122 N.Y. 429 | NY | 1890
The defendant was incorporated prior to 1850, pursuant to the provisions of chap. 133 of Laws of 1847, authorizing the incorporation of rural cemetery associations. The plaintiff in the complaint alleged that in June, 1864, he purchased of the defendant four hundred lots in its cemetery at the price of ten thousand dollars; that he afterwards sold fifty of them, for which deeds were given by the defendant on his order; that he fully paid the defendant the purchase-money; and that the defendant refused to make certificates or deeds for the remaining three hundred and fifty lots. He, *433 therefore, demanded judgment directing specific performance by the defendant of its alleged contract. The defendant, by its answer, admitted the making of the agreement as alleged, but denied that the consideration had been fully paid; and, further, alleged that the plaintiff, upon terms mentioned by him, proposed to relinquish to the defendant two hundred of such lots, and that afterwards, on April 14, 1876, the defendant accepted such offer by the following resolution adopted by its trustees: "Resolved that Mr. Palmer's offer to surrender to the cemetery two hundred lots on being allowed the interest he has paid to the Williamsburgh Savings Bank, with interest thereon compounded every six months, be accepted, and the amount as proposed be allowed him on settlement, such amount being five thousand three hundred and nine 15/100 dollars;" that after crediting him that amount there remained due from the plaintiff to the defendant $2,419.35; that on the liquidation by him of such indebtedness the "defendant is ready to convey, as the plaintiff may request, all such plots as he has not sold or surrendered;" and that on the performance by the plaintiff the "defendant is, and at all times has been, ready to convey said lots to the plaintiff, or on his order." The plaintiff held the position of surveyor and superintendent of the defendant from July, 1849, to May, 1864, and from July 1, 1864, to November, 1875. The defendant further alleged that after the location of the plots within his purchase the plaintiff, in violation of his duty as such superintendent and without authority, caused an avenue to be opened so as to promote the sale of them, and thereby blotted out a large number of lots, and in doing it diverted the labor and resources of the defendant from their legitimately authorized purposes. In addition to such charge against the plaintiff the only issue presented by the pleadings was whether the purchase-money which the plaintiff undertook to pay for the 400 lots, or for the residue after deducting the 200 of them in the event they had been relinquished as alleged by the defendant, had been paid. And this depended upon the state of the accounts between the plaintiff and the defendant, which was a subject *434 of controversy on the trial. The referee having found that the agreement of sale was made as alleged and admitted by the pleadings, and that the plaintiff had surrendered to the defendant 200 of the lots as alleged in the answer, and sold fifty-two 220/400 lots, further found that after adjusting the accounts between the parties and crediting the plaintiff with the amount which the defendant agreed to allow him for the surrender of those lots, there remained due to him from the defendant $621.14, which, with interest, made the amount for which judgment, in addition to the other relief, was directed.
It is urged by the defendant's counsel that the alleged agreement to sell to the plaintiff 400 lots was invalid, and that it should not have the support of the judgment of the court for its performance. The sale of that number of lots to the plaintiff was not within the spirit or purpose of the statute from which the defendant derived its corporate existence and powers. The purpose for which the defendant was incorporated was to procure and hold land "to be used exclusively for a cemetery or place for the burial of the dead." (L. 1847, ch. 133, §§ 1, 4.) The statutory direction is that at least one-half of the proceeds of sales of lots be applied to the payment of the purchase-money until fully paid, and the residue to the preservation, improvement and embellishment of the cemetery, and that the entire proceeds of sales be so applied after the payment of the purchase-money, etc. (Id. § 7.) And the lands are exempt from taxes, and not liable to sale on execution, or to be applied in payment of debts due from individual proprietors. (Id. § 10.) It is contemplated by the statute that the trustees of the associations created pursuant to it should, with a view to the proper management of cemeteries, designate the terms and restrictions upon which sales and conveyances be made. And although the lands purchased by such an association cannot legitimately be devoted to any other purpose than that of a cemetery, the unqualified sale of large portions of it to individuals for resale by them, possibly might deny to the trustees the power to control or regulate the terms or conditions of the sales, which it was, by the statute, contemplated *435
they should exercise in that respect. It may, therefore, be seen that the execution of the provisions of the act of incorporation, according to its policy, might be somewhat embarrassed by the sale to individuals for speculative purposes on their part, of large blocks of cemetery lands by the trustees of the association. But inasmuch as the defendant by its answer raises no question as to the validity of the contract with the plaintiff, but admits its force as such, and declares its readiness to perform the contract upon payment of the purchase-money, the question whether it was effectually made, or was within the corporate power of the defendant to make it, does not arise for consideration. (Duffy v. O'Donovan,
On this review, consideration can be given only to questions raised by exceptions; and it must be assumed, unless his findings indicate otherwise, that the determination of the facts by the referee was made in reference to the issues as presented by the pleadings. In that view, his findings of fact seem to be supported; and they warrant the conclusion that the plaintiff was entitled to the specific performance directed. The ulterior effect upon the sale of the lots held by the plaintiff is not the subject for consideration here inasmuch as they cannot be diverted from burial purposes, for which the land was originally purchased and to which it was necessarily devoted by the defendant. After a careful examination of the evidence on the subject, the conclusion is reached that the referee was permitted by it to find that after payment of the consideration of his purchase pursuant to the contract, there was due the plaintiff from the defendant the amount recovered by him of the defendant and no more; and that as the accounts and dealings between the parties were necessarily the subject of investigation to ascertain whether the defendant had received payment of such consideration, it was not error to direct judgment *439 in his favor for the balance due to him, as incidental to the main relief sought for and awarded.
The judgment should be affirmed, without costs in this court to either party.
All concur.
Judgment affirmed.