By the Revised Statutes, as finally amended by section 2, chapter 176, of the Laws of 1851, it is provided 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," etc., "and in case any person possessed of such personal estate shall reside during any year in which taxes may be levied in two or more counties, towns or wards, his residence for the purposes and within the meaning of this section shall be deemed and held to be in the county, town or ward in which his principal business shall have been transacted."
The plaintiff resided most of the year in Buffalo and a portion of the year at his summer residence in West Seneca. All his business was transacted in the former place and none of it in the latter. Therefore, for the purposes of taxation on his personal property he must be taxed in all respects as a resident of the former place, and as if he had not resided any portion of the year in the latter place. The statute fixes his residence.
It has been thoroughly settled by repeated adjudications that assessors have no jurisdiction to assess a person for personal property unless he be a resident of the town, and if they do, they make themselves personally liable to the person assessed for the damage they occasion him. (People v. Supervisors ofChenango, 11 N.Y., 563; Mygatt v. Washburn, 15 id., 316;Barhyte v. Shepherd, 35 id., 238; Bailey v. Buell, 59 Barb., 158; Wade v. Matheson, 4 Lans., 158.) It matters not in such a case that the assessors acted in good faith or that there were some facts tending to show that the person resided in their town, or that it was difficult to determine where he resided. To give them jurisdiction he must in law and fact be a resident of the town, and while they are obliged to decide the question of residence where it is a disputed one, they are bound to decide it right or else they will not be protected. To this extent have the decisions gone. This rule of responsibility may be *Page 20 a hard one, but the law as settled applies it to assessors, and we must uphold it until the legislature sees fit to alter it.
Here, however, there was nothing to embarrass the assessors. They knew or could have known that plaintiff's principal residence was in Buffalo and that he resided in their town but a small portion of the year. It appears that he did no business whatever in their town. Hence there were not even facts enough to call for the exercise of their judgment. They had no more jurisdiction over him than they would have had over any stranger temporarily sojourning in their town. It is not sufficient to give assessors jurisdiction that they find a person in their town when they make the assessment. The jurisdiction does not attach unless he be in fact a resident. They cannot make him a resident by deciding that he is such, and they cannot acquire jurisdiction by determining that they have it.
It matters not that the plaintiff could be taxed for his real estate in West Seneca. The only question is his residence for taxation upon personal property, and that upon the law and the facts was unmistakably Buffalo, and in that place there was jurisdiction to assess him. There could not have been jurisdiction to assess him for personal property as a resident in two distinct localities.
The judgment should therefore be reversed and a new trial granted, costs to abide event.
For affirmance — LOTT, Ch. C., LEONARD and HUNT, CC.
For reversal — EARL and GRAY, CC.
Judgment affirmed. *Page 21