People Ex Rel. Chase v. . Wemple

39 N.E. 397, 144 N.Y. 478, 63 N.Y. St. Rep. 738, 99 Sickels 478, 1895 N.Y. LEXIS 554

• Court: New York Court of Appeals
• Decided: January 22, 1895
• Status: Published

Opinion

Futoh, J.

Two writs of certiorari were issued upon the petition of the relator, one to review the action of the Comptroller in accepting a redemption of lot 181 in the Old Military Tract, Franklin county, and the other to review his refusal to vacate that redemption as being beyond his official power.

The redemption itself, upon the papers before Comptroller Campbell, was lawful and proper. They showed that Charlotte G-. Hall was the owner of lot 181; that it had been sold for the taxes of 1871, 1877 and 1881, and bid in by the state and then conveyed to the relator; that the lot was occupied when the time to redeem had expired and no notice had been given to the occupant, and that notice of the application had been given to the relator who held the tax title. Upon these facts, no reason appearing to the contrary, Comptroller Campbell acted and permitted the redemption. The criticism now made is that the papers disclose no sufficient proof of occupation. They showed that one Kellogg, in 1818, erected on the lot a log house and cleared and fenced about it one acre of the land; that he had ever since lived in the house and occupied the land as his home and cultivated the ground annually, and in addition raised upon other parts of the lot hops and grain and potatoes and cut from it hay. His occupation, continuous and permanent, and for the purpose of a home, was very different from that which we held insufficient in People ex rel. Marsh v. Campbell (143 N. Y. 335), where a log house was built as a hunting camp on an island, and used only at intervals and as a convenience when engaged in the pursuit of game. The occupancy proved was of such a character as to require notice to the occupant before the tax title could exclude a redemption, and the action of the comptroller was lawful and proper.

But the real difficulty about it appears in the papers on the second writ and rested upon facts unknown to Comptroller Campbell. The application which he found on his files and granted was made to his predecessor, "Wemple; was resisted by the relator; and its consideration agreed to be postponed until an ejectment suit brought by Miss Hall against the relator and involving the question of the actual occupancy of lot 181 should be determined. In that action the relator succeeded upon the ground that an accurate survey threw Kellogg’s house off of the lot in question and upon a lot adjoining, and it was while that judgment was in force that Comptroller Campbell, in ignorance of the arrangement with his predecessor, granted the order of redemption. These facts were brought to his attention, and he was asked to vacate his order, but declined to do so solely on the ground of want of power.

I think he decided correctly in that respect. His action so far as it was of a judicial character was bounded and con trolled by the strict and limited jurisdiction conferred by the statute. That gave him no right to review his own orders and annul or vacate them except in the single case of the cancellation of a tax sale. He is authorized to vacate such an order on any one of three specified grounds. (Chap. 120, Laws of 1873; chap. 711, Laws of 1893, § 21.) But no such authority is given as to an order of redemption. The two things are very different. One is in the interest of the state, the other is against the interest of the owner, and the latter authority would keep the owner’s title under a continual cloud; for if, notwithstanding his redemption, it is subject to be annulled and vacated by the order of the comptroller very little of protection or security has been gained.

But it is said that since that officer acts judicially in granting the redemption he has an inherent power to vacate his own orders. I do not understand that he has any power except that which the statute gives him. It is the general rule that officers of special and limited jurisdiction cannot sit in review of their own orders or vacate or annul them. A justice of the peace cannot set aside or alter a judgment after he has entered it. (Stephens v. Santee, 49 N. Y. 39.) The nearest approach to an exception is in the case of an audit by a board of supervisors to which the learned counsel for the appellant calls our attention. (People ex rel. Hotchkiss v. Supervisors, 65 N. Y. 225.) That case explicitly concedes the general rule, and then goes upon the ground that the boards of supervisors are a local legislature and exercise quasi judicial powers only in a qualified sense. I know of no other exception, and do not think we can graft upon the special and limited powers of the comptroller when acting judicially the general powers which belong to courts of original jurisdiction.

I think, therefore, both orders were right and should be affirmed, with costs.

All concur.

Orders affirmed.