#### Buffalo Cemetery Association, Appl’t, *v.*City of Buffalo, Resp’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed January,*1887).

1. Taxes and assessments — Cemetery lands in city op Btjfpalo not EXEMPT PROM MUNICIPAL TAXES — LAWS 1854, CHAP. 234.

The plaintiff was incorporated by Chapter 234, Laws 1854. By the provisions of the ninth section of the act, the cemetery of the corporation was declared to be exempt from “ all public taxes, rates, or assessments.” *Held,*that the said exemption did not extend to a municipal assessment, levied to defray the expenses of a local improvement, that not being a public assessment or tax within the meaning of the act, *(following*Buffalo City Cemetery v. City of Buffalo, 46 N. Y., 506.)

2. Same — Laws op 1S79, chap. 310, does not exempt any cemetery LANDS BUT THOSE IN THE CITY OP ROCHESTER.

The act of 1879, chapter 310, which provides that no land actually used and occupied for cemetery purposes shall be sold for “ any tax or assessment,” and which also excepts from the operation of the act the lands held by the city of Kochester, is a general act in its terms, and there is nothing in it manifesting an intent to repeal or alter the prior statute which provides specially for the case of the plaintiff. The two statutes are not inconsistent, and the prior statute is unaffected by the latter. The exception of the lands held by the city of Rochester does not indicate an intention to embrace all other cemetery lands in the state._

3. Same — When no cloud, action cannot be brought to remove.

*Held,*that if it be assumed that the plaintiff is within the exemption by the act of 1879, the exemption is fatal to the plaintiff’s demand for equitable *395relief, because in that case tbe proceedings of tbe defendant to levy an assessment, created no cloud upon tbe plaintiff’s title, requiring proof of extrinsic facts to remove

Appeal from a judgment entered upon a decision rendered at tbe Erie special term dismissing tbe complaint.

*JPlumley Kingston,*for appl’t; *Edmund, I.*Plumley, of counsel; *Win. E.*Worthington, for resp’t; *Eranlc G.*Laughlin, of counsél.

Smith, P. J.

Tbe object of tbe action is to have a certain assessment wbicb was imposed by tbe defendant on lands of tbe plaintiff in tbe city of Buffalo, declared to be void and to restrain tbe collection thereof,

Tbe plaintiff is a corporation'created to purchase lands in said city for burial purposes, and sell, the same in small lots to all desiring to purchase.

Tbe assessment in question is levied for tbe purpose of defraying the expense of paving Best Street, one of tbe public streets of tbe city of Buffalo, and leading to, and in front of lands wbicb were 'used and occupied by tbe plaintiff for cemetery purposes, pursuant to tbe provisions of its charter.

That tbe city authorities bad the general power to assess tbe expenses of such improvement upon tbe parcels of land benefited by it, in proportion to such benefit, and that the assessment upon tbe lands of tbe plaintiff was made upon tbe theory that such lands were benefited by tbe work to tbe amount of such improvement, is not questioned; tbe only contention on tbe part of tbe appellant, upon tbe question of power, being that tbe land of tbe appellant, used for cemetery purposes, is by law exempt from assessment for the expense of such improvement.

That contention calls for tbe examination and construction of several successive statutes.

Tbe plaintiff was incorporated by an act of tbe legislature in 1854. (L. 1854, C. 234). By tbe provisions of the ninth section of tbe act, tbe cemetery of the corporation was declared to be exempt from “ all public taxes, rates or assessments.”

In 1870, tbe charter of tbe city of Buffalo was revised, and a provision was inserted therein that “ no lands in tbe city shall be exempt from local assessments, any statute to tbe contrary notwithstanding.”

An impression seems to have been entertained at tbe time that the latter provision trenched upon tbe exemption above declared in tbe plaintiff’s charter, for at tbe next succeeding session of tbe legislature, an act was passed entitled “ an act to amend tbe charter of the, Buffalo City Cemetery, and to restore tbe exemption of cemeteries in said city from local assessment.” L. 1871, C. 154.)

