Sup. Ct.) PEOPLE V. WALSH VAN SICLEN, J. The relators seek to build a public garage in an area restricted to business uses, and their application has been denied by the respondents, constituting the board of appeals. The latter has the right to permit the erection of the contemplated garage, if it sees fit to exercise it. The respondents in their return to the writ of certiorari state that their reason for denying the application was "the best interests of the community" and to prevent "the desecration of the community." [1] The character of the community can be gathered from the character of the improvements now there. On one corner, opposite the applicant's site, are the car barns of the Coney Island & Brooklyn Railroad. On the other corner opposite is a stable, habitually used for about 10 horses. Within the radius of one block is a label factory, a wet wash laundry, mattress factory, an automobile paint shop, a general laundry, a stable, a coal and ice plant, and a public garage. The latter is just without the restricted area affecting the site in question, but is not more than two blocks therefrom. Only 27 per cent. of the property ownership entitled to object to the erection of the applicant's garage did object. The loudest objection appears to have been made in behalf of owners whose property is located in a wholly unrestricted area; that is to say, they would be powerless to prevent the erection of this garage next door to their property, but they and the board of appeals contend that their objection to the erection of applicant's garage, several blocks away, has such force and weight as to be determinative, if need be. The remaining property in the affected area consists of cheap, flat-roof frame dwellings, one and two stories in height, and one brick building, formerly occupied as a saloon. It will be seen therefrom that the character of the neighborhood is quite well established, and while there is a possibility that the remaining unimproved land might be improved by the erection of high class residences, the probability of such an occurrence is so remote that the erection of applicant's garage could have little or no effect thereon. All the objections filed with the board of appeals are identical in language, and were taken before the same notary public, and otherwise indicate The hearing had before that they emanated from a common source. the board was the usual cursory proceeding commonly had there, with little regard for the real essentials or merits involved in the controversy. Some discussion was indulged in there over the alleged fact. that the relator Parry was acting under an option to purchase from the owners and as agent for them. The owners have owned the site in question for many years, and the fact that the relator Parry may buy the premises, provided he can erect a garage thereon, does not appear the issues. material bearing upon to the court to have any The question, therefore, is whether or not it can be said that the board of appeals, in denying the appeal, was really acting for the best interests of the community, bearing in mind that the relators are also part of that community, as well as the rightful objectors. Can it be said that a neighborhood of this character would suffer a detriment from the erection thereon of a public garage of the character contemplated? It does not seem that any rightful interest of this community 202 N.Y.S.-4 202 NEW YORK SUPPLEMENT (Sup. Ct. has been served by their action, however good their intentions may have been. Much might be done for the benefit of this community, but in view of the fact that all the factories, stables, laundries, and car barns are permanently established there, the likelihood of any change for the better of the remaining unimproved property is most remote, so that the practical effect of the prohibiting of the erection of the applicant's garage is to take from the relator's property one of the uses for which it is adapted. [2, 3] What the board of appeals had decided was whether or not there were any practical difficulties or unnecessary hardship in carrying out the strict letter of the law which would justify it in varying the law. The petition herein fully recites in what respects it is claimed that the action of the board was erroneous, illegal, biased, discriminatory, prejudicial, and created undue hardship. The statute (Laws 1916, c. 503, adding section 719-a to the Greater New York Charter [Laws 1901, c. 466]) requires that the return "must concisely set forth such other facts as may be pertinent and material to show the grounds of decision appealed from and must be verified." The return made here wholly fails to satisfy the requirements of the statute. The decision of the board is likewise defective. In this case it does not appear that the board determined the only question it had before it to decide, to wit, whether or not there were practical difficulties or unnecessary hardship in carrying out the strict letter of the law. The determination, therefore, on whatever ground it was made, was illegal within the meaning of the statute. Consequently the matter is before this court on the merits, and this court finds that the decision rendered by the board was contrary to the weight of the evidence. The writ is sustained, the determination of the board reversed, and the permit applied for will be ordered issued. Ordered accordingly. (207 App. Div. 151) PEOPLE ex rel. BOARD OF FOREIGN MISSIONS OF THE METHODIST In re 176 PARK HILL AVE. (Supreme Court, Appellate Division, Second Department. November 16, 1923.) 