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Bowe v. Jenkins

23 N.Y.S. 548 Court N.Y. Gen. Term Decision date 1893-05-09 English

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p. 548
(69 Hun, 458.)
BOWE, County Treasurer, v. JENKINS.
(Supreme Court, General Term, Third Department.
May 9, 1893.)

Headnote

1. Taxation—Place of Assessment—Different Residences—Collection.
In an action to recovei a tax on personalty, assessed against defendant as a resident of A., it appeared that for many years, including the year of the assessment in question, defendant owned residences in A. and R.; that he made no distinction between them, but kept both places r .open during the entire year;- that his place of business was in A. Held), that he had two residences, within the meaning of Laws 1851, c. 176, and was properly taxed in the locality of his principal place of business.
2. Same—Repeal of Statute.
Laws 1851, c. 176, (2 Rev. St. [8th Ed.] p. 1094, § 5,) provides that ev.ery person shall be assessed for personal estate in the town in which he resides, and where he resides, during a year in which taxes are levied, in two or more “counties, towns, or wards,” his residence shall be where his principal business has been transacted. Laws 1883, c. 392, (2 Rev. St [8th Ed.] p. 1095,) entitled “An act to further define property that shall be subject to taxation,” provides (section 1) that all debts and obligations for the payment of money shall be deemed, for the purposes of taxation, personal estate, and shall be assessed in the town, village, or ward in which the owner shall reside at the time such assessment shall be made; “but nothing herein contained shall in any manner authorize the assessment of the same property in more than one place in this state in any one year.” Section 2 provides that, “when a person shall have acquired a residence in any town, village, or ward in this state, and shall have been taxed therein,” such residence shall continue, for the purposes of taxation, until he shall have acquired another residence in the state, or shall have removed therefrom. Held, that the act of 1883 did not in terms supersede that of 1851, nor was it inconsistent therewith.
3. Same.
The act of 1883 is inapplicable where one has two residences, and each in different towns.
4 Same—“Successive” Residences.
The provision óf the act of 1851 as to residing in different towns during the year for which one is taxed does not intend “successive” residences only.
5. Same—Jurisdiction of City Court of Albany.
A tax properly assessed against a resident of the city of Albany is a debt “on contract implied,” the collection of which is within the jurisdiction of the city court, under Code Civil Proc. § 3223.
Appeal from judgment on report of referee.
Action by John Bowe, as county treasurer of the county of Albany, against Charles M. Jenkins, to collect a tax on personalty assessed against defendant as a resident of Albany. Judgment' for plaintiff. Defendant appeals.
Affirmed.
The defendant resided in the city of Albany from 1850 to 1886, and was assessed for personal taxes up to 1882. He also had a house in the town of Rensselaerville from 1850 to the time of the trial, in which- he spent some part of every year, and in which his son and his son’s family, whom defendant includes in his family, have lived since 1870. Defendant has practiced law in Albany, and had an office in said city for that purpose, from 1835 to the present time. In 1882 he went to the assessors of the city of Albany, and told them he was no longer a resident of that city; that he had removed to the town of Rensselaerville; and the assessors, relying on the truthfulness of this statement, removed his name from the assessment roll for that year, and it was not again put on the roll till the year 1889. Defendant continued residing in Albany, in the same house, until 1886, "when he sold it, and moved
p. 549
to 292 Hamilton street, where he resided for one year. From Hamilton street, he moved, in 1887, to 65 Lancaster street, where he has ever since and still resides. In 1882 or 1883 he saw the assessors of Rensselaerville, and told them he had removed his residence, and became a resident of "that town, and thereafter he was assessed for personal property in that town, and ever since has been so assessed. The assessors of Albany did not know Hint he continued to live in that city, from 1SS2 to 1S86, until 1889, when they placed his name on the roll, and assessed him for personal property at 65 Lancaster street, where he 'resided. That tax remained unpaid, and to recover the amount thereof this action was brought.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Tracey & Cooper, (James F. Tracey, of counsel,) for appellant.
Mark Cohn, for respondent.

We are of the opinion that the evidence was sufficient to justify the finding of the learned referee that defendant, from 1882 down to and including 1889, (assuming he did not reside in Albany only,) had a residence in the city of Albany, and one also in the town of Rensselaerville, Albany county, and that his principal place of business was in the city of Albany. He was therefore properly taxed in 1889 for personal estate in that city, under the provisions of the act of 1850-51. It is suggested by defendant that said act was repealed or superseded by chapter 392 of the Laws of 1883. The latter act does not in terms supersede the former statute, nor is it inconsistent therewith. The act of 1883 was not intended to apply to a case like this, where one has two residences, and each in different towns. That a person may have two residences, although but one domicile, under the act of 1850-51, cannot be doubted. Bell v. Pierce, 51 N. Y. 12 ; Bartlett v. Mayor, 5 Sandf. 44 . We do not understand the act of 1850-5.1, where one resides in different towns during the year for which he is taxed, as intending only “successive” residences, as claimed by defendant. The language of the act cannot be so construed properly. The defendant, being taxable in Albany, where his principal business was carried on, was in that city properly taxed in the ward where he resided. Wilcox v. City of Rochester, 129 N. Y. 247 , 29 N. E. Rep. 99 . We agree with the view of the learned referee that the tax properly assessed against defendant in the city of Albany in 1889 may be deemed a debt “on contract implied,” and hence that the city court of Albany had jurisdiction of the action.

The judgment should be affirmed, with costs.

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