Bowe v. Jenkins

Headnote

1. Taxes—Assessment por personalty—Double residence.

Where a person has two residences, city and country, and his principal place of business is in the citv, he is taxable for personal estate in the ward of the city in which he resides.

3. Same—Laws 1850, chap. 92; 1851, chap. 176.

The acts of 1850 and 1851, in relation to the assessment of personal property, were not repealed by chap. 392, Laws 1883.

3. Same—Jurisdiction op city court in Albany.

A tax properly assessed for personal property may be deemed a debt “ on contract implied," and hence the city court of Albany has jurisdiction of an action to recover such tax from a resident of said city.

Appeal from judgment of the Albany county court, entered the of a referee.

The facts appear fully in the report of the referee, as follows :

W. L. Learned, Referee. This action was commenced in the ■city court, and after judgment was appealed to this court. It is brought to recover a personal tax levied against the defendant as a resident of the fourteenth ward in Albany in the year 1889. No question is made on the regularity of the proceedings in levying the tax or in the subsequent proceedings before the action was brought. Two questions are made: First, whether the defendant in that year was a resident of that ward, and taxable there for personal property. The other, whether the city court had jurisdiction of the action.

The defendant was born in Rensselaerville. Upon coming of the age of twenty-five, and in the year 1835, he removed to Albany to practice his profession, the law. He formed a partnership, Jenkins & Cooper, which continues to the present time, and which has always had and still has its office in Albany. For all the time ■since 1835 the defendant has practiced his profession in Albany; but of late years, since about 1882, he has done comparatively little business. Such business as he has done of late years has been principally that of old clients, many of them women, and has been to a great extent done as a matter of charity rather than of profit. The defendant was married, and had a family. For many years prior to 1882, and from that year down to the present time, he lias kept house in Albany. From 1851 till 1886 he kept house on the corner of North Pearl and Steuben, in a house belonging to him. In that year he sold that house, and hired No. 292 Hamilton street, where he kept house fór a year. He then hired No. 65 Lancaster steet, where he has kept house ever since.

About 1850 he bought some land in Rensselaerville, to which he has added by subsequent purchases. In the house on this farm he and his family have lived for part of the year every year ■since, with the exception of a year or so when he was absent from the country. He has worked the farm at his own expense through farmers. He has kept the house on the farm open all the year, and it has been occupied substantially all the time by some of his family. He has also kept open his house in Albany all the time with few exceptions, and that has been occupied also by himself and his family. It does not appear precisely what part of the time of each year he has spent in his house in Albany, and what time he has spent on his farm in Rensselaerville. But his custom in this respect seems to have been substantially the same during all the years, from the time when he first owned the Rensselaeryille farm down to the present time.

It is admitted by the defendant that down to the year 1882 he was a resident of Albany; and it is shown that down to that year he was assessed for personal property and paid taxes there.

In the year 1882 the defendant desired to change his residence from Albany to Rensseláerville. To accomplish that purpose he informed the-assessors of Albany-in that year that'he had made such change, and that he was no longer taxable for personal property in Albany. ; Relying on that statement those assessors took off his personal assessment, and that assessment was not again, pub -on in Albany until 1889. The defendant about that time also had an interview with an assessor in Rensseláervil le, the result of which was that the assessors óf that town did assess' him for personal property, and have continued to do so in each year dowii to the present time. It appears further, that’in signing wills as a witness, and in executing instruments since that' time, the defendant-has (with perhaps one exception) described himself as a resident of Rensseláerville. From that time also the defendant voted every year (with some unimportant exceptions) at Rensseláerville, and never afterwards voted at Albany; where, prior to'1882, he had always voted. These are the acts which are urged as forming a change of residence. Undoubtedlythe defendant states truly that he intended at that time to make a charige of his residence from Albany to Rensseláerville. His mode of life,'however, underwent no change at that time. He states that from that time he occupied his Rensseláerville farm as his principal residence. But that evidently means only the mental intention with which he regarded it, because there was no actual change in his manner of life. He lived in his Albany house for a part'of the year as he had before done, and on his Rensseláerville farm for the other part. ' His family, or some of them, including grandchildren, were with him in. each place. His grandchildren went to school in Albany; he had his law office in'Albany as before, and he had his farm in Rensseláerville which he worked through a farmer. He states that he derived little or no profit from the farm except the support which his family may have obtained from it His law books remained and remain in Albany, though he has allowed other lawyers to use them. About half of his miscellaneous library is in his house in Albany, and half in his Rensseláerville house. Each of the houses is well provided with ‘furniture. When he went from his house in Albany to his house in the-country he was accustomed not to shut up the former, but to leave it in care of servants.

