117 Misc. 457 | N.Y. Sup. Ct. | 1921
Hope Cemetery is the main Protestant cemetery in the city of Corning and vicinity. It is owned and managed by this plaintiff, a corporation duly organized under chapter 133 of the Laws of 1847. Some years ago it purchásed a tract of land of about thirty-three acres to be used as an annex to the cemetery grounds it then owned and managed and which in the passage of time had become well filled with graves. The land so purchased as yet lies in the same condition as when purchased except that about four or five acres in its northwest corner have been plotted and to some extent used as burial places, and a number of trees have been set out upon the lánd generally.
Prior to 1914 these defendants, who were then the assessors of said city of Corning, acting in the bona fide belief that the unimproved part of such lands were being used for ordinary farming purposes and that plaintiff was deriving an income therefrom, after consultation with the attorney-general of the state of New York and the officials of the tax department of said state, deemed them subject to taxation, and in the years 1914, 1915 and 1916 assessed them against plaintiff upon the tax rolls of said town of Coming in substantially this language: “ Twenty acres on south side of City .line, bounded north by City of Corning, south and east by land of Joel Wicks, and west by land of Robert 0. Hayt.”
Taxes were extended upon such assessments for each of those years, and remaining unpaid, the lands were afterwards sold for the collection thereof. From such tax sale plaintiff was subsequently obliged to
Between the year 1828 and that of 1889 no general revision of the Tax Law was had, and much confusion came to exist by reason of the fact that in the interim something more than 100 distinct laws bearing upon the subject, some general and some special, had crept into the statute books. In the latter year the legislature took the matter up for consideration with the result that after several abortive efforts the tax laws were entirely overhauled and codified by chapter 908 of the Laws of 1896, the preliminary examination and work having been done by a commission known as the statutory revision commission. This commission in its report, after pointing out sundry specific changes which had been made, stated it had made in addition such changes in phraseology as were necessary in rewriting the law; one of these so called changes in phraseology bears directly upon the instant controversy for after providing that the real property of a corporation or an association organized exclusively for various purposes, including cemetery purposes, shall be exempt from taxation ■ (chap. 908, § 4, subd. 7) the act states that: “ The real property of any such corporation not so used exclusively for carrying out thereupon one or more •of such purposes, but leased or otherwise used for other purposes shall not be so exempt; but if a portion only of any lot or building of any such corporation or association is used exclusively for carrying
This quoted statute of 1896 has been carried into the present law (Laws of 1909, chap. 62) where it is to be found under the same section and subdivision number, and is now the law of the commonwealth. Such “ necessary change in phraseology ” changed the entire law upon this subject, for before its enactment all lands of cemetery associations, whether organized under the act of 1847 or that of 1879, and whether Actually used for cemetery purposes or otherwise were absolutely and entirely exempt from taxation. People ex rel. Oak Hill Cemetery Assoc. v. Pratt, 129 N. Y. 68-74.
While not expressly included in the repealing section of either the Tax Law of 1896 or that of 1909, those acts are so inconsistent with section 10 of the Laws of 1847 that same must be conclusively deemed to have been repealed thereby. Matter of Huntington, 168 N. Y. 399; Pratt Institute v. New York, 183 id. 151; People ex rel. Cooper Union v. Gass, 190 id. 323; Peterson v. Martino, 210 id. 412.
It does not, however, follow that all land not actually occupied by graves belonging to such an association is taxable; neither does its subjection to that burden follow from the mere fact that it has some portion leased for monetary consideration. As I view it, such a corporation in order to gain the benefit of the exemption law is not obliged to permit its unoccupied land to remain uncared for, thus detracting from beauty of scene and surroundings desired by average persons for the final resting place of loved ones
In other words, the question as to whether such lands are under the present statute taxable or exempt from taxation depends always upon the facts surrounding their user. In the case at bar this question was most earnestly litigated and upon such controverted question of fact I am inclined to believe that the plaintiff did not hold and use its unoccupied lands as a business or money making proposition, but that it had endeavored to avoid unnecessary expenditure for their care and upkeep; at the same time reaping such incidental benefit as might come therefrom. This conclusion is not weakened or altered by the fact that in one year a small portion of the land was cultivated upon shares through an arrangement unknown to its officers with plaintiff’s caretaker. In other words, I am led from the testimony to believe that such use as the plaintiff has made of the lands has not caused them to lose their exemption from taxation. In this conclusion no consideration is given to the fact that the assessments complained of, while stated to cover twenty acres of land, are described by boundaries in such manner as to include the entire tract. As has been said, some four or five acres of this land have been plotted and improved and are now occupied by graves, tombstones, and similar memorials. The well understood rule is that where both quantity of land
This bi’ings us to another question which is sharply presented and has been elaborately argued. Recovery is sought against defendants individually upon the ground that in the making of the assessment in question they acted without jurisdiction and in violation of their duty. Prosser v. Secor, 5 Barb. 607; Lapolt v. Maltby, 10 Misc. Rep. 330; N. Y. Milk Products v. Damon, 57 App. Div. 261; Mygatt v. Washburn, 15 N. Y. 316; Dorwin v. Strickland, 57 id. 492; Hilton v. Fonda, 86 id. 340.
The rule in this state seems that the duties of tax assessors, being quasi judicial in character, if they keep within their authority and act honestly, and in good faith, and with a common degree of care and prudence they are not answerable in damages for errors, mistakes, inaccuracies or bad judgment in assessments. This is sustained by a long line of authorities, beginning with the construction of the revised statutes of 1828, and involving most if not all of the intermediate, special, and general statutes, the Tax Láw of 1896, as well as that now in force known as chapter 60 of the Consolidated Laws. Vail v. Owen, 19 Barb. 22; Brown v. Smith, 24 id. 419; Tucker v. City of Utica, 35 App. Div. 173-176; Board of Education v. Henderson, 42 id. 237; Swift v. Poughkeepsie, 37 N. Y. 511; Bell v. Pierce, 51 id. 12; Nat. Bank Chemung v. Elmira, 53 id. 49; U. S. Trust Co. v. Mayor, etc., 144 id. 488-492; Elmhurst Fire Co. v. City of New York, 213 id. 87.
It is not within the province of assessors to determine what property shall be exempt from taxation; that power is vested solely in the legislature, and if the assessors undertake to subject to taxation prop
From what has been said it follows that these defendants in passing upon the question as to whether that portion of plaintiff’s lands not plotted and opened for cemetery purposes were subject to taxation would have been engaged in a judicial act for which they are not personally responsible even though mistaken in their conclusion. Unfortunately they have assessed the entire tract, not only that the exemption of which' they were required to determine, but as well that which is clearly exempt. The nature of the assessment is such that there can be no division between responsibility and nonresponsibihty, and they are not sheltered by the rule above stated.
Defendants’ preliminary motions are denied with exception and judgment directed for plaintiff, with costs.
Ordered accordingly.