#### The People *ex rel.*The Oak Hill Cemetery Association, Pl'ff, *v.*Luther A. Pratt *et*al., Assessors, Def’ts.

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

*Filed June 2, 1891.)*

1. Cemeteries—Taxes—Exemption.

Chapter 28Q, Laws 1852, requiring the consent of hoards of supervisors to .the proposed use of land as a cemetery, has no application to the county of Monroe.

2. Same.

The word “rural” as used in the acts relating to rural cemeteries was not intended to limit the holding and use of cemetery grants to lands outside of city limits.

3. Same—Lands in cities.

Such lands cannot be held for cemetery purposes unless by consent of the common council of the city.

4. Same—Revocation op ordinance.

Relator was incorporated under Laws 1847, chap. 133, for cemetery purposes. The common council passed an ordinance amending a previous ordinance prohibiting the burial of the dead in the city except in certain cemeteries named, so as to include the relator, but before any action was taken to prepare the lands for such purposes the last ordinance was revoked and the original one re-enacted. *Held,*that the action of the common council in amending the former ordinance did not amount to a contract so as to preclude it from afterwards receding from its action; that relator’s lands could not be held for cemetery purposes and were not exempt from taxation under § 10 of the act of 1847.

Appeal from a judgment of the special term held in Monroe county and entered in the clerk’s office on the 6th day of March, 1891, in pursuance of the decision of the court, after a reference of certain matters, that the lands of the relator were not exempt from taxation, but were liable to assessment for general city taxes for the year 1890, and affirming the report of the referee that the valuation of $75,000 made by the assessors was greater than the actual *599value of the land and unequal, when measured by valuations of other lands, and reducing the same to the sum of $52,000.

*Martin W. Cooke,*for pl’fi; *George F. Danforth*and *Henry J. Sullivan,*for def’ts.

Per Curiam.

The relator was incorporated on the 16th day of March, 1889, under chapter 133 of the Laws of 1847, entitled ‘‘An act authorizing the incorporation of rural cemetery associations.” Such was the allegation of the petition and the same was admitted by the answer filed by the assessors. By § 10 of that act, it is provided, “ that the cemetery lands and property of any association formed pursuant to this act, shall be exempt from all public taxes, rates and assessments.” It is under this provision of law that the *certiorari*was issued at the instance of the relator, under a claim that the property which it owns consisting of forty-five and one-half acres of land, situate in the sixteenth ward of the city of Rochester, is exempt from taxation.

The learned justice at special term seems to have been of the opinion that the acquisition and proposed use by the relator, of its lands for cemetery purposes, was not legal, because there had not been obtained for such purpose the consent of the board of supervisors of Monroe county, under chapter 280 of the Laws of 1852.

We cannot assent to that view of the case. The act of 1852 in respect to the necessity of obtaining the consents of boards of supervisors applied to the counties of Westchester, Kings and Queens, named in the statute, and to no other counties in the state. This act was amended by chap. 389 of the Laws of 1889 by including the county of Rockland among those where the consent of the board of supervisors must be obtained as a condition precedent to the holding and use of lands for cemetery purposes. We feel constrained to hold, under the facts alleged in the petition and admitted in the answer, that, for the purposes of this proceeding, the plaintiff was a duly organized corporation under the act of 1847, unaffected by the above named provisions of the act of 1852, and that it lawfully proposed to set apart its lands for cemetery purposes. Nor do we think that the word “ rural ” that appears in the title and body of these and many other acts of the legislature has any significance or bearing upon the merits of the case. That word, it is true, commonly means *the country*as separated from the city; but in the instances named it was not intended by the word to limit the holding and use of cemetery grants to lands outside of city limits. The word was manifestly used as descriptive of the picturesque character of the place of burial rather than as something beyond city boundaries; for there may be and often is *rus in urbe.*But there is another ground stated by the learned justice upon which the judgment appealed from may be affirmed, and that is that the lands of the relator, whatever may have been the intention of the parties in acquiring title thereto, could not be held or used for cemetery purposes without the consent of the common council of the city of Rochester. By chap. 14 of the Laws of 1880, § 40, sub. 18, there is *600given to the common council of that city power to make, modify and repeal such ordinances and regulations as it may deem desirable within the city, and, among other matters, it may regulate the burial of the dead. It cannot be denied that the common council had power, if it had seen fit to exercise it, to permit the burial of the dead on the relator’s lands; but such consent has not been shown in this case.

It is true that three days after the incorporation of the relator the common council passed an ordinance amending a previous ordinance which forbade the burial of the dead in Rochester, except in certain cemeteries named in the ordinance, so as to include in such exceptions the land in question. In pursuance of that ordinance, the assessors left this property of the relator off from the assessment rolls of 1889, under § 10 of the act of 1847, above referred to. But before any steps were taken to turn these lands actually into a cemetery, or to prepare them for cemetery purposes, this amendment of the ordinance was revoked, and by an ordinance enacted on the 2d day of May, 1889, the original ordinance, not including the relator’s lands in its exceptions, was substantially re-enacted, and from that time no right remained in the relator to use these lands for cemetery purposes. The action of the common council did not in and by the amendment of the old ordinance amount to a contract su.cli as would enable the court to say that it had not the power afterwards to recede from its action. Hence, the ordinance of 19th day of March, 1889, by which the relator’s lands were permitted to be used for cemetery purposes, went for naught. No question, in our judgment, of the impairment of a contract arises in this matter. *People ex rel. Cunningham,*v. Roper, 35 N. Y.. 629 ; *People ex rel.*v. *The Board of Assessors of*Brooklyn, 84 id., 610. For this reason we think that the action of the assessors in listing the relator’s property and assessing the same was legal, and that consequently the appeal of the relator from the judgment must be deemed to be unavailing.

In respect to the appeal taken by the defendants from that portion of the judgment which reduced the valuation of the relator’s lands from $75,000 to $52,000, it may be sufficient to say, that while the evidence was very inconclusive, resting largely upon the opinions of the witnesses, we cannot say that the finding of the learned referee in that regard, which has had the approval of the special term, was not well supported by testimony, and consequently we also affirm that part of the judgment appealed from.

The judgment should be affirmed, without costs of this appeal to either party.

Dwight, P. J., and Macomber, J., concur.