#### People *ex rel.*John H. Millard, Resp’t v. Alfred C. Chapin, State Comptroller, Appl’t.1

*(Court of Appeals,*

*Filed, January*18, 1887.)

1. Mandamus. — Appeal — Discbetion op coubt beviewabee by coubt op Appeaes.

The discretion of the court to grant or refuse the writ of peremptory mandamus is not absolute, but governed by legal rules, and its exercise is subject to review by the court of appeals.

2. Same — Cannot be used to bectipy judicial decisions.

When the comptroller exercised a jurisdiction which the law entrusted to him. *Held,*that-the sufficiency of the evidence on which he acted, cannot be reviewed by mandamus nor the decision of the comptroller in such a case, even if wrong, be so recited. That the writ does not lie to compel an officer exercising such functions to reach any particular decision, or set aside a decision already made.

8. Same — When denied — Statute op limitation's.

It is within the discretion of the court- to deuy the writ of mandamus when the delay in moving for it is unreasonable, although the time falls short of the time given for commencing actions. — But after that time, when the delay is unexplained and unaccounted for, it should not be granted after the period fixed as a bar for actions has expired.

4. Taxation — Invalid tax sale — Repundinh pubchase pbice — What a compliance with laws, 1885, Chap. 427, § 83, 85.

Where it appears that the state comptroller had conveyed lands sold at a tax sale to the person to whom the bid at the sale had been assigned by the purchaser at said sale, and the sale having been found to be invalid the said comptroller had refunded the purchase price to the assignee, and the person to whom he had sold and conveyed thetitle, etc., in the said lands, *Held,*that this was a full compliance with the statute and relieved the comptroller from further duty in the transaction.

Appeal from an ordeivofL-til-3 supreme court general term, *589second department, reversing the order of tbe special term of Dutchess county refusing a writ of peremptory *mandamus.*

*Dennis O'Brien,*Atty.-Gen., for comptroller, appl’t; *Abram J.*Bose, for respd’t.

1

 Reversing, 40 Hun, 336.

Danforth, J.

By petition, verified October 6, 1885, the relator applied at special term for a peremptory *mandamus,*requiring the comptroller to pay him the sum of $721.57, the sum, with interest, of moneys paid by a purchaser of 50 or añore lots of land at an invalid tas sale, made in 1859. The application was denied at a special term; but its order was reversed, and the writ granted by the general term. The objection of the relator that the order is not appealable to this court is not well founded. The discretion of the court to grant or refuse the writ is not absolute, but governed by legal rules, and its exercise is subject to review. *People*v. *Common Council of Syracuse,*78 N. Y. 56.

We agree with the special term that the relator failed to show any right to a *mandamus.*On the contrary, it appears that one Henderson, the purchaser at the tax sale, and who paid the price thereof to the comptroller, assigned his bids to one Yiele, and the coanptroller conveyed the lands by deed to him, as such assignee, on September 15, 1862. The sale was invalid, because the notice to redeem was not in compliance with the statute. Laws 1855, c. 427, § 61.

At various times, between 1864 and 1877, the comptroller refunded to Yiele the purchase price of 12 of the lots now in question. On January 22, 1877, Yiele made an affidavit which, after reciting the conveyance aforesaid to him by the comptroller, stated that on September 28,1863, he sold and conveyed to Johir M. Peck “ all the right, title, or interest acquired by him froan the tax sale of 1859, in the lands conveyed to him by the comptroller, so far as his title had not been destroyed by redemption or cancellation.” This affidavit, with other evidence, was filed on that day in the office of the comptroller, and at different times thereafter, but prior to February 20, 1878, the purchase price of all the remaining lots was refunded by him to the said. John M. Peck. This was, I think, a full compliance with the statute, and relieved the comptroller from further duty in the transaction. By the statute *(supra,*§§ 83, 85) it is made his duty, upon discovering the invalidity of a sale for taxes, to cancel the sale, and “ refund, out of the state treasury, to the purchaser, his representative or assignee, the purchase money and interest thereon.” It is not necessary to decide whether or not the statute *(supra)*is limited to the purchaser at the tax sale; and the assignee of the bid or purchase, Yiele stood, indeed, in that relation to Henderson, and with his assent, the money which he did not receive in person was-paid to Peck. *590Nor is it necessary to decide that the right to reclaim the purchase would or would not pass by a conveyance of the land, -or merely follow the person of the original purchaser; for there was also evidence before the comptroller that Yiele had conveyed the lands to Peck. The sufficiency of that evidence is not to be reviewed by mandamus, nor can the decision of the comptroller, even if wrong, be so rectified. He exercised a jurisdiction which the law entrusted to him. The result complained of was a judicial determination, and the writ does not lie to compel an officer exercising such functions to reach any particular decision, or set aside a decision already made. *People*v. *Chapin,*103 N. Y.-S. C. 3 N. Y. State Reporter, 38. The pro-ppriety of his conduct,however, seems unquestionable. He had be fore him, in legal effect, Henderson, the purchaser, Yiele, his as-signee, and Peck, a claimant with the sanction of Viele, — the only persons who seemed to be connected with the tax sale, and with them, so far as he knew, he might lawfully and was required by the statute to deal.

