I dissent and briefly state my reasons therefor. In the case ofCity of Rochester v. Fourteenth Ward Co-op. B.L. Assn. (183 N.Y. 23) the plaintiff wholly failed to sustain any cause of action. In the case now before us it is conceded that the action was properly brought.
The defendant admits the regularity of the proceedings and the resulting judgment so far as the tax of 1897 is concerned. The curative act, chapter 522 of the Laws of 1903 in section 3, provides: "Upon the foreclosure of tax liens in actions brought in the Supreme and County courts, all taxes due the City ofRochester may be included in the action of *Page 225 foreclosure and be satisfied from the proceeds of the sale ofthe premises."
Under this provision of the statute the taxes subsequent to 1897 were properly set forth in the complaint, that the amount thereof might be determined in the action and paid from the proceeds of sale. If the property had sold for a sufficient amount to pay the taxes due the city of Rochester they could by the express terms of the statute have been satisfied from such proceeds of sale.
The curative act also provides for the collection of all taxes by action and the charter, section 104, chapter 14, Laws of 1880, provides, "That in an action to foreclose a tax lien the same proceedings shall be had as nearly as may be on the foreclosure of mortgages."
Equity, having acquired jurisdiction of the parties and of the subject-matter of the action, should retain it for all purposes, and render judgment in the action for deficiency as in an action to foreclose a mortgage.
The judgment should be affirmed, with costs.
CULLEN, Ch. J., O'BRIEN, HAIGHT, VANN and WILLARD BARTLETT, JJ., concur, with EDWARD T. BARTLETT, J. CHASE, J., reads dissenting opinion.
Judgment accordingly.