144 N.Y.S. 953 | N.Y. App. Div. | 1913
The petitioner is a domestic corporation organized under the laws of the State of New York, April 21, 1884, under an act
On the 10th of February, 1910, petitioner acquired in fee simple a certain parcel of land in the borough of The Bronx which has been owned and held by petitioner exclusively for its corporate charitable and benevolent purposes. While thus held there was made and entered against it upon the records of the city of New York an assessment for regulating and grading Bochambeau avenue, Two Hundred and Twelfth street to Van Courtlandt avenue, of $597.28. The hospital duly petitioned the comptroller, the corporation counsel and the collector of assessments and arrears to cancel and discharge the said assessment from the records of the various city departments where it now exists and, the request having been refused, applied for a mandamus to compel compliance by these officials with the request. The motion having been denied, this appeal is taken.
The General Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908, passed on May twenty-seventh and going into effect on June fifteenth of that year) has been held to have repealed by implication all prior exemptions from taxation contained in general statutes or in special acts. (Matter of Huntington, 168 N. Y. 399; Pratt Institute v. City of New York, 183 id. 151; People ex rel. Roosevelt Hospital v. Raymond, 194 id. 189.) But a year after the passage of said General Tax Law
“ Section 1. The real estate now owned or which may be hereafter acquired by the Montefiore Home for chronic invalids, a corporation created by and under the laws of the State of Hew York for charitable and benevolent purposes, shall so long as said property shall be held or used exclusively for the charitable and benevolent purposes of said corporation be exempt from any and all taxes, assessments and water rates heretofore or hereafter imposed, assessed or levied; and the officer, officers and official bodies having charge of such taxes, assessments and water rates, are hereby required and directed to cancel and discharge any and all of such taxes, assessments and water rates from the records of any department wherein they now or hereafter may exist.
“§ 2. This act shall take effect immediately.”
This statute having been passed after the General Tax Law, by an independent exercise of legislative power, created an obvious exception to the general provisions therein contained. It seems to come directly within the principle laid down in Matter of Murray Hill Bank (153 N. Y. 199, 210): “So far as the special and later statute is necessarily inconsistent with the general and earlier statute, the provisions of the former are paramount. (Townsend v. Little, 109 U. S. 504; Titcomb v. Union, &c., Ins. Co., 8 Mass. 326; Isham v. Bennington Iron Co., 19 Vt. 230; Crane v. Reeder, 22 Mich. 322; The State ex rel. Fosdick v. Perrysburg, 14 Ohio St. 472; London C. & D. R. Co. v. Wandsworth Board of Works, L. R. [8 C. P.] 185; Dwarris on Statutes, 513, 668.) In order to avoid a repeal by implication, which is not favored by the courts, the later act, or the particular provision is regarded as an exception to the earlier statute or the general provision.”
In 1901 section 18 of article 3 of the Constitution was amended to provide that the Legislature shall not pass a private or local bill “ granting to any person, association, firm or corporation an exemption from taxation on real or personal property.” This provision, of course, had no retroactive effect and left untouched the special statute of 1897 under consideration.
Chapter 620 of the Laws of 1897 has, therefore, not been repealed directly or indirectly, and is, therefore, still in full force and effect. It follows, therefore, that by the exemption provided in said act the assessment here complained of was, without warrant of law and against the direct provision of the statute, laid upon the petitioner’s property.
The question then arises whether the remedy here sought, a writ of mandamus to compel the officers to cancel the record of said assessment, is proper. The respondents claim that property owners have attempted by every form of action or proceeding known to the law to obtain the vacation or discharge of void assessments, but that in every case it has been held that the court is without power to grant relief, citing a number of cases, and that these cases are all based upon sections 958, 960 and 962 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chap. 90). They also claim that section 221a, added to the charter by chapter 388 of the Laws of 1909, providing that “ The commissioners of the sinking fund of the city of New York, upon the written certificate of the comptroller of said city approving the same, with whom such application for
The answer to both contentions, it seems to me, lies in the statute under consideration. So far as the section 221a is concerned this charter provision is limited in application, by its very terms, to the exemptions under subdivision Y of section 4 of article 1 of the Tax Law, and confers a discretionary power on the commissioners of the sinking fund by a unanimous vote, while the special act grants an absolute exemption from all forms of taxation. So far as the other sections of the charter referred to are concerned the answer is again that by the act under consideration a positive legal duty is placed upon the officers “ having charge of such taxes, assessments and water rates” and they are “ required and directed to cancel and discharge ” the same from “the records of any department wherein they now or hereafter,may exist.”
As we have held that the said act has not been repealed, either directly or impliedly, and as by said act the assessment is without warrant in law, and as a legal duty has been imposed upon the respondents to cancel the record of such illegally-laid assessment, it follows that, for the enforcement of such prescribed legal duty, the writ of mandamus is the appropriate remedy. The act is clear, positive and direct. It is evidently the product of a careful and informed drafts
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a peremptory writ of madamus granted, with ten dollars costs.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.