People ex rel. Untermyer v. McGregor

• Decision Date: 07 March 1946
• Citation: 295 N.Y. 237,66 N.E.2d 292
• Parties: PEOPLE ex rel. UNTERMYER et al. v. McGREGOR, Acting Commissioner of Assessment and Taxation. PEOPLE ex rel. SAMUEL UNTERMYER PARK & GARDENS v. SAME.
• Court: New York Court of Appeals Court of Appeals

295 N.Y. 237

66 N.E.2d 292

PEOPLE ex rel. UNTERMYER et al.

v.McGREGOR, Acting Commissioner of Assessment and Taxation.

PEOPLE ex rel. SAMUEL UNTERMYER PARK & GARDENS

v.SAME.

Court of Appeals of New York.

March 7, 1946.

Appeals from Supreme Court, Appellate Division, Second Department.

Proceeding by the People of the State of New York, on the relation of Alvin Untermyer, and others, as executors of and trustees under the will of Samuel Untermyer, deceased, and others, and by the People of the State of New York, on the relation of Samuel Untermyer Park & Gardens, against Arthur J. McGregor, as acting Commissioner of Assessment and Taxation of the City of Yonkers, to review the action of the respondent in refusing to exempt from taxation for the years 1942 and 1943 real property in the City of Yonkers. From orders of the appellate division, 269 App.Div. 779, 55 N.Y.S.2d 566, unanimously affirming an order and decree, one paper, of the Supreme Court at Special Term, Nolan, J., 183 Misc. 218, 50 N.Y.S.2d 59, denying motions by relators to confirm the reports of official referees and dismissing the proceedings, the relators appealed. In the first proceeding the appeal was by permission of the Appellate Division.

Orders reversed and matter remitted to Special Term for further proceedings.

LOUGHRAN, C. J., and DESMOND, J., dissenting. William F. Bleakley and Mitchell Salem Fisher, both of New York City, and David Gorfinkel and Ulysses S. Adler, both of Yonkers, for appellants.

John J. Broderick, Corp. Counsel, of Yonkers, for respondent.

DYE, Judge.

Samuel Untermyer died March 16, 1940, leaving a last will and testament by which he attempted to give ‘Greystone,’ his country estate located on the Hudson River at Yonkers, Westchester County, N. Y., to the State of New York for use as a public park. We quote the pertinent provision of the will:

‘Eighth: Having heretofore, on May 20, 1938, purchased from Alvin Untermyer and Irwin Untermyer, as Trustees under Trust Agreement dated September 24, 1917 and Supplemental Agreement dated May 25, 1921, the Estate known as ‘Greystone’ located at Yonkers in the State of New York, and being now the owner thereof, I hereby bequeath to the State of New York, absolutely and in perpetuity, as and for a public park and gardens, to be known as ‘Samuel Untermyer Park and Gardens,’ all that portion of said estate situate and lying west of Broadway (otherwise known as ‘Albany Post Road’) together with all buildings, structures and improvements thereon, and including, but without limiting the foregoing, all lands and water-grants located or lying west of the Aqueduct or Warburton Avenue; provided, however, that either the State of New York or the appropriate authority thereof shall, within six months after my decease, agree in writing with my Executors to accept said property for the purpose aforesaid. There is not to be included in this bequest any part of the contents of the Mansion (most of which is and for the past twelve years or more has been the property of my children), or any stained-glass windows or furnishings in the Mansion or any personal property or statuary except such as, in the opinion of my Executors, forms an integral part of the buildings structures and improvements on the property bequeathed.

‘There is now constructed on the property bequeathed an open-air theatre and walled-garden, known as the ‘Greek Gardens,’ that is now and has been for many years devoted to exhibitions of flowers and flowering plants, similar to those that have for generations characterized the exhibitions at Hampton Court Gardens in England. It is my hope (though not a condition of the foregoing bequest) that the State of New York or the appropriate authority thereof will, in connection with the acceptance by it of the bequest, arrange for the perpetuation of these exhibitions and for the maintenance of the property in a condition generally similar to that in which it has been maintained by me.

‘In that connection I suggest and recommend, though not in any sense as a condition of the foregoing bequest, that if at the time of my death my present superintendent, Mr. George H. Chisholm, is in my employ, he be retained by the State of New York or the appropriate authority thereof in a position similar to that he now occupies, because of his long and exceptional knowledge of and experience with plant life in various parts of the world and his tried integrity and capacity to maintain and improve the property bequeathed, as a park and gardens.’

The State renounced the gift. The executors and trustees thereupon petitioned the Surrogate of New York County to determine whether the cy pres doctrine was applicable to the charitable and public purpose expressed by the testator. The Surrogate held the principles of the cy pres doctrine applicable to the gift of ‘Greystone’ and a decree so construing the will was entered April 24, 1941. Conformably with the decree, the executors, pursuant to the Membership Corporations Law, Consol.Laws, c. 35, and with the approval of the Surrogate and the Supreme Court, duly organized a non-profit membership corporation entitled ‘Samuel Untermyer Park & Gardens,’ a charitable membership corporation, for the purpose of carrying out the charitable and public purposes of the bequest of ‘Greystone.’

On March 26, 1942, the executors and trustees transferred the fee of ‘Greystone’ to the newly organized charitable corporation by deed containing a recital that it was pursuant to article Eighth of the said last will and testament as construed by the cy pres decree of April 24, 1941.

The refusal of the taxing authorities of the city of Yonkers to exempt the premises from taxation has given rise to these certiorari proceedings to review the tax assessments as levied. Proceeding No. 1 was brought by the executors and trustees to review the assessment for the year 1942 which covers the period while the executors and trustees held title from the date of the...