Christopher Schreiber and John Miller, Appellants, v. The Long Island Railroad Company, Respondent

Christopher Schreiber and John Miller, Appellants, v. The Long Island Railroad Company, Respondent. Second Department, June 12, 1908’ Real property —tax sale—. failure to assess lands of non-residents • separately, " ' 1 A sale of lands owned by. a non-resident for unpaid taxes is void x where they i were commingled with the lands of residents in the assessment- roll instead of ‘ being set down and assessed in a separate part of the roll, asreq.uired by section • 29 of chapter 908 of the Laws of 1896. Appeal by the plaintiffs, Christopher Schreiber and another, from a judgment of the Supreme Court.,in favor of the defendant, enteréd in the office of the clerk of the' county Of Nassau on the 21st day of .September, 1901, upon the decisión of the court, rendered after a .trial at the Nassau Special Term, dismissing the complaint upon the merits, .- " The action was to restrain the defendant from trespassing on the land of the plaintiffs by running.its trains' thereon, it being in its roadbed, '; Charles H. Street [Leander B. Faber with him on the brief], for the apqtéllánts. Henry De Forest Baldwin [Joseph F. Keany with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The défendant has the regular title to the land and the plaintiffs claim under a tax conveyance in fee .by the county treasurer, of Nassau county. The assessment in 1900 of the'tax "for non-payment of which the sale was made was void. The land was of á non-resi-. dent. The statüté required that non-resident lands should be set down and assessed in a separate part of the assessment roll (Tax Law, ch. 908, L: 1896, sec. 29). There being a-dispute on the argu.ment before us whether this had been done, it was agreed that the roll.should be submitted to us. That has been done, and resident and non-resident lands are not separately set down and assessed in the roll, but promiscuously. - The land was therefore never assessed, from which it follows that' there was no jurisdiction- to sell. The county treasurer’s power of sale, both by the express words and the scheme of the statute, is restricted to lands assessed as non-resident. He could not by selling other lands bring them Under the said statute (Sanders v. Saxton, 89 App. Div. 421). The judgment should be affirmed. Woodwaed, Hookeb, Rich and Milleb, JJ., Concurred; Mil-lee, J., on the ground that the' defect in the tax proceedings was jurisdictional and that the five years’ statute of limitations (Tax Law, § 132) is applicable. Judgment affirmed, with costs.