Masterson v. Hoyt

55 Barb. 520, 1870 N.Y. App. Div. LEXIS 6

• Court: New York Supreme Court
• Decided: January 3, 1870
• Status: Published

Opinion

By the Court, Ingraham, P. J.

The demurrer admits all that is alleged in the complaint; that the assessment was illegal; that no demand was made of the plaintiffs or upon the premises, and no warrant issued for the collection of the assessment; and that the recitals in the lease are untrue.

The only question is whether these defects can give a court of equity jurisdiction to relieve the plaintiffs; and that depends upon the question whether the lease, when executed, is conclusive evidence that the sale was regular, according to the provisions of the act. If it was, the plaintiffs were entitled to the relief sought. By the statute, (Davies’ Laws, p. 600,) the lease is made conclusive evidence of ’ the regularity of the sale, according to the provisions of the act.

Although there are some things which the lease would not be evidence of, it is evidence that the sale was regularly made. This, of course, includes the demand and other matters necessary to be done to authorize the sale.

The case of Crooke v. Andrews, (40 N. Y. Rep. 547,) although that was under the Brooklyn statute, is an authority to sustain this judgment. The plaintiff could not rely on anything on the face of the lease to show its invalidity, but that must depend on oral testimony. Ho man should be required to have such a conveyance of his land put on record and left there, to be prima facie evidence of the facts stated in it, and then wait for the lessee to take measures to obtain possession under it, before he can be relieved from the injury he sustains by having such a conveyance on the record.

[New York General Term, January 3, 1870.

Judgment affirmed.

Ingraham, Geo, G, Barnard and Brady, Justices.]