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Opinion of the Court, per HAIGHT, J.

[Vol. 196.

either as occupied or non-resident; that a question of fact was thus presented to the assessors of determining in the first instance as to whether the lands were in fact occupied or not; that in determining that question they acted judicially, and if they erred it was an error of fact merely and not a jurisdictional defect. The rule is that the legislature, by a retrospective statute, may cure defects in legal proceedings which do not extend to matters of jurisdiction or are not void on constitutional grounds, if the defect is such as could be dispensed with by the legislature in its original statute providing for the proceeding. (Ensign v. Barse, supra.) The legis lature could, therefore, have provided for the assessment of taxes as against the land in all instances, whether resident or non-resident, upon giving a time for the hearing of owners. The legislature has provided that if the taxes on lands assessed to a resident shall be returned as unpaid, in consequence of their becoming vacant, or in default of goods and chattels of the occupant sufficient to satisfy the tax, the supervisor of the town or ward in which the land was assessed shall add a description thereof to the assessment roll of the next year in the part thereof appropriated to taxes on lands of non-residents, and shall charge the same with the uncollected tax of the preceding year; and the same proceedings shall be had thereon in all respects as if it was the land of a non-resident. It thus follows that the proceedings for the sale of lands for the non-payment of taxes from that time on becomes the same, whether it is resident or non-resident. While these considerations were apparently overlooked, and not considered in the Joslyn case, we do not deem it necessary in this case to pursue the discussion of that question further. For in this case we have another question presented, which we think renders the determination of that question unnecessary.

The constitutional question to the effect that one in possession of all of his rights in lands cannot be compelled to resort to legal proceedings, or else run the risk of losing them, suggested in Cooley's Constitutional Limitations, and referred to in the Joslyn case, does not arise in this case; for, under the

N. Y. Rep.]

Opinion of the Court, per HAIGHT, J.

view taken by us, the plaintiffs lost none of their rights until they were dispossessed by the purchaser in 1897.

The answer expressly sets forth the statute of limitations embraced in the second section of the act of 1885, which, in substance, limited the provisions of the act to certain counties specifically named and then provided that the act shall not affect "any action that shall be begun, proceeding taken, or application duly made within six months thereafter for the purpose of vacating any tax sale or any conveyance or certificate of sale made thereunder." This provision, by chapter 217 of the Laws of 1891, was made applicable to all of the counties in the state with the exception of the two heretofore named, and in it the provision above quoted to the effect that it shall not affect any action begun, etc., made within six months thereafter, was re-enacted and continued. It will thus be observed that these provisions are virtually a statute of limitations; for, after the comptroller's deed had been recorded in the office of the clerk of the county in which the lands are located for a period of two years, it, six months after the act takes effect, becomes conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the lands and all notices required by law to be given previ ous to the expiration of the two years allowed by law to redeem, were regular and regularly given, published and served according to the provisions of the act. But it shall not affect any action or proceeding brought within six months thereafter for the purpose of vacating any tax sale or conveyance. It is well settled that a statute of limitations intended as a retrospective law must give a person reasonable time to enforce a remedy available to him before the bar of the statute will apply. In this case the statute gives a period of six months and that time has been recognized by the courts as reasonable.

These questions were fully considered by our present Chief Judge CULLEN in the case of Meigs v. Roberts (162 N. Y. 371, 377). In that case he clearly draws the distinction between a curative act and a statute of limitations, and says with

Opinion of the Court, per HAIGHT, J.

[Vol. 196.

reference to the same statute we now have under consideration: "We are of opinion that the lapse of time between the record of the conveyance of 1884 and the commencement of this action barred the right to the plaintiff to maintain it, even assuming the other questions in the case should be resolved in his favor. The learned Appellate Division held that the failure to publish a proper redemption notice was jurisdictional as to the conveyance of 1884, and, hence, not cured by chapter 448 of the Laws of 1885, and cited Ensign v. Barse (107 N. Y. 329) and Joslyn v. Rockwell (128 N. Y. 334) as authorities for that proposition. We think the learned court took too narrow a view of the statute of 1885. This statute, though in some aspects a curative law, is primarily and essentially much more; it is a statute of limitation. It was distinctly held to be such in two decisions of this court (People v. Turner, 117 N. Y. 227; Same v. Same, 145 N. Y. 451, 459) and by the Supreme Court of the United States (Turner v. New York, 168 U. S. 90). A curative act in the ordinary sense of that term is a retrospective law acting on past cases and existing rights. The power of the legislature to enact such laws is, therefore, confined within comparatively narrow limits, and they are usually passed to validate irregularities in legal proceedings. But there may be in legal proceedings defects which are not mere informalities or irregu larities, but so vital in their character as to be beyond the help of retrospective legislation; such defects are called jurisdictional. This principle does not apply to a statute of limitations, for such a statute will bar any right, however high the source from which it may be deduced, provided that a reasonable time is given a party to enforce his right." (Saranac Land & Timber Co. v. Comptroller, 177 U. S. 318.)

