26 How. Pr. 413 | N.Y. Sup. Ct. | 1864
The justice’s return states that it contains all the evidence given on the trial. Assuming this to be the case, the justice should nave non-suited the plaintiff, and the jury correctly rendered a verdict for the defendants.
It was not shown that the defendants had done more than enter the plaintiff ’ name on the assessment roll. The complaint alleged that the assessment against the plaintiff was collected by a warrant issued by the defendants against the plaintiff’s property. There was no evidence that the defendants ever issued such warrant, and there is no law which authorizes town assessors to issue warrants to collect assessments. When the plaintiff rested the case the defendants moved for a non-suit on the ground that no cause of action was established by the evidence, and because the complaint was unsupported and unproved.
This was sufficient to require of the county court an affirmance of the judgment, notwithstanding errors may have been committed by the justice in the admission or rejection of evidence, none of these errors related to the question whether the plaintiff had given sufficient evidence to sustain his complaint.
But aside from this, I do not think the justice or the jury committed any error for which the judgment should have been reversed by the county court. The plaintiff testified on his own behalf that in 1855 he was a resident of Pawlett, Vermont; made it his home there; was not married, and had no family; had no home anywhere else ; and in 1855 had no place of living in Granville; he
Subsequently the plaintiff testified that he. did not vote in 1855; he testified that in the spring of 1853 or 1854, he went into Blossom’s house as he was passing and asked Blossom what he would board him for a week, and told Blossom he wanted a house; Blossom didn’t remember the
I think the jury were justified in finding from this evidence that plaintiff was'a resident of Granville in 1855. He transacted the principal part of his business there, received and mailed his letters there, kept his papers in a Safe there; boarded there a considerable portion of his time, and had the most of his washing done there. Aside from the secret intent of the plaintiff, these 'acts-Would furnish strong evidence- that the plaintiff’s residence was at Granville, he being a single man and having no family. The jury was justified in disregarding the plaintiff’s testimony as to his intent. Blossom did not agree with plaintiff as to the remark that he wanted a house, and the plaintiff has contradicted himself on the- subject of voting in 1856.
The evidence that plaintiff did not pay taxes in Pawlett was objected to; and the objection was properly overruled. A man’s residence- is where he exercises his political rights, such as voting for public officers, and discharges his political duties, such as paying taxes for the support of the government. The plaintiff had sworn to his secret purpose or intent to regard Pawlett as his residence in 1855, and that he was a voter there in that year.
The defendants proved that he did not vote in Pawlett in 1855. This showed that he did not exercise his political right there, and the evidence offered that he did not pay taxes there in 1855 showed that he did not perform his political- duty there. Clearly the conduct of a man is competent evidence upon the subject of residence. This was decided' in the case of Richmond agt. Vassalborough, (5 Greenl. R. 396), and was approved in the case of Crawford agt. Wilson, (4 Barb. R. 522, 523.)
The non-residents of this state, who are to be taxed under the act of 1855, are to be taxed “ the same as if they were residents.” Clearly if the plaintiff was a resident of Granville peddling, buying and selling goods, skins and hides, he would be subject to taxation on the money invested in such business. It is said that the plaintiff peddled goods and bought skins and hides in 50 other towns besides Granville; to the extent that he so traded he interfered with the established traders settled in those towns and enjoyed the protection of the government over himself and his property, and should be taxed in each for the money invested in each town in his business. If by mistake he should be assessed in all the 50 towns for the same
It is objected that the justice erred in allowing the defendants to prove that they came to the conclusion that plaintiff was liable to be taxed. The answer to this is that the plaintiff had previously given the same evidence by introducing the assessment roll, signed by the defenfendants as assessors, with the plaintiff’s name upon it. Besides the law presumed the fact proved without any evidence.
I think that justice was done by the jury, that the reversal of the judgment of the justice was erroneous, and that the judgment of the county court should be reversed, and that of the justice affirmed with (double) costs.
Bockes, J., dissented.
A motion made for leave to go to the court of appeals was denied.
Bockes, J., dissenting.