The relator for many years has owned lots Nos. 41, 42 and 43 in block No. 55 in the city of Brooklyn. On March 18, 1886, the taxes assessed upon these lots, for the years 1882, 1883, 1884 and 1885, were due and in arrear. On this date the relator called at the office of the registrar, whose duty it was to receive payment for taxes in arrear, and he told the clerk, who was charged with the duty of furnishing taxpayers with a statement of the amount due from them for taxes, "that I wanted him to give me all the bills for my taxes and assessments, water rent and liens against the property; that I wanted to settle up." He said "`all right; you had better leave them and come in again,' and I did." About an hour after this interview the relator returned to the registrar's office and received the bills for the taxes for the years 1882, 1883 and 1884, amounting to $3,288.66, which he paid. No bill for taxes of 1885 was handed to the relator. On the 19th of May, 1886, the registrar sold the lots for the arrears of 1885, which fact was learned by the relator on the twenty-second of May, and on the same day he tendered to the registrar sufficient money to pay the taxes for that year, which he refused to receive. Thereupon the relator obtained an alternative writ ofmandamus in which these facts were alleged, requiring the defendant to show cause why he should not receive the amount due for taxes and cancel the sale. The defendant answered denying the allegations. Upon the trial the jury found this issue in favor of the relator. Upon the coming in of the verdict a judgment was entered directing that a peremptory writ of mandamus issue requiring the defendant to receive the taxes and cancel the sale. Upon appeal to the General Term the judgment was affirmed.
When a taxpayer calls upon the proper officer for a statement of all the taxes due from him, and receives a statement *Page 22 and pays all of the taxes included therein, and afterwards the land is sold for the non-payment of taxes in arrear at the time the statement was furnished, but which were omitted from the statement by the neglect of the officer or his clerk, the title of the taxpayer is not divested by the sale. (Van Benthuysen v.Sawyer, 36 N.Y. 150; Breisch v. Coxe, 81 Penn. St. 336;Forrest v. Henry, 33 Minn. 434-436; Martin v. Barbour, 34 Fed. Rep. 701-710; Black. on Tax Titles [5th ed.] §§ 717, 725.)
Section 16 of title 8 of chapter 863, Laws 1873 (the charter of the city of Brooklyn) provides: "The registrar of arrears, upon the requisition of any person, shall furnish a bill of any arrears of assessments, taxes and water rates so transmitted or returned to him; also of the amounts necessary to redeem any lot or lots sold for the like dues thereon, if it or they be yet redeemable, which shall be called a "bill of arrears or assessments, taxes and water rates, and for redemption;" and upon payment of the amount, his receipt thereon shall be conclusive evidence of such payment, and forever free the said lot or lots from all liens therein specified." Under this section it was the plain duty of the registrar, upon the oral request of the relator, to furnish him with a correct statement of all unpaid taxes upon the lots specified
Section 24 of title 8 of this chapter has no application to the case of the taxpayer, who, for the purpose of paying his taxes, specifies his lots and demands a statement or bill of the amount of taxes due from him on such lots.
Mandamus is the proper remedy to compel the defendant to receive the taxes and cancel the sale, and the purchaser not having received a conveyance is not a necessary party thereto. (Clementi v. Jackson, 92 N.Y. 591; People ex rel. Townshend v. Cady, 19 J. S. 316, affd. 99 N.Y. 620.)
The order appealed from should be affirmed, with costs.
All concur.
Order affirmed. *Page 23