
    John R. Watkins and Robert R. Pritchard, as Commissioners for Loaning Certain Moneys Belonging to the United States Deposit Fund in Oneida County, New York, Respondents, v. Aaron Clough, Appellant.
    Fourth Department,
    March 13, 1907.
    
    Evidence — summary proceedings — when testimony given in prior action inadmissible -—Federal loan commissioners without power to , lease.
    The minutes of a justice of the peace taken in a prior action are not admissible, . without foundation being laid, in summary proceedings, to show what thé tenant testified to in the prior action.
    
      It seems, that since the passage of chapter .413 of the Laws of 1897 the Federal loan- commissioners are without power to lease lands, that power having passed to the Commissioners of the Land Office.
    . Appeal by the defendant, Aaron .Clough, from an order of the County Court of Oneida county, entered in the office of the clerk ' of said county on the 15th day of October, 1906, in summary proceedings to recover the possession of real property under section 2231 et seq. of the Code of Civil Procedure, with notice of an intention to bring up for review upon such appeal an order bearing date the 10th day of October, 1906, arid entered in said clerk’s office, denying the defendant’s motion for a new trial.
    
      M. H. Powers and W. J. Powers, for the appellant.
    
      Albert T. Willcinson, for the respondents. ' ' '
    
      
       Received too late for insertion in proper place.
    
   Williams, J.:

The order should be reversed, with costs.

The petitioners were the loan commissioners of Oneida county. The real property in question was a farm upon which there had. formerly been a mortgage for moneys loaned from the United States deposit fund. The mortgage had been foreclosed and the State had taken title to the property and had held it for many years. The loan commissioners had leased the property to the tenant Clough and his term • under the lease for the year 1905 expired April 1, 1906. It is claimed by petitioners that he held over and continued in possession of the leased premises after the expiration of such term without the permission of the loan commissioners. The tenant concedes that his term for the year 1905 expired April 1, 1906, and that he held over and remained in possession thereafter, but he seeks to justify his possession, jk'St, under a lease alleged to have been made to him in December, 1905, by one Brown, a loan commissioner, who died in February, 1906j second, by reason of the leasing to him by the petitioners or their ratification of the Brown lease.

These were the, questions of fact tried, •submitted to and passed upon by the jury. If the matter were dependent ujion the determination of. these questions alone, then the order should be reversed because of errors committed by the judge in the admission of evidence and in his charge to the jury. , Only one error need be referred to, the admission of the'minutes of á justice of the peace taken, on the trial of an action before him in which the. tenant Clough was a party and a witness. The minutes were not competent evidence of what Clough testified to on that trial, that is, no foundation was laid for their introduction in this proceeding. They tended to show what Clough there testified to as to the issues of fact involved in this proceeding, and may well have influenced the jury in making up their verdict. But it seems-to us that this proceeding could not be maintained at all upon the fácts as they existed. Hone of the loan commissioners had the power to make any lease of the property in question, and, therefore, the relation of landlord and tenant between the commissioners and the defendant Clough could not be created and did not exist. Laws of 1837 (Chap. 150,. § 30) provided that the loan commissioners should be seized of an estate, in fee in mortgaged premises' if there should be default, but redemption might be made. Sections 31 et seq. provided for sale of the premises under foreclosure, and section 33 that under some circumstances they should be bid in for the State and the commissioners should take possession of thém and let them for the benefit of the State until the September following, when they should be; sold. There were various amendments to this act of. 1837, not very important in this -matter, down to 1897, when all óf this act, except section 43, which is not important here, was by chapter 413 of the Laws of that year repealed, and new provisions were enacted in place thereof. Sections 90 and 91 of the latter act provided for the foreclosure of mortgages and the taking .title in the State to lands under certain circumstances, and that the commissioners under the direction of the commissioners of the land office shall continue to exercise supervision and care over such property until it is disposed of according to law.” Ho power was given the. loan commissioners, however, to lease the .premises at all. By Laws of 1898 (Chap. 360, • § .4) some amendments to section 90 of the act of 1897 were made, not important here, and it • was further provided by section 6 of the act of 1898 that all lands' bid in for and held by the State should be sold within- three years. There seems to be no provision by any statute' since 1897 authorizing the loan commissioners to lease any of the mortgage lands. By the Laws "of 1894 (Chap. 317, § 3), it was provided that the Commissioners of the Land Office should have the general care and superintendence of all State lands, the supervision of which was not vested in some officer or board, and that such Commissioners might, from time to time, lease State lands for terms not exceeding one year, and until disposed of as required by law, and' that such leases should contain proper covenants to guard against trespass and waste. This seems to give a fair statement of the condition of the statute as to those lands, the supervision thereof, and the right to lease the same. This farm in question should have been sold several years ago. While the same remained unsold, however, no one had power to lease it except the Commissioners of the Land Office. The loan commissioners, under the direction of the Commissioners of the Land Office, were to supervise and .care for it, but they could not lease it A lease could only be made by the Commissioners of the Land Office, and apparently such lease should be' in writing, because it is required to have inserted therein ■ certain covenants as to trespass and waste. If we are correct in the views here expressed,.- Clough had no lease for "the year 1906, or any year-after 1897. We have examined the statutes with some care. We may have overlooked some act- or provision, but if not, then the views'hereinbefore expressed would seem to be- correct. The relation of landlord and tenant did not exist between the loan commissioners and Clough, and this proceeding could not, therefore, be maintained to recover possession of the farm or to remove Clough therefrom. The title to the farm is in the State, and an action in ejectment brought in the name of the State would apparently, be the only remedy to recover possession' of the farm. The lease, if made by the Commissioners of the Land Office, would undoubtedly be made in the name of the State, and any summary proceeding to remove a tenant holding over after the expiration of his term would- have to be commenced in the name of the State and not the loan commissioners. A majority of the court, however, are of the opinion that we. ought not to pass upon these questions inasmuch as they were not raised on the trial and are not suggested by counsel in this court, and that it maybe doubtful if the tenant could dispute the' title and right of his lessor to maintain this proceeding.

W e, therefore, reverse the order, for errors in the reception of evidence and in the charge. - - '

All concurred.

Order reversed, with costs.  