
    Matter of the Appraisal for Taxation of the Estate of Benjamin H. Howell, Deceased.
    
      (Surrogate’s Court, Suffolk County,
    
    
      Filed February, 1901.)
    1. Transfer Tax — Exemption oe Corporations by Charter — Effect of L. 1900, Ch. 382, § 2 — Brooklyn Y. M. C. A., Industrial School and E. D. Hospital.
    The Industrial School of the city of Brooklyn, being exempt by its charter from taxation on personalty up to the limit of $75,000, is exempt from paying the transfer tax on a legacy to it which will not make its personalty more than that limit.
    The amended charter of the Brooklyn Y. M. C. A. makes the association a public library for the purposes of taxation and, as such a library is absolutely exempt by law from taxation, it is exempt by the Tax Law (L. 1896, ch. 908, § 220) from paying the transfer tax upon a legacy to it.
    2. Same.
    Since the passage of section 2 of chapter 382 of the Laws of 1900 declaring that “ The exemptions enumerated in section four of the Tax Law, of which this article is a part, shall not be construed as being applicable in any manner to the provisions of article ten hereof,” a corporation exempt by subdivision 7 of section 4 of the Tax Law, as organized exclusively for charitable and hospital purposes, is not exempt from the transfer tax imposed by section 220 of the Tax Law, said section constituting a part of article ten thereof.
    Appeal to the Surrogate’s Court of Suffolk county from a decree assessing and fixing tax on legacies given by will of said deceased. The facts so far as material appear in the opinion.
    Section 2 of chapter 382 of the Laws of 1900, reads as follows:
    “ § 2. Article ten of such chapter is hereby amended by adding a section to be section two hundred and forty-three, to read as follows:
    .“ § 243. Exemptions in article one not applicable. — The exemptions enumerated in section four of the tax law, of which this article is a part, shall not be construed as being applicable in any manner to the provisions of article ten hereof.”
    Otto E. Struse, for Brooklyn Eastern District Dispensary; Lyon & Smith, for- Brooklyn Young Men’s Christian Association; Eisher & Yoltz, for Industrial School; Charles E. Can-tine, for executors.
   Petty, S.

— A decree of this court was entered on October 3, 1900, assessing and fixing the tax, after the usual appraisal, on the legacies given by the will of said deceased to the Young Men’s Christian Association of Brooklyn, the Eastern District Hospital and the Industrial School of the city of Brooklyn.

The appraiser reported the legacies to these corporations as taxable, and a decree confirming such report was thereupon entered in the usual manner.

The testator died on April 16, 1900, and the law applicable to the issues raised on this appeal is, therefore, article X of the Tax Law, including chapter 382, Laws of 1900.

It is claimed by the appellants, the Young Men’s Christian Association of Brooklyn and the Industrial School of the city of Brooklyn, that they are exempt from the payment of any transfer tax, under the provisions of their respective chartei*s.

As to the Industrial School, it appears by its amended act of incorporation that its personal property is exempt from taxation to the amount of $75,000. Laws of 1870, chap. 433, §§ 1, 2. It is also shown that its personal property is below said sum.

As to the Young Men’s Christian Association of Brooklyn, it appears that by an amendment to its charter it possesses the general powers and is subject to the general restrictions and liabilities prescribed in title three of the eighteenth chapter of the first part of the Revised Statutes, and to the provisions of chapter 13 of part first of the Revised Statutes, relative to public libraries. Laws of 1884,.chap..437. Chapter 13, above mentioned, section 4, sub-division 6, then in force, provides that tbe real and personal property of every public library shall be exempt from taxation. 2 R. S. (Banks & Bros.’ 9th ed.) 1676-1677.

Chapter 437, Laws of 1884, and sub-division 6 of section 4 of chapter 13 of part 1 of the Revised Statutes must, therefore, be read together, with the result that the Young Men’s Christian Association becomes, at the time of its amended charter, for purposes of taxation a public library.

It was suggested on the argument that despite this construction the Young Men’s Christian Association might still be liable to payment of the transfer tax under the act of 1900, viz., section 243 of the Tax Law.

If it be held that the corporations and associations mentioned in section 4 of the Tax Law, to which section 243 of said law refers, are no longer exempt from the payment of transfer tax by reason of the provisions of section 243, it by no means follows that a corporation whose property is exempt by its charter from taxation is liable to payment of the transfer tax. The Young Men’s Christian Association having a charter which, as above shown, exempts it from taxation on its real and personal property and similarly the Industrial School of the city of Brooklyn, we see no escape from the view that both these corporations must be exempted under section 220 of article X of the Tax Law, which provides that the law of taxable transfers does not apply to persons and corporations exempt by law from taxation on real or personal property.

As to the Brooklyn Eastern District Hospital a different issue is raised. It is claimed that it is a corporation organized exclusively for charitable and hospital purposes, within the meaning of section 4, sub-division 7, of the Tax Law, and that being exempt from taxation under that section it is exempt from the payment of transfer tax under section 220, despite the provisions of section 243, as added in 1900.

We are unable to agree with this construction. It is argued that the exemption of this corporation, as claimed in the foregoing paragraph, stands unrepealed, in that section 243 does not repeal it expressly, and that to repeal it by implication is contrary to the policy of the law.

It is doubtless true, as argued, that repeals by implication are not favored, that the taxing power is an extraordinary power, that it should not be exercised doubtfully, but only in cases where a clear right to impose tax exists. Nevertheless, the act of 1900 cannot be nullified and disregarded. The Legislature must have had some purpose in mind when it was placed on the statute book, and while sections 4 and 220 are not expressly repealed, yet section 243 says, in effect, that in assessing and fixing the transfer tax, section 4 shall be left out of consideration entirely.

It, therefore, follows that the decree of October 3, 1900, must be modified so as to exempt from taxation herein the Young Men’s Christian Association of Brooklyn and the Industrial School, and that said decree, so far as it fixes the tax on the legacy to the Eastern District Dispensary, must be affirmed.

Decree reversed as to two appellants, affirmed as to one appellant.  