In re Perry Ave.

Two questions are presented by the appeal from the order modifying, and, as modified, confirming, the report of the commissioners of estimate and assessment in this proceeding.

The first question relates to so much of the report as affects the property of the Woodlawn Cemetery, a rural cemetery incorporated under chapter 133, p. 125, of the Laws of 1847, and the subsequent acts amendatory thereof. It owns a tract of land in the vicinity of

The statute under which the cemetery association claims exemption from assessment is chapter 310, p. 397, of the Laws of 1879 and reads as follows:

“Section 1. No land actually used and occupied for cemetery purposes shall be sold under execution, or for any tax or assessment, nor shall such a tax or assessment be levied, collected or imposed, nor shall it be lawful to mortgage such land, or to apply it in payment of debts, so long as it shall continue to be used for cemetery purposes.

“Sec. 2. Whenever any such land shall cease to be used for cemetery purposes any judgment, tax or assessment which, but for the provisions of this act, would have been levied, collected or imposed shall thereupon forthwith, with interest thereon, become and be a lien and charge upon such land and be collectible out of the same.”

It is apparent that this act is open to two possible constructions. One, contended for by the city, would permit the ascertainment and fixation of the ratable share of the assessment which should be imposed upon the property but for its use as a cemetery, postponing the time when such assessment should become a lien and be collectible until the time, if it ever arrived, when the land would cease to be used for cemetery purposes. The other construction, contended for by the cemetery association, would render the property used for cemetery purposes immune even from present ascertainment of its ratable share of an assessment for benefit, so that, if the property should ever cease to be used for cemetery purposes, it would be burdened with no charges for benefits derived from past public improvements, and liable only to such assessments as might be laid in the future. This second construction is that which has been 'given to the statute by the Appellate Division in the Second Department, wherein is comprised a large proportion territorially of the city of New York. Matter of White Plains Presbyterian Church, 112 App. Div. 130 , 98 N. Y. Supp. 63 . In deference to that opinion, and to promote uniformity of practice in proceedings like the present, we adhere to the same construction.

We cannot accede to the claim made on behalf of the city that the exemption for assessment, whatever its extent, applies only to so much of the land owned by the cemetery association as has been actually occupied for graves and used for purposes of interment. As was said by the Court of Appeals, with reference to a similar exemption contained in chapter 133, p. 125, of the Laws of 1847, the purpose of these provisions is the convenience of sale, the security of titles, and the benefit and protection of lot owners. We have no reason to suppose, from any language used in the act, that it was the intention of the Legislature that any portion of the cemetery land not laid out into

The second question raised by the appeal is whether or not an award for damages can be made to the owner of a lot abutting upon the street, but who owns no part of the land to be acquired, for incidental damage to a building standing upon the abutting lot, and which is “not required to be taken” for the proposed street opening.' The relevant facts upon which the question is presented are as follows: Prior to October 24, 1890, John G. Wood was the owner of a tract of land through which runs the avenue proposed to be acquired in this proceeding. On the date named he made a number of conveyances of lots abutting upon the proposed avenue, and so described the lots conveyed as to give to his grantees easements of light, air, and access over the land now proposed to be taken for Perry avenue, retaining in himself the fee to the bed of the proposed avenue in front of the lots conveyed. In 1891 the appellants Brandt and Wilson erected buildings upon two of the lots thus conveyed, and in 1895 the grade of the proposed avenue was first officially established by the filing of a grade map on December 16, 1895. The present proceeding was initiated on! June 25, 1897, by an application to the court for the appointment of commissioners of estimate and assessment, and commissioners were appointed on December 31, 1897. On September 20, 1897, Wood, the original owner of the tract, and the grantor under whom the appellants held title, executed a deed of cession to the city of whatever title and interest he still had in the bed of the avenue upon which the lots of the appellants abut. It is said that Perry avenue was actually worked and used as a street, at its natural grade, for some time before proceedings for its acquisition by the city were initiated; but the profile map filed in 1895 shows that it is proposed, after acquisition, to raise its grade about 10 feet. The commissioners considered that the damage to the buildings owned by appellants was substantial, but refused to make any award therefor, because, as they thought, the' cession of the bed of the street by Wood prevented the making of any award for consequential damages to the abutting property. The court below upheld their action in this regard.

The only doubt in the case arises from the fact that Wood had con-’ veyed the abutting lots before the proceeding to acquire the street had been begun. In the absence of a statute, tire owner of land abutting

“If the said commissioners of estimate shall judge that any intended regulation will injure any building or buildings not required to be taken for the purpose of opening, extending, enlarging, straightening, altering or improving such street or part of a street they shall proceed to make, together with the other estimates and assessments required by law to be made by them, a just and equitable assessment of the loss and damage which will accrue, by and in consequence of such intended regulation, to the respective owners, lessees, parties and persons respectively entitled unto or interested in the said building or buildings so to be injured by the said intended regulation; and the sums or estimates of computation and recompense for such loss and damage shall be Included by said Commissioners in their report and included in whole or in part in the assessment for benefit, provided the board of estimate and apportionment so specifically directs.”

This same provision, in substantially the same form, was embodied in section 987 of the New 'York consolidation act, and prior to the adoption of that act had been in force since 1816. Chapter 160, p. 173, Laws 1816. The provisions of section 979 of the Greater New York Charter (Laws 1901, p. 410, c. 466), authorizing the commissioners to obtain a profile and plan of the intended regulation of the street, showing the proposed elevation or depression thereof, indicates that the “regulation” of the street from which it was apprehended that buildings on abutting property might suffer meant the establishment of a new grade or a change of grade. It is perfectly clear that, if Wood had neither conveyed away the abutting lots nor ceded the bed of the street to the city, but had himself erected the houses, he would have been entitled to the consequential damages resulting to the buildings from the proposed regulation or change of grade of the street. Matter of Trinity Avenue, 81 App. Div. 215 , 80 N. Y. Supp. 732 .

The fact that Wood, after he had conveyed the abutting lots, made a deed of cession to the city of what remained to him of title to or interest in the bed of the street, cannot affect the appellant’s rights in ■this proceeding, for Wood could then convey to the city no more than he then had himself. Prior to the conveyance of the abutting lots he had, as owner of the whole tract, every right to light, air, and access that he chose to exercise over any part of the tract for the benefit of any other part. By his deeds of the abutting lots he conveyed, not only the fee of those lots, but also the right of light, air, and access to those lots over the portion of the tract known as Perry avenue and now sought to be acquired. He had thereby conveyed away to his grantees any right which he had to change the grade of that portion of the tract designated as Perry avenue, so as to render the right of ingress and egress to and from the abutting lots materially more difficult. Cunningham v. Fitzgerald, 136 N. Y. 165 , 33 N.

We have not overlooked section 951 of the Greater New York Charter, which provides, inter alia, that after the taking effect of that act there should be no liability to abutting owners for originally establishing a grade. That section is a paraphrase of sections 873 and 874 of the New York City consolidation act which were in force when the Trinity Ayenue Case was decided. It is to be found in title 2, c. 17, p. 397, of the charter, which relates exclusively to assessments for local improvements other than those confirmed by a court of record. It is a rule established only with respect to such improvements, and has no relation to or bearing upon proceedings for street openings like the present.

Our conclusion, therefore, is that the order' appealed from must be reversed, and the report returned to the commissioners, with instructions to redistribute the amount found as the benefit to the property of the Woodlawn Cemetery, and to include awards to the appellants Brandt and Wilson for damage to their buildings not required to be taken' for the opening of the avenue, with $10 costs and disbursements to said appellants. All concur.