[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 64
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 65 The first of July seems to be the time fixed by law for the ascertainment of the persons liable to be assessed. (Mygatt v.Washburn, 15 N.Y., 316; Clark v. Norton, 3 Lans., 484.) Upon the evidence in this case it is my opinion that Horace Wells was at that date, in the year 1864, yet a resident of the town of New Haven, although he had gone to Oswego on the fourteenth of June for medical treatment, and had become too ill there to return to New Haven, if he had been desirous of doing so. His undoubted residence had been in New Haven, and it must be deemed to have continued there until a change is affirmatively shown, or at least until there is satisfactory evidence of the abandonment of that place as a residence. Upon the whole evidence I do not find satisfactory proof either of change or abandonment. But if this were otherwise the provisions of the second section of chapter 176 of the Laws of 1851 (page 332) would still have required his assessment for personal property for the year ending July 1, 1864, in the town of New Haven. It was in that town that his principal business, his only business, indeed, so far as the case shows, had been transacted during that year. Where that fact exists, the statute cited makes such town the proper place of taxation for personal property, though the person taxed may have had several other places of residence during the year. The ground which has now been considered is the only one presented going to the liability of Wells for the tax imposed upon him.
The remaining questions relate to the procedure, under chapter 318 of the Laws of 1842, to compel the payment of the tax. Under the first section authority is given to the assessor, in certain specified cases, to make application within a year to the Court of Common Pleas of the county, or to the Supreme Court, to enforce the payment of the tax. It is not necessary *Page 67 to state the circumstances under which the statute gives this authority to the assessor, inasmuch as their existence in this case is not disputed. The second section of the act declares that the neglect or refusal to pay such tax according to law 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 then proceeds as follows: "And the court, upon application of an assessor as herein 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 above-mentioned title of the Revised Stautes, in regard to offences therein made punishable, or to the enforcing the payment of money by fine and imprisonment, or either of them. The court is thus authorized to proceed in enforcing the payment of a tax, as courts may proceed in enforcing the payment of money under title 13 above referred to. Under that title (2 R.S., 534, 535; § 1, sub., 3 and § 4), where a rule or order of a court has been made for the payment of money and proof by affidavit is made of a personal demand of the money and a refusal to pay it, the court may issue a precept to commit the person disobeying to prison until such fine and the costs are paid. But in the absence of a personal demand, the court is to grant an order requiring the party to show cause why he should not be punished for the misconduct, or issue an attachment to arrest the party and bring him before the court to answer. (2 R.S., 536; § 5.) In the case before us the assessor gave notice of motion for an attachment or for such further or other relief as the court by order might think proper to grant, according to chapter 318 of the Laws of 1842. Upon the hearing of this motion, the affidavit of Wells, the defendant, was produced, controverting the fact of his residence in the town of New Haven, in the year 1864, and he appeared by counsel, who was heard on his behalf. The court thereupon made an order entitled "In the matter of the application of David Nichols, one of the assessors of the town of New Haven, Oswego county, to *Page 68 compel Horace Wells to pay tax assessed on personal property in 1864 and 1865," as follows: "On reading and filing the affidavits in favor of and opposed to said applications and after hearing Mr. Churchill on behalf of said application, and Mr. Bush opposed, it is ordered that it be referred to Mr. Perry as sole referee, to take the evidence which may be produced before him, upon proper notice by either of the parties herein and that he report the said evidence to this court, and that this motion stand over to an adjourned Special Term, and that the same be then heard upon the affidavits and papers now filed and upon the evidence that may be then reported by the referee to the court." Under this order the parties proceeded and a large number of witnesses were examined on both sides on the question of residence. Upon the adjourned day the court after hearing the parties, made the order complained of, adjudging Wells guilty of misconduct, imposing a fine and directing Wells' imprisonment until payment. The notice of motion having been for other relief as well as for the attachment, and the motion having been heard without objection on the part of Wells and the application having been ordered to stand over until the report of the referee of such testimony as should be produced and then to be heard, came up on that hearing as upon an order to show cause why Wells should not be compelled to pay the tax. It was obviously litigated on that basis and the party even if he might, in the first instance, have successfully objected to the form by which he was called on to appear, ought not to be allowed to do so after appearing and submitting to the jurisdiction of the court by a full litigation upon every open question involved. The order to show cause has only the effect of a notice, and after a party appears and litigates on the merits, it is too late to go back to such a defect; for the object alike of either proceeding, is to get the party into court. I do not think there was any error in the court proceeding to determine upon the merits of the application. *Page 69
A question is also raised as to the right of the court to add five per cent to the amount of the tax, besides the costs and expenses of the proceedings by the assessor, under the act of 1842. By the third section of the act the costs and expenses of the assessor are to be paid out of the fine; and the amount of the tax is also to be paid out of the fine to the county treasurer, who is to apply the same, as it was required to be applied, if it had been collected by the collector. If the law had remained unchanged, I think the objection would have been well taken. A change has, however, been effected by section 16 of chapter 455 of the Laws of 1847, which provides that whenever any town collector makes return to the county treasurer for any unpaid taxes, he shall add to the several sums so returned by him five per cent, which shall go to the credit of the county and be collected with said unpaid taxes. Since this statute, I think the additional sum of five per cent may be properly added to the fine over the assessed tax and the expenses, under the act of 1842, in accordance with the spirit of the provisions of the act of 1847 above cited. For these reasons I am of opinion that the order should be affirmed, with costs.