
    SHAARAI BEROCHO, a Religious Society, Respondent v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.
    
      Taxation, exemption from, by a religious society, upon the building and premises used by it for public worship.
    
    The only question of law involved in this case is whether or not the premises were exclusively used for the purpose of public worship within the meaning of the statute exempting such property from taxation. The appellant claims that the premises were not used exclusively for public worship because part of the top floor was occupied by the janitor of the church for residential purposes.
    
      Held, that the claim and objection are technical and without merit. The janitor paid nothing for the use of the rooms, was not a tenant, had no proprietory interest or estate in the premises or any part thereof, was removable at the will of the plaintiff and continued there simply because his presence was required by night as well as by day as a caretaker and watch over the property, and was also required for the proper performance of his duties as janitor in heating, opening, lighting and closing the premises. He had no possession distinct from that of the plaintiff which, being a corporation, could care for its property and perform its mission only through the necessary agents and servants required to accomplish the same. The position of janitor was incidental to the purpose of the corporation, hut his presence on, or absence from, the premises in no degree nor manner affected the right of the defendant to impose taxes on the plaintiff’s property if otherwise it was exempt from the same.
    Before Sedgwick, Ck. J., Freedman and McAdam, JJ.
    
      Decided May 2, 1892.
    Statement of the Case by the Court.
    The plaintiff is a religious society, incorporated under the laws of the state of New York. From January, 1883, to May, 1891, it was the owner in fee of a certain lot of land, with the building thereon, situate on the Southerly side of Forty-fifth street, west of Second avenue in the city of New York, known on the tax map of the city as No. 32, in Block 248, in the Nineteenth Ward. The building was used and occupied as follows :
    The basement was used for the heater and for fuel. The ground floor, which extended to nearly the full depth of the lot, was used exclusively as a synagogue or place of public worship for the congregation of the plaintiff. The second floor was mainly used asa place for religious services or instruction on mornings and afternoons during the week and for Sabbath-school exercises on Saturday afternoon and Sunday morning. The religious worship and instruction were free to all. A small portion of this floor was separated from the rest by a partition and was used, when required, as an office by the treasurer of plaintiff, and by plaintiff’s trustees. The third or top floor contained six rooms, which were used as follows : Four of the rooms by the sexton or janitor of the building, his wife and their grandchild, as living apartments. The fifth room was fitted up as a reception room, and was used by the janitor and his family, and also as a meeting place for the trustees of the plaintiff, whenever they required it. The sixth room was used as a store-room for keeping archives of the plaintiff, and the paraphernalia of the synagogue.
    The sexton or janitor paid no rent for the use and occupancy of his rooms, but received a salary from the plaintiff for his services.
    During each of the years, from 1884 to 1890 (both included), plaintiff’s premises were assessed and taxed by the defendant for state and local purposes. The taxes were regular in form but were not paid, and the plaintiff brought suit for the purpose of having the taxes declared illegal, and restraining the collection thereof on the ground that the property was exempt.
    The court at special term rendered judgment for the plaintiff granting the relief prayed for and the defendant’s appeal.
    
      William H. Clark, counsel to the corporation, and George S. Coleman of counsel, for appellant, argued:—
    I. Under the general laws of the state taxation is the rule, exemption from taxation is the exception. The language of the statute is “ all lands * * * within this state shall be liable to taxation, subject to ” certain specified exemptions.
    II. A party claiming exemption from taxation must he able to show some general or special statute conferring the immunity. Catlin v. Trustees of Trinity College, 113 N. Y., 133, pp. 137, 138.
    III. Exemptions from taxation are strictly construed and the illegality of a tax must affirmatively, unqualifiedly and conclusively appear. Cooley on Taxation, 2d edition, pp. 204, 205; People ex rel. Westchester Fire Insurance Co. v. Davenport, 91 N. Y., 574, pp. 585, 586; People ex rel. Twenty-third Street Railroad Co. v. Commissioners, 95 Ib., 554, pp. 556, 557.
    IV. In statutes relating to taxation, as in other statutes of a general character, words are to be taken in their ordinary sense. Cooley on Taxation, 2d ed., p. 264.
    Y. A simple and natural construction of the statutes above quoted would not warrant the exemption of plaintiff’s real estate. A building cannot be used exclusively for “ public worship ” and at the same time be devoted, either in whole or in part, to purposes foreign to such worship. In the present instance one floor of plaintiff’s building was used for residential purposes. It was practically a flat where people lived, and slept and prepared and ate their meals. It was the janitor’s home, and not simply and exclusively the house of God. The public worship was confined to stated intervals; hut the secular use was constant and continuous.
    
