
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Appellant, Respondent, Relative to Acquiring Title, etc., for the Purpose of Opening Perry Avenue from Mosholu Parkway to the Southern Line of Woodlawn Cemetery, etc., in the Twenty-fourth Ward of the City of New York.
    Frederick IT. Brandt and John J. Wilson, Appellants; The Woodlawn Cemetery, Respondent.
    First Department,.
    April 12, 1907.
    Tax — cemetery association in city óf New York not liable for assessment on street opening — when abutting owner entitled to damage —• charter construed.
    Under the exemption afforded hy sections 1 and 2 of chapter 310 of the Laws of 1879, a cemetery association is not only exempt from assessment for street improvements during the period its lands are used for cemetery purposes, but no assessment whatever should be laid against it to be collected in the future when the lands cease to be used for that' purpose.
    The exemption applies not only to the lands of such association actually occupied as graves, but to all lands held exclusively for cemetery purposes.
    When commissioners have erroneously levied an assessment upon cemetery property to he collected when in the future the lands shall have ceased to be used for that purpose, the report should be sent back for a redistribution of the sum levied upon other property not exempt.
    When an owner of lands conveys portions to grantees with easements of light, .air and access over lands proposed to be taken for a public street, reserving to himself the fee of the proposed street, he cau convey to the municipality no greater right iu the fee of the street than he himself retains. Hence, such, original owner by ceding the fee of the street to a municipality does not deprive bis prior grantees of the right to compensation for damages to their property caused by a change of grade as authorized by section 980 of the charter of Greater New York.
    Section 979 of said charter indicates that .a change of grade is a “regulation ” of the street under section 980 for which an abutting owner may recover damage. Section 951 of the'charter of Greater New York, providing that after the taking effect of the act there shall be no liability to-abutting owners for originally establishing a grade, relates exclusively to assessment for local improvements other than those confirmed by a court of record and has no application to a proceeding for street opening.
    Reargument of an appeal by the petitioner, The City of New York, from so much of 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 17th day of April, 1903, as amends the report of the commissioners of estimate and assessment iu this proceeding by striking out an assessment against the lands of the respondent, the Woodlawn Cemetery.
    Also an appeal by Frederick IT. Brandt and another from so much of said order as refuses to make an award for certain parcels of land owned by them. ^
    
    
      Joseph A. Flannery, for the appellants Brandt and Wilson, and for the respondent, the Woodlawn Cemetery.
    
      Thomas C. Blake, for the appellant, respondent, City of New York.
   Scott, J.:

Two questions are presented by the appeal from the order modifying and, as modified, confirming the report of the commissioners of estimate and assessment in this proceeding.

The first question relates to so much of the report as affects the property of the Woodlawn Cemetery, a rural cemetery incorporated under chapter 133 of the Laws of 1847, and the subsequent acts amendatory thereof. It owns a tract of land in the vicinity of the proposed improvement which, hut for the fact that it is cemetery property, would be deemed tu be benefited by the improvement and properly assessable therefor. In distributing the assessment for benefit the commissioners reported assessments aggregating $668.51 as the proportion of cost equitably chargeable against the cemetery property, but appended to their report a note to the effect thatsnch assessments were not to be collected or enforced so long as the property is used for cemetery purposes. The court below struck out this assessment, and from so much of the order the city of Hew York appeals. .The statute under which the cemetery association claims exemption from assessment is chapter 310 of the Laws of 1879, 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 snch tax or assessment be levied,-collected or imposed, nor shall it he lawful to mortgage such land, or to. apply it in payment of debts, so long as it shall continue to be used for snch 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.”

