Opinion · New York Court of Appeals
German Masonic Temple Ass'n v. City of New York
German Masonic Temple Ass'n v. City of N.Y., 279 N.Y. 452 (New York Court of Appeals 1939)
- Type
- Opinion
- Court
- New York Court of Appeals
- Jurisdiction
- New York
- Date
- 1939-01-10
- Topic
- general
Per Curiam. Since the material allegations of the complaint are constructively admitted, there is no issue of fact and a declaratory judgment may appropriately be directed. (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198.) We think that on the facts alleged by the pleading the plaintiff is not within the exemption for “ those charitable and religious institutions which are supported wholly or in part by public subscriptions or endowment *458 and are not organized or operated for profit.” (Local Law No. 29, 1935 [§ 1, If [h], § 2] and Local Law No. 31, 1936 [§ 1, If [h], § 2] of City of New York.) Concededly the plaintiff association is operated for profit.
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Since the material allegations of the complaint are constructively admitted, there is no issue of fact and a declaratory judgment may appropriately be directed. (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198.)
We think that on the facts alleged by the pleading the plaintiff is not within the exemption for “ those charitable and religious institutions which are supported wholly or in part by public subscriptions or endowment *458 and are not organized or operated for profit.” (Local Law No. 29, 1935 [§ 1, If [h], § 2] and Local Law No. 31, 1936 [§ 1, If [h], § 2] of City of New York.) Concededly the plaintiff association is operated for profit. It is not enough that all its profits are devoted to the maintenance of an asylum which is purely charitable in character. The exemption does not extend to such a situation.
The judgments dismissing the complaint should be reversed and judgment directed for the defendants in accordance with this opinion, with costs in all courts.
Crane, Ch. J., Lehman, Loughran, Finch and Rippey, JJ., concur; O’Brien and Htjbbs, JJ., taking no part.
Judgment accordingly.