#### The People ex rel. William E. Strong, Relator, *v.*Frank A. O’Donnel et al., Commissioners, Etc., Respondents.

(Supreme Court, New York Special Term,

May, 1905.)

Taxation — Personal property — Non-resident — Jurisdiction — Appearance *before*taxing officer — Certiorari — Tax Law, § 8 — Presumption of continued residence.

Where the right to assail an assessment for personal taxes is founded upon the taxing officer’s lack of jurisdiction, because of the non-residence of the relator, the latter’s appearance before the taxing officer, for the purpose of presenting proof of the invalidity of the assessment, is not necessary to entitle him to relief by certiorari.

*227Where upon certiorari to review an assessment for personal taxes in the city of New York for the year 1904, the facts show that the relator, at the time of the assessment, was a resident of New Jersey, where he voted in 1903 and was assessed for personal property in 1904, the assessment against him should be vacated, although he was also the lessee of a house in the city of New York which he and his family occupied during the winter months.

The provision of the Tax Law (L. 1896, ch. 908, § 8) that “ When a person shall have acquired a residence in a tax district, and shall have been taxed therein, such residence shall be presumed to continue for the purpose of taxation until he shall have acquired another residence in this state or shall have removed from this state,” founds the presumption of residence upon two things: The acquirement of a residence and an actual taxation, and a presumption of residence from the mere payment of a tax, or from the fact of taxation, does not obtain, and no presumption of residence in the city of New York arises from the fact that the relator paid the tax therein in 1903 without reference to the circumstances of such payment, and where it appears that the relator, assessed in the city of New York for the year 1903, went before the taxing officer, asserted that he was a resident of New Jersey and stated: “ I live some of my time in the city of New York and I am quite willing to pay something for' the maintenance of the city,” the payment of the tax, in the circumstances, cannot he taken to establish the fact of the relator’s residence in the city of New York for the year 1903, and the assessment should be stricken from the roll.

Proceedings upon certiorari to review assessment for personal taxes. -

George E. Blackwell, for relator.

Curtis A. Peters, for respondents.

Bischoff, J.

The relator seeks to review an assessment for personal taxes for the year 1904, and the question presented is whether he was a resident of the State on the second Monday of January of that year. It is urged, as a preliminary point, that the writ should he dismissed for the relator’s failure to present to the commissioners proof of the invalidity of the assessment, but since the proceeding is based upon the fact of nonresidence, the right to assail the *228assessment is founded upon the commissioners’ lack of jurisdiction; hence, it was not necessary for the relator to appear before the commissioners as a condition to his standing to obtain relief by certiorari. People ex rel. Powder Company v. Feitner, 41 App. Div. 544; Dale v. City of New York, 71 id. 227.

Upon the facts presented I am of the opinion that the relator was a resident of the State of Hew Jersey, for the purposes of taxation, at the period in question, and that the assessment should be vacated. According to the relator’s actual assertion, he resides at Seabright, in the State of Hew Jersey, in a house which he has continuously owned for a number of'years, his habit being to spend the summer and autumn, and sometimes the winter, at that place, retaining his servants there at all times, and keeping this house always ready for his occupancy and that of his family. He also maintains a place of abode on Madison avenue, in this city, which, according to his custom, he and his family have occupied during the winter months. It appears also that' in September, 1902, the relator filed a bill in chancery, in Hew Jersey, containing the recital that he was then residing at Rumson, township of Shrewsberry, county of Monmouth and State of Hew Jersey; that he voted in Hew Jersey in 1903, and that he was assessed for personal property in that State in 1904. Upon this state of facts, the circumstances accord with the relator’s expression (founded upon his intention) that he is a resident of Hew Jersey, and the fact that he is also the lessee of a-place of abode in the city of Hew York does not affect the question of his actual residence, under these circumstances. People ex rel. Lorillard v. Barker, 70 Hun, 397; People ex rel. Lawrence v. Barker, 17 N. Y. Supp. 788; People ex rel. Blocher v. Crowley, 21 App. Div. 304. The contention of the respondents is that the relator, having been taxed as a resident of this city in the year 1903, his residence is presumed to continue, and that no change in his manner of living since 1903 has been shown to have occurred; therefore, that he must be deemed a resident of this State, having acquired no other residence. The argument is based upon section 8 *229of the Tax Law (L. 1896, eh. 90S) which provides: “ When a person shall have acquired a residence in a tax district, and shall have been taxed therein, such residence shall be presumed to continue for the purpose of taxation until he shall have acquired another residence in this state or shall have removed from this state.” It is to be noted that the statute founds the presumption of residence upon two things: i. e., the acquirement of a residence and an actual taxation, and a presumption of residence from the mere payment of a tax, or from the fact of taxation, is not expressed as obtaining. The inference of. continued residence, from the payment of a tax without protest during successive years, might well arise (People ex rel. Martin v. Feitner, 33 Misc. Rep. 357); but, to reach a presumption of residence from the act of making a single payment of a tax, without reference to -the circumstances of the payment, would be beyond the apparent meaning of this statute, as well as beyond the ordinary acceptance of the rules relating to the cogency of proof.

It appears that when the relator was assessed for the year 1903, he went before one of the .commissioners and discussed the question of his residence, asserting that he was a resident of Pew Jersey, with which assertion the commissioner agreed, and the relator then stated that he would voluntarily pay a tax on the assessment of $20,000; saying: “ I live some of my túne in the city of Pew York, and I am quite willing to pay something for the maintenance of the city.”

The payment, under these circumstances, as I view it, cannot be taken to establish the fact of the relator’s residence in this city in the year 1903, and the actual fact of his residence in Pew Jersey before and after this date is thoroughly apparent and is not affected by this voluntary payment of a tax. The relator is, therefore, entitled to a final order directing that this assessment be stricken from the roll.

Ordered accordingly.