People ex rel. Trustees of St. Patrick's Cathedral v. Davren

Majority

p. 779

The People ex rel. The Trustees of St. Patrick’s Cathedral, in the City of New York, Resp’ts, v. James Davren et al., Assessors, App’lts.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Taxes—Cemeteries—Exemption.

By acts of the legislature in 1864 and 1879, the relators were authorized to acquire and use lands in Queens county for cemetery purposes. Such lands were assessed for taxation, but such assessment was stricken from the roll by the court. Held, no error; that the general rural cemetery act and its amendments, requiring the consent of the board of supervisors to the use of land for such purposes, were not inconsistent with the cathedral acts which permit such use by the authority of the legislature alone, and that .'■ueh land was ckempt from taxation.

Appeal by the defendants, who are assessors of Long Island City, from a judgment or final order entered upon a decision of Justice Bartlett, upon certiorari under Laws of 1880, chap. 269, directing that certain taxes upon the relators’ cemetery in Long Island City be stricken from the assessment roll on the ground that there existed no right to assess them for taxes.

W. J. Foster (George W. Stephens, of counsel), for app’lts ; T. G. Barry (George Bliss, of counsel), for resp’ts.

The trustees of St. Patrick’s cathedral, in the _city of Hew York, own a tract of land in Long Island City, Queens county, which is used and occupied for cemetery purposes. The defendants, as assessors of Long Island City, have included these lands in the roll as lands liable to taxation. The order at special term was that the assessment should be stricken oil the list. The tax is not legal. By chap. 87, Laws of 1864, the relators were empowered to use their lands in Queens county for cemetery purposes, and to acquire others for the same purpose not exceeding 150 acres. By chap. 314, Laws of 1879, the relators were again empowered to acquire other lands to the extent of 100 acres for cemetery purposes. A general exemption from taxation in respect to lands held for cemetery purposes was created by chap. 310, Laws of 1879.

The case of the assessors rests upon § 3 of diaper 280, Laws of 1852. This was an amendment to the general Rural cemetery act of 1847. By § 3 of chapter 280, Laws of 1852, it was not lawful for a cemetery thereafter incorporated under the general act as to rural cemeteries to take or set apart lands for cemetery purposes in Queens county without the consent of the board of supervisors. This section-was applicable only to corporations under the act of 1847. The relator was, by chapter 153, Laws of 1842, empowered to obtain land for cemetery purposes in Hew York or “in any neighboring county in the state.” The relators’ lands were all acquired under the permission of the legislature as to the property in Queens county, unless the general act for the incorporation of rural cemeteries requires the consent of the supervisors. The general rule as to repeals by implication is against this construction. Whipple v. Christian, 80 N. Y., 525 ; Matter of Delaware & Hudson Canal Co., 69 id., 209.

The legislature after the relators acquired the lands in question by special act, permitted their use as a cemetery without qualification. The Rural cemetery act and its amendments are not inconsistent with the cathedral act and its amendments, which permit the use of the lands in Queens county for cemetery purposes by the authority of the legislature alone.

The order should be therefore affirmed, with costs.

Dykman and Pratt, JJ., concur.