This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

OFFICIAL NEWSPAPER -- Fees (not based on agate measurement for publication of notice of unredeemed land)
REAL PROPERTY TAXES AND ASSESSMENTS -- Redemption (publication of notice of unredeemed lands) -- Tax Sale (cost of publication of notice)

CIVIL PRACTICE LAW AND RULES, §8007; PUBLIC OFFICERS LAW, §70-a; REAL PROPERTY TAX LAW, §1014: The cost of publication of a notice of unredeemed lands pursuant to the Real Property Tax Law is based upon the actual line count, rather than upon agate measurement. If the notice involves tabular matter, the newspaper publishing such notice is entitled to the additional per line charge allowed by statute.

You ask whether the charge for a notice of unredeemed lands published pursuant to Real Property Tax Law, §1014 should be calculated on the basis of agate measurement or actual line count.

Real Property Tax Law (RPTL), §1014 provides that at least three months before the expiration of the one year allowed for the redemption of lands sold for taxes, the county treasurer shall cause publication of a notice of unredeemed lands. Subdivision 5 of section 1014 provides that the expense of publishing the notice "shall be at the same rate as that provided by law for the publication of notices pursuant to the civil practice law and rules [CPLR]...".

CPLR, §8007 generally sets forth the rates to which the proprietor of a newspaper is entitled for publishing legal advertisements "[e]xcept where otherwise prescribed by law." Public Officers Law, §70-a sets forth the amounts which municipal officers are required to pay for official notices and advertisements authorized or required by law to be published at the expense of a municipality. Although Public Officers Law, §70-a generally applies to official notices of municipalities, because of the specific reference to the CPLR in RPTL, §1014, it is not entirely clear whether Public Officers Law, §70-a or CPLR §8007 applies in the case of notices published pursuant to section 1014. We need not, however, resolve that question for purposes of this inquiry since the rate schedule provisions are identical in CPLR, §8007 and Public Officers Law, §70-a.

Except as otherwise provided with respect to certain counties and cities identified therein, both statutes, as amended by chapter 776 of the Laws of 1990, provide, in pertinent part, that charges for publication of legal notices shall be calculated at a rate "per line", which rate will vary depending upon the circulation of the newspaper. In addition to the base rate, the newspaper proprietor is entitled to nine cents per line for each "separate advertisement", and eight cents per line for "tabular matter or intricate composition". Finally, these statutes provide that, instead of calculating charges on the basis of an actual count of lines, "[d]isplay advertising shall be charged agate measurement, fourteen lines to each inch...".

"Agate measurement" is a standard of measurement in the printing industry used in connection with measuring the space occupied by display advertisements (see, e.g., Gamrin v Palisades Newspapers, Inc., 284 A2d 355, 357 [Superior Ct., N.J., 1971]). The term "display advertising" is not defined for purposes of the Public Officers Law or the CPLR. "Display advertising", however, generally connotes items such as illustrations, maps, pictures, and varying arrangements of lines of unequal lengths, different styles or sizes of type faces (see, Garmin, supra, 284 A2d at 358; Rust v Missouri Dental Board, 155 SW2d 80, 85).

A notice of unredeemed lands published pursuant to RPTL, §1014, contains simply "a list of the lands in the county sold for taxes and unredeemed, specifying particularly every parcel unredeemed, the amount necessary to redeem ... and stating that unless such lands are redeemed on or before such day they will be conveyed to the purchase". As such, it would not, in our opinion, constitute display advertising (1979 Opns St Comp No. 79-803, unreported). Therefore, it is our opinion that the charge for publishing a notice of unredeemed property is not based on agate measurement, but rather on actual line count. Assuming the notice is published as "tabular matter", it would also be subject to the additional eight cents per line charge authorized by statute.

May 6, 1991
Francis T. Murray, Esq., County Attorney
County of Ulster