Misc.] Supreme Court, December, 1921. out thereupon one or more of such purposes of any such corporation or association, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining portion of such lot or building to the extent of the value of such remaining portion shall be subject to taxation." 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those acts are so inconsistent with section 10 of the Laws of 1847 that same must be conclusively deemed to have been repealed thereby.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 Supreme Court, December, 1921. [Vol. 117. whose memory is still fragrant. Neither is such an association required to balance the difference between the cost of keeping its unoccupied grounds in order and the tax which would probably be assessed against them if use be made by sale or otherwise of their natural products, and act at its peril. It may on the contrary adopt such plan for keeping its unused lands in order as may be most advantageous from all standpoints, and its exemption is not lost even though it derive some benefit in addition to that coming from improved appearance. People ex rel. Buffalo B. P. Assn. v. Stillwell, 190 N. Y. 284. The last named action arose after the enactment of the Tax Law of 1896 and involved a question very similar to that here presented; Judge O'Brien, writing for the Court of Appeals, pointed out clearly and unmistakably the rule which is to be applied, having in view the change of the statute from an entire to a limited exemption, and it may not be amiss to quote his language: "The cemetery in question was, to use a business expression, a going and growing concern. It was not all occupied by burial plots or by the graves of the dead. It may not be fully occupied for such purposes for many years to come. Of course, it is not necessary that the cemetery should be filled with graves in order to be entitled to the exemption, and the mere fact that Brennan had leased an unoccupied portion of the cemetery for a sum of one hundred and twenty-five dollars would not necessarily deprive the relator of the exemption. If, for example, he had paid that sum of money for the right to cut and carry away the grass from the unoccupied land, and the money paid by him went into the relator's treasury to be used for taking care of the ground already occupied, that would not change the character of the land as cemetery land, nor deprive the corporation of the Misc.] Supreme Court, December, 1921. * benefit of the exemption. We do not know what the real facts are in regard to this leasing and occupation, *. Of course, if the relator has leased the land for farming purposes and it is used in the ordinary way as farmers use their land the case might be different, and under such circumstances the land ought to be taxed and would be taxable. Hence, the real facts that relate to the leasing and occupation must be found before we can say that the relator is not entitled to the exemption." P. 291 et seq. 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 Supreme Court, December, 1921. [Vol. 117. and specific boundaries are included in a description, the boundaries must govern; it would appear from this that the assessments complained of were in any event entirely without warrant of law. This brings 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 Law 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 Misc.] Supreme Court, December, 1921. erty made by it exempt, they are acting without jurisdiction, and are personally liable in the same manner as for assessment against one not a taxable inhabitant of their subdivision. Where, however, the statute provides that property may or may not be exempt as circumstances existing at the time of the assessment may be, leaving it to the assessors to determine the fact, in making such determination they act judicially, and within the scope of their authority. Their decision is not conclusive, but in its making they act judicially and are protected from personal responsibility precisely the same as they are in case of mistaken judgment as to value; the distinction is found in the difference between illegal and erroneous assessment; where no power is given them to assess, they are personally responsible. Where they may or may not assess, a decision upon their part may be erroneous, but it is not illegal, and no personal responsibility can be predicated thereon. 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 nonresponsibility, 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. |