
    People ex rel. Dixon v. Gaylord, Assessor, et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    May 10, 1889.)
    1. Taxation—Assessment—Residence.
    Relator owned a farm which was intersected by a town line, and lived with his father on an adjoining farm, owned by the father, and wholly within one town. Work was done on relator’s farm with the father’s teams and tools; and the father’s cows were pastured there, but milked on his own farm. Produce was brought from relator’s farm to that of the father, where the teams were kept. Held, that relator’s farm was occupied within the meaning of Laws N. Y. 1886, c. 315, § 4, which provides that when the line between two towns divides a farm it shall be taxed, if occupied?, in the town where the occupant resides.
    
      2. Appeal—Review—Weight of Evidence.
    Where there is some evidence to sustain the findings of the trial judge, they will not he reviewed on appeal. c
    3. Same.
    Where there is a conflict of evidence, error cannot he predicated on the refusal of the court to find as requested.
    Appeal from special term, Delaware county.
    
      Certiorari by Charles R. Dixon against Harper Gaylord, Josiah Buck, and Alexander L. Hendry, as assessors, and S. Davis Hubbard, town clerk of Harpersfield. A judgment was entered on the 20th day of December, 1888, in favor of the defendants, dismissing the writ of certiorari with costs; and also “the decisions of the court, and findings upon which the same were rendered, and the exceptions to said decision, and findings and exceptions to the refusals of the court to find as requested by plaintiff, and all the questions of law raised by the said exceptions and judgment, and the questions of fact as well as of law.” Relator appeals. The relator prepared a petition, in which he alleged that in the year 1888, by the assessors of the town of Harpersfield, he was erroneously and illegally assessed upon a farm of 200 acres, for the year 1888, and in bis petition claimed “the whole of said farm is unoccupied, and the said first two parcels, consisting of 125 acres of land, are legally assessable in the town of Kortright, and not in the town of Harpersfield, and are so assessed in said town of Kortright the present year to your petitioner. And petitioner is the owner of but seventy-five acres of land legally assessable in said town of Harpersfield, or situated therein.” Upon the petition a writ of certiorari was issued, to which the defendants filed a return, traversing certain matters contained in the petition, and alleging the validity of the action of the assessors of the town of Harpersfield in 1888 in having assessed the 200 acres of land to the relator. This return was filed in the Delaware county clerk's office October 3, 1888. When presenting the petition and writ and return thereto in a special term in Tioga county in October, 1888, a reference was had, to take “evidence upon the several matters in issue, and particularly concerning the occupancy of the farm and premises of the relator’s real estate, and the situation thereof, and who, if any one, resides thereon, and all the facts eoneerningthe occupation thereof byany person, and concerning the use thereof.” Upon the hearing before the referee several witnesses were sworn, and much evidence taken in respect to the issues, which was reported to a special term held in Tompkins county in December, 1888, and, after hearing counsel forrespective parties, the court found “thatthe relator is, and since about June, 1887, and during the year 1888, has been, the sole owner of the farm described in the relator’s petition herein, and that 125 acres of said farm is situated in the town of Kortright, and 75 acres of the same is situated in the town of Harpersfield, Delaware county, Ü5T. Y.; thatthe relator is an unmarried man, living with his father, David P. Dixon, upon a farm wholly situated within the town of Harpersfield, and adjoining that portion of the relator’s farm situated in the town of Harpersfield; that in the year 1888 these defendants assessed the said property in the town of Harpersfield as occupied land, the occupant or owner thereof residing in the said town of Harpersfield; that during the years 1887 and 1888 the said farm has been under the joint occupancy of the relator and his father, David P. Dixon, and has been occupied land within the meaning of the statute regulating the assessment of lands divided by a town line. “I find, as conclusion of law, that the land is properly assessed in the town of Harpersfield.” Thereupon the special term directed a judgment “dismissing the relator’s petition, with costs, to be taxed as in an action.”
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      C. L. Andrus, for appellant. F. Ff. Gilbert, for respondents.
   Hardin, P. J.

