Helterline v. People , 268 A.D. 55 ( 1944 )

Hill, P. J.

The judgment appealed from determines that the plaintiff is the owner in fee of premises described, “All that tract or parcel of land situate in the Town of Stratford, County of Fulton and State of New York, being the south one-half of Lot No. 91, Jerseyfield Patent, containing 500 acres of land more or less.” The State of New York appeals therefrom. Plaintiff appeals from the portion thereof which determines that he should pay to the State $3,065.87 taxes paid by the State for the years 1861, 1862 and 1863, and from 1886 to the year previous to the date of the judgment.

Plaintiff obtained his title from the descendants of Henry Helterline, grantee of Joseph Helterline, who received a deed dated May 30, 1864, recorded in Fulton County clerk’s office in September, 1867. Plaintiff’s deed is dated June, 1928, recorded in Fulton County clerk’s oEce, January 15, 1929. The action was commenced on June 19, 1929. The State founds its claim of ownership upon a tax deed from the Comptroller dated December 15, 1875, recorded May 30, 1877, following a tax sale of the entire Lot No. 91, Jerseyfield Patent, on September 16, 1871, conducted pursuant to chapter 427 of the Laws of 1855. The sale was for default in payment of taxes upon the whole of Lot 91 for the years 1861, 1862, 1863 and 1864, and upon the north half of the lot “ only for the years 1864 and 1865.” Plaintiff’s main assertion of invalidity is that the entire lot was sold as one parcel for nonresident taxes levied in those five years. The south half was assessed as resident lands in the years 1864 and 1865 and the taxes were paid. Plaintiff now claims to be the owner of the south half and asserts a jurisdictional defect because he, the person assessed and the mesne title holders could not redeem the south half of Lot 91 without paying taxes on the north half.

Every conveyance by the Comptroller of the State which has for two years been recorded in the oEce of the clerk of the county in which the lands are located, is declared to be conclusive evidence that the sale and proceedings prior thereto from and including the assessment of the lands, and all notices required by law to be given previous to the expiration of the time allowed for redemption, were regular and were regularly given, but that such conveyances “ shall be subject to cancellation * * * by reason of any defect in the proceedings affecting the jurisdiction upon constitutional grounds, on direct application to the department, or in an action brought before a competent court therefor; provided, however, that such application shall be made, or such action brought, in the case of all sales held prior to the year eighteen hundred and ninety-five, within one year from June fifteenth, eighteen hundred and ninety-six; * * * ” (Tax Law, § 132). Notice of ownership and possession by the State was published as required by section 13 of chapter 711 of the Laws of 1893 and also pursuant to chapter 908 of the Laws of 1896, particularly section 133 thereof.

Section 132 of chapter 908 of the Laws of 1896, now section 132 of the Tax Law, is not only a curative act, but a statute of limitations which the Court of Appeals has said the Legislature may legally enact “ to prevent the assertion of a right to question the validity of a tax title of vacant and unoccupied lands because of jurisdictional defects in the sale and in the proceedings leading thereto, provided a reasonable time is given for the assertion of the right before the statute becomes operative.” (Dunkum v. Maceck Building Corp., 256 N. Y. 275, 285.) This Statute of Limitations may be pleaded in an action for ejectment (Meigs v. Roberts, 162 N. Y. 371) as well as in one brought under article 15 of the Beal Property Law. (Dunkum v. Maceck Building Corp., supra.) The judgment should be reversed on the law, and the complaint dismissed.