(dissenting). Ás to the questions at issue the-evidence in this case is meager both in volume and in facts. It appears that *632in 1914 the plaintiff acquired title by deed to a farm of eighty acres situate in the town of Johnstown, Fulton county. He was “ oh the farm ” in the spring of 1916. His residence was near Ogdensburg, about 170 miles distant. Evidently he made some arrangement with his brother, George H. Witherhead, about the management of the farm and as to turning over “ rentals ” to him as owner.
George did not occupy the farm but resided elsewhere. This arrangement for management was discontinued at a date not given. The plaintiff did not return to the farm between 1917 and 1923, and did not know whether it was cultivated during that period. Except possibly as occupied at times by croppers, the farm seems to have been vacant.
In December, 1920, the farm xyas sold by the Comptroller for non-payment of taxes levied prior to the year 1916. It seems that the property was treated by the tax officials as belonging to George H. Witherhead, and notices were served on him. No attempt was made to give notice to plaintiff, who held title and was at least in constructive possession. (Wainman v. Hampton, 110 N. Y. 429.) • No one claims that the premises were occupied by George H. Witherhead. A subsequent grantee of the purchaser on the tax sale gave a mortgage on-the premises to defendant. Judgment has heretofore been entered ejecting the mortgagor from the premises.
Owners may be deprived of title by the sale of land for unpaid taxes. (Tax Law, arts. 6, 7.) But there must be substantial compliance with the procedure prescribed before the owner is completely divested of his title. He or an occupant may redeem after sale (Tax Law, § 127); and if there be actual occupancy by any person, written notice must be given to the occupant. (Id. § 134.) In the last section cited it is provided: “ * * * If the occupant does not reside in the tax district in which the real estate is situated the notice may be served by mail in the manner required by law in respect to notices of nonacceptance or nonpayment of notes or bills of exchange. Service on one joint tenant or tenant in common shall be service on all the joint tenants or tenants in common. Service on a tenant shall be service on his landlord. The term ‘ occupant ’ shall be construed to mean a person who has lawfully entered upon the land so occupied, and is in possession of the same to the exclusion of every other person. And the term ' occupancy ’ shall mean the actual lawful and exclusive use and possession of such lands and premises by such an occupant.. * *
Was • the plaintiff an occupant? He had title, had lawfully *633entered upon the farm, exercised dominion over it and no one has disputed his lawful and exclusive use and possession. There have been varying definitions of “ occupation ” and “ occupancy,” depending sometimes upon the use of the word in a statute and at other times upon the relation of the parties. The statutes concerning tax sales have changed in their requirements from time to time relative to the notice required to perfect title. (See People v. Ladew, 237 N. Y. 413, 422 et seq.) Occupation by one claiming by adverse possession has a different significance from the constructive possession and occupancy which is attributed to the holder of the legal title. (Monnot v. Murphy, 207 N. Y. 240; People v. Ladew, supra, 426.) There seems to be a distinction as to occupancy between wild forest lands and lands under cultivation. (Cf. People ex rel. Marsh v. Campbell, 67 Hun, 590; affd., 143 N. Y. 335; People ex rel. Chase v. Wemple, 144 id. 478.) The learned court below relied on the authority of People ex rel. Turner v. Kelsey (96 App. Div. 148) in determining that plaintiff was not an occupant entitled to notice. That case held that the Forest Commission was not in actual occupancy of lands so that it was entitled to redeem; and it was said that an occupant under the Tax Law must be one who has made actual and substantial improvements and has been in actual possession, as distinguished from legal possession. The lands there under consideration were wild and vacant, within the Forest Preserve. The decision was reversed on appeal (180 N. Y. 24) and it was held that the Commission was an occupant for the reason that through its employees it gave care to and exercised control over the property. Even if we assume that what was said in the decision in the Appellate Division was not disapproved but the reversal was based on a different view of the facts, and disregard the fact that the court was there speaking of wild and vacant lands — the statute then in force requiring notice to an occupant has been changed by adding provisions which have been heretofore quoted.
Early conceptions of “ occupation ” have broadened. Formerly it meant actual physical occupation. Now it may mean the possession .by right of ownership though the lands be vacant. (People v. Ladew, supra, 433.) I think the amendment made to section 134 of the Tax Law of 1896 by chapter 171 of the Laws of 1902, which has been continued in section 134 of the present Tax Law, has regard for the more liberal definition of “ occupant ” and “ occupancy,” for it assumes that the occupant may not reside in the tax district in which the real estate is situated. He could not well reside without the tax district and be in physical occupation of lands that were vacant, so some other form of occupancy must have *634been contemplated by the Legislature in providing for the giving of notice. Under the facts as they appear, I think the plaintiff was an “ occupant ” entitled to the notice the statute prescribes.
The record contains no findings signed by the court nor does there appear to have been a motion for a nonsuit or for dismissal of the complaint. It is difficult to determine upon what theory the judgment was entered. The record is too barren of essential facts to permit new findings to be made by this court. I think there should be a new trial. I favor reversal.
Hill, J., concurs.
Judgment affirmed, with costs.