117 Misc. 600 | N.Y. Sup. Ct. | 1922
This is a proceeding to review the 1920 assessment of $20,000 upon relator’s real property, at the corner of Hawk and State streets, Schenectady, N. Y., solely upon the claim that the property is not assessable, under section 4, subdivision 7 of the Tax Law. This section first exempts the real property of a corporation or association organized exclusively for religious, bible, tract, charitable, benevolent and other purposes and then exempts “ the real property of any fraternal corporation, association or body created to build and maintain a building or buildings for its meeting or meetings of the general assembly of its members, or subordinate bodies of such fraternity and for the accommodation of other fraternal bodies or associations, the entire income of which real property is exclusively applied or to be used to build, furnish and maintain an asylum or asylums, a home or homes, a school or schools, for the free education or relief of the members of such fraternity, or for the relief, support and care of worthy and indigent members of the fraternity, their wives, widows or orphans.” The claim here is based upon the portion of the section which has been quoted. Relator is a joint corporation, formed in 1912, under section 7 of the Benevolent Orders Law, which provides, so far as material, that “ any lodges * * * within the "state, chartered by the grand lodge of the Independent Order of Odd Fellows, * * * and any number of subordinate lodges, tribes or other bodies of any benevolent or fraternal order or society,
Now, it is well settled that statutes exempting property from general taxation must be strictly construed against the property owner and that exemption may not be presumed, if it is not plainly expressed. People ex rel. Young Men’s Assn. v. Sayles, 32 App. Div. 197, 201; affd., 157 N. Y. 677. Under this rule, which must be applied here, it seems clear that the section of the Benevolent Orders Law, under which relator was incorporated, and the section of the Tax Law, under which it claims exemption, contemplate a building to be used for lodge purposes, with an occasional use, perhaps, for other fraternal purposes, and not a building devoted to and used for the many and different purposes here shown. People ex rel. N. Y. Lodge No. 1 v. Purdy, 179 App. Div. 805, 809; affd., 224 N. Y. 710; People ex rel. Mizpah Lodge v. Burke, 228 id. 245. And, relator’s by-laws specify lodge purposes only. But, even if the statutes and by-laws and the use of the property do not prevent exemption, still the property is not exempt, unless it appears that the entire net income therefrom was and is exclusively applied or to be used for the purposes enumerated in the statute. People ex rel. N. Y. Lodge No. 1 v. Purdy, supra. And it has not been so applied, notwithstanding that a net income was shown for 1919, and that one actually existed for 1918, the two years concerning which evidence was given. Relator has not construed the words “ surplus moneys,” as used in its by-laws, in the sense that the words “ entire net income ” are, used in the statute. Finally, it should be noted that, while section 6 of the by-laws directs the use of all surplus moneys for certain
Ordered accordingly.