
    Gouverneur Village, Appellant, v. Gouverneur Cemetery Association, Respondent.
    Third Department,
    December 3, 1909.
    Municipal corporations — Villages — assessment for local improvements — liability of cemetery association for local improvements.
    Whether or no chapter 310 of the Laws of 1879, providing that land actually used for cemetery purposes shall not be sold under execution or for taxes or assessments, etc., be repealed by section 113 of the Village Law, providing that no real property shall be exempt from an assessment for local village improvements, etc., an action;lies against a cemetery association to recover the cost of building a sidewalk in front of its premises; for, in any event, the judgpient may be satisfied out of the personal property of the corporation, or out of lands not actually used for cemetery purposes, if such there be,, and the judgment may become a lien upon lands actually used for cemetery purposes if at any time they cease to be so used.
    Chester and Sewell, JJ., dissented, with opinion'.
    Appeal by the plaintiff, Gouverneur Village, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in tlie office of the clerk'of the county of St, Lawrence on the 2d day of April, 1909, upon the decision of the court, rendered after a trial at the Washington Special Term, overruling the plaintiff’s demurrer to tile, first defense set up in the defendant’s answer.
    
      Howard B. Sturtevant and Vasco P. Abbott, for the appellant.
    
      E. H. Nedry, for the respondent.
   Smith, P. J. :

The plaintiff is a village duly organized in the State of Píew York subject to the provisions of the General Village Law. The defendant is a cemetery association, incorporated under chapter 133 of the Laws of 1847. By resolution duly passed the defendant was required by the trustees of the plaintiff village to build a sidewalk upon the street adjoining the real estate owned and used by the defendant as a cemetery. The defendant neglected to build the sidewalk, which was afterwards built by the plaintiff at an expense of $862.64, which amount was assessed against the defendant. This action is brought to procure a judgment for the payment by the defendant corporation of said sum. At the Special Term the plaintiff’s complaint was dismissed and from the judgment entered upon the order dismissing the same this appeal has been taken.

Plaintiff rests its case- upon section 113 of the Village Law (Gen. Laws, chap. 21; Laws of 1897, chap. 414), as amended by chapter 539 of the Laws of 1898. That séction reads as follows: § 113. Lien of assessment for local improvement. An assessment for * * * constructing or repairing sidewalks * * * is a lien prior and superior to every other lien or claim, except the lien of an existing tax or local assessment, upon the real property improved or benefited from the date of the final determination of the amount thereof until it is paid or otherwise satisfied or discharged. Ho real property is exempt from assessment for a purpose specified in this section. Except as provided in section five of chapter two hundred and seventy-three of the laws of eighteen hundred and sixty-six, entitled An act authorizing the incorporation of associations to erect monuments to perpetuate the memory of soldiers who fell in defense of the Union,’ as amended by chapter two hundred and ninety-nine of the laws of eighteen hundred and eighty-eight.” The defendant, however, claims exemption under chapter 310 of the Laws of 1879. That act is entitled “An Act to prevent the sale of lands used for cemetery purposes,” and reads as follows:

• “ Section 1. Ho land actually used and occupied for cemetery purposes shall be sold under execution or for any tax or assessment, nor shall such 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 such cemetery purposes.
“ § 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, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same.
“ § 3. The provisions of this act shall not apply to any lands held by the city of Rochester.”

A single question is here for decision. Has the Village Law impliedly repealed chapter 310 of the Laws of 1879, so far as the same is applicable to villages ?

