[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 305 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 307 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 309 The very careful consideration, which this case has received at the hands of the justices of the Appellate Division, would render further discussion in this court unnecessary, if certain questions, arising upon the construction of statutes of this state, did not make it advisable to give final expression to our views. The opinion of Mr. Justice COCHRANE, speaking for the majority of the court below, is most elaborate and clear, and a reference to its reasoning will be profitable. The land, which the plaintiff seeks to recover the possession of, lies in the Adirondack region. It is wild, vacant, and covered by forests, and consists of some 3,750 acres. It was included in a sale of lands, held by the comptroller of the state in 1877, for unpaid state, county, town, highway and school taxes, imposed for the years from 1866 to 1870. At this sale, the lands sold were bid in for the state. The referee has found that the sale *Page 310 was illegal and void, because of defects going to the jurisdiction to assess some of the lands and to the regularity of the proceedings leading to their assessment. The affirmance of the judgment by the Appellate Division requires, only, for its conclusiveness here, that the evidence should support the referee's decision with respect to such defects. A careful review of this record leaves no doubt in my mind that there was illegality in the assessment of some of the lands of the non-residents and that there were errors in the assessment proceedings; some of which were sufficiently serious to vitiate the assessment. In the opinion of the Appellate Division, one defect, found by the referee to have invalidated the sale, is considered, at great length, upon the facts evidencing it and upon the argument made by the defendant with respect to the evidentiary strength of the facts and to their legal effect. The question was whether the trustees of school district No. 2, in the town of Harrietstown, (which town included in its territory the whole of the lands in dispute), in making an assessment, in the year 1870, had included in their list non-resident lands, lying beyond a circle drawn about the schoolhouse with a radius of three miles. About one-half of the west half of the N.E. quarter of the township in question, the premises in controversy, lay outside of such circle and, therefore, beyond the taxable limits of the school district. That these boundaries of the territorial jurisdiction of these school trustees had been enlarged was the contention of the defendant and the argument was rested upon a presumption that, pursuant to an amendment in the statutes, apparently, removing the limit upon the extent of taxable territory, which, prior thereto, was described as within a radius of three miles from the schoolhouse, the area of assessment had been increased. In fact, subsequently to the imposition of the tax in question, the boundaries were changed by formal action of the authorities; but the records, produced by the town clerk, showed no order changing them theretofore. In the absence of such a record, or of competent proof aliunde, establishing the making of such a change, it will not do to indulge in presumptions that *Page 311 such a change had been ordered, to make available the permissive terms of the amending statute. The opinion below points out that, not only, was land included in the comptroller's sale, upon which a school tax had been laid without jurisdiction in the taxing authorities, but that the owner thereof had not received the notice, which, under the provisions of the statute, (See the act to revise and consolidate the general acts relating to public instruction, chap. 555, Laws of 1864, secs. 66, 67, 68, 74, as amended by chap. 647, Laws of 1865), he was entitled to upon fixing a valuation. Without doing more than to refer to the opinion, for a fuller understanding upon this head of the discussion, it suffices to say that the defects, found by the referee to have existed in the jurisdiction to tax and in the assessment proceedings, were established by the evidence. If made out, it was no objection to their effect upon the legality of the sale in 1877, that the tax affected was but a small part of the entire amount of the unpaid taxes involved in the sale. As it is said in the opinion, they "were blended together in one sum and the property was sold and bid in by the Comptroller for an aggregate amount, without reference to the various items constituting the same." This court has held that "when the State proceeds at one time to sell land for unpaid taxes levied during a series of years, some of which are valid and others are invalid, the title of the owner against whom the sale is made is not thereby divested. By mingling good and bad together the State cannot give a valid title to the property thus assessed." (Nehasane Park Association v. Lloyd, 167 N.Y. 431, 437;People v. Hagadorn, 104 ib. 516; Cooley's Const. Lim. [6th ed.] 639.) As the opinion below suggests, if the tax sale of 1877 had been made, solely, for the particular tax discussed, no title would have passed by a conveyance thereunder.
