186 Misc. 1040 | N.Y. Sup. Ct. | 1946
The action is for damages against undertakers for burial of a stranger in a .cemetery plot. The motion tests the sufficiency of affirmative defenses. The first, relating to dissolution of the corporate defendant, is.concededly insufficient as a defense. The second raises the three-year Statute of Limitations (Civ. Prac. Act, § 49, subd. 7), applicable since the injury complained of is one to property (Landis v. Lebanon Cemetery Assn. of Queens, N. Y. L. J., Oct. 4, 1934, p. 1089, col. 3; Jackson on Law of Cadavers, p. 170).. The wrongful burial took place in 1939 but, as the strange body is still in the plot, it is evident that the trespass is a continuing one to date (Hunt v. Hunt, 152 Misc. 364, affd. 242 App. Div. 721; Colrick v. Swinburne, 105 N. Y. 503); accordingly this defense is insufficient.
The remaining two defenses essentially assert that plaintiff has no standing to bring the action. It appears that the plot