The City of New York, Respondent, v. Lucius H. Beers, Trustee of the Estate of Robert Stewart, Appellant

The City of New York, Respondent, v. Lucius H. Beers, Trustee of the Estate of Robert Stewart, Appellant. First Department, July 10, 1914. Tax on personal property — residence. Where in an action to collect a tax for 1911, assessed by the city of Hew York upon personal property against the trustee of an estate, it appears that since 1904 the trustee has lived in Suffolk county from May until Hovember of each year and has moved with his family to Hew York city during the remainder of the season, and that since 1903 he has voted in Suffolk county at both State and local elections, and that for the past ten years he has been assessed for personal taxes in such county, the complaint should be dismissed. Appeal by the defendant, Lucius H. Beers, as trustee, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 1914, upon the decision of the court after a trial before the court without a jury. Franklin B. Lord, for the appellant. William H. King, for the respondent. [MAJORITY — Hotchkiss, J.:] Hotchkiss, J.: Defendant claims to have been a resident of Westhampton since July, 1910. It appears that since 1904 he has lived at Westhampton from May until November in each year. In November it is his custom to move with his family to New York city where he rents a house for the season. Since 1903 he has voted at Westhampton at both State and local elections, and he is and for the last ten years past has been assessed for personal taxes in the town of Southhampton which includes the village of Westhampton. In certain judicial proceedings to which he was a party he has, within the period last referred to, treated Suffolk as the county of his legal domicile. In 1901 the defendant obtained a writ of certiorari to review his personal assessment in this city for the year 1901. The writ was dismissed, the court holding on the record before it that the defendant was a resident of this city and liable to taxation here. It appeared in the certiorari proceedings that defendant’s course of life with respect to his several domiciles in Westhampton and New York city and the period of his use of each was practically the same as appears upon the record before us. It further appeared, however, that the defendant had voted in the city of New York at the election in 1900, and on this ground defendant was held to have elected to consider this city as his place of residence and so was liable to he assessed here. (People ex rel. Beers v. Feitner, 40 Misc. Rep. 368.) I think that inasmuch as defendant has since the period involved in the certiorari proceedings elected to adopt Westhampton as his voting place, and has by other acts shown an unequivocal intention to adopt Westhampton as his legal residence, these facts must he accepted as determinative of his intent and that the judgment should he reversed, with costs, and the complaint dismissed, with costs. Ingraham, P. J., Latjghlin, Clarke and Dowling, JJ., concurred. Judgment reversed, with costs, and complaint dismissed, with costs. Order to he settled on notice.