In subdivision 3 of section 253-a of the Tax Law (all statutory references hereafter are to Tax Law) it is provided that as to mortgages covering lands all located within the State but not all within the city, "the amount of such tax due and payable to such city shall be determined in a manner similar to that prescribed in the first paragraph of section two hundred sixty which concerns real property situated in two or more counties.” (Emphasis supplied.)
The first paragraph of section 260 has only one sentence which expressly applies to apportionment among counties and *84it provides as follows: "If such mortgage covers real property in two or more counties, the tax commission shall determine the proportion of the tax which shall be paid by the recording officer who has received the same to the recording officers of the other counties in which are situated the tax districts entitled to share therein.” The first paragraph of section 260 also directed the State Tax Commission to apportion the tax paid on a mortgage covering property located in more than one tax district "upon the basis of the relative assessments of such real property as the same appear on the last assessment-rolls.” (Emphasis supplied.)
The petitioner contends that the commission erred in using the assessed value of the New York City property as a basis for determining the proportionate share of the New York City real property to which the tax is applied. This contention is based upon the theory that the language of section 260 in its first paragraph requires that market value or equalization rate figures be utilized.
The question of whether or not section 260 as to fees collected pursuant to section 253 requires the use of actual market values or equalization rates is not determinative of this proceeding. The issue raised by the petitioner in this regard is without merit as section 253-a merely requires a "similar” method to compute the tax base. In this regard the use of the assessed values on the last assessment roll is literally "similar” to the language of the first paragraph of section 260 and is not irrational. The use of such figures fixes the amount of the tax with certainty and in 1971 when section 253-a was added, it was common knowledge that assessors were not entering the actual value of real property as its assessed value. (See Matter of Hellerstein v Assessors of Town of Islip, 37 NY2d 1.)
The petitioner further contends that since an apportionment as to property located both within the City of New York and without the State of New York would be based on actual value, the use of assessment roll values within the State violates its equal protection rights. However, it seems obvious that as to the class of mortgages located within the State, the same rate is applicable to all. Since real property located without the State might lead to an improper tax base, the requirement of actual value is necessary to assure that there is no extra-territorial tax. However, in the instant class there is no such problem and the distinction between the classes has *85a sound basis. This contention has no merit. (See Mercantile Nat. Bank of City of NY. v Mayor, etc., 172 NY 35, 48.)
We must assume that the Legislature realized that the passage of section 253-a was primarily for the financial benefit of New York City and had it intended to change the well-established method of apportioning mortgage tax fees it could have so provided. It is not for the court to improvise and it was the obligation of the Tax Commission to enforce the law as written. The commission determined the proportion of the mortgage taxable within the framework of the law and such determination was neither arbitrary nor capricious. (Matter of Condé Nast Pub. v State Tax Comm., 51 AD2d 17.)
While the majority disagrees with the Tax Commission on the basis that its decision "is irrational tnd unreasonable” and would remit, they offer no suggestion as to how the commission shall determine the proportion so that the result will be "rational and reasonable”. (People v Newman, 32 NY2d 379, 389, cert den 414 US 1163.)
While the majority herein seeks to require the commission to reconsider its interpretation of section 253-a as it incorporates section 260, the majority is actually eliminating the express limitation by the Legislature of section 260 to its first paragraph for the purpose of section 253-a.
The determination should be confirmed.
Greenblott, J. P., Mahoney and Larkin, JJ., concur with Kane, J.; Herlihy, J., dissents and votes to confirm in an opinion.
Determination ánnulled, and matter remitted to the State Tax Commission for further proceedings not inconsistent herewith, without costs.