7 N.Y.S. 345 | N.Y. Sup. Ct. | 1889
Lead Opinion
I am unable to concur in the conclusion arrived at by Mr.
Justice Daniels in this case. The learned judge ignores the views which were expressed by this court in People v. Trustees, (Coppers Case,) 21 Hun, 184. In that case, a receipt similar to the present, but more favorable to the holder’s contention, was fully considered, and its inadequacy to confer a legal and enforceable right pointed out. The question there was whether a mandamus would lie. Incidentally, we held that it was “even doubtful whether equity would decree a specific performance. ” Upon that question a definite opinion was reserved. It was enough for the denial of the mandamus that the right, if any existed, was an equitable one, and such as could not be enforced at law. We endeavored to show that there was absolutely no legal right, and that an equitable right was extremely doubtful. This latter question is now before us for a decided and definite opinion. To its accurate solution a clear statement of the precise facts is essential. , Let us, for the monent, assume that burial has been arbitrarily refused. Thus, it is said, McGuire has been denied his “property rights.” What, then, are these property rights? They-•rest exclusively upon the receipt given in extenso, in Mr. Justice Daniel’s opinion. There is not a particle of evidence in the case of any paroi agreement, except such as may be implied from the possession of that paper. What took place between the parties when Mr. John McGuire paid the ©10 specified in the receipt to Mr. D. Brennan, the “superintendent of the office of Calvary Cemetery, ” we know not. What their bargain was is entirely un
If the plaintiff proceeds as the successor of a mere license, he is met by the-principle of revocation, and also by the rule that courts of equity will not. specifically enforce such privileges. Mr. Pomeroy, in his work on Specific Performance, (section 132,) says that in certain states a paroi license to enter upon and occupy land of the licensor, and to do acts thereon, “if partly executed by the licensee, so that injury which is technically called ‘ irreparable ’ would be caused by its revocation, will be specifically enforced. * * *- This rule is undoubtedly opposed to the common-law doctrine concerning licenses as it prevails in England and in most of the American states.” In a note to this section it is said that the proposition stated in the text is most strongly maintained by decisions of the Pennsylvania courts. These Pennsylvania cases (notably Rerick v. Kern, 14 Serg. & R. 267) were considered by Duer, J., in Jamieson v. Millemann, 3 Duer, 255. That learned judge-said: “It cannot, however, be denied that the supreme court of Pennsylvania * * * has held that a paroi license may, in special cases, have ithefull operation of a grant; but the decisions in Pennsylvania stand alone, and will be found, upon examination, to proceed upon a doctrine which is peculiar to the courts of that state. * * * As evidence of the law that we are-bound to administer, ” these decisions “have no authority whatever.” Judge Duer also points out the distinction between an executed license, the effect of which is merely to suspend the enjoyment of an easement, (as in Winter v.
