Majority
p. 110Douglas v. Mayor, &c., of New York.
Headnote
The plaintiff, in the year 1850, and for several years before, resided in a hired house in the City of New York, during the winter and spring, and at his country seat in the town of Flushing, Queens County, during the summer and ■autumn. In the winter of 1850, he was assessed in New York for a tax on his personal estate, and in the summer was assessed for a similar tax in Flushing, whieh he paid. He resisted the payment of the tax in New York, and filed his complaint to restrain its collection.fíeZtZ, that whether the domicil of the plaintiff was or was not at Flushing, he was a resident of New York, and liable to be taxed as such when the tax for
p. 111(Before Oakley, Ch.J., Duer and Paine, J.J.) March 10 ; March 26, 1853.
city was assessed. Judgment at special term dismissing complaint affirmed, with costs.
Appeal from a judgment at Special Term, dismissing the complaint with costs.
The object of the complaint was to restrain the defendants from collecting, by warrant or otherwise, a tax, amounting to more than $2,500, on the personal property of the plaintiff. The tax had been assessed upon him as a resident of the third ward of the city of Yew York, between the 1st of January and the 1st of April, in the year 1850, for his proportion of the taxes for that year, upon the valuation of his personal property at $200,000. The complaint alleged that a warrant for the collection of the tax had been issued, and that to relieve his property from a sale under it, the plaintiff had given his check for $2,502 41, the sum claimed to be due, and prayed as a part of the relief to which he was entitled, that the collection of the check might be restrained, and the check itself returned. The principal ground upon which the whole relief was demanded was, that the tax was illegal and void, the plaintiff when it was imposed being a resident not of the city of Yew York, but of the town of Flushing, in the county of Queens, in which town and county he alleged that for many years past, including the year 1850, he had been assessed for his personal property, and had paid the taxes assessed.
The answer of the defendants admitted the assessment for the tax, its amount, and the issuing of a warrant for its collection, as set forth in the complaint, but averred that at the time the assessment for the year 1850 was made, in and for the city and county of Yew York, and during the whole of that time, the plaintiff was a resident and taxable inhabitant of the city, and liable as such to be assessed and taxed therein. This was, therefore, the only issue made by the pleadings.
Before stating the proceedings and evidence upon this issue, it seems proper to advert briefly to the statutory provisions which have a bearing upon the question.
The 5th section in Tit. 2 of the Revised Statute relative to
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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 in his possession or under his control as trustee, guardian, executor, or administrator.” And § 8 of the same title requires the assessment to be made between the first days of May and July in each year. The Legislature, by an act passed on the 25th of March, 1850, amended the fifth section as above quoted, by adding, “ 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 this section, shall be deemed and held to be in the county or town in which his principal business shall have been transacted” (Laws 1850, p. 142), The act “ to amend the charter of the city,” passed April 2, 1849, provides in § 22, that assessments for all taxes for the city and county shall thereafter be made between the first days of January and of April in each year ; but the time for making such assessments in other counties, as defined by the General Act, has not been altered.
The action was tried as an equity case before Mr. Justice Duer, at a Special Term, in March, 1852. .Upon the trial, the town clerk of the town of Flushing proved, that the plaintiff had been assessed in that town for his personal estate, and had paid the taxes thereon in the years 1849,1850, and 1851; that he resided there when the assessments were made, and for several preceding years had lived there during the summer season.
The counsel for the plaintiff then called as a witness,
Robert Rmwiddie, who, being sworn and examined, testified that he was a merchant, and resided in the city of New York; that he had been acquainted with ¥m. Douglas, the plaintiff, for eleven years last past, during which period he had collected his rents, interests, and dividends, and attended to all of his financial business. That the plaintiff did no business. That Avitness deposited in bank, to credit of plaintiff, all moneys collected. That Avitness advised with plaintiff from time to time about his
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"business. For a number of years last past the plaintiff has gone to Flushing about the first week of May, and remained there until November. Plaintiff has a house at Flushing. Servants were left there during the winter. Plaintiff has some land at Flushing, close to the house. It is about eight years that he has been in the habit of spending his time during this part of the year at Flushing, always at the same house. Plaintiff is an unmarried man, and has never been married. From latter part of November to first week of May, he usually spends his time at No. 28, Park-place, in the city of New York. He has a house there ; it belongs to his brother. He rents it from his brother George ; he rents it for the year; there is no written lease. I have not been at his house in Flushing, when he was there.
