
    Town of Greece, Appellant, v. Henry H. Vick, Respondent.
    Fourth Department,
    May 6, 1908.
    Highways — penalty for failure to pay tax — burden of proof.
    A town seeking to recover the penalty imposed by section 65 of the Highway Law on persons failing to pay a highway tax under the money system, must prove that the town has changed the system of taxation from the labor to the money system, for the statute providing the penalty is not operative until the latter system is adopted.
    McLennan, P. J., dissented.
    Appeal by the plaintiff, the Town of Greece, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of said county on the 28th day of March, 1907, pursuant to an order of said County Court entered on the 28th day of March, 1907, reversing a judgment in favor of the plaintiff theretofore rendered by a justice of the peace of the town of Greece in said county, and also from the said order upon which the judgment appealed from was entered.
    This action was commenced in Justice’s Court of the town of Greece, Monroe county, in the name of the town and at the instance of John Slater, its commissioner of highways, to recover of the defendant the penalty allowed by law on the non-payment of his poll tax. On the trial had in Justice’s Court a judgment in favor of the plaintiff was rendered, and upon appeal therefrom to the County Court said judgment was reversed on the ground that the justice had no jurisdiction of the subject-matter.
    
      Arthur Warren, for the appellant.
    
      J. P. O'Connor, for the respondent.
   Spring, J.:

By section 51 of the Highway Law, §as amended by chapter 386 of the Laws of 1895 and chapter 25 of the Laws of 1900, the electors of a town may change the system of taxation for working the highways from the labor plan, long in vogue, to the money system. When this has been accomplished, the method of raising the tax is prescribed in section 53 of this law, and the assessors are required to place on the assessment roll the names of all persons liable to poll tax, and “ the board of supervisors are directed to levy a tax of one dollar on each person liable to poll tax as thus indicated.” (§ 53. )

By section 65 of this law, as amended by chapter 242 of the Laws of 1902, it is provided : “ In those towns in which the money system of taxation has been adopted, any person who is taxed a poll tax for highway purposes as provided in section fifty-three of this chapter, and who does not pay such tax in the manner and at the time prescribed by law shall be liable to a penalty of five dollars.” The penalties “ may be recovered ” by action by the overseer of the highways, or in towns where there is no such overseer by the commissioner of highways of the town, and the penalties recovered are to be expended “ by the overseer or commissioner in the same manner as commutation moneys,” and the action is probably also maintainable in the name of the town in pursuance of section 182 of the Town Law.

It will be observed, that before the defendant can be made liable for the penalty in failing to pay the poll tax assessed against him, the town must have first changed to the money system. The record on the present appeal does not show that any proof whatever was given upon that subject. This defect in the proof is distinctly raised by the defendant in the tenth ground of his motion for nonsuit, but the plaintiff even then omitted to supply the necessary proof, which it is fair to assume may have existed. I think this defect is fatal to the plaintiff’s case. (Thompson v. Smith, 2 Den. 177; Baldwins. McArthur, 17 Barb. 414.)

The action is to recover a penalty five times as large as the liability, if any existed, and the plaintiff must clearly establish a violation of the statute by the defendant. (People v. Braested, 30 App. Div. 401; People ex rel. Kane v. Sloane, 98 id. 450, 452.)

The statjite is not operative until the change in the system of taxation referred to has been adopted, and that fact is one of the essential elements in the cause of action. Mo presumptions will be indulged to enable the plaintiff to recover. (Conly v. Clay, 90 Hun, 20.)

We do not pass upon the question of the jurisdiction of the justice of the peace, or the other questions discussed by the respective counsel.

The judgment should be affirmed, with costs.

All concurred, except McLennan, P. J., who dissented upon the ground that the justice of the peace had jurisdiction and that all facts necessary to entitle the plaintiff to recover were proven.

Judgment affirmed, with costs. 
      
      Laws of 1890, chap. 568.— [Rep.
     
      
       See, also, Laws of 1905, chap. 108.— [Rep.
     
      
      
         Amd. hy Laws of 1893, chap. 412; Laws of 1898, chap. 351; Laws of 1902, chap. 156; Laws of 1908, chap. 228, and Laws of 1904, chaps. 183, 478. Since amd. by Laws of 1907, chaps. 270, 716.— [Rep.
     
      
       Laws of 1890, chap. 569.— [Rep.
     