In the Matter of the Petition of David E. Austen, as Receiver of Taxes in the City of New York, Respondent, to Enforce the Payment of the Tax for Personal Property against Francis J. Crilly, Appellant

In the Matter of the Petition of David E. Austen, as Receiver of Taxes in the City of New York, Respondent, to Enforce the Payment of the Tax for Personal Property against Francis J. Crilly, Appellant. Taxation—what residence required to make UcCble to personal tcox — distinction between domicile and residence. A person who, October 1, 1894, hired a house in the city of New York for a residence while temporarily engaged in business as superintendent of the business' of a firm in the city of New York, and apparently still remains in that city, is liable to taxation for personal property under 1 Revised Statutes, chapter 13, title 2, article 1, section 5, *389, providing that “ Every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal property owned by him." The fact that such person alleges that for the past fifteen years, including the year 1895, he had been a resident of Pennsylvania, doing business in the city of Philadelphia, and had paid taxes there during that period and had always voted there, may indicate that his domicile is in the State of Pennsylvania, but not prove that his residence for the purpose of taxation- is not in New York. Appeal by Francis J. Crilly from ail order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1896, committing him to the county jail in default of the payment of a personal tax imposed upon him. In opposition to the motion to enforce payment of such tax said Crilly submitted the following affidavit: Francis J. Crilly, above named, being duly sworn, deposes and says that for the past fifteen years, including .the year 1895, he has been and now is a resident of Haverford township, Delaware county, and in business in the city of Philadelphia, State of Pennsylvania; that he has paid taxes there during said period, and has always voted there; that he had no personal property in city or State of New York during the year 1895, subject to taxation; that, about October 1, 1894, deponent hired a house in the city of New York for a residence while temporarily engaged in business, as superintendent of the business-of a firm in the city of New York, which is still his temporary residence ; that said engagement and business ceased May 1, 1895, and. he is now engaged in no business in the city or State of New York. That lie still retains his house in Haverford township, Pennsylvania, and his business in Philadelphia, and that all his property, and business, is in the State of Pennsylvania. That his sojourn in New York is merely temporary, and he has never given up his residence in Pennsylvania, or had any intention of so doing. • • Samuel G. Adams, for the appellant. R. G. Monroe, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: Mr. Crilly admits that he has a residénce in New York as well as in Pennsylvania. The Pennsylvania residence he characterizes as “ permanent; ” the New York residence as “ temporary.” The statute (2 R. S. [8th ed.] 1094) makes no such distinction. It provides that every person “shall .be assessed in the town or ward where he resides when the assessment is made for all personal estate owned by him.” Mr. Crilly tells us that his temporary residence in this city commenced on the 1st day of October, 1894. Apparently it has 'been continued from that day to this. •. It certainly continued down to the twenty-seventh of August of the present year, when his affidavit in the proceeding was made. He hired a house in this city for a residence about the 1st of October, 1894, and he was engaged in business here from that date down to the 1st of May, 1895. Clearly he confounds residence with domicile. The fact is that, though his domicile is in Pennsylvania, he has' resided here .ever since the 1st of October, 1894. What he styles his permanent residence is his domicile. What he characterizes as his temporary residence is simply his residence. He says he has paid ■taxes in Pennsylvania during the period in question. But he does not say that these taxes were upon personalty. They may have been up.on real estate. He also says that he has always voted in Pennsylvania. That may be, but it is not conclusive. - He may still be. a resident of this city for the purpose of taxation. Besides, the statement is too general. It may well mean that whenever he ■voted it was there. He does not state that hs has actually voted in Pennsylvania since the 1st day of October, 1894. The court properly found upon the relator’s affidavit, as matter of fact, -that- he was a resident of the city for the purposes of taxation. The case comes directly within the definition of residence given in Frost v. Brisbin (19 Wend. 11): “ There must be a settled, fixed abode, and intention to remain permanently, at least for a time for business or other purposes.” To the same effect are Matter of Thompson (1 Wend. 45); Bartlett v. The Mayor, etc. (5 Sandf. 44), and Douglas v. The Mayor, etc. (2 Duer, 110). The word “permanently” is used in Frost v. Brisbin (supra) as the converse of “ transient.” It expresses the idea of an abode, which may be temporary, but is not transient; that is, an abode where one settles down with some business or other object which requires it, and with the intention of remaining -steadily in the place until such object is accomplished. The order should be affirmed, with costs and disbursements. Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.