In 1889 the assessors of Albany, believing that the defendant had never really changed his residence and that he still resided in Albany, assessed him for $5,000, personal property, in the Fourteenth ward, within which is No. 65 Lancaster street. The. tax thereon is '$100. The interest collectible is thirty-seven dollars and fifty cents; and for this total of $137.50 this action is brought.

The important question, then, is, whether the deféndant did, in 1882, accomplish his intention of' making an actual change of residence. It is evident that if by the intention and by the acts

above -mentioned such change was effected, .it -might have been effected in a similar manner long prior to the year 1882. For the defendant lived and did business in the same way in that year and in subsequent years as he had done for many years before. The description of himself as of Rensselaerville in instruments and as a witness may be considered as evidence of his intent. The voting in Rensselaerville is also evidence of intent. Such acts and statements are often important to qualify some change in a place of abode and to show the intent with which such change is made. Jacobs on Domicil, § 451, etc. For instance, when a man removes from one place to another he may do so either as a temporary matter or as a permanent change. Then such statements and the act of voting may tend to explain his intent. For it is well known that a man may for a long time live at a place other than his legal residence and jet not lose such residence. Dupuy v. Wurtz, 53 N. Y., 556 . Such matters as have been mentioned above are, therefore, rather proof of intent than proof of an actual change.

When a residence in some place is once shown, the presumption is that it continues until there is proof that the person has actually changed his residence. The defendant had for some thirty years before 1882 been unquestionably a resident of Albany. Such residence must be presumed to continue until a change is shown. This is not only a common law principle, but it is established by statute in regard to taxation. Section 2, chapter 392, Laws of 1883, declares that “ when a person has acquired a residence in any town, village or ward in this state and shall have been taxed therein, such residence shall be presumed to continue for the purpose of taxation until he shall have acquired another residence in said state or shall have removed therefrom.” How, the defendant had acquired a residence in Albany and had been taxed therein prior to 1882. His residence there in Albany is presumed to continue until he shall have acquired another residence in said state. And the inquiry must be, whether after 1882 the defendant did acquire such other residence. The statute contemplates some act of the person by which he may subsequently acquire •a new residence in the state or may remove from the state. Thus it plainly has in view some act which is as unmistakable as a removal from the state would be, some open and manifest change of the mode of life. How, certainly, as a general rule, a person does not gain a new residence except by some change in the place of his abode, accompanied by an intent to acquire such new residence. Jacobs on Domicil, §§ 125, 126 and 127.

A change of abode, without such intent, is generally insufficient ; and a general intent without actual change is equally insufficient.

In the present case the defendant evidently made no change, except to tell the assessors of Albany that he was no longer a resident of that city, and to inform the assessors of Rensselaerville that he had become a resident of that town, and, further, to describe himself in papers as of Rensselaerville and to vote there; but, in fact, his -inode of residence continued exactly the same,

and he could the next year in the same manner have declared himself once more a resident of Albany, and could thus have vibrated back and-forth year after year as his annual inclination might prompt.

The defendant urges that in 1882 he did all he could to change his residence. Far from it. If he had wished to change his residence effectually, he should have given up his Albany house, selling or renting it as he might have chosen, but not keeping house in Albany at all, and, therefore, not enjoying those rights and conveniences which a resident of the city has.

So far as I know, the word domicil, though of frequent use in law books, is not used in our statutes. They use the word residence, and thus it happens that that word "has in different statutes different meanings. Residence, when required for the purpose of holding office, has been held to be equivalent to domicil. People v. Platt, 50 Hun, 454 ; 20 St. Rep., 249 ; Silvey v. Lindsay, 107 N. Y., 55 ; 11 St. Rep., 185 ; Isham v. Gibbons, 1 Brad., 69 .

Sometimes, however, the word residence is used in a more general sense, as where it is said that a man may have two residences but can have only one “ domicil.” Douglas v. Mayor, 2 Duer, 110 ; People ex rel. Lawrence v. Tax Com., Dec., 1891, Sup. Ct., Sp. T., New York Law Journal.

