made to the city of New Rochelle under these assessments shall be set aside and annulled, on the ground that the assessments attempted to be made did not properly describe the property. It is conceded that the assessments as made by the assessors of the city of New Rochelle in the causes of action numbered 1, 2 and 3, in so far as they attempted to describe the property, were as follows:
"Description of Property Location Land Webster Winyah Ave."
that the description in the assessment contested in the 6th cause of action was as follows:
"Description of Property Location Plot of land Webster Winyah Aves." that the description in the causes of action numbered 4 and 5 were as follows:
"Description of Property Location Plot of land 600× 600 Webster Winyah Aves."
and the description in the 7th cause of action is the same as the last above, except that it omits the words "plot of" and merely says, "Land 600 x 600."
Clearly, none of these assessments points out to any one the "quantity" of land which it is proposed to assess, as that term is understood in the Tax Law. (See Laws of 1896, chap. 908, § 21, subd. 2, as amd. by Laws of 1899, chap. 712.) The statute requires a statement of the number of acres, or the number of square feet or rods of land, or a description of a lot, the quantity of land being ascertainable by reference to an official map, or by some other proper means, so that the property shall be described and pointed out. Fixing the location "Webster Winyah Aves." is no aid; there are four corners of Webster and Winyah avenues, and no one looking to the description in the assessment roll would be able to tell which corner or how much land. Even in the cases where the land is described as "600 x 600" there is nothing to tell us whether this is 600 feet, 600 yards or 600 rods, and under the rule which we laid down in the case of Lawton v. City of New Rochelle ( 114 App. Div. 883) the assessment is utterly void. (See Allter v. Village of St. Johnsville, 130 App. Div. 297, 301, citing approvingly the Lawton case.)
It is perfectly true, as Bussing v. City of Mount Vernon ( 198 N.Y. 196, 205) and Sanders v. Village of Yonkers (63 id. 489) hold, that an action in equity will not lie to set aside an assessment as a cloud upon title, where the defect appears upon the face of the assessment roll, as in this case, but the complete answer to this is that this is not an action depending upon equitable rules, but is one governed by statute; the plaintiff must, by pleading and proof, bring the action within the terms and conditions of the statute ( Lewis v. Howe, 174 N.Y. 340, 343, and authorities there cited) and when this has been done the plaintiff is entitled to relief. This action is one which has been provided for by statute for many years ( King v. Townshend, 78 Hun, 380, 381, 382), and has frequently been called into operation in reference to cases of this kind. A case exactly in point is that of Loomis v. Semper ( 38 Misc. Rep. 567), the head note of which reads: "An owner may maintain an action under Code C.P., § 1638 et seq., to compel a determination of a claim to her real property where the defendant has purchased it for unpaid taxes amounting to thirty-five dollars and will in the absence of redemption acquire an absolute title in two years from the sale." That was a Special Term case, it is true, but it was decided in 1902, and no appeal has been taken, nor has the decision been questioned. The case of Burnham v. Onderdonk ( 41 N.Y. 425), decided under the old Code of Procedure, afterward embodied in the Code of Civil Procedure ( King v. Townshend, supra) involved a similar question, the defendant claiming title under two certificates of sale of lots involved in the assessment, and while it is true that one of the judges writing held that the question of whether a claim under a certificate of sale for taxes was one to come within the statute, DANIELS, J., distinctly asserted that the claim was one such as might properly be litigated under the provisions of the law as it then stood.
The case of Lawton v. City of New Rochelle ( supra) necessarily involved the question, though it was not argued or decided, but we are of the opinion that the result would not have been different if the question had been raised. The statute certainly in terms is broad enough to cover an action of this character, and no good reason suggests itself why this court should disclaim jurisdiction to determine the question.
We think there is no merit in the suggestion that the plaintiff is estopped to assert the invalidity of these assessments. There never were any valid assessments, and there is no evidence that the plaintiff's attention was ever called to them, or that she ever took any action which warranted the defendant in believing that she acquiesced in the assessment as made. Brown v. Otis ( 98 App. Div. 554) had to do with a very different state of facts.
The judgment appealed from should be affirmed, with costs.
HIRSCHBERG, P.J., JENKS, THOMAS and RICH, JJ., concurred.
Judgment affirmed, with costs.