Argued November 27, 1889
Decided December 10, 1889
Edmund J. Plumley for appellant.
Frank C. Laughlin for respondent.
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 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 the Buffalo City Cemetery v. City of Buffalo, ( 46 N.Y. 506). But the act refered 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of construction that a special statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application unless the intention of the legislature to repeal or alter the special law is manifest, although the terms of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, 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 id. 525.)
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."
Thereafter was enacted chapter 154 of the Laws of 1871, entitled "An act to amend the charter of The Buffalo City Cemetery Association," and to restore the exemptions of cemeteries in said city from local assessment." The second section provided that the lands of cemetery associations in the city of Buffalo shall be exempt from taxes, rates and assessments to the extent provided in section 10 of "The act to incorporate cemetery associations," passed April 27, 1847. The third section provided that such exemptions shall not apply to assessments for grading or paving such parts of streets or sidewalks as shall be in front of and bounded upon the lands of said cemetery associations.
It is apparent, therefore, that the right to make an assessment against the lands of cemetery associations within the limits of the city of Buffalo, was provided by local laws applicable to that city alone. Therefore, within the rule laid down in the cases cited supra, the legislature will not be presumed to have intended their repeal by the enactment of chapter 310 of the Laws of 1879, unless such intention is manifest.
Our attention is called to but one feature of the enactment from which it is claimed an inference of an intention to repeal the local act can be drawn. It is claimed that such intent is inferable, from the fact that the city of Rochester is expressly excluded from its provisions. We think McKenna v. Edmundstone ( 91 N.Y. 231), is authority for denying that the exception affords an inference of such intention.
The judgment should be affirmed.
All concur, except BRADLEY and HAIGHT, JJ., not sitting.