Chegaray v. . the Mayor, C., of New-York

13 N.Y. 220

Opinion

Hand, J.

The statute in relation to the exemption of ' property from taxation, among other things, exempts “ every building erected for tl e use of a college, incorporated academy or other seminary of learning, every building for public worship, every school-house, court-house and jail; and the several lots whereon such buildings are situated, and the furniture belonging to them.” (1 R. S., 388, § 4.) The houses which the plaintiff occupies stand upon three ^ *lots; but were so constructed as to be used as one J building, and may be said to have been erected for her school, and she became the lessee and has ever since kept therein a boarding and day school for girls. The property, however, is not exempt from the payment of taxes. Not as a “school-house,” for the use of that word is familiar in this state, and its meaning in our school laws cannot well be mistaken, and we cannot suppose it was here used in a different sense. It is the building provided for the use of our public common schools.

It is said the word “seminary” is sufficiently broad to include the schools of the plaintiff, and consequently the houses in question. The word “ seminary ” has not acquired any definite and fixed legal meaning, though occasionally used in a general way to designate institutions for the promotion-of learning. (See 1 Woodd., 474; Dartmouth Coll. case, 4 Wheat., 518.) Seminarium is found in Cowell, but has no reference to schools. In this section the words “or other seminary of learning” are preceded by “college, incorporated academy;” and the position of the former in the sentence, I think jn'ecludes the idea of any property except that of corporations. By “ college,” clearly a corporation was intended. Not that the term ex vi termini implies a corporate body. Schools and various kinds of associations have sometimes received that appellation, at least by reputation and without a charter. (4 Co., 107, 108; in re Manchester College, 19 Eng. L. & E. R., 404, Landewibrevye College case, 3 Dy., 267; 2 Lev., 15.) But that is not the present and ordinary signification of the the word. (See 2 Kent, 270; Toml. Dic., “College;” Ang. & A. on Corp., 43; Wood’s Inst., 113; Holt, 143; 4 Vin., 552.) Our statutes in relation to public instruction refer to them as incorporations. (1 R. S., 460, 461, § 37.) All the institutions then mentioned in this sentence, which precede the words “ or other seminary,” being corporations, it follows that it was intended these seminaries *should |-*00q also be incorporated; within the rule that general L words following particular words apply only to things ejusdem generis. (Rex v. Manchester and Salford Water Co., 1 B. & C., 630; Casher v. Holmes, 2 B. & Ad., 592; East Lond. Heater Works v. Mile End Town, 17 Q. B., 512; 7 B. & C., 96.) And the words “ seminary” and “ seminaries” are used-in several other places in our statutes in relation to public instruction, and in every case, I believe, refer to a corporation. (See 1 R. S., 458, §§ 23, 24, 25; 459, §§ 26, 27, 28, 29; 461, §§ 36, 37.) Provision is made for the incorporation of schools other than those usually denominated colleges and academies. (1 R. S., 464, § 57, et seq.) And many have been incorporated by special acts, and under particular names; but all the property belonging to such schools, as well as to academies, immediately upon their being incorporated becomes vested in the trustees for the use and benefit of' the school. (1 R. S., 462, §§ 40, 41; ib., 465, §§ 61, 62; Laws of 1835, ch. 34, § 3.) It is evident that it was intended to exempt only property used by the public for the purposes of education, or which belonged to a corporation created for the advancement of learning, and thereby devoted to educational purposes. And it may be remarked that it is not the college, academy or seminary •that is exempt, but “ every building erected for the use” of these institutions; thereby implying that the words “college” and “ seminary,” as well as “ incorporated academy,” were here used to express some legal entity. And this is the only reasonable construction. By that contended for by the plaintiff, any person might build a school-room and establish a private school in his house, and thereby exempt the building and the lot from taxation; and, by liberal construction, every house in which a private boarding school should be kept would be exempt. The school in question appears to be a laudable, private enterprise; and I should regret very much that our decision should discourage such commendable efforts; but the meaning of the act appears *9311 **° k® plain, and that must control. The case of Chegaray v. Jenkins (1 Seld., 376), was decided entirely upon another ground, and what was there said by one of the judges on the question now before us, was wholly obiter and formed no part of the judgment.

Counsel have cited authorities and argued the question of the liability of the defendants if the property of the plaintiff had not been liable to taxation. If the cause had turned upon that point, I should very much doubt the plaintiff’s right of recovery. On the trial it was admitted that the warrant to collect the tax had been executed, and the money paid over by the constable “ according to law. and not otherwisethat is, I suppose, that it was collected and paid over in pursuance of the statutes on that subject. (See Laws of 1843, ch. 230; 1850, ch. 121.) Probably a large portion of the money raised by these assessments was applied to the use of the people of the city of New-York. But portions of it were also paid into the treasury of the state before the commencement of this suit. The tax was raised, as it is in every county, through the instrumentality of a board of supervisors. These boards are a part of the internal polity of the state, and it makes no difference that some of the city officers constitute the board of supervisors of the city and county of New-York. But even if an action of trespass or assumpsit will lie against a county for the property taken, or the amount of a tax illegally assessed and collected, a proposition which I do not admit, I do not well see how the corporation of the city of New-York can be held liable in this suit. If an action can be sustained against the corporation for money paid on an illegal assessment for local purposes, and for the particular use of the corporation, it does not follow that the liability of the city also extends to this case. However, it is not necessary to decide this point, as the property in question was not ex empt, and the judgment must be reversed and a new tria] ordered.

*Ali the judges, except Gardiner, 0. J., who took no part in the decision, concurred. [*232

Judgment reversed.