Werner, J.
The statute (L. 1879, ch. 310) under which the Woodlawn Cemetery claims exemption from assessment for benefit in this proceeding reads as follows : “ Section 1. 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. Section 2. Whenever any such lands shall cease to be used for cemetery purposes, any judgment, tax, or assessment which, but for the provisions of this act, would have been levied, collected, or imposed, shall thereupon forthwith, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same.” The most cursory glance at this statute reveals the inconsistencies of its two sections. It ic difficult to understand just how a tax or assessment that cannot be levied, collected or imposed upon lands used for cemetery purposes while they are so used can become a charge upon such lands when they cease to be so used. Be that as it may, the question whether lands actually used for cemetery purposes may be taxed or assessed is not open to discussion in this court. Such lands are exempt from general taxation as well as from assessments for local improvements.
(Buffalo Cemetery Assn.
v.
City of Buffalo,
118 N. Y. 61;
People ex rel. Oak Hill Cemetery Assn.
v.
Pratt,
129 id. 68;
Oakland Cemetery
v.
City of Yonkers,
63 App. Div. 448; affd. on op. below, 182 N. Y. 564;
Matter of Mayor, etc., of N. Y.,
118 App. Div. 117;
Matter of White Plains Presb. Church,
112 id. 130.)
The assessment which the Woodlawn Cemetery seeks to avoid in this proceeding is an assessmenkfor a local improvement. This.-is true despite the fact that the proceeding was instituted under the power of eminent domain. The assessment was levied under the city’s power of taxation, although that part of the proceeding leading up to the acquisition of the land needed for the improvement, was instituted under the exercise of the right of eminent domain. These two
powers of sovereignty, although exercised in the same proceeding, are quite separate and distinct.
(Genet
v.
City of
Brooklyn, 99 N. Y. 296;
Matter of City of New
York, 190 id 350.) The assessment for benefit upon the portions of the cemetery land deemed to be within the assessment area is, therefore, an assessment for a local improvement, and unless there is some distinction between it and the ordinary assessment for a local improvement which, but for the exemption statute, would be assessable upon lands actually occupied as a cemetery, we must hold that the lands of the Woodlawn Cemetery so occupied are exempt.
(People ex rel. Buffalo Burial Park Assn.
v. Stilwell, 190 N. Y. 284.)
The learned Appellate Division, while acquiescing in this view of the law, expressed the opinion that because these proceedings involved the condemnation of land belonging to the cemetery and the consequent award of damages to it, as well as an assessment upon other lands owned by it which were deemed to have been benefited, the amount of benefit should be set off against the award for damages and only the difference or excess should be paid to the cemetery. This course, it is suggested, works out an equitable adjustment and prevents the cemetery from taking its award for damages amounting to about $23,000, and then repudiating the assessment for benefit made against it for $17,000. And in this connection it is argued that if the contention of the cemetery association is upheld, its award will in fact be $40,000 instead of $23,000. Counsel for the city points to the charter provisions relating to street openings, and claims that they contemplate that benefits should be set off against damage where the owner affected has land which is actually taken as well as other land not taken but deemed to be benefited. The section of the charter (970, L. 1901, chap. 466) which, as to this subject of street openings, is a substantial re-enactment of the earlier statutes, provides that,
“
The lands, tenements and hereditaments that may be required for such purposes may be taken therefor, and compensation and recompense made to the parties and persons, if any such there shall be, to whom the
loss and damage thereby shall be deemed to exceed the benefit and advantage thereof, for the excess of the damage over and above the value of said benefit.” This section clearly contemplates the payment only of the excess of damage over benefit in such cases, and we are assured by the learned counsel for the city that this is the settled practice. While this is doubtless the rule in ordinary cases, we think it has no application where lands actually occupied for cemetery purposes are affected. In such cases there can be no proper basis for the set-off, and the statute does not apply. The first section of the act of 1879 (Oh. 310) absolutely prohibits the imposition of any assessment upon lands actually occupied for cemetery purposes. There can be no set-off of an assessment for benefit against an award for damages, unless there is first a valid assessment. This obstacle to the course pursued in this proceeding is not removed by the suggestion that the charter provisions contemplate such a set-off. The charter and the statute must be construed together and effect given to both. Under this familiar rule of construction it must be held that the charter, so far as it related to the set-off of awards for damages against assessments for benefit, has no application to lands actually occupied for cemetery purposes. Whether the set-off here claimed is equitable is a question with which the courts have no concern. The legislature has created the exemption in favor of lands actually occupied for cemetery purposes, and the fact that the municipality acquires such lands under the power of eminent domain does not deprive the cemetery of the benefit of the exemption.