If, upon the ground discussed, or upon any of the other grounds assigned by the referee, the tax sale of 1877 was invalid and, therefore, ineffectual to divest the owner's title to the lands sold, then the subsequent sales, as held by the comptroller in 1881 and 1885, for the non-payment of the *Page 312 taxes of other years, could not operate to vest title in the state. The finding of the referee is that, upon these latter sales, the land was "in form put up for sale, no opportunity given for bids to be made thereat, but it was immediately declared to be State property and struck off by the auctioneer to the State." The evidence is to that effect. This procedure was under the provisions of section 5 of chapter 402 of the Laws of 1881, which required the comptroller to bid in all lands belonging to the state and to reject any and all other bids therefor. I think that if the state had not acquired title under the sale of 1877, then it acquired none by the subsequent sales; for the lands were not sold at public auction to the highest bidder. (Chap. 427, Laws of 1855, secs. 41, 44.) The putting of the lands up for sale was merely an empty form and what the state, in effect, did, in causing them to be struck off to it without competition, was to appropriate them to satisfy the unpaid taxes, under the claim of an ownership acquired at the prior sale. (See Meigs v. Roberts, 42 App. Div. 290, 298.)
In this situation of affairs, with the state holding deeds from the comptroller conveying, with others, the land in controversy, the legislature passed certain acts in the year 1885, which are important for our consideration; for they evidenced a new policy of the state with respect to the Adirondack region and an intent to make its title complete to all lands lying therein, which it held deeds for, or should acquire. It is the claim of the defendant that the bringing of this action was barred by the provisions of one of those acts, for having been commenced too late, and this presents the principal question on this appeal. By the year 1885, the state possessed, or claimed title to, some 750,000 acres of unimproved, or forest, lands in the Adirondack counties, and the legislature, moved thereto by the report of a commission appointed "to investigate and report a system of forest preservation", decided to create a "forest preserve", under the control of a forest commission. Chapter 283 of the Laws of 1885 was enacted to that end and its provisions will be referred to, *Page 313 later, more fully. To supplement this legislation, it was essential that objections to the state's title, when derived through sales for non-payment of taxes, based upon jurisdictional defects, or irregularities, in the proceedings of the taxing authorities, or in the assessment proceedings, should be set at rest and the defects in title cured. For such purpose, chapter 448 of the Laws of 1885 was passed. It was entitled "An act to amend chapter 427 of the Laws of 1855, entitled `an act in relation to the collection of taxes on lands of non-residents, and to provide for the sale of such lands for unpaid taxes.'" Its provisions need not be recited at length. So far as now material, it provides that "all such conveyances that have been heretofore executed by the comptroller * * * after having been recorded for two years in the office of the clerk of the county * * * shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, * * * were regular * * *. But all such conveyances and certificates, and the taxes and tax sales on which they are based, shall be subject to cancellation, as now provided by law, on a direct application to the comptroller or an action brought before a competent court therefor, by reason of the legal payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid." The second section of the act makes its provisions applicable only to the counties included in the forest preserve and prescribes a period of six months, within which any action may be begun, or proceeding taken, or application made, "for the purpose of vacating any tax sale or any conveyance or certificate of sale made thereunder." It is this period of limitation, which the appellant insists to have been applicable to the case of the plaintiff, or of its predecessors in title; for this action was not commenced until in June, 1895. On the same day that this last act was passed, the legislature, also, passed chapter 453 of the Laws of that year; entitled "An act further to amend chapter 427 of the Laws of 1855, entitled `an act etc.'" The only portion of this chapter, material to be referred to, is contained *Page 314 in section 4 and it reads as follows: "From and after the advertisement, once a week for three successive weeks, of a list of wild, vacant or forest lands, to which the state holds title from a tax sale or otherwise, in one or more newspapers to be selected by the comptroller, published in the county in which such lands may be located, all of such wild, vacant or forest lands shall be deemed, and are hereby declared to be, in the actual possession of the comptroller of this state; and such possession shall be deemed to continue until he has been dispossessed by the judgment of a competent tribunal." This section became section 13 of chapter 711 of the Laws of 1893, and is now section 133 of the Tax Law. (L. 1896, ch. 908.) The significance of this