
    The People ex rel. Newbold T. Lawrence, App’lt, v. Edward P. Barker et al., Com’rs, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    
      1. Taxes—Personal—Residence.
    A person who has a residence elsewhere, where he votes and pays taxes, is not liable to taxation in New York city because he happens to be there on a visit on the second Monday in January.
    2. Same.
    While a person may have two residences, one in the city and one in the country, the place where his family lives, where he stays the greater part of the time, where he votes and where he is assessed for personal taxes, is his residence for purposes of taxation.
    Appeal from order reducing and confirming taxation of personal estate.
    The facts appear in the opinion of the special term as follows:
    Andrews, J.—The relator’s place of business on the second Monday of January, 1891, was, and for many years prior to that date had been, in the city of Hew York For some years prior to 1887 he resided at Lawrence, in the town of Hempstead, Long Island, during the summer months and in the city of Hew York during the winter months, and as his place of business was in. that city he was, during those years, undoubtedly taxable there. In June, 1887, he purchased the interest of his sisters in a house at Lawrence, which had come to him and them under the will of their deceased father, and commenced to alter it for his own use. He married in December, 1887, and moved into said house in September, 1888, and has continuously lived there ever since, except for short periods of time during the winter months, when he and his wife have been at his mother’s house in Hew York He did not pay for the board of himself or his wife or contribute to the expenses of his mother’s household while they were members of it. He has voted for seven years last past in .the town of Hempstead and was assessed there for the purpose of taxation in the year 1890. In the winters of 1889 and 1890 the relator and his wife were at his mother’s house for the periods of six and four weeks respectively. In December, 1890, shortly before Christmas, the relator and his wife came to his mother’s house in Hew York city, expecting to stay there about six weeks, but they were detained there by his sickness until the first of March, when they returned to Lawrence.
    Under our statutes every person is to be assessed for the' purpose of taxation in the town or ward where he resides when the assessment is made for all personal estate owned by him ; and under the act of March 25, 1850, if any person resides in two or more towns or counties during any year in which taxes may be levied, his residence, for such purpose, is deemed to be in the town or county where his principal business is transacted. Upon the undisputed facts of this case there can be no doubt that, since 1887, the relator’s domicil, or home, has been at Lawrence, but the question whether he can be deemed to have resided in New York on the second Monday of January, 1891,, seems to me to be a close and difficult one. The books are full of cases as to what constitutes residence with reference to eligibility to office, the right to vote, liability to taxation, liability of person to arrest and property to attachment, and jurisdiction in actions for divorce.
    It has frequently been held that facts which constitute a person a resident of a particular locality for one purpose do not make him a resident for some other purposes; many of the decisions turn upon the construction of local statutes, and where the facts are substantially the same there is great conflict of opinion as to what constitutes residence. Many courts and judges have attempted to define “residence,” but the difficulty about such definitions is that they generally require further "definitions to make their meaning clear and certain. The consequence is that it is almost impossible to deduce from the cases a rule of law by which it can be determined in any particular case whether, upon the facts proved, a person is or is not a resident. A leading case in this state, and one which has been' frequently cited, is Frost v. Brisbin, 19 Wend., 11. In that case it was said: “ There must be a settled, fixed abode, an intention to remain permanently at least for a time, for business or other purposes, to constitute a residence, within the legal meaning of the term.” That definition was cited and followed in Bartlett v. City of New York, 5 Sandf., 44. In that case it appeared that the plaintiff's domicil or home was in Westchester county, but because he took and occupied apartments for the winter in a hotel in the city of New York (though with the intent to continue to be a resident of Westchester county), it was held that he was properly assessed in New York city.
