People ex rel. Lorillard v. Barker — 54 N.Y. St. Rep. 107

Majority

p. 107

The People ex rel. Louis L. Lorillard, Resp’t, v. Edward T. Barker et al., App’lts.

(Supreme Court, General Term, First Department,

Filed June 30, 1893.)

Headnote

Taxes—Personae property—Residence.

A person ivho resides the greater part of the year in a house owned by him in another state, where lie votes and is taxed; who lias no money invested in business in this state, and only spends a few of the winter months here in a hired house, is not a resident of this state within the meaning of chapter 302, Laws 1888, and cannot he taxed for personal property here.

Appeal from order of special term setting aside assessment for personal taxation for the year 1891.

The relator was bom in the city of New York, where he resided until 1887. lie then moved to Newport, 11 I., where he has since lived from April to December of each year, in a house owned by him. The balance of the year, i. <?., from December to April, he spends with his family in Now York city, in a house hired for the purpose, and where he was at the time of the assessment in question.

The following is the opinion at special term :

To justify the respondents in imposing a tax it must appear that on the Tuesday after the first Monday of January, in the year 1891, the relator was a resident of this state. If he was not sucli a resident at that time the action of the respondents in taxing his personal property was unauthorized. The more fact that the relator was in the city of New York at the time mentioned would not justify the respondents in their action, unless he was then a resident of the state. It is the policy of the law to tax personal property at the place of the owner’s residence; and by chapter 892 of the Laws of 1888 it is provided that all debts and obligations for the payment of money due or owing to persons residing in this state, however secured or wherever secured, shall be deemed, for the purposes of taxation, personal estate within this state. This provision, however, applies only to persons residing in this state; and by the Be vised Statutes in relation to the taxation upon property it is provided “that every person

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shall be assessed in the town or ward where he resides when the assessment is made for all personal estate owned by him.” 1 R. S., 389, § 5. The only provision for the taxation of personal property in this state, owned by non-residents, is that taxing property employed in business within this state, and the relator has no money invested in business in this state.

William H. Clark (G. S. Coleman, of counsel), for app’lts : Platt & Bowers (J. M. Bowers and L. G. Reed, of counsel), for resp’t.

The simple question is whether this relator is a resident within this state, within the meaning of the provisions of the statute, before referred to. The testimony taken in this proceeding, I think, clearly shows that the relator was not a resident =of this state at the time this taxation was imposed. The relator is taxed upon his personal estate in Rhode Island, and has been so taxed for six years. He votes in the city of Newport, state of Rhode Island, and he spends a part of the winter in New York, but that cannot be said to be his residence. To hold this relator liable for taxation in New York would be to tax his personal estate both in New York and Rhode Island, which would be double taxation, and is opposed to the principle established in the case of People ex rel. Darrow v. Coleman, 119 N. Y., 137 ; 28 St. Rep., 937 . I do not think the case of People v. Tax Commissioners, 42 St. Rep., 449 , applies, for the question there determined was not whether Mr. Day was a resident of this state, or not, and it was-not there decided that a person residing in the state of Rhode Island can be taxed upon personal property merely because he spends a few months of the winter in New York; and the appeal in that case was by the tax commissioners, and not by the relator, and consequently the affirmance of that order does not require me to hold that the taxation of personal property belonging to a resident of Rhode Island can be imposed in this state. I think, therefore, the action of the respondents must be reversed, and the tax canceled, with costs.

The order aj)pealed from should be affirmed, with ten dollars costs and disbursements, upon the opinion of the court below.

Yan Brunt, P. J., Follett and Parker, JJ., concur.