Bartlett v. Mayor of New York — 7 N.Y. Super. Ct. 44

Majority

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Edwin Bartlett v. The Mayor, Aldermen, and Commonalty of the City of New York.

Headnote

The terms Domicil and “ Residence ” are not synonymous.

A person can have but one domicil, but he may have two places of residence* which he occupies in succession.

The Act of the 25th March, 1850, relative to the assessment of taxes, contemplates and provides for such cases.

Held, that under the provisions- of that act, the plaintiff by his own showing was, properly taxed as a- resident of the city of New York, and was therefore

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not entitled to an injunction to restrain the collection of the tax, which had there been imposed upon him.

Order at special term denying injunction affirmed .with costs.

(Before Sandfokd and Mason, J. J.)

June 7, 14, 1851.

This was an appeal from a decision of the chief justice at a special term, denying a temporary injunction.

The complaint stated that a tax upon personal estate had been assessed against the plaintiff, as a resident of the fifteenth ward of the city of New York, to the amount of $568.15, for the year 1850 ; that the tax had been confirmed and was required to be paid, and that he had received notice from the receiver of taxes that a warrant would be issued against him for its collection. That prior to the month of May,

1849, he was a resident of and housekeeper in the city of New York, but that in the month of June, 1849, he broke up housekeeping and removed from the city of New York with his family, and ceased to reside therein, and took up his residence in the town of Mount Pleasant, in the county of Westchester, and had from that time been, and at the time of the confirmation of the tax was, a resident of the town of Mount Pleasant, and did not then reside in the city of New York, unless the facts thereinafter stated should in law amount to such residence.

The complaint further stated that the plaintiff was engaged in erecting a dwelling house for his own use at Mount Pleasant, but th¿ same was not completed, and the house in which he had resided in the summer not being suited for, his comfortable occupation in the winter, he took rooms at the Union Place Hotel in this city, about the first of December, 1849, and occupied the same with his wife until about the end of April, 1850, intending, nevertheless, to return to Mount Pleasant aforesaid, and to be and remain a resident of that place, and •not to be a resident of New York : that he left his servants at his house in Mount Pleasant, bringing with him to New York but a single servant; that he actually did return to Mount Pleasant about the end of April, 1850, and there remained actually resident until on or about the first day of December, 1850, when his dwelling house being still unfinished, he took.

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apartments for the winter at another hotel in the city, but with the same intent, to be, and continue a resident of Mount Pleasant, and not of the city of New York.

The complaint further stated, that during all the time aforesaid, his principal, and only place of business, was in the first ward of the city of New York. It then further states, his presenting an affidavit to the assessors that he was not a resident of the city of New York, which was delivered by them to the commissioners of taxes, during the time limited by law for the correction of the tax list, but that the commissioners refused to strike his name out of the tax list. Wherefore the plaintiff prayed judgment that the tax had not been lawfully imposed, and that the collection of it might be enjoined, and for further relief. On this complaint a motion had been made by the plaintiff, before his honor the chief justice, for a temporary injunction, which motion, after hearing the counsel on both sides, the chief justice denied ; from which decision the plaintiff appealed to the general term.

A. S. Johnson, for the plaintiff and appellant.

H. E. Davies, for the defendant and respondents.

By the Court.

The general act for the assessment and collection of taxes provides that every person shall be assessed in the town or ward where he resides, when the assessment is made, for all personal estate owned by him, or under his control as trustee, &c. (1 R. S. p. 389, § 5.)

The act of the 25th of March, 1850, on this subject, enacts that in case any person possessed of such personal estate shall reside during any year in which taxes may be levied, in two or more counties or towns, his residence, for the purposes, and within the meaning of the section quoted above, shall be deemed and held to be in the county and town in which his principal business shall have been transacted. (Laws 1850, p. 142.)

The complaint denies that the plaintiff was a resident of any other place than Mount Pleasant in Westchester county, and such was the position taken by his counsel in the argument before us. On the other hand, the counsel for the corporation

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contended that the facts stated in the complaint showed, that the plaintiff resided in New York, as well as in Westchester, and that his only place of business being in the former place, he was properly taxed there.

It appears to us, that the whole of the argument of the plaintiff’s counsel, and the whole frame of the complaint, was based on a misconception of the meaning of the term residence, and the confounding it with the term domicil. The Supreme Court, in the matter of Thompson ( 1 Wend. 45 ), adopted the definition given by Yattel, of the word “ domicil.” “ The domicil is the habitation fixed in any place, with an intention of always staying therebut they held in that case, that a man might reside abroad, though his domicil was in this country—that no length of residence; without the intention of remaining, constitutes domicil, and therefore, that a person who came to this city, and established himself in business here, but who, while his business was still carried on here, had gone to Scotland, partly on business, and partly for pleasure, and remained there two years, though with the intention of returning, was liable to be proceeded against as a non-resident debtor.

The same doctrine was laid down by the same court in the case of Frost v. Brisbin ( 19 Wend, 11 ). In that case the defendant, a resident of this State, went to Milwaukie, and opened a store there, which he attended to for ten months, but without the intention of remaining, unless his business was successful, having left his family, in the mean time, in this State. Yet the court held that he was a resident of Milwaukie, and was liable to be arrested in this State, under the act of 1831, as a non-resident. In this case, as in the last case cited, the domicil was in this State, while the residence was abroad.

The facts stated in the complaint before us, show that the plaintiff's domicil is in Westchester county—his home is there— and his residence also for a little more than half the year, but that is not inconsistent with the fact that his residence is in the city of New York, for the remainder of the year.

Residence is defined by Webster to be “ the dwelling in a place for some continuance of time,” and the court in the case of Frost v. Brisbin just cited, say “ there must be a settled, fixed abode, an intention to. remain permanently at least for a time,

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for business or other purposes, to constitute a residence within the legal meaning of the term.” The plaintiff establishes the fact of his residence in New York precisely in conformity with this definition. He came to the city in December, 1849, “for the winter season,” and about the first of December, 1850, “he again took apartments for the winter.” By his own showing, he came with the intention of remaining, and in 1849, “ did remain permanently, for a time, in the city.” It was his settled fixed abode for the winter.

The act contemplates a person having two places of residence. That he resided in Westchester is conceded ; but during the four or five months in which he dwelt in New York continuously, could he be said to be residing or dwelling in West Chester? To give any meaning to the act, he must be considered as residing in New York and in West Chester for the several portions of the year in whiph he abode or dwelt in them respectively, and this construction, we have seen, is in accordance with the strict legal meaning of the term “ residence.”

As his place of business as well as of residence was in New York, he must, under the act, be assessed there, and he was properly assessed in the 15th Ward, in which he resided.

The judgment of the Special Term must be affirmed with costs.