Oakley v. Healey , 45 N.Y. Sup. Ct. 244 ( 1885 )

Learned, P. J.:

Tbe complaint alleges that tbe plaintiff is owner in fee and entitled to possession of certain land, describing it, that tbe defendant wrongfully entered and cut and converted wood, etc., and asks damages or possession of tbe wood, averring that plaintiff is owner of tbe wood and entitled thereto. Tbe answer denies plaintiff’s title to tbe land and to tbe wood, etc.

On tbe trial tbe plaintiff, to prove bis title to tbe land, gave in evidence three deeds given on tax sales; two by tbe county judge and treasurer of Sullivan county dated respectively in 1856 and 1858 and one by tbe comptroller dated in 1879. Tbe plaintiff relies principally on tbe last deed. The defendant’s main objection to that is that the description is insufficient. It is as follows: “ Tbe following piece,” etc., “ in tbe county of Sullivan, Minisink patent, division one (1), lot twenty-eight (28), four hundred and fifty-five (455) acres, more or less, bounded north and south by tbe lot lines, east by resident land and west by tbe town of Forestburgh.”

Tbe first defect is that tbe west boundary describes nothing. By chapter 299, Laws of 1837, the line between lots 28 and 29 is tbe town line between Forestburgh and Thompson, so that no part of Forestburgh lies west of any of the lands in lot 28. It is replied to this by plaintiff that this land was in the town of Mamakating, and that it is publicly known that Forestburgh does not join Mamakating on the west; that the word Forestburgh should therefore be changed to Thompson. The town of Mamakating is not, however, named in the conveyances. Therefore, so far as the conveyances go, there is nothing which shows that Forest-burgh is not the correct term.

The other defect is in the opposite boundary: “ East by resident land.” Now assuming that this means “ land owned by residents of the town,” and taking also the proof that the town intended was that of Mamakating, this description still fails to identify the land intended to be conveyed. It will be seen by examination of the statute (1 ft. S., 390, § 9), that the taxable inhabitants of the town are to be assessed for all the land owned by them severally in the town. And it is the land owned by non-residents which is provided for by section 11 and following sections. “Resident land” then does not mean land actually occupied by residents of the town, but land owned by such residents. And this boundary is made to depend on the ascertaining what persons were taxable inhabitants of Mamakating at the time (say 1864) of the assessment and what lands they then owned. This is altogether too vague to comply with the statute under Tallyman v. White (2 N. Y., 71), Colman v. Shattuck (62 id., 361), In re New York Central and Hudson River Railroad Company (90 id., 342), Dike v. Lewis (4 Denio, 237).

The duty of the assessors is set forth plainly in section 13, subdivision 4 and section 12, subdivision 5. Whether we understand that lot No. 28 of the Minisink patent is subdivided into lots or not, the description is defective and fails to comply with the letter and spirit of the statute. It is suggested by the plaintiff that there is no evidence in the papers as to the description in the non-resident assessment-rolls. But it is said in reply that this evidence was given on the trial, and by stipulation was not printed in the case. And certainly we have no reason to assume that the description in the assessment-roll is other than that in the deed.

¥e think that the motion for a new trial should be denied, with costs.