The act under which the defendant was organized (Laws of 1847, chap. 133, § 10) exempted the cemetery lands and property of any association formed under that act from “ all public taxes, rates and assessments.” The Court of Appeals in Buffalo City Cemetery v. City of Buffalo (46 N. Y. 506), by putting a very strict construction upon that act, held that the exemption therein did not apply to a municipal assessment for a local improvement. Thereafter the Legislature, by a general law (Laws of 1879, chap. 310), in order apparently to overcome the effect of that decision, enacted that “No land actually used and occupied for cemetery purposes shall be sold under execution, or for any tax or assessment, nor shall such tax or assessment be levied, collected or imposed, nor shall it be lawful to mortgage such land, or to apply it in payment of debts, so long as it shall continue to be used for such cemetery purposes.”
It seems to me clear that a sound public policy requires that neither the State nor any municipality should lay burdens upon public cemetery grounds that shall result in disturbing the permanency of the Testing place'of the dead. This policy found expression in the statute under which the defendant was organized, and when the courts by a-strict construction of the language there employed seemed to defeat the legislative intent, the Legislature again by a general law passed an act in terms so clear as to be free from all doubt that lands actually used and occupied for cemetery purposes, shall be free from all taxation and from all assessments. This has been held to include assessments for local improvements. (Matter of White Plains Presbyterian Church, 112 App. Div. 130; *44Matter of Mayor [Perry Avenue], 118 id. 874; Matter of City of New York, 192 N. Y. 459.)
I cannot think in view of this general public policy and of the sacred regard of all our people for the final resting place- of their dead, that we should hold that the principle which found such clear expression in chapter 310 of the- Laws of 1879 has been repealed by implication by the amendment to the Village Law, referred to in file prevailing opinion. That the Legislature did not intend to work such á radical change in the' policy of the State in ■ subsequently enacting.the provision in section 113 of the Village Law (Laws of 1897, chap. 414) that “No real property is - exempt from assessment for a purpose specified .in this section,” one .of which is an assessment for a local improvement, is apparent from the fact, that it did not include the act of 1879 (Chap. 310) in its schedule of acts repealed attached thereto.
It was held in People ex rel. Roosevelt Hospital v. Raymond (194 N. Y. 189) that a statutory exemption from taxation should not be held to be repealed by implication by the General Tax Law thereafter enacted where to do so will result in the violation- of a promise by the State.
I think the courts should hesitate a. long while, under' the circumstances presented here,' before holding that the statute granting cemetery corporations exemption, from taxes; and assessments has been repealed by implication'. For.these reasons I think the judgment should be affirmed* with- costs..
Sewell, L, concurred.
Interlocutory judgment reversed, with costs, with usual leave to defendant to amend its answer upon payment of costs in tins court and in the court below. ■