
    In the Matter of the Application of David E. Austen, as Receiver of Taxes of the City of New York, Respondent, v. Isaac Varian, Michael Varian and Jesse Varian, as Executors, etc., of Michael Varian, Deceased, Defendants; Jesse Varian, Appellant.
    
      Taxation—fining as for a contempt an executor who fails to pay a personal tax— an appearance by attorney is' a waiver of service of an order to show cause.
    
    Where the executors of a testator, who was at the time of his death, in 1893, a resident of the city of Hew York, fail to pay a tax upon the personal estate of the testator, assessed against the executor's, for the year 1894, and it appears that on the second Monday in January, 1894, one of the executors resided in the city of Hew York, and it is not shown that the personal estate of the testator was in the hands of the other executors, w7ho resided outside of the county of Hew York, the court has power to adjudge the resident executor in contempt for a failure to pay the tax.
    Although in such a proceeding the order, that the executor' show cause why he should not be proceeded against for a contempt, is not served upon him personally, such failure will .not justify a reversal of an order made therein, adjudging him to be in contempt, where he has appeared by an attorney upon the return of the order to show cause.
    Appeal by Jesse Varian from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of April, 1896, adjudging him guilty of contempt of court for failure to pay the tax imposed upon the personal estate of Michael Varían, deceased, for the year 1894.
    
      Norman A.. lanolor, for the appellant.
    
      It. G. Monroe, for the respondent.
   Parker, J.:

The papers upon which the Special Term was required to and did make its decision, imposing a fine upon Jesse Varían equal in amount to the tax assessed against the executors of Michael Varían for the year 1894, plus the costs of the proceeding, fully justify it.

The testator was a resident of Rew 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 Varían, one of the executors, resided in the city of Rew 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.  