People ex rel. Oak Hill Cemetery Ass'n. v. Pratt

The relator was incorporated on the 16th day of March, 1889, under chapter 133 of the Laws of 1847, entitled ‘‘An act authorizing the incorporation of rural cemetery associations.” Such was the allegation of the petition and the same was admitted by the answer filed by the assessors. By § 10 of that act, it is provided, “ that the cemetery lands and property of any association formed pursuant to this act, shall be exempt from all public taxes, rates and assessments.” It is under this provision of law that the certiorari was issued at the instance of the relator, under a claim that the property which it owns consisting of forty-five and one-half acres of land, situate in the sixteenth ward of the city of Rochester, is exempt from taxation.

The learned justice at special term seems to have been of the opinion that the acquisition and proposed use by the relator, of its lands for cemetery purposes, was not legal, because there had not been obtained for such purpose the consent of the board of supervisors of Monroe county, under chapter 280 of the Laws of 1852.

We cannot assent to that view of the case. The act of 1852 in respect to the necessity of obtaining the consents of boards of supervisors applied to the counties of Westchester, Kings and Queens, named in the statute, and to no other counties in the state. This act was amended by chap. 389 of the Laws of 1889 by including the county of Rockland among those where the consent of the board of supervisors must be obtained as a condition precedent to the holding and use of lands for cemetery purposes. We feel constrained to hold, under the facts alleged in the petition and admitted in the answer, that, for the purposes of this proceeding, the plaintiff was a duly organized corporation under the act of 1847, unaffected by the above named provisions of the act of 1852, and that it lawfully proposed to set apart its lands for cemetery purposes. Nor do we think that the word “ rural ” that appears in the title and body of these and many other acts of the legislature has any significance or bearing upon the merits of the case. That word, it is true, commonly means the country as separated from the city; but in the instances named it was not intended by the word to limit the holding and use of cemetery grants to lands outside of city limits. The word was manifestly used as descriptive of the picturesque character of the place of burial rather than as something beyond city boundaries; for there may be and often is rus in urbe. But there is another ground stated by the learned justice upon which the judgment appealed from may be affirmed, and that is that the lands of the relator, whatever may have been the intention of the parties in acquiring title thereto, could not be held or used for cemetery purposes without the consent of the common council of the city of Rochester. By chap. 14 of the Laws of 1880, § 40, sub. 18, there is

It is true that three days after the incorporation of the relator the common council passed an ordinance amending a previous ordinance which forbade the burial of the dead in Rochester, except in certain cemeteries named in the ordinance, so as to include in such exceptions the land in question. In pursuance of that ordinance, the assessors left this property of the relator off from the assessment rolls of 1889, under § 10 of the act of 1847, above referred to. But before any steps were taken to turn these lands actually into a cemetery, or to prepare them for cemetery purposes, this amendment of the ordinance was revoked, and by an ordinance enacted on the 2d day of May, 1889, the original ordinance, not including the relator’s lands in its exceptions, was substantially re-enacted, and from that time no right remained in the relator to use these lands for cemetery purposes. The action of the common council did not in and by the amendment of the old ordinance amount to a contract su.cli as would enable the court to say that it had not the power afterwards to recede from its action. Hence, the ordinance of 19th day of March, 1889, by which the relator’s lands were permitted to be used for cemetery purposes, went for naught. No question, in our judgment, of the impairment of a contract arises in this matter. People ex rel. Cunningham, v. Roper, 35 N. Y.. 629 ; People ex rel. v. The Board of Assessors of Brooklyn, 84 id., 610. For this reason we think that the action of the assessors in listing the relator’s property and assessing the same was legal, and that consequently the appeal of the relator from the judgment must be deemed to be unavailing.

In respect to the appeal taken by the defendants from that portion of the judgment which reduced the valuation of the relator’s lands from $75,000 to $52,000, it may be sufficient to say, that while the evidence was very inconclusive, resting largely upon the opinions of the witnesses, we cannot say that the finding of the learned referee in that regard, which has had the approval of the special term, was not well supported by testimony, and consequently we also affirm that part of the judgment appealed from.

The judgment should be affirmed, without costs of this appeal to either party.

Dwight, P. J., and Macomber, J., concur.