
    The People of the State of New York ex rel. The Henry Elias Brewing Company, Appellant, v. Frank Gass, as Register of the County of New York, Respondent.
    First Department,
    June 7, 1907.
    Tax—mortgage on leasehold interests taxable.
    A lease of real property being a chattel real, a mortgage thereon is a conveyance . which may be recorded, and the recording officer may refuse record unless a mortgage tax be paid.
    Appeal by the relator, The Henry Elias Brewing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the .office of the clerk of the county, of New Fork on the 13th day of March, 1907, denying the relator’s motion for a peremptory writ of mandamus to compel the respondent to receive and record a mortgage upon certain leases of premises in New York county without the payment of a tax under the Mortgage Tax Law of 1906.
    
      Arthur B. Hyman [Martin Paskus with him on the brief], for the appellant.
    
      James A. Donnelly, for the respondent.
   Clarke, J.:

On the 13th of October, 1906, the relator presented for recording to the register a mortgage bearing date the 12th day of October, 1906, made by Patrick J. Gilroy to the relator to secure the payment to it of $4,500 on demand. The said mortgage covered two leases held by said Gilroy'on certain premises in the county of New York made by Isabella Hart to Bernard Reilly, duly assigned by said Reilly to said Gilroy. Said leases were each for the term • of five years, the. unexpired terms whereof when mortgaged being less than three years. The register demanded the sum of $22.50 as the tax imposed pursuant to the provisions of chapter 729 of the Laws of 1905, as amended by chapter 532 of the Laws of 1906, relating to the taxation of mortgages.

Section 293 of the Tax Law (Laws-óf T896, chap 908), added as section 294 by the statute of 1905 and renumbered and amended by the statute of 1906, and known as .the .Mortgage Tax Law, imposes a tax on every mortgage of real property recorded on or after July 1, 1906. Section 290 of said act, as thus' added and amended, provides: “ The words real property and real estate, as used in this article, in addition to the definition thereof, contained ,in section two of this -chapter, 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 the State. The words mortgage of real property, as-used in this article, include every mortgage by which a .lien is created over or imposed on. real property or which affects the title to real .property, notwithstanding-that it-may also be a lien-on personal or other property, or that personal or other property may form part of the security for the debt or debts secured -by such mortgage.”

■ Article 8 of chapter 547 of the Laws of 1896, entitled “ An act relating to real property, constituting chapter forty-six of the general laws,” providing for the recording of instruments affecting real property,' in section 240 (as amd. by Laws of 1905, Chap.. 449) .provides that “ The term real property; as used in this article, includes lairds,. tenements and. hereditaments and chattels real, except- a lease for a term not exceeding three years. ' * *- * The term conveyance, includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned-, or by which the title to any real property may be affected, * * * except a will, á lease for a-term, not exceeding three years, an executory contract for the sale or purchase of lands, and an instrument containing a power to convey real property as the agent or attorney' for the owner of such property.” Section '241 provides' that “ A ■ conveyance of real property within .the .State, on being'duly acknowledged by the person executing the same, or proved as required by this chapter, and such acknowledgment or proof duly certified when required by this chapter, may be recorded in the office of the clerk of the county where such real property is situated.” Section ! of chapter 3 of part 2 of the Revised Statutes (as ámd, by Laws of Í896, chap. 572, § 2) provides that “Every conveyance of real estate, within this State, hereafter made, shall be recorded in the office of the clerk of the county where said .real estate shall be situated, and such county clerk shall, upon the request of any party, on a tender of the lawful fees therefor, record the same in his said office.” ' " ■ " *

It follows that the leases in the matter at.'bar which were-chattels real and were for five years and created an interest in real property, were conveyances which could be recorded, and as matter of fact . were recorded. Therefore, the written instrument- by which such interest in real estate was mortgaged was a conveyance and could be recorded. This mortgage thus comes within the Recording Act. Upon its tender, duly acknowledged, and upon the payment of his recording fees, the register could be compelled to record it. Therefore, by the definitions of the Tax Law, it came within the purview . thereof and the tax was leviable thereon, The payment of the tax having been demanded and refused, the register had no right to record it. Hence, the relator has failed to establish a legal right which can be enforced by a peremptory writ of mandamus.

The order appealed from should, therefore, be affirmed,, with costs.

Ingraham, Laughlin, Scott and Lambert, JJ., concurred.

Ingraham, J. (concurring) :

I concur with Mr. Justice Clarke. A lease of real property for a term of years grants to the lessee the right to possession of the property for the term demised, and a mortgage upon such a lease creates a lien which-affects the title to the real property within the definition of a “ mortgage of real property ” as used in section 293 of the Tax Law (as amd. by Laws of Í906, chap. 532). By section ■ 290 of tliat act, as 'thus amended, it is provided that the words “ mortgage of real property, as used in this article, include every mortgage by which a lien is created over of imposed on real property-or which affects .the title to real property,” and as a mortgage upon a leasehold interest in real property creates a lien upon an interest -in real property it affects the title to real property and- a tax is,, therefore, imposed upon recording such a rnortgage.

. Laughlin, Ji, concurred.

Order affirmed, with ten dollars costs and disbursements. ■ 
      
      Tax Law, art. 14.— [Rep.
     
      
       See Tax Law, §2, suM. 3, as amd. by-Laws of 1899, óháp. 713.—[Rep.
     
      
      See Stat. Const. Law-(Laws of 1892, chap. 677), § 33.— [Rep.
     
      
      See Tax Law, § 294, added as § 296 by Laws of 1905, chap. 729, and renumbered and amd. by Laws of 1906/chap. 532; Id. § 295, added by Laws of 1906, chap. 532.—Rep.
     
      
      
         Tax Law, art. 14.— [Rep.
     