The défendant has the regular title to the land and the plaintiffs claim under a tax conveyance in fee .by the county treasurer, of Nassau county. The assessment in 1900 of the'tax "for non-payment of which the sale was made was void. The land was of á non-resi-. dent. The statüté required that non-resident lands should be set down and assessed in a separate part of the assessment roll (Tax Law, ch. 908, L: 1896, sec. 29). There being a-dispute on the argu.ment before us whether this had been done, it was agreed that the roll.should be submitted to us. That has been done, and resident and non-resident lands are not separately set down and assessed in the roll, but promiscuously. - The land was therefore never *287assessed, from which it follows that' there was no jurisdiction- to sell. The county treasurer’s power of sale, both by the express words and the scheme of the statute, is restricted to lands assessed as non-resident. He could not by selling other lands bring them Under the said statute (Sanders v. Saxton, 89 App. Div. 421).
The judgment should be affirmed.
Woodwaed, Hookeb, Rich and Milleb, JJ., Concurred; Mil-lee, J., on the ground that the' defect in the tax proceedings was jurisdictional and that the five years’ statute of limitations (Tax Law, § 132) is applicable.
Judgment affirmed, with costs.