Supreme Court, January, 1922. [Vol. 117. reference to a plan or map, and there is more or less in the entire tract which has been divided than the map shows, no grantee is entitled to any preference over the others and the excess should be divided among or the deficiency borne by all of the lots in proportion to their area. Coppin v. Manson, 144 Ky. 634; Anderson v. Wirth, 131 Mich. 183; Quinnin v. Reimers, 46 id. 605; Gloyd v. Franck, 248 Mo. 468; Marsh v. Stephenson, 7 Ohio St. 265; Booth v. Clark, 59 Wash. 229; Clayton v. Feig, 179 Ill. 534; Mosher v. Berry, 30 Me. 83; Parks v. Boynton, 98 Penn. St. 370; Westcott v. Craig, 60 Col. 42; 4 R. C. L. 115. See, also, other cases cited in Anno. Cas. 1912-A, 1273-1275, note. While this is the general rule there is an exception to it which I think applies here. It is this. Where a map shows a plotting of a considerable tract and the creation of lots of regular width and depth, if a few of them are of irregular dimensions they are deemed to be the remnant of what remained of the entire tract after plotting the regular lots and if there is a shortage in the entire frontage the irregular sized lots must bear it. This is held upon the assumption that the owner intended to get as many regular sized lots as possible and that whatever remained of his frontage was to go into the irregular shaped plot and hence if he had more or less than the map showed the difference in the frontage would effect only the irregular lot. Baldwin v. Shannon, 43 N. J. L. 593, 596; Barrett v. Perkins, 113 Minn. 480, 485. In the case last cited the court says (at p. 485): "In a situation like that the owner of the plat must be deemed to have intended to constitute the irregular remnant a lot by itself, regardless of its dimensions, and a purchaser thereof takes the whole remnant, whether of greater or less area than that indicated by the plat. It cannot be Misc.] Supreme Court, January, 1922. enlarged at the expense of the owners of other lots, nor, if of greater area than shown by the plat, diminished in their favor. Though the rule might in a given case work a hardship to the owner of the remnant lot, yet in the case at bar the combined injury to the owners of the other lots, arising, if defendant be sustained, from the displacement of their improvements and the total elimination of the owner of lot 1, far outweigh any disclosed damage or hardship to defendant. The rule furnishes a definite and safe method and guide for the determination of mistakes of this nature." The same rule applies where plots of regular size are laid out on a map and a portion remains, the dimensions of which are not stated. Pereles v. Gross, 126 Wis. 122. But the same court which decided the case last cited has held that where all the lots are given dimensions upon the map they should bear any shortage ratably and that it should not be taken wholly from the one lot which is of different size than the others, thus holding to the contrary of the cases in New Jersey and Minnesota, above cited. Pereles v. Magoon, 78 Wis. 27. I think the reasons given in the other cases, however, justify the conclusions reached and that they state the correct rule. This rule seems especially applicable here. The common owner plainly intended to create lots of a uniform width of 25 feet and a depth of 100 feet. He laid out four such lots fronting on Morton avenue and then believing there remained 111 feet and 3 inches he made that the depth of the lots that he laid out fronting on the turnpike. It cannot be supposed that had he known the frontage was only 206 feet and some inches he would have cut down the width of the 25 foot lots. The whole map is contrary to such a suggestion. Hence it follows that the plaintiffs do Supreme Court, January, 1922. [Vol. 117. not own 111 feet and 3 inches on Morton avenue but only 106 feet 2 inches. The defendants are entitled to judgment with costs. New findings and judgment in conformity with this decision should be submitted upon notice. Judgment for defendants. THE PEOPLE OF THE STATE OF NEW YORK ex rel. SCHENECTADY ODD FELLOWS TEMPLE ASSOCIATION, Relator, v. WILLIAM F. MCMILLAN and Others, Comprising the Board of Assessors of the City of Schenectady, N. Y., Respondents. (Supreme Court, Schenectady County, January, 1922.) statutes -lodge build Taxation certiorari — property of fraternal order exempting property construed against owners ing devoted to many and different purposes not exempt – by-laws held to permit use of surplus for purposes not contemplated by statute - Benevolent Orders Law, § 7- Tax Law, § 4(7). Under