#### In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, etc,, to that Part of Jerome Avenue Lying between Van Cortlandt Park and that Part of Jerome Avenue Legally Opened June 21, 1870, etc., Extending from Woodlawn Road to Mosholu Avenue, in the Twenty-fourth Ward, Borough of The Bronx, City, of New York, etc. Woodlawn Cemetery, Appellant.

First Department,

July 7, 1911.

Municipal corporations — condemnation of. lands for street purposes, city of Mew York— assessment for benefits —supplementary assessment pursuant to decision of Court of Appeals — exemption of cemetery lands — when cemetery association liable for increased-assessment.

Where in a proceeding to condemn lands for the purpose of altering the position of a street in the city of New York the Court of Appeal's held that parcels of land owned by a ceme.tery association were not hable to assessment for benefits, except such portion as had been included in the bed of a portion of the street which had been discontinued,, and upon the remittitur its judgment had been made that of the Supreme Court and the report was sent back to. commissioners for revision, then determination increasing the assessment for benefits on portions hable thereto, necessitated by the fact that the original assessment upon' the cemetery lands had been held to be invalid, cannot be treated as a new assessment. Its vahdity must be determined as of the date of the original assessment. Hepce, where, intermediate the confirmation of the original report and tho making of the supplemental report, the cemetery association purchased lands owned by a third person, on which the original assessment had been confirmed, which assessment was increased in the supplemental report, it is liable for the original and the increased assessment, although it uses them for cemetery purposes. ■

So; too, the cemetery association is liable for the original assessment on such lands held by it as were then part of the portion of the street which was closed, and is liable also for the redistribution of assessment for benefit to such parcel made necessary by the other reductions, although since the closing of that portion of the street it had devoted the parcel to cemetery purposes.

Appeal by the Woodlawn Cemetery 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 *866on the 24th day of January, 1911, confirming the supplemental and additional report of the commissioners- of estimate and assessment in a street opening proceeding. -

*Benjamin Trapnell,*for the appellant.

*James Began FitzGerald,*for the respondent.

McLaughlin, J.:

This is an appeal by the Woodlawn Cemetery from an order of the Special Term overruling its objections to assessments levied against its property designated as benefit parcels Nos. 8, 23, 108A and 126. The proceeding was instituted for the purpose of acquiring by condemnation the- land necessary to change a portion of Jerome avenue. Pursuant to a resolution of the board, of street opening and improvement;, title in the land to be taken vested in the city 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, as damages for land taken, some twenty odd thousand dollars, and assessed it for benefit on parcels Nos. 8 and 22 $17,613.85. Benefit parcel No. 8 included, with other lands, a portion of Jerome avenue as legally opened on June 21, .1870, which was closed by this proceeding. When the .report of the commissioners of estimate and assessment finally came before the Special Term for confirmation the same was confirmed in all respects, except as to the benefit assessed against the cemetery on parcels Nos. 8 and 22, and as to those assessments the same were stricken from the report. Prom this order an appeal was taken by the city to the Appellate Division, where the same was modified, and the assessments for benefit reinstated on those parcels, and as thus modified, affirmed (120 App. Div. 201). The cemetery thereupon appealed to the Court of Appeals, which modified the’ order of the Appellate Division by holding that parcel 22 was not liable to an assessment, and only so much of parcel 8 was liable as was included in the bed of .Jerome avenue which had been discontinued, and remitted the proceeding to the Special Term to proceed in the manner indicated in the opinion (192 N. Y. 459). Upon the remittitur of the Court of Appeals *867its judgment was made the judgment of the Supreme Court, and then the report was sent back to the commissioners for revision and correction. After hearings had the commissioners, on the llth of December, 1909, made what is termed a supplemental and additional report, which eliminated the assessment as to parcel 22, and all of parcel 8 except that which was formerly included in the bed of old Jerome avenue. The original assessment upon parcel 8 was $16,434.32, and in the supplemental and additional report this was reduced to $6,461.28, The elimination of the assessment on parcel 22 and part of parcel 8 necessitated an increased assessment for benefits upon all of the parcels legally liable for benefit assessments,- and in making this distribution they imposed on that part of parcel 8 which was formerly included in the bed of Jerome avenue (designated in the supplemental and additional report as benefit map 108A) an assessment of $2,342.01. They also imposed on a parcel originally assessed to S. L. Valentine (benefit map 23) an additional assessment of $436.29 in the supplemental and additional report assessed to the Woodlawn Cemetery, designated benefit map 126. When the report of the commissioners came before the Supreme Court for confirmation the objection of the cemetery to assessments against its property was overruled; on the 18th. of January, 1911, the report was confirmed, and the cemetery appeals.