On cross-examination by defendants’ counsel, the witness testified that the plaintiff was about sixty years old. Before he procured this country seat at Flushing, he resided at No. 28, Park-place, New York. This was eight years ago, and before that time he resided at No. 28, Park-place, New York. He resided there, ever since I knew him, before he went to Flushing. He employs servants, and keeps house there. He takes his servants with him to Flushing, and part of his furniture. He keeps a servant in the house in Park-place, to take care of it all summer. I understand that he never was engaged in any business. His bank account is kept in the Bank of New York. My office is in the Exchange Building. He keeps his check-book at his house. My office is not an office for Mr. Douglas’s business. I deposit moneys to his credit, and keep the usual bank pass-book. I settle the account at the bank, and receive the checks, and return them to him. I keep books—not a cash book; I keep books, for him, as if he kept them himself. I render him a statement at the end of the year. He does not inspect the books himself. He has paid me a stated salary. He owns real estate in the city of New York ; some of it is rented, and some is vacant lots. He has bonds and mortgages and stocks. I have the bonds in my charge, and collect the interest. The stocks and mortgages he has in a box, which in the winter is at his house, and in summer he either takes down with him, or leaves it here. I attend to all
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his financial business. His fortune is principally invested in bonds and mortgages of property in this city, and real estate, lie has money out at Flushing, on bond and mortgage, on a farm there for $6,000. I have the bond; the interest is paid to me in this city. He has some lands at Flushing, near the house he occupies. He rents the house at Flushing the same way as the other from his brother George; I never saw a written lease of it. He has .20 or 30 acres of land there himself. I never heard of his raising vegetables for sale. I consult him from time to time ; I see him as occasion requires. I never pay any of his bills for household expenses. He comes to my office frequently ; he has no desk in my office, nor any place there under lock and key. He does not stay at Flushing altogether in the summer ; he is sometimes elsewhere. He frequently travels in the summer ; in the winter he generally stays here. In the summer he is absent for a day or a week. His absences are short; principally at Herkimer, the residence of his sister. I cannot tell how large tire house is at Flushing; I saw it when building; it is of stone or brick. Servants are left in the house in the winter. I never saw any of his, furniture go away from the house in Park-place. It looks bare in summer. The pictures are covered up, and not removed to Flushing, but remain at Park-place.
On being re-examined by the counsel for plaintiff, the witness says: I merely act for Mr. Douglas, as before stated ; I was th.e book-keeper of the mercantile firm of George and John Laurie, and during all the time they continued in business, till 1st January, 1852. They then retired, and I and another gentleman succeeded them in business. I kept the books and papers of Mr. Douglas in the office of George and John Laurie, while they were in business, and in my own since. Mr. Douglas did not pay any part of the expense of that office at any time.
The testimony being ended, it was admitted, that if the plaintiff was a taxable inhabitant of the city, the assessment, and all the subsequent proceedings, were regular.
Among other questions argued by the counsel of the parties,' when the testimony was closed, was, that of the jurisdiction of the court, which the counsel for the Corporation strongly denied.
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The judge, on the last day of the term, delivered his judgment as follows :
Doek, J.—The relief which is sought in this case is purely equitable, and it is therefore by the rules which courts of equity as such are bound to observe, that my decision must be governed.
Yielding to the authority of the decision of the Court of Errors, in the case of The Mayor of Brooklyn v. Messerole ( 26 Wend. 134 ,140, per Nelson, C. J.), I am therefore constrained to dismiss the complaint for want of jurisdiction. That decision, in my judgment, established the principle that a court of equity has no power to review, and set aside as illegal, the proceedings of any subordinate tribunal of special and local jurisdiction, whether acting under a statute or the common law; the illegality of such proceeding being in all cases a question purely of legal, and never of equitable cognizance. It is true that in The Mayor of Brooklyn v. Messerole, the illegality, which was the ground of complaint, was apparent on the face of the proceedings ; but the judgment of Chancellor Kent, in More v. Smedley ( 6 John. Ch. R. 28), the authority upon which Chief Justice Nelson, in his opinion in the Court of Errors, chiefly relied, is in point to show that the objection to the exercise of any jurisdiction applies, with equal force, when the illegality can only be established by a" resort to extrinsic proof.
Upon the intricate question of domicile, which was so ably and learnedly discussed by the counsel, I shall intimate no opinion ; I have, in reality, no right to consider it, and for obvious reasons have been careful not to form any definite opinion in relation to it.
The complaint is dismissed with costs.
Tire plaintiff appealed from this judgment to the General Term. The Appeal (March 10, 1853) was now heard.
