
    The People of the State of New York ex rel. Marquis L. Keyes, Relator, v. Nathan L. Miller, as Comptroller of the State of New York, Respondent.
    
      Redemption from, a State tax sale —“ actual occupancy” of Adirondack land used as a fish and game preserve—when not such as to require service of notice to redeem.
    
    The Adirondack League Club, in 1890, purchased 9,000 acresi of land in the Adirondack mountains, and since then has used the tract as a forest, fish and game preserve. Included in the tract was a lot of 570 acres. Trails were cut through the forest across such lot and a boat landing -was built upon the shore of a lake that was partly in the lot. It was also possible, although the fact did not distinctly appear, that notices, warning all persons from trespassing on the 570-acre lot and that it was used as a private park, were posted upon the lot. This lot was used and cared for in the same manner as the rest of the tract.
    
      Held, that the club was notin the “ actual occupancy ” of the 570-acre lot within the meaning of section 134 of the Tax Law, which requires the service of a notice to redeem from a State tax sale to be served upon the actual occupant of the premises sold.
    . Smith and Chester, JJ., dissented.
    Certiorari issued out of the Supreme Court and attested on the 25th day of July, 1903, directed to Nathan L. Miller, as Comptroller of the State of New 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 the matter of redeeming certain lands, sold by him for taxes.
    
      Griffin & Ostrander, for the relator.
    
      John Cunneen, Attorney-General, and William H. Wood, for the respondent.
   Parker, P. J.:

The relator purchased at a tax sale by the ¡State Comptroller in 1900, lot 6, township 6, Moose river tract, county of Herkimer, being a tract of land consisting of 570 acres. It was assessed and sold for taxes as non-resident lands. The time for redemption by the owner expired in December, 1901, and a conveyance was executed by the Comptroller to the relator on March 6, 1903. On May 23, 1903, the application of the Adirondack League Club to redeem such lands as an occupant thereof under the provisions of section 137 of' the Tax Law (Laws of 1896, chap. 908) was granted by the Comp-' trailer. Ho notice to redeem, as provided for by section 134 of such law (as amd. by Laws of 1902, chap. 171), had been served by the relator.' He claims, however, that the said lands were not occupied, within the provisions of such section 134, by the said club, or by any one whomsoever, and he has sued out this certiorari to review the decision of the Comptroller upon that question.

There are no facts claimed by either party which are disputed. The single question presented to us is, whether the club, in December, 1901, had such an actual possession of the tract so sold and conveyed to the relator as is required by section 134 of the act aforesaid.

. The Adirondack League Club owned some 90,000 acres of land as a forest preserve, and the tract in question was a part thereof, The club had purchased the tract in 1890, and since then had used it for the purposes for which it was purchased, and as it used the rest of its wild and uncultivated land, to wit, as a game preserve and over which its members could hunt and fish.

Trails were cut through the forest across such lot. A boat land ing was built upon the shore of a lake that was partly in this lot; just how it was built does not appear; and, possibly, although it does not distinctly appear to be so, notices warning all persons from trespassing upon the lot and that it was used as a private park, were posted upon the lot. I say that this fact does not distinctly appear, because the affidavits seem to be to the effect that the notices were posted “ along the lines of the whole of said preserve,” meaning that they were posted along the boundary lines of the whole 90,000 acres, and if this lot is in the middle of: that tract there may not have been any notice within miles iff this lot. And this lot was used by the club for the same purposes, and was cared for by the same caretakers and in the same manner that the rest of such 90,000 acres were used and cared for.

Does such a use and possession constitute the actual occupancy which the statute requires ?

It is urged on the part of the club that it is the only possession of the many lots included within their large preserve which it is possible for them to take, and that an actual pedis possessio of each of such lots is inconsistent with the purpose for which they were obtained. That seems to be so. The object of their ownership of the lands is to preserve them in as wild and unreclaimed a condition as possible, and an actual occupation of them, or such treatment of them as is declared in section 370 of the Code of Civil Procedure to amount to a possession and occupancy) would operate at once to defeat the very purpose of" their use. There are many different lots within the boundaries. of this 90,000-acre tract of which the club, because of its ownership thereof, has the constructive possession, but of which no one can be said to have the actual possession, and I am of the opinion that the lot in question was on of them.

The statute in question (§ 134) requires that the person upon whom notice must be served shall be in the “ actual occupancy ” of the tract or parcel of land which the Comptroller had sold, and it seems to me that, in the very nature of the use to which the club puts its land, it cannot have such an occupancy, nor can any of its servants have it, unless perhaps it be of some small parcel thereof upon which a permanent residing place has been created for him Although the occupancy here is not invoked for the purpose of establishing an adverse user, yet the definition given in section 134 of the Tax Law {supra) is at least as precise and explicit as was the word “possession” which section 370 of the Code defined. It must be the actual occupant upon whom the notice is to be served, and all the cases in which this phrase is defined or explained seem to be adverse to the claim which the Adirondack League Club here makes. (People ex rel. Marsh v. Campbell, 67 Hun, 590; S. C., 143 N. Y. 338; Churchill v. Onderdonk, 59 id. 134; Thompson v. Burhans, 79 id. 98, 99.)

There was nothing in the case at bar to indicate to the relator that the lot in question was in the “ actual occupancy ” of any one, and 1 am of the opinion that the determination of the Comptroller was erroneous and should be reversed.

All concurred, except Smith and Chester, JJ., dissenting.

Determination of the Comptroller reversed,with fifty dollars costs and disbursements to the relator.  