264 A.D. 617 | N.Y. App. Div. | 1942
Defendant maintains a high-class cemetery in the town of Mount Pleasant, Westchester county, N. Y. On March 3; 1927, plaintiff purchased a cemetery plot from defendant, and four months later erected thereon a mausoleum. On September 17, 1927, she purchased an additional lot, and another one on April 9, 1928, to round out the original plot. After the erection of the mausoleum, plaintiff caused to be placed therein the remains of members of her family, which were removed from burial places elsewhere. There have been no other interments in the mausoleum. Plaintiff is the sole remaining member of her family. Between 1927 and June, 1931, plaintiff paid defendant various amounts for the care and maintenance of the enlarged plot and
The facts above stated were alleged in the complaint, in which plaintiff further averred that the “ deposit ” was made with the defendant “ to avoid the necessity of making the annual payments ” made theretofore for maintaining the plot and the mausoleum, and that the money received by defendant from plaintiff “ has been invested in securities and that the income arising therefrom has been used for the purposes enumerated ” in the writing (swpra), signed by defendant.
Judgment was demanded for the return of the $5,000, with interest from the date of the demand of return, or, in the alternative, for delivery of the securities in which the fund was invested, with accumulated interest and dividends from the same date.
In view of the agreed facts, the admission and denials in the answer are immaterial. Defendant as a first defense pleads in effect that the writing signed by it was a “ trust agreement ” and further
“ Ninth. That the provision made by plaintiff in said receipt and trust agreement for the perpetual care and maintenance of her lot and mausoleum is of beneficial interest not only to the remains of the persons now interred and to be interred in said mausoleum on said plot, but also to defendant and other lot owners in The Kensico Cemetery in that deterioration of the lot and mausoleum will be prevented and adjoining lots and lot owners will be protected from damage from such deterioration and also in that the appearance and neatness of plaintiff’s lot and mausoleum enhances the value not only of defendant’s property generally,
“ Tenth. That the acceptance by the defendant of the $5,000 given to it by the plaintiff on June 25, 1931, and the delivery by the defendant to the plaintiff of the aforesaid receipt and trust agreement created an irrevocable trust and no written consent of all of the parties beneficially interested therein has been obtained.”
The suggestion that the receipt “ created an irrevocable trust ” involves a conclusion of the pleader. Other defenses not here material are also pleaded. In our view, the arrangement between the parties did not create a trust; but, assuming that it did and that plaintiff could revoke the trust, this action, as pointed out by the trial justice, would be inappropriate for plaintiff’s remedy would lie in an action for an accounting. (Neary v. City Bank Farmers Trust Co., 260 App. Div. 791, 793.) The payment of the $5,000 by the plaintiff to the defendant, as matter of law, did not create a trust. (Cf. Kahlmeyer v. Green-Wood Cemetery, 175 Misc. 187; modfd., 261 App. Div. 950.)
Our conclusion is that the delivery of the money and the giving of the receipt constituted an agreement which created an agency (or a power) coupled with an interest in defendant, and that if the agreement was founded on a sufficient consideration, it is irrevocable by plaintiff. The consideration moving from defendant was its undertaking to relieve plaintiff of the trouble and annoyance of attending to the care and maintenance of the property. This is conceded by the plaintiff in her brief. It is not questioned that the burden of care and maintenance was hers. She claims that the agreement was “ terminable at the will of either party.” This is not inferable from the agreement.
Defendant’s interest in the performance of the agreement is that if it is not performed as long as there is need for care and maintenance, defendant will be obliged to carry that burden, since no well-managed cemetery could depreciate its property and that of other lot owners by having on its premises a mausoleum in process of falling into decay and ruin upon a considerable plot, with grass uncared for and running to weeds.
It is the public policy of the State that cemeteries and structures thereon shall be kept in proper condition and appearance. This policy is reflected in sections 76 and 87 of the Membership Corporations Law.
In our opinion, the delivery of the money and the giving of the receipt created in the defendant an agency coupled with an interest, irrevocable so long as the need for care and maintenance of the plot and the mausoleum continues to exist. That need is mani
The judgment should be affirmed, with costs.
Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ.
Judgment unanimously affirmed, with costs.