
    The People of the State of New York, Plaintiff, v. Nathan Pulver, Defendant.
    (Supreme Court, Warren Trial Term,
    July, 1908.)
    'Taxes — Tax titles — Purchaser’s title — Nature oí title.
    ■.Trespass—Actions — Pleading, evidence and judgment—Weight and sufficiency of evidence — In absence of proof of defendant’s title.
    Where evidence in an action for trespass, for cutting a tree on lands claimed by the State under a tax deed from the Comptroller in 1890, will not support a finding that certain deeds, under which defendant claimed ownership, two of which were given after said tax deed, conveyed the lands set forth in the complaint, plaintiff is entitled to judgment.
    Where defendant’s objections to plaintiff’s title all relate to irregularities in the assessments which might have been cured on application to the Comptroller under section 132 of the Tax Law, section 131 of the Tax Law will be held to operate as a statute of limitation.
    Action in trespass for cutting a tree on State lands.
    John K. Ward (Ellis J. Staley, of counsel), for plaintiff.
    James H. Bain, for defendant.
   Spencer, J.

This is an action in trespass, the plaintiff claiming to he the owner of the real estate by conveyance from the Comptroller under tax sale deed, dated April 22, 1890, the assessments being against one Hugh Clemons; and that the defendant since such conveyance has cut a tree on said premises. The defendant admits the cutting and alleges that he is the owner of the premises.

On the trial the plaintiff put in evidence the tax deed from the Comptroller and rested. Thereupon the defendant put in evidence a quitclaim deed, dated May 3, 1857, and recorded April 1, 1858, from Lucius Woodard and wife to Newton Aldrich; also quitclaim deed from Newton Aldrich and wife to Fred N. Pulver, dated March 1, 1903; also a quitclaim deed, dated June 4, 1907, and acknowledged May 25, 1908, from Fred N. Pulver to the defendant, Nathan Pulver.

In reply, the plaintiff put in evidence the publication of notice by the Comptroller under section 13 of chapter 711 of the Laws of 1893, to the effect that possession would be in the State at the expiration of three weeks from December 14, 1894.

There is no evidence as to what, if any, title Woodard had to the property, or that he ever had possession of the same, or ever exercised any rights of ownership. The same is true of Aldrich, who held a quitclaim deed from Woodard, down to March 1, 1906. This chain of title seems to rest on no foundation whatever.

There is no proof that the lands described in the complaint are the same lands conveyed to defendant. Both parcels are in Lot 11, of the same patent; beyond this, there is nothing in common. The evidence will not support a finding that the deeds put in evidence by defendant convey the lands set forth in the complaint.

As the defendant has failed to show title to the premises, it may not be necessary to consider the case further.

But defendant contends that the plaintiff in order to recover must first show title, even against a stranger. I do not regard this as the rule applicable in this State to cases of this nature. People v. Turner, 117 N. Y. 227; People v. Francisco, 76 App. Div. 262; Andrus v. Wheeler, 18 Misc. Rep. 645, 650. But, in view of his contention, we will consider the objections to plaintiff’s title. They all relate to irregularities in the assessments. These could have been cured by application to the Comptroller under the provisions of section 132 of the Tax Law. Hence it must be held that the provision of section 131 of the Tax Law is a statute of limitations and that, under the decision of Meigs v. Roberts, 162 N. Y. 371, such defects are cured.

It is true that, inasmuch as the defendant does not claim under Clemons, against whom the assessments were made, a different rule might obtain as to him. The record in the case last cited does not disclose the fact as to whether the assessments in that case were against the plaintiff or not; but, as the notice is to all concerned, it must be presumed that such fact is immaterial. I, therefore,, conclude .that, on this branch of the case, the defendant has failed to show that the deed, to plaintiff is invalid.

Judgment must, therefore, be given to the plaintiff for the relief demanded in the complaint and for costs.

Let findings of fact and conclusions of law be prepared and be submitted in accordance herewith.

Ordered accordingly.  