APPLY EQUALLY WELL TO THAT OCCU- Peo. ex rel Turner vs. Kelsey, 96 A. D. 148 at 151, 3rd Dept. The cases cited by the trial court are clearly distinguishable from the case at bar. In Clark vs. Kirkland (133 A. D. 826) the land had been erroneously assessed. It had been assessed as non resident when it or a portion thereof at least should have been assessed as resident. Also there was actual cutting and skidding of logs, the building and occupancy of a shanty and many other acts of possession upon the identical lot assessed and sold, nothing of that kind is in this case. And in that case the decision in People ex rel. Keyes vs. Miller (90 A. D. 596) is commented on and approved but distinguished from the Clark case. In People ex rel Moynehan vs. Gaus (134 A. D. 801) an application was made to the Comptroller to redeem from a tax sale and upon that application affidavits were presented showing very comprehensive use of the lands and that they were part of a tract, a considerable portion of which was actually used and occupied the entire year not only for purposes of husbandry but that large sums had been expended in improving the entire property making roads through it and the affidavit further stated as a fact that the land was actually occupied at the end of the redemption period and also showed facts which were urged as justifying that statement. The Comptroller held the applicant thus showed occupancy and was entitled to redeem upon certiorari when the allegations of the affidavit used before the Comptroller were to be given full faith and credit this court held: that it would not overturn the decision of the Comptroller. But the facts and circumstances shown in that case as establishing occupancy were very much more comprehensive and showed more use as well as actual occupancy the entire year. While in the case at bar Hayes was at the cottage, which by the way was not only on another lot, but in another town, in the summer time only as guide for the Milbank's and there is no evidence of occupancy at the end of the redemption period, but evidence to the contrary. a The case of The People ex. rel Lake Placid Club vs. Williams (145 A. D. 34) was also a certiorari case when it was shown that upon the land sold one thousand dollars had been spent by the relator in clearing approaches to the lands, wood and logs cut and drawn from it, brush cleared up, roads opened to the lake and along the shores thereof, and the land cleared besides the lands were used for picnic and camping purposes, and numerous other acts of occupancy performed. Yet in that case this court was divided three to two and in Mr. Justice Houghton's dissenting opinion concurred in by Justice Swell, the Moynehan case is commended upon and distinguished. Indeed the acts alleged as showing occupancy in that case far exceeds those claimed in the case at bar. So that we see that each of the cases cited by the learned trial court as sustaining his conclusion is far from sustaining the limited acts shown in this case which are claimed as showing occupancy at the end of the redemption period, viz: December 19, 1906 (Fol. 158) December 28, 1911, (Fol. 16.1). Indeed there is no evidence that these lands on those dates or any part thereof or for that matter the camp or lot 31 in the town of Santa Clara was in use. Suppose the purchaser had on that date or within a week either way or when he received his deeds on Febrnary 14, 1907, )Fol. 143) gone to these premises for the purpose of serving a notice upon an occupant whom would he have found there or on whom might the service have been made? The evidence does not disclose. Even though the land had been used as described by 74590.40 Judge Houghton in A. D. 145 yet it would not have been the requisite uses to constitute occupancy. The acts of occupancy shown in the People ex rel Keys vs. Miller 90 A. D. 596 were more comprehensive and numerous and yet it was held in that case the requisite occupancy was not shown. But the plaintiff's right to draw in question the regularity of any of the proceedings under the 1905 tax sale has long since expired. Shepard vs. Kirsch 89 Misc. 112. The most that is claimed here is that in 1895 when a deed of these premises was given to Milbank by the Everton Lumber Company (Fol. 140) he had a surveyor (Fol. 188) go around the outer lines of the entire tract and blaze trees (which blazes had long since practically disappeared) and then post up trespass notices none of which described the land included (Fol. 385) though it is true that Milbank says description was subsequently added to these notices, but no such notice is produced, which is suspicious, and no body else but possibly Hayes, his guide, ever saw any such notice containing description, but no act of improvement or use was by him performed on these lands. While fire may have been fought on the tract and fuel for the camp on lot 31 cut it does not appear that it was upon either the 18 acre piece in the S. W. Corner of Lot 41 or the 54 acre strip along the N. end of the W. one half of Lot 49 nor on the W. one half of 49. Indeed it seems to have been a wild forest region and the only acts of Milbank was the maintenance of really a hunting camp on Lot 31 in the town of Santa Clara for use and used for camping purposes in the summer time and by himself and Hayes as his guide in the fall for hunting. While the camp may have been comfortable, the land was not cleared of trees around the camp (Fol. 203.) It was really several distinct lots all separated by well defined lines and being in two towns and on one lot—these lots are a mile square-in one town Milbank had a fishing and hunting camp which he used occasionally in the summer time and had a guide, Hayes, who resided twentyfive miles away, but for convenience staid at the camp in the summer probably so as to be at hand if needed by Milbank. But at no time was any part of these lands used, and surely these circumstances if given the most favorable inferences in favor of plaintiff do not establish actual occupancy of these lands. Even if the recording of the deeds without proof of the service of notice to alleged occupants, if any, were not authorized nevertheless the tax sales and the deeds made by the Comptroller were valid and the decree should not have set the deeds aside. All the proceedings leading up to the recording of the deeds were regular and no defect shown not cured by statute, hence the decree in any event went too far. Tax Law 131. Coleman vs. Shattuck 62 N. Y. 348. The deed to defendant of February, 1907, (Fol 143) was of two distinct parcels in separate lots and separately sold and if the record of the deed as to one of the parcels was improper without proof of notice served it was nevertheless proper as to the other parcel, and the entire record of the deed should not fail. If the court should determine that merely having a skiff landing on Lot 41 gave the S. W. 1/4 of that lot the benefit of occupancy, which we dispute, yet there is not a bit of evidence of any use of any kind of the 18 acres in S. W. corner of 41 or of lot 49, so as to give the 54 acre piece on the north end of the West one-half of that lot any occupancy whatever. The deed to the defendant of April, 1912, (Fol. 149) was of four distinct and separate parcels in separate lots and separate sales, and even if the record of the deed as to some one of these parcels were without proof of notice or other imperfection not authorized, the record as to the other parcels was good. The separate sale and the deed was of: S. W. quarter of Lot 41; N. E. quarter of Lot 49; N. W. quarter of Lot 49; S. W. quarter of Lot 49; Each of these parcels were distinct from the other parcels, were sold separately and conveyed separately, though in one instrument, and if perchance the cutting of fuel or having a skiff landing on one parcel gave it the character of occupancy, the record of the deed as to the other parcels would not be affected. It is as though four conveyances were made. The cases cited by the learned trial court have no application to the case at bar because in each of those cases a portion of the distinct parcel sold was occupied. . In this case the parcels though included in one deed were sold separately (158 to 164). It was the same as though a deed had been made of each separate parcel sold. Conse |