the rule that statutes exempting property from general taxation must be strictly construed against the property owners, and that exemption may not be presumed unless plainly expressed, it is clear that section 7 of the Benevolent Orders Law, under which relator was incorporated, and section 4(7) of the Tax Law, under which relator claims exemption of its real property from taxation, contemplate a building to be used for lodge purposes with an occasional use for other fraternal purposes, and not a building as here shown devoted to and used for many and different purposes. While section 6 of the relator's by-laws directs the use of all surplus moneys for certain benevolent purposes which are within the contemplation of the statute, it also specifies "such other benevolent or charitable purposes as the board may direct," and so permits the board to direct the use of the surplus for purposes not contemplated by the statute, and for all these reasons the writ of certiorari to review the assessment herein will be dismissed. Misc.] Supreme Court, January, 1922. CERTIORARI to review assessment upon real property. Fryer & Lewis, for relator. George B. Smith, corporation counsel, for defendants. WHITMYER, J. This is a proceeding to review the 1920 assessment of $20,000 upon relator's real property, at the corner of Hawk and State streets, Schenectady, N. Y., solely upon the claim that the property is not assessable, under section 4, subdivision 7 of the Tax Law. This section first exempts the real property of a corporation or association organized exclusively for religious, bible, tract, charitable, benevolent and other purposes and then exempts "the real property of any fraternal corporation, association or body created to build and maintain a building or buildings for its meeting or meetings of the general assembly of its members, or subordinate bodies of such fraternity and for the accommodation of other fraternal bodies or associations, the entire income of which real property is exclusively applied or to be used to build, furnish and maintain an asylum or asylums, a home or homes, a school or schools, for the free education or relief of the members of such fraternity, or for the relief, support and care of worthy and indigent members of the fraternity, their wives, widows or orphans." The claim here is based upon the portion of the section which has been quoted. Relator is a joint corporation, formed in 1912, under section 7 of the Benevolent Orders Law, which provides, so far as material, that " any lodges within the state, chartered by the grand lodge of the Independent Order of Odd Fellows, any number of subordinate lodges, tribes or other bodies of any benevolent or fraternal order or society, * and Supreme Court, January, 1922. [Vol. 117. incorporated under or pursuant to the laws of this state, may unite in forming a corporation for the purpose of acquiring, constructing, maintaining and managing a hall, temple, or other building Mohawk Valley Lodge No. 12 and Champion Lodge No. 554 of the order, each a subordinate lodge duly chartered by the grand lodge, united in the formation. Section 3 of article I of the by-laws states the purpose. It reads as follows: "The purpose of the association shall be to purchase building, constructing, maintaining and managing building or hall for lodge purposes. "Section 6 of said article prescribes how the moneys from rentals shall be used, as follows: "All moneys derived from rentals of said building or hall to be used for defraying cost and expenses of same and all surplus moneys derived from said building or hall to be used for benevolent purposes, namely, Odd Fellows Homes, Homes for Aged and Invalid Odd Fellows, Aged Odd Fellows and widows of Odd Fellows, Homes for Orphans of Odd Fellows and such other benevolent or charitable purposes as the Board may direct." Mohawk Valley Lodge bought the lot and conveyed it to the association. The cost was $7,000. The association built the building, a two-story brick building, with basement. The heating plant, three bowling alleys and one pool table, are in the basement, the assembly room is on the first floor and the lodge rooms are on the second floor. The cost of building was $24,000. It was financed by a mortgage for $18,000, balance by notes at six per cent, held mostly by the forming lodges. Now, the mortgage is $4,000 and the notes amount to about $24,000. And the said lodges seem to hold about onehalf in amount. The bowling alleys and pool table are public and the revenues from same go to the janitor in lieu of pay. The revenue tax on same is |