and occasioned by pending negotiations, and could not have been said to be the sole act of the tenant. In Shanahan v. Shanahan, 53 Jones & S. 344, it appeared that the 1st of May was Sunday, that the tenant began to move on the afternoon of the 2d, that the removal continued during the 3d, and for that reason the tenant was held liable. The court did interject the remark that there was no unavoidable delay in moving, but without seeking to change or modify the rule. In McCabe v. Evers, 30 N. Y. St. Rep. 833, decided in 1890 in the New York city court, it appeared that the tenant moved out on the 1st of May, but left behind him an old stove and some rubbish, and tendered the key on the 2d of May. The court held that the evidence of a holding over was inconclusive and ambiguous, and the question should have been submitted to the jury, In Maney v. Clemens, 34 N. Y. St. Rep. 833, decided by the same court, the term expired on February 2d, at noon; the tenant began his removal in the morning and worked till midnight. There was a verdict against the landlord, which the court refused to set aside.

These cases, even if regarded in all respects as correctly decided, fall very far short of establishing the appellant's doctrine, or justifying a reversal in the present case. There is no question here about the fact of a holding over, and no question, therefore, in that regard for the solution of a jury. The tenant remained in possession voluntarily, for her own convenience and that of her sick boarder. If it was unsafe to remove the latter, the situation was wholly the fault of the tenant who sets up as an excuse for one violation of the lessor's rights the consequences of her own earlier violation of the terms of the lease. No impossibility of removal was shown, merely difficulty and inconvenience, which should have been and might have been foreseen and provided against. If the rule in this case seems to involve a hardship, that is sometimes true of every general rule, however just and wise, but doos not justify its abrogation. To sustain this defense would open the door to a destruction of the settled doctrine, and tend to involve the rights of both lessor and lessee in uncertainty and confusion.

I do not mean to say that whether there has been a holding over at all may not sometimes be so doubtful upon the facts as to require a submission to the jury. I mean to say that there is no such doubt in the present case. I reserve the question, also, whether there might not be an unavoidable delay, in no manner the fault of the tenant, directly or indirectly, which

would serve as a valid excuse. It is enough that here was a holding over not unavoidable, which might have been provided against, and where the chief difficulty grew directly out of the tenant's own wrongful act.

It is claimed, however, that the further question whether the lessor exercised the permitted option or took possession in her own right should have been submitted to the jury. I think the facts admit of but one inference. The lessor did exercise her option, and that promptly and clearly. When the keys were tendered to her mother they were refused. In the afternoon of May 4th the lessor went to the house to see what was occurring. She found it deserted and the windows open; her property needed protection. Under the lease she had a right to enter and relet it as the agent of the tenant. A policeman entered through the open window. Some keys were found on the mantel and thereafter used, but evidently not all, for others. were restored much later. The premises were somewhat damaged, and the lessor had a little painting and some plumbing done, amounting only to ordinary and needed repairs. She tried to rent the house, but failed, and went to Europe during the summer, and occupied the house in the fall under a stipulation which expressly reserved her existing rights. Upon these facts no inference was justified, except that drawn by the court. There was a clear refusal to accept the surrender of fered, and the repairs were consistent with that position, and with the right reserved in the lease.

We think the judgment was correct, and should be affirmed, with costs.

HOLDING OVER BY TENANT. The general rule is, that if a tenant for one or more years holds over at the expiration of his term, the landlord may either treat him as a trespasser or as a tenant for another year, upon the terms of the prior lease, as far as applicable: Schuyler v. Smith, 51 N. Y. 309; 10 Am. Rep. 609; Providence County Savings Bank v. Hall, 16 R. I. 154. If the only alteration in their agreement is an increase of rent, the same rule prevails: Zippar v. Reppy, 15 Col. 260. And a like principle controls the cases in which the landlord and tenant hold title as tenants in common: Harry v. Harry, 127 Ind. 91. If the landlord takes possession after a surrender of the demised premises, and relets them, he will be deemed to have accepted the surrender, unless there are facts rebutting this inference. Such rebutting facts are a refusal to accept a surrender, and a notification to the tenant that he would hold him for the rent: Underhill v. Collins, 132 N. Y. 269. Mere notice by the tenant, before the term expires, that he does not wish the premises for another year, will not change the effect of his holding over: Smith v. Bell, 44 Minn. 524. But where the lessee's household goods remained in the house, packed up and ready for removal, for three days after

the expiration of the term, the lessor being absent from home, and his agent having declined to receive the key of the house and the rent due, and having directed the lessee to await the lessor's return, but the key was promptly surrendered to the lessor on his return and accepted by him, it was held that there was no such holding over as would render the lessee liable as a tenant from year to year: Adler v. Mendelson, 74 Wis. 464.

MATTER OF BOARD OF STREET OPENING.

[133 NEW YORK, 329.]

A CEMETERY IS NOT DEVOTED TO PUBLIC USES, when the public generally never had any right to burial therein, and no burials therein could be made except by permission of the church corporation to which it belonged. EMINENT DOMAIN, WHAT SUBJECT TO — CEMETERIES. — The fact that lands have been previously devoted to cemetery purposes does not place them beyond the reach of the power of eminent domain. That is an absolute transcendent power belonging to the sovereign, which can be exercised for the public welfare whenever the sovereign authority determines that necessity for its exercise exists, and the dwellings of the living and the resting-places of the dead may be alike condemned.

