Opinion
Argued December 13, 1881
Decided January 17, 1882
Charles H. Otis for appellant.
William Sullivan for respondent.
This is a summary proceeding under chapter 384 of the Laws of 1854, as amended by chapter 863 of the Laws of 1873, to recover the possession of certain land in the city of Brooklyn claimed by the appellant under a tax sale. Her proceeding was dismissed by the police justice before whom it was instituted, and his judgment was affirmed at the General Term upon two grounds, one of which was that there was no proof of the service of the notice required by section 27, title 5, chapter 384 of the Laws of 1854, as amended by chapter 63 of the Laws of 1862. That section provides as follows: "No owner whose deed, or in case he holds such property by descent or devise, the deed of his ancestor or devisor shall have been duly recorded in the office of the register of the county of Kings, before the sale thereof for any tax or assessment for benefit, and no mortgagee, lessee or assignee of either, whose mortgage, lease or assignment shall have been so recorded, shall be divested of his rights in such property by reason of such sale, unless six months' notice in writing of such sale shall have been given by the purchaser or those claiming under him to such owner, mortgagee, lessee or assignee personally, if a resident in the county of Kings or a county adjoining thereto; or if such owner, mortgagee or lessee be not such resident, then by depositing such notice in one of the post-offices of said city, directed to the owner, mortgagee, lessee or assignee, at his place of residence as stated in the deed, lease, mortgage or assignment of such mortgage or lease." Section 28 of the same title and chapter provides as follows: "Within a month after the service of such notice, it shall be the duty of the person serving or causing the same to be served, to file in the office of the collector of taxes and assessments of the district, a copy of the notice served, together with the affidavit of some person, who shall be certified by the officer before whom said affidavit shall be taken to be a creditable person, proving the due service of said notice." Section 29 of the same title and chapter, as amended in 1862, provides as follows: "The owner, mortgagee or other person interested in such land, may at any time within two years after the sale thereof for any unpaid tax or assessment for benefit, and before the expiration of the notice mentioned in section twenty-seven of this title, redeem said lands by paying to the collector of taxes and assessments, for the use of the purchaser thereof, or his assignees, the said purchase-money, together with any subsequent assessment for benefit or tax, which the said purchaser may have paid, chargeable on said land, and which he is hereby authorized to pay, provided a notice of such payment shall have been filed in the office of the collector of taxes and assessments, with interest at the rate of fifteen per cent per annum in addition thereto, and also two dollars for each notice given to any owner, mortgagee or lessee of a longer term than three years, provided due proof of such service shall have been filed in said office. The certificate of such collector, acknowledging the payment and showing what land and on account of what tax or assessment for benefit such payment is intended to redeem, shall be evidence of such redemption. Such redemption shall discharge the land described in said certificate from the lien created by the assessment for benefit or tax in respect of which such sale shall have been made, or by such sale or certificate."
There is nothing in the statutes of 1854 or 1862, or in any other statute, making the affidavit of the service of notice evidence of such service in any court or judicial proceeding. It was required to be made and filed for the purpose of making record evidence sufficiently reliable for all purposes. The tax collector under section 29, above recited, could rely upon it when the owner or other person came to redeem premises from the sale. Section 27 required that the notice should be served before the owner could be divested of his title, and a person claiming the title under a tax sale must show the service of the notice by competent evidence. Upon the trial before the justice the appellant put in evidence a copy of the notice and the affidavit attached thereto, but gave no other evidence or proof of the service. That was not sufficient. The service of the notice should have been proved by competent common-law evidence. So far as I have been able to discover, such has been the rule uniformly applied in analogous cases. ( Starin v. The Town of Genoa, 23 N.Y. 439; People ex rel. Fiedler v. Mead, 36 id. 224; Town of Venice v. Woodruff, 62 id. 462; Cagwin v. Town of Hancock, 84 id. 532.) Ex parte affidavits are evidence in judicial proceedings only as some law has declared them to be evidence, and they are not evidence of any facts stated in them unless some law makes them such. As shown above it is plain that the affidavit required by section 28 can answer a purpose without holding that it is a substitute for common-law evidence of the service of notice, and hence the claim is not well founded that the statute requiring the affidavit is useless unless it is held to furnish evidence of the service in any and all judicial proceedings. This construction can ordinarily lead to no great inconvenience because the person making the service of notice can be called as a witness, and the proof of service, if desirable, could be perpetuated under the laws relating to perpetuating evidence; and if the affidavit ought to be either conclusive or prima facie evidence of the service of notice, the legislature can be appealed to so to declare.
Therefore, without examining several other interesting points contained in the briefs submitted to us, we are of opinion that the judgment below may rest upon the ground discussed, and upon that ground alone the judgment should be affirmed.
All concur, except ANDREWS, Ch. J., not voting.
Judgment affirmed.