
    Fanny Cary, Named in the Summons and Complaint Herein as Fannie Ritter, Appellant, v. Robert Given, Jr., Respondent.
    Second Department,
    April 21, 1911.
    Tax — tax sale — failure to give notice to occupant — evidence — vacant land—burden of proof—dismissal of complaint.
    Where in an action to recover possession of land brought by one claiming title under a tax deed from the State Comptroller given in 1897, the defendant contends that no written notice was served upon the occupant of the land at the expiration of the time to redeem as required by section 14 of chapter 711 of the Laws of 1893, pursuant to which the land was sold, it is error for the court to exclude evidence offered by the plaintiff to show that the land was vacant at the expiration of the time to redeem.
    Since the. statute (Laws of 1893, chap. 711, § 11) provided that the tax. deed from the Comptroller should vest in the grantee an absolute estate in fee simple, which was not to be impaired unless there was a failure to give the prescribed notice to the occupánt of the land, the burden was on the defendant to show that there was an occupancy within the meaning of the statute so as to require a notice.
    Where the plaintiff, who gave no notice of the sale, establishes prima facie that at the expiration of the time to redeem from the tax sale there was no one occupying the land, it is error for the court to dismiss the complaint.
    It should be left to the jury to say whether or not the land was occupied within the meaning of the statute.
    Carr, J., dissented.
    Appeal by the plaintiff, Fanny Cary, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of June, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 1st day of July, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William M. Benedict, for the appellant.
    
      Walter G. Rooney, for the respondent.
   Thomas, J.:

