I concur with my brother Hotchkiss. The question here presented is whether the deed of the referee in pursuance of a judgment of foreclosure of this lien will convey a marketable title to the property sold under the direction of a judgment of this court. .
This action was brought under the provisions of the charter of the city of New York (Laws of 1901, chap. 466, §§ 1035-1039, added by Laws of 1908, chap. 490, as amd. by Laws of 1911, chap. 65). The lien foreclosed in this action was a lien upon the specific real property described in the complaint and in the notice of sale which the purchaser executed. There is no question but that a valid lien was created by the tax which was imposed upon the property, and that the plaintiff acquired that lien by virtue of a transfer from the municipal authorities as provided for by the sections of the charter correlated to the sections herein men*696tioned. (See § 1029 et seq., as amd. and added by Laws of 1908, chap. 490.) The action to foreclose that lien was commenced and prosecuted as provided for in these sections of the charter, and the judgment was in all respects a valid judgment foreclosing the lien. Under that judgment the referee proceeded to sell the property described in the complaint which was subject to the lien. The objection of the purchaser to the title is that the property may be subject to an easement, but so far as appears from the record, every person owning or claiming an easement in the property was a party to the action, and was either served or appeared. Undoubtedly if either of these defendants had appeared in the action and claimed that the property upon which the lien existed was subject to an easement in favor of the defendant thus appearing, and the court had by judgment attempted to sell the property free and clear of those liens, that judgment would have been erroneous, and would have been reversed on appeal. That was our decision in the case of Jackson v. Smith (153 App. Div. 724), relied upon by my brother Scott in his opinion. That case did not decide or attempt to decide what would be the effect of a sale under the judgment in that case, and the very fact that we modified the judgment by directing that the sale be subject to the easements would show that if there had been a sale •under that" judgment without such modification the defendants would have been barred from claiming any easement upon the property conveyed by the referee. But in this case neither of the defendants whom it is claimed now might have an easement appeared or defended the action, or made any claim to any interest in the property. The judgment was entered in an action to which all these owners of these so-called easements were parties, and a conveyance by the referee will convey to the purchaser all the interest of all the parties to the action whether by easement, or as owners of the fee or any other right or title to the property under the express provisions of section 1039 of the charter (as added by Laws of 1908, chap. 490). That section provides that every conveyance upon a sale pursuant to a final judgment in an action to foreclose a tax lien “ shall transfer to and vest in the purchaser all the right, title, interest and estate in and claim upon the real property affected by such judgment, *697of the plaintiff, each defendant upon whom the summons is served, each person claiming from, through or under such a defendant by title accruing after the filing of notice of pendency of the action. ” It seems to me that under this express provision of the charter the question whether any of these defendants had or had not an easement in the property or any right to it which would be affected by the conveyance they were bound to assert in the foreclosure action so that the sale could be made subject to any right or easement therein; and having failed to assert their claim in that action a deed by the referee in pursuance of a judgment would vest in the purchaser full title to the property free and clear of any lien or interest of any of the defendants.
I, therefore, concur in the reversal of the order appealed from, and the motion requiring the purchaser to complete his purchase should be granted.
Clarke and Dowling, JJ., concurred; Scott, J., dissented.