Austen v. Crilly

42 N.Y.S. 1097 | N.Y. App. Div. | 1897

Barrett, J.:

Mr. Crilly admits that he has a residénce in New York as well as in Pennsylvania. The Pennsylvania residence he characterizes as “ permanent; ” the New York residence as “ temporary.” The statute (2 R. S. [8th ed.] 1094) makes no such distinction. It provides that every person “shall .be assessed in the town or ward where he resides when the assessment is made for all personal estate owned by him.” Mr. Crilly tells us that his temporary residence in this city commenced on the 1st day of October, 1894. Apparently it has 'been continued from that day to this. •. It certainly continued down to the twenty-seventh of August of the present year, when his affidavit in the proceeding was made. He hired a house in this city for a residence about the 1st of October, 1894, and he was engaged in business here from that date down to the 1st of May, 1895. Clearly he confounds residence with domicile. The fact is that, though his domicile is in Pennsylvania, he has' resided here .ever since the 1st of October, 1894. What he styles his permanent residence is his domicile. What he characterizes as his temporary residence is simply his residence. He says he has paid ■taxes in Pennsylvania during the period in question. But he does not say that these taxes were upon personalty. They may have been up.on real estate. He also says that he has always voted in Pennsylvania. That may be, but it is not conclusive. - He may still be. a resident of this city for the purpose of taxation. Besides, the statement is too general. It may well mean that whenever he ■voted it was there. He does not state that hs has actually voted in Pennsylvania since the 1st day of October, 1894. The court properly found upon the relator’s affidavit, as matter of fact, -that- he was a resident of the city for the purposes of taxation. The case comes directly within the definition of residence given in Frost v. Brisbin (19 Wend. 11): “ There must be a settled, fixed abode, and intention to remain permanently, at least for a time for business or other purposes.” To the same effect are Matter of Thompson (1 Wend. 45); Bartlett v. The Mayor, etc. (5 Sandf. 44), and Douglas v. The Mayor, etc. (2 Duer, 110). The word “permanently” is used in Frost v. Brisbin (supra) as the converse of “ transient.” It expresses the idea of an abode, which may be temporary, but is not transient; that is, an abode where one settles down with some business or other object which requires it, and with the intention of remaining -steadily in the place until such object is accomplished.

The order should be affirmed, with costs and disbursements.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.