The question remains whether a case has been made out for a specific performance of a paroi agreement for the grant of an easement. In Wiseman v. Lueksinger, 84 N. Y. 38, this question was considered upon facts somewhat analogous to those now before us. The court first discussed the claim of license, holding that “a right of drainage through the lands of another is an easement, requiring for its enjoyment an interest in such lands, which cannot be conferred by paroi license. It can only be granted by ‘ deed or conveyance in writing.’” The head-note disposes of the question of consideration in these words: “A mere license to drain is not made irrevocable by the fact that a valuable consideration was paid therefor.” In answer to the remaining contention, namely, that courts of equity would give effect to paroi agreements for the grant of easements when founded upon a valuable consideration, Danforth, J., observed that “the contract which equity will regard as equivalent to the grant required at common law or by the statute must be a complete and sufficient contract, founded not only on a valuable consideration, but its terms defined by satisfactory proof, and accompanied by acts of part performance unequivocally referable to the supposed agreement;” and again: “There are, no doubt, many cases in which courts recognize an equitable right to an easement without a deed; but there will be found in them either an express agreement for an easement, or an acquiescence or consent by conduct which has led to the erecting of permanent works, or valuable and lasting improvements, or some other fact which would make the assertion of a legal title operate as a fraud upon the persons setting up the equitable right. ” The doctrine of this case was reaffirmed in Cronkhite v. Cronkhite, 94 N. Y. 323. Miller, J., repeated the language of Danforth, J., which I have quoted, and he referred to the facts of the former case in these words: “In the case of Wiseman v. Lucksinger, the plaintiff had paid a sum of money for permission to drain his lot upon the land of the defendant, and took a receipt for the same, and he used and enjoyed the privilege for twenty-five years, when the defendant revoked the permission. In an action to enforce the right of the plaintiff, it was held that * * * the right to drain was
an easement which could not be conferred by paroi license, but could be granted only by deed or conveyance in writing, and that an oral contract, which equity will regard as equivalent to the grant required at common law or by statute, must, as already stated, be a complete and sufficient contract in all its parts.” These cases were referred to with approval, and cited in support of like propositions, in Duryee v. Mayor, 96 N. Y. 484, and Fargis v. Walton, 107 N. Y. 403, 14 N. E. Rep. 303. It is apparent from the state
The case of Cronkhite v. Cronkhite is also very much in point. There the paroi agreement was for the laying down of pipes to carry water from a spring on the licensor’s lands—First, to the licensor’s buildings; and, second, to buildings on the licensee’s lands. The referee found as a fact, on the oral testimony, “that it was agreed that Henry C. Cronkhite [the licensee] should bear one-half the expense, and perform half the labor, of procuring and laying down the logs and pipes, etc.; and that, in consideration of such expenditure and labor, he should have a right to take water from said spring through logs and pipes in perpetuity.” Upon this, Miller, J., observed that “the testimony upon the trial established a paroi contract between John C. Cronkhite [the licensor] and Henry C. Cronkhite, whereby Henry C. was to take and use the water; and there was proof that both parties acted in accordance with that agreement. Money was expended by Henry C., pipes .were laid down and improvements made in connection with the use of the water, but there was no specific agreement as to the size of the pipes, the-amount of water to be carried through them, how far below the surfaee'they were to be laid,” etc. It was accordingly held that the agreement could not be enforced. “Disagreements,” said Judge Miller, “might also arise as to how and when and where the pipes should be laid and repaired, and as to the manner in which the spring should be protected; and thus it would be difficult for a court of equity to determine the precise character of the agreement. The evidence given upon the trial was too-vague and uncertain to establish a valid agreement in perpetuity such as the law recognizes. The statute re-' quires an agreement of this character to be in writing, expressing a consideration; and to establish it otherwise, by adverse possession, the proof should be entirely clear as to the nature and specific character of the agreement, so
