Wade v. Matheson , 4 Lans. 158 ( 1870 )

By the Court

Miller, P. J.

There is no doubt of the fact, I think, that at the time the assessment complained of was made, the plaintiff was a resident of Fishkill, in Dutchess county, and liable to be assessed for his personal property in that town in accordance with the provisions of the Revised Statutes (1 R. S., 389, §5), which requires that the owner of personal estate shall be assessed for the same in the town where he resides. The continuance of the plaintiff’s business at Ogdensburg, by and through his agents, and his visits there after the removal of his family to superintend the business, and even the entry of his name in the hotel register, with “ Ogdensburg ” as the place of his residence, does not, in my opinion, establish that his residence ■was at the latter place. It is plain and clear, that he had moved his family with the intention of making Fishkill his permanent residence; and with the exception of going to Ogdensburg at irregular intervals and devoting about one-third of his time to his business there, the remainder of his time was spent at Fishkill, in the management of the business in which he was there engaged. The latter place iras his residence, his home, and his domicil, beyond any question. His transient and temporary visits to Ogdensburg did not make him a resident there, and something more was essential. (Matter of Fitzgerald, 2 Ca., 317; Roosevelt v. Kellogg, 20 Johns., 210 ; Matter of Thompson, 1 Wend., 43; If alter of Wrigley, 4 Wend., 602; 8 id., 134.) 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 that term. (Frost v. Brisbin, 19 Wend., 11; Bartlett v. City of New York, 5 Sandf., 44.) The visits to Ogdensburg were made without any intention to remain there for any length of time, but mainly to look after his interests, still remaining in that place. He had a fixed abode and a permanent residence elsewhere, and no intention whatever of returning to the place Avliere he formerly lived.

While there are cases in the books, which hold that an individual may have an actual residence for the purposes of taxation, independent of his domicil (Bartlett v. City of New York, 5 Sandf., 44; Douglass v. Mayor, etc., of New York, 2 Duer, 110, 118) there is no case which goes to the extent of deciding, that Avhere the mudenco of residence is clear and unmistakable, as in the case at bar, he can be assessed at any other place; It is not entirely essential that a person’s family should be Avith him to constitute a residence. (Frost v. Brisbin, 19 Wend., 11.) Yet Avliere family, business, and. an expressed intention carried out into practice, all combine, the fact is established beyond controversy. There is no. double residence in such a case, and no question as to domicil, Avliich can be considered as in any way in conflict Avith an actual residence.

As it is apparent that the plaintiff was not a resident of Ogdensburg at the time, it is equally manifest that the assessors had no jurisdiction of his person. The assessment AAas therefore, without authority, and they are personally liable to the plaintiff for damages arising in consequence of their unlawful act and want of jurisdiction. This principle was fully settled in The People v. Supervisors of Chenango (11 N. Y., 563) ; Mygatt v. Washburn (15 id., 316).

It is insisted by the defendant’s counsel, that the assessors being required to ascertain the names of the taxable inhabitants, under the statute (1 R. S., 391, § 8), according to the best information in their power, they acted judicially in making such inquiry, and, therefore, are not liable as trespassers. Concede that assessors act judicially, yet they have no right to extend their powers beyond their jurisdiction. There must be some authority over the person before they are at liberty to make an assessment. In The People v. Supervisors of Chenango (supra), Parker, J., says: “I concede that assessors act judicially. If Mygatt had been a resident when assessed, and they had erred as to the amount, they would not have been liable for error. (Weaver v. Devendorf, 3 Denio, 117; 7 Barb., 137; 3 Comst., 466.) But, if they had no jurisdiction to act at all, they are liable.” They must act within the scope of their authority, and then the law protects them. If they go beyond this, their action is not sustained by the shield of judicial authority. None of the cases relied upon by the defendant’s counsel sustain a different doctrine; and in all of them the assessors had jurisdiction.

In Vail v. Owen (19 Barb., 22) the action was to recover damages against the assessors for assessing the plaintiff, who claimed to be a minister of the gospel, and that he had not, at the time of the assessment, property exceeding §1,500 in value; and it was held that, for all the purposes of the assessment, the assessors have jurisdiction over all the inhabitants of the town; that the inquiry to be made was a judicial act; and that no action lies. It will be observed that the plaintiff was a resident, and, prima faoie, a taxable inhabitant, and, therefore, within the jurisdiction of the assessors, which was not the fact in the case at bar.

In Brown v. Smith (24 Barb,. 419), the land assessed laid partly in the town; and it was held that the assessors had jurisdiction of the subject-matter, and, therefore, they were not liable.

So, also, in the other cases relied upon, there was jurisdiction to authorize the assessors to consider the case presented.

(Van Rensselaer v. Witbeck, 7 Barb., 133; Bell v. Pierce, 48 id., 51; Weaver v. Devendorf, 3 Denio, 117.)

The facts connected with the plaintiff’s visits to Ogdensburg, in connection with his business, and the entries in the hotel register, which were not seen by the defendants, and which could not, therefore, have misled them, did not make plaintiff a resident of Ogdensburg, or present a question for their judicial determination. They were entirely immaterial in view of the unquestioned fact that the plaintiff had entirely changed his residence. It might as well have been claimed, in Mygatt v. Washburn, that the fact that one of the assessors called upon Mygatt a few days before his removal, and took down his name, placed opposite to it the assessment of personal property for which he was assessed, and informed him of what had been done, presented the question of his residence for their judicial action.

Upon no such ground can the action of the assessors be upheld, and they be relieved of responsibility. The occasional presence of the plaintiff’s vessels, or the situs of any other personal property belonging to him at Ogdensburg, can make no difference, as the assessors have jurisdiction only over residents in assessing personal property. As was said by Leonard, J., in Barhyte v. Shepherd (35 N. Y., 245), “ it is clear that, by the effect of the decision of this court in Mygatt v. Washburn, assessors must determine the question of residence at the peril of personal responsibility in damages in case they shall, by mistake, without fraud or malice éven, place the name of a non-resident on the assessment roll.”

Some other questions are raised as to the rulings of the judge upon the trial; but they are of no importance, if I am correct in the views I have expressed, and do not require discussion.

The case was rightly decided, and the judgment of the Special Term must be affirmed, with costs.

Judgment affirmed.