Opinion
March 17, 1916.
Frederick B. Maerkle, for the relator.
Charles T. McCarthy, for the respondent.
The failure to affix the county seal was fatal to the tax warrant and to the attempted sale under it. ( Brase v. Miller, 195 N.Y. 204; Matter of City of Rochester v. Bloss, 77 App. Div. 28; affd., 173 N.Y. 646.) For such jurisdictional defects tax deeds may be canceled within five years after the redemption period. (Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 132.)
As his deeds had been on record over three years, relator invokes the presumption of regularity of the tax sale, and the proceedings prior thereto, declared by section 132 as to conveyances which have been two years recorded. While certain irregularities may be thereby cured, the Legislature has extended to five years the period within which tax deeds may be canceled for jurisdictional defects. ( Adirondack League Club v. Keyes, 122 App. Div. 178.)
The special statute designed to cure this omission of the county seal (Laws of 1911, chap. 470) could not transfer title to the relator by taking away rights already vested. ( People v. Inman, 197 N.Y. 200.)
The determination should be confirmed and the writ of certiorari dismissed, but without costs.
THOMAS, RICH and PUTNAM, JJ., concurred; CARR, J., read to sustain the writ, with whom JENKS, P.J., concurred.
I dissent. The absence of the seal of the county from the warrant created a fatal defect. ( Brase v. Miller, 195 N.Y. 204. ) But this defect did not enter into the assessment itself, and I think it was not "jurisdictional" on constitutional grounds. (See Hagner v. Hall, 10 App. Div. 581; Ensign v. Barse, 107 N.Y. 329.) That part of section 132 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) which provides a five years' limitation applies to cases where the defects arise from constitutional grounds, that is, where they permeate the assessment itself and do not arise from mere irregularities as to details which the Legislature might have dispensed with in the beginning, as might have been done in this case without infringing any constitutional right of the landowner. I think the limitation of two years, provided by section 132 of the Tax Law, applies here. As the curative act of 1911 (Chap. 470) was enacted after the sale, I do not consider it. ( Cromwell v. MacLean, 123 N.Y. 474.)
JENKS, P.J., concurred.
Determination confirmed and writ dismissed, without costs.