It seems useless to multiply authorities upon this point, for the present case is not as strong in its equity as the weakest of those already cited. In the absence of any paroi testimony, and standing upon the naked possession of the receipt, how is it possible here for a court of equity to decree specific performance of a supposed contract for the grant of an easement? We are asked to imply all the terms of a complete and specific agreement from the words in the receipt, “amount of purchase money oí a grave, two feet by eight, in Calvary cemetery;” the two feet by eight being located beneath the superintendent’s signature as “grave 9, plot F, section 8, range 56.” The amount of purchase money of a grave. Was the contract completely fulfilled when a “gravé” was opened for Mrs. McGuire, and her body permitted to rest there? Can it be said that even that question is entirely free from doubt? Or was the contract personal to McGuire, and did it terminate, as suggested in Kincaid’s Case, ubi supra, upon his death? If the agreement to be implied from the receipt passed to McGuire’s administrator, what actual right thus passed? If this receipt implies a property right to burden the soil with as many bodies as can be decently placed in the located two feet by eight, can this admistrator renew his demand from time to time? If so, can he place there, for a consideration paid to him as the representative of McGuire’s estate, the bodies of strangers in blood to the family, provided they are Catholics ? Could McGuire himself have done that under this receipt? And in this process of burdening the soil with numerous bodies, in or out of the family, how deep might McGuire have dug, and how deep may this administrator now dig? The mere outlining of these questions clearly indicates that the receipt, to again quote the language used in Kincaid’s Appeal, “ without accompanying conditions and regulations, is a very loose paper.” We look in vain throughout this case for any such accompanying conditions or regulations. Even tlie cemetery rules, so far
I have thus considered this case precisely as though the rights of property claimed by the plaintiff had come from a secular cemetery. The weakness of the plaintiff’s equity is still more strikingly apparent. The record contains an express admission by the plaintiff of the allegation in the answer that the cemetery lands in question were set apart and consecrated, with appropriate religious ceremonies, by the ministry of a priest or priests of the Roman Catholic Church, for the exclusive purpose of the burial of the remains of persons who may die in communion with that church. McGuire was a Catholic. As such, he entered the denominational domain; as such, he obtained the receipt in question from the denominational cemetery office. What transpired at the time he so obtained that receipt is, as we have already seen, entirely unknown. What may safely be affirmed, however, is that he sought burial privilege in a denominational cemetery thus consecrated to the exclusive purpose of the burial of those dying in communion' with the church. That denominational rule must certainly be implied (as part of the agreement) from the receipt, and the surroundings under which it was sought and obtained. It is as though the receipt had read: Received from John McGuire $10, being amount of purchase money of a grave, two feet by eight, in the ground of Calvary Cemetery, which has been consecrated for the exclusive purpose of the burial of the re
Now, who is to determine whether McGuire died in that communion? Mr. Justice Daniels admits that it is the hierarchy, but he thinks that the chosen judges of the church must proceed according to the principles of the common law; that they can only act upon evidence, (as applicable to church law;) that the accused is entitled to a hearing; and that if those “first principles” which govern in the ordinary administration of justice are ignored, the authorities of the church exceed-their jurisdiction when they decree that the holder of the receipt died out of communion with the church. With great respect and diffidence, I venture to differ with the conclusion. In my judgment, McGuire contracted for the exclusive jurisdiction of the church with regard to the question of communion. Spiritual questions are solely for the determination of the church authorities. Over their action in the domain of church •discipline or excision the civil courts exercise no revisory power. Shannon v. Frost, 3 B. Mon. 253. There the court said: “We cannot decide who ought to be members of the church, nor whether the excommunicated have been ,justly or unjustly, regularly or irregularly, cut off from the body of the church. We must take the fact of expulsion as conclusive proof that the persons expelled are not now members of the repudiating church; for, whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this court.” The same doctrine was maintained by the supreme court of Pennsylvania in German Reformed Church v. Seibert, 3 Pa. St. 291; and the additional suggestion was there made that under no circumstances would the civil courts interfere until the wronged party had exhausted his remedy within the church by appeal to its highest tribunal. This doctrine is peculiarly applicable to the present case, where it is conceded that an appeal to Rome lay from the decision of the ordinary of this diocese forbidding the burial of McGuire, and that no such appeal has been taken. The language of the Pennsylvania court is exceedingly apt, and I quote the most material part of it: “If, therefore, the relator is injured by the decree of the consistory, his remedy is by appeal to a higher ecclesiastical court, which no doubt (and it is indecorous to suppose otherwise) will afford him redress by reversing whatever may have been done by the inferior court inconsistent with the canons of the church. That the power of the classis and synod is advisory only matters not, as we cannot suppose their decision will be disregarded; and, if it should be, it will then be time enough to seek redress from the civil authorities. The decisions of ecclesiastical courts, like every other judicial tribunal, are final; as they are the best judges of what constitutes an offense against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine.” To the same effect, in substance, are the decisions in Dieffendorf v. Reformed Calvinist Church, 20 Johns. 