
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York Relative to Acquiring Title, etc., for the Purpose of Opening Mount Vernon Avenue [although not yet named by proper authority] from Jerome Avenue to the Northern Boundary of the City of New York. Woodlawn Cemetery, Appellant; The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      Mural cemetery (1847, chap. 133, § 10, amended by 1877, chap. 31) — streets not to be opened through it without the consent of the trustees unless, by permission of the Legislature — such permission was not gimen by chapter 329 of 1874, chapter 545 of 1890, or chapter 712 of 1896 — effect of the amendment to the Mural Cemetery Act in 1877.
    The provisions of section 10 of the Rural Cemetery Act (Laws of 1847, chap, 133, as amended by the Laws of 1877, chap., -31), to the- effect that so long as the lots were devoted to the purpose of a cemetery no street, road, avemie • or thoroughfare should be laid out through such cemetery or through any part of the lands held by the association for such purposes without the consent of its trustees, except by special permission of the Legislature of the State, constitute a privilege given to the owners, and are not a limitation or restriction upon the right to lay out a street; consequently the provisions of section 2 of chapter 712 of the Laws of 1896, relating to street opening proceedings in the twenty-third and twenty-fourth wards of the city of New York, to the effect that “ no limitation or restriction contained in any general or special law relating to the laying out and establishment of any street (or) avenue * * * shall affect any special proceeding heretofore or hereafter commenced to acquire title to any such street, * * * (or) avenue,” did not operate as a grant of the permission of the Legislature required by the Cemetery Act, nor did chapter 329 of the Laws of 1874 or-chaptef 545 of the Laws of 1890.
    The fact that the original Cemetery Act prohibited any street from being “laid” through the cemetery lands, while the amendment changed the word “laid ” to “laid out,” has no effect upon the' construction to be given to the provision ■ under consideration.
    O’Brien, J., dissented.
    Appeal by the Woodlawn Cemetery from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk'of the county of Hew York on the 18th day of August, 1897, appointing commissioners of estimate and assessment for the purpose of opening Mount Vernon avenue from Jerome avenue to the northern boundary of-the city of Hew York.
    Chapter 712 of the Laws of 1896 is entitled “ An act in relation to the final maps, plans and profiles of the twenty-third and twenty-fourth wards of the city of Hew York,” and provides by its 2d section as follows: “Ho limitation or restriction contained in any general or special law relating to the laying out and establishment of any street, avenue, * * ’ * shall affect any special proceeding heretofore or hereafter commenced to acquire title to any such street, * * * avenue, * * * ■ and any such proceeding shall be commenced or completed the same as if no such limitation or restriction had existed, and as if such limitation or restriction had been repealed.”
    
      Charles E. Miller, for the appellant.
    
      Henry DeF. Baldwin, for the respondent.
   Rumsey, J.:

Mt. Vernon avenue was-laid out as a street of the first class in the city of Hew York in 1876, and the maps and profiles were filed in the proper office in due time. As laid out upon the maps it' passed through a portion of the lands owned for cemetery purposes by the Woodlawn Cemetery, an association organized. under chapter 133 of the Laws of 1847, generally known as the Rural Cemetery Act. Although the street was laid out so many years ago, no steps were taken to open it until the year 1897, when the usual formal notice was given that an application would be .made to the court for the appointment of commissioners of estimate and assessment. The Woodlawn Cemetery appeared and opposed the application, so far as its land was concerned, upon the ground that by. the provisions of the law under which ,’it was organized no street could be laid through any part of the lands owned by it without its consent or the special permission of the Legislature. It was claimed! by the city that such permission had been granted, and it was so held by the court at Special Term. Whether thp court was ' correct in so holding is- the single question presented upon this appeal. Since the organization of the association permission has been given to it by the Legislature to hold a much' larger quantity of land than that authorized by the act under which it was incorporated ; but in all other respects there has been no change in its rights as they were established by that statute, unless some of these rights have been taken away by the laws hereafter to be referred to. That it was organized as a rural cemetery and still remains one, is not to be disputed, and in fact it does: not seem to be seriously contested, although some suggestion to the contrary is made in the briefs of counsel. As such an association it is undoubtedly entitled to the benefit of section 10 of the law under which it was organized, which provided that the' proprietors of lots or- plots in such cemeteries should hold these lots exempt ■ from taxation so long as they should be devoted to the purpose of a cemetery, and that during that time no street, road,, avenue or thoroughfare should be laid through such cemetery, or any part of the lands held by such association for the purposes aforesaid, without the- consent of the trustees; of such association, except by special permission of the Legislature of the State. As originally passed, the section forbade the' laying of any street through the lands of the association, but, in an amendment made in 1877 (Chap. 31) the word laying was changed to the phrase “ laying out.” It is suggested by counsel that this change of verbiage makes a great change in the effect of the statute, because when it forbade laying a road through the cemetery lands that necessarily involved a prohibition, not only of the making of a map locating a road or street through the cemetery, but also of the opening and maintaining such a street, whereas, when the Legislature forbade- only the laying out of a street- it meant simply that no map should be.fnade locating a street through those lands, but it did not intend that a street already located should not be opened and maintained. It is hardly necessary to discuss this proposition. To accede to the contention of the learned counsel for the respondent would be simply to say that while the Legislature did not permit a map to be filed locating a road through these lands, yet if a road could be opened without a map that was not to be forbidden. Such a contention' defeats itself and it is not necessary to discuss it further.

