People ex rel. Carman v. Lewis

Appellate Division of the Supreme Court of New York

People ex rel. Carman v. Lewis

92 N.Y.S. 642

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 10, 1905

StatusPublished

This text of 92 N.Y.S. 642 (People ex rel. Carman v. Lewis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Carman v. Lewis, 92 N.Y.S. 642 (N.Y. Ct. App. 1905).

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Opinion

MILLER, J.

The order appealed from directs that a peremptory writ of mandamus issue, to compel the county treasurer of Nassau county to advertise and sell certain real estate situate in the said county, upon which taxes for the years 1901, 1902, and 1903 remain unpaid, [643]*643and restrains the county treasurer from including in said sale lands bid in by the county at the tax sale of 1902.

So far as the order directs a sale, it is proper. Sections 150 and 151 of the tax law (Laws 1896, pp. 847, 848, c. 908) provide that whenever a tax charged on real estate situated in the county shall remain unpaid for six months from the 1st day of February, after the same is levied, the county treasurer shall immediately thereafter proceed, in the manner pointed out, to sell such real estate. Undoubtedly the county treasurer has a reasonable time within which to act, and what is a reasonable time must be determined by the circumstances of each case. But in respect to the taxes for the years in question, 25, 13, and 1 month respectively, had elapsed after the time fixed by the statute for the institution of proceedings to sell. And while we cannot say that a delay of 1 month is unreasonable, no explanation - is presented to excuse a delay of 13 and 25 months.

So far, however, as the order restrains the county treasurer from including in the sale the lands bid in by the county at the tax sale of 1902, it was improper. Injunction is hardly appropriate to mandamus proceedings. We held in Armstrong v. County of Nassau, 91 N. Y. Supp. 867, that the county had not yet obtained the fee to these lands, and that they were taxable. If the tax title of the county should be converted into a fee, a question might be presented as to whether the lands were exempt from taxation, as held for a public use, within the meaning of subdivision 3 of section 4 of the tax law (Laws 1896, p. 797, c. 908); but that situation has not yet arisen.

The order should be modified by striking out the restraining clause, and, as modified, affirmed, without costs. All concur.

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MILLER, J.

The order appealed from directs that a peremptory writ of mandamus issue, to compel the county treasurer of Nassau county to advertise and sell certain real estate situate in the said county, upon which taxes for the years 1901, 1902, and 1903 remain unpaid, [643]*643and restrains the county treasurer from including in said sale lands bid in by the county at the tax sale of 1902.

So far as the order directs a sale, it is proper. Sections 150 and 151 of the tax law (Laws 1896, pp. 847, 848, c. 908) provide that whenever a tax charged on real estate situated in the county shall remain unpaid for six months from the 1st day of February, after the same is levied, the county treasurer shall immediately thereafter proceed, in the manner pointed out, to sell such real estate. Undoubtedly the county treasurer has a reasonable time within which to act, and what is a reasonable time must be determined by the circumstances of each case. But in respect to the taxes for the years in question, 25, 13, and 1 month respectively, had elapsed after the time fixed by the statute for the institution of proceedings to sell. And while we cannot say that a delay of 1 month is unreasonable, no explanation - is presented to excuse a delay of 13 and 25 months.

So far, however, as the order restrains the county treasurer from including in the sale the lands bid in by the county at the tax sale of 1902, it was improper. Injunction is hardly appropriate to mandamus proceedings. We held in Armstrong v. County of Nassau, 91 N. Y. Supp. 867, that the county had not yet obtained the fee to these lands, and that they were taxable. If the tax title of the county should be converted into a fee, a question might be presented as to whether the lands were exempt from taxation, as held for a public use, within the meaning of subdivision 3 of section 4 of the tax law (Laws 1896, p. 797, c. 908); but that situation has not yet arisen.

The order should be modified by striking out the restraining clause, and, as modified, affirmed, without costs. All concur.

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92 N.Y.S. 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-carman-v-lewis-nyappdiv-1905.

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