enactment is to be traced in its language and in its connection with the prior enactment upon the same day. Considering it in the light of the previous act, it is complementary to it. It meant that, as to the wild forest lands, title to which was held by the state through tax sales, an actual possession might be vested in the comptroller of the state, which would permit of the maintenance of an action to try the title. It meant that the state would then assent to such an action being brought against that officer in a competent tribunal. Whether the previous act, (Chap. 448), which was intended to operate as a Statute of Limitations upon existing rights, included, in that aspect, such an action as this may be considered as a very doubtful question. The taxes, for which the sale in 1877 was made, included, as it has been shown, taxes, which the local authorities had no legal right to assess. What, from its language, chapter 448 proposed was to impose a period of limitation of six months from its passage for a proceeding, or an action, "for the purpose of vacating any tax sale, or any conveyance or certificate of sale made thereunder"; leaving, apparently, without limitation, the right to bring an action which is based upon "the legal payment of such taxes, or, (as here), by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid." Whatever the force of that argument, it is not necessary for us to take it up; inasmuch as the effect of the *Page 315 passage of chapter 453 was to relieve the situation in that respect, as well as in the respect that, thus far, the state had not given its consent to being sued. The title to the land was held by the state under the tax sale deeds and there was no statute, which authorized a suit to be maintained against it, or to oust it from the possession. The state's title continued thus, until December, 1894, when the comptroller acted under the provision of chapter 453, (above quoted), then contained in section 13, chapter 711 of the Laws of 1893, by advertising lists of lands, and, by virtue thereof, became vested with the actual possession of the land described in the advertised lists. This action was commenced within six months after the comptroller's advertisement. Until that time, no opportunity was afforded by law to the plaintiff, or to its predecessors in title, to attack the conveyances to the state under the tax sales, or to assert their rights in any tribunal against the state; unless, as the appellant argues, it had been competent for the plaintiff, either, to apply, under chapter 448, to the comptroller for a cancellation of the tax sales and of the conveyances thereunder, or to bring an action in ejectment against the forest commission, which chapter 283 of the Laws of 1885 had created. The appellant contends that chapter 448, as a Statute of Limitations, applied to claims against the state and, therefore, the bar had fallen, when the comptroller advertised his possession. As to the first of these alternatives, the argument rests itself upon the two decisions of this court in the cases of People v. Turner, (117 N.Y. 227; 145 ib. 451), as having decided that the remedy by way of an application to the comptroller was available. The first of the Turner cases was an action to recover penalties for cutting and conveying away trees upon lands within the forest preserve and the second of the cases was in replevin, to recover logs cut upon similar lands. The same person was defendant in each case and the title of the state was derived through the same tax sale of 1877. In both cases, defects in the proceedings for the assessment of the land were relied upon by the defendant as invalidating the title of the state and, in the first one, the *Page 316 constitutionality of chapter 448 was brought in question. The act was then held to be constitutional and to be one of limitation; while, in both decisions, the defects complained of were held to be in the nature of irregularities and not to have been jurisdictional. As to such defects, it was decided, the landowner had his remedy by the opportunity to appear before the assessors, or by an appeal to the board of supervisors, to challenge the legality and fairness of the assessment of his lands, and to be heard upon his claim for the modification, or for the vacating, of the same. But, in the opinions, it was, further, said that, after the tax had been returned to the comptroller, the act gave to the taxpayer the right to appear before that officer and, upon proof being made of the illegality of the tax and of the sale thereupon, authorized that officer to cancel the same. It was supposed that this right had existed before the passage of the act, under chapter 427 of the Laws of 1855. It is upon these latter propositions that the appellant relies and they would tend to embarrass the discussion, if they had been essential to the final disposition of the cases. They were not; inasmuch as, so far as the taxpayer's opportunity and constitutional day in court were concerned, he was given them by law, before the local boards. What had been said in the opinions in the Turner cases, as to the remedy of an application to the comptroller, was withdrawn in People ex rel. Millard v. Roberts, (151 N.Y. 540). In that case, it was considered, and so held, that the act of 1885, (Chap. 448), in amending the original act of 1855, (Chap. 