82 N.Y.S. 258 | N.Y. Sup. Ct. | 1903
This certiorari is brought pursuant to the Tax Law (Laws of 1896, chap. 908) to review the proceedings of the commissioners of taxes in assessing the personal property of the relator, as trustee, for the year 1901 at the sum of $50,000. The relator filed a verified application for the cancellation of the assessment upon the ground of nonresidence. The affidavit states: “ I object to said assessment on the ground that I am not a resident of the city of Hew York for the purposes of taxation. I reside at Westhampton Beach, in the Town of Southampton, Suffolk County, Mew York. I have resided at said place for several years last past, and had my actual residence there from about the 1st of June, 1900, to about the first of October, 1900. After October 1 I came to the City of Hew York and stayed with my mother in said city in a house owned by her at Ho. 35 West Eighty-second street. I still have my residence at Westhampton Beach, and hold the same under a three years’ lease. I expect to move there sometime next month. I was physically present at said residence at Westhampton Beach on July 1. I have never resided in a house that I owned or leased in Hew York City. Whenever I have been in Hew York City I have stayed with my mother.” The return to the writ states that the commissioners ascertained that the relator resided on January 14, 1901, with his mother at Ho. 35 West Eighty-second street, Hew York, and was physically at that place on said date, and, further, that he voted in the borough of Manhattan at the election held in Movember, 1900. These facts are undisputed and comprise all the evidence presented to the commissioners of taxes, and it is upon this evidence that the court must determine the issue of residence. The language of the affidavit is open to criticism for indefiniteness and barrenness of legal proof to support the general allegations. The objection that the relator is not a resident “ for purpose of taxation ” is a conclusion of law. The mere allegation of residence, unsupported by the evidence thereof, is not sufficient. If by “ actual residence ” the relator means “ physical presence ” at Southampton, such presence is not conclusive. The relator does not state when the three years’ lease at Southampton began, and the allegation is subject to the criticism that it may have commenced after the second Monday in January, 1901. The statement of expected return is evidence of present intention, but does not show past residence. The owning or leasing of a house
Writ dismissed, with costs.