In re Ackermann

109 N.Y.S. 228 | N.Y. App. Div. | 1908

Patterson, P. J.:

Louisa and Barbara Ackermann presented, their petition to the Supreme Court praying for leave to disinter the remains of then-parents from a lot or plot in which such remains had been buried in Woodlawn Cemetery and remove them to one which belongs to the petitioners. The application seems to have been -made under the provisions of chapter 715.of the Laws of 1900, which amends section'51 of chapter 559 of the Laws.of 1895. In the 4th subdivision of said section, as amended by the act of 1900, it- is provided that “ A dead body lawfully buried in a lot in such a cémetery may be removed .therefrom, with the consent of the corporation and a written consent of the owners of such lot, and of the surviving wife, husband, children, if of full age, and parents of the' deceased. If the consent of any such person can not be obtained, or if the corporation refuses its consent, the consent of the County Court of the county, or the Supreme Court, at a Special Term, held in the district, where the cemetery is situated, shall be sufficient.” This provision of the 4th subdivision of section 51 is a re-enactment, in so many words, of a similar provision in the act of 1895. The evident purpose of the legislation was to settle a question long mooted as to the right of cemetery corporations to allow disinterments and of the rights of relatives of deceased persons to cause such disinterments to be made, concerning which matters much doubt existed independently and irrespective of the question of unlawful disinterments which stands upon an entirely different basis. It will be seen by scrutinizing the language of this section that there is nothing contemplated except a general authority. Who may apply or for what "reasons or what on application may "be regarded as sufficient are matters' not referred to or regulated. . The statute seems to contemplate that the owner of a lot or plot, with the consent of the cemetery corporation, may remove a dead body from such lot or plpt; and it will be observed that in section 40 of the act of 1895 a definition is given of “ owner of a lot” in a cemetery.

That definition does not seem to include these petitioners; but we will assume for the purposes of the case now before us that they have authority under the act in question to apply to the court for leave to remove the bodies of their parents, but the grounds upon which the court should proceed remain to be considered, and, as I apprehend them, they are among those upon which courts of equity would heretofore have allowed the disinterment ■ and reburial of human remains. The law throws around the bodies of deceased human beings a protection even in their, graves. The right of-Christian sepulture includes the right to have one’s remains respected in his or her last resting place. Many circumstances arise from time to time necessitating a disturbance of the repose of the dead, but it must be some controlling public reason or superior private right which should induce the court to permit that to be done which from, time immemorial has been considered abstractly as a work of desecration.

In the case now before us there is no sufficient reason shown. The mother and father of these petitioners are buried in the same-grave and there is a stone marking their last resting place. The mother, dying some years after the father, had expressed her wish to be interred, with the companion of her life and her request. has been piously complied with by. her children. Three of those children resist the present, application and for reasons which commend themselves to the court. The question before Us is not one of sentimentality. It is one of leaving the departed to rest in their own selected burial place, as was Obviously the desire of the mother, and certainly á court of equity should not lend its aid in a family quarrel of this character in disturbing the repose Of the dead.

There is much literature on this subject, none of winch is particularly instructive so far as this case is concerned, and it. is sufficient to refer for general information to the opinion of Lewis, J., in Matter of Donn (14 N. Y. Supp. 189) where the leading cases in this country relating to the matter are considered.

The order appealed from sho.uld be reversed, .without costSj and the motion denied.

McLaughlin, Clabke and Scott, JJ., concurred ; Ingbaham, J., concurred in result.

Order reversed and motion denied, without costs.