| N.Y. App. Div. | May 4, 1955
Judgment reversed, on the law and facts, and a new trial granted, with costs to the appellant to abide the event. Memorandum: The tenant agreed “to pay all taxes to be assessed on all constructed objects located on said premises during said term.”. We think that the parties thus contemplated the payment of all legal taxes. A tenant by assuming in a lease the payment of taxes which shall be subsequently levied upon the demised premises does not thereby obligate himself to pay any taxes which may be illegal and void. (51 C. J. S., Landlord and Tenant, § 360, p. 1055; Scott v. Society of Russian Israelites, 59 Neb. 571" date_filed="1900-01-24" court="Neb." case_name="Scott v. Society of Russian Israelites">59 Neb. 571; Soulard v. Peck, 49 Mo. 477" date_filed="1872-03-15" court="Mo." case_name="Soulard v. Peck">49 Mo. 477, 478; Third & Broadway Bldg. Co. v. Southern California Edison Co., 132 Cal. App. 186" date_filed="1933-05-23" court="Cal. Ct. App." case_name="Third & Broadway Building Co. v. Southern California Edison Co.">132 Cal. App. 186.) It appears that the trailers upon which the taxes in dispute were levied were for the most part on wheels, movable, and without any permanent foundation. Trailer tenants moved such trailers in and out of the trailer camp at frequent intervals and the number of such trailers parked in the trailer camp varied from time to time. The assessors estimated an average yearly occupancy of sixteen trailers and levied an assessment of $500 per trailer. Prior to the enactment of section 2 (subd. 6-a, par. a) of the Tax Law, such trailers were not real property subject to taxation, and the assessments are illegal and void. (See Matter of Stewart v. Carrington, 203 Mise. 543.) The lighting poles, septic tanks and cesspools constructed by the defendant on the leased premises appear to constitute constructed objects within the terms of the lease and likewise constitute real property within the purview of the Tax Law. Whether or not the taxes in question include any taxes levied upon these objects is not clear from the record. The plaintiff is, by the terms of the lease, entitled to recover only for such portion, if any, of the tax which is applicable to real property constructed by the defendant during the term of the lease. All concur. (Appeal from a judgment of Steuben Trial Term for plaintiff in an action by a landlord to recover taxes assessed against the demised premises during the term of the lease.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.