Maiuccoro v. Herzog ( 1956 )

Roscos V. Elsworth, J.

This is an article 78 proceeding in which the petitioners seek a summary order directing the issuance of tax sale certificates to them by the County Treasurer of Albany County.

The Albany County Treasurer advertised a tax sale of certain properties on September 17, 1956 because of unpaid 1955 taxes. Petitioners attempted to bid in some 56 parcels, but the County Treasurer refused to accept the bid for the same. The answer sets forth three defenses. The first defense is to the effect that 35 of the parcels in question had been bid in by the County of Albany at prior tax sales and the county was the equitable holder of certificates of sale. The second defense is to the effect that 20 of the parcels (including 6 to which the county held tax sale certificates by virtue of previous sales) have been redeemed. The respondent has advised the court that one additional parcel has been redeemed since the time of the answer. The third defense raises an issue as to the good faith of the bid.

From the papers submitted it appears to be the practice for the County Treasurer of Albany County to bid in on behalf of the county at the tax sales held by him all parcels on which taxes are unpaid. There is no doubt that the County Treasurer may follow this practice if the Board of Supervisors of Albany County adopts a resolution authorizing and directing him to bid in all parcels (Tax Law, § 151). However, it does not appear that such resolution was ever adopted by the Board of Supervisors and in the absence of such he has no authority to freeze out all bidders.

With respect to parcels bid in by the county at previous sales, the same should “ not be subject to further sale (Tax Law, § 153.) The county, therefore, in the present situation was unauthorized to sell any of the same to outside bidders and issue certificates therefor.

Petitioners concede that they are not entitled to certificates for parcels redeemed. They now argue, however, the County Treasurer should account to them for moneys received on redeemed parcels. The pleadings raise no such issue. Even if they be construed to raise the same, the petitioners not actually having paid the bid amounts because of the County Treasurer’s refusal of acceptance thereof, would not appear to be entitled to interest.

Section 122 of the Tax Law permits a County Treasurer to decline a bid if not made in good faith. Issues are here raised as to good faith which cannot be summarily disposed of.

The application is denied as to all parcels on which the County of Albany held certificates of sale by virtue of previous sales and as to all parcels redeemed. The order to be submitted may provide for a trial of the issue of good faith before an official referee to be designated by the Appellate Division, Third Department, in accordance with its applicable rule.

Submit order.