Opinion
Submitted March 1, 1881
Decided March 8, 1881
W.P. Goodelle for appellant. Irving G. Vann for respondent.
It was shown by affidavit that a tax of $83.95 was levied in 1876 by the board of supervisors of Onondaga county, upon Ellen Wheeler, and returned to the county treasurer uncollected for want of goods and chattels. In the affidavit she was described as a resident of the town of Salina, and it may be assumed that enough was stated to give the county judge jurisdiction over the matter, and authority to issue an order requiring Miss Wheeler "to appear and answer concerning her property," as provided by chapter 361 of the Laws of 1867. The proceeding was, however, ex parte, and it was competent for her to procure the dissolution of the order if improvidently granted. Her application was to that end and upon notice; whether it should be granted or not depended upon the question whether, at the time the tax was imposed, she was, in fact, "a resident of the county." It has been answered variously. By the county judge affirmed, and the General Term denied. We cannot say there is no evidence in its support, but it certainly is not all that way. She was a single woman and of age; at one time she occupied, with her own furniture, a room in the house of her mother, to whom she paid board money. But before the imposition of the tax she sold her furniture, gave up her room, and depending upon her own exertions for a livelihood, procured employment in New York, and then, for the double purpose of profiting by it and at the same time pursuing her musical education, went thither. She left Salina with no thought of returning, but with the intention of remaining in New York city. This was in December, 1875, and she has, in fact, since that time resided there. That she could change her residence and acquire a new one is not denied, and as it is apparent that after December, 1875, she had no dwelling or abode in Onondaga county, I am unable to see how she could do more than she has done to indicate her intention to become a resident of New York or carry that intention more completely into effect. There was an intent to change her residence, an actual removal, a new abode taken and business entered upon. It is, however, not necessary to pursue the inquiry, for the appellant has at most shown that the evidence is conflicting, and the question of fact depending thereon is not subject to review in this court. (§ 1337, Code of Civ. Proc.)
The appeal should, therefore, be dismissed, with costs.
All concur, except RAPALLO, J., absent.
Appeal dismissed.