Supreme Court, February, 1918. [Vol. 102. called upon to pay to the owners of the property $10,000, a part of the actual damage to the property by the fire, then the fire insurance companies should be entitled to recover the $10,000 from the city of Albany, the amount now held under the order of the court out of the award of the commissioners. That is, the city would pay the full amount of the compensation awarded by the commissioners, amounting to $95,000, for property which had been damaged while in the ownership and possession of these plaintiffs to the extent of $10,000; the fire insurance companies carrying the fire risks under contracts for which premiums had been duly paid being relieved from all financial obligation. The owners would be paid, the city would get $85,000 worth of property, for which it would be obliged to pay $95,000, and the fire insurance companies carrying the risks would be relieved. That does not seem to be equity. Subrogation rests on the principle of equity; it is not founded on contract; it is enforced for the purpose of accomplishing the ends of substantial justice. Resting as it does upon equitable grounds it will not be enforced against superior equities. There is no ground for just criticism of the stipulation made between the parties whereby $10,000 of the award is retained pending the determination of the question of the liability of the insurance companies under their policies, and that in the event that the companies are held liable to the amount of $10,000 then the sum thus retained should be deducted from the amount which the city should pay to the owners of the property under the award. The owners should not be paid both by the city and by the insurance companies, and the city should not pay for property which was destroyed and which Misc.] Supreme Court, February, 1918. did not exist prior to the title of the property passing to the city of Albany. Findings may be made upon which judgment may be entered in accordance with the demands of the plaintiffs in the complaint herein. Judgment accordingly. THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JOSEPH H. LADEW and JENNIE H. LADEW, Defendants. (Supreme Court, Hamilton Trial Term, February, 1918.) action in discontinuance Ejectment stipulation evidence title tax sales-adverse possession statutes. Where the conservation commission as authorized by statute directed the attorney-general to move for leave to withdraw and discontinue an action in ejectment, a motion to strike out "9 on the merits from a judgment dismissing the action entered upon the stipulation of the attorney-general will be granted. 66 The evidence in an action in ejectment brought by the people of the state to recover possession of two certain islands in Raquette lake, township 40, Totten and Crossfield's Purchase, Hamilton county, considered, and held, that as against the defendants the plaintiff, having shown title to the lands in suit under a tax deed received from the comptroller in 1875 and recorded in the county clerk's office of Hamilton county in 1877, was entitled to judgment on the grounds: 1. That defendants and their predecessor who never was in possession of said islands save as custodian for the state having admitted plaintiff's title were not at liberty now to deny it. 2. That assuming that the legal title was established in neither party the plaintiff, having shown prior possession though not sufficient in kind to ripen into title by adverse possession, will be deemed to have the better right. 3. That defendants bad in nowise connected themselves with the title. Supreme Court, February, 1918. [Vol. 102. ACTION in ejectment. Merton E. Lewis, Attorney-General, and B. H. Loucks, for People. Snyder, Cristman & Earl, for defendants. VAN KIRK, J. An action in ejectment, begun in 1914, to recover the two Osprey islands in Racquette lake, township 40, Totten and Crossfield's Purchase, Hamilton county. Two former actions were instituted in October, 1901, by the People aginst this defendant Joseph H. Ladew to recover these islands. One only of these actions was tried. 189 N. Y. 355; reargument, 190 id. 543. Before the referee, in the action tried, the plaintiff succeeded. The judgment, affirmed by the Appellate Division without opinion, was reversed by the Court of Appeals and a new trial granted, but none had. In this condition of the two cases, the parties settled and judgments were entered dismissing each of the two actions" on the merits." The affidavits presented did not justify such judgments, the order of the court did not justify them, and the facts did not justify them, but the attorney-general stipulated for judgment on the merits. There was at that time no record of a trial. The conservation commission did not consent to the judgment " on the merits." It directed the attorney-general to apply to the court for leave to withdraw and discontinue the action as authorized by section 9 of the Conservation Law (Laws of 1911, chap. 647), and by section 40, subdivision 6, of the Forest, Fish and Game Law. These settlements, in violation of the statute, disposed of lands claimed by the state. No one having authority to act in that behalf for the state had determined Misc.] Supreme Court, February, 1918. that the state did not own the islands. The state is not estopped by the unauthorized act of the attorneygeneral, or any agent. The state did not renounce title. The judgments are void. People v. Santa Clara Lumber Co., 213 N. Y. 61. The motion now made to strike out the words "on the merits" from the judgments dismissing the two former actions is granted. The cases are thus for trial. Code Civ. Pro. § 1209. The evidence at this trial is very different from that contained in the record of the former trial. It seems unnecessary to follow out the differences in detail. The evidence here establishes the following facts: By its original patent to Livingston the state conveyed its title of township 40, Totten and Crossfield's Purchase, which included these islands. At the tax sale of 1871, the state was the purchaser of said township and islands. It received its deed following this sale from the comptroller in 1875 and it was recorded in the clerk's office of Hamilton county in 1877. This deed was in proper form for record, and, when presented for that purpose, there was no evidence whether or not these islands were occupied at the expiration of the period of redemption and no evidence of service of notice upon an occupant is recorded with the conveyance. These lands were withdrawn from sale at the tax sales of 1877 and 1881, and the deeds following those sales are void. People v. Inman, 197 N. Y. 200. In 1851 and 1852 township 40 (with a few exceptions, which do not include these islands) was conveyed to Abner Benedict, from whom, by mesne conveyances, an undivided interest in this township,, including these islands, has passed to the state; the conveyances immediately to the state being a deed by W. Seward Webb and wife, May 8, 1899, and the deeds following the Golding partition in 1909, since which dates the state has owned such undivided Supreme Court, February, 1918. [Vol. 102. interest. the " Osprey islands," from a fish hawk which regularly nested there, and sometimes the "Murray islands," from "Adirondack Murray," who camped there long enough to attach his name to them. Murray was the first person who had a camp on, or in any sense occupied, the islands. He, in or about 1868, first went there and built a camp, which he occupied a part of each summer or fall till 1874, when he abandoned it. Alvah Dunning was a guide who at times worked for Murray. After Murray had built his camp, and in or about 1869, Dunning occupied the camp parts of each year during Murray's absence. Apparently he remained there winters, making it his chief camp while trapping; he had two other camps for temporary use; he raised vegetables and kept his outfit for hunting and trapping, but, until Murray abandoned the camp, he did not claim to own or have exclusive possession of the islands. After Murray's abandonment, Dunning went into permanent possession, but without any title and without any transfer from Murray or another; he then made oral claim of ownership and at times asserted his right to, and did, exclude others from the entire larger island, which contains about seventeen acres; he built an icehouse, restored the camp after it had burned, cultivated a few rods of land for a garden and harvested ice; in this manner he lived there until 1879, calling it, and making it, his home, basing his claim upon nothing else than that he had gone into possession, when no other person was there, and asserted ownership. In 1876 Verplanck Colvin, superintendent of New York State Land Survey, was at Dunning's camp. In that year, representing himself to be Dunning's attorney, he made and filed a petition, in Dunning's name, with the commissioners of the land office, in which he re The islands have been known sometimes as |