County of Erie v. Lowenstein

Kruse, P. J.:

The action is brought to sell for taxes certain real estate upon which the taxes are claimed to be a lien, and pay the taxes according to their respective priority.

The question presented by this appeal is whether the lien of certain taxes assessed by the village and city of Tonawanda was extended beyond the term of ten years, as was provided by the statute in force at the time the lien became effective, such statute having thereafter been amended by eliminating the ten-year limitation. The controversy is between the county of Erie and the city of Tonawanda. The taxes are the annual county taxes for 1904 to 1920, inclusive, and the city taxes for 1902 to 1920, inclusive. No question is raised about the lien of the county taxes, nor the city taxes, save the taxes levied before 1911, as to which the court below held that the lien had expired.

The former village of Tonawanda was organized and incorporated as a city in 1903. (Laws of 1903, chap'. 22.) The village had levied one of the taxes in dispute in 1902. The law then applicable made this tax a lien on the real property upon which it was levied, from the date of the delivery to the collector of the warrant for the collection thereof, until paid or otherwise satisfied or discharged. (Village Law [Gen. Laws, chap. 21; Laws of 1897, chap. 414], §§ 112, 113. See Laws of 1898, chap. 539, amdg. § 113. See, also, Laws of 1896, chap. 513, § 4.) Presumably the warrant was delivered to the collector as in the act provided.

The act incorporating the city dissolved the village organization and the city succeeded to all the rights of the village, and the act specifically provided that all such rights should in no wise be affected or changed by the act incorporating the city. (Laws of 1903, chap. 22, tit. 1, § 5; Tonawanda City Charter [Laws of 1905, chap. 357], tit. 1, § 6; Id. tit. 26, § 13, repealing Laws of 1903, chap. 22, but preserving existing rights.)

The original act incorporating the city provided that upon the filing of the assessment rolls with the city treasurer the taxes and assessments made upon the several parcels of land specified in the roll, together with interest thereon and additions thereto “ shall be and remain a lien and charge upon the said lots or parcels of land, respectively, for ten years from the time of filing the said assessment rolls with the city treasurer, superior to all other liens, right, title, or estate therein, until paid or otherwise satisfied and discharged, and shall have priority over all other taxes in the inverse order of time in which they become liens.” (Laws of 1903, chap. 22, tit. 8, § 7.)

These provisions became section 7 of title 7 of the Tonawanda City Charter of 1905 in substantially the same phraseology. This section was amended in 1917 by eliminating the ten-year limitation, thus making such taxes a lien upon the land after filing the roll with the city treasurer until paid or otherwise satisfied or discharged. (Laws of 1917, chap. 793, § 6.)

We are of opinion that the statute in force at the time the assessment was made and the roll delivered applies. It is a familiar rule in construing a statute that it operates prospectively unless its terms indicate a different intent. (Goillotel v. Mayor, etc., 87 N. Y. 441; Jacobus v. Colgate, 217 id. 235; People ex rel. Provident Savings Life Assurance Society v. Miller, 179 id. 227, 230.) And this rule applies to an amendment of a statute. (Benton v. Wickwire, 54 N. Y. 226.)

The tax levied by the village in 1902 should be added to those declared by the judgment to be valid liens against the premises, but payable last in the order of priority, and as so modified the judgment should be affirmed, without costs to either party. ,

All concur, except Hubbs and Sears, JJ., who dissent in a memorandum by Hubbs, J.