People ex rel. Henry Elias Brewing Co. v. Gass

Appellate Division of the Supreme Court of New York

People ex rel. Henry Elias Brewing Co. v. Gass

120 A.D. 147, 104 N.Y.S. 885, 1907 N.Y. App. Div. LEXIS 1130

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 7, 1907

StatusPublished

Cited by5 cases

This text of 120 A.D. 147 (People ex rel. Henry Elias Brewing Co. v. Gass) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People ex rel. Henry Elias Brewing Co. v. Gass, 120 A.D. 147, 104 N.Y.S. 885, 1907 N.Y. App. Div. LEXIS 1130 (N.Y. Ct. App. 1907).

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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.

[148]*148Section 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 [149]*149chapter 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.

Tax Law, art. 14.— [Rep.

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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.

[148]*148Section 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 [149]*149chapter 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.

Tax Law, art. 14.— [Rep.

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120 A.D. 147, 104 N.Y.S. 885, 1907 N.Y. App. Div. LEXIS 1130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-henry-elias-brewing-co-v-gass-nyappdiv-1907.

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