Opinion
Argued May 16, 1945
Decided July 19, 1945
Appeal from the Supreme Court, Appellate Division, Fourth Department, HARRY L. TAYLOR, Off. Ref.
Kenneth W. Kitzinger for appellants. Andrew P. Ronan, Corporation Counsel ( Fred C. Maloney and Herbert A. Hickman of counsel), for respondent.
The City of Buffalo is the owner of 538 acres of land within the limits of the Town of Cheektowaga in Erie County. This property is used as an airport. Whether the town can levy taxes thereon is the issue to be determined. Everything turns on the following provision of the Tax Law: "Real property of a municipal corporation not within the corporation which under agreement with the corporation is used for a public park, public aviation field or highway shall be exempt from taxation while so used." (§ 4, subd. 16.)
In that context, "municipal corporation" manifestly means a municipal corporate owner of real property located outside its own corporate boundaries. Our task is to ascertain the import of the requirement that in order to be exempt from taxation such property must be used for a public park, public aviation field or highway "under agreement with the corporation".
Under various contracts with the City of Buffalo, parts of its airport have long been used for aeronautical purposes by a number of private corporations. In the courts below, each of these contracts was deemed to be an "agreement" within the sense of that word of the statute, and on that basis the property was declared to be tax free. We cannot agree to that disposition of the matter.
Though the text is pretty blind, we have no hesitation in saying that "public" is the key-word of the statute. From that viewpoint, the agreement spoken of therein does not mean a stipulation that would bind the municipal corporate owner to some individual contractor. For there was no reason why the concurrence of any private person should have been regarded by the Legislature as a necessary adjunct to the essentially municipal function of maintaining parks, highways and similar places for use by the community at large. On the other hand, there is every reason why a public use of land should be subject to a fair degree of control by the civil authorities of the locality wherein the land is situate. An adjustment to that end is, we think, the "agreement" that is contemplated by the statute. No such understanding has been reached by the City of Buffalo and the Town of Cheektowaga in this instance. It follows that the City's airport is not exempt from assessment by the town for the purposes of taxation.
The original text of the statute was as follows: "Real property of a municipal corporation not within the corporation which under agreement with the corporation is used for a public park or highway shall be exempt from taxation while so used." (L. 1924, ch. 595). The words "public aviation field" were inserted by chapter 673 of the Laws of 1926.
The orders should be reversed, with costs in all courts, and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion.
LEHMAN, Ch. J., CONWAY, DESMOND and DYE, JJ., concur; LEWIS and THACHER, JJ., dissent.
Orders reversed, etc.