12; Robertson v. Bullions, 9 Barb. 64, affirmed, 11 N. Y. 243; People v. German, etc.. Church, 53 N. Y. 103; and Dwenger v. Geary, supra. In the latter case the court said that “no power •save that of the church can rightfully declare who is a Catholic. The question is purely one of church government and discipline, and must be determined by the proper ecclesiastical authorities. ” And again: “ Under the discipline and doctrines of the church, as enforced by the functionaries invested with the power and duty of deciding questions of doctrine and discipline, ■James Geary was not a Catholic, and this decision is final and conclusive.” >On the same principle, the decision that McGuire, although a Catholic, did
It seems to me that the ordinary’s jurisdiction in spiritual matters cannot be questioned by the civil courts at all. He may act upon the best light he can obtain, however informal the source; and we cannot review his judgment, however out of touch with common-law principles may have been his means of ascertainment. If the ordinary acts capriciously or arbitrarily, there is an appeal to Rome. If the appellant is there again defeated, it will be time enough to inquire whether he has or has not contracted for the possibility of such injustice; and whether, even then, the facts, and the laws applicable thereto, would warrant a court of equity in entering the spiritual domain to redress a mixed temporal and spiritual wrong. For we cannot overlook the fact which pervades this entire controversy that it is not the mere right to be buried in two feet by eight of ordinary earth which the plaintiff seeks to enforce, but plainly the right to be so buried in consecrated earth. It is thus the spiritual right which, in substance, he asks us to enforce; that is the agreement, so to speak, for consecration predicated upon communion. The rest is but a temporal incident. The world is all before this plaintiff to secure for his testator mere burial. The secular cemeteries, with their regular and binding deeds, were open to McGuire, and are yet open to his representative. But that is not what is required or desired. What the plaintiff insists upon is the burial of McGuire in the same consecrated earth where the body of his wife now rests. That, however, is something which the civil courts are powerless to compel, under such a contract or understanding as that which here forms the basis of the plaintiff’s rights and of this action. The Guibord Case, (Brown v. Cure of Montreal, L. R. 6 P. C. 157,) from which the learned counsel for the appellant quotes so fully, has no conceivable applicability here. That case proceeded upon rules referable to a system in which church and state are blended. Under that system a British subject is entitled to burial in his parish church-yard without regard to contractual locality, and the question of his right to such burial is essentially for the civil courts, in the exercise of their quasi ecclesiastical jurisdiction. The privy council, in opening the discussion, declared that the question to be decided was “the right of Guibord to interment in the ordinary way in the cemetery of his parish. * * * It may be observed that the cure and marguilliers are only proprietors of the parochial cemetery in the sense in which a parson in England is the owner of the freehold of the church-yard; that is to say, subject to the right of the parishioner to be buried therein.” In that case the church authorities offered to permit Guibord’s burial in that part of the cemetery which was unconsecrated. But the court determined that he was entitled to be buried in the consecrated part, and even queried whether they might not command the church to so bury him with its ordinary and appropriate re
In conclusion, I must say a word with regard to the present record. I have been somewhat embarrassed by the peculiar character of the findings made by the learned judge at special term. They seem to me to be inconsistent and contradictory in some important particulars, and they can only be reconciled by treating the eleventh, thirteenth, and fourteenth findings of fact as really conclusions of law erroneously deduced from the accurate findings of fact numbered second, third, and fourth. These latter findings are supported by the uncontradicted testimony, while the subsequent findings to which I have referred, as well as the first and second conclusions of law, are implications not borne out by such testimony. But as, upon the pleadings and proofs,— the latter undisputed,—and the findings of fact really applicable to such proofs, the third legal conclusion (namely, that the complaint be dismissed) was fully justified, the judgment appealed should be affirmed, with costs.
