
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to That Part of Jerome Avenue Lying Between Van Cortlandt Park and That Part of Jerome Avenue Legally Opened June 21, 1870, Extending from Woodlawn Road to Mosholu Avenue. Woodlawn Cemetery, Respondent.
    First Department,
    June 21, 1907.
    Eminent domain — taking cemetery lands for street opening — benefit received deducted from amount of damage.
    Although the lands of a cemetery association used for cemetery purposes are exempt from taxation or assessment, yet when such lands are taken by eminent domain for. the purpose of opening a street in the city of Mew York, the value of the benefit received by the association should be deducted from the damage caused and the difference only be paid, as provided by the city charter.
    The fact that an assessment for benefit received cannot be levied and enforced by sale does not prevent the deduction of the benefit received from the amount of damage payable, '
    
      Appeal by the petitioner, the City of New York, from an order of the Supreme. Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of .April, 1905, modifying and confirming the partial and final report o'f the commissioners of estimate and assessment in a street opening proceeding. .
    
      John P. Dunn [Thomas C. Blake with him on the brief] of counsel [William B. Ellison, Corporation Counsel], for the appellant.
    
      Joseph A. Flannery,. for the respondent.
   Clarke, J.:

This is an appeal by. the city from an order of the Special Term sustaining objections of the Woodlawn' Cemetery Association to assessments levied against its property, designated as benefit parcels 8 and 22, and strilring'the said assessments from tile report of the commissioners of .estimate and assessment and thereupon confirming the report as so corrected and amended.

This proceeding, which was for the purpose of condemning land incident .to a change in the location and direction of J er.omé avenue involving, the taking of' a strip of land to the’ east of the former . avenue and the abandonment and discontinuance of another strip on the west thereof, was authorized by a resolution adopted by the board of street opening and improvement of the former city of New York on June 18, 1897, which resolution directed that the entire cost and expense thereof be borne by the property benefited, as authorized by section 970 of the Consolidation Act-(Laws of 1882, chap. 410, as atad, by Laws of 1893, chap. 660). The jn-oceeding was instituted by a petition dated September 15, 1898, after the creation of Greater ¡New York. Title -in the land to be taken pursuant to the resolution of the board of street opening and improvement, vested on the filing of the oaths of the commissioners May 23, 1899. The report of the commissioners was signed on September 21, 1903. They awarded to .the Woodlawn Cemetery Association for damage parcels 2a and 3 the sum of $23,057.43. Damage parcel -2a is the easterly half of the old road known as the u Mile "Square ¡Road,” and damage parcel 3 is a gore lying between said road and the westerly side of Jerome or Central avenue as legally opened June 21, 1870.

The commissioners assessed for benefit to parcels 8 and 22 on the benefit map belonging to the Woodlawn Cemetery Association a total of $17,613.85. Benefit parcel 8 is directly opposite the locus in quo and includes a considerable gore contained within the limits, of Jerome avenue as legally opened on June 21, 1870, said gore to be discontinued and closed in these proceedings, and parcel 22 is to the north of Mosholu avenue and the locus in. quo.

The cemetery association'objected to these assessments for benefit, alleging that said assessment is illegal and void. The said lands of your objector are exempt from such assessment under chapter 310 of the laws of 1879.” By an order made on October 28, and entered "on Hovember 2, 1904, the Special Term confirmed the report of' the commissioners as to the amount of the award for damages, reserving certain questions as to ownership, and confirmed the report as to assessments for benefit, except as .to the assessments upon parcels-8 and 22, which were reserved for future consideration. By order made and entered on April 3, 1905, it was ordered that the objections to the assessments levied against the property of the Woodlawn Cemetery benefit parcels Hos. 8 and 22, be sustained and be stricken from ■ the report of the commissioners and that the report of the commissioners as to assessments for benefit as amended and corrected be confirmed. From this order the city appeals.

Benefit parcel Ho. 8 includes a portion of Jerome avenue which had been legally acquired in 1870, but which was shown on the final map of the twenty-third and twenty-fourth wards adopted pursuant to chapter 545 of the Laws of 1890 as a part of Jerome avenue to be discontinued and closed. Of course, this portion had not been and could not have been used for cemetery purposes since 1870. It had been used ever since it was constructed as a street and under section 2 of chapter 1006 of the Laws of 1895 would not cease to be a street until the new Jerome avenue was physically opened subsequent to the acquisition of the benefit from this improvement. (Johnson v. Cox, 42 Misc. Rep. 301.) Section 970 of the charter (Laws of 1897, chap-. 378 — the same section being continued and amended in the revised charter. Laws of 1901, chap. 466), in force when the application .for the appointment of commissioners was made, provided that the lands, tenements and hereditament's that may be required in any street opening proceeding may be taken therefor and co.mpensation and recompense made to the parties and persons, if any such there .shall be, to whom the loss and damage' thereby shall be deemed to exceed the benefit and advantage thereof, for the excess of the damage over and above' the value of said benefit.” < Therefore, under said section, as the benefit found due to the Woodlawn Cemetery amounted to $17,613.85, and the damages amounted to $23,057.43, compensation is only due to the amount of excess of. the damage over and above the value''of said benefit, to wit, $5,443.58.

