In Re the Estate of Ueck

The procedure by which the county of Erie and the city of Buffalo may collect delinquent taxes is prescribed respectively by chapter 135 of the Laws of 1884, as amended, and by the provisions of the Buffalo City Charter. If a taxpayer's delinquency persists there comes a time when, in aid of the collection of the tax, the county or city — as the case may be — is authorized by the Legislature to conduct a tax sale of the premises involved. The procedure prescribed to bring about such a sale is definite and employs language which includes the words "sale" "purchase" and kindred terms which, when given their literal meaning, import a grant or transfer of title. According to the view of a majority of the court the problem presented by this appeal is to be resolved by giving a literal interpretation to such words and thus to make a tax sale conducted under the statutes here involved legally effective as a present grant or transfer of title from the delinquent taxpayer to the municipality to which the tax is due.

I do not believe the Legislature, by the language employed in either statute, contemplated that whenever a tax sale results in a municipality becoming the "purchaser," all rights of the delinquent taxpayer in the premises involved are thereby cut off. A tax sale conducted under either statute does not endow the county or city, immediately after it has become such a purchaser, with the right in turn to convey the premises involved free of the lien. Each statute accords to the delinquent taxpayer the right within a prescribed period to redeem the property free from the lien of the tax by payment of an amount which includes the original tax debt.

Thus it is made clear that a tax sale is provided by the Legislature as a form of governmental action to be set in motion only as a means by which the collection of a delinquent tax may be enforced. This statement accords with the view expressed inPeople ex rel. Oakley v. Bleckwenn (126 N.Y. 310), where it was said (p. 317): "This court, in the case of In re Clementi v. Jackson (92 N.Y. 591), and recently in its second division, in the case of McFarlane v. City of Brooklyn (122 N.Y. 589), has regarded a sale for unpaid taxes as a mode of enforcement of the city lien for taxes." The tax, as a debt of the owner of the property subject to its lien, is not extinguished until after the statutory period of the taxpayer's right of redemption has passed. That period of redemption commences when the statutory notice thereof has been given, or on the date of the sale. (Buffalo City Charter, §§ 618, 619, 621, L. 1909, ch. 383, §§ 20, 21; see, also, Mabie v. Fuller, 255 N.Y. 194.)

The view which I have attempted to express is more clearly stated in the ruling by this court in People ex rel. Oakley v.Bleckwenn (supra). There, upon the determination of a decisive issue in the case, GRAY, J., writing for the court, posed the question: "What is the effect of the sale for unpaid assessments * * *?" In answering that query it was said (p. 316): "The purchaser at a tax sale has only acquired the lien of the municipality. He is the assignee, in effect, of the assessment lien, and is thus protected as to his payment, until his inchoate rights are consummated by the execution of his deed or lease. As to the owner of the land, it is a step taken to enforce the collection of the assessment and a proceeding which would result in divesting him of his ownership, unless he avails himself of the privilege of redemption."

At an earlier date this court had given what impresses me as a definite answer to the question which is now before us. InWilliams v. Townsend (31 N.Y. 411) the question was whether, under the Buffalo City Charter, a purchase at a tax sale and the taking of a certificate showing such purchase, amounted to a discharge of the tax involved. It was there said (p. 413): "In all cases of sales for taxes the owner of the land is clothed by law with this right of redemption; and the tax together with the expenses of the sale remain a lien on the premises assessed, * * * until the redemption or payment to the Treasurer is made. The effect of the sale is therefore merely an assignment of the lien of the tax and the expenses then incurred, enhanced by the additional percentage; and this lien continues till the owner of the land makes the redemption, or the holder of the certificate takes title to the property in the prescribed form. It istherefore clear that the tax or assessment is not discharged by the sale and certificate." (Emphasis supplied.)

With equal definiteness the same answer was made for the court by RAPALLO, J., in Matter of Clementi v. Jackson (92 N.Y. 591,595): "We do not think that the payments made by the purchaser were payments of the taxes. He did not make the payments for the benefit of the relator, or in her behalf, nor for the purpose of discharging the property from the lien of the taxes, but made them in his own behalf, for the purpose of acquiring an interest in the property by virtue of the sales made by the city to enforce that lien, in consequence of the nonpayment of the taxes and penalties. The payments made by him were no more a payment of the taxes than would a payment made by an assignee to an assignor of a bond, in consideration of the assignment thereof, be a payment of the bond."

Accordingly, I dissent, and vote to affirm.

LOUGHRAN, FINCH, RIPPEY and DESMOND, JJ., concur with CONWAY, J.; LEWIS, J., dissents in opinion in which LEHMAN, Ch. J., concurs.

Ordered accordingly.