    This case was followed in Douglas v. The Mayor, 2 Duer. 110, where the facts were similar to the extent that the plaintiff lived in New York city in the winter and spring, and in the country in the summer and autumn. And both the above cases were cited and followed in People v. Commissioners, 18 St. Rep., 748, upon, a similar state of facts. The definition of “residence” given in Frost v. Brisbin was found to be sufficient for the solution of the questions presented in the above cited cases, but when it is sought to apply it to the case at bar the conclusion which should be drawn is not so obvious. Under these decisions it does not follow that because the relator owned a house in Lawrence, which he occupied for most of the years, had voted for seven years in the town of Hempstead, and was assessed and paid taxes in Lawrence in the year 1890, he was not taxable in Hew York city. But what effect should be given to the fact that the relator and his wife came to Hew York just before Christmas, intending to stay only six weeks, and that their actual stay, including the time during which they could not leave on account of the relator’s sickness, was only a little over two months, and the fact that they had no house, apartments or establishment of their own, and were merely the guests of the relator’s mother at her house? In all the cases above cited the persons taxed were living in the city of Hew York on the second Monday of January, but no attempt was made by the court in either case to determine just how long before or after that date a person, who is there on that day, must remain in order to be liable to taxation there. It is difficult, perhaps impossible, to lay down any exact rule on this point, but if the relator had owned or hired a house or apartments, and had maintained an establishment of his own, I do not see how the case at bar could be distinguished from the cases above cited, merely because he and his wife came with the intention of staying but six weeks, and did actually stay but a little more than two months. They would have had a “ fixed, settled abode ” for over two months, and what distinction can be drawn between a “fixed, settled abode ” for two months and one for three, four or five months ? They would also have had an “intention to remain permanently at least for a time,” and what distinction can be drawn between an intention to remain “ permanently ” for at least six weeks and an intention to remain “permanently ” for double that time?
    In the next place, if the relator and his wife had lived for six months, or all the year around, as guests of his mother’s, in the latter’s house in the city of Hew York, or at the mother’s expense, by themselves, in a separate house or apartments, the relator would certainly have been a resident and liable to taxation there; and I do not see how any distinction can be drawn between living in How York city at the expense of the mother for two months and living in that manner for six or twelve months, so far as liability to taxation is concerned.
    Upon the whole case, I have reached the conclusion, though not without considerable doubt and hesitation, that the relator had two residences; that he was residing in the city of Hew York on the second Monday of January, and that, as-his place of business was in that city, he was lawfully assessed there. With regard to the amount of the assessment, it appears that the relator, relying upon his claim for total exemption from taxation, did not present evidence to the tax commissioners as to the amount of his taxable property. Under the circumstances, however, the court has the power and ought to reduce the assessment, because the evidence shows that the relator's taxable property was very much less than $100,000, the amount of the assessment.
    In his sworn petition the relator stated that, upon his applicatian to the tax commissioners, “ he was ready to prove that the value oE his personal estate, not exempt from taxation, over and above his debts, did not exceed $10,000.” And when he was first examined in this proceeding he testified that his personal property “ did not exceed $10,000, over and above his just debts." In view of this evidence, I think that the assessment should be reduced and should be fixed at $10,000, rather than a lower sum, notwithstanding some testimony which the relator gave about his property on a subsequent examination. No costs should be allowed to either party.
    
      Franklin B. Lord, for app’lt; George S. Coleman, for resp’ts.
   Van Brunt, P. J.

It seems that the relator was a resident of Hempstead, Long Island, and as such resident he paid personal taxes in said town; and it is to be observed that the taxes of 1890 at Hempstead were to be expended in 1891, and the taxes in January, 1891, in New York were for the same year, and thus the relator would be compelled to pay two assessments for taxes in one year. The mere fact that he happened to be on a visit to his mother on the second Monday of January, 1891, did not make him liable for taxation. It is true that a man may have two residences, one in the city and one in the country, but where his family lives, where he stays the greater part of the time, where he votes, and where he is assessed for personal taxes, is certainly his residence for purposes of taxation.

According to the contention of the respondents, if a man came into the city of New York to stay a day or two, and was taken sick and compelled to remain over the second Monday of January in any year he would be liable to taxation in this city. We do not think that any such claim can prevail, and it must if the relator can be held in the case at bar.

The order should be reversed and the assessment vacated, with ten dollars costs and disbursements.

O’Brien, J., concurs.

Patterson, J.

I concur on the ground that it does not conclusively appear that the relator was a resident of the city of New York on the 2d day of January so as to be made liable to taxation here.  