Carter v. Koezley

14 Abb. Pr. 147, 9 Bosw. 583

Opinion

By the Court.

*—Bosworth, C. J.

Neither of the defences demurred to states when, by whom, for what cause, or under what statute, the alleged tax was “ imposed” on the premises in question: neither does it state the amount of the tax imposed, nor expressly aver that any part of it was unpaid at the time of the alleged sale of the said premises.

That such a plea was bad on general demurrer prior to the Code, is settled by the cases of Frary a. Dakin (7 Johns., 75), * Morgan a. Dyer (10 Ib., 161), Wyman a. Mitchell (1 Cow., 316), Dakin a. Hudson (6 Ib., 220), Bowman a. Russ (Ib., 234), Sheldon a. Hopkin (7 Wend., 435), and City of Buffalo a. Holloway (7 Y. Y, 493).

It is as essential to the sufficiency of an answer under the Code stating new matter as a defence, as to that of a special plea prior to the Code, that it state facts which, if true, will bar the action, or so much of it as is attempted to be answered.

The Code has not introduced any new definition of the word fact, nor any new test of the sufficiency of new mattér which will constitute a defence!

Section 161 of the Code does not aid the answers in question. They do not allege, nor purport to allege, a judgment or other determination of a designated court or officer of special jurisdiction. If the imposition of a tax upon real property under any statute of this State, for any cause, can, by any liberal interpretation of language, be regarded as a determination of officer or officers of special jurisdiction within the meaning of this section, the answer does not attempt to state by whom the tax was imposed.

The parts of the answer demurred to are, in brief, that the defendant has a right to the possession of the premises in question as assignee of a lease of a specified date for a term of years, executed by the mayor, &c., in pursuance of a sale, by them duly made on a day named, of the premises in question, for the non-payment of a tax duly imposed thereon.

Such an answer is insufficient: it states none of the facts relied upon to show that a tax was duly imposed on the property, for the non-payment of which the mayor, &c., of N. Y., might lawfully sell it; nor, if one had been imposed, does it aver the further facts essential to create authority in that body to advertise and sell.

The order appealed from must be reversed, and judgment ordered for the plaintiff, but with liberty to the defendant to amend his answer, on payment of the costs of the demurrers prior to the appeal: the plaintiff’s costs of the appeal to abide the event.

Present, Bosworth, C. J., Woodruff, Hoffman, Robertson, Monorief, and White, JJ.