427), so far as the comptroller's authority to act upon applications to cancel tax sales for illegality was concerned, had not changed the rule of law as established by the decisions. It was said that there was no intention to disturb those decisions by anything that was decided in the Turner cases. The decisions referred to, (People ex rel. Wright v. Chapin,104 N.Y. 369; People ex rel. Hamilton Park Co. v. Wemple, 139 ib. 240; People ex rel. Witte v. Roberts, 144 ib. 234), were defined as holding that "the comptroller has no power to set aside the sale upon the application of the owner, since the statute was not intended *Page 317 for his benefit, but for the benefit of the purchaser who had paid his money to the state upon the faith of a title supposed to be valid, but which turned out to be defective, or void." TheMillard case, from the opinion in which the language has been quoted, was that of an application by the owners of lands in Franklin county for a cancellation of the tax sale held in 1881, at which the state had become the purchaser, and they were held to have no standing to make the application. So far, therefore, as the decision in Turner's case lent support to the doctrine that the landowner might make his application to the comptroller for cancellation, that support was withdrawn, when the members of the court, though agreed before, came to the consideration of a case, where the point was directly presented and was fundamental. The subsequent determination in Millard's case did not, in fact, affect any rights, resting on the Turner decisions. It, simply, re-asserted the doctrine of the decisions, construing the act of 1855, in the respect discussed, upon the ground that the amendatory act of 1885 had not affected their authority, nor enlarged the relator's rights. A decision of the United States Supreme Court, in the case of Saranac L. T. Co. v.Comptroller of N.Y. (177 U.S. 318), is urged as conclusive upon the question presented and it is said that the doctrine of staredecisis should be applicable. It was, indeed, observed, in the opinion in that case, that, if constitutional, the limitation of chapter 448 had attached before the action was commenced. That action was, also, in ejectment, to recover the possession of another tract of forest land in Franklin county, and the plaintiff was defeated in the Circuit Court. The Supreme Court, to which the case was brought up, affirmed the judgment. The questions, which were stated in the opinion to be presented by the assignments of error, were two. They were whether chapter 448 was a valid and constitutional law and whether the defects in the tax sales, (which were similar to those referred to in this case), were beyond the reach of that law, if valid, under the construction given to it by the New York court. The question of when the statute began to run, as to any action which *Page 318 might be brought against the state, was not presented. It was assumed that the six months' limitation had barred such and the discussion proceeded upon the errors assigned; following and re-affirming, on the question of the constitutionality of chapter 448, the prior decision of the Federal Supreme Court in Turner v. New York, (168 U.S. 90). In each of these cases, the court, considering that there had been a difference of opinion in this court upon the question of whether the landowner's proper remedy was by direct application to the comptroller, or by action of ejectment against the comptroller, or the forest commissioners, refused to decide that question. In the later of the two cases, decided by the Federal court, the reason for the refusal was stated to be, that "the question presented was the constitutionality of the statute." As it has been shown, the landowner, complaining of the loss of his land through sales for taxes assessed without jurisdiction, was without remedy, where the state had become the purchaser, for want of a tribunal, where his complaint could be heard by the consent of the state. The doctrine of stare decisis is inapplicable. The Millard case had settled the law in this court and the precise question now presented was not involved in the decision by the Federal Supreme Court. That court did not undertake to determine whether the state had consented to be sued and it having been finally held in this court that an application to the comptroller was only available as a remedy to the purchaser at a tax sale, the question of the maintenance of an action by the owner against an officer, or representative, of the state, having for its object the recovery of the lands acquired by the state, in the absence of its express consent, was left undecided. Nor is the case ofPeople ex rel. Forest Commission v. Campbell, (152 N.Y. 51), in point. It was there decided that, where the state was aggrieved by a proceeding, in which its title to property acquired by purchase at a tax sale was canceled, the forest commission, as the representative of the state, could sue out a writ of certiorari, in the name of the state, to review the determination of the comptroller. That decision did not imply *Page 319 that the state might be sued, directly, or indirectly, in the absence of its express assent. The question was as to the powers of the agent of the state to bring an action in the name of the state, relating to the property in its custody and control.
