COURT OF APPEALS.

#### Abraham B. Van Benthuysen, appellant, agt. Mitton Sawyer and Charles H. Faxon, respondents.

Although it is made the duty of the comptroller of the state, from time to time, to give any person requiring the same, a *certificate*of the amount of any *tax, interest and charges*due on any tract of land, yet the omission to do so may be under circumstances which would preclude the effect of *preventing a redemption.*As where the owner of the land has received one such certificate from the comptroller, and on a second application for the same, without producing or accounting for the first, the comptroller 2 efuses, the owner is not thereby prevented from redemption.

*January*Term, 1867.

This is an action to recover damages for an alleged wrongful entry upon, and carrying away timber from lot No. 72, in Hoffman’s township, in the county of Essex. Upon the trial, the verdict was for the defendants, upon which judgment was rendered. The plaintiff appealed to the general term, where the judgment was affirmed, and the case is brought here by appeal from the judgment thereupon entered.

R. L. Hand, *for appellant.*

A. K. Dudley, *for respondents.*

Parker, J.

The plaintiff claims title to the lot, which was a wild lot, under a tax sale, made by the treasurer of the county of Essex, on the 6th of December, 1853.

The defendants dispute the title, on the ground that the owner oí the lot, before the time for the redemption expired, applied at the comptroller’s office for a statement of the amount necessary to be paid to redeem the lot in question, and was then and there ready and willing and offered to pay snch amount, but was refused such statement, and was *246thereby prevented from redeeming the premises; and claimed that the deed subsequently given, pursuant to the sale, was therefore invalid, and conveyed no title to the plaintiff.

Upon the trial, Schoonmaker, a witness on the part of the defendants, testified that he went to the comptroller’s office, on behalf of, and by direction of Bergh (the owner of the lot), to pay taxes. He says: *“*I went to comptroller’s office, and found a man there, and told him I wanted to pay taxes on No. 79, Hoffman’s township, Essex county. His name is Sawyer; he is now in court. He asked me if Mr. Bergh sent the bill. I told him he did not. He said Bergh ought to have sent the bill. My reply was that Mr. Bergh did not send the bill, but if he would give me the amount I would pay them. He said Bergh should have sent the bill; that he had given them already a great deal of trouble. He refused to give me any attention. I insisted upon their showing me the books, and knowing the amount. He went and opened the book, and I saw the amount, and he called out the amount. It was three, dollars and something, and he closed the book, and said there were other back charges, and that he ought to have sent the bill or come himself and ha,d the thing attended to. I took out my pockét-book and told him I came to pay the taxes and charges on the lot, and was prepared to pay, and said, I demand from you the amount.’ He made no further reply, and I left the office.” It had already appeared that Bergh had himself, after the tax sale, applied at the office to pay arrears of taxes on the lot, and had paid the bill made out therefor, but that an omission had been made, of which a statement was subsequently, and prior to Schoonmaker’s application, sent to him in the form of a certificate of the amount necessaiy to be paid to redeem the lot.

The court charged the jury that ‘‘if they believed theevidence of Schoonmaker and that Schoonmaker applied to a clerk in the office of the comptroller, having charge of the books of sales for taxes,for a statement of the amount that was necessary to be paid *247to redeem lot No. 72 in question, and said clerk refused to give him said statement, that refusal defeated the title of the plaintiff, and he cannot recover in this action.”

To this the plaintiff excepted.

It must be admitted, I think, that if the redemption was *prevented*by the public officer through whom it was to be effected, the title was not divested by the deed made to the purchaser upon the tax sale, and the plaintiff therefore had no title and could not recover.

But assuming all that the court submitted to the jury to be ' true, it does not follow that a redemption was thereby prevented. It is to be remembered that there is evidence in the case showing that Bergh had received from this office the very statement which he now again sought to obtain. In this case, therefore, it was erroneous, I think, to instruct the jury, that the refusal of the clerk to give Schoonmaker the statement of the amount necessary to be paid to redeem the lot in question, defeated the title of the plaintiff ; for it cannot be correctly affirmed that every such refusal has such effect. Although it is made the duty of the comptroller from time to time to give any person, requiring the same, a. certificate of the amount of any tax interest, and charges due on any tract of. land, yet the omission to do so may be under circumstances which would preclude the effect of preventing a redemption. If the applicant has in his pocket a certificate on which he can pay the required amount to the treasurer, the refusal of a second certificate would not put him in the predicament assumed by the charge.

In this case the court had no right to assume that the omission of Bergh to redeem, was chargeable to the default of the public officer, sworn to by Schoonmaker.

This question, I think, is legitimately before us. We are called upon by the excepten to the charge, to decide whether it was legally correct, in its application to this case. And if it made the case to depend upon a legal conclusion not *248warranted in the case, under all the evidence it was erroneous and the plaintiff’s exception was sufficient.

I am of the opinion, therefore, that the judgment appealed from should be reversed, and a new trial ordered.

Concurring in this opinion: Hunt, Boches, Wright and Davies, Ch. J.

Reversed.