218 A.D. 38 | N.Y. App. Div. | 1926
Section 4, subdivision 7, of the Tax Law (as amd. by Laws of 1924, chap. 489), so far as material here, provides that the following property shall be exempt from taxation:
The main contention of the relator is that it is a fraternal corporation which is entitled to have its Masonic Temple totally exempted under the last portion of the provisions of said subdivision 7 quoted above. The relator was incorporated under the provisions of section 7 of the Benevolent Orders Law. On May 10, 1924, the trustees of relator, duly elected by four Masonic bodies which united to form the corporation, made and filed an amended certificate of incorporation under said section 7 of the Benevolent Orders Law (as amd. by Laws of 1924, chaps. 245, 604). The purposes of said corporation were stated in the certificate to be “ the acquiring, building and maintaining a building or buildings for its meetings or meetings of the general assembly of its members, and subordinate bodies of the Masonic Fraternity; and for the accommo
“ That the entire net income of this association, after deducting interest on its bonds, given to acquire, construct and maintain the Masonic Temple Building on South Broadway, Saratoga Springs, N. Y., heating, lighting, janitorship and the other expenses of upkeep and maintenance of said building, be and it is hereby appropriated exclusively for and to be actually applied and used by this association for the relief, support and care of worthy and indigent member's of the Masonic fraternity, their wives, widows and orphans.”
Aside from the fact that members of the “ Masonic fraternity ” are referred to, rather than members of the fraternal body created to build the building (to which reference has been made) we note that the resolution permits the net income to be applied for any kind of relief, support and care of worthy and indigent members, their wives, widows and orphans. The said provision of the exemption statute, however, seems to limit the use of such net income to building, furnishing and maintaining an asylum, home or school “ for the * * * relief, support and care of worthy and indigent members * * *, their wives, widows or orphans.” Therefore, its purpose is not the kind of charitable purpose contemplated in that portion of subdivision 7 of section 4 of the Tax Law which exempts from taxation the real property of a “ fraternal corporation, association or body created to build and maintain a building * * * for its meeting * * *, the net-income of which real property is exclusively applied or to be used ” for specific charitable purposes. The reason for the exemption is expressed in the charitable use of the income rather than in the charitable use of the real' property exempted. In this respect it is an expressed exception to the general rule of the statute. .For all these reasons we conclude that the relator is not
The relator claims that if exemption should be denied under said portion of subdivision 7 of section 4 of the Tax Law, it is entitled to have its property exempted under the first part of said subdivision. Clearly the relator’s property cannot be exempted under that portion of the statute. The relator was not “ organized exclusively ” for a charitable, benevolent, educational, library or other purpose defined in the statute, nor for two or more of such purposes. It was mainly chartered to manage its property for the benefit of certain bodies which leased it and which were separate entities, distinct from the relator. Assuming that relator could be deemed to have been organized for the charitable and benevolent purpose of using its net income for the relief of worthy and indigent persons through the passage of its resolution to that end, its real property sought to be exempted has not been “ used exclusively for carrying out thereupon ” such purpose. The use of the real property as distinguished from the income derived from its use is what is contemplated in the first portion of said subdivision. The real property in question was not used exclusively for a library. It was used in part by the Masonic bodies for their ceremonial work and another portion was used exclusively by a Masonic club. It is stipulated that said club is organized for purposes of social recreation and not for any charitable, benevolent or educational purposes, and is composed solely of Masons, but not all of them, belonging to these four Masonic bodies. The use of its portion of the building by this club is purely that of social recreation. The relator did not use the real property or carry out “ thereupon ” any purpose except in so far as it maintained a library in a part of the building. It leased the rooms to the Masonic bodies and the Masonic club for fixed rentals. The use of a portion of the building exclusively by the Masonic club for social recreation destroyed any right to claim that the real property was “ used exclusively for carrying out thereupon ” a library and one or more other educational, charitable or benevolent purposes, even assuming that the relator was “ organized exclusively ” for one or more of such purposes. This conclusion seems to be in harmony with the authorities in this State, in which the courts have uniformly applied the usual rule of strict construction of an exemption statute as against the owner claiming such a tax exemption. (People ex rel. Mizpah Lodge v. Burke, 228 N. Y. 245; People ex rel. Young Men's Assn. v. Sayles, 32 App. Div. 197; affd., 157 N. Y. 677; People ex rel. N. Y. Lodge No. 1 v. Purdy, 179 App. Div. 805; affd., 224 N. Y. 710; People ex rel. D. K. E.
No question of partial exemption was before the court below and it properly refused to consider the question. (See 126 Misc. 661.) There was no claim for partial exemption before the assessors on grievance day and the petition for certiorari was not made nor the writ obtained on any such theory.
The order appealed from should be affirmed, with costs.
Order unanimously affirmed, with costs.