The argument that, within the time limitation of the act of 1885, (Chap. 448), the plaintiff, or its predecessors in title, could have maintained an action of ejectment against the forest commission and, thus, have contested the validity of the state's title, is not tenable. It may be conceded that the state was in possession through the agency of its forest commission; but, nevertheless, an action of ejectment brought against the commission would be, in effect, an action against the state itself; judgment wherein would operate to deprive it of the property it had acquired by purchase. Again, the enactment of chapter 553, of the Laws of 1885, negatived the notion that the forest commission was in actual possession, as the representative of the state, or otherwise than as the execution of its powers and the performance of its duties required that it should have such. The Forest Commission Act, (Chap. 283, Laws of 1885), was entitled "An act to establish a forest commission, and to define its powers and duties, and for the preservation of forests." Section 7 provides that "all the lands now owned or which may hereafter be acquired by the State", within certain named counties, including Franklin county, "shall constitute and be known as the forest preserve." Section 8 provides that such lands shall forever be kept as wild forest lands and should not be sold, leased, or taken. Section 9 provides that "the forest commission shall have the care, custody, control andsuperintendence of the forest preserve"; with full powers and duties to protect, and to promote the growth of, the forests, to have charge of the public interests of the state, "with regard to forests and tree planting, and especially with reference to forest fires in every part of the State", and to "prescribe rules and regulations * * * affecting * * * the forest preserve." Section 11 authorizes the commissioners to bring actions in the name of the *Page 320 People to prevent injury and trespass, to prosecute actions for trespass and "to defend any actions brought against the commission, or any of its members, or subordinates, arising out of their * * * official conduct with relation to the forest preserve." In the light of these provisions, it was said inTurner's Case, (145 N.Y. at p. 461), that "the constructive possession which the state had acquired, * * * was made an actual possession by the powers and duties devolved upon the forest commission as its representative." This language, read in connection with what immediately precedes it, had reference to the question of whether the People had taken "any steps towards actual possession, after the conveyance to them of the land." Undoubtedly, the state did take actual possession of the lands, which it claimed to own, through its commission for the specified and necessary purposes of control and supervision; but it was not intended, in the opinion, to say that there was an actual possession by the commission, in the sense of an occupancy of the lands, and that fact, as to the premises in question, is negatived by the finding of the referee. But whatever the possession of the forest commission, there was no authority conferred by the act to represent the state in actions brought to deprive it of the possession of and the title to the lands. The powers of the commission, with respect to actions, brought against it and defended by it, were not so wide as to imply the right to defend an action of ejectment, brought to recover possession of the lands claimed to be owned by the plaintiff. If regarded as an occupant, an action against the commission to try the title to lands in the forest preserve, held by the state, would be, in effect, an action against the state, to which it had never consented, and its consent could not be deemed to have been given until the proceeding under chapter 453, of the Laws of 1885, or of the amendatory act of 1893, (Chap. 711, sec. 13), had been taken by its comptroller. That no action can be maintained against the government, state, or Federal, except by its consent, express and not implied, and to be found in some special statute, is elementary *Page 321 law and it is settled upon authority that where, in reality, the suit against a state officer is a suit against the state itself, it cannot be maintained. If the suit against the officer, or the agent, of a state is based upon his illegal acts, or to recover property illegally possessed by him, the rule is otherwise. (Upon these propositions, see People v. Dennison, 84 N.Y. 272, 281;Sanders v. Saxton, 182 ib. 477; Louisiana v. Jumel,107 U.S. 711; Davis v. Gray, 16 Wall. 203.) Finally, if the forest commission had that independent possession of the lands in the forest preserve, under the provisions of chapter 283, which would authorize the maintenance of such an action as this against it and a judgment for the recovery of the land in controversy from the state, then the purpose of the enactment of section 4 of chapter 453 of the Laws of 1885 would be difficult to understand. That provided for the publication of an advertisement, once a week for three weeks, by the comptroller of the state of "a list of wild, vacant or forest lands, to which the state holds title from a tax sale or otherwise"; from and after which all of such lands were declared to be "in the actual possession of the comptroller of this state" and which possession was "to continue until he has been dispossessed by the judgment of a competent tribunal." This enactment, evidently, contemplated the lands to be in the possession of the state; although that possession was manifested and exercised through the agency of the forest commission. It contemplated that no suit could be maintained to dispossess the state of the vacant forest lands, to which it held title through tax sales, and that there could be none such, until, by force of the procedure provided for, an actual possession was vested by law in the comptroller of the state. The act was intended by the legislature, beyond any reasonable doubt, to furnish a remedy to the landowner as against the state. When it was made available, by action taken by the comptroller, then would be set running the short limitation law, enacted on the same day in the passage of chapter 448, as to actions to dispossess him, or, in effect, the state, of *Page 322 the land. This gave the landowner his day in court to assert his claim of right against the state. Until that claim could be enforced by a suit against the state itself, or some representative of the state appointed to that end, in some authorized tribunal, the Statute of Limitations could not run. (See Parmenter v. State of N.Y., 135 N.Y. 154, 163.) It was not only a just provision in chapter 453, through which a landowner might have his day in court to try the state's title; it was a wise measure looking to the removal of any doubt and conflict as to that title.