Upon what, then, is the relator’s contention founded ? On February 13, 1885, Maria L. Osborn, the widow, and children, heirs at law of one Ogden H. Osborn, in consideration of $25, conveyed to him by quit-claim deed the tax lands to which reference has already been made, and Maria L. Osborn, the administratix of Ogden, also upon the same consideration, assigned to him all the interest which her intestate ever had of, in, and to any tax certificate, or to any privilege, right, or benefit under any tax certificate or certificates, and to any and all money which should be or should have been refunded or repaid to said Ogden H. Osborn, or to her administratrix, by the comptroller of the state of New York, for any redemption from tax sale, or cancellation of tax sale, or as grantee or assignee of any purchaser at a tax sale, or for any other cause whatever.

Osboru was grantee of Yiele, under a deed bearing date September 15,1863, acknowledged February 28, and recorded in the proper clerk’s office July 6,1864. ' The learned counsel of the relator argues “ that the comptroller had-notice of this deed, and so is estopped from setting up any subsequent payments.” But I find no evidence of that. The mere record of the deed was not notice. Nor is there any foundation for the assertion that the comptroller recognized its existence in any way. It is said upon the relator’s points that “ the comptroller made a payment to Osborn upon the deed for one* lot, which had been redeemed.” I find nothing of the kind in the case; and the folio to which alone we are referred contains merely a description of the lot, and, in substance, that'its sale was canceled, and $15.68, the amount due, refunded by the comptroller to Ogden H. Osborn, March 21, 1864. Under what circumstances, or why this was done, does not appear. Certainly, there is no *591reference to a deed or other title acquired by Osborn. It doubtless indicates that Osborn was in some way shown to be entitled to the money; but it has no tendency to show that he was thought to be, or that he claimed to be, entitled to the price paid for any other lot, or to be the assignee of the tax title or the sum bid, or the grantee even of the purchaser or of the as-signee of the purchaser. If any presumption is to be indulged in, it is that he made no such claim; for afterwards, and in the same year, the comptroller refunded to Viele the price of other lots, and, in successive years, the residue as above stated, to Viele or Peck. There is nothing to show that these payments were not made and received in good faith and under the belief on both sides that Viele and Peck were entitled to them. Their conduct indicates that. On the contrary, Osborn, if he had any rights, slept upon them so long that he must be deemed to have acquiesced in the claim of Viele and of Peck, or, at least, to have -consented by his silence and inaction to the dealings of the comptroller with them as the lawful assignees of the purchaser. And, although the statute of limitations does not prevent the issuing of the writ of mandamus, the damage and inconvenience resulting from the lapse of time are to be considered, and the writ should not be granted after the period fixed as a bar for actions has expired, *(People*v. *Common*Council, *supra :*) and if, as is claimed in behalf of the relator, he has no other legal remedy, his condition in this respect is not improved by that circumstance. When another remedy exists, the writ will not issue. It may also, in the discretion of the court, be denied when the delay in moving it is unreasonable, although it falls short of the time given for commencing actions; but after that time, when the delay is unexplained and unaccounted for, it ought not to be granted. In this case the period of the longest limitation for bringing an action was permitted to pass, — upwards of 20 years from the discovery of the invalidity of the sale to the relator’s purchase. If any right at any time existed in the relator’s assignor, his delay in enforcing it was not only unreasonable, but to the prejudice of others.

Without adverting to other grounds on which the appellant, not without reason, relies, we think the relator’s claim too stale to justify the interference of a court in its favor. The state and its officers are entitled to no less protection than a private litigant.

The order of the general term should therefore be reversed, and the order of the special term affirmed, with costs.

All concur.