
    The People of the State of New York ex rel. J. Metcalfe Thomas, Appellant, v. Thomas L. Feitner and Others, as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    
      Assessment for personal taz—what affidavit as to residence elsewhere is sufficient to require the vacation of the assessment, in the absence of other proof— notice to the person assessed as to the insufficiency of the affidavit — when necessary.
    
    A person who had been assessed for personal property as a resident of the city and county of New York for the year 1901, presented to the commissioners of taxes and assessments of the city of New York, on an application to vacate the assessment, the following affidavit:
    Deponent is not a resident of the County or City of New York, but resides at Southampton, Suffolk County, New York; that his actual residence is in Southampton aforesaid; that he has resided there more or less all his life; that some three years ago deponent left the State of New York and moved, with his family, to Colorado Springs, Colorado, and resided there for upwards of a year, and that thereafter, upon his return to the Bast, he moved to Southampton aforesaid. That while he resided in Colorado he continued to rent an office in the city of New York, wherein was office furniture of the value of seven hundred'and fifty dollars ($750), and upon his application made in Colorado the assessment on his personal estate was reduced from ten thousand dollars ($10,000) to seven hundred and fifty dollars ($750). That deponent conducts business in Southampton, Suffolk County, New York, and pays his assessment there and is also assessed and pays taxes upon his personal estate in Suffolk County.”
    The commissioners accepted the affidavit and informed the deponent’s attorney that if further evidence was required he would be notified of that fact. Thereafter, and without giving the deponent’s attorney such notice and without taking any further testimony upon the subject of deponent’s residence, the commissioners refused to vacate the assessment on the ground that the proof presented by the deponent was insufficient to show that he had ceased to be a resident of the city of New York. 
      Held, that the facts stated in the affidavit, being unquestioned, established that •the deponent’s legal residence for the year 1901 was at Southampton and not in the city of New York;
    That, in any event, the commissioners, having accepted the affidavit, could not entirely disregard it without notifying the deponent’s attorney.
    O’Brien, J., dissented.
    Appeal by the relator, J. Metcalfe Thomas, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1903, dismissing a writ of certiorari theretofore-issued herein to review an assessment upon the personal property of the relator for the year 1901.
    
      William H. Thitchener, for the appellant.
    
      David Rumsey, for the respondents.
   McLaughlin, J.:

The relator was assessed on his personal estate as: a resident of the city and county of New York for the year 1901 in the sum of $20,000. He applied to the. tax commissioners to vacate the assessment upon the ground that he was not a resident of the city and county of New York, but resided at Southampton, Suffolk county, N. Y., where he was assessed and paid taxes upon his personal estate. His application was denied upon the ground, as appears from the return made by the commissioners, that the proof presented by the relator to them was “ insufficient to show, that .the relator had ceased to be a resident of the City of New York.” The proof presented consisted of an affidavit in which the relator said: “ Deponent is not a resident of the County or City of New York, but resides at Southampton, Suffolk County, New York; that his actual residence is in Southampton aforesaid; that he has resided there more or less all his life; that some three years ago deponent left the State of New York and moved, with his family, to Colorado Springs, Colorado, and resided there for upwards of a year, and that thereafter, upon his return to the East, he moved to Southampton aforesaid. That while he resided in Colorado he continued to rent an office in the city of New. York, wherein .was .office furniture of the value of seven hundred and fifty dollars ($750), and upon his application made in Colorado the assessment on his personal estate was reduced from ten thousand dollars ($10,000) to seven hundred and fifty dollars ($750). ‘That deponent conducts business in Southampton, Suffolk County, Hew York, and pays his assessment there and is also assessed and pays taxes upon his personal estate in Suffolk County.” This affidavit was accepted by the commissioners and no further testimony .as to the relator’s residence was taken, or, so far as appears, required, .notwithstanding it appears from the affidavit of the attorney who presented it that he was informed by the commissioners if further evidence were required he would be notified of that fact, and which .notice was not given.

The facts stated in the relator’s affidavit as to his residence not .being questioned, we think established his legal residence for the year 1901 at Southampton, Suffolk county, and not in the city of New York. (People ex rel. Lord v. Feitner, 78 App. Div. 287.) In any event the commissioners having accepted the affidavit, if they were not satisfied that the facts therein stated were true, they could not entirely disregard it in the absence of such notice. Section 8 of the Tax Law (Laws of 1896, chap. 908) provides, among other things, that every person shall be taxed in the tax district where he resides when the assessment for taxation is made for all personal property owned by him.” Here the relator is assessed upon his personal estate at Southampton and there pays his personal tax. The question presented is quite similar to the one presented in People ex rel. Lord v. Feitner (supra). In that case it appeared from an affidavit filed that the relator resided at Lawrence, in the county of Hassau ; that she owned an apartment in the city of Hew York, which she occupied during a portion of the year, but did not consider such city her residence; she was assessed u^on personal estate as a resident of the city of New York for the year 1901, and thereupon submitted an affidavit setting forth the fact that she did not reside in such city, but resided at Lawrence. The commissioners accepted the affidavit and required no further testimony, but notwithstanding that fact refused to cancel the assessment. This court held that the assessment should have been vacated, on the ground that the proof presented established the relator’s residence at Lawrence, in the county of Hassau. Mr. Justice Ingraham, who delivered the opinion of the court, referring to the affidavit filed by the relator, said: <6 The commissioners accepted her statement and acted on it, and in the absence of a request for further information, or for further evidence upon the subject, the statement thus accepted must be taken as true. Assuming that the relator did spend a portion of each year in the city of Hew York and a portion of each year at the house that she owned in Lawrence, Hassau county, the question as to-which was her legal residence for the purpose of taxation was one of fact to be determined upon her intention as to which of these places should be her legal residence.”

Hor is there any force in the contention of the respondent that the relator was not entitled to have the assessment vacated, inasr much as the return denied, upon information and belief, an allegation in the petition to the effect that the relator at the time the-assessment was made was not a resident of the city of Hew York.. The proceeding is to review the action of the tax commissioners,,, and the return nowhere denies any of the facts set out in the petition as to what occurred before them. All of the allegations of the petition in this respect are admitted. The question, therefore, presented was one of law to be determined upon the petition, and return thereto. Upon these facts the assessment should have been vacated, and for the reason that the relator during the period for which the assessment was made was not a resident of the city and county of Hew York, but was a resident of Southampton, Suffolk county, N. Y.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to vacate assessment granted, with ten dollars costs.

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred; O’Brien, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion to vacate assessment granted, ivith ten dollars costs.  