
    Congregation Kol Israel Auschi Poland v. Mayor, Etc., of the City of New York.
    
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Taxation—Exemptions—Church Pboperty.
    Under Laws N. Y. 1853, c. 382, (section 827 of the consolidation act,) which provides that buildings in the city of New York, used for public worship, shall not be exempt from taxation unless exclusively used for such purpose, a building of which the upper story is used exclusively as a synagogue, while the lower story contains the living apartments of the janitor of the synagogue, and bath-tubs, accessible, for a pecuniary consideration, payable to the janitor in lieu of salary, to all Jews, whether worshipers at that synagogue or not, is not exempt from taxation.
    Appeal from special-term.
    Action by the Congregation Kol Israel Auschi Poland against the mayor, aldermen, and commonalty of the city of Hew York, to vacate assessments for annual taxes for the years 1881, 1882, 1883, 1884, and 1885, upon the property known as Ho. 80 Eorsyth street, in the city of Hew York. Plaintiff appeals from a judgment dismissing its complaint.
    Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.
    
      Samuel J. Crooks, for appellant. Henry R. Beekman, Corporation Counsel, and J. S. Coleman, for respondent.
    
      
       Affirming 1 N. Y. Supp. 35.
    
   Macomber, J.

It was claimed upon the trial that the imposition of taxes for the years above mentioned was illegal and void, for the reason that the plaintiff is a religious corporation, and that the premises assessed were and had been used by it exclusively for religious services and worship, and' were consequently exempt from taxation, under the Revised Statutes and the laws pertaining to the city of Hew York. The exemption claimed by the plaintiff is founded upon the Revised Statutes, pt. 1, c. 13, tit. 1, § 4, subd. 3. The statute is as follows: “Every building erected for the use of a college, incorporated academy, or other seminary of learning, and in actual use for either of such purposes, every building for public worship, every school-house, courthouse, and jail, used for either of such purposes, and the several lots whereon such buildings are situated, and the furniture belonging to each of them, ” shall be exempt from taxation. Chapter 282 of the Laws of 1852, now embodied in section 827 of the consolidation act, declares that the exemption from taxation of every building used for public worship, etc., as above mentioned, shall not apply to any premises in the city of Hew York, unless such building shall be exclusively used for such purpose. The question, therefore, is whether the premises of the plaintiff were exclusively used for the purpose of public worship during the years above mentioned. The evidence establishes these facts: The plaintiff, being a domestic religious corporation, did, on the 28th day of March, 1881, purchase the property now known as Ho. 80 Forsyth street. Shortly thereafter the house which then stood upon the premises was altered and rebuilt for the purposes of the plaintiff, and from the 1st day of May, 1881, such building contained two floors or stories, continuously usedl by the plaintiff for the following purposes: The upper or second floor was used by the plaintiff and its members exclusively as a synagogue and place of holding religious services. One portion of the first or lower floor was used! and occupied by the plaintiff’s janitor, wife, and family, as living apartments;, the other portion thereof was occupied by bath-tubs for women and by a pool or plunge for cleansing. Another portion thereof was occupied by bath-tubs for men, and theremaining portion was occupied by hallways and stairs. The-bath-tubs were accessible to all men and women of the Hebrew or Jewish, race, whether members of the plaintiff’s congregation or not, who might desire to use them, and were, during the period aforesaid, frequently used by men and women of that race. Cold and warm baths were then provided for0 them by the janitor, who furnished them the necessary facilities, and received from them a pecuniary compensation therefor, which he retained for his own use, after paying the expenses for gas, fuel, and the accessories of the bath, in lieu of any salary or compensation provided to him by the plaintiff as such janitor. Under these facts, conclusively established by the evidence, it is clear that the premises of the plaintiff were not exclusively used for the purposes of public worship during any of the time mentioned, and hence cannot, claim exemption from taxation. The second story of the building, it is true,, is used for religious services and public worship, and for no other purpose. But the use of the first floor for other purposes than those exclusively religious takes the plaintiff out of the operation and protection of the statute. There-can be no question under the facts proven but that the plaintiff was welll aware of the use to which the lower story was put. It is claimed, however,, in behalf of the appellant that the bathing apartments were a part of the re- ■ ligious services, enjoined by the obligations of the tenets governing the conduct of the plaintiff’s worshipers. If it were shown that these baths were administered as a part of the preparation for receiving religious instruction, and hence formed a part of the religious conduct of the plaintiff, it would not. be-required to pay the taxes thereon; but the proof shows that the baths were-given to any persons of the Hebrew faith who applied for them, although they were not members of the plaintiff’s congregation, and took no part in any services of the plaintiff. These views render it unnecessary to consider the-question whether the taxes laid in the year 1881 stand upon a different footing from those of the succeeding years. The judgment appealed from should be affirmed, with costs. Ali concur.  