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While it is thus settled that the time given in the statute is reasonable, it must also appear that there was a remedy available to a person to enforce or protect his rights before the bar will apply. This question has recently received the attention of this court in the case of Saranac Land & Timber Co. v. Roberts (195 N. Y. 303), in which it has been held that no

N. Y. Rep.] Opinion of the Court, per HAIGHT, J.

remedy was available to the record owner until the comptroller was vested with the possession of the lands sold for taxes by the publishing of the notices provided for by section 4 of chapter 453 of the Laws of 1885 and that, consequently, the running of the short Statute of Limitations provided for by the amendment of 1891 above referred to, was postponed until the possession of the land was vested in the comptroller. This, we think, is decisive of the question we have under consideration. The deed, with the certificate of the comptroller that notice to the occupant of the lands had been given and the proof of service thereof had been made, was recorded in the office of the clerk of the county on the 11th day of April, 1887, in liber 128 on pages 2 and 167. The plaintiffs remained in possession until 1897 when they were dispossessed by the purchaser from the state of the tax title, who, as we have seen, occupied the premises for upwards of eight years thereafter. This action was commenced January 31st, 1906. While the plaintiffs had no available remedy against the state, under the authorities, until after they were dispossessed in 1897, and consequently the running of the short Statute of Limitations was postponed until the happening of that event, it is clear that immediately thereafter they did have a right of action as against the purchaser in ejectment, and that then the statute did commence to run. But, as we have seen, they rested upon their rights for a period of upwards of eight years thereafter before the bringing of this action and consequently the statute in the meantime did run and by the express provisions thereof the record of the deed became conclusive evidence not only that the tax was properly levied but that all the notices given required by law previous to the expiration of the time allowed by law to redeein were regular and were regularly given, published and served.

The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event.

CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, VANN, WerNER and HISCOCK, JJ., concur.

Judgment reversed, etc.

Memorandum, per HAIGHT, J.

Memorandum on motion for re-argument:

[Vol. 196.

HAIGHT, J. It is now alleged in the moving papers that the notice of the tax sale and the evidence of the service thereof were not in fact recorded at all, and that the only paper recorded at the time of the deed was the certificate of the comptroller. I shall, therefore, now consider the question as to whether the notice and the service thereof were required by the statute to be recorded.

Section 68 of the statute provides for the serving of the notice and the contents thereof, and "no conveyance made in pursuance of this section shall be recorded, until the expiration of such notice, and the evidence of the service of such notice shall be recorded with such conveyance." Section 69 provides for the manner of the serving of the notice. Section 72 provides that the grantee or the person claiming under him shall, within one month after the service of such notice, file with the comptroller a copy of the notice served, together with the affidavit of some person who shall be certified as credible by the officer before whom such affidavit shall be taken, that such notice, as is above required, was duly served, specifying the mode of service. Section 73 provides that, "If the comptroller shall be satisfied by such copy and affidavit that the proper notice has been duly served, and if the moneys required to be paid for the redemption of such land shall not have been paid, as hereinbefore provided, he shall, under his hand and seal, certify such facts, and the conveyance before made shall thereupon become absolute; and the occupant, and all others interested in said lands shall be forever barred of all right and title thereto."

It will thus be observed that the service of the notice of the tax sale and the specifying of the time in which redemption must be made and the service of such notice, does not form a bar, under the statute, for the party may redeem within the time specified. The essential fact, therefore, establishing the bar is the certificate of the comptroller, to the effect that the notice complied with the statute and had been duly served; that the time had elapsed within which redemption must be

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