How, it was in recognition of the fact that many persons during the year have two residences (in that looser meaning of ihe word) that the statute of 1850, chap. 92, and that of 1851, chap. 176, provided that if a person possessed of such personal estate-should reside during the year in which taxes may be levied in two or more counties, towns or wards, his residence, for the purposes and within the meaning of this section, shall be deemed and held to be in the county, town or ward in which his principal business shall have been transacted. Admitting, for the sake of argument, that in a case like that of the defendant he may choose which of his residences shall be his domicil for the purpose of voting and holding office, he is not allowed to make-such choice in respect to taxation. The statute settles that matter for him, and settles it in a just and reasonable manner. In the present case it is plain that the defendant has all along, from before 1882 and down to and including 1889 (if he did not reside in Albany only), had two residences in two towns, viz., the town of Rensselaerville and the city of Albany. The question, then, is, where was his principal business transacted ? Certainly in Albany. His business was that of a lawyer, and that business was transacted in Albany. See People ex rel. Lawrence v. Tax Com., ut supra.

The defendant claims that he was in the business of cultivating his farm. But that was not in accurate language his business. It was not carried on for profit, and was done not by defendant, personally, but through farmers. People ex rel. Taylor v. Commissioner of Taxes, 18 St. Rep., 748 .

The defendant urges that the provisions of the laws of 1850' and 1851 are repealed by the law of 1883, chap. 392, above-

cited. The title of that chapter explains its object: “To further define property that shall be subject to taxation.” The object is to make debts and obligations owing to persons residing in the state subject to taxation, “ wherever such securities shall he held It was not intended to change the rule for determining the residence for taxation of the holder, and there is nothing which has that effect. It declares that the property described shall be taxable in the town, village or ward in which the owner shall reside. This is the rule as to all personal property. And the statutes of 1850 and 1851 declare that when the person has two residences, then, for the purpose of taxation, that residence where he has his principal place of business shall be deemed his residence.

If § 2 of the statute of 1883 is urged as establishing the defendant’s residence for taxation at Rensselaerville, the argument goes too far. For it .establishes his previous residence for taxation at Albany, and, therefore, defeats his claim, as has been above stated.

The object of the statutes of 1850. and 1851, above cited, is plain. A man has a residence in a city and does business there. He also has a residence in the country or by the seaside, where he spends his summer. How, as he has the benefit of the city in the way of business, social life, education and the like, it is unreasonable that he should escape the necessary burden by reason of his summer migration, or by calling himself a resident of the country, and by notifying the country assessors that they may consider him such a resident. Therefore, the statute has declared, however it may be for other purposes, that for the purpose of taxation he shall be deemed to be a resident where his business is.

But it is further urged that as the defendant’s law office was in the sixth ward he was not taxable in the fourteenth, where his residence was. A careful reading of the section will show that there is no force in this. The case provided for is when a man resides in “two or more counties, towns or wards.” In the present case the defendant had a residence in two towns. Then the statutes say his residence for taxation shall be deemed to be in that county, town or ward in which, etc. That is, if his residence is in two towns, he is taxable in that town in which his business is. If his residence is in two counties, then in that county in which his business is. If in two wards, then -in that ward in which his business is. That rule decides that defendant is taxable in Albany. Being taxable in Albany, he must be taxed where his Albany residence is; that is, in the fourteenth ward. Se decides Wilcox v. Rochester, 129 N. Y., 247 ; 41 St. Rep., 511 .

In brief,' the view most favorable to defendant is that whether or not he succeeded in changing his domicil in 1882, he had two residences, in the loose meaning of the word, in the year 1889. That he was taxable in that residence where his principal business was transacted, and that was Albany.

An examination of the Massachusetts cases shows that they give little aid in determining this question. Ho such provision is passed upon as that contained in our statute relative to two residences in one year.

A point is made that the city court had no jurisdiction. Taxes ■duly assessed are personal liabilities, -as has been often- said in our-decisions, They cannot be- said to-arise on tort. They must be considered as debts on contract implied. While not strictly judgments, they are in the nature of a judgment.' Matter of Lewis, 81 N. Y., 421 ; Stimsonv. Wrigley, 86 id., 332; Litchfield v. Vernon, 41 id., 135.

I am of'the opinion, therefore, that the city court had-jurisdiction and that plaintiff should recover.