The action,, begun in 1907, is to .recover possession of lot 50 in Flatbush, facing on Washington avenue. In the rear of such 'lot are lots 24 and 25, facing on Cedar lane. Plaintiff claims title ■ under a tax deed given by the State Comptroller to one Warmworth, dated February 25, 1897, recorded July 6, 1898. This deed was excluded upon the ground that there was no evidence of notice to the occupant of lot 50, in accordance with the provisionsjof section 14 of chapter 711 of the Laws of 1893, pursuant to which the lot was sold in December,. 1895, for. taxes levied, in 1893. j Pursuant to that act ■(§ 7), which was revised by the Tax Law (Gen. Laws, chap. 24 [Laws of 1896, chap. 908], § 127), the owner or occupant ivas entitled to redeem within one year,, which expired in December, 1896, and there-' -after, in 1897, pursuant to section 11 of the act of 1893 (as amd. by Laws of 1895, chap. 895), which was revised by section 131 of the Tax Law, the Comptroller executed the deed, which, as such section declares, “ shall vest in the grantee an absolute estate in fee simple.” But section 14 of the act of 1893, which was revised by section; 134 of the Tax Law, declares: “If any lot or separate tract of land sold for taxes by the Comptroller and conveyed, or jany part thereof, shall, at the time of the expiration of one year given for the redemption 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 within one year from the expiration of the time' to redeem, serve a written notice on the person occupying such land, either personally or by leaving the same .at .the dwelling-house of the Occupant, wjith. a person of suitable age and discretion belonging to his- family. * * "x" The notice shall state' in Substance, the sale and conveyance of the land, the person to whom -made, the amouní of consideration money mentioned in the conveyance, with thej addition of thirty-seven and one-half per centum' thereon, and ¡of the sum paid for the deed, and that unless such consideration! money and percentage with the sum paid for the deed, shall bje paid into the State treasury for the , benefit of the grantee, within six months after the time of filing ■ in the Comptroller’s office of the evidence of the service of such-notice, the conveyance shall become absolute and the' occupant and all others interested in the land be forever barred from all right or title thereto. lio conveyance made in -pursuance of this section , shall be recorded until- the expiration of the time ' mentioned in-such notice, and the evidence of the service of such notice shall be recorded with such conveyance.” The deed was excluded and the complaint dismissed, upon the ground that the notice required by section 14 had not been given. It was not given, as the plaintiff claimed that lot 50 was vacant, and that there was no occupant entitled to the notice within the terms of the statute. Section 14 defines an occupant as follows: “The term ‘occupant’ shall be-construed to mean a person who has lawfully entered upon. the land so occupied, has an actual domicile thereon, and is in possession of the same to the exclusion of every other person. And the term ‘ occupancy ’ shall mean the actual lawful and exclusive use and possession of such lands and premises by such an occupant.” Lot 50 was separately assessed, as were lots 24 and 25 in the rear. There was no house on lot 50 until one was moved thereon in 1900 at the instance of the defendant. There was a fence around lot 50, and although the witness Warmworth stated that the fence ran around lot 50 and also included lots 24 and 25, yet Mrs. Jordan, who lived in the house on the lots in the rear to about the end of the year 1896, states that there was a fence between her and Washington avenue. Mrs. Jordan’s husband at some time in 1896 occupied lot 50. Plaintiff offered and the court excluded a deed to Warmworth, dated January 20; 1893, from the comptroller, upon the sale of lot 50 to him for unpaid taxes of the year 1888,' which deed was given pursuant to chapter 427 of the Laws of 1855, recorded in September, 1895, and also excluded notice to redeem served by Warmworth on Jordan April 6, 1893, filed with the Comptroller at some time not stated in the latter’s certificate. Section 68 of chapter 427 of the Laws of 1855 provides: “No conveyance made in pursuance of this section shall be recorded until the expiration of such notice, and the evidence of the service of such notice shall be recorded with such conveyance.” There is no evidence of the record of such notice, and in the absence of the evidence of the time when the same was filed, with the Comptroller, from all that appears, the time for redemption from the first sale had not expired at the time of the trial. The first deed was offered, to. show possession in Warmworth under it, and it appears that Jordan paid Warm-worth3 two dollars for the use of lot 50, whereon the latter had a vegetable garden. Warm worth testified that there were vegetables on lot 50 up to 1895, and as. the only occupation Shown was by. Jordan, it must have peased with the yéar 1896. The .witness Schenck,. called by plaintiff, was asked as to. the condition of the lot from 1897 to 1900 or 1901, and stated that it with others was-fenced in,, and usedj practically as a garden-plot, and occupied as such prior to 1900.. However, the evidence of Warm-worth and Jordan tends to show, that such occupation was prior to 1897. Plaintiff offered to show that there, was no one in occupation of lot 50 pr in possession of it, that it was vacant and no house on it, arid that the house was moved in, 1907. This evidence was excluded. It may be that it was in some instances subject to the ohj,ection that, the answer involved a conclusion, but whether it was vacant or had a house on it was a fact, and such evidence was. admissible. Again, plaintiff, was precluded from showing the first physical occupation from 1895 .to 1900 and 1901, Although he was practically allowed to show that the only occupation was'vegetables. In any case' there was sufficierit. evidence that there was no occupancy of lot 50 at, the time of the expiration- of one year giveri for the redemption'thereof,” or thereafter to 19Ó0, and so plaintiff made . a prima facie case thatj there was not such occupancy within • the ineaning of section 14 of chapter -711 of the Laws of 1893. The notice could not be ¿iven until the deed had. been delivered in February, 1897, and at that tithe' Jordan’s occupancy .had ceased. . Moreover, the deed given by the Comptroller pursuant to. section 11 of that chapter vested an' absolute estate in fee simple, which was. not impaired unless títere was at the time when the notice was dué such occupancy, and I corisider that it was not the duty of plaintiff to show nori-dccupancy for the purpose of validating the conveyance to him, but that the burden was on defendant jfco show-that there was an occupancy within the statute which demanded that the notice should be . given. For, as already ¡stated, the deed carried a title in fee simple j defeasible upon ¡ condition of occupancy and failure to give notice. This was á condition subsequent under all principles relatin¿ to conditions, and the breach must be proved by the person asserting it. !• If. it be a. condition precedent then rio title whatever vested in the grantee under the Comptroller’s deed, and under such construction section 11 would be without force or meaning.

Therefore, it is concluded that the court erred in excluding evidence that the premises were vacant, although perhaps that evidence was first and last supplied, and in dismissing the complaint without submitting the question of occupancy to the jury, and also in imposing upon the plaintiff rather than the defendant, who gave no evidence, the burden of showing that there was no such occupancy as required that.the notice .should be given pursuant to the statute.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Hirsohberg and-Rich, JJ., concurred ; Carr, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  