Miner v. Village of Fredonia. to file with the superintendent of the banking department, a certificate, stating the town, city or village in which he resides, and a like certificate in case of any change of residence, under a penalty of one thousand dollars, and declares it unlawful for such individual bankers to transact business under the banking act in any other place than that in which he resides. It is not stated, and cannot be assumed, that the appellant is doing business against law, and incurring a penalty for a violation of the law. It is agreed that he had, for more than seven years, had a bank of discount, deposit and circulation in the village of Fredonia, at and by means of which, he carried on his business as an individual banker, and that from the time of the commencement of his business up to within a few days or weeks of the assessment complained of, that village had been the place of his individual residence. It will be presumed that the proper certificate of residence was filed as required by law, and that the business of the appellant was entirely lawful; for it is expressly admitted to have been in pursuance of the general banking laws of the State. It is not claimed that any certificate of a change of residence has been filed, and the banking office or business has not been removed, and the plaintiff, it seems to me, is estopped, quoad the public, from alleging that his residence is not in the same village in which he continues to carry on his banking business, and where it was from the first. His business cannot lawfully be transacted in any other place. That which he cannot do without violating a public statute, and which is expressly declared to be unlawful, he ought not to be heard to allege, in order to escape taxation. The defendants and their assessors were justified in assuming that he was lawfully transacting business as an individual banker, in Fredonia. In order to do that, he was necessarily a resident of the village, and taxable not only in respect of his banking capital, but of all his personal property, certainly for the former. So far as appears from the agreed statement of facts, the pretended change of residence was entirely unknown or unsuspected by the village officers until after the actual levy of Miner v. Village of Fredonia. the tax. No notice was given to the assessors or claim made to them that the appellant was not a taxable inhabitant of the village. A change of residence as a banker can only be evidenced by a certificate of the fact, or rather that is necessary to a complete change, and is a part of the evidence; and the place of business must change with the change of residence. The change of residence may have been commenced by the appellant, but it has not been completed; and until it is perfect, he is taxable as a banker in Fredonia, at least until his banking office is removed. But upon a proper construction of the statute, and without a resort to the doctrine of estoppel, I am of opinion that the tax complained of was properly levied. An individual banker may have any number of associates, and such associates are general partners with him. (Laws, 1854, ch. 242, §§ 6, 7.) These partners are individually liable with the banker for all debts and obligations made or created by him in the business. Nevertheless, the public authorities deal with the individual banker as if he were the only person concerned in the business, and he is assessed for the banking capital as if he were the sole owner. Although he has not corporate powers, he has a representative capacity. The residence of the general partners does not control the place of business. That is fixed in reference to the resi dence of the person known as "the individual banker," that is, of the one who manages and in whose name the business is transacted, and with whom the public have to do. That residence is not a corporate residence which would be the recognized habitation for legal purposes of an ideal body, but is a quasi official or representative residence, the dwelling-place for legal and statutory purposes, not so much of the individual as the individual banker. A corporation is an inhabitant of the town or city in which its charter locates it or in which its principal place of business is. The statute looks to a similar location of the individual banker as such, and therefore the banker, when he locates his banking office, selects his residence as a banker in that place. His individual dwelling and that of his family, his lodging place and his eating place, and his Miner v. Village of Fredonia. residence as an elector may be anywhere else; but as a banker, exercising to some extent a franchise and employing his capital and funds in the business of banking under the statutes of the State, his residence is with his banking office and in the place named in his certificate. The public want to know his residence as a banker, and that they learn from his certificate and from knowing where his place of business as such is. The legal residence of a banking corporation - an invisible, intangible thing-is at its banking office; the individual banker has the same residence. Section 3 of chapter 281 of the Laws of 1844, requires the individual banker to certify his residence, and confines him to that locality for the transaction of his business. To regard this as