The respondent first urges that no such repeal was intended, because chapter 310 of the Laws of 1879 is not among the laws included in the schedule of laws repealed as appended to the General Village Law. This argument seems in part to have been relied upon by the learned judge at Special Term. (62 Misc. Rep. 534.) But the act of 1879 was a general act, referring not only to villages, but to the whole State — cities, villages and towns. The Village Law, while assuming to enact rules for the government of villages, did not assume to affect the operation of any existing Jaw in respect to cities or towns ; and assuming that it was the intention to modify the law as to villages, this law clearly would not be included in the schedule of laws repealed as annexed to the General Village Law. The respondent further urges that there is a sanctity encircling the place of the dead, by reason of which the courts will go a great length in construing statutes to protect those places and to relieve them from the general burdens of the public. This position Would seem to be answered by the course of judicial decision in the State. In Buffalo City Cemetery v. City of Buffalo (46 N. Y. 506) the court held that a provision of law exempting cemeteries from “‘all public, taxes, rates and assessments ’ does not apply to a municipal assessment to defray the expenses of a local improvement.” And in discussing this question Judge Folger uses the following language : “Taxation is a burden. It is a common burden, for the common good. The person or the class which is exempted therefrom is a favored oné. A statute giving .favors at the expense of the public is not to be liberally interpreted. Statutes conferring exemptions from taxation are to be strictly construed.” If from that decision may be gleaned the attitude ' of the court it would seem to be inferable that in the opinion of- the court a cemetery association should bear its proportion of the cost of a local improvement affecting the value, of the association property. Again, in the case of Buffalo Cemetery Association v. City of Buffalo (118 N. Y. 61) it was held that the general provisions of chapter 310 of the Laws of 1879 did not repeal the special charter provisions of the city of Buffalo which made the ceméteries in that city subject to taxation for local improvement. From these two citations it would seem that statutes relating to taxation of cemetery associations are governed by no peculiar rule and are subject to no strained construction.

Applying the general rules of construction to the provision of the Village Law,, upon yliicli the plaintiff relies, it seems to me that the defendant’s liability for this assessment is undoubted. . In the first place this assessment is made- a prior lien upon tlie real property improved or benefited' by the local improvement. That of itself would probably not subject this property to. this tax, in view of the case of Oakland Cemetery v. City of Yonkers (63 App. Div. 448), which case has been affirmed, without opinion, in the Court of Appeals. (182 N. Y. 564.) It was there held that such language was not necessarily inconsistent with the provisions of chapter 310 of the Laws of 1879. But as if that decision were in mind the Legislature proceeded to enact “ no real property is exempt from assessment for a purpose specified in' this section ” with a single exception. The Village Law as originally passed had in it the explicit provision that no real property was exempt from assessment for a purpose specified in the section. The amendment of 1898 simply excepted from the provision property upon which were erected monuments in perpetuation of the memory of soldiers who fell in defense of the Union. This provision of the Village Law is clear and emphatic. It leaves no room for construction. Mo more- explicit language could have been used by the Legislature to subject the properties of charitable and cemetery associations to assessment for a lien for local improvement. Whatever sentimental reasons may exist for protecting these cemetery associations, they are more properly addressed to the Legislature than to the courts. In the light of this unequivocal declaration of the obligations of all property within a village to assessments for those purposes it is not the province of the court to indulge in speculation as to whether the Legislature meant what it said.

It is strenuously urged on the part of the defendant that even if this Village Law be deemed to authorize an assessment upon cemetery land for a local improvement, it must be read in connection with chapter 310 of the Laws of 1879, and as so read would authorize the assessment, which would become a lien enforcible only after the cemetery property has ceased to be used as a cemetery. This contention is based upon the decision , in Matter of City of New York (192 N. Y. 459), where it seems to have been held that sections 1 arid 2 of the act of 1879 were not reconcilable, because by the 1st section no'assessment was allowed to be.imposed upon the cemetery land for any purpose. To my mind the court would be traveling far afield to reach such a construction. If such had been the intent of the Village Law, it would seem that in view of this decision in the Court of Appeals it would have been accomplished by language more explicit or by an amendment of the act of 1879. The broad provision that no real property is exempt from assessment for this improvement, by irresistible inference subjects all real property within the city to an enforcible lien. The' amount of the benefit assessed upon' the cemetery land could not be assessed upon other land, and the municipality would be left in the incongruous position of being unable to collect an assessment for munici-. pal improvement apportionable to this land from anybody for an indefinite time. Such a construction the court will be slow to adopt.

