The point does not seem to be disputed that the assessments were irregular. The referee was of that opinion, and we find nothing in the defendant’s points to the contrary.
If it were an open question I should think that it was only just / and equitable that one, whose lands had been sold under or for taxes or assessments, which were void, might maintain a suit in equity to set aside the sale. The serious evil of having a tax, or assessment, sale outstanding ought, in my opinion, to justify an action to set it aside. But the right to bring such an action has be.en limited to cases where the invalidity does not appear upon the face of the assessment (Strusburgh v. Mayor, 87 N. Y., 452, at p. 455), and to cases where the instrument to be executed by the authority which sells the property is presumptive evidence of the validity of the sale.
In the present case it is urged that the deed to be executed, after the lapse of two years is presumptive evidence. It was held, however, in Sanders v. Yonkers (63 N. Y., 489), that there must be some imminent danger that the instrument will be executed, which is to be presumptive evidence; that there must be a determination on the part of the defendant to create the cloud upon title.
'Within that decision then this case falls. The action was commenced within a month after the sale. Wihile two years must elapse before the deed can be executed, and a six months notice to redeem must be given. Before the conveyance the comptroller has statutory power to cancel the sale if the sale is for any cause invalid or ineffectual. It cannot be said, then, that there is such threatened and immediate- danger of a cloud on the plaintiff’s title' as justifies, under the decisions in the State, the present action.
Judgment affirmed with costs.