However complicated the question we have been considering, through the difficulty of harmonizing legislative acts and the decisions bearing upon it, and however imperfect its discussion in this opinion, it is clear that when, in the Millard Case, (supra), we determined to adhere to the doctrine that chapter 427 of the Laws of 1855 and the amending act of chapter 448 of the Laws of 1885 did not provide a remedy to the landowner of an application to the comptroller to vacate the tax sales and deeds thereunder, he was left without any remedy for the recovery of his lands from the state's possession, until, acting under the subsequent legislation, the comptroller was vested with the possession and an action to dispossess him was permitted. The precise question we now determine is that the short limitation law of chapter 448 was not set running, as to actions by the landowner to dispossess the state of its lands, acquired through the illegal tax sales in question, until the advertisement by the comptroller in 1894.
With respect to the argument that the deeds to the plaintiff's predecessors in title were champertous and void, from the lands being, at the time, in the actual possession of the People, through the forest commission, I think that it must fail for two reasons. In the first place, as to this defense, the answer pleads an "actual possession of the People of the State of New York, claiming under a title adverse," etc. The Champerty Act, (Sec. 147, title 2, chap. 1, Part II, 1 R.S. 739), reads that "every grant of lands shall be absolutely void, if, at *Page 323 the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor." This statute does not apply to the possession of the state; for the reason that it is not a "person" within its meaning. Section 5 of the Statutory Construction Law, (Laws of 1892, chap. 677), provides that "the term person includes a corporation and a joint stock association. When used to designate a party whose property may be the subject of any offense, the term person also includes the state, or any other state, government or country which may lawfully own property in this state." It is clear, therefore, that the state could only be included as a "person", when the statute relates to any of its property, which may be the subject of an offense; not, of course, the case with the statute under consideration. If the forest commission could be regarded as in the actual possession for the state of the lands granted, there would be the same difficulty in the applicability of the statute. It is no more "a person" than is the state, within its intendment. But, in the second place, how could the forest commission be regarded as a person claiming under an adverse title? The referee has found, as a fact, that the land was not in the actual possession of any person, except as to some temporary camp sites. That the state was in actual possession, so far as it was possible, may be conceded; but that there was that actual possession by the commission, as its representative, or agent, which the law demands, (See Crary v.Goodman, 22 N.Y. 170, 173, and Dawley v. Brown, 79 ib. 390, 396), was not the fact. There was no occupancy of the premises. They were wild, vacant, forest lands, control and supervision over which the Forest Preserve Act had conferred upon the commission. It was in possession, as an agency of the state, for the purpose of executing the policy of the state, that the lands acquired by it in the Adirondack region should constitute a forest preserve; that the forests should be protected and their increase promoted, and that injuries thereto, or trespasses thereon, should be prevented.
I think that no further discussion of the questions raised *Page 324 upon this appeal is needed and that, for the reasons above given, as for others in the opinion of the Appellate Division, the judgment should be affirmed.
CULLEN, Ch. J., EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Judgment affirmed, with costs.