
    THE WESTERN DISPENSARY OF THE CITY OF NEW YORK, Plaintiff v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, Defendant.
    
      Taxes—Almshouse, what falls within scope of the term as used in subdivision 4, section 4, title 1, chapter 13, part 1, Revised Statutes.
    
    The plaintiff’s building, upon which taxes were imposed, was, during the period for which they were imposed, used either as a hospital for indigent sick, or as a dispensary for the relief of the poor who called there, and its work in all its departments was entirely gratuitous, nothing being exacted for medical attendance, food, clothing, lodging, or for any other thing or reason.
    
      Held, that such use constituted the building an almshouse within the meaning of the term as used in the act relating to taxation above referred to, and that it was exempt from taxation.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    
      Submission of controversy upon agreed facts, and the question presented is, whether the real estate of the plaintiff used for the purpose of its incorporation is exempt from taxation.
    The facts sufficiently appear in the opinion.
    
      Robert W. Gilbert, attorney and of counsel for plaintiff, argued:—
    I. The institution of plaintiff was, when the taxes were laid, an almshouse within the meaning of 1 R. S., (388,) sec. 4, subd. 4, and therefore exempt from taxation. “ Section 4. The following property shall' be exempt from taxation......4. Every poorhouse, almshouse, house of industry, and every house belonging to a company incorporated for the reformation of offenders, or to improve the moral condition of seamen, and the real and personal property used for such purposes belonging to or connected with the same.” Association for Colored Orphans v. Mayor &c., 104 N. Y. 581; People ex rel. Swiss Benevolent Soc. v. Cornmrs. of Taxes, 36 Hun, 311; N. Y. Infant Asylum v. Supervisors of Westchester Co., 31 Ib. 116. (a) The object and work of an institution, not its name, decide whether it is an almshouse within the meaning of the statute. A house for infant, blind or insane paupers would commonly be called an. asylum; for the aged or maimed, a home; for the hopelessly sick, a hospital for incurables. By its corporate name the plaintiff is denominated a dispensary. The Avork of all is the same, in that they each assume the support of a class of the poor, and thus relieve the state of a part of its burden. They are, therefore, all almshouses within the meaning of the statute, (b) The use of the basement as a “ dispensary ” does not change the character of the building as a place of support for the poor, for besides contributing valuable aid to the poor in itself, the dispensary is “ fairly incident ” to the general work of the institution. People ex rel. Seminary of Our Lady &c. v. Barber, 42 Hun, 27; aff’d, 106 N. Y. 669; People ex rel. Acad, of The Sacred Heart v. Commrs. of Taxes, 6 Ib. 109; People ex rel. St. John’s Coll. v. Commrs. of Taxes, 10 Ib. 246. (c) The interpretation of the word “ almshouse ” here asked is analogous to that already given to the words “ religious society,” as they occur in the same section (§ 4). Hebrew Free School v. Mayor, 4 Ib. 446; Young Men’s Christian Assoc, v. Mayor, 44 Ib. 102. And to the words “ Public Library.” People ex rel. Amer. Geographical Soc. v. Commrs. of Taxes, 11 Ib. 505.
    II. The rule that statutes of exemption are to be construed strictly does not apply in cases of this nature. People ex rel. Amer. Geog. Soc. v. Commrs. (supra); Association for Colored Orphans v. Mayor, 104 N. Y. 587, 588 ; People ex rel. Swiss Benev. Soc. v. Comrs., 36 Hun, 314.
    III. The property being exempt by law, the tax was illegal and void. Assoc, for Colored Orphans v. Mayor (supra); N. Y. Inft. Asy. v. Supervisors, 31 Hun, 116 ; Young Men’s Christian Assoc, v. Mayor, 44 Ib. 102 ; Hebrew Benev. & Orph. Asy. v. Mayor, 11 Ib. 116 ; Matter of N. Y. Catholic Protectory, 77 N. Y. 346; Hebrew Free School Assoc, v. Mayor, 4 Hun, 446. The omission to appear before the commissioner of taxes does not give validity to the assessment. Hebrew Free School Assoc, v. Mayor (supra).
    
    IV. The tax is a lien valid on its face, and requiring extraneous evidence to show its invalidity. It is, therefore, a cloud upon the title, and an action in this form, and for the relief asked is proper. Assoc, for Colored Orphans v. Mayor, 104 N. Y. 581; Young Men’s Christian Association v. Mayor, 44 Hun, 102; Hebrew Benev. & Orph. Asy. v. Mayor, 11 Ib. 116; Hebrew Free School Assoc, v. Mayor, 4 Ib. 446; Washington Heights M. E. Church v. Mayor, 20 Ib. 297.
    
      
      Henry R. Beekman, counsel to the corporation, for defendant, argued:—
    Is the Western Dispensary an almshouse within the meaning of the statutes ? The definition of the word “ almshouse,” approved and adopted by the courts in the two cases just cited1,.is that given by Webster, “a house appropriated for the use of the poor.” If this definition should be applied literally to the facts above submitted, there would be hardly room to doubt that the Western Dispensary was an almshouse, and as such was entitled to exemption during the period mentioned. But if regard be had rather to the facts of the two cases to which reference has been made, and if the decisions be read in the light of the facts, the inquiry will suggest itself, Does the exemption of the statute apply to any institution which has not for its object, or for one of its objects, the housing of the poor ? In the case of the Swiss Benevolent Society, 36 Hun, 311, and the Colored Orphans’ Case, 104 IV". Y. 581, the societies were held exempt from taxation on the ground that they were incorporated for and in fact provided for the housing of the poor.
    In the case now submitted the object of the corporation is stated to be “the gratuitous medical and surgical relief of the poor in the city of New York.” Does this involve and permit the housing of the poor and the supplying of food and clothing, as well as medical and surgical treatment ? And if so, do the facts proven constitute the plaintiff an almshouse ? While fully appreciating the beneficence of institutions organized for charity, and conducted, as the plaintiff appears to have' been, for the comfort of many thousands of the poor, neither the city authorities nor their legal adviser feel at liberty to extend the provisions of the law beyond their clear intent, even to promote an object worthy in itself and deserving of private sympathy and co-operation. For the statutes do not in terms exempt the real or personal estate of all charitable societies from the burden of taxation. The question is therefore submitted for the opinion of the court, with a view to obtaining a judicial interpretation of the statute, as well as a determination of the present controversy.
   By the Court.—Ingraham, J.,

Plaintiff is a corporation duly organized under the act of 1848 for the incorporation of benevolent, charitable, scientific and missionary societies, and the objects stated in the certificate of the plaintiff’s corporation are, the gratuitous medical and surgical relief of the poor of the city of New York.

That during the years for which the taxes claimed to be illegal were imposed, the building on the property, upon which the taxes were imposed, was entirely devoted to charitable purposes, either as a hospital for indigent sick or as a dispensary for the relief of the poor who called there, and the work of the plaintiff in all its departments was entirely gratuitous, no fee or return having been exacted for medical attendance, food, clothing, lodging or for any other thing or reason whatever.

I think the use of this property by the plaintiff, is that of an almshouse as defined by the court of appeals in the case of The Association for Colored Orphans v. The Mayor &c., 104 N. Y. 587, and that it was exempt on that ground from taxation.

I think, therefore, plaintiff is entitled to judgment declaring the property described exempt from taxation, and that said taxes are illegal and void, and directing the cancellation thereof upon the books and records of the defendant.

Sedgwick, Ch. J., and Freedman, J., concurred.  