Paddock v. Guyder

Hardin, P. J. By the order from which the appeal is taken it appears that “the defendant, having produced in court and offered to use the assessment roll of said town upon said motion in support of the regularity of said warrant, to which the plaintiff objected because a copy of the same had not been served with the moving papers,” that the court overruled the objection, and permitted the same to be used. We think this was contrary to the general rule of practice, which allows only papers to be used on a motion which have been served. The order appealed from contains the further clause, viz.: “It is ordered that this action be, and the same hereby is, abated, and that the process and proceedings issued and instituted by and in behalf of the plaintiff therein, together with all proceedings taken thereunder, (except the undertaking given on behalf of the plaintiff in said action,) be, and the same are hereby, set-aside as irregular and void, and that said plaintiff forthwith return to said defendant the goods and property in said action replevied and taken from said defendant, as provided in said undertaking, or account for the value thereof, upon the grounds, amongst others, that the warrant and proceedings under which said defendant proceeded to take the property in question for the tax assessed against said plaintiff being regular and lawful upon their face, no defects therein being indicated, this action will not lie.” We think the provisions which we have just quoted are too broad. In section 1690 of the Code of Civil Procedure it is provided that “an action to recover a chattel cannot be maintained in either of the following cases: (1) Where the chattel was-taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment, or fine, issued in pursuance of a statute of a state, or of the United States, unless the taking was or the detention is unlawful, as specified in section 1695 of this act. ” In subdivision 4, § 1695, it is provided that the affidavit must state that the property sought to be replevied has not been taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment, or fine; or, if it has been taken under color of such a warrant, either that the taking was unlawful by reason of the defects “in the process or other causes specified, or that the detention is unlawful by reason of facts specified* which have subsequently occurred.” [907] The position taken by the plaintiff is that, although the property was “taken under color of such a warrant, * * * that the taking was unlawful by reason of * * * causes specified” in the affidavit accompanying the requisition to the sheriff. In the affidavit it is specified and alleged that “this plaintiff is not a resident of said town of [Bibridge,] and has not been for the last two years, but is a resident of the city of Syracuse, and has been for all of said time.” It is further alleged in the affidavit that the seizure was unlawful, and that the detention was unlawful on the part of the collector to compel payment of a tax assessed and levied against the plaintiff’s personal property “as a resident of the town of Elbridge.” Whether the specification was sufficiently definite and certain to be a full compliance with the provisions of section 1695 of the Code of Civil Procedure need not now be determined. If the affidavit was irregular in that respect, such objection ought to have been taken promptly. It was not taken until the defendant’s time to answer had expired. 4 Wait, Pr. 632, and cases there cited. Besides, the notice of motion does not specify accurately and closely an irregularity in the affidavit in stating the “causes” or reasons why the taking was unlawful. Buie 37 provides as follows, viz.: “When the motion is for irregularity, the notice or order shall specify the irregularity complained of.” People v. Albany Common Pleas, 7 Wend. 485, arose under a provision of the Revised Statutes “that no replevin shall lie * * * for the collection of any tax, assessment, or fine in pursuance of any statute of this state.” 2 Rev. St. 522; Id. (4th Ed.) 765. In the statute from which the quotation has just been made there is no exception to the limit of replevin, as found in the provisions of the Code to which we have already referred. It was required by section 207 of the Code of Procedure that the affidavit made by the plaintiff should show that the plaintiff was the owner of the property claimed, and (subdivision 4) “that the same has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.”—thus substantially following the provisions of the Revised Statutes; and it was held in O'Reilly v. Good, 42 Barb. 521, that “where property has been improperly taken out of the hands of the party in possession, in an action in the nature of replevin, the remedy of such party is to move to set aside the proceedings to obtain an immediate delivery,—the affidavit for obtaining a delivery, and the requisition indorsed thereon, being in the nature of process.” That case followed the rule laid down in People v. Albany Common Pleas, 7 Wend. 485. However, in that case, the court only set aside “the plaintiff’s proceedings to obtain the immediate delivery of the property.” The pendency of the action was not determined, nor was it declared abated. Whether this action can be maintained or not, and whether the case falls within the exception found in section 1695 of the Code of Civil Procedure, are questions which need not be determined on this appeal. We think the learned counsel for the respondent'is in error in supposing that the determination of the assessors of the town of Elbridge in respect to the residence of the plaintiff was conclusive. . In Dorn v. Backer, 61 N. Y. 263, which was a case where there was a controversy in respect to the residence of a party, and the jurisdiction of the assessors was brought in question, Reynolds, G., said: “If they did decide that he was a resident, their decision is open to review.- Ordinarily, a man in his right mind is supposed to know where he resides. * * * The decision of the assessors upon the question, as we have seen, is not conclusive.” In Mygatt v. Washburn, 15 N. Y. 316, it was held that assessors have no jurisdiction to assess a person for the personal estate owned by him, unless he be a resident of the town in which they are officers. This case was approved and followed in Dorwin v. Strickland, 57 N. Y. 492. The case of Tool Co. v. Smith, 32 Hun, 121, did not involve a question of jurisdiction. There had been an omission of the [908] dollar sign before the figures relating to the amount of taxes, and, notwithstanding that omission, it was held the tax was “regular and sufficient;” and the position taken hy the plaintiff in the case before us was not considered by the court in the'determination of that case. Defendant in his notice of motion, in addition to asking to set aside the proceedings taken by the plaintiff, “asked for such other and further rélief as may be just, and for the costs of the motion.” As we have already stated, the defendant was in default at the time the motion was heard. We may assume that it was proper that leave should be granted to him to serve an answer upon the usual terms. We think the order of the special term should be reversed, with $10 costs and disbursements, and leave given to the defendant to answer in 20 days upon payment of $10 costs of the motion, and the costs upon an appeal. Order reversed, with $10 costs and disbursements, and leave given to the defendant to answer in 20 days upon payment of $10 costs of the motion, and the costs allowed on this appeal. All concur.