Harris v. Paliotto , 3 A.D.2d 851 ( 1957 )

In an action brought by the purchaser of a tax lien of the Village of Freeport for the village fiscal year 1951-1952 to foreclose said lien, the appeal is from an order of the County Court, Nassau County, denying a motion to strike out the answer for insufficiency, pursuant to rule 113 of the Rules of Civil Practice, and for other relief. Order reversed, with $10 costs and disbursements, and motion granted to the extent of striking out the answer, with leave to respondent, if so advised, to serve an amended answer within 10 days after entry of the order hereon. The answer consists of denials and separate defenses containing allegations to the effect that respondent made a timely tender to appellant of the amount appropriate for redemption. Respondent was obliged to redeem from appellant, in order to obtain title to the premises, because appellant’s lien for village taxes for the fiscal year 1951-1952 is superior to the earlier liens of the respondent for the 1950-1951 village taxes and the 1951 State, county, town and special district taxes (Tax Law, § 99; Field v. Stalica, 290 N. Y. 181; Kostanowski v. Donchig, 50 N. Y. S. 2d 533, affd. 269 App. Div. 194). On the facts shown by the papers upon which the motion was heard, said denials are insufficient to raise a triable issue (Village Law, § 116, subd. 10); and in view of the statutory requirement that the redemption money be paid to the village treasurer, the tender to appellant, which was refused is insufficient as a defense to this action (Village Law, § 116, subd. 6; City of New Rochelle v. Echo Bay Waterfront Corp., 268 App. Div. 182, 191, affd. 294 N. Y. 678; Mabie v. Fuller, 255 N. Y. 194, 197; Matter of Saman Holding Corp. v. Burns, 2 A D 2d 994). Wenzel, Hallinan and Kleinfeld, JJ., concur. Nolan, P. J., and Beldoek, J., concur in the result. [See post, p. 909.]