But, aside from all these collateral questions, the true matter in issue is whether permission has been granted by the Legislature to . lay out this road. ' It is suggested that such permission was granted by chapter 329 of the Laws of 1874, and chapter 545 of the Laws of 1890, but a consideration of those statutes satisfies us that they will not bear the construction' contended for by the counsel for the respondent. If such permission was granted at all it was done only by section 2 of chapter 712 of the Laws of 1896, and the question is whether that section, upon a fair construction, can be held to grant the special permission required by section 10 of the Rural Cemetery Act before a street can be laid out through the grounds of a cemetery organized under that act.

It will be noticed that the Legislature has expressly limited .the manner of taking away the exemption which by that section has been granted to a rural cemetery. The reason for this limitation is not difficult to find. These cemeteries were established as places for the burial of the dead. It was the intention that, from time to time and as rapidly as possible, lots should be laid out all over the cemeteries in which the lot owners might bury their dead. It would be impossible to dispose of the lots unless those buying them were practically guaranteed that the bodies buried in them should remain ' undisturbed. Nothing is more hateful than the desecration of a grave; and it was not only necessary for the sale of the lots that this exemption should be given, but it was done also in deference to what is recognized as a universal sentiment, that the places which are consecrated to the burial of the dead shall perpetually remain unviolated and undisturbed. In deference to this feeling the Legis- , latum practically promised by section 10 of the act that these cemetery grounds should be put to no other use except by special permission of the Legislature, which it was fair to infer, in view of the circumstances. would only be granted for peculiar reasons, and under some special exigencies. When the Legislature said that the exemption should only he taken away by special permission, it m nst he deemed to have meant precisely what was said, and, therefore, no general expressions which do not necessarily cover the particular case .will be deemed to be sufficient: In view of these considerations, an examination of section 2 of chapter 112 of the Laws of 1896 will show, we think, that it is not broad enough to take away the exemption given by section 10 of the Rural Cemeteries Act. The provisions of section 10, as above quoted, show that the provision that no street shall be laid out through the cemetery, is not a restriction, or a limitation upon the right to lay out a street, but it is a privilege given to the lot owners for a special purpose and to subserve á particular end. There is no general right to lay out streets through any private property, and unless given by statute, no such right exists.

Section 2 of the act in question does' not purport to affect the right to lay out or open streets. It contains nothing with reference to that right. It simply acts upon proceedings which have been or shall be commenced for that purpose, and it provides that no restriction or limitation shall affect those proceedings; but it does not provide that an exemption theretofore existing shall be taken away so ■as to extend the operation of those proceedings. If there were any limitations or restrictions upon the proceeding to acquire title, by ■ which they were hampered, this section operates to take away those limitations, hut it does not purport, nor is it broad enough to take away any exemption which was granted before the commencement of the proceedings and with regard to which the proceedings themselves . can have no effect. It does not say that any exemption granted is repealed, hut it says that the proceeding shall have the same effect when it is taken, as though any restriction or limitation to it had been repealed. But, as we said, the provisions of section 10 of the Rural Cemetery Act contain no restriction or limitation upon any proceeding. The exemption given by that act takes effect before the proceeding can be commenced,, and it gives to the lot owner an absolute guaranty against the taking of the first step necessary to the existence of the right to begin such proceeding. Ho matter what proceeding has been taken, it cannot be effective to give the right to lay a road through this cemetery, because the law says the cemetery is not within the jurisdiction of the persons who undertake to lay out the road. The. difference is precisely the difference between jurisdiction and procedure. The provisions of section 2 of the statute of 1896 may be effectual to enlarge the procedure, and to take away any restrictions or limitations in regard to that, but they are not effectual to enlarge the right to take property which originally was not within the power of the court exercising the procedure. To do that the Legislature says that its special permission is necessary, and that means, as we think, that the law which takes away the exemption must be so broad and so plain that it can be seen that it is aimed at the exemption and not at something collateral to it, which exists without regard to it, and which can proceed, although the exemption is still in full force. For these reasons we are of the opinion that the law of 1896 is not effectual to take away the right given by section 10 of the Rural Cemetery Act, and that the judge erred in appointing commissioners of estimate and assessment, so far as this land was concerned.

It is not necessary, in this view of the case, to examine into the constitutionality of the law of 1896.

The order appealed from must be reversed so far as it affects the lands of the association, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Patterson, J., concurred; O’Brien, J., dissented.

O’Brien, J.

(dissenting):

I dissent for the reasons given by the learned judge at Special Term.

Order reversed so far as it affects lands of appellant, with ten. dollars costs and disbursements.  