1. Taxation 244-Property of religious corporation, not used exclusively for "religious purposes," held not exempt. Property of a church Board of Foreign Missions in an exclusive residence district, having several buildings, including one run as any hotel, except that certain religious workers and missionaries were given preference, a club house, with assembly rooms, bowling alleys, shower baths, etc., and a garage, from all of which a large income was obtained from outsiders, was not exempt from taxation as property used exclusively for "religious purposes." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Religious Purposes.] 2. Taxation 251-Burden of proof on one claiming exemption. The burden is on a corporation, claiming exemption from taxation on the ground that its property is used exclusively for religious purposes, to prove it, and that it has brought itself within the provisions of the statute. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (202 N. Y.S.) 3. Taxation 204 (2)—Statutory exemptions from taxation strictly construed against claimant. Provisions of the Tax Law exempting property from taxation are strictly construed against one claiming exemption. 4. Taxation 244-Exemption from taxation of part of property not shown to have been used for other than exclusive religious purposes held properly refused. Under Tax Law, § 4, subd. 7, providing that, if a portion of a lot or building of a religious corporation is used exclusively for a religious purpose, it shall be exempt from taxation only to the extent of the value of the portion so used, where property of a religious corporation, consisting of several parcels, was used as one parcel for purposes for which no exemption could be claimed, exemption of such portion as was not shown to be used for other than religious purposes was properly refused. Appeal from Special Term, Westchester County. Certiorari by the People, on the relation of the Board of Foreign Missions of the Methodist Episcopal Church, directed to the Board of Assessors of the City of Yonkers, to review assessments on property at 176 Park Hill Ave. From six separate judgments, the Board of Assessors appeal. Judgment reversed, and writs of certiorari quashed and dismissed. Argued before KELLY, P. J., and RICH, MANNING, KELBY, and YOUNG, JJ. John J. Broderick, of Yonkers (James Taylor Lewis, Corp. Counsel, of Yonkers, on the brief), for appellant. William L. Ransom, of New York City (William O. Gantz and Colley E. Williams, both of New York City, and George G. Bogert, of Ithaca, on the brief), for respondent Board of Foreign Missions. MANNING, J. The effect of the judgments so rendered was to cancel and vacate the assessments for the year 1920 made by the board of assessors of the city of Yonkers as a basis for the annual taxes for the year 1921 upon six parcels of real property owned, occupied, and used by the respondent, the Board of Foreign Missions of the Methodist Episcopal Church. After the assessments had been levied, the respondent secured six separate writs of certiorari, and, upon the board of assessors making a return thereto, an order was made referring the matter to a referee to take evidence and report. At the conclusion of the inquiry the referee made separate reports as to each parcel of property, together with findings of fact and conclusions of law, and he also rendered an opinion. His conclusion was that the assessments levied by the board of assessors were valid and legal in every respect. The respondent's contention before the referee was that, its property being, as they claimed, used exclusively for re-t ligious purposes, no assessments or taxes could legally be levied thereon. The referee found that the evidence in the case clearly showed that, notwithstanding the fact that the respondent was a corporation within the purview of the statute relating to tax exemptions, nevertheless the property upon which the exemption was claimed by the respondent was not used exclusively for religious purposes, but, on the contrary, that such property was used primarily and almost exclusively for business, and only incidentally for religious purposes. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 202 NEW YORK SUPPLEMENT (Sup. Ct. When the referee's report was presented for confirmation, the learned justice presiding at Special Term differed from the referee on this main question, and was of the opinion that the testimony elicited upon the hearings showed just to the contrary, and he therefore decided that the conclusion reached by the referee, finding the property liable to taxation, was in error. In his opinion the learned justice said: "It does not appear that the relator made a business of or habitually ex tended the use of any of the property to strangers, nor that in extending occasional privileges to strangers it did so for the purpose of pecuniary gain, or as a guise or pretense for directly or indirectly making any pecuniary profit for the board or any of its employees." The learned justice concludes by stating: "It may be said, however, in passing, that in the future it would be well for the relator to discontinue such outside activities, that it may be entirely free from any suspicion of attempting to evade the provisions of the statute." [1] A careful examination of the testimony in these cases justifies the acts of the board of assessors in levying taxes upon the property involved, and