It is apparent that this act is open, to two possible, constructions, one, contended for try the city, would permit the ascertainment and fixation of the ratable share of the assessment which would be imposed upon the -property 'but for its use as a cemetery, postponing the time when such assessment should become a lien and be collectible until-the time, if it ever arrived, when the land would cease to be used for cemetery jrarposes. The other construction, contended for by.the cemetery association, would render the pro}> erty used for cemetery purposes immune even from present ascertainment of its ratable share of aa assessment for benefit, so that if the property should ever cease to be.used for cemetery purposes it Would be burdened with no charges for benefits derived from past public improvements, and liable only to such assessments as might, be laid in the future. This second construction is that which' has been given to the statute by the Appellate -Division in the second department, wherein is comprised a large proportion, territorially. of the city of New York. (Matter of White Plains Presbyterian Church, 112 App. Div. 130.) In deference to that opinion, and to promote uniformity of practice in proceedings like the present, we adhere to the same construction. We cannot accede to the claim made on behalf of the city that the exemption from assessment, whatever its extent, applies only to so much of the land owned by the cemetery association as has been actually occupied for graves and used for purposes of interment. As was said by the Court of Appeals with reference to a similar exemption contained in chapter 133 of the Laws of 1847: “ The purpose of those provisions is the convenience of sale, the security of titles and the benefit and protection of lot owners. ' We have no reason to suppose, from, any language used in the act, that it was the intention of the Legislature that any portion of the cemetery land not laid out into lots, but which must nevertheless be held exclusively for cemetery purposes, should be subject to taxation.” (People ex rel. Oak Hill Cemetery Assn. v. Pratt, 129 N. Y. 68, 75.)

That the land.acquired and owned by the Woodlawn Cemetery is held and occupied exclusively for a cemetery for the burial of the dead” was determined in this court by Whittemore v. Woodlawn Cemetery (71 App. Div. 257). The court below was, therefore, right in striking from the report ot the commissioners the amount returned as. the sums to be assessed upon the property of the cemetery. It should, however, have gone further and have returned the report to the commissioners for a redistribution'of that sum, and its inclusion in the assessments to be laid upon the property benefited by the improvement and not exempted from assessment. In this respect the order appealed from must be modified ; otherwise there would be a deficiency in the fund necessary to meet the cost of the improvement.

The second question raised by the appeal is wdiether or not an award for damages can be made to the owner of a lot abutting upon the street, but who owns no part of the land to be acquired, for incidental damage to a building standing upon the abutting lot, and which is “not required to be taken” for the proposed street opening.

The 'relevant facts upon which the question is presented are as follows : Prior to October 24, 1890, John G. Wood was the owner of a tract of land through which runs the avenue proposed to be acquired in this proceeding. On the date named lie made a number of conveyances of lots abutting upon the proposed avenue, and so described the lots conveyed as to give to his grantees easements of light, air and access over the land now proposed to be taken for Perry avenue, retaining in himself the fee to the bed of the proposed avenue in front of the lots conveyed. In 1891. the appellants Brandt and Wilson erected buildings upon two of the lots thus conveyed, and in 1895 the grade of the proposed avenue was first officially established .by the filing of a grade map ón December 16,' 1895. The present proceeding was initiated on June 25, 1897, by. an application to the court for the appointment, of commissioners of estimate and assessment, and commissioners-were appointed on December 31, 1897. On September 20, 1.897, Wood, the original owner of the tract, and the grantor under whom the appellants' hold title, executed a deed of cession to the city of whatever title and interest he still had in the bed of-the avenue upon which the lots of the appellants abut. It is said that Berry avenue was actually worked and used as a street, at it's natural grade, for some time before proceedings for its acquisition by the city were initiated, but the profile map filed in 1895 shows that it is proposed, after acquisition, to raise its grade about ten feet. The commissioners considered that th.e damage to the buildings owned by appellants was substantial, but refused to make any award therefor because, as they thought, the cession of the bed of the street by Wood prevented the mating of any award for consequential damages to the abutting property. The court below upheld their action in this regard. The-only doubt in the case arises from the fact that Wood had conveyed the abutting lots before the proceeding to acquire the street had been begun. * In the absence of a statute the owner of land abutting upon a public street is without claim against the municipality for consequential damages resulting to his property cither by reason, of the establishment of a grade different from the natural grade, or for the change of an established grade. (Radcliff’s Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195.) The harsh and often unjust consequences that followed upon the application of this rule has led to the adoption by the Legislature of statutes giving a claim for damages in certain cases. Such provision was first made in 181.6, by chapter 160 of the laws of that year, and was continued by section 978 of the Mew York City Consolidation Act of 1882, in force when this proceeding was instituted, in the following terms: “If the said commissioners of estimate and assessment shall judge that such intended regulation will injure any building or buildings not required, to be taken for the purpose of opening, extending, enlarging, straightening, altering or improving such street, or part of a street, or public place, they shall proceed to make (together with the other estimates and assessments required * * * to be made by them), a just and equitable estimate and assessment of the loss and damage which will accrue, by and in consequence of such intended regulation, to the respective owners, lessees, parties and persons respectively entitled unto or interested in the said-building or buildings so to be injured by the said intended regulation; and the sums or estimates of compensation and recompense for such loss and damage shall be included by the said commissioners in their general report of estimate and, assessment,” etc. This same provision, in substantially the same form, has been embodied in section 980 of the Greater New York charter. The provisions of section 979 of the Greater New York charter, authorizing the commissioners to-obtain a profile and plan of the intended regulation of the street, showing the proposed elevation or depression thereof, indicate that the “regulation” of the street from which it was apprehended that buildings on abutting property might suffer, meant the establishment of a new grade or a change of grade. It is perfectly clear that if Wood had neither conveyed away the abutting lots, nor ceded the bed of the street to the city, but had himself erected the houses, he would have been entitled to the consequential damages resulting to the buildings from the proposed regulation or change of grade of the street. (Matter of Mayor [Trinity Avenue], 81 App. Div. 215.) The fact that Wood, after he had conveyed the abutting lots, made a deed of cession to the city of what remained to him of title to or interest in the bed

