.(dissenting). I (dissent from the majority who hold in this case that telephones are taxable to a public utility because they are real property but that telephones are not taxable to private subscribers because they are personal property. Such a shifting concept with respect to the taxability of property —to be determined solely upon who owns the property — may have appeal but does not find any support in the Real Property Tax Law ¡or the decided cases.
The majority argue that there are legitimate distinctions justifying different tax treatment based upon the alleged fact that the company-owned telephone is “ part of an integrated and extensive communication system ” while the privately-owned telephone, because it ‘ ‘ may be taken from the premises by its owner ”, is not. Such distinctions, impliedly based upon removability, do not exist in fact1 and would, at any rate, be distinctions without a difference. It is true that at common law the distinction between real and personal property depended upon mobility (47 ¡N. ¡Y. Jur., ¡Property, § 9). Common-law classifications are not relevant in this case, however, since the Legislature has established by section 102 of the Real Property Tax *34Law its own definition of real property for tax purposes. That statute provides that real property shall include for assessment purposes: “Telephone and telegraph lines, wires, poles and appurtenances; supports and inclosures for electrical conductors and other appurtenances, upon, above, and under ground ”. (Beal Property Tax Law, § 102, subd. ,12, par. [d].)
The city assessors of Syracuse assessed petitioner’s privately owned telephone receivers as real property for tax purposes. In my view, such classification was proper since these telephone instruments are “ appurtenances ” within the statutory definition. In New York Telephone Co. v. Ferris (257 App. Div. 415, affd. without opn. 282 N. Y. .667), it was held that central office equipment owned by the telephone company was properly assessable as real property despite the fact that it could be removed from the building without substantial injury to the realty (257 App. Div., at p. 419) because, as the court noted, common-law rules respecting mobility of fixtures must be forsaken in favor of the standard established in the Tax Law (257 App. Div., at p. 417). More significantly in Matter of New York Tel. Co. (Canough) (264 App. iDiv. 937, affd. Per Curiam 290 N. Y. 537), the New York Telephone Company petitioned for a review of a tax assessment by the 'City of 'Syracuse upon telephone station apparatus, station installations and private branch exchanges owned by the company but located upon premises of telephone subscribers. Relevant to the instant case is the description of station apparatus defined by the referee in Canough as consisting of -“the ordinary telephone instruments of various types which either sit upon a desk or table, or are fastened to the wall by four screws, together with the bell box and the cord connecting the two ” (Record, vol. I, p. ,229, Matter of New York Tel. Co. [Canough], 290 N. Y. 537). Among the telephones included in this description is the so-called “combined set-portable ” which could be moved from room to room and was connected to a jack box by means <of a male-type plug. This device is indistinguishable from the telephone instrument sought to be exempted from taxation in the instant case.2 Canough was heard initially before a referee who concluded that the decision in Ferris (supra) was “ broad enough to cover the present situation and leaves little or no doubt that the various classes of property in question including station apparatus come within the statutory definition of • real property ’, and are taxable as *35such” (Record, vol. I, pp, 235-236). The determination to sustain the tax assessment was affirmed in this court (264 App. Div. 937), and lultimately by-the Court of Appeals (¡290 N. Y. 537). In Canough the Court of Appeals refused to relieve the telephone company from taxation upon “station apparatus” (essentially the telephone instruments themselves) iby excising such equipment from remaining utility-owned taxable property such as “ station installations ” and “ private branch exchanges ’ ’ despite a specific opportunity to do so.3
Although, the majority further recognize that “ it is competent for the Legislature to determine that any property, including telephones, is real property for tax purposes ” it,, nonetheless, virtually assumes the result it reaches that telephone instruments are outside the statutory definition by characterizing such equipment as an article of personalty “ by common acceptance ”. Moreover the majority’s attempted, analogies to the electric reading lamp and kitchen range — which, it is noted, are connected to such clearly taxable items of real property as ‘1 electrical conductors” and gas lines — are not particularly apt inasmuch as the Legislature has not elected to define as realty items which are appurtenant to mains or pipes for conducting electricity or-gas '(R.eal Property Tax Law, § 102, subd. 12, pars, [f], [g]).
Further, reliance by the majority upon People ex rel. Dexter Sulphite Pulp & Paper Co. v. Hughes (246 N Y. 35) to support its view that property is treated differently for tax purposes depending upon ownership is appropriaté only where there is a statute which permits such different"classifications, as was the fact in the Dextér Sulphite case but which is not the fact in the instant case. Similar majority reliance upon People ex rel. New York Edison Co. v. Feitner (99 App. Div. :274, affd. 181 N. Y. 549) for the differing classification of electric utility equipment dependent on whether it is located on public or private property is also misplaced because such differentiation has been permitted for years only because the. Real Property Tax Law definitions "specifically provide for such a distinction (Real .Property Tax Law, § 102, subd. 12. nor. [e]). In brief, these cases provide no support for the majority but only reaffirm the principle that when considering the taxability lof property under a tax statute *36the definitions contained .within the statute itself, and these alone, determine the question.
Ultimately the resolution of this case must depend upon the definitional scope of the term 1 appurtenances ” as it is used in section 102 (®ubd. 12, par. [d]) and strictly speaking the meaning attributed to this term cannot ibe made dependent upon such extrinsic considerations as ownership or common-law classification. The sole inquiry before this court is whether as a matter of statutory definition the telephone instruments involved herein are appurtenant to telephone lines, wires and poles; a question which I feel constrained to conclude was specifically and affirmatively answered ¡by the Court of Appeals in Canough (supra). Only .when it is determined that telephones are embraced ¡within the definition of realty does the issue of ownership arise, and only then for the purpose of assessing the appropriate levy.
In the ¡final analysis, it is the telephone owner-user who must, of course, pay whatever real property tax is levied on company-owned telephone instruments. The mere fact that the lawyer-owners in this case (and it could be any business or professional group) find it economically advantageous to purchase their own telephones should not serve as a reason, i.e., private ownership, to gain for them an exemption from this self same tax which all other users of company-owned phones are required indirectly to pay. The tax paid upon “ station apparatus ” is substantial. In Ganough, for example, it amounted to 44% of the utility’s total tax assessment.4 If the Legislature chooses to exempt telephone instruments from .real property taxes, then — all users alike should be equally exempt. It does not appear equitable to me, however, to apply the tax law as the majority today do to impose a tax on most users and exempt others solely because the latter elect to own the ordinarily taxable telephone instrument.
Accordingly, I dissent and vote to reverse the judgment and dismiss the petition to review the tax assessment.
Wither, J. P., Houle and IMahoney, JJ., concur with Simons, J.; Cardamons, J., dissents and votes to reverse the judgment and dismiss the petition in an opinion.
Judgment affirmed with costs.
. Company-owned telephones are generally removed from the premises of a private subscriber when the subscriber quits the premises. The privately-owned telephone is also removable, but may not legally be plugged into or connected with the telephone company lines without use of prescribed company-owned protective and signalling devices furnished by the telephone company. Both may be removed, but neither is legally usable as a telephone in any other place until devices furnished by the company are installed, and, therefore, are necessarily part of an integrated system.
. This is clearly revealed by a photograph marked exhibit 7A contained in Record, vol. II, Matter of New Torlc Telephone Co. (Canough), 290 N. Y, 537.
. The referee, upon request,' specifically found that of the $700,000 tax assessment levied against the New York Telephone Company, station apparatus, station installation and privaté branch exchanges accounted, for 44 per cent, 30 per cent and 26 per cent respectively. Record, vol. I at 257, Matter oft New York Telephone Co. (Canough), 290 N. Y, 537.
. See n. 3, supra.