The appellant contends that so much of parcel 8 as has, in the supplemental and additional report, been assessed for benefits is not liable to any assessment. Its contention in this respect is based upon the assertion that upon the rehearing before the commissioners the proof established that new Jerome avenue.was physically opened for public travel on December 1, 1898, and at that time, the title to the abandoned part-of the old avenue vested in the cemetery; that the cemetery has been in actual possession of such abandoned parcel since June, 1903, and at the time the supplemental and additional report was made it was occupied and used -for cemetery purposes. As to the parcel originally assessed to S. L. Valentine, and which was purchased by the cemetery in 1901, it is claimed.that it is not liable to any assessment because at the time the- supplemental, and additional report -was made- it was being *868used and occupied for cemetery purposes; in other words, the appellant contends that the assessment now in question is a new assessment to all intents and purposes, the validity of which is to be determined as of the date when made.

Can it be treated as a new assessment *%*I think not. Its validity, as it seems to me, must be determined as of the date of the original assessment. The original report of the commissioners was approved in all respects by the Court of Appeals, except as to parcel 22 and a part, of parcel 8. That court held that the assessment against parcel 22 was illegal and also all of part 8, except what was. formerly included in the bed of old Jerome avenue, and as to that part it was subject to assessment. The court said: “ A different question is presented, however, as to that parcel of land which was formerly included within the lines of Old Jerome avenue and which was abandoned as part of that highway. The learned court below has held, and we think correctly, that this tract was subject to assessment.” The elimination of the assessment for' benefit made against parcel 22 and part of parcel 8 necessitated a redistribution of assessments for benefit upon all of the other parcels liable therefor, and to accomplish that result the Court of Appeals modified the order appealed from, as indicated in the opinion, and directed that “the proceeding should be remitted to the Special Term for action in conformity therewith.” The judgment of the Court of Appeals having beén made, the, judgment of the Supreme Court, when the matter came before the Special Term it could do nothing but send it back to the commissioners to .do as the Court of Appeals had directed, and so the commissioners, when the matter came before them, had to follow the order of the Special Term, which they did. In .the report they state: “We have eliminated the assessment heretofore imposed by us on Benefit Parcel No. 22 and so much of the assessment- heretofore imposed on Benefit Parcel No. 8 as is not imposed upon the land formerly included within the lines of Jerome Avenue, as acquired in 18ft), and that we have completed our supplemental and additional estimate of assessments for benefit made necessary thereby.”

The original assessment on parcel 23 was confirmed in the original report. The validity of that assessment was not there*869after questioned and the purchase by the cemetery of such parcel, intermediate the confirmation of the original report and the making of the supplemental and additional report could not destroy that assessment or affect it in any way. If this be correct, then the original assessment on that parcel is valid as well as the assessment made in the supplemental report.

For the same reason the original assessment made upon that part of parcel '8 as was formerly included in the bed of old Jerome avenue is valid. If new Jerome avenue had, at the time such assessment was made, been actually thrown open to the public, then the appellant should have proved that fact •before the commissioners. Not having done'so, and the Court of Appeals having approved that part of the assessment, it became valid and binding upon the cemetery, which could not thereafter be heard to say it was not a valid assessment, and being valid, in the redistribution of the assessments for benefit, such parcel had to bear its share of what was made necessary by the other reductions.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements. .

Ingraham, P. J., Clarke, Scótt and Dowling, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.