Opinion
April 24, 1950.
Present — Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ. Settle order on notice.
In this action under article 15 of the Real Property Law to compel the determination of claims to 447 unimproved lots at Port Jefferson Station, Suffolk County, plaintiff appeals from so much of a judgment entered after trial which dismisses his complaint as to 352 lots and grants judgment to defendant Lamport Realty Company, Inc., on its counterclaim, determining that that defendant has an absolute and unincumbered title in fee simple to the said 352 lots. Judgment, insofar as appealed from, modified on the facts by striking out the third, fourth, fifth, and sixth decretal paragraphs, and in place thereof inserting a provision decreeing that plaintiff has title to the said 352 lots. As so modified, the judgment is unanimously affirmed, with costs to appellant, payable by Lamport Realty Company, Inc. Appeal from order entered December 29, 1949, denying plaintiff's motion to reopen case for submission of further proof dismissed, without costs, as academic. Appeal from order entered January 4, 1950, denying plaintiff's motion for reargument dismissed, without costs. The order is not appealable. Defendant Lamport became the owner of a tract containing 447 lots on January 26, 1926, and January 29, 1926. On August 21, 1926, it filed a map, and on January 17, 1928, an amended map, subdividing the said tract into lots. On July 15, 1940, it filed in the office of the County Clerk of Suffolk County a certificate of abandonment of the subdivision maps with respect to 352 of the 447 lots. Lamport claims it also filed by mail a copy of the said certificate of abandonment in the office of the board of assessors of the town of Brookhaven in June or July, 1940, and that, pursuant to the provisions of section 32 Tax of the Tax Law, the said 352 lots were required, for the purpose of taxation, to be regarded as a single tract. Claiming that the copy of the certificate of abandonment was never received by it, the town board of assessors thereafter assessed the property for the tax years 1941-1942 and 1942-1943 by lots instead of by acreage. Lamport failed to pay the taxes on the 352 lots and on the remaining 95 lots not included in the certificate of abandonment, with the result that tax sales were held in 1942 and 1943, at which the County of Suffolk bought the property, plaintiff thereafter purchasing from the County of Suffolk. After trial, during which Lamport conceded that plaintiff was entitled to judgment declaring him the fee owner as to the 95 lots not included in the certificate of abandonment, judgment was entered in favor of Lamport declaring it to be the fee owner of the 352 lots on the ground that (1) the evidence showed that the copy of the certificate of abandonment had been filed in the office of the town board of assessors; and (2), therefore, the assessment in the subsequent years on the basis of lots instead of acreage was jurisdictionally defective and the subsequent tax sales were void. In our opinion, the finding that the copy of the certificate of abandonment was filed in the office of the town board of assessors is against the weight of the evidence. On the contrary, the evidence justifies the finding that the said copy was not filed with the said board. We agree with Special Term that, if the copy of the certificate had been filed with the town board, the assessment on the basis of lots instead of acreage was void. An assessment based on units other than that required by statute is void and the purchaser at the subsequent tax sale takes no title. ( Thompson v. Burhans, 61 N.Y. 52, 62; May v. Traphagen, 139 N.Y. 478.)