E. Sandford, for the plaintiff and appellant,
insisted that the judgment at Special Term ought to be reversed and judgment be given for the plaintiff for the relief demanded by his complaint,
p. 116
and contended: That as the facts upon which the plaintiff relied, to establish his claim to be relieved from the payment of the tax in question, did not in any manner appear upon the face of the proceedings by which the defendants had created an apparent obligation to pay it, they constituted a proper ground for equitable relief, when there was a separate equity tribunal to administer that relief, on the ground that there was no adequate remedy at law. (Mayor of Brooklyn v. Messerole, 26 Wend. 134 ,137; Simpson v. Lord Howden, 6 Myl. and Cr. 97; Hamilton v. Cummins, 1 John’s Ch. R. 517; Van Doren v. The Mayor, &c., 9 Paige, 388-9.) The case of More v. Smedley, he urged, had no application to the present case, as the act complained 'of there was a legislative act of a Board of Supervisors, in the exercise of a portion of the political power conferred upon them, and the proceedings were voidable, and not void. (J. 6, C. R. 28, 31.) And that at any rate the Code had abolished the distinction referred to, so far as it had previously existed, and it is no longer an answer to a claim for specific relief, that if the complainant would wait, and suffer the injury which he seeks to avert, he might have a claim to compensatory relief. He is not to be denied relief on the ground that if he goes farther and fares worse, the facts which lie has exhibited to the court will entitle him to redress. If he can show any right to be relieved at all, he is entitled to the relief upon this complaint. The counsel then insisted that if the court had jurisdiction the title of the plaintiff to the relief which he asked could not reasonably be denied. He was certainly not liable to be taxed twice in one year. He was a taxable inhabitant of the County of Queens, duly assessed as such in the town of Flushing, and paid his taxes there. He was not a resident of .the City of New York, nor liable to be assessed as such, nor to pay the tax in question. In discussing this question the learned counsel entered largely into a consideration of the law of domicil, alleging that by the authorities to which he referred the town of Flushing was shown to be the plaintiff’s domicil, and that this fact being established fixed his residence there.
A. J. Willard, for the corporation.
p. 117
L The plaintiff has mistaken his remedy. 1. The present action is governed by the rules of equity, applicable to injunction bills. 2. The subject matter of the present action never could have sustained a bill in equity. The courts of equity could not review the proceedings of subordinate tribunals, acting under a statute authority—clothed with the exercise of poEtical powers—whether such proceedings were void, or merely voidable. (Moers v. Smedley, 6 Johns. Ch. R. 28; The Mayor, &c. v. Messerole, 26 Wend. 134 ; Van Doren v. The Mayor, 9 Paige R. 388.) 3. The jurisdiction of these courts to set aside deeds and other instruments, conferring a colorable title merely, was based upon the idea of fraud, and is inapplicable to the present ease. 4. The distinction as to evidence on the face of the instrument, and evidence extrinsic, was applicable exclusively to the latter class of cases. It has created exceptions against equity jurisdiction, proceeding on. the idea that there existed no necessity for its exercise; but has never conferred or enlarged that jurisdiction. 5. The proper remedy for the plaintiff, if he was unjustly assessed, was, in the first instance, to make Ms objection before the assessors. (1 R. S. 393, § 23.) He may further appeal to the supervisors, who have power to grant relief. 6. If the plaintiff was not subject to taxation, the assessment of the tax was void, and all parties attempting to enforce it are trespassers. (The Mayor, &c. v. Messerole, 26 Wend. 134 .)
II. The plaintiff was, at the time of the tax laid, a taxable inhabitant of the city of New York, and of the ward within which he was assessed; and the tax was properly laid. 1. The assessment was required to be laid between the 1st of January and the 1st of April. It must be intended that it was laid during the period. (Laws, 1849, p. 284, § 22.) 2. During this period of the year, the plaintiff resided in the city of New York. 3. Being a resident of New York at the time the assessment was laid, he was properly taxable there. (1 R. S., p. 389, § 5.) 4. The fact that he resided during a portion of the year at Flushing, does not divest his abode in Hew York of the character of a residence within the meaning of the Revised Statutes. (Bartlett v. The Mayor, &c. N. Y.—Opinion of Mason, J.)
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III. The residence contemplated by the statute, is that of the domicil of the person, if he is domiciled within the state. 1. A person may hate two or more residences. (Bartlett v. The Mayor, &c. N. Y.) 2. So for certain minor purposes, such as conferring jurisdiction, he may have more than one domicil. ( 11 Pick. 410 ; 5 Vesey, 750.) 3. But as it regards the exercise of the privilege, and the discharge of the burdens incident to citizenship, he can have but a single domicil.
