This is a proceeding instituted under chapter 318 of the Laws of 1842 by David L. Nichols, one of the assessors of the town of New Haven, in Oswego county, to enforce the payment of taxes imposed on the appellant, Horace Wells, in that town, for personal property in the years 1864 and 1865.
That act provides that in case of the refusal or neglect of any person to pay any tax imposed on him for personal property assessed at a sum exceeding $1,000, and there shall be no goods or chattels in his possession upon which the same may be levied by distress and sale according to law, the collector of the town to whom the warrant for its collection is issued, if he has reason to believe that such party has debts, credits, choses in action or other personal property not taxed elsewhere in this State, and upon which levy cannot be made *Page 70 according to law, shall report the facts to the assessors of such town; and any assessor may thereupon, in his discretion, make application within one year to the Court of Common Pleas of the county, or to the Supreme Court, to enforce the payment of such tax. It is there declared that such refusal or neglect shall be held and deemed to be a neglect or violation of duty or misconduct within the provisions of title 13 of chapter 8 of the third part of the Revised Statutes, and the court, upon the application of an assessor, as so provided, and due proof, may proceed to enforce the payment or punish the misconduct in the same manner and with the like authority as is provided in the said above-mentioned title of the Revised Statutes, in regard to offences therein made punishable, or to the enforcing the payment of money by fine and imprisonment or either of them.
The order in question was based on an application purporting to have been made in pursuance of the law, and in the view which I have taken of the question elsewhere on this appeal, I shall assume that sufficient facts were stated in the application to call upon the court to determine whether the appellant was guilty of a neglect or violation of duty or misconduct within its provisions. It thus becomes necessary to inquire whether the court, upon that application, and the proceedings had thereon, could make an adjudication declaring him thus guilty, and for that purpose an examination of title of the Revised Statutes referred to is requisite. It is entitled: "Of proceedings as for contempts to enforce civil remedies and to protect the rights of parties in civil actions." (2 R.S., p. 534.) It provides, by section 5, that in all cases other than that specified in the fourth section (having no reference to the present), "the court shall either grant an order on the accused party to show cause at some reasonable time, to be therein specified, why he should not be punished for the alleged misconduct; or shall issue an attachment to arrest such party, and to bring him before such court, to answer for such misconduct." It will thus be seen that there are two distinct and *Page 71 different modes provided for enforcing the remedies provided by this title.
It now becomes proper to ascertain which was pursued in the case under review.
The application was based on affidavits tending to show the appellant's refusal or neglect to pay the tax imposed on him, and to bring his case within the said law of 1842; and upon a notice to him on behalf of the assessor that a motion would be made to the court at a specified time and place "for an order that an attachment as for a contempt" be issued against him for having neglected to pay the taxes in question, particularly specified in the said affidavits "and for such further or other relief" as the court might by order "think proper to grant according to chapter 318 of the Laws of the State of New York, passed in 1842."
The appellant appeared by counsel and read affidavits in opposition to the said motion, and the court on reading and filing the affidavits in favor of and against the same application, and after hearing counsel for both parties, ordered a reference to a referee to take the evidence which might be before him upon proper notice by either of the said parties, with a direction to report the evidence, and the motion was ordered to stand over till a future day; and then to be heard upon the affidavits and papers filed, and upon the evidence that might be so reported by the referee.
Evidence was taken under that order by both parties and upon the report thereof to the court, it made an order founded thereon and upon the affidavits previously produced and read, and hearing counsel thereon without any examination of the said Horace Wells, by which he was "adjudged to be guilty of a violation of his duty and misconduct, within the provisions of the statute in such case made and provided," and a fine for such misconduct was thereupon imposed on him, with a direction to take him and commit him to jail, and there detain him until the payment of the said fine. This order was erroneous.
The only question presented on this motion was, whether *Page 72 there was sufficient shown to justify or authorize the issuing of an attachment against Wells; and if there was, then one was to be issued, under which he was to be arrested and on his being brought into court, or on appearing therein in pursuance of a bond given for such appearance, the statute contains the following provision, viz.: "The court shall cause interrogatories to be filed, specifying the facts and circumstances alleged against the defendant and requiring his answer thereto; to which the defendant shall make written answers on oath, within such reasonable time as the court shall allow; the court may receive any affidavits or other proofs contradictory of the answers of the defendant on his information thereof and upon the original affidavits; such answers and such subsequent proof shall determine whether the defendant has been guilty of the misconduct alleged." (See §§ 19 and 20.) It will thus be seen that the attachment is only an initiatory proceeding and that no final adjudication can be made until there has been an examination of the party proceeded against. The remedy is given by statute and its terms must be complied with. The right is thereby secured to a party sought to be punished, to have his attention directed by interrogatories "specifying the facts and circumstances alleged" as the misconduct complained of. This specification is important. It directs the attention of the party to the specific ground of complaint, and gives him a better and fuller opportunity to answer it more satisfactorily than to meet the general allegations or statements contained in affidavits of the complainant. Chancellor WALWORTH has given such a construction to the statute.
