People ex rel. Buffalo Burial Park Ass'n v. Stilwell

This was a proceeding by certiorari under the statute to review an assessment of the relator’s real estate made by the assessors of the town of Tonawanda. On griev anee day the relator, a cemetery association, appeared by attorney before the assessors and requested that the tax assessed against it be canceled on various grounds, among others that the property taxed was by law exempt from taxation and not properly described; that the assessment was made against the Elmlawn Cemetery as the owner, when in fact the land assessed was owned by the relator. After hearing these objections the assessors oil a subsequent day cor rected the assessment by substituting the relator as the owner of the land, and changing the form of the assessment by transferring it to that part of the roll prepared for assessments against non-resident owners of land, the relator’s principal office not being situated within the district over which the assessors had jurisdiction, but they refused to cancel the assessment.

Thereupon the relator presented to the court at Special Term a petition praying that a writ of certiorari issue to review the action of the assessors. The assessors made return to the writ, in which there is not to be found any general or specific denial of the material facts stated in the petition, but it contains affirmative allegations that, if true, are inconsistent with and contradictory in some respect of material facts stated in the petition. The learned judge at Special Term, assuming that the facts stated in the return were conclusive, or at least

The petition alleges “ that all of the said land is actually used and occupied for cemetery purposes and is exempt from taxation under the laws of the state of New York.” It was further alleged by the assessors in their return to the writ that only about thirty acres of the tract had been inclosed as a cemetery and only that number of acres were being improved, graded, developed, embellished or used for cemetery and burial purposes. It was further alleged that the assessors had been informed that the one hundred and twenty-seven acres were occupied at one time by a man named Gordon, who was then paying to the owners a rental for the use of the land, and was using the same for farming and other domestic purposes and not as a cemetery or place of burial; that the assessors and supervisor of the town referred the question to the state board of tax commissioners for instructions as to whether said one hundred and twenty-seven acres not used for burial or cemetery purposes, and from which rent was received and income derived, should be classed as exempt from taxes, or whether the same was subject to taxation; and that said board instructed the assessors and supervisor that the land in question not used for burial or cemetery purposes, and from which rent was received and income derived, was subject to taxation and should be taxed upon their rolls ; that these instructions were entirely verbal, no part of which had been reduced to writing so far as

The assessors had no power to make a new assessment on grievance day. They had power to reduce assessments already made. I assume that they had some power with respect to the correction of names and perhaps other matters, and if the assessment in question is to be deemed a new assessment and not the correction of an old one, the assessors exceeded their powers. I do not think it is necessary to pass upon that part of the relator’s contention. T shall assume, without deciding, that the changes which the assessors made in the form of the assessment on tho last grievance day can be defended, and if there were no other questions in the case

There can be no doubt that the lands of a cemetery association actually used and occupied for cemetery purposes are exempt from taxation under chapter 310 of the Laws of 1879, and also under section 4 of the Tax Law. The difficulty in this case is that no facts have been found by the learned court below, and we cannot know whether in fact the relator has leased a part of the land for farming purposes, or other purposes foreign to its use as a burial place or cemetery. If it is true, as the relator has alleged in its petition, that the whole tract, including that part embraced in the assessment, is devoted to cemetery purposes, then the assessment was not authorized. The first difficulty that the respondents have to overcome is a question of pleading. This proceeding is under the statute and is substantially a new trial of the things decided by the assessors. The petition is the complaint and the return is the answer, and the general rules of pleading are applicable to such a case.

One of these rules has been stated in a recent case in this court: “ It is a settled rule in the construction of pleadings that a material fact distinctly alleged in the complaint is not controverted, by stating the same fact in the answer in some other way or by giving a version of the transaction inconsistent with the allegation in the complaint. The allegations of the complaint are controverted or put in issue only by a general or specific denial. A material fact alleged is not controverted or put in issue by a statement inconsistent with the facts, or from which a denial may be implied or inferred.” (Rodgers v. Clement, 162 N. Y. 428 .) The cases cited in the opinion to sustain these propositions seem to be quite clear and conclusive. Within this rule the assessors have not denied the allegations of the petition, and hence, according to the strict rules of pleading the facts alleged are admitted. That an issue in a proceeding of this kind cannot be raised except by complying with the general rules of pleading seems to me

But if it be assumed for the purpose of the argument' that everything stated in the return is to be taken as true, these facts do not necessarily show that the land was taxable, or that it was not devoted to cemetery purposes within the fair meaning of the law. The cemetery in question was, to use a business expression, a going and growing concern. It was not all occupied by burial plots or by the graves of the dead. It may not be fully occupied for such purposes for many years to come. Of course it is not necessary that the cemetery should be filled, with graves in order to be entitled to the exemption, and the mere fact that Brennan had leased an unoccupied portion of the cemetery for the sum of one hundred and twenty-five dollars would not necessarily deprive the relator of the exemption. If, for example, he had paid that sum of money for the right to cut and carry away the grass from the unoccupied land, and the money paid by him went into the relator’s treasury to be used for taking care of the ground

The relator had no authority to purchase, acquire or hold land for other than cemetery purposes; and it has been held that when such an association has once acquired real estate for burial purposes the lands are exempt from the moment when the title becomes vested in the corporation, and they continue exempt so long as the corporation exists, although no dead bodies be buried therein. It would seem from this statement of the law that the whole of the relator’s land was exempt from taxation, unless some portion of it has been permanently abandoned to some other use than that for which it was originally acquired. The mere fact that it is in receipt of some small revenue for the temporary use of a portion of it is not inconsistent with the purpose of holding and preparing the land for burial purposes. (People ex rel. Oak Hill C. Assn. v. Pratt, 129 N. Y. 68 .)

If the lands in question are taxable at all it seems to me that they are not properly or sufficiently described. In case of a sale for taxes the land as described in the assessment roll could not be very well identified and the one hundred and

The orders of the Appellate Division and the Special Term should be reversed and the case remitted to the Special Term for further hearing, with costs in all the courts to abide the event.

Cullen, Cli. J., Edwakd T. Babtlett, Haight, Vann, Hiscooic and Chase, JJ., concur.

Ordered accordingly.