The cemetery association, however, claims that it is entitled to the whole amount of the .award for damages, $23,057.43, and that the amount of the award for benefit cannot be taken into consideration because of the provisions of chapter 310 of the Laws of 1879, entitled An act to prevent ‘the sale of lands used for cemet.ery purposes,” which is as follows :

“ Section 1. 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.
“ § 2. Whenever any such laud 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.”'

, This court has recently held in Matter of Mayor, Perry Avenue (118 App. Div; 874; 103 N. Y. Supp. 1069) that Under the provisions of this act no assessment could be imposed upon lands owned by the Woodlawn -Cemetery. The underlying reason for that decision was that it was the intent of the act to prevent the possibility Of disturbance of the graves of the dead by .a sale of the land for a tax or assessment. . It is, however, a settled principle in the interpretation of statutes of exemption that they should'be strictly construed. The legislative intent, evidenced by the title of the act, arid its language, though expressed somewhat in artificially, is to protect such lands, to provide that they .should retain their character. But there is no necessity for extending protection to the graves of thé dead so far as to provide for a gift to the corporation owning the cemetery. That is a corporation whose certificates are valuable and which divides among its members considerable profits. (American Exchange National Bank v. Woodlawn Cemetery, 120 App. Div. 119.)

Section 1004 of the charter provides that an assessment for benefit in a street opening proceeding shall be, when confirmed, not only a lien upon the land upon which such assessment has been imposed in the commissioners’ report, but shall also be a personal liability on the owners for the benefit which they have derived from the improvement. Although this proceeding was authorized by the board of street opening and improvement prior to the adoption of thé charter, the petition for and the appointment of the commissioners was after, the ■ charter went into effect. Therefore, the action of the commissioners, with reference to their general duties and the duties of the city with reference to ■ payment for the acquisition of these lands, is governed by the charter provisions. (Matter of East 175th Street, 49 App. Div. 114.) As pointed out supra, section 970 of the charter provides for compensation for the excess of damages over and above the value of the benefit. By section 980 of the charter it is provided that the. commissioners shall make a “just and equitable estimate and assessment'also qf the value of the benefit .and advantage' of such improvement to the respective owners,' lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement.”

Section 985 of the charter provides that the report of the com-, missioners' shall contain a tabular abstract showing the amount “ of benefit and advantage to each and every owner, lessee, party and person entitled or interested in any lands, tenements, hereditaments or premises affected by the improvement.”

All of'these provisions indicate .an intention to equitably adjust the damages and the benefit of such a proceeding and all the provisions touching the subject contemplate not only the lands, but the ■owners thereof, and impose a personal'liability upon such owners. By the action of the Special Term in striking out the assessment from the report of the commissioners, which shows both damages ■ ■and benefits, and the value thereof, it is impossible to make the equitable adjustment contemplated by the statutes. The Legislature in prohibiting the imposition of an' assessment which would become a lien upon the land, for the enforcement of which the land could be sold, could not have had in contemplation such a result as' in the case at bar, by which, although the property of the owners is concededly benefited to the extent of $17,613.85 and damaged , $23,057.43, those owners are to receive the total benefit as well as the damages, in effect being recompensed to the ■ extent of $40,671.28. Such a result is not- equitable; it is. not just. The law does not require it.''

If no -portion of the land of the cemetery association had- been . taken, if its property had simply been within the area, of the assessment for benefit, it could not, under our decision in tlie Perry', Avenue case, have been assessed,.but part of its property lias been . taken and for that property it is entitled, under section’6 of article 1 of the Constitution, to just compensation. When it has been ascertained in thé manner provided by'law that it has been benefited by the improvements, it seems.to me that that .benefit is a part of the just compensation which it receives for .the taking of part of its' property, and .that it is entitled to receive in money only the differ-’ ence between that benefit and the danrages, and so it has been provided in the sections cited, and, so far as T know, no case in this State has held against the constitutionality of that method of providing for the payment of the just compensation required by the Constitution.

The fact that an assessment for benefit cannot-be levied and enforced by sale does not dispose of the fact that the benefit has been received and should be taken into consideration in the payment 1 of the amount due.

. It seems to me that full effect can be given to the provisions of , chapter 310 of the Laws of 1879, prohibiting the levying, collecting or imposing of an assessment upon the cemetery land in this case, and at the same time observe the letter and spirit of the charter provisions, by restoring to the report, of the commissioners their finding as to the amount of benefit to the Woodlawn Cemetery Association and providing in the order that such amount shall not be assessed upon the land but that there sliall be paid to the said association in compensation for its land taken in this proceeding the amount of $5,443.58, the excess of damages over and above, the value of the benefit.

The order appealed from should be so modified, and as modified affirmed, without costs. ' . ' •

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.  