87 N.J. Eq. 173 | New York Court of Chancery | 1914
The bill in this cause prays an injunction restraining the defendant East Ridgelawn Cemetery from paying the proceeds of its burial plots to the Passaic Trust and Safe Deposit Company (hereinafter called the trustee), or for any other purpose.than to the perpetual care fund, excepting that it might use said funds to pay the fair value of the cemetery lands which wore conveyed by Gruber to the trustee. It also prays that a receiver be appointed.
It appears from the bill that two separate cemetery companies were organized, under the Rural Cemetery act, on or about September 28th, 1905', with seven trustees each, five of the persons
The declaration of trust as to the East Ridgelawn Cemetery substantially provides that the trustee, on the request in writing of Gruber, &c., will convey to the East Ridgelawn Cemetery the lands mentioned in the declaration of trust, said lands to be used for cemetery purposes; "that-the said East Ridgelawn Cemetery shall pay as consideration therefor such amount as it may receive from time to time as the proceeds of sale of said lots or plots in the manner following:” The cemetery is authorized to retain six cents per square foot on the lands sold, pay one-half of the balance to the trustee, and, after deducting what might' be necessary for preserving, improving and embellishing ■ the cemetery grounds, &c., the balance thereafter remaining should likewise be paid to the trustee. The agreement also provides that the proceeds of sale of "sublots or plots is hereby appropriated, and is to be divided by said cemetery into thirteen thousand five hundred shares, to represent which the said East Ridgelawn Cemetery shall issue a certificate, or certificates, to the said trust company,” in the form thereinafter recited, which certificates are negotiable in form. Provision is also made that if the cemetery should fail to perform any of the conditions of the trust agreement, the rents, issues, profit and revenues from the sale of lots and other sources, might be sequestered to compel it to perform. It likewise provides that at the end of every three months, if the trust company has-in its possession a sum
The scheme of the declaration of trust is the same as that referred to in Bliss v. Linden Cemetery Co., 81 N. J. Eq. 394—the certificate holders here corresponding to the holders .of land-purchase shares in the Bliss Case.
The certificate holders are not parties to this suit.
The complainant excuses the omission, to make them parties on the ground that they are held by a large number of individuals, residents and non-residents, numbering more than two hundred, and are so numerous that it would be impossible, practically, or highly inconvenient and expensive to bring them in as parties defendant to this suit; and that Frank, Howe and Bonynge are certificate holders and that their interests are the same as those of the ones omitted; that the trustee is also the trustee of the certificate holders, and that they may be regarded as representing the certificate holders in the suit, and may answer for them.
The trustees of the cemeteries have not been made parties.
In Bliss v. Linden Cemetery Co., supra, Vice-Chancellor Howell held that the holders of the land-purchase shares and the board of trustees were necessary parties, and without them no decree could be made on the bill presented which would be of any material value to the complainant; and he denied the motion for injunction.
Counsel, however, suggests that the number of holders of land-purchase shares in the Bliss Case was not large. I have taken occasion to examine the papers in that case, and find that there were about two hundred holders of land-purchase shares. Both eases, therefore, being quite alike in principle, the demurrers to the bill should be sustained.