Opinion
December Term, 1896.
George W. Buck and Richard H. Thurston, for the appellant.
E.J. Baldwin, for the respondents.
The authority of the common council of the city of Elmira to sell the premises of the defendant Lucy Lennox for taxes at the time in question was derived entirely from the statute. It is a familiar principle that "every statute in derogation of the rights of property or that takes away the estate of a citizen ought to be construed strictly." ( Sharp v. Speir, 4 Hill, 76.) "When lands are taken under a statute authority, in derogation of the common law, every requisite of the statute having the semblance of benefit to the owner must be strictly complied with." ( Sharp v. Johnson, 4 Hill, 92.) It has been held that "all proceedings prescribed by law for the assessment of land for the purposes of taxation must be substantially, if not strictly, complied with. Whatever the Legislature has specifically directed in this respect the courts may not declare immaterial." ( May v. Traphagen, 139 N.Y. 478; Sanders v. Downs, 141 id. 422; Westfall v. Preston, 49 id. 349.)
The plaintiff claimed title to the premises in question by authority of a tax sale made by the common council of the city of Elmira. As above suggested, such officers had no other authority to sell the premises of the defendant Lucy Lennox, except as it was conferred by the charter of the city. That charter provided, first, that the assessors of the city should make an assessment roll in which the quantity of land assessed to the defendant should be stated; second, in case the tax against the defendant was not paid, the common council of the city were authorized to sell defendant's premises; but " before any such sale an order shall be made by the common council, which shall be entered at large in the records of the city, designating and directing the attorney or officers of the city to sell, and particularly describing the premises to be sold."
In the assessment roll under which the plaintiff claims title, it is conceded that the quantity of land to be taxed was not stated, and in the order of sale made by the common council of the city, the lot of Lucy Lennox was not correctly described. The description on the north and south were correct, but on the east the property was described as bounded by lands owned by Mrs. S. Fancher. The land east of the defendant Lennox's premises was owned by Mrs. Fancher's son. She had a mere dower interest therein, unadmeasured, and hence had no estate in the land. ( Aikman v. Harsell et al., 98 N.Y. 186.)
The property on the west did not belong to Mrs. George Wyckoff, as incorrectly stated in said order, but to one Richardson, next west of whose lot was that of Mrs. Wyckoff. Hence the designation in the order of sale not only incorrectly described the defendant Lennox's lot on the east, but also on the west, and in fact included the lot owned by Richardson.
Without considering the question whether the tax sale made by the common council of the city should be deemed invalid by reason of the fact of the omission of the assessors to state in the assessment roll the quantity of land assessed, we are of the opinion that, before the common council was authorized to sell the land of the defendant Lucy Lennox, in consequence of her failure to pay the tax assessed against her, they were compelled to make an order of sale containing a particular description of the premises. The statute expressly provides that before a sale such order containing such description shall be made. It will not be doubted that the description, to conform to the statute, must be substantially correct. The description covering the lot of the defendant Lennox to be assessed and another larger lot which she did not own, and describing both as the premises of the defendant Lennox, was not the particular description of her lot required by the statute.
The error of the common council of the city in the description of the lot of the defendant Lennox contained in the order cannot be deemed immaterial. As said in May v. Traphagen ( supra): "Whatever the Legislature has specifically directed in this respect, the courts may not declare immaterial." (See, also, Tallman v. White, 2 Comst. 66; Dike v. Lewis, 4 Den. 237; Matter of Application of N.Y.C. H.R.R.R. Co., 90 N.Y. 342; Zink v. McManus et al., 121 id. 259.)
In Oakley v. Healey (38 Hun, 244) three of the boundary lines of the lot in question were correct, but the plaintiff failed to locate the east line, and it was held that he was properly defeated in the action. In this case, in the order of the common council, only two lines were correctly stated, while the description in the order embraced the lot of Richardson, which is conceded did not belong to the defendant Lucy Lennox.
Counsel for the appellant calls our attention to the case of Van Rensselaer v. Witbeck (7 Barb. 133). The decision in that case was reversed by the Court of Appeals, but the question under consideration was not passed upon by the latter court. In that case a question as to the description of the premises in the assessment roll was considered in the Supreme Court, the plaintiff being a non-resident. In his opinion HARRIS, J., reached the conclusion that there was a substantial compliance with the statute as to the description of the premises taxed, but he expressed the opinion that the directions of the statute in regard to an assessment roll are merely directory, and that "To the owner it is a matter of indifference whether his lands are assessed as the lands of a resident or a non-resident, or whether they are described in the particular manner specified or not. His rights are not affected by the observance or the non-observance of the regulations of the statute." We prefer to follow the doctrine laid down in May v. Traphagen ( supra) which we have already quoted, and in which the Court of Appeals held that "All proceedings prescribed by law for the assessment of land for the purposes of taxation, must be substantially, if not strictly, complied with. Whatever the Legislature has specifically directed in this respect, the courts may not declare immaterial."
We think the order of the common council of the city of Elmira, under which the plaintiff claimed title to the premises in question, failed to substantially comply with the provisions of the charter of the city of Elmira, as it contained a decidedly erroneous description of the premises of the defendant Lennox.
The cases of Torrey v. Millbury (21 Pick. 64) and Litchfield v. City of Brooklyn ( 13 Misc. Rep. 693), cited by the counsel for the appellant, were different from that under consideration. The errors of the assessors in those cases might well be deemed mere irregularities immaterial to the taxpayer. But in this case there was a material error of the common council in making the order of sale under which the plaintiff claims title. It failed to comply with the directions of the statute, and the sale made in pursuance of said order was, we think, without authority and void.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.