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Misc.]

Supreme Court, January, 1918.

The corporation counsel contends that the public service commission is without jurisdiction for three reasons. First, because the contract of February 25, 1890, was and is valid and binding; second, because the legislature has itself expressly confirmed and ratified the contract; third, because the legislature has by a special statute absolutely and definitely fixed the rate of fare, thus ousting the public service commission from jurisdiction to do so. I think that neither of these contentions is sound.

As to the validity of the contract that question has been definitely settled in the negative by the Appellate Division of this department in what is known as the "North Shore case." People ex rel. N. Y. & N. S. T. Co. v. Public Service Com., 175 App. Div. 869. I was on the bench of the Appellate Division at that time and I dissented from the majority view of the court but the decision was rendered, notwithstanding my dissent, and became binding, not only upon the public generally, but also upon me as a judge. And it is my opinion that the reasoning of Mr. Justice Lyon was sound, but I was influenced then, as I think the court should have been, by the voice of the Court of Appeals, spoken four years before. Public Service Com. v. Westchester St. R. R. Co., 206 N. Y. 209. Judge Hiscock in that case said: "When the village granted appellant's predecessor an extension of its franchise it had the right as a consideration therefor to exact suitable conditions and agreements from the company in the interest of its inhabitants. There is no doubt that the rate of fare to be charged to and from points in the village was a matter of such municipal and public interest that the municipal authorities might bargain with reference thereto. Therefore the grant of the new franchise on the condition and consideration, amongst others, of a five-cent fare between the points

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now involved and the acceptance by the company thereof and its agreement to observe all the 'conditions, regulations and restrictions' thereof made a valid contract."

This language seems to be wholly at variance with opinion in the North Shore Case, supra. But in the latter case the exact question presented here was decided. No appeal has ever been taken and it stands as the law of the state and must be observed.

To support the contention that the legislature has subsequently confirmed and ratified the contract, section 173 of the Railroad Law is invoked. This is the language: "Nothing herein contained shall be construed as modifying or affecting the terms of a certain contract bearing date the 25th day of February, 1890, entered into by and between the city of Rochester and the street surface railroad corporation therein named

But this cannot be construed into a ratification of the contract. It is nothing more than a declaration by the legislature that it has not interfered with the contract. The legislature did nothing to the contract, so it declared; it neither ratified nor repudiated. It made no change whatever. But it clearly indicated by the very expression used that it could have modified or nullified the contract had it chosen to do so. And later on in the same article of the same statute (§ 181) the legislature expressly reserved to itself, and to the public service commission, the right to change the rate of fare on any railroad, including this one, thus reserving the right to abrogate the contract, and thus indicating that it had no purpose, when it enacted section 173, of effecting an irrevocable ratification of the contract.

The third contention grows out of chapter 359 of the Laws of 1915. This was a special act annexing

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certain territory to the city of Rochester. In that law the rate of fare within the limits of the city of Rochester was fixed at five cents. But from that fact it cannot be assumed that this special law was intended to repeal the general law which reserves to the legislature, and to the public service commission, the right to regulate fares. Repeal by implication is never favored; and, surely, unless the intention is strikingly plain, repeal by implication of a general law by a special law cannot be tolerated.

It follows that the application for the writ of prohibition should be denied.

Application denied.

GEORGE CLARKE, Plaintiff, v. IRENE VIRGINIA KEATING et al., Defendants.

(Supreme Court, Westchester Special Term, January, 1918.)

(artition when action will not lie for-sale of land containing burial plot easements.

An action will not lie for the partition and sale of land containing a burial plot free and clear of the right of burial therein of persons entitled thereto, against their protest.

ACTION for partition.

Meighan & Necarsulmer, for plaintiff.

Eben H. P. Squire, for defendant.

YOUNG, J. This is an action for partition. It appears from the allegations of the complaint, which are all admitted, and from the evidence that the plaintiff and the defendant Keating are tenants in common of a parcel of land in Harrison, known as the Purdy Burying Ground. This parcel of land was formerly

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owned by one Caleb Purdy, who died April 7, 1791, leaving a will which was probated April 15, 1794. He devised to his son, Silvanus Purdy, a parcel of land known as lot No. 3 in fee" reserving at the same time. a privilege to my family forever of going to and from a burying place in lot No. 3, through the same and burying their dead there if they incline so to do." This burial plot is the parcel sought to be partitioned in this action. The family of Caleb Purdy exercised their right of burial in this plot until 1907, since which time no interments have been made therein. The plot became neglected and overgrown and no care of any kind was given to it. In March, 1917, the plaintiff caused all human remains together with monuments in the Purdy Burying Ground to be removed to a new plot purchased by him situate in Greenwood Union Cemetery, in the town of Rye. This reinterment was done with the consent and acquiescence of some of the members of the Purdy family. The descendants of Caleb Purdy, however, are very numerous and are widely scattered over the country. There are perhaps, as stated by plaintiff's counsel, roughly speaking, one thousand people who have such rights of burial as members of the Purdy family.

It is sought in this action to sell this burial plot free and clear of the right of burial in the members of the Purdy family. Answers have been interposed by certain defendants and the right to make such a sale contested upon the ground that the members of the family cannot be thus deprived of their right. The right of burial has always been considered a sacred one, and any attempt to interfere with such right or to disturb the remains of the dead has been the subject of cognizance in courts of equity at the instance of members of the family of the deceased.

Thus in Hunter v. Trustees of Sandy Hill, 6 Hill, 407,

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the action was brought to recover land known as "the old burying ground," and its use as a burying ground was proved. The court held that a dedication of land to the inhabitants of a town for a burying ground was valid and precluded the owner from exercising his former rights over it, and that, where lands thus dedicated had been se occupied for thirty-six years, the act of the trustees in opening a highway across it, which was travelled for ten years, and then discontinued, did not affect the public right under the dedication. It was held that the plaintiff could not recover in ejectment, the court saying: "What right, if any, may hereafter arise in favor of those who can make title from the original owners, it is not necessary now to inquire. The land is still a public grave yard, enclosed, known, and recognized as such. When these graves shall have worn away; when they who now weep over them shall have found kindred resting places for themselves; when nothing shall remain to distinguish this spot from the common earth around, and it shall be wholly unknown as a grave yard; it may be that some one who can establish a good' paper title,' will have a right to its possession; for it will then have lost its identity as a burial ground, and with that, all right founded on the dedication must necessarily become extinct."

In Mitchell v. Thorne, 134 N. Y. 536, it was held that the heirs of a decedent at whose grave a monument has been erected, or the person who rightfully erected it, can recover damages from one who wrongfully injures or removes it, or, by an injunction, may restrain one who, without right, threatens to injure or remove it, although title to the ground is in another. It appeared that the father of the plaintiffs, with his brothers and sisters, owned as tenants in common a farm upon which was a cemetery plot wherein the

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