But assume for the argument that such a construction should be given to the statute, the demurrer in my judgment is still well taken. The defense' does not assume' to be a partial defense, but is alleged as a complete defense to the plaintiff’s cause of action. By section 168. of the Village Law it is provided that for the amount so assessed for this local improvement, an action may be brought by the village against the owner or occupant. Such right of action is in no way inconsistent with the object of chapter 310 of the Laws of 1879. That act is entitled “An Act to prevent the sale of lands used 'for cemetery purposes.” We may assume for the argument that if this judgment were obtained this land could not be sold. Nevertheless, the cemetery association may have personal property or land not “ actually used and occupied for cemetery purposes,” out of which this assessment could be collected. In such case there is neither legal nor equitable objection to the requiring of this payment. In Matter of City of New York (supra) attention was called to section 1004 of the charter of the city of New York (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), which made the assessment a personal, liability against the owner, and it was there sought to enforce this personal liability, but the court there held that under the 1st section of chapter 310 of the Laws of 1879 no assessment whatever could be levied or imposed, and because an assessment was a condition precedent to a personal liability that such personal liability did not exist. Now upon the assumption made the effect of this .Village Law must be to amend the act of 1879 so as to authorize the assessment, and if so, it is not apparent why under section 168 of the Village Law this plaintiff has not a good cause of action to recover a judgment which shall be enforcible at least out of the personal property of the corporation or land not “ actually used and occupied for cemetery purposes,” if such be found, and which shall be a lien upon the lands actually used for cemetery purposes if at any time they shall cease to be so used. When such a judgment is sought to be enforced against the land “ actually used and occupied for cemetery purposes” the defendant has full opportunity to protect itself.

In my judgment, therefore, the judgment should be reversed.

Kellogg and Cochrane, JJ"., concurred on the ground last stated in the opinion; Chester, J., dissented, in opinion in which Sewell, J., concurred.

Chester, J. (dissenting):

The act under which the defendant was organized (Laws of 1847, chap. 133, § 10) exempted the cemetery lands and property of any association formed under that act from “ all public taxes, rates and assessments.” The Court of Appeals in Buffalo City Cemetery v. City of Buffalo (46 N. Y. 506), by putting a very strict construction upon that act, held that the exemption therein did not apply to a municipal assessment for a local improvement. Thereafter the Legislature, by a general law (Laws of 1879, chap. 310), in order apparently to overcome the effect of that decision, enacted that “No land actually used and occupied for cemetery purposes shall be sold under execution, or for any tax or assessment, nor shall such 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 such cemetery purposes.”

It seems to me clear that a sound public policy requires that neither the State nor any municipality should lay burdens upon public cemetery grounds that shall result in disturbing the permanency of the Testing place'of the dead. This policy found expression in the statute under which the defendant was organized, and when the courts by a-strict construction of the language there employed seemed to defeat the legislative intent, the Legislature again by a general law passed an act in terms so clear as to be free from all doubt that lands actually used and occupied for cemetery purposes, shall be free from all taxation and from all assessments. This has been held to include assessments for local improvements. (Matter of White Plains Presbyterian Church, 112 App. Div. 130; Matter of Mayor [Perry Avenue], 118 id. 874; Matter of City of New York, 192 N. Y. 459.)

I cannot think in view of this general public policy and of the sacred regard of all our people for the final resting place- of their dead, that we should hold that the principle which found such clear expression in chapter 310 of the- Laws of 1879 has been repealed by implication by the amendment to the Village Law, referred to in file prevailing opinion. That the Legislature did not intend to work such á radical change in the' policy of the State in ■ subsequently enacting.the provision in section 113 of the Village Law (Laws of 1897, chap. 414) that “No real property is - exempt from assessment for a purpose specified .in this section,” one .of which is an assessment for a local improvement, is apparent from the fact, that it did not include the act of 1879 (Chap. 310) in its schedule of acts repealed attached thereto.

It was held in People ex rel. Roosevelt Hospital v. Raymond (194 N. Y. 189) that a statutory exemption from taxation should not be held to be repealed by implication by the General Tax Law thereafter enacted where to do so will result in the violation- of a promise by the State.

I think the courts should hesitate a. long while, under' the circumstances presented here,' before holding that the statute granting cemetery corporations exemption, from taxes; and assessments has been repealed by implication'. For.these reasons I think the judgment should be affirmed* with- costs..

Sewell, L, concurred.

Interlocutory judgment reversed, with costs, with usual leave to defendant to amend its answer upon payment of costs in tins court and in the court below. ■  