Opinion
April Term, 1897.
Norman A. Lawlor, for the appellant.
R.G. Monroe, for the respondent.
The papers upon which the Special Term was required to and did make its decision, imposing a fine upon Jesse Varian equal in amount to the tax assessed against the executors of Michael Varian for the year 1894, plus the costs of the proceeding, fully justify it.
The testator was a resident of New York at the time of his death in 1893; he left a personal estate of greater value than the assessed value; and on the second Monday of January, 1894, Jesse Varian, one of the executors, resided in the city of New York. The commissioners of taxes had, therefore, jurisdiction.
Two of the executors resided in Westchester, and an affidavit was presented by one of them in this proceeding, apparently for the purpose of persuading the court that the personal estate was at the time of the assessment in their possession in Westchester county. But the affidavit does not say so in terms, and we are convinced, from an attentive reading of it, that such was not the fact.
It is true that the order to show cause was not served upon this appellant, but the error is not now available to him for a reversal, because of his appearance on the return of the order by attorney. ( Matter of Nichols, 54 N.Y. 67.) The final order so recites.
Order affirmed, with ten dollars costs and printing disbursements.
VAN BRUNT, P.J., WILLIAMS, O'BRIEN and INGRAHAM, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.