Chapter 315 of the Laws of 1886 amended the Revised Statutes and provided as follows: “Sec. 4. When the line between two towns, wards, or counties divides a farm or lot, the same shall be taxed, if occupied,^n the town, ward, or county where the occupant resides; if unoccupied, each part shall be assessed in the town, ward, village, or county where the same shall lie. All acts or parts of acts inconsistent with this act are hereby repealed.” By virtue of the provisions of law just quoted, the relator was properly assessed in the town of HarpersBeld in the year 1888, if the farm of 200 acres in question was an unoccupied “farm or lots.” It was conceded upon the hearing, and established by evidence, that the relator resided in the town of Harpersfleld. It was also manifest upon the evidence that the line between the towns of Harpersfleld and ICortright divided the farm in question. There was no person residing upon the farm in the year 1888. For many years prior to 1888, David P. Dixon, the father of tile relator, had owned the farm of 200 acres, and resided thereon. The house was “an old one.” In the spring of 1887 the father, David P. Dixon, purchased a farm consisting of 298 acres, adjoining the 200 acres in question, in the town of Harpersfleld, upon which 298 acres was a much better house than the one on the 200 acres, and he moved himself and his family, consisting of his wife, the relator, and another son, named Fred, into the house in Harpersfleld. The relator was about 23 years of age, unmarried, and, having always had his home with his father, continued to reside with him after his father moved upon the 298 acres. It appears in the evidence that the town of Harpersfleld has a bonded indebtedness of about $30,000. It also appears that the town of ICortright has no bonded indebtedness.- A controversy arose in 1887 in respect to which town the farm of 200 acres should be assessed in, and on the "6th of June of that year the father executed a conveyance of the 200 acres to the son,—rather as a gift, no money having passed. In 1888, when the assessors were engaged in making up the list for their roll, they had an interview with David P. Dixon in respect to the assessment of the farm, and he insisted that it should be assessed, 125 acres in the town of ICortright, and 75 acres only in Harpersfleld. The assessors differed from him, and placed the farm of 200 acres on the roll, extending the same against the- name of the relator. The 200 acres are inclosed with a substantial' fence. The work done upon the farm was with the teams and tools of the father. The father’s dairy was kept and pastured on the farm, although milked on his own farm. There were various crops raised on the farm in 1887; hay was cut; and, after the buildings on the farm were full, the balance of the crop of hay, grain, and corn were stored and fed out of the father’s barn near the residence. The team was kept near the residence that did the work upon the 200-acre -tract. The hay was drawn to the home farm, when needed for fodder. The father and the son worked on the 200-acre farm in digging potatoes, and doing the haying with the tools belonging partly to the father and partly to the son, and some of them were stored on the 200-acre parcel. The manner of managing the 200-acre farm apparently was like that which obtained in the ■management of the 298 acres. The cows were pastured on the 200 acres,— passing from one farm to the other.- The hay that was cut on the 200-acre farm was fed out to the cattle, and the relator received directions from his father as to the manner of doing the work, and the father paid some of the help which he hired, and the relator paid some of the wages. We think the evidence and circumstances mentioned, together with the things found in the ■evidence, notwithstanding some conflict in regard thereto, warranted the findings made at the special term that the farm was jointly occupied in 1888 by the “relator and his father, David P. Dixon, and has been occupied lands, within the meaning of the statute regulating the assessment of lands divided by a town line.” We are not unobservant of the facts and circumstances testified to by the relator and his father, David P. Dixon, to the contrary of ■such finding made by the special term; but it must be borne in mind that ' where there was a conflict in the evidence it was for the trial court to determine what credence should be given to the testimony of the relator and his father, who were largely interested in the issue to which their testimony was-addressed. After a careful perusal of the facts, we are of the opinion that tlie conclusion upon the evidence of the trial court is in accordance with the weight of the evidence, and should be sustained. We are of the opinion, therefore, that under the statute which we have quoted the relator was properly assessed by the assessors in the town of Harpersfield. We think the evidence to establish the occupation is quite as satisfactory as that which was given in Smith v. Sanger, 3 Barb. 360, where the question of occupation was involved. A like observation may be made, in respect to the facts and conclusions stated in Dorn v. Backer, 61 N. Y. 262, which case supports the contention of the respondents. So far as Fellows v. Denniston, 23 N. Y. 420, is applicable, it supports the position of the respondents. In Stewart v. Crysler, 100 N. Y. 382, 3 N. E. Rep. 471, the lands in question were occupied for storage of lumber. Although owned by a non-resident of the state, it was held that they were to be regarded as occupied lands. Hampton v. Hamsher, 46 Hun, 144, contains nothing inconsistent with the views already expressed. The controversy arose prior to the passage of the act of 1886, already quoted; and in referring to section 4 of the Revised Statutes, the judge observes that the lands mentioned “mean other lands in a town, owned by an individual, which he occupies for the purpose of cultivation or improvement, either in person or by his servant or agent, but upon which he does not live.” The history of the provisions of the act of 1886 are referred to at page 111 of the "“System of Taxation” edited by Mr. Davies, and is very clearly presented on page 111 of that excellent work.

. The appellant takes exception to the findings of the trial judge, but as there was some evidence to sustain the findings, the exceptions to the same are unavailable. Porter v. Smith, 7 Civil Proc. R. 195. The appellant proposed several requests for the trial judge to find certain facts mentioned in the requests, but as we are of the opinion that there was a conflict in the evidence in respect to the facts mentioned in the requests, the refusal to find them does not furnish a basis for a reversal of the judgment. We have looked at the other exceptions urged in the argument of the learned counsel for the appellant, and we are of the opinion they furnish no ground for a reversal of the judgment, and are sufficiently answered by the views already expressed, and we are of the opinion that the judgment ought to be sustained. Judgment and order affirmed, with costs. All concur.  