Wallace v. International Paper Co. , 75 N.Y.S. 340 ( 1902 )

Kellogg, J.:

This case has been twice tried. The testimony on the second trial does not in any material respect differ from the testimony presented to this court on review of the first trial. We then held that the books in evidence from the office of the State Comptroller (and the same books were in evidence on the second trial) showed conclusively a tax assessed for the year 1862 upon the land in question included' in a larger unallotted tractthat such tax was called the “ H. H. & L. Road ” tax, arid was a proper lien upon the premises claimed by plaintiff in this action. No one testifies to having paid this tax or to having seen it paid. No receipt for this tax was offered in evidence from the Comptroller’s office. We must, therefore, conclude that the tax was not paid before the sale of 1871, and, therefore, the Comptroller had jurisdiction with power to enforce payment. Whatever there may be in the testimony from which any inference can be drawn that the Comptroller at any time before the sale declared to plaintiffs or their predecessors in title that there was no unpaid tax for the year 1862 on these lands could at most only make the sale voidable. The fact remains-that there was an unpaid tax and the sale was not void. If for the inferences suggested the sale was voidable, this infirmity could be only available to the plaintiffs by the assertion of their rights to set the sale aside within the time fixed by the Laws of 1896 (Chap. 908, § 132). They failed to do this, and it is too late to' make the defense available in this action.

The judgment is reversed, a new trial granted, with costs, to the appellant to abide the event.

Fursman, J., concurred; Parker, P. J., Smith and Chase, JJ., concurred in result.