Neither do we think that the situation is changed by section 1004 of the charter which, in addition to the lien upon the land, makes the assessment a personal liability against the owner. A valid assessment is as necessary a condition precedent to personal liability as it is to the creation of a lien upon the land and, as we have observed, no valid assessment can be imposed upon the cemetery’s lands. Without an assessment against the cemetery lands, there could be no liability on the part of tlie cemetery association.
A different question is presented, however, as to that parcel of land which was formerly included within the lines of old Jerome avenue, and which was abandoned as part of that highway. The learned court below has held, and we think correctly, that this tract was subject to assessment. Jerome avenue, as has been stated, was opened in the locality above described in 1870. (L. 1867, ch. 400.) Nothing in that act indicates that the city, in proceedings taken under it, acquired more than an easement for street purposes in the land needed for the highway. The legal title to the fee remained in the adjoining owners.
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Werner, J.
The statute (L. 1879, ch. 310) under which the Woodlawn Cemetery claims exemption from assessment for benefit in this proceeding reads as follows : “ Section 1. 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. Section 2. Whenever any such lands shall cease to be used for cemetery purposes, any judgment, tax, or assessment which, but for the provisions of this act, would have been levied, collected, or imposed, shall thereupon forthwith, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same.” The most cursory glance at this statute reveals the inconsistencies of its two sections. It ic difficult to understand just how a tax or assessment that cannot be levied, collected or imposed upon lands used for cemetery purposes while they are so used can become a charge upon such lands when they cease to be so used. Be that as it may, the question whether lands actually used for cemetery purposes may be taxed or assessed is not open to discussion in this court. Such lands are exempt from general taxation as well as from assessments for local improvements.
(Buffalo Cemetery Assn.
v.
City of Buffalo,
118 N. Y. 61;
People ex rel. Oak Hill Cemetery Assn.
v.
Pratt,
129 id. 68;
Oakland Cemetery
v.
City of Yonkers,
63 App. Div. 448; affd. on op. below, 182 N. Y. 564;
Matter of Mayor, etc., of N. Y.,
118 App. Div. 117;
Matter of White Plains Presb. Church,
112 id. 130.)
The assessment which the Woodlawn Cemetery seeks to avoid in this proceeding is an assessmenkfor a local improvement. This.-is true despite the fact that the proceeding was instituted under the power of eminent domain. The assessment was levied under the city’s power of taxation, although that part of the proceeding leading up to the acquisition of the land needed for the improvement, was instituted under the exercise of the right of eminent domain. These two
powers of sovereignty, although exercised in the same proceeding, are quite separate and distinct.
(Genet
v.
City of
Brooklyn, 99 N. Y. 296;
Matter of City of New
York, 190 id 350.) The assessment for benefit upon the portions of the cemetery land deemed to be within the assessment area is, therefore, an assessment for a local improvement, and unless there is some distinction between it and the ordinary assessment for a local improvement which, but for the exemption statute, would be assessable upon lands actually occupied as a cemetery, we must hold that the lands of the Woodlawn Cemetery so occupied are exempt.
(People ex rel. Buffalo Burial Park Assn.
v. Stilwell, 190 N. Y. 284.)
The learned Appellate Division, while acquiescing in this view of the law, expressed the opinion that because these proceedings involved the condemnation of land belonging to the cemetery and the consequent award of damages to it, as well as an assessment upon other lands owned by it which were deemed to have been benefited, the amount of benefit should be set off against the award for damages and only the difference or excess should be paid to the cemetery. This course, it is suggested, works out an equitable adjustment and prevents the cemetery from taking its award for damages amounting to about $23,000, and then repudiating the assessment for benefit made against it for $17,000. And in this connection it is argued that if the contention of the cemetery association is upheld, its award will in fact be $40,000 instead of $23,000. Counsel for the city points to the charter provisions relating to street openings, and claims that they contemplate that benefits should be set off against damage where the owner affected has land which is actually taken as well as other land not taken but deemed to be benefited. The section of the charter (970, L. 1901, chap. 466) which, as to this subject of street openings, is a substantial re-enactment of the earlier statutes, provides that,
“
The lands, tenements and hereditaments that may be required for such purposes may be taken therefor, and compensation and recompense made to the parties and persons, if any such there shall be, to whom the
loss and damage thereby shall be deemed to exceed the benefit and advantage thereof, for the excess of the damage over and above the value of said benefit.” This section clearly contemplates the payment only of the excess of damage over benefit in such cases, and we are assured by the learned counsel for the city that this is the settled practice. While this is doubtless the rule in ordinary cases, we think it has no application where lands actually occupied for cemetery purposes are affected. In such cases there can be no proper basis for the set-off, and the statute does not apply. The first section of the act of 1879 (Oh. 310) absolutely prohibits the imposition of any assessment upon lands actually occupied for cemetery purposes. There can be no set-off of an assessment for benefit against an award for damages, unless there is first a valid assessment. This obstacle to the course pursued in this proceeding is not removed by the suggestion that the charter provisions contemplate such a set-off. The charter and the statute must be construed together and effect given to both. Under this familiar rule of construction it must be held that the charter, so far as it related to the set-off of awards for damages against assessments for benefit, has no application to lands actually occupied for cemetery purposes. Whether the set-off here claimed is equitable is a question with which the courts have no concern. The legislature has created the exemption in favor of lands actually occupied for cemetery purposes, and the fact that the municipality acquires such lands under the power of eminent domain does not deprive the cemetery of the benefit of the exemption.