Concurrence Opinion
I concur in the conclusions arrived at by Mr. Justice Barrett. I think that he has conclusively shown that whatever contract the facts proven establish, if any, is of so vague and indefinite a character that it cannot be specifically enforced by any court. I think that he has further shown that all that the deceased received was a license which was revocable. So grant or irrevocable right or easement was ever given him, and could not be, by the paper he received, without in effect repealing the provisions of the statute in respect to conveyances of interest in land. If it were possible to hold that there was a valid contract for burial only, and not for any interest in land, there seems to be another ground which is fatal to the plaintiff’s claim. There is no evidence but that, if the deceased’s rights of property have been invaded, his estate can be entirely indemnified through an action at law for damages. If it is urged that damages cannot indemnify
Dissenting Opinion
(dissenting.) The action has been brought to secure the interment of the remains of John McGuire, deceased, in Calvary Cemetery, Queens county, in the state of Hew York. The cemetery was acquired and controlled by the defendants under an act of the legislature conferring that power upon the trustees of St. Patrick’s Cathedral. The intestate died on the 19th of February, 1888, and an application was made for his interment in the cemetery, which was refused by the trustees, under the direction of the clerical authorities of the Catholic Church. In his life-time, the intestate, for the sum of money mentioned in it, received the following receipt and agreement:
“No. 726. Calvary Cemetery, Hew York, November 22, 1870.
“266 Mulberry street.
“Received from John McGuire ten dollars, being the amount of purchase money of a grave, two feet by eight, in Calvary Cemetery, with privilege to erect a head-stone thereon.
“D. Brennan, Supt. of Office of Calvary Cemetery.
“Grave 9, plot F, section 8, range 56.”
And prior to his own decease the grave mentioned in the instrument was actually located, and the remains of his wife were interred therein. The grave, as it was located, was sufficient in capacity for the interment of more than two dead bodies; and the object of the action, as well as of the application to the authorities controlling the cemetery, was to secure the interment of the remains of the intestate in the same grave; and by the language of the instrument, and the location of the grave, his representative was entitled to insist upon that right, if the intestate had observed the laws and discipline of the church under whose authority the property was acquired and controlled. The instrument as it was issued, and under which the grave was located, created a privilege or license to this effect, without conveying a title to the land. Kincaid’s Appeal, 66 Pa. St. 411; Page v. Symonds, 63 N. H. 17; People v. Trustees, 21 Hun, 184. And the administrator was empowered to secure this interment if the intestate had complied with the laws of the church controlling the cemetery up to the time of his decease. 2 Bl. Comm. 508; Williams v. Williams, L. R. 20 Ch. Div. 659. And that was the view which was adopted and followed in the decision made at the special term; for it was there held by the court that the plaintiff, as the personal representative of the deceased, was vested with whatever right existed to enforce the contract to be implied from or contained in this instrument. The action, accordingly," did not fail because of any infirmity in the right of the plaintiff, as the personal representative, to maintain it, if that could be done legally upon the facts made to appear by the evidence.
It is undoubtedly the law that the courts will not review conclusions or decisions of the ecclesiastical authorities of the church relating to mere matters of faith, practice, or discipline. Dutch Church v. Bradford, 8 Cow. 457; People v. German, etc, Church, 53 N. Y. 103; Shannon v. Frost, 3 B. Mon. 253; and German, etc.. Church v. Com., 3 Pa. St. 282, 291. But this exclusive authority vested in the church is not applicable to the disposition or determination of rights or interests in property, or those derived from contracts lawfully entered into. As much as that was stated in Bouldin v. Alexander, 15 Wall. 131. And it necessarily follows from the nature of the transactions through which rights or interests in property, by, virtue of contracts, may be created, that they are to be governed by the secular law, as they are distinguishable from ecclesiastical subjects, and may only be divested, impaired, or forfeited by reason of some act or circumstance upon which the right or contract has been made dependent, or for the violation of rules or regulations which by the sanction and intention of the parties have been made applicable thereto. Rights of this description are recognized and protected by the general law of the state, and that has carefully defined the manner in and the causes for which they may be lost or forfeited; and under that law, if the deceased, as a matter of fact, had violated or failed to observe any of the laws or regulations of the church applicable to and controlling this contract, then the plaintiff could not claim or insist upon his interment in this cemetery. But neither one of these rules or regulations vested the clerical authorities of the church with jurisdiction to determine this right of interment in such a manner as to conclude the party entitled to insist upon the observance of this
