(78 Hun, 563.)

#### CHAPIN v. SATTERLEE. In re LESERITZ.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Taxation—Proceeding to Determine Title op Purchaser at Tax Sale.

Laws 1884, c. 107, § 13, provides that the purchaser of land at a tax sale shall, within two years from the expiration of the time to redeem, serve a notice on the occupant of the land, stating that unless the purchase money paid at the tax sale, with interest and costs, is repaid within three months, the conveyance to such purchaser shall become absolute. Section 16 provides that, within one year after the expiration of the three-months mentioned in section 13, the purchaser shall apply for an order to show cause why he should not have possession of and title to the land, hnd that unless said purchase money, with interest and costs, is paid’ within three months from the service of the order to show cause, the-court will declare the title vested in the purchaser. *Held,*that the order to show cause cannot be made returnable within three months from the time it was issued and served.

Appeal from Monroe county court.

Petition *by*William W. Chapin against Eugene H. Satterlee to* obtain possession of land purchased by him at a tax sale. The petition was dismissed, and petitioner appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BBADLEY, JJ.

H. H. Woodward, for appellant.

Eugene H. Satterlee, in pro. per.

HAIGHT, J.

On the 22d day of June, 1893, the appellant sented a petition to the county court of Monroe county, addressed to the county judge, in which he shows that in the month of August, 1890, the lands described in the petition were sold by the treasurer of that county for unpaid taxes assessed in the year 1889 to the petitioner, who paid the consideration therefor, together with the costs and expenses of such sale, as provided for by the statute; that a certificate of such sale was made by the treasurer in due form, and delivered to the petitioner, and that on the 22d day of August, 1892, the treasurer duly delivered to the petitioner a deed for the premises under his hand and seal, duly acknowledged, reciting that said land had not been redeemed within the time; required by the statute. It further appears that on the 27th day of September, 1892, the petitioner caused to be served a printed notice, in the form required by statute, on F. S. Leseritz, to whom the real estate was assessed, and on Mary Shrank, the person who was then occupying the premises, and the petition concludes with the prayer that an order be made pursuant to section 16 of chapter 107 of the Laws of 1884, requiring the owner and other persons interested in the premises to show cause why the petitioner should not have possession of and title to the premises, and for such other and further relief as he may be entitled to. Thereupon an order of the county court was issued, reciting the facts set forth in the petition, and ordered that the parties named therein, among which was the respondent, show cause before the county judge of Monroe *610county, or the special county judge thereof, within three months from the service thereof, to wit, on the 8th day of September, 1893, at 11 o’clock a. m., in the county court aforesaid, why said petitioner should not have possession of and title to said property, and why said owner, and all persons having any lien upon or interest in said lands, should not be foreclosed and forever barred and cut off from any and all right, title, or interest in said lands and prop1 erty, pursuant to the provisions of said act, and why an order to that effect should not be made by the court. This order was served upon the respondent on the day on which it was issued, and, on the return day thereof, the county court made an order dismissing the proceedings, from which this appeal was taken.

Section 16 of the act in question provides as follows:

> “See. 16. Within one year after the expiration of the three months mentioned in the notice to- be served pursuant to sections thirteen and fourteen of this act,1 the grantee, his heirs or assigns, shall make application to the county court of Monroe county for an order requiring the parties interested to show cause why he should not have possession of and title to such property; and if such property be incumbered by mortgage which is recorded, or by a judgment which is a lien thereon, or by any other recorded lien, the court shall cause a written or printed copy of said order to show cause to- be served on the person who according to the records in Monroe county clerk’s office is the owner of such property and of such mortgage, judgment or other recorded lien, stating in substance the sale and conveyance, the person to whom conveyed, the amount of the consideration money mentioned in the conveyance, together with thirty 'five per centum on said amount, and the amount paid for the deed, and for serving all orders required by this section, and that unless such consideration money together with the thirty-five per centum and the expensé of procuring the deed, and the expense of serving said orders to show cause, is paid into the treasury of said county by a person having an interest in or lien upon said lands, together with the costs allowed by the court for this proceeding, which amount shall be specified in said order, within three months from the service thereof, the court will declare the title vested in the grantee. Said order to show cause shall in every case be served upon the person who according to the records of the Monroe county clerk’s office is the owner of said property.”

As we have seen, the order was made returnable on the 8 th day of September, 1893, before the expiration of three months from the time the same was issued and served. This, we think, was not a compliance with the provisions of the statute. On reference to the above provisions it will be seen that an application may be made to the county court for an order requiring the parties interested to show cause why the petitioner should not have possession *611of and title to the property, but no time is specified in that section in which the order should be made returnable. It does provide that, in case the property be incumbered by a mortgage or by judgment or by any recorded lien, written or printed notice of the order to show cause must be served upon the person holding such mortgage, judgment, or lien, stating, in substance, the sale and conveyance to the petitioner, the amount of consideration money mentioned in the conveyance, together with 35 per centum on such amount, and the amount paid for a deed and for serving the orders required by the act, etc., and that, unless such money is paid into the treasury of the county by a person having an interest in or lien upon such land within three months from the service of the order, the court will declare the title vested in the grantee. The three months mentioned in this provision have reference to the time within which the persons interested in the premises shall pay the amount of the consideration money, with the per centum, costs, and expenses provided for by the statute. It is therefore apparent that the order cannot be made returnable within the three months from the time it was issued and served. This is made more clear by the express provisions of section 17, which provides that:

> “At any time after the expiration of the three months last aforesaid unless the premises are redeemed according to the terms and conditions of said order the county judge or special county judge may by a final order declare the absolute title in fee to the said premises vested in the grantee and that all persons having any lien upon or interest in said premises shall be from the date thereof forever barred and cut off from any and all right, title or interest in said property.”

The order should not, therefore, have been made returnable until after the expiration* of three months given to the persons named in the order to redeem.

Some confusion appears to exist in reference to whether the order should be made by the county court or by the county judge or special county judge. We think it should be made by the county court. The petition is required to be presented to the county court. The order to show cause is made by the county court, and it should be made returnable in the county court. True, section 17 provides that the order may be made by the county judge or special county judge, but, in construing this section with that which precedes it, we think it was intended that either the county judge or the special county judge may preside in the county court in which the order was made returnable. The order appealed from should be affirmed, with §10 costs and disbursements. All concur.

1

 Section 13 provides that the purchaser at a tax sale, or those claiming under him, “shall cause a written or printed notice to be served upon the person or persons occupying such land, within two years from the expiration of said time to redeem, stating in substance, the sale and conveyance, the person to whom made, and the amount .of the consideration money mentioned in the conveyance, with the addition of thirty-five per centum on such amount, and the sum paid for the deed not exceeding five dollars, and stating also that unless such consideration money and the said thirty-five per centum together with the sum paid for the deed shall be paid into the treasury for the benefit of such grantee, within three months after the time of filing in the treasurer’s office of the evidence of the service of the said notice, that the said conveyance -will become absolute.”