
    The People ex rel. New York Central & Hudson R. R. R. Co., Relator, v. Lawson Purdy et al., Tax Commissioners, etc., Respondents.
    (Supreme Court, New York Special Term,
    November, 1914.)
    Contracts — meaning of section 889a of Greater New York Charter.
    The excavation of a plot of land is not the commencement of a building to be erected thereon, nor of the construction thereof, within the meaning of section 889a of the Greater New York Charter enacted in 1913 which provides that a building in course of. construction, commenced since October 1, 1912, and not ready for occupancy, shall not be assessed.
    Application for a writ of certiorari.
    A. S. Lyman, for relator.
    Frank L. Polk, corporation counsel, for respondents.
   Bijur, J.

This is a writ of certiorari to review the 1914 assessment levied October 1, 1913, on the Hotel Biltmore. The controversy arises out of the enactment of section 889a of the Greater New York Charter (passed in 1913): “A building in course of construction, commenced since the preceding first day of Octoher and not ready for occupancy, shall not he assessed. ’ ’ The facts are not in dispute. It is conceded by the city that the Hotel Biltmore was not ready for occupancy October 1, 1913. The question to be decided is whether either the ‘ ‘ building ’ ’ or the ‘ ‘ construction of the building ’ ’ (whichever way the statute be read) was “ commenced ” before October 1, 1912. It is further conceded by the city that no work of any kind had prior to October 1, 1912, been done on the plot occupied by the Hotel Biltmore other than mere ex-' eavation (and excepting certain work done in connection with the railroad terminal improvement which has no bearing upon the present issues). It is also established that the relator had excavated the plot to enable the erection of the building and that the excavation had been almost completed on October 1, 1912. The bald question is therefore presented for decision whether the excavation of the plot is the commencement of the building or of the construction therefor within the terms of the act. The learned corporation counsel urges that as the statute is one of exemption from taxation it must be strictly construed against the taxpayer —• a principle of interpretation which may be conceded, but is really of little practical aid in the premises. Nor do I find that I can be guided by cases cited on behalf of the city in which similar language has been held to include excavation, because those eases invariably relate to the time of the attaching of mechanics’ liens — a purpose which manifestly gives an entirely different significance to the language employed. See, for example, Pusey & Jones v. Pennsylvania Paper Mills, 173 Fed. Repr. 634, 647; Mutual Benefit Life Ins. Co. v. Rowand, 26 N. J. Eq. 390; Brooks v. Lester, 36 Md. 70; Kansas Mortgage Co. v. Weyerhaeuser, 48 Kan. 335, 29 Pac. Rep. 153, 156. The statute under consideration provides that a building in course of construction * * * shall not be assessed; ” and there is the further qualification that such exemption shall apply only when the building (or its construction) has been “ commenced since the preceding first day of October ” and that it be not ready for occupancy.” It is a “ building ” which the statute exempts. Certainly a mere excavation was not in contemplation when the proviso was added that it should not be “ ready for occupancy.” Indeed, the excavation is not exempt from assessment; the land is subject to tax, and the question whether its value has been enhanced by the excavation may quite properly enter into consideration in fixing the assessment. It seems to me to be plain that in enacting this statute the legislature had two elements under consideration— the building and the land respectively — which were to be, and are, treated separately. In the light of the terms of the statute and its purpose, I do not believe that the commencement of the excavation is the commencement of the building.

Writ granted.  