as a result the judgments appealed from must be reversed, and the action of the board of assessors upheld. The property affected consists of six separate parcels, the combined area of which is about 167 acres. Erected thereon are three substantial buildings, and the premises are located on what is known as Park Hill, said to be one of the most exclusive residential sections of the city of Yonkers. Yonkers is a city of the second class, containing over 100,000 inhabitants, and is in close proximity to the city of New York. The property was acquired by the relator at different times, but the evidence shows that the whole of the six parcels is practically used as one by the respondent for various purposes connected with the business of the missionary board. The parcel known as No. 176 Park Hill avenue is the one about which the real difficulty arose between the parties. Upon this parcel is situated a substantial 32-story frame building containing about 100 guest rooms, several large parlors, and a public dining room. The building itself is known as Wallace Lodge. Another parcel-No. 253 Van Cortlandt Park avenue-has upon it a substantial frame building known as the club house. This building contains an assembly hall seating between 300 or 400 persons, and eight smaller rooms, used for conferences. In this building there are bowling alleys, shower baths, and adjoining the building are several tennis courts. Another parcel, known and designated as No. 198 Park Hill avenue, is improved with a substantial building known as the Annex. This building contains 22 rooms. Three other parcels, known, respectively, as No. 168 Park Hill avenue, No. 102 Park Hill avenue, and No. 26 Lakeside Drive, are unimproved. The two properties on Park Hill avenue are fenced in, and the Lakeside Drive property is part of what is known as the garage land. The testimony shows that the building known as Wallace Lodge has really been devoted to hotel purposes, with its 100 guest rooms, parlors, reception rooms, and public dining room, and that it was used almost entirely for the registering of guests who came there. Before it was ac (202 N.Y.S.) quired by the missionary society, it had been a well-known boarding house. During the year 1920 guests were entertained there who were in no wise connected with the activities of the missionary society at all-in fact, they appear to have been permanent guests, paying their way, just as they would have done at any other hotel. Some of these people had been living there at various times for over two years, who had no connection with the society at all, and one of them had stayed there for three years. It is true that missionaries and clergymen stayed there for long periods of time and paid for their accommodations. Entire families, not missionaries, lived there, and their children went off to college from that place. Guests were regularly assigned to rooms, and took their meals as guests would at any hotel. Á regular hotel register was kept, and in this register no distinction was made as to whether the persons registered therein were missionaries or not. It appears that several families from Yonkers spent some portion of their time there when their homes were without servants. On many occasions all of the guests were outside guests, as many as 20 being registered in a single day, not one of whom was connected with a religious organization. Guests were accepted without any reservations whatsoever. There was a public dining room maintained in the place, in which meals were served. A cash meal book was kept. But there is nothing to show that any of the guests were connected with the missionary board. There was a regular charge for meals during the entire year, and each person desiring to dine there was obliged to purchase a meal ticket before being served. Regular prices were charged for meals, and the rates charged guests for rooms varied from three to seven dollars per day. The Lodge was advertised in various programmes as being available for entertainments. People were in the habit of going there for meals and parking their cars in the yard. Persons who stayed there overnight had their cars cared for in the association's garage. The income from the garage alone in 1920 was $1,289.04. The building known as the club house contained bowling alleys and shower baths. Both guests and outsiders had the privilege of using these bowling alleys. Circulars were sent out offering the lawn tennis courts for hire at $25 for a specified period of time. The amount received for the use of the bowling alleys and lawn tennis courts from outsiders for the year 1920 was $2,421.55. For the use of the club house auditorium and conference rooms there was a regular charge made of $10 per session. Upon the property No. 198 Park Hill avenue is a very substantial house of 22 or 25 rooms, standing in the center of a plot containing two or three In addition to the missionaries and their children, the female employees of the Lodge were domiciled therein. The properties known and designated as No. 198 Park Hill avenue and No. 102 Park Hill avenue are fenced in, and are used as recreation grounds and walks, and as a place of open air diversion for the guests of Wallace Lodge. So, from the uncontradicted evidence in this case, produced by the relator's own employees, it appears that Wallace Lodge is run just as any other hotel is run, and we find nothing in the evidence in this case to distinguish the Wallace Lodge property from any other hotel |