49 N.Y.S. 531 | N.Y. App. Div. | 1897
Lead Opinion
Mt. Vernon avenue was-laid out as a street of the first class in the city of Hew York in 1876, and the maps and profiles were filed
But, aside from all these collateral questions, the true matter in issue is whether permission has been granted by the Legislature to . lay out this road. ' It is suggested that such permission was granted by chapter 329 of the Laws of 1874, and chapter 545 of the Laws of 1890, but a consideration of those statutes satisfies us that they will not bear the construction' contended for by the counsel for the respondent. If such permission was granted at all it was done only by section 2 of chapter 712 of the Laws of 1896, and the question is whether that section, upon a fair construction, can be held to grant the special permission required by section 10 of the Rural Cemetery Act before a street can be laid out through the grounds of a cemetery organized under that act.
It will be noticed that the Legislature has expressly limited .the manner of taking away the exemption which by that section has been granted to a rural cemetery. The reason for this limitation is not difficult to find. These cemeteries were established as places for the burial of the dead. It was the intention that, from time to time and as rapidly as possible, lots should be laid out all over the cemeteries in which the lot owners might bury their dead. It would be impossible to dispose of the lots unless those buying them were practically guaranteed that the bodies buried in them should remain ' undisturbed. Nothing is more hateful than the desecration of a grave; and it was not only necessary for the sale of the lots that
Section 2 of the act in question does' not purport to affect the right to lay out or open streets. It contains nothing with reference to that right. It simply acts upon proceedings which have been or shall be commenced for that purpose, and it provides that no restriction or limitation shall affect those proceedings; but it does not provide that an exemption theretofore existing shall be taken away so ■as to extend the operation of those proceedings. If there were any limitations or restrictions upon the proceeding to acquire title, by ■ which they were hampered, this section operates to take away those limitations, hut it does not purport, nor is it broad enough to take away any exemption which was granted before the commencement of the proceedings and with regard to which the proceedings themselves . can have no effect. It does not say that any exemption granted is repealed, hut it says that the proceeding shall have the same effect when it is taken, as though any restriction or limitation to it had been repealed. But, as we said, the provisions of section 10 of the
It is not necessary, in this view of the case, to examine into the constitutionality of the law of 1896.
The order appealed from must be reversed so far as it affects the lands of the association, with ten dollars costs and disbursements.
Yan Brunt, P. J., and Patterson, J., concurred; O’Brien, J., dissented.
Dissenting Opinion
(dissenting):
I dissent for the reasons given by the learned judge at Special Term.
Order reversed so far as it affects lands of appellant, with ten. dollars costs and disbursements.