
    (53 Misc. Rep. 363.)
    PEOPLE ex rel. HENRY ELIAS BREWING CO. v. GASS, Register.
    (Supreme Court, Special Term, New York County.
    March, 1907.)
    'Taxation—Lease—Chattel Real.
    A lease for five years is a chattel real until the expiration of the term, and is therefore “real property” within Mortgage Tax Law, Laws 1906, p. 1448, c. 532, providing that such words shall include a conveyance or mortgage which can be recorded as such under the laws of the state.
    Application by the people, on the relation of the Henry- Elias Brewing Company, against Frank Gass for a writ of mandamus.
    Application denied.
    Paskus & Cohen, for relator.
    W. S. Jackson, Atty. Gen., for respondent
   GREENBAUM, J. .

The mortgage tax law, as amended (Laws 1906, p. 1448, c. 532), provides:

“The words real property and real estate as used in this article * * * shall be understood to include everything, a conveyance or mortgage of which can be recorded as a conveyance or mortgage of real property under the laws of this state.”

The real property law defining the term “real property” in connection with its provisions referring to the record of instruments affecting real property declares that it “includes lands, tenements and hereditaments and chattels real, except a lease for a term not exceeding three years.” Real Property Law, Laws 1896, p. 607, c. 547, § 240. The lease upon which the mortgage in question was given was concededly a lease for five years. The character or quality of the lease was fixed when it became an executed instrument. It was a chattel real. It lost nothing of its character after the expiration of two years of its term. The position of the relator is that a mortgage given upon this lease before the expiration of two years of its term would be a mortgage upon “real property,” but, if given upon the same lease after that period, it would be a mortgage on “personal property.” If the lease after two years ceases being a chattel real, there would be no necessity to record the mortgage given herein after that time and no harm would come to the relator from the refusal of the register to record the mortgage unless the mortgage tax which he demands is paid. The granting of a writ of mandamus being discretionary where it is not apparent how any injury can flow to the relator from the action of the register, the writ should not issue.

Application denied.  