Reid v. Board of Supervisors

14 N.Y.S. 594, 67 N.Y. Sup. Ct. 215, 37 N.Y. St. Rep. 847, 60 Hun 215, 1891 N.Y. Misc. LEXIS 2416

• Court: New York Supreme Court
• Decided: May 21, 1891
• Status: Published

Opinions

Landon, J.

When the state by statute invites any one to pay his money upon the terms expressed in the statute, and the proposition is accepted and the money paid, a contract is thereby made, and the statute defines its terms. Woodruff v. Trapnall, 10 How. 190; Furman v. Nichol, 8 Wall. 44; McGahey v. Virginia, 135 U. S. 662, 10 Sup. Ct. Rep. 972. Such a contract was made between the state and Reid. He made his purchases at the tax-sales, and paid his money in acceptance of the terms extended to him in. the statute of 1850, c. 86, and relying upon its provisions. That statute formed the terms of the contract, and was expressly referred to in the certificates of sale which the authorized officer of the state, acting in the county of Albany, executed and delivered to him. The state could pass no law impairing the obligation of its contracts with him. Its contracts rest upon the same rules as those between individuals. Fletcher v. Peck, 6 Crunch, 87; Wabash v. Beers, 2 Black, 448; Hartman v. Greenhow, 102 Ú. S. 672. Under the original act, no limit of time was fixed within which the defendant should reimburse Beid in case the conditions should exist entitling him to reimbursement. But the amendment fixed a limit of six years from the sale; this limit had been reached before the amendment was passed. If the amendment operatSd upon past sales and contracts, then the obligation of the contract to reimburse Beid was thereby instantly destroyed. See cases cited in McGahey v. Virginia, 135 U. S., at page 693,10 Sup. Ct. Rep. 982. The amendment cannot, therefore, be given a retrospective effect. Its language does not necessarily require that such effect be given it, and it can be satisfied by applying the amendment to such sales only as are made after its passage. It must therefore be so applied. Dash v. Van Kleeck, 7 Johns. 477; Fitzpatrick v. Boylan, 57 N. Y. 437; In re Miller's Estate, 110 N. Y. 216, 18 N. E. Rep. 139. The learned counsel for the defendant insists that the statute of 1850 creates the liability, and therefore the right of the plaintiff depends upon the statute as it exists when the action is brought. But the statute did not create the liability. It authorized its creation. The’liability exists by virtue of the contract. The contract exists because the statute authorized it. The authority to incur the liability must not be confounded with the liability itself. The amendment cannot be upheld as a statute of limitation upon the remedy. It purports to be a limit beyond which the duty of reimbursement shall cease, and therefore an alteration of the contract under which Reid made payment. If it should be regarded as a limitation upon the right of action, it could not be upheld, because it leaves no day of grace whatever. A new statute of limitation, operating upon an existing cause of action, is unconstitutional, if it does not give a reasonable time for the commencement of the action before the bar takes effect. Terry v. Anderson, 95 U. S. 628; Sohn v. Waterson, 17 Wall. 596; McGahey v. Virginia, supra, at page 704,135 U. S., and page 985, 10 Sup. Ct. Rep.; Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct. Rep. 76. Where a new statute of limitations is adopted, the time which had run before the passage of the act is no part of the new limitation, unless so expressed. Sohn v. Waterson, supra; Bailey v. Kincaid, 11 N. Y. Supp. 294.

It is urged that the right of action is barred by section 382, Code Civil Proc., which fixes a limit of six years after the cause of action has accrued in which to commence an action to recover upon a liability created by statute, except a penalty or forfeiture; also upon a contract obligation or liability, express or implied, except a judgment or sealed instrument. The cause of action, by the terms of section 52 of the act of 1850, accrued upon the happening of both of the conditions specified therein: (1) “Whenever any purchaser, under such sale, shall be unable to recover possession of the real estate sold to him, by reason of any error or irregularity in the assessment, * * * the board of supervisors of said county shall reimburse the purchase money so paid, with interest;” and (2) “upon their refusal or neglect to do so, the same may be recovered by an action against them.” Thus inability to recover possession gives the right to reimbursement, and then a demand and refusal give the right of action. Section 410, Code Civil Proc., provides: “Sec. 410. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete.” It is not clear that this section applies, since section 52 of the act of 1850 fixes no limitation to the time for making the demand. Fisher v. Mayor, 67 N. Y. 73. But, assuming it does apply, when was the right to make the demand complete? The trial judge found that, by reason of errors and irregularities in the proceedings prior to the sales, Reid was unable to recover possession of the parcels sold at the time of such sales and immediately thereafter. He refused to find that Reid was therefore immediately upon or after such sales entitled to demand reimbursement. He did find that, as the result of a decision of the court of appeals in a similar case, (Remsen v. Wheeler, 105 N. Y. 573, 12 N. E. Rep. 564,) the said tax-sales were declared irregular and void on or about June 7, 1887. We understand from these findings, and from the uncontroverted allegation of the complaint, (recited above in the statement of facts,) that the invalidating errors and irregularities existed at the dates of the sales, and that they were always sufficient, if interposed in due form, to render the purchaser unable to recover possession, but this fact was not known until June, 1887. Prior to June, 1887, it might well be that, though the illegality of the proceedings existed, he could obtain possession, because, in the unknown condition of the law, his efforts to do so would not be resisted. Unquestionably some decisive, or at least satisfactory, test of such inability was contemplated by the statute. “Whenever any purchaser shall be unable to recover possession,” evidently contemplates time subsequent to the sale, when a determination of the fact will be reached, and therefore the right to make the demand would not be complete until such time should arrive. The always present legal inability to obtain possession awaited some decisive test of its existence before it could start the time in which a demand was due. Why was a demand made necessary except to advise the defendant that the contingency contemplated as possible actually existed? It clearly was not contemplated that a demand should be contemporaneous with the sale, or be made until the occasion for it should be ascertained. Demand, therefore, was not due until June, 1887, and the statute did not begin to run until that date. Section 52 provides that the pm ch ser shall be reimbursed with interest. The right to interest is not dependen; upon demand, but upon the statute, and was properly allowed. Judgment affirmed, with costs.

Mayham, J., concurs.