Buffalo Cemetery Ass'n v. City of Buffalo

• Decision Date: 10 December 1889
• Parties: BUFFALO CEMETERY ASS'N v. CITY OF BUFFALO.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 61

22 N.E. 962

BUFFALO CEMETERY ASS'N

v.CITY OF BUFFALO.¹

Court of Appeals of New York,

Second Division.

Dec. 10, 1889.

Appeal from supreme court, general term, fifth department.

Action in equity by the Buffalo Cemetery Association against the city of Buffalo, to have a certain assessment imposed by defendant on the lands of plaintiff, for grading a street adjoining its property, declared void, and the collection thereof perpetually restrained. The trial court adjudged the assessment valid, and dismissed the complaint. On appeal to the general term the judgment was affirmed, (43 Hun, 127,) and plaintiff again appeals.

Edmund J. Plumley, for appellant.

Frank C. Laughlin, for respondent.

PARKER, J.

The conclusion of the courts below as to the validity of the assessment in question is in accord with the result at which we have arrived. In the opinions written at both the special term and the general term the proposition involved was so thoroughly considered as to require but little discussion in this court. It is not questioned but that prior to the passage of chapter 310 of the Laws of 1879 the local authorities possessed the power of making an assessment for grading and paving adjoining plaintiff's premises. It was so determined by this court in the case of Cemetery v. City of Buffalo, 46 N. Y. 506. But the act referred to is a general act, and declares that no land actually used for cemetery purposes shall be sold under execution for any tax or assessment. If that act be applicable to lands owned and used for cemetery purposes within the limits of the city of Buffalo, the assessment in question is unlawful. The act of 1879 did not in terms repeal other statutes then existing. Whether it did repeal by implication the local and special acts authorizing the assessment in question is therefore one of legislative intent. It is a rule of construction that a special statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application, unless the intention of the legislature to repeal or alter the special law is manifest, although the terms of the general act would be taken strictly, and but for the special law include the case or cases provided for by it. Van Denburgh v. Village of Greenbush, 66 N. Y. 1;Whipple v. Christian, 80 N. Y. 523. A brief reference to the statutes discloses that, at the time of the passage of the act referred to, an assessment of the character of the one in question was authorized by local statutes relating to lands within the limits of the city of Buffalo. The plaintiff was incorporated pursuant to chapter 234 of the Laws of 1854, entitled ‘An act to incorporate the Buffalo Cemetery Association.’ By chapter 519 of the Laws of 1870 the charter of the city of Buffalo was revised, and therein it was provided that ‘no lands in the city shall be exempt from local assessments, any statute to the contrary notwithstanding.’...