referring to the individual residence of the banker, rather than his business residence, would compel all the individual bankers of Wall street to reside in that vicinity, and would exclude all those living in the upper and healthier parts of the city from their business; and in every city every banker must reside in the same ward in which he would have his place of business. This would be unreasonable, if not impracticable, and cannot be supposed to have been intended by the legislature, and this absurdity will not result if the statute is read as having reference to the business residence of the individual. That nothing more is intended by the statute than a business location, is evident from subsequent legislation. Section 1 of chapter 340 of the laws of 1848 (2 R. S., 5th ed., 568, § 210), which declares all banking associations and individual banks under the provisions of the general banking law to be banks of discount, deposit and circulation, directs that the usual banking business of each "shall be transacted at the place where such banking association or individual banker shall be located agreeably to the location specified in the certificate directed to be made by law, &c." By the act of 1857, ch. 189, § 7 (S. L., p. 438), an individual banker may transfer to his partner his stocks, securities and banking business and privileges, and, of necessity, by implication, the purchasing partner may continue the business in the same location. SMITH, VOL. XIII. 21 Miner v. Village of Fredonia. Whatever may be his actual dwelling place, his business resi dence, his location as a banker is that of the bank which he has purchased. So the business of an individual banker may descend or be bequeathed and the same statute in terms authorizes the business to be continued by the legatee or heirs at law without imposing actual residence in the town or ward as a condition. They assume the business location by accepting the legacy or taking as next of kin or heir at law. The business residence, the location of the appellant as a banker, being fixed by his certificate originally filed, or, if no certificate was filed, by his banking office or the place of his business, it follows that all assessments and taxes against him in respect of his banking capital, are properly made in the place thus fixed as his residence and could not properly be made elsewhere. Upon this construction the law will be relieved of all doubt and uncertainty, and the duties of assessors and others charged with the levying of taxes, will be comparatively easy of execu tion, while upon any other, there will be almost necessarily a conflict of jurisdiction between the assessing boards of different localities, and large amounts of very productive taxable pro perty may wholly escape taxation, a thing not desirable at this time. The judgment must be affirmed. DENIO, Ch. J., and EMOTT, J., dissented; ROSEkrans, J., was for affirmance, not on the ground that the statute fixed. the residence of the banker in Fredonia, but because, as he construed the Case, it was not shown that he resided elsewhere. Judgment affirmed. Herkimer v. Rice. HERKIMER, Administrator, et al., v. RICE et al. The administrator of an insolvent estate has an insurable interest in buildings belonging to it. The right of creditors to resort to a sale of real estate of the decedent for the payment of debts gives them such an interest therein as to support an insurance, and when made by the administrator it is for their benefit, so far as required to pay the debts of the estate. If the insurance moneys exceed the amount of the debts, the administrator holds them, it seems, in trust for the heirs. The renewal of a fire policy held to be made by and with the administrator, and not by the heirs, where the premium was paid by the direction of the administrator and by his agent, who was also the guardian of the heirs; the renewal receipt stating the money to have been received "from the estate" of the decedent, and the guardian, who had sufficient funds both of the administrator and of the heirs, having paid the premium out of the latter, and charged it to the heirs in his accounts. Where the insurance is effected by the heirs after the death of their ancestor, it is, it seems, for their benefit solely, notwithstanding the defeasible nature of their estate in consequence of its liability to sale for the ances tor's debts: Per DENIO, Ch. J. ACTION to obtain the direction of the Supreme Court respecting the disposition to be made of a sum of $7,068.46, which had been paid into the hands of the defendant Brainard, as surrogate of the county of Kings, being the proceeds of certain policies of insurance upon buildings formerly belonging to John Rice, deceased; which money the plaintiff Herkimer, his administrator, who was also a creditor of his estate, claimed to be distributable among his creditors. Sheppard, the other plaintiff, was likewise a creditor. The defendants, besides the surrogate, were five infants, the children and heirs-at-law of John Rice, and their general guardian, Seymour Tracy. John Rice, late of Brooklyn, died in September, 1856, intestate, and seised of real estate in the county of Yates, on which were situated certain mills, which, in his lifetime, he had caused to be insured against fire. The policies, three in number, in as many differ |