Opinion
March 12, 1952.
Appeal from Supreme Court, Albany County.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ. [See post, p. 1101.]
The gist of plaintiff's first alleged cause of action is that defendants-respondents, by their silence, waived the Statute of Limitations contained in section 137 Tax of the Tax Law as to tax titles. This statute was enacted as a matter of public policy to make tax titles absolute at the expiration of three years from the date of a tax sale ( Mabie v. Fuller, 255 N.Y. 194). To void a tax title, that has become absolute by virtue of the statute, upon the basis of an alleged waiver by a private party, would nullify the purpose of the statute, and permit a return to the chaotic conditions relative to tax titles that are mentioned in the case cited. Moreover, silence alone is not sufficient upon which to predicate an estoppel under the facts alleged. As to the second alleged cause of action, it is not pleaded that the County Treasurer failed to publish a notice of sale as provided for in section 151 Tax of the Tax Law, and it must be inferred from the pleading as a whole that such notice was published. The plaintiff therefore, on the face of the pleading, was not an innocent party without notice in paying taxes, making improvements and discharging mortgages as specified. In addition to the principle that silence alone will not ordinarily create an equitable estoppel an equitable lien is available only to one without notice, actual or constructive. Order unanimously affirmed, with $10 costs.