Citation Numbers: 173 Misc. 425
Judges: Lockwood
Filed Date: 12/4/1939
Status: Precedential
Modified Date: 1/12/2023
This motion for payment of an award involves the right of the city to offset against the award of $22,273.05, made herein to St. John’s Cemetery, an assessment of $12,156.45 entered on July 31, 1924, for the Central avenue sewer. Claimant contends it is entitled to payment of the entire award without deduction of the assessment, which the city claims it has the right to deduct. Section 450 of the Real Property Law provides: “No land actually used and occupied for cemetery purposes shall be! sold under execution or for any tax or assessment, nor shall any tax or assessment be levied, collected or imposed * * It is undisputed that the property of the claimant now is and since prior to July 31, 1924, has been actually used and occupied for cemetery purposes. The city relies on section 960 of the Greater New York Charter, entitled: “Assessments not to be set aside for certain irregularities and technicalities ” and the language therein as follows: “ * * * and all property in said city benefited by any improvement or any other public work already completed, or now being made or performed, and hereafter made, done, or performed, except as aforesaid, shall be liable to assessment for such improvement or work * * *.” The city contends that section 450 of the Real Property Law is of State-wide application and general in its nature, and thus is superseded by the provisions of section 960 of the Greater New York Charter, above mentioned. It is true that a special State statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application, unless the intention of the Legislature to repeal or alter the special law is manifest. (Buffalo Cemetery Assn. v. City of Buffalo, 118 N. Y. 61, 66.) It has been held that land actually used for cemetery purposes within the city of New York is exempt from assessments for local improvements. (Matter of City of New York [Jerome Ave.], 192 N. Y. 459.) The corporation counsel suggests that the court would have reached