(dissenting). This lawsuit raises but one question : does plaintiff mortgagee still have a right to redeem the mortgaged land from the 1947 Elmira City tax sale? The courts below correctly answered “ no ” to that question. Any right to redeem is purely statutory (Levy v. Newman, 130 N. Y. 11, 13; Keely v. Sanders, 99 U. S. 441, 445, 446), and, in this instance, the time limited therefor, by the only pertinent redemption statute (Elmira City Charter, § 61; L. 1906, ch. 477), has long since passed. The applicable part of section 61 is as follows: “ Any owner or claimant of any parcel of real estate so sold, or of any specific part or undivided interest in or share of such parcel may, at any time before the expiration of fifteen months from the day of such sale, redeem the same by paying *161to the purchaser, his representatives or assigns, or to the city chamberlain, for his or their benefit, the amount paid by him, with the addition of ten per centum per annum on such amount, and the expense of any publication, and all other expenses incurred by him or them and allowed by this act, for which expenses he or they shall have theretofore filed with the city chamberlain vouchers verified by his or their affidavit; and on such payment being made, the title acquired by such sale shall cease and determine.”
Thus, section 61, which, obviously, describes the redemption rights of mortgagees as well as of owners (see last sentence of section 62, hereinafter quoted), limits the redemption period to fifteen months after sale by the city of the unpaid tax. That fifteen-month period, in this instance, ended on some date prior to November 1, 1948, and with it ended forever any right of this mortgagee to redeem. Concededly, no tender, or offer to redeem, was made by the mortgagee until October, 1950.
There is nothing in any other part of the charter to change the plainly stated time limitation of section 61. Plaintiff’s reliance on section 62 is misplaced. That section is, in full, as follows: “No sale of real estate hereafter made for nonpayment of any tax or assessment shall destroy, or in any manner affect, the lien of any mortgage thereon duly recorded or registered at the time of such sale, except as hereinafter provided. It shall be the duty of the purchaser at such sale to give to the mortgagee a written notice of such sale, requiring him to pay the amount of the purchase money, with interest at the rate allowed by the last preceding section hereof thereon, within six months after the giving of such notice. If such payment shall be made, the sale shall be of no further effect, and the mortgagee shall have a lien on the premises for the amount paid, with thé interest which may thereafter accrue thereon at the rate of six per centum per annum, in like manner as if the same had been included in his mortgage. In case the mortgagee shall fail to make such payment within the time so limited he shall not be entitled to the benefit of the last preceding section of this title.”
Section 62, just above quoted, makes it the “ duty ” of the tax purchaser, to give a six-month notice to the mortgagee, *162but there is no indication that failure, by the tax purchaser, so to do extends, for the mortgagee, the fifteen-month redemption time set by section 61. The patent purposes of section 62 are to keep the mortgage lien alive, but to make it possible for the tax purchaser, as against a mortgagee, to shorten the section 61 redemption period, by means of a six-month notice. Any doubt that such is the meaning of section 62 is removed by the last few words thereof, which say that, if such a six-month notice be served on the mortgagee and he fails to pay up the tax, he “ shall not be entitled to the benefit of ” section 61 (that is, the fifteen-month redemption privilege). In the present case, the tax purchaser failed to give the six months’ notice, but such failure resulted only in the loss to him of his (§ 62) opportunity to shorten the mortgagee’s fifteen-month redemption time.
The courts below, besides denying to plaintiff any continuing right to redeem (and thus answering correctly the question actually in litigation) went further, for adequate reasons, and held that, regardless of any section 62 notice given or not given, the mortgage lien survived the tax sale and the giving and recording of the lease by the city to the tax purchaser. Here, also, we think the lower courts were correct. Appellant seems to argue from some assumed common-law rule of taxation, to the effect that a deed or lease given by a municipality to a tax lien purchaser is always and necessarily prior and superior in rank to any mortgage, and that it, accordingly, cannot be cut off by foreclosure of the mortgage. But there is no general or common law of realty taxation. Collection, enforcement, sale and redemption as to such taxes is, in this State and elsewhere, completely controlled by the particular applicable statutes. The Elmira City Charter says (§ 62) that, unless the six-month notice be given to a mortgagee, no tax sale ‘1 shall destroy, or in any manner affect, the lien of any mortgage ”. That, under the local law of Elmira, mortgage liens and their priorities survive tax sales, is made even plainer by another Elmira City Charter section (No. 59), which has, apparently, gone unnoticed: “ Every léase or conveyance of real estate in said city, upon a sale for any tax, charge or assessment, made by the city chamberlain or any *163other officer or person designated in pursuance of this act, shall convey the title to such estate as the same may create in such lands, and the right to the possession of the same from the time when such tax, charge or assessment became a lien, pursuant to the provisions of either of the said acts, in preference to any deed or conveyance of the said premises or any general or specific lien thereon subsequent to that date ” (emphasis supplied).
Section 59 must mean that as to liens, including mortgage liens, which are prior in time to a tax lease, the latter does not get priority. If we read that provision together with the statement of section 62, above quoted, that a mortgage lien is not to be destroyed or affected by a tax sale unless a six months’ notice be given the mortgagee, the scheme of the statute becomes plain. Tax leases (which may be of very short duration) are not to have priority over existing mortgage liens. A mortgagee, like any other interested party, has fifteen months in which to redeem. Existing mortgage liens are in no way affected by a sale, except that a mortgagee’s right to redeem may be cut off, short of fifteen months, by the giving to him of a six months’ notice. Archaic and lacking in verbal precision though the Elmira City Charter may be, its meaning is not obscure, and that meaning cannot be adjusted to conform to court decisions, every single one of which construes and applies a different tax statute with substantially different provisions. For instance, in Dunkum v. Maceck Bldg. Corp. (256 N. Y. 275) on which much reliance is placed, the penalty imposed by a State-wide statute for a mortgagee’s failure to pay after notice, was (see L. 1855, ch. 427, § 82) the loss to him of his lien’s immunity from destruction, while in the Elmira statute, as pointed out above, the result of such failure to pay was no more than the shortening of the mortgagee’s redemption time. Such statutory differences are not casual or unsubstantial. Likewise, as to the cases cited for the proposition that a tax lease is paramount to, and cannot be cut off by, a pre-existing mortgage, each of those decisions dealt with widely varying statutory language. Quite obviously, none of them attempted to set down a rule that, regardless of and in the teeth of statutory provisions, a mortgage must always be subordinate in lien to a tax lease.
*164The decision below was in complete conformity to the Elmira City Charter and should be upheld. Under it the mortgagee lost his right to redeem because of expiration of time, but retained his prior lien, just as the statute says.
The judgment should be affirmed, with costs.
Loughran, Ch. J., Lewis and Froessel, JJ., concur with Fuld, J.; Desmond, J., dissents in opinion in which Conway and Dye, JJ., concur.
Judgments reversed, etc.