This suit arises upon application of the Communipaw Central Land Company for withdrawal of certain moneys deposited in this court as the result of condemnation proceedings affecting certain lands in the City of Newark.
The Communipaw Central Land Company claims the entire fund as owner of the premises; the City of Newark and the Port of New York Authority, its lessee, claim three-fourteenths of the fund and the heirs of Henry Frecking claim one-half of the fund.
The pertinent facts are contained in a written stipulation of facts filed herein from which it appears that Leander Stone and Henry Frecking acquired title to the premises involved by deed from Julia Kuhn and George Kuhn, her husband, dated July 1, 1874 and recorded on July 2, 1874 in Book T 17 of deeds for Essex County on page 309 etc.
On May 28, 1906 the comptroller of the City of Newark sold the premises in question to Florence E. Cahill by virtue of the provisions of L. 1886, c. 112, commonly known as the Martin Act, and issued to her a tax sale certificate therefor. Proof of service by publication of notice of the sale and of notice to redeem said land from the sale was filed in the Newark City Clerk's office. This proof consists of an affidavit dated December 11, 1906 made by Edwin L. Rall, a clerk in the office of the Newark Evening News , stating that the notice a copy of which is annexed to the affidavit was published on October 30, 1906 and for six weeks successively thereafter. Also on file is an affidavit of inquiry made by John Francis Cahill as agent of Florence E. Cahill. On August 12, 1907 the comptroller of the City of Newark executed and delivered to Florence E. Cahill a deed for said premises which was recorded on September 25, 1907 in Book V 42 of Deeds for Essex County, on page 62 etc. On September 24, 1907 Florence E. Cahill and John Francis Cahill,
her husband, conveyed said premises to Communipaw Central Land Company by deed recorded on September 25, 1907 in Book W 42 of Deeds for Essex County, on page 121 etc.
Leander Stone died on March 14, 1895 a resident of the City, County and State of New York, leaving a will probated in the New York County Surrogate's office on September 28, 1895 in and by which he gave his wife a life estate in all of his property and the remainder to seven named children. The interests of three of these children were subsequently acquired by the City of Newark and it is upon such interest or title that the City and its lessee, the Port of New York Authority, base their claim. The interests of the four remaining children are not represented herein.
John Henry Frecking died on February 23, 1901, a resident of the City, County and State of New York, leaving a will probated in the New York County Surrogate's office in which he made five certain bequests a charge upon his real estate and gave the residue of his estate to four named children. All of these interests are represented herein and claim one-half of the fund.
The claim of the Communipaw Central Land Company is based on a continuous record ownership of the property since 1907. The answering defendants claim that the title of said Communipaw Central Land Company is defective because it is based on an invalid sale by the City of Newark, and that the right to redeem was not properly foreclosed. They contend that the inquiry made by the purchaser to ascertain the address of the owner was insufficient and did not comply with the requirements of the act. They summarize their objections as follows:
(a) The affidavit of John Francis Cahill does not state that he was the agent of Florence E. Cahill, the purchaser at the tax sale, for the purpose of making inquiry as to the owners of the property.
(b) The affidavit of John Francis Cahill does not state that he, personally, made the inquiry suggested by the reference to New York City contained in the deed to Stone and Frecking, by examining the New York City directories; nor does it state that he made inquiry for the residence or post-office address of the ...