      VI. Even the most liberal construction consistent with a right use of words would not entitle, the plaintiff to the relief demanded. The court should not be asked to go any farther in its endeavor to ascertain the legislative intent than to accept and act upon the following proposition: Any building may be said to be used exclusively for public worship so long as the several parts of the building are wholly devoted to purposes necessarily connected with such worship. In the city of New York, during the winter months, it is practically essential to health that a public building be properly heated. All necessary appliances for that purpose are as appropriate to a house of worship as to any other edifice. And if a building for public worship were so large, and the heating apparatus so complex and delicate, and the public services so frequent that the constant presence of a caretaker were required, the court would doubtless feel at liberty so to construe the law as to permit the caretaker to sleep on the premises if a residence near by were shown to be impossible or insufficient. But even that would be very different from permitting a family to dwell in the building, and to carry on there its usual social life. Three comparatively recent decisions bear more or less closely upon the general provisions of the Consolidation Act (§ 827) relative to “ exclusive use,” but only one of them, the case in 52 Hun, are near the point now presented. The cases referred to are: Young Men’s Christian Association v. Mayor, 113 N. Y., 187; Church of St. Monica v. Mayor, 119 Ib., 91; Congregation Kol Israel v. Mayor, 52 Hun., 507. In each instance the tax was sustained, and we think that the views expressed in our brief accord with the principle enunciated in the case of the Congregation Kol Israel (page 509). In other words, if it were shown that the residence of the janitor and his family in the plaintiff’s building “ formed a part of the religious conduct of the plaintiff,” the exemption now contended for might be maintained, but such a claim is not made and is not proved. The judgment of the special term, in the present controversy, was based upon the opinion of the same court in the St. Monica Church case, reported in 55 Superior Court Reports, 160-172. On the question of exclusive use the court said (p. 171): “ It still remains to be considered whether the school-house and premises in question were used exclusively for school purposes. The land involved consists only of a lot 19 feet 6 inches in width and about 102 feet in depth, and on that the building stands. The building had prior to 1882, been fitted up for school purposes, and during the whole of that year it was in use as a school. Every floor was in actual use for the purpose of furnishing instruction to pupils, free of charge, except that the top floor was occupied and used by some sisters of the church as a residence. But as the sisters thus residing there had the immediate management of the school, and resided on the premises only on that account, and as their residence did not constitute a source of revenue or profit to the plaintiff, the top floor may be fairly said to have been as much devoted to a school purpose as the other floors were. Upon all the facts, the whole building and the entire premises were used exclusively for school purposes within the meaning of the statute.” In the Court of Appeals the decision turned on another point, and the court did not undertake to give a precise construction” (119 N. Y., p. 95), to the word “ exclusively,” as used in the Consolidation Act.
    
