
    In the Matter of the Application of Lillian V. Rourke, Appellant, for a Peremptory Writ of Mandamus against Herman A. Metz, as Comptroller of the City of New York, in the Matter of an Award for Part of Damage Parcel 61, In the Matter of the Opening of Montgomery Street in the City of Brooklyn. Bernard J. Malone, Respondent.
    Second Department,
    June 10, 1910.
    Real property—tax title—sale by State Comptroller—notice to occupant.
    A tenant at will is a person occupying land within the meaning of section 68 of chapter 427 of the Laws of 1855, requiring the grantee of land under a tax deed from the Comptroller of the State of New York to serve a written notice on any person occupying the land within two years from the expiration of the time to redeem.
    The defect in the title of one claiming under a tax deed arising from the failure to give the required notice inures to the benefit of any person interested in the land.
    
      Appeal by Lillian Y. Bourke from part of an order of the Supreme Court,. made at the Kings County Special Term and entered'in the office of the clerk of the county of Kings on the 19th day of July, 1909, modifying the report of a referee upon the determination of the title to certain awards for, parts of' damage parcel No. 61 • to “ unknown owners ” in proceedings for the opening of Montgomery street in the former city of Brooklyn.
    
      Joseph K. Field [Stephen M. Hoye with him on the brief], for the appellant.
    
      Matthew J. Wheelehan, for the respondent.
    
      Fred R. Rich, for the State of New York.
   Woodward, J. :

The report of - the referee in this proceeding awarded to the appellant the sum of $1,352.03 as her portion of an award of $3,180 made to damage parcel No. 61 tó “ unknown owners.” This report has been modified by the order' here under review, giving to the claimant Malone the sum of $682.61, which sum is to be deducted from the amount found to be due to the claimant Bourke, who brings this appeal.

It seems that Bernard J. Malone was the original owner of the fee of a portion of the premises involved in this controversy, and he claims an interest in the award upon the ground that his title, as owner of the fee, is superior to that of the claimant'Bourke, who claims under a certain tax deed from Edward Wemple, Comptroller of the State of .New York, to Lelia E. Marsh, dated November 2, 1888, and- recorded July IX, 1890, and by the said Lefia E. Marsh and husband to' Lillian Y. Ken-in, now Lillian Y. Bourke. The real controversy depends upon the validity of this tax deed. It is conceded that the premises in question were occupied in 1884, and that this occupation continued from that time down to the date when the city of New York acquired .the land in 1902; that no written notice under the Tax Law was served upon' any of the persons in possession after 'the grantees, under the -tax deeds acquired title, and for ■ these reason's the learned justice presiding at Special Term, held that ■the claimant Bourke never gained any absolute title to the land. On this appeal the claimant Bourke urges that the evidence in this case establishes that the persons who occupied the premises from 1884 to 1902 were tenants at will, under the definitions set forth in Lamed v. Hudson (60 N. Y. 102) and Wissel v. Ott (34 App. Div. 159) and that such persons being such tenants at will, were not such occupants of the premises as were contemplated by the provisions of chapter 427 of the Laws of 1855. Section 68 of the chapter cited provides that “ Whenever any lot or separate tract of land sold for taxes by the Comptroller, and conveyed as hereinbefore provided, shall, at the time of the expiration of the two years given for the redemption thereof, or any part thereof, be in the actual occupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such land, within two years from the expiration of said time to redeem,” etc. .The position of the appellant seems to be that the persons who were occupying this land as tenants at will of the grantee were not entitled to the written notice, because that would in effect be the grantee serving notice on himself. The difficulty with this proposition is that it ignores the statute. The statute says that if any part of the premises “ be in the actual occupancy of any person” the grantee must give the written notice to such occupant in order to perfect his title. It does not make any exception of tenants at will, or of any other class of occupants ; the mere fact that there are occupants of the premises calls for notice to them, and without such notice there can be no validity to the tax deed. (People v. Ladew, 189 N. Y. 355.) A tenancy at will is an estate in land (1 R. S. 722, § l; Real Prop. Law [Gen. Laws, chap. 46 ; Laws of 1896, chap. 547], § 20 ; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 30), and such an estate entitles the holder of it to at least thirty days’ notice in writing to remove from the same. (1 R. S. 745, §§ 7-9; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], §198; Real Prop. Law [Consol. Laws, chap. 50 ; Laws of 1909, chap. 52], § 228.) Such an estate has value to its holder ; he has an interest in the premises which cannot be taken away from him, even by the owner, without written notice, and we see no reason for holding that the act of 1855, with its' amendments, did not contemplate a notice to tenants at will, as well as to any other kind of tenants or occupants of lands sold for taxes. This defect arising from the failure to give the notice required by the statute inures to the benefit of O any person interested in the land (Lucas v. McEnerna, 19 Hun, 14), and the owner of the fee, whose title is attempted to be taken from him, is certainly entitled to urge a defect in the title of the claimant Rourke. We are clearly of the opinion that as between these claimants the order is proper, and that it should be affirmed.

The State of New York, through its counsel, has intervened in a brief, and urges that it has some interest in tins controversy, in that it held title to .the premises under subsequent tax deeds, 'ánd conveyed the same to the claimant Rourke, without divesting‘itself of the right to the damages awarded in the original proceeding, the title, it is claimed, being in the State at the time the cityvof New York took the premises. There is, however, the same difficulty here which prevailed in the case of the claimant Rourke; the lands were coneededly occupied at the time when these subsequent tax deeds were made, and there is nothing in the record to show that the notices.required by law were ever given to the occupants. The alleged title in the State of New York is, therefore, no better than that which the claimant Rourke asserted, and it would appear to have, no interest whatever in this controversy.

The order appealed from should be affirmed, with costs.

Hirscheerg, P. J., Jeniis, Bürb and Thomas, JJ., concurred.

■ Final order affirmed, with costs.  