Tbe second section of that act provided that “ all lands *396in the city of Buffalo, belonging to any incorporated cemetery association, shall be exempt from taxes, rates and assessments to the extent provided in section ten of the ‘ act to incorporate cemetery associations,’ passed April 27th, 1847, any statute to the contrary notwithstanding.”

The third section provided that the above exemption shall not apply to assessments for grading or paving those parts of any streets or sidewalks that shall be immediately in front of, and bounded on the lands of any of the said cemeteries.

The exemption from taxation contained in section ten of the act of 1847, was identical in language with that expressed in the charter of the plaintiff, to wit, from “ all public taxes, rates and assessments.” (L. 1847, C. 133, § 10.).

So, that upon the assumption that the original exemption contained in the plaintiff’s charter, embraced assessments for local improvements, (and upon that assumption only could it have been supposed that the revised charter of the city impaired such exemption), the act of 1871, restored such exemption as to all local improvements, (except grading or paving,) as for instance, the construction of sewers.

But within a few months after the passage of the act of 1871, it was held by the Court of Appeals, that the exemption contained in section ten of the act of 1847, did not extend to a municipal assessment levied to defray the expenses of a local improvement, that not being a “ public ” assessment or tax, within the meaning of the act. *The Buffalo City Cemetery*v. *The City of Buffalo,*46 N. Y., 506. The same construction applies, of course to the exemption contained in the charter of the plaintiff.

It necessarily follows from that construction, which is to be accepted and followed by us as the law of this case, so far as it applies to it, that neither the provision of the revised charter of the city above referred to, nor the act of 1871 affected the exemption contained in the plaintiff’s charter, and that such exemption does not relieve the plaintiff from the assessment in question.

The appellant’s counsel relies also upon chapter 310 of the laws of 1879, the first section of which provides that no land actually used and occupied for cemetery purposes shall be sold for “ any tax or assessment,” and the third section of which excepts from the operation of the act, lands held by the city of Rochester. If that act applies to the plaintiff, it furnishes an exemption from the assessment in question, inasmuch as it extends to every tax or assessment, without limitation or exception, but we concur with the learned judge at special term in the opinion that the plaintiff is not within its provisions. The act is general in its terms, and there is nothing in it manifesting an intent to repeal or alter the prior statute’which provides specially for the ease of the plaintiff. Nor are the two statutes inconsistent, The prior statute is therefore unaffected by the latter. *397
      *Matter of the Commissioners of Central Park*50 N. Y., 493; *McKenna v.*Edmunstone, 91 *id.,*231. Nor does tbe exception of lands held by tbe city of Rochester, sufficiently indicate an intention to embrace all other cemetery lands in the State, including those provided for by special act. *McKenna*v. Edmunstone, *supra.*

The appellant’s counsel argues that as the act of 1871, applied to the plaintiff, the provision of the general act of 1847, the rule of construction last above stated as to the effect of a general statute upon a prior special statute, does not apply. But we have seen that the exemption of the plaintiff rests upon the special provision contained in its charter, and is unaffected by subsequent legislation. Besides the act making the provisions of the statute of 1847, applicable to the plaintiff, is in itself special.

If these views are correct, it follows not only that the plaintiff is not exempt from the assessment in question, but also that the action is barred by the one year’s statute of limitation set up in the defendant’s answer.

But if it be assumed that the plaintiff is within the exemption created by the act of 1879, the exemption is fatal to the plaintiff’s demand for equitable relief in this action. In that case the proceedings of the defendant to levy an assessment, create no cloud upon the plaintiff’s title, requiring proof of extrinsic facts to remove it. The statute, being a public act, needs no proof, and the bare reading of it shows the invalidity of the proceedings if the plaintiff’s construction is correct.

The judgment should be affirmed with costs to the defendant.

Bakkeu, Haight and Bradley, JJ., concur.

So ordered.