of the street cannot affect the appellants’ rights in this proceeding, for Wood could then convey to the city, no more than he then had liitnself. Prior to the conveyance o.f the abutting lots he had, as owner of the whole tract, every right to light, air and access that he chose to exercise over any part of the tract for the benefit of any other part. By his deeds of the abutting lots he conveyed not only the fee of those lots, but also the right of light, air and access to those lots over the portion of the tract known as Perry avenue, and now sought to be acquired. .'He had thereby conveyed away to his grantees any right which he had to. change the grade of that portion of the tract designated as Perry avenue so as to render the right of ingress and egress to and from the abutting lots materially more difficult.. (Cunningham v. Fitzgerald,, 138 N. Y. 165.) He certainly could not convey to the city any greater or better estate in the bed of Perry avenue than he had himself. What he could convey, and all that he could convey, to the city was the fee of the bed of the avenue, less these rights of ownership over it, such as the right to change the grade,, of which he had deprived himself by his prior deeds of the abutting lots. These rights could only be acquired or extinguished by the exercise by the city of the right of eminent domain.- The appellants’ right to compensation is not, therefore, affected in any way by .the deeds from Wood tó the abutters nor by his cession-to the city. By the deeds of the abutting lots Wood simply conveyed to the grantees that right to recover consequential damages for buildings injured but not taken, which he himself would have had if he had retained title to the whole tract, and having conveyed that right before his cession-to the city he could not include it in that cession. The appellants are, therefore, entitled to the same damages that Wood would have been entitled to if he had never sold the abutting lots, and the rule applied in Matter of Mayor (Trinity Avenue) (supra) applies. We have not overlooked section. 951 of the Greater Mew York charter,, which provides inter alia that after the talcing effect of that, act there should be no liability to abutting owners for originally establishing a grade. That section is a paraphrase of sections 873 and 874 of the New York City Consolidation Act which were in force when the Trinity Avenue case arose. It is to be found in title 2 of chapter 17 of the charter, which relates exclusively to assessments for local improvements other than those confirmed by a court of record. It is a rule established only with respect to such improvements and has no relation to or bearing upon proceedings for street openings like the present.

Our conclusion, therefore, is that the order appealed from must be reversed and the report returned to the commissioners with instructions to redistribute the amount found as the benefit to the property of the Woodlawn Cemetery, and to include awards to the appellants Brandt and Wilson for damage to their buildings not required to be taken for the opening of the avenue, with ten dollars costs and disbursements to said appellants.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and report returned to commissioners as directed in opinion. Settle order on notice. 
      
       Laws of 1882, chap. 410.—[Rep.
     
      
       See Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466. See, also, Laws of 1905, chap. 299, and Laws of 1906, chap. 658.— [Rep.
     
      
      
         See first sentence of note supra, and also Laws of 1905, chap. 581, and Laws of 1906, chap. 658.— [Rep.
     