In re Supplementary Proceedings for the collection of a tax of Hartshorn

Majority

p. 16

In the Matter of Supplementary Proceedings for the collection of a tax of Charles H. Hartshorn, App’lt.

Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

1. Taxes—Misnomer.

Where a person is concededly the owner of the land assessed, is the only-person bearing the name residing in the county and the only person liable, to pay the tax, he cannot claim to be misled by the addition of the letters “ est,” to his name on the roll.

2. Same—Supplemental proceedings.

The question as to the ownership of sufficient personal property to pay the tax cannot be raised for the first time on examination in supplemental proceedings. If the party wishes to raise that question he should do so by motion to set aside the order.

Appeal from an order of the county court of Steuben county denying an application made by the appellant to vacate and set .- aside an order made on the 12th day of August, 1891, appointing a receiver of the property of • the appellant; also an appeal from an order made by the county judge of said county appointing such receiver.

Daniel L. Benton, for app’lt; J. H. Stevens, for resp’t.

The affidavit of the supervisor, Henry Colgrove,. stated facts sufficient to justify the order of the county judge,, directing the appellant to appear before him for examination concerning his property. Matter of Conklin, 36 Hun, 588 .

p. 17

It cannot be claimed that the appellant was misled by the addition of the letters “ est ” to his name on the roll. He was concededly the owner of the lands assessed, and he was the only person bearing the name of Charles Hartshorn residing in the county and was the only person liable to pay the tax.

Henry R. Ranger, the assessor, testified that the list of the lands as they were- assessed was shown to Hartshorn and that he acknowledged the assessment to be correct. The ex parte application made to the county judge to vacate his order was based soley upon the original papers, upon which the order1 was granted.

The county judge denied the application; Hartshorn acquiesced in the disposition that was made of the motion, and appeared before the judge and submitted to the examination.

Hpon the hearing he sought to show that he had sufficient personal property out of which the collector could have made the tax..

The county judge correctly held that that question was not open to investigation on the hearing before him.

If that matter was to be inquired into, an independent motion should have been made to set aside the original order upon notice based upon affidavits showing the facts upon which he relied to set aside the order.

The reassessment of the tax in 1891 by the assessors could not affect the regularity of the supplemental proceedings. There does not appear to be any merit in the appeal.

The orders appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., .and Macomber, J., concur.