Opinion
Argued October 30, 1885
Decided November 24, 1885
George B. Ely for appellant. John A. Taylor for respondent.
The duty sought to be enforced in this case by mandamus is prescribed by section 23, chapter 863 of the Laws of 1873, known as the city charter of Brooklyn. That section makes it the duty of the registrar of arrears, upon the application of the holder of a certificate of sale of lands for taxes, which have been redeemed from the sale, to be repaid the amount bid with interest, to examine the case, and, if found to be correct, upon surrender of the certificate, to prepare and sign a check on the treasurer for the amount received "in said case," and after procuring the counter-signature of the comptroller, to deliver it to the applicant. The lands now owned by the relator were sold for taxes February 19, 1861, and certificates of sale were duly executed to one Feeks, the purchaser, who on the 27th day of February, 1862, executed and delivered to one Wheeler an instrument purporting to be an assignment of the certificates, but it was found by the trial judge that the certificates were never delivered to the assignee. The relator, on the 14th day of August, 1874, she then being the owner of the lands embraced in the certificates, redeemed from the sale by paying to the registrar of arrears the amount for which they had been sold, with interest, at the rate prescribed by the charter. On the 13th day of August, 1876, the then registrar of arrears, upon the application of Wheeler, as assignee and owner of the certificates, by virtue of assignment from Feeks above referred to, gave to Wheeler his check, countersigned by the comptroller, for the amount received from the relator on the redemption, which was paid by the treasurer. The certificates were not surrendered by Wheeler to the registrar, he claiming that they had been lost. The assignment to Wheeler was filed in the registrar's office the day the payment to him was made, and the registrar gave the check, relying upon the assignment and the representation of Wheeler that the certificates had been lost, but he took from Wheeler a bond indemnifying the city of Brooklyn against loss or damage by reason of such payment. Thereafter, on the 16th day of January, 1882, the relator presented to the registrar of arrears the original certificates of sale, with written assignments indorsed thereon from Feeks, in blank, and without date, and demanded payment to her as assignee of the certificates of the amount paid by her as owner of the land, August 14, 1874, on the redemption from the sales described in the certificates, which was refused. The trial judge found that the relator became the owner of the certificates in 1862 or 1863, prior to the assignment to Wheeler, and held that the payment of the redemption money to him, although made without notice of the relator's rights, was without authority, being unaccompanied with the surrender of the certificates, and constituted no defense in this proceeding. We are of opinion that the order of the General Term, reversing the judgment, should be affirmed upon the ground that the fund applicable to the payment of the relator's claim was depleted and exhausted by the payment made to Wheeler; and that assuming that that payment was irregular and without authority, nevertheless under the scheme of the charter, it rendered it impossible for the registrar of arrears, or the other administrative city officers, to pay the relator the amount claimed. The funds of the city are by the charter divided into five classes, the fifth one being the redemption fund, comprising all moneys received for the redemption of real property sold for taxes and assessments, etc., and the charter prohibits the use of one fund for the purposes of any other, except as specially provided therein. (Tit. IV, §§ 6, 11.) The moneys paid to the registrar of arrears on the redemption of property sold for taxes constitute a trust fund for the benefit of the holders of tax certificates, and to reimburse them for the purchase-money paid, with interest. This is clear from the provisions of section 8, title VIII, in connection with the provisions already referred to. The money paid on redemption is, by the terms of section 8, title VIII, paid to the registrar for the use of the purchaser at the tax sale, or his assignees, and by section 23 of the same title it is the amount received "in such case" which is to be returned to the purchaser in case of redemption. The redemption fund in the hands of the treasurer represents the aggregate of redemption moneys, of which each purchaser whose purchase has been annulled by redemption is entitled to a definite share. The share of the relator has been paid to another claimant. The shares of other persons having an interest in the redemption fund cannot be taken to make good the relator's share, assuming that it was paid over to the wrong person. It was paid under a claim of right, and the payment took from the redemption fund the part which belonged to the relator. The registrar of arrears cannot correct the mistake. He was justiffed in refusing payment to the relator, because the fund applicable to it has, by the act of his predecessor, been taken from his control, and whether rightfully or wrongfully, is, we think, in this proceeding, of no consequence. The relator, if she was entitled to the fund, has doubtless a remedy by action. But the remedy by mandamus would be fruitless.
The order should be affirmed.
All concur.
Order affirmed.