270 A.D. 1051 | N.Y. App. Div. | 1946
In an action for specific performance of a contract for the purchase and sale of graves in a cemetery, judgment and order (one paper) in favor of the plaintiff, modified on the law and the facts by striking from the third ordering paragraph the words contained in the five lines starting with “ forever ” and ending with “ other ” at folio 19 of the record on appeal, and. inserting in lieu thereof a provision that the deed shall contain a provision that the conveyance shall be subject to the covenants, etc., recited in subparagraph 1 of such ordering paragraph, and shall contain covenants by the grantee, as provided in subparagraphs 2 and 3 of such ordering paragraph; and further modified by striking therefrom the fourth, fifth, sixth, seventh, eighth, ninth and tenth ordering paragraphs contained therein. As so modified, the judgment and order is unanimously affirmed, without costs. It is our opinion that plaintiff was entitled to summary judgment enforcing her contract hut that the incidental relief granted by the judgment and order was not justified by the record. In view of the nature of the transaction disclosed, and since the record does not reveal the facts with respect to the nature of the conveyance by defendant Springfield L. I. Cemetery Society to appellant, we are unable to decide that appellant should not be permitted to make reasonable rules and regulations for the care and maintenance of its burial plots, for the protection of its own interests, and for the prevention of violations of the covenants and restriction provided for in its contract. The incidental relief granted by the judgment and order is not necessary nor required in the enforcement qf the contract pleaded, and the right to such relief, if necessary, may be decided in an appropriate action, if respondent he so advised. Present — Lewis, P. J., Carswell, Adel, Aldrich and Nolan, JJ.
