56 Misc. 71 | N.Y. Sup. Ct. | 1907
The objection that the hoard of health of the town o.f Great Valley has not legal capacity to sue, except in the name of the town (Board of Health v. Magill, 17 App. Div. 249), has been waived by failure to raise the same by answer or demurrer. Code Civ. Pro., § 499.
The general power conferred by the Eeligious Corporations Law upon religious corporations to take and hold real ■ property for cemetery purposes (Laws of 1895, chap. 723, § 7), does not vest in such corporations the power to locate
The question whether the board of health had power to make the general order of September 6, 1902, that no cemetery or burial ground should be established within the limits of the town without the consent of the said board, is not necessarily involved in the decision of this case.
The Public Health Law (§21) provides that a local board of health “ shall make * * * orders and regulations for the suppression of nuisances and concerning all other matters in its judgment detrimental to the public health in special or individual cases.”
The question is whether the resolution or order of July 25, 1905, of the board of health of the town of Great Valley, to the effect that the use of defendant’s lands or any part thereof for cemetery purposes would be detrimental to public health and is, therefore, prohibited, is sustained by the •evidence in the case. Was said board justified in making such order? Its determination is not final nor conclusive upon defendant, nor had it power to malee the same unless the prohibition of the use of said lands for cemetery purposes was necessary and proper for the preservation of public health. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.
The burden in this action is upon the plaintiffs to establish that the use of the defendant’s property for burial purposes is or will become in some way dangerous or destructive to public health.
It would seem that the only consequences of an evil nature that can be anticipated from the use of defendant’s land for cemetery purposes are the remote possibility of the contamination of wells in its vicinity which are already endangered by the close proximity of privies, and of the distribution of disease germs by the air. These dangers are too slight and uncertain to be the basis of injunctive relief.
So long as inhumation, or the consigning óf the body to the earth, remains the custom of civilized peoples in disposing of their dead, some remote danger of air and water contamination will arise from the proximity of cemeteries to places of human abode. Doubtless safety dictates that they should be as remote as convefiience will permit. That such danger from new rural cemeteries in sparsely settled regions is more speculative than real is demonstrated by common knowledge, medical and sanitary science and legislative policy. It was conceded upon the trial that the Roman Catholic Ghurch teaches as a religious doctrine that the disposal, of dead bodies by cremation ife not sanctioned and is sinful. Cemeteries must be provided in practicable locations for
The evidence satisfies me that the properly regulated use by the defendant of the lands in suit for burial purposes will not for a long time, if ever, become an appreciable menace to the health of the neighborhood by corrupting either air or water.
Judgment for defendant, with costs.