Williams, J. The only ground upon which the plaintiff, under the evidence, could claim the assessment to be illegal, was that William Averill, to whom it was made, was a non-resident of the city of Oswego. There was no proof that the person to whom it was assessed was not the owner, and it was not shown whether the property was occupied or not. The mere fact that it appeared to have been twice assessed on the same roll did not show this was the invalid, and the other the valid, assessment.
Hor did the fact of the payment of the tax levied upon the other assessment show that was the valid, and this was the invalid, assessment. In order to determine which was the valid assessment, it would need to be shown who was the owner or occupant of the property, and such evidence was not given. There seems to be no ground upon which the assessment could have been held invalid, unless it be that Averill, to whom it was assessed, was a non-resident.
It was held in Johnson v. Learn, 30 Barb. 616, (decided in 1859,) that land occupied by a person not the owner could be assessed to the owner, though a non-resident, the court saying: “Before the amendment of 1851, section 2 read as follows: ‘ Land owned by a person residing in the town or ward where the same is situated, but occupied by another person, may be assessed in the name of the owner or occupant.’ Since such amendment, it reads as follows: ‘ Land occupied by a person other than the owner may be assessed to the owner or occupant, or as non-resident lands.’ The change in this section is significant and important. * * * It is obvious that the statute as amended empowers the assessors 770 of a town to assess lands therein situated, occupied by a person other than the owner, though owned by a non-resident, to the owner or to the occupant, or as non-resident lands. * * * This leaves to the assessors a reasonable discretion in such cases, to be exercised with a view to the mode most likely to insure the prompt and certain collection of the tax.” In Buffalo, etc., R. Co. v. Supervisors, 48 N. Y. 101, (decided in 1871,) Earl, J., says, with reference to these provisions of statute: “Section 2 provides that land occupied by a person other than the owner may be assessed to the owner or occupant, or as non-resident land.
This section undoubtedly means that when the owner and occupant both reside in the town where the land is situated the land maybe assessed to either.
When the owner does not reside in the town, and the occupant does, it must be assessed to the occupant; and, when neither of them resides in the town, it must be assessed as non-resident land. * * * Taking all these provisions of the statute together, it seems to me quite plain that there is no authority for placing upon the assessment roll, for a tax in personam, the name of any person not an inhabitant of the town. ” In 1878, by chapter 152, this section 2 was amended so as to read as follows: “Lands occupied by a person other than the owner may be assessed to the occupant as lands of non-residents, or, if the owner resides in the county in which such lands are located, to such owner.” In Hilton v. Fonda, 86 N. Y. 347, (decided in 1881,) Folger, C. J., says, with reference to the provisions of the statute in question:' “It is now seen that the assessors of a town have no power by law to assess lands, though lying in their town, to one who is not a resident of that town or of their county.
They have no jurisdiction of his person whereby they can lawfully initiate a charge against him personally for a tax because of lands owned by him in their, town. They have jurisdiction to value the lands, none to value them against him.
The jurisdiction to value the lands as those of a non-resident does not give jurisdiction to assess them to the owner, he being a non-resident.” In Stewart v. Crysler, 100 N. Y. 382, 3 N. E. Rep. 471, (decided in 1885,) Finch, J., says, with reference to these provisions of the statute:’ “Before the amendment of 1878, c. 152, the proper construction of the enactment had been determined in this court. Buffalo, etc., R. Co. v. Supervisors, 48 N. Y. 93.
It was ruled that, when the owner and occupant both reside in the town where the land is situated, it may be assessed to either; where the owner does not reside in the town, but there is an occupant who does, it must be assessed to the occupant; and, when neither of them reside in the town, it must be assessed as non-resident land. The statute as amended [in 1878] passed under our review in Hilton v. Fonda, 86 N. Y. 346.
The result of that review was stated, to be ‘ that the assessors of a town have no power by-law to assess lands, though lying in their town, to one who is not a resident of that town, or of their county.’ ” The law must, therefore, be regarded as settled that .property cannot be assessed to a non-resident, and prior to the act of 1878 could not be assessed to a person unless he was a resident of the city in which the assessment was made. The doctrine laid down in 30 Barb, was incorrect.
So that in this case the assessment was invalid if William Averill, 'the person to whom it was made, was not a resident of the city of Oswego. The plaintiff, however, had the burden of proving the fact of non-residence. There was some evidence given on the trial upon this question by plaintiff, but it was not very satisfactory. At one moment, he seemed to be testifying from what Averill had told him, and at another from his own knowledge. The trial court did not find the fact of non-residence.
The plaintiff only requested the fact to be found in connection with other facts. There was no request as to this fact alone. The court could not, under the evidence, find the others facts as requested, and therefore properly refused to find the whole, to which an exception was taken. It cannot be said such an exception raises the question of error in refusing to find as to the fact of non-residence alone.
But, even if 771 does, I should be unwilling to reverse the judgment in the case because the-trial court refused to And this fact upon the evidence. The credibility of the witness, and the effect to be given to his evidence, was for the trial court; and the court might well have refused to credit the knowledge or truthfulness of the witness. I think, as found by the trial court, there was no case made out, showing the invalidity of the assessment, and the complaint was properly dismissed with costs.
The judgment should be affirmed, with costs.
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