The determination which in fact was made in this manner proceeded upon information that the deceased had died at the Academy of Music at a meeting addressed by Dr. McGlynn, who had been excommunicated from membership in the Catholic Church, and that he was in reality a confederate and abettor of this deposed priest. The vicar general had been informed that McGlynn had abused and denounced the pope, and it was considered a scandal for any good Catholic to be present at his meetings. His own testimony is that he did not know the deceased, but that he had “heard that he had been applauding Dr. McGlynn in abusing the pope a few minutes before his death.” Upon his cross-examination he testified that it was a public fact that the deceased had died there. Thereupon the following questions were put to and answered by the witness: “ Answer. I was not there. I did not see him die. Question. You say it came up from the trustees. By what means? A. The undertaker called upon them. Q. How do you know? A. The clerk told me. Q. His name? A. Mr. Brennan. Q. Where did he tell you so? A. Oh, I can’t remember the exact spot. Q. When did he tell you so? A. Either the day after his death or the following day. Q. What was said? A. Simply the fact that he died at the Academy of Music. Q. And on that you issued the order forbidding the burial? A. I did, sir.” These reports, with the exception of that as to the fact of the deceased dying at the Academy of Music, were of a loose and unreliable character, and could not legally have been the subject of binding action by the vicar general. They were in no sense so authentic as to warrant or justify the conclusion that the deceased approved of the actions or expressions of McGlynn, or applauded any remarks or imputation made by him at the meeting, in this manner referred to, or at any other, and afforded no grounds of jurisdiction upon which he could legally or properly act in declaring the right of the deceased, under this contract, to have been forfeited by any misconduct on his part. The evidence was not of such a nature as to be acted upon, and therefore afforded no jurisdiction over the subject-matter; and the want of jurisdiction, or the power to act, may be questioned in the courts by legal proceedings whenever the legality of the action taken shall be brought in controversy. Ferguson v. Crawford, 70 N. Y. 253, 257; Cagwin v. Town of Hancock, 84 N. Y. 532, 541; Craig v. Town of Andes, 93 N. Y. 405. And to afford jurisdiction by way of support for a quasi judicial determination, it must proceed upon at least colorable evidence of the fact. But here no such, or indeed any, evidence was supplied; and this, as well as the circumstances that the consideration given to the subject was wholly without notice or an opportunity to be heard by any person interested in protecting the right of the deceased against these aspersions, ren
The evidence concerning the conduct of the deceased was obtained from witnesses either related to or knowing him well, and seeing him at meetings of the Anti-Poverty Society, and of the parishioners of the church of which McGlynn had previously been the pastor; but no witness testifies to the fact that he was present on any occasion when McGlynn addressed the people who. were assembled, or that he in any manner had applauded or approved of his conduct, or sentiments, or the principles which he endeavored to maintain; and upon the occasion when he was at the Academy of Music, the proof is positive, from at least two witnesses, whose evidence is not contradicted, that he died half an hour before the proceedings of the meeting had commenced, and before Dr. McGlynn made his appearance. All that was shown against him was that he was present at the meetings already referred to, but not when Dr. McGlynn was either officiating, or making any remarks or allusions whatsoever. There was no evidence that upon any occasion he had either misconducted himself, or neglected any of his duties or obligations as a member of the Boman Catholic Church. And that was the view which was adopted by the judge presiding at the trial; for by his fifteenth finding he found the facts to be “that the said John McGuire did not at any time after the said 22d day of November, 1870, violate any of the rules or regulations for the management of the said cemetery, and interments therein, theretofore made by the defendants, nor any laws of the Boman Catholic Church theretofore made respecting the burial of the bodies of its deceased members.” And in this state of the evidence, as it cannot be affirmed that he had violated any rule or regulation of the Catholic faith, it follows that he did not forfeit his right to burial in this cemetery.
If, upon a mere mistaken view of the facts produced by unfounded reports, which was all that was before the vicar general, this right of burial may be forfeited, then no security can certainly exist for the protection of any person acquiring and paying for this privilege of burial; for even the most correct