S. P. Nash, for the appellants.

D. J. Dean, for the respondent.

EARL, C. J. The act, chapter 320 of the Laws of 1887, provides that the board of street opening and improvement of the city of New York "is authorized and empowered to select, locate, and lay out such and so many public parks in the city of New York south of One Hundred and Fifty-fifth Street as the board may, from time to time, determine," and it confers upon the board power to acquire for park purposes, by condemnation proceedings under the statute, "any and all lands, tenements, and hereditaments which said board shall deem necessary to be surveyed, used, or converted for the laying out, surveying, and monumenting of any park so selected as aforesaid." The board instituted this proceeding under the act to acquire for park purposes the title to land below One Hundred and Fiftyfifth Street, known as St. John's cemetery, which belonged to a religious corporation in the city of New York, commonly called Trinity Church. It was established as a cemetery as early as 1801, and was used for that purpose until 1839, during which time about ten thousand human bodies had been buried therein. In 1839 an ordinance was passed by the city of New York forbidding interments south of Eighty-sixth Street, and since that time no interments have been made in

the cemetery, but Trinity Church has preserved and kept it in order, and prevented any disturbance thereof.

It is contended on behalf of Trinity Church that under the general authority given by the statute of 1887, this land, which had been devoted to cemetery purposes, could not be taken for a park. The authority conferred upon the board by the act is broad and general. It is authorized to take for park purposes any land south of One Hundred and Fifty-fifth Street. It is undoubtedly true that this general language would not be sufficient to authorize it to take land which had been previously taken for, and was then devoted to, a public purpose: Matter of New York etc. R'y Co., 99 N. Y. 12; Suburban Rapid Transit Co. v. Mayor etc., 128 N. Y. 510. But this was not a public cemetery, and so far as appears in this record, had never been devoted to a public use. The public generally never had any right of burial therein. No burials therein could be made except by permits given by Trinity Church, and all the interments therein had been made by its authority. The cemetery land was, therefore, devoted to a private and not to a public use: Matter of Deansville Cemetery Ass'n, 66 N. Y. 569; 23 Am. Rep. 86.

The fact that lands have previously been devoted to cemetery purposes does not place them beyond the reach of the power of eminent domain. That is an absolute transcendent power belonging to the sovereign, which can be exercised for the public welfare whenever the sovereign authority shall determine that a necessity for its exercise exists. By its existence the homes and the dwellings of the living and the resting-places of the dead may be alike condemned.

It seems always to have been recognized in the laws of this state, that under the general laws streets and highways could be laid out through cemeteries, in the absence of special limitation or prohibition. So it is provided in section 10 of chapter 133 of the Laws of 1847, entitled "An act authorizing the incorporation of rural cemetery associations," that "no street, road, avenue, or thoroughfare shall be laid through such cemetery, or any part of the lands held by such association for the purposes aforesaid, without the consent of the trustees of such association, except by special permission of the legislature of the state." The act, chapter 273 of the Laws of 1886, authorizing the incorporation of associations to erect monuments to perpetuate the memory of soldiers who fell in defense of the Union, contains a similar provision. The act, chapter 843 of

AM. ST. REP., VOL. XXVIII. — 41

the Laws of 1868, provides that no private or public road shall be laid out or constructed upon or through any graveyard or burying-ground in this state, unless the remains therein con⚫ tained are first carefully removed and properly reinterred in some other burying-ground at the expense of the persons desiring such road. The act, chapter 203 of the Laws of 1878, provides for the incorporation of pipe-line companies, and empowers them to take land by condemnation proceedings, and in section 34 it is provided that "no company formed under the provisions of this act shall locate or construct any line of pipe or pipe-line through or under any building, door-yard, lawn, garden, or orchard, except by the consent of the owner thereof in writing, duly acknowledged before some officer authorized to take acknowledgments of deeds; and no pipe-line shall be constructed through any cemetery or burial-ground." It is the necessary implication that but for the express prohibitions contained in these statutes, under the general provisions of law authorizing the construction of streets, highways, and pipe-lines, cemetery lands would not be exempt from invasion.

We have not overlooked the cases in which the general language of statutes has been limited and curtailed of its literal import so as not to give the statutes effect beyond the intent of the law-makers. But here we can find no sure ground for curtailing the scope of the statute which we have to construe. We certainly cannot be sure that the law-makers, if they had known of this cemetery, disused for burials for fifty years and never more to be used for that purpose, located in the midst of a dense and teeming population, would have preferred that it should remain appropriated for the resting-place of the long since dead, rather that it should be devoted to use for the comfort, welfare, and health of the living. We cannot say that the taking of such a cemetery for such a use is such an unreasonable, unnatural, impolitic, or unjust thing that we ought to hold that the general language of the statute does not authorize it to be done.

We have examined the authorities to which our attention has been called by the learned counsel for Trinity Church, and none of them in the least degree sustain the contention that lands devoted to private cemeteries owned by private individ uals or a private corporation cannot be condemned under the general language authorizing their condemnation for public use. On the contrary, the following authorities give strong