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

The Mortgage Tax Law, as amended (Laws of 1906, chap. 532), provides: “ The words real property and real estate as used in this article * * * 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 Real Property Law defining the term “ real property ” in connection with its provisions referring to the record of instruments affecting real property declares that it “ includes lands, tenements and hereditaments and chattels real, except a lease for a term not exceeding three years.” Real Prop. Law, § 240. The lease upon which the mortgage in question was given was concededly a lease for five years. The character or quality of the lease was fixed when it became an executed instrument. It was a chattel real. It lost nothing of its character after the expiration. of two years of its term. The position of the relator is that a mortgage given upon this lease before the expiration of two years of its term would be a mortgage upon “ real property,” but if given upon the same lease after that period it would be a mortgage oñ “ personal property.” If. the lease after two *364years ceases being a chattel real, there would be no'necessity to record the mortgage given herein after that time and no harm would come to the relator "from the refusal of the register to record the mortgage unless the mortgage tax which he demands is paid. The granting of a writ of mandamus being discretionary where it is riot apparent how any injury can flow to the relator from the action of the register, the writ should not issue.

Application denied.