Opinion
Argued November 26, 1888
Decided January 15, 1889
John Townshend for appellant. D.J. Dean for respondent.
We have carefully examined the various points made by the appellant, and think none important except those which relate to the validity of the sale. If the sale was valid, errors or defects in the subsequent proceedings are of no importance upon the question raised in this action.
First. It is argued that the taxes, for the non-payment of which the sale was made, were void. They were imposed in 1877, 1878 and 1879, and under the act then in force the tax commissioners were required to have in their office books "to be called the annual record of assessed valuation of real and personal estate," and keep them "open for examination and correction, from the second Monday in January until the first day of May in each year," but the statute declares that "on said last mentioned day the same shall be closed to enable the commissioners to prepare assessment rolls," etc. (Laws of 1859, chap. 302, § 8.) They were kept open from the time specified through April, but no longer, and in this the appellant says the commissioners erred, the contention being that the word "until" is inclusive, and required the books to be open for inspection and examination through the first day of May. The authorities cited by counsel show that the word is variously used, sometimes as inclusive and again as exclusive, and that no fixed rule has been laid down in regard to it. In each instance its construction must depend upon the circumstances and subject-matter of the case presented. By itself, however, it marks a limitation of time, and its more obvious meaning requires the exclusion of the day named ( People v. Walker, 17 N.Y. 502); and in construing the clause now in question, we treated the word as of like import with the phrase "up to" ( Apgar v. Hayward, 110 N.Y. 225), or as excluding that which came after. The context also shows that the word was used in that sense by the legislature. During the interval between the second Monday of January and the first day of May the books were to be open to the taxpayer for inspection and for correction, if necessary, but on the day last named they are by statute devoted to another use, exclusive in its nature, for at that time the commissioners are, from those books, to prepare assessment-rolls. They must then be in their hands with no interruption from the public, and this could not be if the latter had at the same time a right to inspect or examine them.
Second. The other objections made by the appellant are immaterial in this action. They relate to irregularities merely and not to matters affecting jurisdiction. The taxes were properly imposed; they remained unpaid and a sale was authorized by statute; it was conducted in conformity to law, and at that moment the rights of the parties to the transaction became fixed. The vendor was entitled to the price bid, the purchaser to have a valid certificate, and in due time, upon the happening of the contingencies named in the statute, a lease. If those he has obtained are either informal or invalid by reason of the omission of any statutory condition or irregularity respecting such instruments, the defects do not impair the sale, and consequently leave in full force the contract upon which he paid his money.
The case of Chapman v. City of Brooklyn ( 40 N.Y. 372), upon which the appellant chiefly relies, presented a sale absolutely void for want of jurisdiction or power in the city to make it, and one where, from the very inception of the assessment proceedings, the statute had been disregarded. The other cases referred to appear to be irrelevant, if the view we have taken of the principal question is correct, and require no discussion.
It follows that the order appealed from should be affirmed, and the defendant have judgment absolute, with costs.
All concur.
Order affirmed and judgment accordingly.