FISHERIES, GAME AND FORESTS. 447 



the proposition upon which the decision rests, would, apparently, be inconsequential. Should 

 the plaintiff, after examination, deem it important that such rulings be made I will hear counsel 

 orally on Tuesday, December 7th, at Utica; provided they do not in the meantime agree as to 

 the form of the findings. 



It is, in my judgment, very doubtful whether the court can take judicial notice of the facts 

 stated in the papers sent to me by plaintiff's counsel November 3d. I may say, however, that 

 if proved they would not change my view as to the law. The question whether they should be 

 received in evidence can be considered hereafter. A. C. C. 



SUPREME COURT, 

 Appellate Division — Third Department, 



The People of the State of New York,, 



/ 1 wo cases. 



ex rel. 1 he torest Commission, ( 



> Argued September 7, 1808. 



•JJS I Oil 



„, _ \ Decided Nov. 16, 1898. 



Erank Campbell, Comptroller. 



For prior decisions in these cases, see People ex rel. Forest Commission vs. Campbell, 82 

 Hun. 338, 152 N. Y. 51, 22 Applt. Div. 170, 156 N. Y. 64. 



Merwin, J. : The only remaining question to be considered in these cases is, what direction 

 shall be given or condition imposed by way of restitution to Benton Turner, for whose benefit 

 these proceedings are defended, for monies paid by him into the treasury of the State or laid out 

 on the premises in question. 



The cancellation of December 30, 1891, was made upon the condition that " all the taxes for 

 which the said lands were so sold, and all other taxes that are now a lien upon said land" 

 should be paid. 



It appears that on December 31, 1891, Benton Turner paid into the State Treasury the sum 

 of $9,538.21. This as indicated by the papers submitted to us on the subject of restitution was 

 made up as follows : — 



Taxes of 1866, 1867, 1868. 1869, 1870, for the non-payment of which 



the land had been sold in 1877, with interest to December 31, 189 1, . 2,128 47 



Taxes of 1861, 1862, 1863, 1864, 1865 for the nonpayment of which the 

 land had been sold at the tax sale of 1890, with interest to December 

 3 1 , 1891, 6,705 59 



Taxes of 1886, 1887, 1S88, 1889, 1 S90, with interest to December 31, 1891, 704 15 



Total, 9,538 21 



At the tax sale of 1890, above referred to, the property was bid in by the State and a 

 certificate issued to it. 



This certificate was on December 31, 1891, assigned by the Comptroller to Smith M. Weed, 

 and at the same date an assignment thereof made by Weed to Julia H. Turner. On the back 

 of this assignment as certified from the Comptroller's office, it is noted that a conveyance was 

 made to Julia H. Turner, December 29, 1892. 



