Opinion
January 3, 1913.
Harold Swain, for the appellant.
Robert P. Beyer of counsel [ Thomas Carmody, Attorney-General], for the respondent.
This is an action to foreclose a tax lien which had been transferred by a transfer of the tax lien. The complaint alleges the purchase of the tax lien, the situation of the property, the failure to pay the semi-annual interest, the election by the plaintiff to deem the aggregate amount of said tax lien to be immediately payable, and then follow these two allegations: " Seventh. The plaintiff is informed and believes or has reason to believe that the defendants and each of them have, claim to have or may have an interest in or claim upon the real property affected by the said tax lien, which interest or claim, if any, is subject and subordinate to the lien of the plaintiff herein. Eighth. The People of the State of New York is made a party defendant to this action by reason of the fact that the premises involved in this action may have escheated to said The People of the State of New York upon the death of one John Cotter the grantee in a certain deed made by Ely Moore and wife dated November 16, 1827, and recorded in the office of the register of the county of New York, on November 14, 1828, in liber 241 of Conveyances, page 542."
Section 1035 of the Greater New York charter (Laws of 1901, chap. 466, added by Laws of 1908, chap. 490), as amended by chapter 65 of the Laws of 1911, provides as follows: "Where the People of the State of New York * * * is made a party defendant the complaint shall set forth, in addition to the other matters required to be set forth by law, detailed facts showing the particular nature of the interest in or the lien on the said real property of the People of the State of New York * * * and detailed facts showing the particular nature of the interest in or the lien on said real property which plaintiff has reason to believe that the People of the State of New York * * * has or may have in the said real property, and the reason for making the People of the State of New York * * * a party defendant. Upon failure to state such facts, the complaint shall be dismissed as to the People of the State * * *."
Of course it is a fundamental proposition that the State cannot be sued except by its own permission. When it has provided how it may be sued and what allegations must appear in the complaint, and distinctly provides for a dismissal of a complaint which does not comply with the law permitting the suit to be brought, there is nothing to do but obey the law and dismiss the complaint. It is obvious that the law has not been complied with and that the mere statement that the premises may have escheated to the People upon the death of one John Cotter is not the "detailed facts showing the particular nature of the interest" and the "detailed facts showing the particular nature of the interest in or the lien on said real property which plaintiff has reason to believe that the People * * * has or may have in the said real property, and the reason for making the People * * * a party defendant." In other words, if this allegation satisfies the law the statute was idle and we are back just where we were at the time the law was enacted. It was passed for the very purpose of relieving the Attorney-General's office from a horde of cases upon the mere allegation that the State may have a lien, which is all that this complaint does.
Appellant claims that the facts set up in the answering affidavits satisfy the requirements of the statute. It is a sufficient answer that this order was made on the complaint which cannot be pieced out by subsequent affidavits.
The complaint, as framed, fails to comply with the law. The order of dismissal as against the People should be affirmed, with costs and disbursements to the respondent.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order affirmed, with costs.