Joseph Rottkamp and Others, Appellants, v. Springfield, L. I., Cemetery Society, Respondent

Joseph Rottkamp and Others, Appellants, v. Springfield, L. I., Cemetery Society, Respondent. Second Department, October 12, 1909. Cemeteries — consent-of aldermen, city of New York — publication of notice. Although a cemetery association applying to the board of aldermen, of the city of New York for permission to use lands for a cemetery in Queens county has published a notice, as required by section 1593a of the charter, for six successive weeks, describing the lands as 112 acres, the board of aldermen having granted the petition, may reconsider its action and reduce the quantity of land without the publication of a new notice stating the lesser acreage. Appeal by the plaintiffs, Joseph Rottkamp and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 3d day of. March, 1909, upon the decision of the court, rendered after a trial at the Queens County Special Term, dismissing the complaint upon the merits, in an action brought to have a resolution adopted by the board of aldermen of the city of Hew York, authorizing and consenting to the defendant acquiring title to land in the county of Queens, and setting the same aside for cemetery purposes, declared null and void, and restraining the defendant from conducting a cemetery on said land, and from selling burial lots therein. Ho case is made, and the appeal is based upon the judgment roll and exceptions to the conclusions of law of the court. H. S. Weller, for the appellants. Roger Foster [Moses Jaffe and Thomas Gilleran with him on the brief], for the respondent. [MAJORITY — Rich, J.:] Rich, J.: Section 1539a of the Greater Hew York charter (Laws of 1901, chap. 466, added by Laws of 1904, chap. 618) provides that land shall not be taken by deed, devise or otherwise, in the county of Queens for cemetery purposes, “unless the consent of the board óf aldermen of The City of Hew York be first obtained, which board may grant such consent upon such conditions, regulations and restrictions as, in its judgment, the public health or the public good may require. Notice of application to any such board for such consent shall be published once a week for six successive weeks in two newspapers of the county having the largest circulation therein, stating the time when the application will be made, a brief description of the lands proposed to be acquired, their location and the quantity thereof.” The defendant, after compliance with the provisions of this section as to the publishing of a notice, presented on May 26, 1908, its application to the board of aldermen for its consent to the acquisition of about 112 acres of land for cemetery purposes. A hearing was had, and a resolution containing the consent asked for was duly adopted. At a later meeting, held on June ninth following, the resolution adopted on May twenty-sixth was reconsidered and the quantity of land for which the consent of said board was given was reduced to about 50 acres, a portion of the 112 acres described in the original resolution. The only question presented by this appeal arises on the plaintiffs’ contention that the board of aldermen was without power or authority to give its consent to the acquisition of the land for cemetery purposes, until after notice of application, limited to and describing such number of acres, had been published as required by the section of the charter referred to, and such publication not having been made, that the consent given was invalid and void. This contention is without merit. All requirements of the charter for acquisition and devotion to cemetery purposes of a parcel of land consisting of substantially 112 acres having been complied with, it was within the power of the board of aldermen to limit its consent to a portion of the land described in the application, and it was not a condition precedent to the exercise of its power that the application should be so. limited to the portion finally fixed upon. The effect of the consen t given by the resolution, adopted on the reconsideration, was the same as if such limited consent had been given at the original hearing. Palmer v. Hickory Grove Cemetery (84 App. Div. 600), cited by the appellants, is not applicable to the facts shown by the record in the case at bar, because in that case it appeared that no notice of application had been published for the period of six weeks before the date of the application, and was not published in the two newspapers having the largest circulation in the county, while in the ease at bar all of the requirements of the statute were fully complied with. The judgment must be affirmed, with costs. Jenks, Gaynor, Burr and Miller, JJ., concurred. Judgment affirmed, with costs.