
    The Church of St. Monica, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    Taxes—Exemption of school
    houses.
    Before a school house in the city of New York can he exempted from taxation it must belong to the public school system or be exclusively the property of an incorporated religious society.
    Appeal from judgment of the general term of the superior court of the city of New York, affirming judgment of special term of that court, declaring the property in question to have been exempt from taxation in 1882.
    This action was brought for the purpose of having certain taxes which were imposed upon real estate in the city of New York in hnd for the year 1882 adjudged void and cancelled and to restrain the collection thereof. The case was tried at a special term of the New York superior court and the trial justice found the following facts : That on or about December 22, 1881, James J. Dougherty entered into a written contract with the New York Life insurance Company for the purchase of premises known as No. 304 East Seventy-Eighth street, New York city, upon which was a four-story building with basement; that on or about January 17, 1882, for a valuable consideration, the insurance company by deed conveyed the premises to Dougherty who took the property in his own name individually, but purchased the same on behalf of and with moneys belonging to the Church of St. Monica, a religious society of the Roman Catholic Church, of which he was then pastor; that it is a common custom for priests of the Roman Catholic Church to take deeds of property in their own names and this custom was known to the archbishop at the time of the purchase, and the purchase was made with the archbishop’s knowledge and authority; that prior to January,1882, and ever since, the building was and has been used exclusively for school purposes under the management of Dougherty as pastor of the church of St. Monica; that the school was presided over by the Sisters of Charity; that all female children of St. Monica’s parish between the ages of five and sixteen years were admitted to the school, which was known as St. Monica’s Female Parochial. School, and that all branches of common school education were taught there; that the basement and several floors of the building during the period aforesaid were used as follows: The basement was the class room for primary children; the first floor the class room for larger children; the second floor was used for the chapel; the third floor for a lecture room, and the fourth floor for the residences of the Sisters of Charity (with the exception of three rooms used for storage); that the city of New York through its proper officers assessed the premises for taxation in and for the year 1882, in the sum of $7,000, and thereafter imposed .a tax upon the premises for that year based upon the assessed valuation, amounting to $157.50 ; that in the year 1885 the church of St. Monica was incorporated as a religious body under the provisions of chap. 45, Laws of 1868, and amendments; that on or about May 28, 1885, Dougherty conveyed the premises to the plaintiff, the incorporated church of St. Monica; that the parochial school is not incorporated but belongs to the plaintiff. And he found as conclusions of law that the tax of $157.50 imposed upon the property for the year 1882 was void, because at the time of the imposition thereof the property was exempt from taxation for the reason that the building was a “ school house ” within the meaning of the statute exempting school houses from taxation and was exclusively used for the purposes of a school, and was exclusively the property of a religious society; and he gave judgment for the plaintiff as prayed for.
    
      D. J. Dean, for app’lt; Alex. B. Johnson, for resp’t.
   Earl, J.

Among the property exempted from taxation in the Revised Statutes is the following: “ Every building erected for

the use of a college, incorporated academy, or other seminary of learning ; every building for public worship, every school house, court house and jail, ana the several lots whereon such buildings are situated, and the furniture belonging to each of them. R S., part 1, chap. 18, title 1, § 4, subd. 3. Under this provision it has been held that no “ seminary of learning ” is exempt from taxation unless it is incorporated, and that no school house ” is exempt unless it belongs to the public common school system of the state. Chegaray v. Mayor, ete., 13 N. Y., 220; People ex rel. v. Board of Assessors, 32 Hun, 457, affirmed in this court, 97 N. Y., 648; Association for Colored Orphans v. Mayor, etc., 104 N. Y., 581; 6 N. Y. State Rep.. 477.

If, therefore, the exemption here claimed depended upon the Revised Statutes, it is clear that it would have to be denied. There has been, however, further legislation. In 1852, chap. 282, the act “ defining the exemptions from taxation on public buildings in the city of Hew York,” was passed, the first section of whichjs as follows:

“ The exemption from taxation of every building for public worship, and every school house or other seminary of learning, under the provisions of subd. 3 of § 4, title 1, chap. 13 of part Í, of the Revised Statutes, or amendments thereof, shall not apply to any such building or premises in the city of New York, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society, or of the New York Public School Society. ” And this provision was subsequently embodied in the consolidated act relating to the city of Hew York, except the last phrase above italicized. Laws of 1882, chap. 410, § 827.

There is some dispute whether at the time this assessment was imposed the act of 1852 or the provision in the act of 1882 was in force, and it is now immaterial to determine the matter.

The provision above quoted is not happily worded, and its precise scope and meaning are not entirely clear, and its language has given some trouble to those who have had to deal with it. The Association for Benefit of Colored Orphans v. Mayor, etc., 38 Hun, 593.

It was apparently the purpose of the act of 1852 to limit and confine in the city of Hew York the exemptions contained in the Revised Statutes, and not to extend them, and hence the qualifying words, “ exclusively used for such purposes and exclusively the property of a religious society,” were added. But without undertaking to give a precise construction to these qualifying words, we think this at least is clear, that before a school house can be exempted it must belong to the public school system of the city or be “ exclusively the property of a religious society."

■ We have therefore only to determine whether this school house belonged to a religious society. We will assume that it belonged to the society at the time called the Church of St. Monica, although the legal title was held either by the insurance company or Father Dougherty. But that was an unincorporated society, and not we think such a society as the law makers meant to include in the words “ Religious Society,” used in the act of 1852. They evidently had in mind religious societies incorporated under the act of 1813, entitled an act “ to provide for the incorporation of religious societies,” or under some one of the other numerous acts for the same purpose. The words “religious society ” when used in the laws of this state, as they frequently are, generally have reference to an incorporated religious society. It cannot be supposed that it was the legislative intention that any number of persons could come together for some religious purpose and set up a school and then claim the exemption. In using the words “ religious society ” it is most probable that the law makers had in mind some legal entity capable as such of taking and holding property and popularly known as a religious society.

We are therefore of opinion that upon the facts found the plaintiff was not entitled to the relief claimed, and that the judgment should be reversed, and as there is no probability that the facts can be changed, the complaint should be dismissed, with costs.

All concur. •  