been in the care, control and supervision of a superintendent employed by the said Albert J. Milbank, and since his death by the plaintiffs, who has employed one to four men each year to assist him in his duties according to the work to be done. That in the said year 1896, said superintendent and his assistants, and since 56 said date, have patrolled the said premises to keep off trespassers and poachers, planted the garden on said cleared space about said camp, set out crops, repaired and painted the buildings, acted as guides for the guests, and in the winter cleared out and repaired roads and cut out trails for walking and hunting purposes and during the winter months, said superintendent since said date has gone once a month or about that period to look after the said acmp and every year in the winter months with assistants said superintendent cut and stored ice at said camp.

56 20:—That in December, 1906, said superintendent, was so engaged, together with four assistants, for a period of about five days in cutting ice for said camp and in December, 1911, he was engaged in the same way with four assistants for there or four days. That said superintendent and his assistants fought forest fires on said premises in the year 1903 and his since then cut trails across lot 49 and posted notices on said lot and lot 41 at different points where the trails crossed the lumber road and hunting roads in addition to those posted every forty rods. That wood was cut

67 each year from 1906 for the camp's fuel on the said tract and in December, 1905, and aJnuary and February, 1906, considerable lumbering was done on Lots 41 and 49 under the direction of the said Albert J. Milbank.

21:That at all times from their purchase until the

time of his death, said lands were in the actual, lawful and exclusive use and passession of the said Albert J. Milbank and since his death, the said lands have been in the actual, lawful and exclusive use and possession

of the plaintiffs herein. 68 22:--That defendant Kellas has never entered into

the possession of the said premises, which purport to have been sold to him nor any part thereof.

23:That the taxes assessed against and owing upon said lands, other than those for which said lands were sold, have, since the respective sales, been paid by said Albert J. Milbank and by the plaintiffs herein and not by the defendant.

24:—That this action was commenced April 20th, 1914.

AS CONCLUSIONS OF LAW. 59

1:That the plaintiffs are entitled to maintain this action.

2:That the said lands sold to the defendant Kellas at the 1905 and 1910 sales, were, at the time of the expiration of the year from the dates of said sales in the actual occupancy of Albert J. Milbank within the meaning of the Tax Laws of this state.

3:—That the failure of the defendant to serve the notice to redeem specified in section 134 of the Tax Law renders null and void each of the deeds given pursuant to the 1905 and the 1910 tax sales to the defen

dant. 60

4:- That the failure of the defendant to record proofs of the service of notice to redeem from the said tax sales, with the deed, renders the record of each of said deeds a nullity.

5:—That each of the said deeds given to the defendant by the Comptroller is null and void and a cloud upon the plaintiffs' title to the lands described therein and the same should be vacated and set aside and the record thereof cancelled and discharged in the County Clerk's office of Franklin County.

Judgment is directed accordingly in favor of the plaintiffs and against the defendant, with costs.

HENRY V. BORST, J. S. C.

61

REQUESTS.

SUPREME COURT, Franklin County.

GEORGE L. NICHOLS and AL

BERT G. MILBANK, as Executors, etc,

Plaintiffs,

62

VS.

JOHN P. KELLAS,

Defendant.

The defendant requests the Court to find :

AS MATTERS OF FACT. 1st:

That in the year 1903 the assessors of the town of Duane (duly) assessed the southwest quarter of lot 41, township 12, Great Tract One, Macomb's purchase, Franklin County, mentioned in the complaint, as nonresident lands in that part of the assessment roll of said 03 town for that year devoted to the assessment of nonresident lands.

(Noted on the margin). FOUND except as to the word “duly” enclosed in brackets. H. V. B.

2nd: That in 1903 the assessors of the town of Duane (duly) assessed the west half of lot 49, Great

Tract One of McComb's purchase, in the town of Duane mentioned in the complaint, as non-resident lands in that part of the assessment roll of said town for that year, devoted to the assessment of non-resident lands.

(Noted on the margin). FOUND except as to the word “duly” enclosed in brackets. H. V. B. 04

3rd: That at the annual session of the Board of Supervisors of Franklin County for 1903 the said southwest quarter of lot 41 was (duly) assessed for $10.28 tax and said Board of Supervisors (duly) issued to the Collector of the town of Duane a tax warrant which among other things (duly) commanded the collector to collect said tax of $10.28 from said southwest quarter of said lot 41 and after (due) proceedings by the collector said tax was not paid and was by said col

lector (duly) returned to the Treasurer of Franklin 85 County unpaid and by him (duly) returned to the

Comptroller of the State of New York, unpaid, against lands and said Comptroller after (due) proceedings (duly) had sold at the tax sale (duly) held on the 9th day of December, 1905, in the City of Albany, N. Y., in (due) form of law to defendant 18 acres in a square form in the southwest corner of said southwest quarter of lot 41 for the amount of said tax and the interest thereon and the expenses of said sale chargeable thereto which sum defendant duly paid for said 18 acres, and the same not being redeemed within the time pres

cribed by law for such redemption the Comptroller of 66

the State of New York duly conveyed the same to defendant by deed dated hte 4th day of February, 1907, which was duly recorded in the Franklin County Clerk's office on March 26th, 1907, in Liber of Deeds 129 at page 591.

(Noted on margin.) Refused. H. V. B.

4th:

That at the annual session of the Board of Supervisors of Franklin County, for 1903 the said west half of lot 49, township No. 12, Great Tract One of McComb's purchase, in the town of Duane, was duly assessed for $16.30 tax and said Board of Supervisors duly issued to the collector of the town of Duane, a tax war- 67 rant which among other things commanded said collector to collect said tax of $16.30 from said west half of lot 49 and due proceedings were taken by the collector for the collection of said tax which was not paid and was by said collector duly returned to the Treasurer of the County of Franklin, unpaid, and by him returned to the Comptroller of the State of New York, unpaid against said lands and said Comptroller after due proceedings had duly sold at the tax sale duly held at the Capitol in the State of New York at Albany, on the 9th day of December, 1905, in due form of law to 68 the defendant, 54 acres to be laid out in a parallelogram form in the north end of said west half of lot 49 for the amount of said tax and interest thereon and the expense of said sale chargeable thereto, which sum defendant duly paid for said 54 acres and the same not being redeemed within the time prescribed by law for the redemption thereof, the Comptroller duly conveyed the same to the defendant by deed dated the 4th day of February, 1907, which said deed was recorded in the office of the Clerk of the County of Franklin on the 26th day of March, 1907, in Liber of Deeds No. 129 at

69