Opinion
November 21, 1949.
Respondent, the owner of approximately 3,000 acres of land in the town of Brookhaven, Suffolk County, defaulted in the payment of taxes prior to 1941. The County of Suffolk bought in at the tax sales and thereafter acquired the tax deeds to the property. On July 31, 1944, the County of Suffolk transferred title to the property so acquired to respondent. In a taxpayer's action, under section 51 Gen. Mun. of the General Municipal Law, plaintiff seeks to compel restoration to the County of Suffolk of the difference between the amount plaintiff claims the county should have received from respondent for the transfer of title, and the amount actually received. The complaint alleges that the transaction between the county and respondent, whether a sale or a redemption, was before the expiration of the statutory period of redemption and, therefore, the amount which the county should have received was fixed by statute. It is alleged that the county received less than the amount so fixed. Respondent moved to dismiss the complaint on the ground that in a prior action ( Tolfree v. Connolly, 188 Misc. 689, affd. 271 App. Div. 103 3, motion for leave to appeal denied 272 App. Div. 824, motion for leave to appeal denied 297 N.Y. 1041), to which the present plaintiff was not a party, it was determined that the transaction complained of was a sale and not a redemption, and that the transaction took place after the statutory period of redemption expired. The Special Term held that while as a mere pleading the complaint states a cause of action, the complaint must be dismissed on the principle of stare decisis, because the transaction in 1944, which is the subject of the present action, had been construed in the prior action contrary to the construction sought by plaintiff. Order reversed on the law, with $10 costs and disbursements, and motion to dismiss the complaint as against defendant Tolfree denied, without costs, with leave to said defendant to answer within ten days from the entry of the order hereon. If the statutory period of redemption had not expired, the complaint states a cause of action whether the transaction was a sale or a redemption. ( Connolly v. Jones, 273 App. Div. 904, affd. 299 N.Y. 639.) The dispute between the parties arises because appellant claims the period of redemption was five years from the date of the tax sale, whereas respondent claims it is three years from the date of the tax sale. The determination of that question depends upon the question of fact whether or not respondent was an occupant of the property. Appellant is not bound by any determination which may have been made on that question in the prior action to which she was not a party. The principle of stare decisis is applicable only when the facts in the two actions are the same. ( Moore v. City of Albany, 98 N.Y. 396, 410.) That principle does not prevent appellant from introducing proof, in addition to what was introduced at the trial of the former action, to show that respondent was an occupant of the property. ( Kellum v. Corr, 149 App. Div. 200, affd. 209 N.Y. 486.) Carswell, Acting P.J., Johnston and MacCrate, JJ., concur; Adel and Wenzel, JJ., dissent and vote to affirm. (See Molenaor v. Watson Estates, Inc., 265 App. Div. 928. )