Neither do we think that the situation is changed by section 1004 of the charter which, in addition to the lien upon the land, makes the assessment a personal liability against the owner. A valid assessment is as necessary a condition precedent to personal liability as it is to the creation of a lien upon the land and, as we have observed, no valid assessment can be imposed upon the cemetery’s lands. Without an assessment against the cemetery lands, there could be no liability on the part of tlie cemetery association.
A different question is presented, however, as to that parcel of land which was formerly included within the lines of old Jerome avenue, and which was abandoned as part of that highway. The learned court below has held, and we think correctly, that this tract was subject to assessment. Jerome avenue, as has been stated, was opened in the locality above described in 1870. (L. 1867, ch. 400.) Nothing in that act indicates that the city, in proceedings taken under it, acquired more than an easement for street purposes in the land needed for the highway. The legal title to the fee remained in the adjoining owners. When the public easement in the avenue was legally abandoned (L. 1895, ch. 1006, § 2) the owner of the fee regained complete possession thereof freed from the public easement. But the act under which the old highway was abandoned also provided that the owner of such land could not inclose or occupy the part abandoned until the new avenue was opened. The learned counsel for the cemetery association claims that the new avenue was legally opened when the title to the land taken for that purpose became vested in the city, and that was long prior to the actual physical opening of the new avenue. From this he argues that the abandoned tract became part of the cemetery’s land at the same instant when the title to the land needed for the new highway became vested in the city and, therefore, could not be assessed. We are inclined to the view that the word “ opened,” as used in the statute, means the actual physical opening of the avenue. Any other construction might lead to the destruction of the rights of the public in its highways or streets before the improvements by which they are to be changed could be open for public use. This view necessarily leads to the conclusion that the land formerly comprehended within the lines of the Jerome avenue of 1870, and which reverted to the cemetery freed from the public easement, was not actually occupied and used for cemetery purposes at the time the assessment herein was made.
A further question is presented upon the appeal of the city. The learned Appellate Division has held, in effect, that
while the assessments for benefits could be set off against the award for damages, still the assessments should not appear as such in the report of the commissioners. Counsel for the city contends that these assessments should be retained in the commissioners’ report. This contention is based upon the provisions of section 2 of the exemption statute (L. 1879, cli. 310). It cannot escape notice that the first section of that act absolutely prohibits imposition of any assessment upon lands actually used and occupied for cemetery purposes, while the second section provides, that when such lands shall cease to be used for cemetery purposes, any assessment, which but for the provisions of the act, would have been imposed, “ shall thereupon forthwith, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same.” The second section of the act seems to point to the legislative intention that the assessments therein enumerated shall become effective when the lands shall no longer be used for cemetery purposes, but it authorizes no valid assessment
inprm
senti, and provides for no method or machinery by which an assessment may properly be made when a change in the use of land deprives it of the statutory exemption. It seems impossible to harmonize these conflicting sections by judicial construction. The legislature alone can so change them as to make both effective. Under the act, as we read it, the commissioners had no right to make any assessments against the lands actually used for cemetery purposes, and until such an assessment can lawfully be imposed there would seem to be no virtue in setting forth in the report of the commissioners the amount which the commissioners would impose by way of assessment if they had the power.
The order appealed from should be modified as above indicated, and the proceeding should be remitted to the Special Term for- action in conformity therewith. Costs should be awarded to the appellant, the Woodlawn Cemetery, in both courts.
Cullen, Ch. J., Gray, Vann, Willard Bartlett, Hiscock and Chase, JJ., concur.
Ordered accordingly.