Buffalo Cemetery Ass'n v. City of Buffalo — 27 N.Y. St. Rep. 749

Majority

p. 749

The Buffalo Cemetery Association, App’lt, v. The City of Buffalo, Resp’t.^[1]

(Court of Appeals, Second Division,

Filed December 10, 1889.)

Headnote

1. Statutes—Construction of.

A special statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application, unless the intention of the legislature to repeal or alter the special law is manifest, although the terms of the general act would betaken strictly, and, but for the special law, include the case or cases provided for by it.

2. Buffalo—Cemetery in, not exempt from assessments.

Chap. 310, Laws 1879, declaring that no land actually used for cemetery purposes shall be sold for any tax or assessment, did not repeal chap. 519, Laws 1870, which provided that no lands in the city of Buffalo should be exempt from local assessments.

3. Same.

The fact that the city of Rochester is expressly excluded from the provisions of chap. 310, Laws 1879, does not show an intention to repeal chap. 519, Laws 1870.

Appeal from a judgment of the general term of the supreme court, fifth department, affirming a judgment entered on the decision of the court at the Erie special term, on the 4th day of June, 1886, dismissing the plaintiff’s complaint on the merits, with ■costs. The action is in equity, and seeks to have a certain assessment imposed by the defendant upon the lands of the plaintiff for the grading of a street adjoining its property declared to be void, and the collection thereof perpetually restrained. The trial court adjudged the assessment valid, and dismissed the complaint upon the merits.

Edmund J. Plumley, for app’lt; Frank C. Laughlin, for resp’t.

The conclusion of the courts below as to the validity of the assessment in question is in accord with the result at which we have arrived. In the opinions written at both the special term and the general term, the proposition involved was so thoroughly considered as to require but little discussion in this court. It is not questioned but that prior to the passage of chapter 310 of the Laws of 1879, the local authorities possessed the power of making an assessment for grading and paving adjoining plaintiff’s premises. It was so determined by this court in the case of The Buffalo City Cemetery v. The City of Buffalo, 46 N. Y., 506 . But the act referred to is a general act and declares that no land actually used for cemetery purposes shall be sold under execution for any tax or assessment. If that act be applicable to lands owned and used for cemetery purposes within the limits of the city of Buffalo, the assessment in question is unlawful. The act of 1879 did not in terms repeal other statutes then existing. Whether it did repeal by implication the local and special acts authorizing the assessment in question is, therefore, one of legislative intent. It is a rule of construction that a special statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application,

p. 750

unless the intention of the legislature to repeal or alter the special law is manifest, although the terms of the general act would be taken strictly, and but for the special law include the case or cases provided for by it. Van Denburgh v. Village of Greenbush, 66 N. Y., 1 ; Whipple v. Christian, 80 id., 523.

A brief reference to the statutes discloses that, at the time of the passage of the act referred to, an assessment of the character of the one in question was authorized by local statutes relating to lands within the limits of the city of Buffalo.

The plaintiff was incorporated pursuant to chapter 234 of the Laws of 1854, entitled: “An act to incorporate The Buffalo Cemetery Association.” By chapter 519 of the Laws of 1870, the charter of the city of Buffalo was revised, and therein it was provided that “no lands in the city shall be exempt from local assessments, any statute to the contrary notwithstanding.”

Thereafter was enacted chapter 154 of the Laws of 1871, entitled “An act to amend the charter of The Buffalo City Cemetery Association and to restore the exemption of cemeteries in said city from local assessments.” The second section provides that the lands of cemetery associations in the city of Buffalo shall be exempt from taxes, rates and assessments to the extent provided in § 10 of “The act to incorporate cemetery associations,” passed April 27th, 1847. The third section provided that such exemptions shall not apply to assessments for grading or paving such parts of streets or sidewalks as shall be in front of and hounded upon the lands of said cemetery associations.

It is apparent, therefore, that the right to make an assessment against the lands of cemetery associations within the limits of the city of Buffalo was provided by local laws applicable to that city alone. Therefore, within the rule laid down in the cases cited, supra, the legislature will not be presumed to have intended their repeal by the enactment of chapter 310 of the Laws of 1879, unless such intention is manifest.

Our attention is called to but one feature of the enactment from which it is claimed an inference of an intention to repeal the local act can Tje drawn. It is claimed that such intent is inferrable from the fact that the city of Rochester is expressly excluded from its provisions. We think McKenna v. Edmundstone, 91 N. Y., 231 , is authority for denying that the exemption affords an inference of such intention.

The judgment should be affirmed.

All concur, except Bradley and Haight, JJ., not sitting.