Monarch Lodge No. 45 of the Improved, Benevolent & Protective Order of Elks of the World v. City of New York ( 1953 )

Thomas L. J. Corcoran, J.

In this action for a declaratory judgment, the plaintiff’s motion for judgment on the pleadings and the defendant’s cross motion for judgment on the pleadings and for summary judgment will be considered together.

The plaintiff claims that it is entitled to exemption from the New York City Sales Tax under the following provisions of section N41-2.0 of the Administrative Code, as amended by Local Law No. 71 of City of New York of the Local Laws of 1952:

“ b. Any transaction by or with the following shall not be subject to tax hereunder:

“ 4. Any corporation, or association, or trust, or community chest, fund or foundation, organized and operated exclusively for religious, charitable, or educational purposes ”.

The plaintiff’s certificate of incorporation is made part of the complaint. The particular objects for which the corporation was formed are stated to be “ benevolent, social and altruistic — to promote and encourage manly friendship and kindly intercourse, to aid, protect and assist its members and their families by voluntary contributions.”

It is apparent from the certificate of incorporation that at least some of the declared objects and purposes of the plaintiff are fraternal and social. They certainly are not exclusively religious, charitable or educational purposes. (Matter of Emil Hubsch Post, 278 App. Div. 460, affd. 303 N. Y. 682.)

On the pleadings alone, the defendant is entitled to judgment.

It is equally apparent from the documentary evidence submitted by the defendant on the cross motion for summary judgment that the plaintiff is not operated exclusively for religious, charitable, or educational purposes, as required by the exemption statute. The plaintiff maintains for its members meeting rooms, offices and various other rooms, as well as a kitchen, dining room, barroom, and lounge. The plaintiff’s gross income for the year 1952 was $77,832.76. Of this amount, $56,263.67 came from the bar and restaurant alone. Plaintiff’s other income came from membership dues (which are a very small proportion of the total gross income), sales of drinks, banquets, dances, boat rides and other operations.

The plaintiff’s motion for judgment on the pleadings is denied. The defendant’s cross motions are both granted and a declaratory judgment will be directed in its favor. Settle order.