    
      Metzger & Goldey, attorneys, and Bernard Metzger of counsel, for respondent, argued :—
    I. It is conceded by the defendant that the plaintiff possesses all the elements which would entitle it to exemption under the statute, except the sole and exclusive contention upon part of the defendant, that the premises in question were, not exclusively used for the purpose of public worship within the meaning of the statute, which 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 said purposes, every building for public worship, every school-house, court-house and jail, used for either of such purposes, and the several lots whereon such buildings so used, are situate, and the furniture belonging to each of them, shall be exempt from taxes.” Banks, 8 Rev. Stat., vol. 2, p. 1083. The law applicable to the city of New York, passed in 1882, and known as chapter 410, section 827, thereof, says as follows : “ Exemption from taxes of every building for public worship, and every school-house, or other seminary of learning, under the provisions of subdivision 3 of section 4, chapter 1, of chapter 13 of part 1 of the Revised Statute or amendment thereof, are not applied 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 such religious society.” Chapter 282 of the laws of 1852, page 417, were substantially re-enacted in chapter 410 of the laws of 1882, and made no abridgment in the exemption prescribed by the Revised Statute. It is conceded that the plaintiff is a religious corporation, duly incorporated under the laws of the state of New York. It is further conceded that the property in question belonged exclusively to the plaintiff as such religious society. It is also conceded that the said premises were used by said plaintiff as such religious society, for public worship and religious instruction, except some three rooms on the top floor which was occupied by the janitor and sexton of said religious society. It would be the most unnatural, forced and violent construction of language, to hold that because a sexton and janitor occupies three or four rooms of a church edifice, consequently such premises are not exclusively devoted to religious purposes. The question at issue affects a large number of churches and synagogues belonging to various denominations, and is consequently of great importance. The findings of fact clearly establish, that it was necessary for the janitor and sexton to reside in said premises, for the following reasons: (a.) To enable the said religious society to exercise its religious belief amongst its members, by permitting them to hold religious services for public worship every morning and afternoon, during the week and for Sabbath exercises on Saturday afternoon and Sunday morning, and that to open and to close the church edifice and to do other necessary things to hold such services, it was absolutely requisite for him to he at the premises in question. (6.) It was a part of his duty as janitor to keep said premises clean, and also, during the winter months, take care of the heater and fires in said synagogue, (c.) It was also the duty of the janitor, as appears by the findings, to take care of the property of the plaintiff. There are many articles used in the ceremonies and rituals attending the public worship, which consist of both gold and silver and precious stones, and it is consequently necessary that such property should have protection.
    II. It is consequently shown, that, in this case, there was a full and substantial compliance with the statute. It is not claimed that the plaintiff received or collected any revenue from the rooms occupied by the sexton ; upon the contrary, it has been found by the court, that the sexton or janitor received a salary from the plaintiff for his services. In the case of the Congregation Kol Israel v. The Mayor, 52 Hun, 507, it appears that the first floor of the synagogue was used for living apartments by the janitor, and also for bathing apartments accessible to all men and women of the Hebrew race, whether members of the congregation or not, upon payment of a pecuniary compensation for the use thereof; consequently, the plaintiff, in that case, received a revenue and carried on a separate business, and it was upon that ground that the court held that the same was subject to taxation. The test appears to be, did the plaintiff derive any income or revenue from the rooms in question or did the plaintiff carry on a separate establishment which was foreign or outside of its proper functions as a religious society. The precise point was adjudicated upon, in the case of the Church of St. Monica v. The Mayor, 55 Sup. Court, 106. Freedman, J., amongst other things, says on page 171: “ Every floor was in actual use for the purpose of furnishing instruction to pupils free of charge, except the top floor, which was occupied by some Sisters of the Church as a residence; hut as the Sisters thus residing there had immediate management of the school and resided on the premises only on that account, and as their residence did not constitute a source of revenue and profit to the plaintiff, the top floor may be fairly said to have been as much devoted to a school purpose as the other floors were. Upon all the facts, the whole building and entire premises, were used for school purposes within the meaning of the statute,” etc., etc., etc. It is true that this case was subsequently reversed by the Court of Appeals, 119 N. Y., page 91, opinion by Earle, J. The only and precise point, however, upon which the case in question supra was reversed was that the premises, or the legal title thereto, was not held by a religious society, duly incorporated under the laws of the state of New York.
    III. The case at bar is entirely different and distinguished from any of the cases cited. It was possessed of all the legal attributes to entitle the plaintiff to exemption. It is a duly incorporated religious society; it exclusively owned the property in question; the same was entirely devoted to religious worship and instruction within the contemplation of the statute. The plaintiff received no income or revenue whatsoever from any portion of the synagogue or church edifice, except such as were paid by its contributing members. The religious worship and religious instruction were open and free to all, and such societies or religious bodies should be encouraged and the statute liberally construed. 11 Hun, 505, supra; 55 Sup. Court, 160.
   By the Court.—McAdam, J.

The facts are not in dispute, and the single question of law involved is. whether the premises, during the period mentioned, were exclusively used for purposes of public worship, within the meaning of the statutes exempting such property from taxation. Consol. Act, 1882, § 827. It is urged by the appellant, that the premises were not used exclusively for public worship, because, as they assert, part of the top floor was occupied by the janitor of the church for residential purposes. The objection is technical and without merit. The janitor paid nothing for the use of the rooms, was not a tenant, had no proprietory interest or estate in any part of the premises, was removable at will, and was there, simply because his presence, by night as well as day, was required as a caretaker of the property. He was also required to heat, open, light and close the premises. He had no possession distinct from that of the plaintiff, which being a corporation, could care for its property and perform its mission, only through the necessary agents and servants required to accomplish the praiseworthy end in view. The position of janitor was incidental to the purpose of the corporation, but his presence on or absence from the premises in no manner affected the right to impose taxes on the plaintiff’s property, if otherwise exempt from the taxing power. The property was not used for pecuniary gain as in Congregation K. I. A. P. v. The Mayor, etc., 52 Hun, 507, nor was the principal use applied to other than religious purposes as in Young Men’s Christian Asso. v. The Mayor, etc., 113 N. Y., 187, nor is the right of the plaintiff to exemption open to the want of incorporation, which was the ground of objection sustained in Church of St. Monica v. Mayor, 119 N. Y., 91, so that the cases relied on by the defendant do not reach the vital point at issue here. The object of the statute was to foster incorporated religious societies, and it must be reasonably construed according to its spirit in furtherance of the legislative intent. It cannot be frustrated by a technicality so finely drawn as that urged against the plaintiff’s right to exemption. Effect must be given to the principal thing the legislature had in view, the policy that dictated the act. These should not be subordinated to mere incidents required to give it efficacy and life. The former control—the latter follow. The judgment was right and must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.  