People ex rel. Jones v. Coler

On December 2, 1897, the registrar of arrears of the city of Brooklyn sold two lots belonging to the relator for the non-payment of a sewer assessment, and thereafter he delivered certificates of sale to the respective purchasers. ' This proceeding was instituted to procure an order directing that the sales be canceled of record because the owner claims to have' been. misled as to the time when the property would be put up for sale and because the ju’ojierty was sold for one assessment only when there were other taxes and assessments in arrears at the time the sale was made.

The sale was originally advertised for Décember 23, 1896, in a catalogue printed in-pamphlet form for distribution to such persons as should make application for the same at the registrar’s office, as prescribéd by law. (Laws of 1888, chap. 583, tit. 8, § 2.) In the. exercise of the power conferred upon him by the charter of Brooklyn, the registrar of arrears duly adjourned the-salé from time to time until December 2,1897, the day when the lots were sold. The claim that the relator was misled as to the date of sale arises out of the fact that before the adjourned day the registrar prepared another catalogue of Brooklyn property to be sold for taxes oil December 28, 1897. In this catalogue appeared the relator’s two lots, charged not only with' the sewer assessment already mentioned, but with an assessment for grading and ■ paving, which was not returned to the registrar as unpaid until after the preparation of the' first catalogue.

The regularity of the proceeding in respect to the notice of the sale given in the first catalogue and the adjournment thereof down to the day on which the sale was actually made is not open to serh ous question. There is not the slightest evidence that the preparation of the second catalogue and its presence in the registrar’s office, where possible purchasers might have obtained it before the adjourned day, really misled the relator or anybody else." It is true that the relator does allege in her petition in general terms that owing to the distribution of the said catalogue showing that the said property would be sold on the 28th day of December, 1897, she was misled as to the date of the sa]p ; but she states no fact ■showing that her action in respect to the'sale was any different from what it would have been in the absence of the second catalogue. *239It does not appear that she ever saw the latter pamphlet prior to the sale; and if she did see it, the slightest inquiry would have informed her that it did not purport, and was not intended, to affect the adjournment previously ordered. ' Nor is there any proof that the intervening publication of the second catalogue confused or misled intending purchasers. It is possible that- it may have done so ; but that possibility does not entitle the property owner to have the tax sale adjudged null and void, as she demands in this proceeding. In a case where the owner could prove actual injury sustained by him in consequence of misleading notices by the selling officer, he could resort to the remedy by action to set aside the sale ; but in the absence of evidence from which such injury may be found as a matter of fact, we have no case of clear legal right such as should be presented to authorize relief' by means of the writ of mandamus.

The second objection to the validity of the tax sale seems even less substantial. We are unable to perceive how the- owner can be injured by having his property sold for one assessment instead of two. It is true, as counsel argues, that taxes on real estate not only constitute a lien on the land, but are collectible out of the personal property of the landowner. (Haight v. Mayor, 99 N. Y. 280.) Here the plaintiff, instead of receiving the purchase price paid upon the tax sale less two assessments, will receive it with only one assessment deducted, and will have in pocket just so much more money with which to pay the second assessment which she thinks ought to have been charged against the property at the time when it was sold.

The learned judge below was clearly right in denying the relator’s application, and the order of the Special Term should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.