
    The People of the State of New York ex rel. Patrick Moynehan, Appellant, v. Charles H. Gaus, as Comptroller of the State of New York, and Robert C. Pruyn, Respondents.
    Third Department,
    September 15, 1909.
    Tax sale — occupancy of forest lands — redemption.
    Where the purchaser of Adirondack forest lands used the same as a private preserve, built an expensive camp thereon, which he occupied with his family and friends during the summer months, and constructed buildings which were occupied by employees, and in addition to keeping farm animals on the lands, posted signs every forty rods along the entire boundary warning others against trespassing, he was an actual “occupant” in possession within the meaning of section 184 of the Tax Law.
    Hence, after' a tax sale of a portion of said lands, the Comptroller is justified in making an order allowing such owner to redeem on the ground that no notice to do so had been served upon him as required by law.
    Certiorari issued out of the Supreme Court and attested on the 27th day of February, 1909, directed to Charles H. Gaus, as Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in granting an application, under section 137 of the Tax Law (Laws of 1896, chap. 908), to redeem certain land from a sale for unpaid taxes.
    
      George N. Ostrander, for the relator.
    
      Albert Hessberg, for the respondent Pruyn.
    
      Edward R. O'Malley, Attorney General, and Edward H. Letchworth, Deputy, for the respondent Comptroller.
   Sewell, J.:

The relator purchased the lands in question at the sale of 1905, and March 12, 1907, the Comptroller of the State executed a deed of the same pursuant to the sale. December 7, 1908, the Comptroller made an order allowing a redemption of the lands on the ground that they were occupied at the time of the expiration of the year given for the redemption thereof, and no notice to redeem had been served as required by law.

The order was made upon the application of the defendant Robert C. Pruyn, who claimed to be the owner of the premises and that he had had the actual, lawful and exclusive use and possession of the lots from 1898 to the time of the application to redeem.

The relator admitted that no notice to redeem had been served by him, but insisted that the facts stated in the papers before the Comptroller did not show an actual occupancy within the meaning of section 134 of the Tax Law. (See Laws of 1896, chap. 908, § 134, as amd. by Laws of 1902, chap. 171.)

The papers before the Comptroller showed that the defendant Robert C. Pruyn was the owner of a private park or preserve in the Adirondack region ; that the original purchase was made from the relator July 9, 1892, and consisted of 5,692 acres; that in March, 1898, the defendant purchased lots 87, 88 and 89 for the purpose of straightening the west line of the preserve; that since that time they have been included therein and habitually used in conjunction therewith; and that Ellis F. Baker, the defendant’s' superintendent, has actually resided upon the preserve since July 1, 1905, and has had the care, control and supervision' thereof, including the lots claimed by the relator. It was not pretended that any of these lots had been inclosed, cultivated or improved, but it was undisputed that other portions of the preserve were actually occupied at the expiration of the year given to redeem. The proof showed that prior to that time the defendant had expended $125,000 in the construction of a residence and other buildings and $125,000 for roads, fences, water works and other improvements therein; that he had constructed a camp or residence, with all modern conveniences and improvements, large enough for thirty people which had been occupied by the defendant, his family and friends during the summer months; that there was a lodge which had been occupied by the defendant’s head guide and his family since 1894, a farm cottage which had- been continuously occupied by his foreman and his family since 1898, a gate lodge which had been occupied by the defendant’s superintendent and his family since July 1, 1906, and that other cottages, camps and buildings therein were actually occupied by the defendant’s employees and servants at the expiration of the time given to redeem.

It also appeared that the defendant had kept continuously in the park twelve cows, ten horses and forty sheep ; that prior to the sale by the Comptroller he had posted and maintained upon the premises, metal notices or signboards more than one foot square, warning all persons against shooting, hunting or trespassing upon said premises, and that such notices were placed not more than forty rods apart along the entire boundary of the park or preserve, including the lots claimed by the relator, and within the park along the borders of the lakes, ponds and streams, one for every 100 acres thereof. It was ,also stated in the affidavit of the defendant that he had “ had the actual, lawful and exclusive use and possession of said lots if os. 87, 88 and 89 aforesaid from the time of the purchase of the same in 1898, and that he had the possession of the same to the exclusion of every other person ever since said time.”

I think that the facts recited constituted an actual occupancy and possession by the defendant of the entire premises, within the meaning of the statute. An occupancy that would constitute a good adverse possession of the tract and which might ripen into a title in twenty years, was not within the contemplation of the Legislature. (Comstock v. Beardsley, 15 Wend. 348.) Section 134 of Tax Law defines the term “ occupant ” as meaning A person who has lawfully entered upon the land so occupied, and is in possession of the same to the exclusion of every other person,” and the term “ occupancy ” as meaning “ the actual lawful and exclusive use and possession of such lands and premises by such an occupant.”

It was not claimed that any other person had the care, control, use or occupation of the disputed territory. It was undisputed that the preserve, including these lots, had been cared for, managed and used as an entirety since 1898, and that the defendant had had the use and possession of the same to the exclusion of every other person. I, therefore, think that the actual occupancy which the statute requires was established, and that the determination of the Comptroller must be affirmed, with costs.

Determination of the Comptroller unanimously confirmed, with fifty dollars costs and disbursements.  