Supreme Court, December, 1914. [Vol. 88. the actual possession thereof in order to maintain the action. Neale v. Walter, 128 App. Div. 827; Whitman v. State of New York, 85 id. 468, 471. It would seem, however, that the question of possession has been finally settled in favor of the plaintiff by the cases of People v. Turner, 145 N. Y. 451; People ex rel. Forest Commission v. Campbell, 152 id. 51, 57; People ex rel. Lake Placid Co. v. Williams, 145 id. 34, 41. I do not think that Jerome Somers was either a necessary or proper party defendant to the action. That question was determined adversely to the defendant's contention in Merritt v. Smith, 50 App. Div. · 349, and I do not find that the ruling of the court in that case has been disturbed. Certainly the rights of Somers, if he had any, were not prejudiced for failure to make him a defendant and if he desired to become one he should have taken the proper steps to do so. The issue here can be decided without making Somers a party, as the title of the defendant is exactly the same as was that of Somers under his tax deed. If he were a party here no additional element of title would be involved, as the only question for decision is as to the validity and effect of the tax deed executed to him by the comptroller. Moreover, I think that under section 1638 of the Code it would be improper to make any other a party than the one or ones claiming title to the property. Coming now to the real question of the case, I am clearly of opinion that the action of the comptroller in selling the property in question, the title to which had for a long time been in the plaintiff and had become a part of the forest preserve of this state, was absolutely void and contrary to the express prohibition of the Constitution of the state and the duty of the comptroller, as provided by statute, in making Misc.] Supreme Court, December, 1914. sales of property assessed against the state. N. Y. Const., art. 7, § 7; Laws of 1900, chap. 20, § 216; Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 233), § 123; Wells v. Johnston, 171 N. Y. 324; Raquette Falls Land Co. v. International Paper Co., 41 Misc. Rep. 357; affd., 181 N. Y. 540. Moreover, it is provided by statute that in case of the sale of the lands of the state, liable to be sold at any tax sale held by the comptroller, it is his duty to bid in for the state any and all such lands Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 233), § 123. The land in question being in Herkimer county and the title to it having been acquired by the state under the provisions of the several statutes upon the subject became a part of the forest preserve. Indeed, this was not disputed upon the trial or submission of the case. See Conservation Law (Laws of 1911, chap. 646; Laws of 1912, chap. 444), § 50. Said section 50 of the Conservation Law was previously section 34 of the Forest, Fish and Game Law. As I understand the law to be, tax deeds under which the state derives title are not now open to attack in any way after they have been recorded for more than two years prior to a tax sale, as is the case here. Tax Law (Laws of 1909, chap. 62), § 132. Indeed, no attempt to attack the deeds under which the plaintiff claims title has been made. The contention that the plaintiff before bringing the action should have paid or offer to pay the amount paid by the original purchaser for the premises, or what was paid by the defendant to his grantor, is of no avail to the defendant for the reason that the action is governed by a particular statute which the courts have held to be one of law and not of equity. Besides the defendant has paid no money to the state and he has Supreme Court, December, 1914. [Vol. 88. no special interest in the amount paid by his remote grantor. But, even if the action was in equity, I am of opinion that it would not have been necessary to pay back or tender the money paid at the tax sale for the reasons already stated. Other questions were discussed by the learned counsel for the respective parties to which I do not deem it necessary to refer, as I have come to the conclusion that the sale by the comptroller was absolutely void for the reasons already pointed out. Judgment is ordered for the plaintiff in accordance with the relief demanded in the complaint, but as the parties treated the action as one in equity, and the defendant, through the action of a state officer, has met with some loss and expense in the exercise of discretion, costs are withheld. Judgment accordingly. Matter of the Will of ANTONETTA IOVINELLA, Deceased. (Supreme Court, Schenectady Trial Term, December, 1914.) - - Surrogate's Court - - when matter will be sent back to petition for probate of will when provisions of Code of Civil Procedure prior to September 1, 1914, govern - Code Civ. Pro. §§ 2537, 2538. Where on petition for the probate of a will a citation was issued before September 1, 1914, the provisions of the Code of Civil Procedure as it then stood govern, and the matter should be concluded thereunder; therefore an order of the surrogate that the trial be had at a Trial Term of the Supreme Court in the county, the contestant having demanded a jury trial under sections 2537, 2538 of the Code of Civil Procedure, is unauthorized and the matter will be sent back to the Surrogate's Court. PROCEEDING for the probate of a will. Misc.] Supreme Court, December, 1914. Henry S. Baehler, for the will. N. B. Spalding, for contestants. VAN KIRK, J. A petition for the probate of the will of the deceased was filed with the surrogate of Schenectady county and citations were issued thereon prior to September 1, 1914. I do not recall the date of the return of these citations. Either upon the return day or an adjourned day the contestants appeared and demanded a jury trial under the Surrogates' Code, title II, article 2, sections 2537, 2538. The surrogate thereupon, assuming that the Surrogates' Code applied, made an order that the trial be had at a Trial Term of the Supreme Court in Schenectady county. The proponent now objects that the case should proceed under the Code of Civil Procedure, and that the surrogate was without authority to order the case for trial in the first instance to the Supreme Court. In this contention I think he is correct. The Surrogates' Code went into effect September 1, 1914. The last section of the Surrogates' Code, 2771, provides: Nothing in this chapter shall repeal, amend or modify any existing law specially applying to any county which is inconsistent with any section of this chapter, nor in any manner affect any litigation, action or special proceeding pending at the time when this act takes effect; and such pending action or special proceeding shall proceed under the practice established, the same as though not affected by this act." The proceeding for the probate of this will was instituted in the Surrogate's Court upon the filing of the petition and was a proceeding pending in the Surrogate's Court at the time the Surrogates' Code went into effect. The repeal of the provisions of the Code of Civil Procedure applicable to Surrogates' Courts Supreme Court, December, 1914. [Vol. 88. could not nullify a proceeding instituted in the Surrogate's Court. The Surrogate's Court having acquired jurisdiction, under the provisions of the Code, then applicable, it seems to me the matter should have been concluded under the Code of Civil Procedure; and that that Code still had life extending to the completion of the pending proceeding. The matter should be sent back to the Surrogate's Court. An order will be made accordingly. Ordered accordingly. Matter of the Application of SCHENECTADY ILLUMINATING COMPANY, Plaintiff, for a Writ of Mandamus Against THE BOARD OF SUPERVISORS OF THE COUNTY OF SCHENECTADY, Respondent. (Supreme Court, Schenectady Special Term, December, 1914.) Contracts when contract made by board of supervisors illegal-when public officer guilty of misdemeanor - Penal Law, § 1868. A contract made by a board of supervisors for the necessary purchase of Mazda lamps, at their fair market value, with relator, a corporation of which a member of the board of supervisors is a stockholder, officer and director, is clearly illegal under section 1868 of the Penal Law which provides that a public officer authorized to make any contract in his official capacity, or to take part in making any such contract, who voluntarily becomes interested individually in such contract, directly or indirectly, is guilty of a misdemeanor; such contract is unenforcible because the said member of the board of supervisors had some, though not necessarily a money, interest in conflict with his duty as a public officer. APPLICATION for a peremptory writ of mandamus. Naylon & Robinson, for plaintiff. Arthur S. Golden, for respondent. |