We think that Pace College is entitled to complete tax exemption. It is true that subdivision 6 of section 4 of the Tax Law withholds exemption from educational or other benevolent corporations to the extent that their properties are leased for other purposes (except under certain circumstances to a similarly exempt organization), but that is not this case. This is not an instance where property has been leased for other than the purposes of incorporation of the lessor (e.g. People ex rel. Frick Collection v. Chambers, 196 Misc. 1026, affd. 276 App. Div. 891). This cafeteria is not being used by the public paying a revenue to the college as in the case of the restaurant in Young Women's Christian Assn. v. City of New York ( 217 App. Div. 406, affd. 245 N.Y. 562), nor was the property otherwise held as an investment as in People ex rel. Young Men's Assn. v. Sayles ( 32 App. Div. 197, affd. 157 N.Y. 677). The situation is different from that in People ex rel. Adelphi Coll. v. Wells ( 97 App. Div. 312, affd. 180 N.Y. 534), where a college athletic field, which the court said would be exempt if used by the college, was held to be taxable for the reason that it was also "utilized as a source of pecuniary income by renting it to outside parties for contests in which the Adelphi College students do not participate and over which the college officers have no control" ( 97 App. Div. 314). Here the cafeteria is not used as a source of income and the equipment which the college owns is put to its own use. This cafeteria is part of the operation of Pace College. Furnishing of meals to students, faculty and staff on college premises is recognized as entering into their use for educational purposes, nor does it customarily disturb full tax exemption ( People ex rel. Seminary of Our Lady of Angels v. Barber, 42 Hun 27, affd. 106 N.Y. 669; Matter of SyracuseUniv., 214 App. Div
Strict compliance with the provisions of the statute in a situation of this nature, must be made. On the petitioner rests the burden of showing that the property is being used exclusively "by the owning corporation or by another such corporation" for carrying out thereupon one or more of the purposes for which the corporations were organized. If the court finds substantial compliance with such use it may relax the rigid applicable rule ( People ex rel. Young Men's Assn. v. Sayles, 32 App. Div. 197, affd. 157 N.Y. 677; Pratt Inst. v. City of New York, 183 N.Y. 151; People ex rel. The Frick Collection v. Chambers, 196 Misc. 1026, affd. 276 App. Div. 891). The uniform rule has long been observed by our courts, which have firmly established a policy of requiring all persons and property to bear a just share of the expenses of government. This is just and equitable.
In sum, it is the "guise for profit-making operations" found impermissible in Gospel Volunteers v. Village of Speculator ( 33 A.D.2d 407, 410, affd 29 N.Y.2d 622, supra). When such operations are undertaken "in the hope, often delusive, of expanding the charity" or to assist it in supporting itself, the exemption is lost (People ex rel. Young Men's Assn. for Mut. Improvement in City of Albany v. Sayles, 32 App. Div. 197, 202, affd 157 N.Y. 677). Accordingly, the judgment of the Supreme Court, New York County (BOWMAN, J.), entered June 26, 1979 is reversed on the law and the assessment reinstated, without costs.
That the money so obtained was subsequently used for accomplishing the corporate purposes, does not bring the plaintiff corporation within the exemption of the statute. ( People ex rel. Young Men's Assn. v. Sayles, 32 App. Div. 197; affd., 157 N.Y. 677.) The patronage of the restaurant in the plaintiff's premises was not merely occasional, sporadic or an emergency use, but it was the daily practice.
A liberal construction of the language quoted permitted the result which was reached in each of those cases. The language of the present Tax Law, however, is quite different, and evinces, it seems to me, an intent to restrict the exemption to a greater extent than was permitted under the Revised Statutes. This was the view taken by the Appellate Division in the third department in the case of People ex rel. Young Men's Association v. Sayles ( 32 App. Div. 197) and People ex rel. Catholic Union v. Sayles (Id. 203) in which the opinions were written by Mr. Justice LANDON, and were adopted by the Court of Appeals in affirming the orders appealed from. ( 157 N.Y. 677, 679.) Referring to the Temple Grove Seminary case and other decisions to the same effect, Mr. Justice LANDON remarks that they arose under the Revised Statutes and special statutes, while the Tax Law prescribes exclusive use as the main test of exemption, and then guards by further provisions against the relaxation of that test. It seems to me that the effect of the affirmance of these two third department decisions by the Court of Appeals, upon the opinions below, clearly sustains the action of the court at Special Term in the present case in refusing to hold that the relator had established an exclusive use of its athletic field for educational purposes which entitled it to exemption under the Tax Law now in force.