(dissenting). There are two issues involved here: (1) as to the jurisdiction of the referee and the Appeal Board to determine whether or not claimant worked for an employer subject to the Unemployment Insurance Law, and (2) whether or not Doctors Hospital, Inc., is an exempt employer under the provisions of the Unemployment Insurance Law.
I am not impressed with the appellant’s contention that the referee and the Appeal Board lack jurisdiction. It was necessary that a decision be reached determining whether or not claimant was entitled to benefits, and by virtue of section 532 this determination devolves upon the Appeal Board, which is given specific power to affirm or reverse wholly or in part or to modify any decision appealed from. While the employer-appellant was not represented at the hearing before the referee, it did serve notice of appeal and appeared before the Board and was apparently given full opportunity to introduce evidence on its claim that it was an exempt employer.
The second issue as to whether or not Doctors Hospital, Inc., is an exempt employer under the Unemployment Insurance Law is the real question at issue here. A hospital as such is not per se a charity, but is subject to the Unemployment Insurance Law unless it is found that it is “ organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual.” (Unemployment Insurance Law, § 502, subd. 3, f [d].) The corporate purpose, as found in the certificate of incorporation, is “ to establish, buy, construct, *612lease or otherwise acquire, and to erect, maintain, equip and operate a hospital.” A later amendment provided that in the event of voluntary dissolution, any property remaining after the payment of all claims and demands should be transferred to such other corporation or association engaged in operating a hospital as should be determined by the board of directors. Being incorporated under the Membership Corporations Law, it may be assumed that it came within the definition of the statute as it then existed, which defined a membership corporation as one not organized for pecuniary profit.
The hospital contains 275 beds, fourteen of which are allocated to charity patients, although it appears that free patients to the number of twenty-five may be admitted. Doctors requesting the admission of free patients are required to certify that they are receiving no compensation whatsoever for treating such patients. The Board has found that the appellant did not operate a hospital exclusively for charitable purposes and was not within the exemption defined in paragraph (d) of subdivision 3 of section 502. The burden of establishing that it is a charitable institution rests upon the appellant. It cannot be found in its certificate of incorporation, for there is nothing in that document that prevents it from carrying out its corporate purposes without engaging in any charitable activities. Certainly, there is nothing in its charter to compel it so to do. “ A grant of immunity to persons who, or property which, would otherwise be liable to assessment is nevef presumed. It will not be recognized unless granted in terms too plain to be mistaken. If there is any doubt as to the intent of the Legislature, it must be resolved in favor of the taxing power.” (County of Herkimer v. Village of Herkimer, 251 App. Div. 126; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574.)
The question here presented is whether the appellant has sustained the burden of establishing as a fact that it is entitled to the exemption. (People ex rel. Outer Court, Inc., v. Miller, 161 Misc. 603; affd., 256 App. Div. 814; affd., 280 N. Y. 825.) I am unable to find that the appellant has by affirmative proof established that it is entitled to the exemptions provided by statute. It may well be that by erecting and operating a hospital it has to some extent lessened the burden of government; nevertheless, it is not extending its charitable services to all of the members of the community and its charity is limited to a very small proportion of bed patients and with the specific requirement that such charity patients, so called, shall secure a certificate from a doctor to the effect that he is receiving no pay from that particular patient. Finally, the reception of such patient-in any event is contingent upon the availability of one of the fourteen beds set aside for charitable purposes. May it be *613said that under such circumstances the primary and exclusive purpose of the appellant is the free administration to charity patients? We think not. Clearly, a hospital may claim exemption where it administers in part to pay patients and in part to patients unable to pay. Here, however, we are confronted with the fact that at best but a very small proportion of the hospital facilities is afforded charity patients and the obtaining of such facilities is contingent upon the availability of a comparatively small number of beds and upon a doctor’s certificate that professional services will be rendered without fee. Appellant fails to meet the required proof to bring it within the provisions of the statute authorizing this exemption.
The decision of the Appeal Board should be affirmed, without costs.
Decision of the Unemployment Insurance Appeal Board reversed because the appellant is an exempt employer within the meaning of paragraph (d) of subdivision 3 of section 502 of the Labor Law, with costs to the appellant against the Industrial Commissioner.