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.
"It is the exclusive use of the real estate for carrying out thereupon one or more of the purposes of the incorporation of the relator which confers the right of exemption, and not the benefits accruing to it and its useful work from the income derived from others in consideration of their use of the real estate for their purposes." ( People ex rel. Young Men's Assn. v. Sayles, 32 App. Div. 197, 202; affd., on opinion below, 157 N.Y. 677.) Relator is primarily a lodge of a fraternal order and incidentally a landlord.
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.
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.Society v. Lawler, 74 App. Div. 553; affd., 179 N.Y. 535; People ex rel. Schenectady O.F.T.A. v. McMillan, 199 App. Div. 268. ) No question of partial exemption was before the court below and it properly refused to consider the question.
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.
The provisions of the Tax Law of the State of New York exempting property from taxation are to be strictly construed against the claimant. (See People ex rel. D.K.E. Society v. Lawler, 74 App. Div. 553, 557; affd., 179 N.Y. 535; People ex rel. Young Men's Assn. v. Sayles, 32 App. Div. 197; affd., 157 N.Y. 677; People ex rel. Adelphi College v. Wells, 97 App. Div. 312; affd., 180 N.Y. 534; People ex rel. Catholic Union v. Sayles, 32 App. Div. 203; affd., 157 N.Y. 679. See, also, Matter of Young Women's Christian Assn., 141 N.Y. Supp. 260; affd., sub nom. Young Women's Christian Assn. v. Carr, 158 App. Div. 908; Matter of Young Women's Christian Assn., 156 id. 295; affd., 209 N.Y. 534.
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. New York 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.)
Order reversed, with ten dollars costs and disbursements, and assessment confirmed, for the reason that the relators' property, although owned by a religious corporation, was not used for religious purposes, nor was such use contemplated by the relator. ( Pratt Institute v. City of New York, 99 App. Div. 525; affd., 183 N.Y. 151; People ex rel. Young Men's Assn. v. Sayles, 32 App. Div. 197; affd., 157 N.Y. 677; People ex rel. Missionary Sisters v. Reilly, 85 App. Div. 71; affd., 178 N.Y. 609. ) Jenks, P.J., Mills, Putnam, Blackmar and Kelly, JJ., concur.
The relator does not dispute that it should pay fifty cents for each $100 of principal debt or obligation, nor does it dispute the correctness of the State Board of Tax Commissioners' tabulation, but it claims that it is entitled to some kind of an exemption in addition to its deferred and apportioned payments which exemption the respondents have not granted it. It is asserting an exemption from taxation and that places the burden upon the party making such an assertion, i.e., the relator, to show that in some way it comes within some exemption of the general rule or statute for the taxation of property for which it is assessed or taxed. See People ex rel. Young Men's Association v. Sayles ( 32 App. Div. 197; affd., 157 N.Y. 677 on opinion below) in which it is said: "It is well settled that statutes exempting property from general taxation must be strictly construed against the property holder, and if the exemption is not plainly expressed it may not be presumed." See People ex rel. Westchester Fire Ins. Co. v. Davenport ( 91 N.Y. 574, 586) which reads as follows: "The courts have, therefore, required an exemption from taxation to be described in clear and unambiguous language, and to appear to be, undisputably, within the intention of the Legislature, or they have declined to enforce it."