IY. The plaintiff’s domicil was in the city of New York; which, coupled with residence at the period of making the assessment, made his' liability to taxation there perfect. The city of New York was the original domicil of the plaintiff, and the evidence is not sufficient to show that it was changed.
The counsel also insisted that the act of March, 1850, was applicable to the case, and that it was proved by the testimony of the plaintiff’s own witness, that his principal business was transacted in the city of New York. The city, therefore, by the terms of the act, was his residence for the purposes of taxation.
The counsel for the plaintiff, at the close of the argument, stated that his client was exceedingly desirous that the cause should be determined upon its merits, and would no doubt acquiesce in the decision of the court, if adverse to his claim, and that the counsel would so advise him.
The counsel for the Corporation then said, that with this understanding he would not insist upon the objections to the jurisdiction of the court.
In compliance with the wishes of the plaintiff, as expressed by his counsel, and with the hope of putting- an end to the controversy, we have considered, and shall decide this cause upon its merits, as they appear upon the pleadings and evidenced
Passing over the objection, then, to the jurisdiction of the court upon which alone the complaint was dismissed at special term, the main question, the liability of the plaintiff to be taxed as a resident of the city, it seems to us, is free from difficulty. It has, in effect, been already decided by this court, in the case of Bartlett v. The City of New York (5 Sand. S. C. R. 44),
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if not by the j udgment then pronounced, yet by the reasoning upon which the judgment was partly founded. The published opinion of the tyro distinguished judges by whom that case was determined, commands throughout our entire assent. In this case, as in that, the argument for the plaintiff rests entirely upon an erroneous construction of the word “ resides,” in the 5th section of the general act; a construction by which residence and domicil are made in effect equivalent and convertible terms. It may be quite true that a person can have but one domicil, but it is certain that he may have two residences, for such is the case with every man of fortune, who, like the plaintiff, has a town house and a country seat, in each of which he dwells at different seasons of the year, with the intention of making each his permanent abode for a.limited period. (Frost v. Brisbane, 19 Wend. 11 .) The residence of the plaintiff in 1850, and for several preceding years, was just as certainly in this city during the winter and spring, as in Flushing during the summer and autumn. He was, therefore, a resident of the city, liable to be taxed as such when the assessment was made, of which he complains, and as the regularity of the proceeding against Mm, if he was so liable, is not denied, he is bound to pay the tax large as it may seem, for the collection of which he suffered a warrant to be issued.
It may also be true, as was contended, that Flushing was the plaintiff’s true and only domicil,. although we should have great difficulty in so holding were it necessary to determine the question; but we are unable to see that this fact, if proved or conceded, has any bearing upon the argument. In most cases, when a person has two residences, one of them is also his domicil; but we apprehend that his residences, in the legal and statutory sense of the term, are just as distinct as if both, as might be the case (In re Thompson, 1 Wend. 45 ) were separated from his domicil.
It is not asserted or supposed that the plaintiff, or any other citizen, is liable to be taxed twice in the same year for the taxes of the year; but it only follows, not that his assessment in this city was unlawful, but that he ought not to have been afterwards assessed in Flushing. His assessment here between January and April was a legal bar to Ms assessment in Flush
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ing between May and July; and if he chose to submit to this assessment, and pay the tax demanded, he has himself only, or the advice which he received, to blame. The law imposed upon him no such necessity, and we cannot relieve him from the consequences of his voluntary act.
As the act of March, 1850, amending the 5th section of the general act, was not in force as law when the assessment in this case was «made, we do not think that its provisions can, with propriety, be referred to, as sustaining the legality of the assessment. Had the act been in force, its application to this case might well be doubted. The plaintiff was not engaged in any gainful pursuit, and had therefore probably no place of business within the meaning of the law. His only business was to receive and spend an ample income.
The provisions of the act are, however, a legislative recognition of the fact that a taxable citizen may have two or more residences, and a declaration of the sense in which the word “ resides” ought to be construed in the section amended, in its original form. Such a declaration we, indeed, think was unnecessary; but had the question been in reality doubtful, we should probably have allowed it to decide our judgment.
Without adverting at all, however, to the Act of 1850, as a ground or motive for our decision, our conclusion from the pleadings and evidence is, that the plaintiff, as a resident of the city, was rightfully assessed for the tax, the payment of which he has resisted; and, consequently, that he has no claim to the relief, or any part of the relief, which he seeks. The judgment at Special Term, dismissing his complaint, is therefore affirmed, with costs.
We are not to be understood as intimating any opinion as to our jurisdiction; but it is not to be denied that the present union in this court of legal and equitable powers may have given a new aspect to the question.
Cases cited
- Frost & Dickinson v. Brisbin 19 Wend. 11 p. 119