#### The People ex rel. The Salvation Army, Relator, *v.*Thomas L. Feitner et al., Respondents.

(Supreme Court, New York Special Term,

January, 1901.)

Tax — Exemption of Salvation Army not affected by its use of a part of its premises as a salesroom for its goods.

The special act incorporating the Salvation Army (L. 1899, chap.. 468, §§ 8, 11) was intended, among other things, to authorize it to engage in a business incidental to its religious work and to exempt the Army from all taxation in connection therewith, and therefore the fact that a part of its premises was used by it as a salesroom for the sale of goods required by it cannot subject that part of the said premises to taxation.

Cases, where a religious corporation has used or let a part of its premises for purposes foreign to that of its incorporation, distinguished.

Cebtiobabi to review action of tax commissioners.

Benjamin E. Tracy, for relator.

John Whalen, Corporation Counsel (James M. Ward and A. T. Campbell, Jr., assistants), for respondents.

McAdam, J.

The relator, by this proceeding against the defendants, constituting the board and commissioners of taxes and assessments of the city of New York, seeks to review by certiorari an assessment upon the assessment rolls of the city of New York for taxes for the year 1900 upon two parcels of real property, at the sum of $16,000 on No. 316 East Fifteenth street, and $18,000 on Nos. 120 to 124 West Fourteenth street. It appears by the return that the assessment on the premises No. 316 East Fifteenth street was made inadvertently, and that the same should be canceled ; so that to this extent the relator is concededly entitled to an order directing the cancellation of said assessment. The defendants, by said return, claim that the assessment levied upon the premises Nos. 120 to 124 West Fourteenth street was a lawful exercise of power, because, as they allege, said premises were not *713used exclusively for the purposes for which the relator was organized in that the ground floor of the building was used as a salesroom for the sale of books, dry goods and uniforms, and other purposes foreign to those expressed in the act incorporating the relator. It is provided by said special act of incorporation (Laws of 1899, chap. 468, § 8) that “ The Salvation Army shall have power, in furtherance of its religious, charitable, missionary and educational work, to own and conduct a printing and publishing business, the business of manufacturing or buying and selling musical instruments, the business of manufacturing or buying and selling uniforms and badges for the use of the officers and soldiers of the Salvation Army, and shall have power to manufacture, buy or sell any of the articles, goods and appliances required by the Salvation Army; provided, however, that no officer, member or employee of said corporation shall receive, or may be lawfully entitled to receive, any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting one or more of such purposes, or as proper beneficiaries of its strictly charitable purposes; and provided, furthermore, that all the proceeds of said business shall be devoted to the religious, charitable, educational or missionary purposes of the Salvation Army.” Section 11 of the same act provides that “ The property of the Salvation Army, both real and personal, within this state, shall be exempt from taxation, to the extent that, and so long as, the same shall be used exclusively for places of religious meetings, homes for the training of its officers, homes for the rescue of fallen women, shelters for the poor, hospitals, places of rest and recuperation for the sick and convalescent, children’s homes and homes for the aged poor of its membership or congregation, or of the public generally,” etc. The State, in the exercise of its discretion, determined that the property of the Salvation Army should be exempt from taxation, and at the same time that it might engage in a business incidental to its religious work, the proceeds to be devoted to its religious, charitable, educational and missionary purposes. It is a legitimate inference that the legislative intent was to exempt from taxation the property used for such authorized incidental business of the relator. This, despite the fact that statutes exempting property from general taxation must be strictly construed against the property-holder, and if the exemption is not plainly expressed, it may not be presumed (People ex rel. Twenty-third St. R. R. Co. *714v. Comrs. of Taxes, 95 N. Y. 554; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 id. 574; People ex rel. Schurz v. Cook, 148 U. S. 397; New Orleans R. R. Co. v. New Orleans, 143 id. 192; Winona *&*St. Peter L. Co. v. Minnesota, 159 id. 526), and that this rule applies to religious and charitable corporations. Church of St. Monica v. Mayor, 119 N. Y. 91; Catlin v. Trustees, 113 id. 133; Roosevelt Hospital v. Mayor, 84 id. 108; Buffalo City Cemetery v. City of Buffalo, 46 id. 506. The act of incorporation embraces one general scheme, and the whole statute is to be construed by giving effect to each part thereof. End. Interp. Stat., § 23; Potter’s Dwarris Stat. 188; Peck v. Jenness, 7 How. (U. S.) 612. It is held in People ex rel. Young Men’s Assn. v. Sayles, 32 App. Div. 197; affd., 157 N. Y. 677, that where a corporation organized exclusively for the purpose of promoting benevolent and charitable purposes has erected a building, of which a portion is used for the purposes of a public library, while the remainder, consisting of a spacious and elaborately constructed theatre or hall, suitable for public meetings, exhibitions and entertainments, is leased at fixed rates of rental and used for such purposes only, the income being devoted exclusively to purposes of the library, it is liable to taxation upon such real estate to the extent of the value of that part thereof used for such theatre purposes. That decision, however, was based upon the fact that the property was not used exclusively for the purpose of the incorporation, but that the main part thereof was being permanently used for a purpose foreign thereto, and is plainly distinguishable from this case, for here the relator uses its property exclusively in the manner and to the extent authorized by the act of incorporation. In Berocho v. Mayor, 60 N. Y. Super. Ct. 479, the question involved was 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 tax authorities claimed that the premises were not so exclusively used because part of the top floor was occupied by the janitor of the church for residential purposes. The court held that the janitor had no proprietary interest or estate in the premises, was removable at will, and continued there simply because his presence was required by night as well as by day as a caretaker of the property; that the position of janitor was merely incidental to the business of the corporation, and that his presence on or absence from the premises *715in no degree or manner affected the right of exemption from taxes on the property if otherwise it was exempt therefrom. The determination of the defendants must he reversed and the assessment canceled, with costs.

Determination reversed and assessment canceled, with costs.