People ex rel. Gilbert v. Moore

Landón, J.

Section 4, c. 269, Laws 1880, authorized the special term, upon the return to the certiorari, to appoint a referee “to take such evidence as the court may direct, and report the same to the court. ” The reference being duly made, it was the duty of the relator to answer the questions addressed to her by the assessors, touching her place of residence. Her refusal was primafacie a contempt, and the special term, upon the second motion, had the discretion to give her opportunity to purge herself of the contempt, or to take proceedings for her summary punishment, as by striking out her testimony before the assessors, or denying her application upon the certiorari. He gave her further opportunity to testify, if the assessors requested it. They did not request it. The result is that both parties have rested their ease upon the testimony, and the question is whether upon that testimony the relator was a resident of the city of Cohoes on the 1st day of July, 1886. We think not. She had actually hired a house, and taken up her residence in it, in White Greek, on the 1st of June preceding, and continued to reside in it. She had left her residence in Cohoes, and had leased part of her house and furniture there to a tenant. She was liable to taxation in White Creek. Bell v. Pierce, 51 N. Y. 12. She was actually assessed there. Her principal business—whatever it was—had been in White Creek for a year preceding July 1, 1886. If she had two residences, then, for the purposes of taxation, her residence is deemed to be in the town of that residence in which her principal business was transacted. Chapter 92, Laws 1850; chapter 176, Laws 1851, § 2. It may be conceded that the case made by the relator is not entirely free from the suspicion which the assessors entertained with respect to it, namely, that her change of residence was temporary, and made for the purpose of avoiding taxation. But it is not improbable that if the relator had been fully examined, such suspicions would have been dispelled. She offered, when before the assessors, to submit to examination, but the offer was not then embraced. In the proceedings upon the certiorari she finally offered to submit to their examination, and the offer was rejected. We do not think we ought to impute to her any attempt to suppress the whole truth. Nor do we think that the assessors should have rested upon a suspicion which they had the opportunity to confirm or dispel, but neglected to avail themselves of it. The order is affirmed, without costs. All concur.