123 N.Y.S. 720 | N.Y. App. Div. | 1910
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
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.