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Refusal of a clerk in the comptroller's office to give information a second time as to the amount necessary to be paid to redeem,- held, not to avoid the title acquired under the sale. Van Benthuysen v. Sawyer, 36 N. Y. 150; 36 How. Pr. 245.

§ 108. Deduction of overcharges.- If any tract or lot of land shall have been returned as containing a greater quantity of land than it actually contained, the amount overcharged shall be deducted. If the tax shall have been paid according to such return, the overcharge shall be refunded out of the treasury upon the production to the comptroller of satisfactory proof of the quantity actually contained in each tract or lot at the time of the assessment. No such overcharge shall be cancelled nor such over-payments refunded, unless application shall be made to the comptroller before the sale of such lands, and within six years after the assessment. If the whole amount of the tax shall have been paid to the county treasurer out of the state treasury, the comptroller shall charge the amount so refunded with interest and charges thereon to the treasurer of the county to which the tax was returned, and shall transmit an account thereof to him. The county treasurer shall deliver such account to the board of supervisors at their next annual meeting, which shall cause the amount thereof to be added to the taxes of the tax district in which the tax was assessed, and when collected it shall be paid into the treasury of the county.

[Revisers' Note.-L. 1855, chap. 427, §§ 30-32; R. S., 8th ed., 1134, without change of substance.]

§ 109. Overpaid taxes.- If it shall satisfactorily appear to the comptroller that the amount of any tax has been paid, and afterwards other money has been paid into the state treasury on account of such tax or that the amount of any tax has been overpaid to the treasurer of the state, he may draw his warrant on the treasury for the amount paid in excess of the tax due, in favor of the person paying the same.

[Revisers' Note.-L. 1855, chap. 427, § 24; R. S., 8th ed., 1133, without change of substance.]


Sales by Comptroller for Unpaid Taxes and Redemption of


Section 120. Notice of sale.


121. Maps to be furnished comptroller.

122. Sale, how conducted.

123. Purchases by comptroller, for state or county.

124. Withdrawal from sale of lands upon which the state

has a lien.

125. Payment of bids and certificate of purchase.
126. New certificate upon setting aside sale.
127. Redemption of lands.

128. Redemption of lands conjointly assessed.

129. Prohibition of the despoliation of lands sold.

130. Notice of unredeemed lands.

131. Comptroller's deed.

132. Effect of former deeds.

133. Possession of lands by the state.

134. Notice to occupants.

135. Certificate of nonredemption and completion of title. 136. Redemption by occupant and certificate of redemption.

137. Redemption by occupant before notice and effect of failure to redeem.

138. Lien of mortgage not affected by tax sale.
139. Redemption by mortgagee before notice.
140. Cancellation of sales.

141. Setting aside cancellation of sale.

142. Expenses of sale.

143. Payment of moneys into state treasury.

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§ 120. Notice of sale. The comptroller may sell any lands heretofore or hereafter returned to him for nonpayment of any tax thereon, if such tax and the interest thereon, or any part thereof shall remain unpaid for one year after February first, following the year in which the tax was levied. He shall make out a list of all such lands in any county and transmit to the county treasurer thereof at least eighteen weeks before the commencement of the sale, a number of copies of such list sufficient

to furnish five copies to the county treasurer, two copies to the county clerk and two copies to the clerk of each town and city in which such lands are situated. The county treasurer shall transmit the same to such officers. The comptroller shall publish such list with a notice, that on a day to be specified therein and the succeeding days, so much of such lands as may be necessary to discharge the taxes, interest and charges due thereon at the time of sale, will be sold at public auction at the capitol in the city of Albany. Such list shall be inserted in two newspapers published in such county, once in each week for twelve successive weeks prior to the commencement of the sale, and in the body of the newspapers and not in a supplement. If there are not two newspapers published in the county, the publication shall be in two newspapers which the comptroller shall determine to be most generally circulated in the county. Due proof of the publication of such list and notice in each newspaper shall be made and filed in the office of the comptroller within twenty days after the last publication. The expense of printing, publishing and transmitting such list shall be audited. by the comptroller and paid out of the state treasury. No error in the description of the lands in any list published in any newspaper shall render any sale void or in any manner affect its validity.

[Revisers' Note.-L. 1855, chap. 427, § 41; R. S., 8th ed., 1135,

L. 1893, chap. 711, § 1, as am. by

L. 1895, chap. 895,

without change.]

Omission in the advertisement of sale to fix a day certain for the payment of the money required to redeem is an irregularity. Lester v. McDaniel, 5 Misc. 190 (1893).

The notice of sale should contain as definite a description of the land as that required in the assessment-roll. Hubbell v. Weldon, Hill & D. Supp. 139 (1843).

