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.