Albany County NyArchives Court.....Gilbert, Cornelia Vs. Timothy Moore 1889
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Source: Reports Of Cases - N Y
Written: 1889

THE PEOPLE OF THE STATE OF NEW YORK ex rel, H. CORNELIA GILBERT, Respondent, v. 
TIMOTHY MOORE and Others, Assessors of the City of Cohoes, and Others.

Review of an illegal assessment under chapter 269 of 1880— reference — refusal 
by the relator to answer questions of the assessors — sending the matter back to 
the referee — what acts constitute a change of residence.

The relator having been assessed, on July 1, 1886, by the assessors of the city 
of Cohoes upon $20,000 of personal property, appeared before them on grievance 
day and submitted affidavits tending to show that she had not resided in Cohoes 
since May 30, 1886, but had resided and continued to reside in White Creek, 
Washington county. The assessors refused to strike the assessment off the roll, 
holding that the relator was still a resident of Cohoes, whereupon the plaintiff 
instituted proceedings to review the assessment under chapter 269 of 1880, in 
which proceedings an order was made referring the matter to a referee, before 
whom the relator was sworn in behalf of the assessors.

The relator testified upon the reference that she resided in the town of White 
Creek, but refused, under the advice of counsel, to testify any further, 
alleging that the testimony was closed before the assessors, and the only 
question was one of law, whether upon that testimony the assessment should be 
stricken off the roll.

The referee certified to the testimony and to the proceedings had before him. 
Upon a motion subsequently made by the relator the matter was sent back to the 
referee to take the testimony of the relator, if the assessors still desired to 
take the same; the order also directed the relator to appear before the referee 
and submit to an examination by the assessors, which she offered to do.

The assessors served a notice that they disputed the power of the court to send 
the case back, and did not desire to examine the relator further. Thereafter an 
order was made denying a motion of the assessors to quash the writ, and it was 
directed that the valuation of the relator's personal property be stricken from 
the assessment-roll.

Held, that as the order of reference was duly made it was the duty of the 
relator to answer the questions addressed to her by the assessors touching her 
place of residence, and that her refusal was, prima facie, a contempt.

That the Special Term had the power, in its discretion, either to give her an 
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.

That as the relator offered to submit to an examination before the referee, and 
the assessors did not accept the offer or introduce other testimony, both 
parties rested their case upon the testimony given.

That as it appeared by such testimony that the relator had actually hired a 
house and taken up her residence in it, in White Creek, on June 1, 1886, and 
continued to reside in it, and had left her residence in Cohoes and had leased a 
portion of her house and furniture there to a tenant, and had been assessed for 
taxation in the town of White Creek, she was not a resident of the city of 
Cohoes on the 1st day of July, 1886, and that the assessment was properly 
stricken from the roll.

Appeal by the assessors of the city of Cohoes from an order of the Albany County 
Special Term, entered on December 27, 1888, in the office of the clerk of Albany 
county, denying their motion to quash a writ of certiorari, and directing upon 
the certiorari, return thereto, and testimony taken and other proceedings had, 
that the assessment of $20,000, valuation of the relator's personal property, be 
stricken from the assessment-roll, upon the ground that she was a non-resident 
of said city on and after the 30th day of May, 1886.

The relator, on July 1, 1886, was assessed in said city upon $20,000 of personal 
property. She sued out a writ of certiorari to review the assessment, under 
chapter 269, Laws of 1880. The assessors made return of the assessment-roll 
embracing such assessment, alleging that the relator was a resident of Cohoes at 
the time the assessment was made, and the owner of personal property of the 
value of the assessment; that the relator had appeared before the assessors 
while they were sitting to hear grievances, and submitted affidavits tending to 
show that she had not resided in Cohoes since May 30, 1886, but had resided and 
continued to reside in White Creek, Washington county. It was returned that she 
was the owner of a dwelling-house in Cohoes, of the assessed value of $8,000, in 
which she had resided for several years prior to May 30, 1886. Respecting her 
said dwelling-house and furniture, her affidavit returned by the assessors 
recited: "My household furniture at Cohoes, N. Y., has been, since June 1, 1886, 
rented by me to Mr. Vredenburgh, with my house, to October 1, 1886, and used by 
him, except a small portion which is stored in four rooms, because he did not 
want them. A portion of my furniture is in a house rented and occupied by me 
since May 30, 1886, at said town of White Creek, Washington county, which I had 
hired and occupied since May 30, 1886, continuously." She also submitted to the 
assessors the affidavit of Thomas C. Gifford, to the effect that she was 
assessed for the year 1886, in the town of White Creek, as a resident and 
taxpayer therein. The assessors refused to strike off the assessment, holding, 
in substance, that the relator was still a resident of Cohoes, and her residence 
in White Creek was evasive and temporary.

The certiorari and return coming on to be heard at the Special Term, an order 
was there made against the objection and protest of relator, but without 
prejudice to the same, sending the matter to a referee. Before the referee, the 
relator was sworn in behalf of the assessors, and testified that she resided in 
the town of White Creek, but refused, under the advice of counsel, to testify 
further, alleging that the testimony was closed before the assessors, and the 
only question was one of law whether upon that testimony the assessment should 
be stricken off the roll. One of the assessors was then sworn, and testified 
that during the whole of the month of July, 1886, the relator resided in a house 
assessed to her in the city of Cohoes. The referee certified to the testimony 
and proceedings before him, and thereupon the relator moved, at Special Term, 
that the assessment be vacated. The court ordered that the matter be sent back 
to the referee "to take the testimony of the relator, if the respondents still 
desire to take the same, and such other pertinent testimony as either party 
desire to introduce," and the relator was directed to appear before the referee 
and submit to an examination by the assessors. The assessors then served notice 
upon the relator's attorney that they disputed the power of the court to send 
the case back, and did not desire to examine the relator further or introduce 
other testimony. The relator offered to submit to their examination; thereupon 
the relator brought on the motion and hearing before the Special Term upon the 
whole proceedings, and the order was made from which this appeal is taken, the 
assessors giving notice that they intend to bring up for review the order 
sending the case back to the referee for further hearing.

P. D. Niver, for the assessors.

C. F. Doyle, for the relator.

Landon, J.:

Section 4 of chapter 269, Laws of 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 prima facie a 
contempt, and the Special Term, upon the second motion, had the discretion to 
give her an 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 case 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 Creek on the first day 
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 to a tenant. She was 
liable to taxation in White Creek. (Bell v. Pierce, 51 N. Y., 12.) She was 
actuallv 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. (Chap. 92, Laws 1850; 
chap. 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.

Learned, P. J., and Ingalls, J., concurred. 

Order affirmed, without costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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