To give the comptroller authority to sell it must appear from the affidavit of the collector annexed to his return that the account returned is a transcript of the original assessment-roll, and that the taxes contained therein remain unpaid. Curtiss v. Follett, 15 Barb. 337 (1853).

In selling lands for nonpayment of taxes, the comptroller acts as the agent of the government as truly as any agent of a municipal corporation for his principal, and in the discharge of that duty he executes a mere naked authority which he is bound to pursue as strictly as would any subordinate officer. The only case in which a presumption will be

indulged that such an officer has performed all the acts necessary to give him jurisdiction to sell and convey land, is when he is engaged in transferring the title of the State to its own public domain, but never. when the title of an individual is sought to be subverted. Bunner v. Eastman, 50 Barb. 639 (1867).

A sale for taxes for a number of years, part of which were illegally assessed, is void. People v. Hagadorn, 104 N. Y. 516 (1887); affirming 36 Hun, 610.

The time, after the expiration of two (now "one ") years, within which the comptroller shall sell, is in his discretion. Colman v. Shattuck, 62 N. Y. 348 (1875); affirming 2 Hun, 497.

Publication is not necessarily to be made for the ten (now “twelve") weeks next prior to the sale, and omission to state in the proofs the dates of commencing and ending publication,— held, not to vitiate, where publication for ten weeks was sworn to. Coanen v. Shattuck, 62 N. Y. 348 (1875); affirming 2 Hun, 497.

The list of lands chargeable with taxes and interest transmitted by the comptroller to the county treasurer need not state that the lands are so charged. A statement that they are liable to sale for the taxes therein referred to, and that they will be sold for such taxes is sufficient, under Laws 1855, chap. 427, section 34, page 787. Wood v. Knapp, 100 N. Y. 109 (1885).

The comptroller must advertise and sell the lands by lots and descriptions as returned to him. Where a township which should have been sold in lots was sold in four undivided quarters.- held, that the sale was irregular and unauthorized. Thompson v. Burhans, 61 N. Y. 52.

Proof of publication once in each week for ten weeks successively, commencing on the 20th of July, 1866, and ending 21st September, 1866,"— held, sufficient, since the first day of the tenth week covered the whole week. Wood v. Knapp, 100 N. Y. 109 (1885).


Where weekly publication is required, it is sufficient if made on any day in each week during which the publication is required.


§ 121. Maps to be furnished comptroller.- The comptroller may apply to the supervisor of any town for maps of any tract of land returned from such town for nonpayment of taxes, if he deem it necessary in order to test the correctness of the description thereof, preparatory to a sale of such lands, and the supervisor shall furnish such maps at the expense of the town, if they can be procured; if not, he shall furnish such descriptions of the lands as he can obtain, with a statement of the quantity in each subdivision, if the same is divided. The treasurer of every county shall, on receiving a list of lands to be sold at a state sale transmit to the comptroller at least one month before any state tax sale, a certified list of all lands bid in at any tax sale, in the

name of such county, or transferred to such county upon any such sale, or to which the county may have acquired a tax title, the deed for which has not been recorded in the office of the clerk of the county, which may then be liable to be sold at such sale. Every county clerk shall, on receipt of a list of the lands therein liable to be sold at any state tax sale, and at least one month before the sale, transmit to the comptroller a certified list of all lands the conveyances of which are on record in his office, then owned by such county, and liable to be sold at such sale.

[Revisers' Note.-L. 1893, chap. 711, § 2,

without change.]

§ 122. Sale, how conducted.- On the day mentioned in the notice of sale the comptroller shall commence the sale of the lands specified in the lists annexed to the notice, and continue the sale from day to day, until so much of each parcel shall be sold as will be sufficient to pay all the taxes thereon for the years for the taxes of which such sale shall be made, with the interest and charges thereon. In case no purchaser bids the amount due on any lot or parcel, the comptroller is authorized to bid in such lot or parcel for the state. The comptroller may, in his discretion, decline to receive any bid on any parcel of land, if in his opinion, it is made by or for any person not acting in good faith, and any such land shall be sold at such sale the same as if such bid had not been made thereon. And in case the land is located in a county outside the forest preserve, the comptroller may sell and assign the certificate therefor at any time. before the expiration of the period for redemption, on such terms as to him shall seem for the best interests of the state.

[Revisers' Note.-L. 1893, chap. 711, § 3, as am. by

L. 1895, chap. 895,

amended by providing that comptroller may sell or assign certificate within three months from the date of the sale instead of at any time before the expiration of the period of redemption, to conform to § 125 (L. 1893, chap. 711, § 6, as am. by L. 1895, chap. 895).]

The note of the commissioners has no force as the senate committee restored the old law.

A proceeding to sell property for nonpayment of taxes and assessment, being one to divert title to property without the consent of the owner, is in derogation of the common law and must be strictly pursued. Lester v. McDaniel, 5 Misc. 190 (1893).

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