
    The Board of Education of Union Free School District No. 2, Town of Trenton, Appellant, v. George W. Crill, Respondent.
    Fourth Department,
    March 6, 1912.
    Schools — action against non-resident — tuition — facts not showing residence within school district.
    Action by a board of education of a school district to recover tuition for the defendant’s children on the ground that they were non-residents of the district. It appeared that the defendant, who had previously lived in another town and paid tuition for his children as non-residents, had during the period in question rented a house within the school district where he lived through the winter, returning to his house in the other town during the summer. It further appeared that he was assessed in the other town as a resident taxpayer, registered and voted there and held the office of supervisor. On all the evidence, held, that he was not a resident of the school district to which he moved during the winter and was liable for tuition.
    
      It seems, that there may be cases where the voting residence of the father and the school residence of his children are not the same.
    Appeal by the plaintiff, The Board of Education of Union Free School District No. 2, Town of Trenton, from a judgment of the County Court of Oneida county, entered in the office of the clerk of said county on the 4th day of October, 1911, affirming a judgment of a Justice’s Court in favor of the defendant, with notice of an intention to bring up for review an order entered in said clerk’s office on the 4th day of October, 1911.
    
      G. E. Pritchard, for the appellant.
    
      E. Willard Jones, for the respondent.
   Kruse, J.:

The action is brought to recover for tuition of the defendant’s two children, who, it is claimed, were non-residents of the plaintiff’s school district. The defendant contends that they were residents, and that is the only question in the case.

The defendant’s family consisted of himself, his wife, a boy and a girl. He lived with his family for many years on a farm in the town of Floyd, adjoining the town of Trenton which includes the school district where the defendant’s children attended school. They attended the school during the school year of 1908-1909, and he paid tuition therefor at the usual rate for non-resident pupils. In August, 1909, the defendant rented a house or part of a house in the village of Holland Patent, within the bounds of the school district, with the privilege of buying it if he so desired, and moved into the house with his wife and children about the 1st of September, 1909. They brought with them sufficient household goods to keep house and left the rest in the house from which they' moved. They lived there during the winter, the children attending school, and as soon as the school closed in the spring or early summer they stored what furniture they had in the house at Holland Patent and went back to the farm, where they lived during the summer, returning in .the fall of that year, 1910, and living again in the house in Holland Patent, the children attending school as the year before. Finally, about the 1st of April, 1911, defendant gave up the house in Holland Patent.

The defendant refused to pay the tuition for the two years that he lived in Holland Patent upon the ground that he and his children were during that time residents of the district. The defendant testified that he considered his residence in Holland Patent from the time he moved there in September, 1909. But I think the circumstances show that he was not a resident of the school district. His permanent place of residence remained in the town of Floyd. That was his domicile. He was assessed there as a resident taxpayer. He registered and voted there after he had moved to Holland Patent and was elected to the office of supervisor and qualified and acted as such while he was living at Holland Patent. I think his school residence as well as his voting residence remained in the town of Floyd. He could not gain a school residence in the Holland Patent school district without losing it in the school district in which he lived in Floyd, where he had his domicile and permanent home.

Stress is laid on the provisions of the Education Law, which not only makes free to every person of the school age therein fixed, the school of the district or city in which he resides (Education Law [Consol. Laws, chap. 16; Laws of 1909, chap. 21], § 568; Education Law [Consol. Laws, chap. 16; Laws of 1910, chap. 140], § 567), but makes it compulsory for children of certain ages and in proper mental and physical condition to attend school, and provides among other things for the arrest of truant children, the punishment of parents who refuse to comply with the law and the punishment of persons who employ children under school age during the school year, except as therein provided. (Education Law [Consol. Laws, chap. 16; Laws of 1909, chap. 21], art. 20, as amd. by Laws of 1909, chap. 409; Education Law [Consol. Laws, chap. 16; Laws of 1910, chap. 140], art. 23 — both statutes being known as Compulsory Education Law.) And it is pointed out that in the report which the trustees are required to make on the first day of August in each year there shall be included in the number of children residing in the district all who on the thirtieth day of June last preceding of the age therein stated were actually in the district comprising a part of the family of their parents or guardians or employers, if such parents, guardians or employers resided at the time in said district, although such residence was temporary. But it is further provided in the same subdivision that such report shall not include children belonging to the family of any person who shall be an inhabitant of any other district in the State in which such children may by law be included in the report of its trustees. (Education Law [Consol. Laws, chap. 16; Laws of 1909, chap. 21], § 198, subd. 4.) This subdivision was amended in 1910 by the Education Law passed that year (Consol. Laws, chap. 16 [Laws of 1910, chap. 140], § 276, subd. 4) by eliminating the provision respecting temporary residents of the district, including only such children of school age as shall have been legal residents of the district at a certain date therein named.

I do not think the provisions of the Education Law aid the defendant in his contention. It is very clear that his only purpose in living in Holland Patent was to send his children to school there, intending to return to the farm when that object had been attained. It is true that many people have a home in the city and another in the country, and some have more, all equally, permanent; and there are even some whose various places of abode are so transient and temporary that it might be difficult to determine their legal residence at a given time. And there may be cases where the voting residence of the father and the school residence of his children is not the same; but that, I think, is not this case. Here, I think, the children as well as their father were not residents of the Holland Patent school district, and I think we should so hold as a matter of law.

If the conclusion I have reached is correct it follows that the judgment of the County Court and that of the Justice’s Court should be reversed, with costs.

All concurred.

Judgment of County Court and of Justice’s Court-reversed, with costs in all courts to appellant.  