People ex rel. Chase v. Wemple

• Decision Date: 22 January 1895
• Citation: 144 N.Y. 478,39 N.E. 397
• Parties: PEOPLE ex rel. CHASE v. WEMPLE et al., Comptrollers.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 478

39 N.E. 397

PEOPLE ex rel. CHASE

v.WEMPLE et al., Comptrollers.

Court of Appeals of New York.

Jan. 22, 1895.

Appeal from supreme court, general term, Third department.

Writs of certiorari upon petitions of Ferdinand W. Chase to compel Frank Campbell, as successor to the office of state comptroller, and Edward Wemple, late comptroller, to review an order allowing redemption and an order refusing to vacate the redemption. From orders dismissing the writs (30 N. Y. Supp. 503 and 507), relator appeals. Affirmed.Frank E. Smith, for appellant.

G. H. Beckwith, for respondents.

FINCH, J.

Two writs of certiorari were issued upon the petition of the relator, one to review the action of the comptroller in accepting a redemption of lot 181 in the ‘Old Military Tract,’ Franklin county, and the other to review his refusal to vacate that redemption, as being beyond his official power. The redemption itself, upon the papers before Comptoller Campbell, was lawful and proper. They showed that Charlotte G. Hall was the owner of lot 181; that it had been sold for the taxes of 1871, 1877, and 1881, and bid in by the state, and then conveyed to the relator; that the lot was occupied when the time to redeem had expired, and no notice had been given to the occupant; and that notice of the application had been given to the relator, who held the tax title. Upon these facts, no reason appearing to the contrary, Comptroller Campbell acted, and permitted the redemption. The criticism now made is that the papers disclose no sufficient proof of occupation. They showed that one Kellogg, in 1878, erected on the lot a log house, and cleared and fenced about it one acre of the land; that he had ever since lived in the house and occupied the land as his home, and cultivated the ground annually, and in addition raised upon other parts of the lot hops and grain and potatoes, and cut from it hay. His occupation, continuous and permanent, and for the purpose of a home, was very different from that which we held insufficient in People v. Campbell, 143 N. Y. 335, 38 N. E. 300, where a log house was built as a hunting camp on an island, and used only at intervals and as a convenience when engaged in the pursuit of game. The occupancy proved was of such a character as to require notice to the occupant before the tax title could exclude a redemption, and the action of the comptroller was lawful and proper.

But the real difficulty about it appears in the papers on the second writ, and rested upon facts unknown to Comptroller Campbell. The application which he found on his files and granted was made to his predecessor, Wemple; was resisted by the relator; and its consideration agreed to be postponed until an ejectment suit brought by Miss Hall against...