It was held by him in McCredie v. Senior (4 Paige, 378).
The following statement covering other facts in the case is made, viz.: "The complainant applied to the vice-chancellor for an attachment against the defendants in the suit in this court for a contempt. Upon hearing the parties the vice-chancellor made an order declaring that the defendants had been and were guilty of a contempt of this court in having disobeyed and violated the order made on the eighth of September *Page 73 for an injunction." On an appeal therefrom to the chancellor, he said: "As the parties were at issue by their affidavits as to the main facts upon which the question as to the violation of the injunction depended, it was a proper case for the issuing of process to bring the defendants before the court." And then, after referring to the object to be attained thereby, and that there was not sufficient evidence before the vice-chancellor on which to found an adjudication or final decision that the defendants had been and were guilty of a contempt, he adds: "Besides, it is not the practice of the court, upon an application for an attachment, to make a final adjudication as to the guilt of the accused. The order in such a case should direct the issuing of an attachment, without any other adjudication, or should merely declare that it appears to the court that there is probable cause for issuing an attachment that the defendant may be brought before the court to answer as to the alleged contempt. The statute has pointed out the mode of proceeding to ascertain the guilt or innocence of the accused upon the return of the attachment." He then refers to the mode of proceeding by an order to show cause, as also provided by the said section (5) already mentioned; and after speaking of an order directing an attachment to be merely initiatory, he concludes by saying that the part of the order containing an adjudication that the defendants had been guilty of a contempt was erroneous, and directed it to be struck out and to have a declaration substituted that it appeared to the court that there was probable cause for issuing an attachment to bring the defendant into court to answer and be examined on interrogatories relative to the alleged contempt. This decision was made in 1834. The same practice was subsequently recognized by the chancellor, in 1842, in the case of the Albany City Bank v. Schermerhorn (9 Paige, 372); and he therein, after stating that the court, where the prosecutor proceeds by attachment, is required by statute on the party being brought into court, or voluntarily appearing therein to cause interrogatories to be filed, says: "This appears to be absolutely necessary in a proceeding by attachment, *Page 74 unless the defendant admits the alleged contempt." The same distinction, as to the different modes of proceedings, was recognized by the Court of Appeals in Pitt v. Davison (37 N Y, 235). And although an order at Special Term adjudging a party to be in contempt and directing his punishment, without filing interrogatories, was sustained, the case shows that it was made under proceedings by an order to show cause, and the objection of the principal taken to the adjudication was that it was made on the service of the order on the defendant's attorney, and not on the defendant personally. The proceeding was treated as one in the action, and the service for that reason was held sufficient.
I deem it unnecessary to add anything further than to refer again to the fact that the proceeding in the present matter was not by an order to show cause why he should be punished for the alleged misconduct charged against him, but by a notice of an application "for an order that an attachment as for a contempt" be issued against him for his neglect. There is no indication that there would be an application on that hearing for an order directing a punishment for the misconduct, without first having the right to an attachment passed on, nor if it was granted, that a final adjudication would, nevertheless, be made on the question of misconduct, without, in fact, issuing it. It is true that the notice also concludes with the general declaration that such further or other relief would be asked as the court might think proper to grant under the act in question. But under that such relief only could be properly granted as is consistent with the special application and as would seem to be determined to be called for after the answers made to such interrogatories as are required to be filed on the return of the attachment, if one was issued.
I am, therefore, brought to the conclusion that the order, both of the General Term and Special Term, should be reversed, and that one should be made declaring that there was probable ground for the issuing of an attachment and directing one to be issued. The costs on the motion at Special *Page 75 Term and the appeal to the General Term and to this court, must abide the event of the application.
For affirmance, JOHNSON, EARL and REYNOLDS, CC.
For reversal, LOTT, Ch. C., and GRAY, C.
Judgment affirmed.