58 How. Pr. 55 | N.Y. Sup. Ct. | 1879
The first of the above entitled matters is a proceeding by mandamus, instituted by three brothers, who are the nearest of kin to one Denis Coppers, deceased, with the exception of two minor children of the ages of nine and thirteen years respectively, to compel the interment by the respondents of the body of the said deceased in Calvary cemetery, in a lot purchased by him in his lifetime; and the second is an action brought by such brothers in this court to prevent the removal by the defendants of the body of said Denis Coppers from the receiving vault of said cemetery, except for the purpose of burial, as is sought to be compelled by the first proceeding.
The proceeding was originally instituted against “ Calvary
Office of Calvary Cemetery, ) Hew York, December 1, 1873. )
Received from Mr. Denis Coppers seventy five dollars, being amount of purchase-money of a plot of ground, 8 feet by 8 feet, in Calvary cemetery.
$75. D. BREHHAH,
Swpermtendent of Office of Cal/vary Cemetery.
Section 7. Plot D.
Range 35. 4 Graves, 5, 6, 7, 8.
Denis Coppers departed this life on the 14th day of August, 1879, at Hoboken, in the state of Hew Jersey, and, by his last will and testament, directed that his body should “be buried in Calvary cemetery, Hew York, with or near the remains of my mother, and in the burial lot of ground now
On the 16th day of August, 1879, the undertaker who had charge of the burial, at the request of the relators and plaintiffs, made application at the office of the cemetery to open a grave in the burial plot purchased, as before mentioned, and paid to the parties in such office the sum of seven dollars for the labor of such opening, which money was accepted, and a receipt given therefor. On the succeeding day (August 17, 1879), upon the arrival of the funeral procession with the body of Denis Coppers, the interment in the burial plot and in the grave which had been prepared was refused and forbidden, and permission given to place the same temporarily in the receiving vault of the cemetery, from which its removal and burial elsewhere than in the lot of deceased were threatened, when this proceeding and action were commenced for the objects before stated.
Various objections have been made to both the action and proceeding, founded upon technical grounds, which will be hereafter discussed, but the main proposition involved is this: The defendant is a corporation attached to the Eoman Catholic church, and claims the right to exclude and forbid the interment of the body in the lot purchased by Denis' Coppers in his lifetime, because such burial would be contrary to the doctrines of such church, which, it is claimed, forbid the burial in consecrated ground of the body of a non-Catholic, or of one who was a member of the masonic fraternity. As the point just stated is the most important one involved, it will be first examined.
It is not doubted that the defendants have full power, when they have parted with no rights by conveyance or contract, to control and regulate interments in the grounds which they
The paper executed to Denis Coppers in his lifetime is certainly not a deed, which of itself would transfer the fee; but as it is duly signed, executed and delivered by an officer of the defendant corporation, whose authority to make a valid instrument of that character is not questioned, and as it declares that seventy-five dollars have been paid as the “ purchase-money of a plot of ground eight feet by eight feet, in Calvary cemetery,” which plot is, by other words and figures in said writing contained, capable of exact location and ascertainment, and as the deceased, in his lifetime, took actual possession of such plot, by placing therein the remains of members of his family, it is difficult to say why, under the well known maxim of the law that “what has been agreed to be done, and what ought to be done, shall, for the advancement of justice, be regarded as done,” it should not be treated as a deed in fee. The acknowledgment, by a writing duly subscribed by the owner, that such owner had received from another person the entire “ purchase-money of a plot of ground,” which is fully designated, the delivery to, and acceptance by, such buyer of the instrument, and that followed by actual possession of the property, would certainly, in ordinary cases, entitle the purchaser to a conveyance in fee simple absolute, and in any controversy between the vendor and vendee as to the use of the premises, though a formal conveyance had not passed, the latter would, both in law and equity, be deemed the owner. Looking, however, at the
In the Matter of the Brick Presbyterian Church (3 Edward’s Ch. Rep., 155), the exact question was before the court. The corporation had, many years ago, executed sundry conveyances, and also leases for 999 years of certain pieces of ground in the cemetery belonging to it, for the purpose of constructing vaults to contain dead bodies, and these conveyances were construed “ to sell and dispose of the land, and not to grant a mere temporary use or privilege to construct vaults in the land, with a reserve of the title to the church.” It was further held to be a “ base fee” (page 169), because the uses and objects for which it was to be held were limited (See, also, 4 Bradford, 503, etc., the opinion of Mr. Samuel B. Ruggles). If one of the owners of ground held for a vault had died, and his relatives had sought to place his body in the vault which he had constructed, would it have
Hothing inconsistent with the doctrine which has been enunciated was held in Windt agt. German Reformed Church (4 Sandford, chap. 471). The vice-chancellor, it is true, did' decide that mere burial and the payment of charges therefor gave no title to the land, but he also held (page 474), “ when vaults or burying lots have been conveyed by religious corporations, rights of property are conferred upon the purchasers. This was the case with the corporation of the Brick Presbyterian Church (3 Edw. Ch. R., 155). The right is like that to any other real estate, and it is as perfect without sepulture as it is when the grantee has used it for that purpose.”
There is no similarity, it seems to me, between a conveyance of a pew in a church and that of a plot of ground in a
It is objected, however, on the part of the defendants that, by their act of incorporation (chap. 239 of Laws of 1817, sec. 1), there could be no conveyance of an interest in the
It is time, as was urged by the learned counsel for the defendants, that every person who dealt with them was bound
It was also strenuously argued that the relators and plaintiffs have no standing to maintain either the action or proceeding, for the reason that they have no title to the burial plot, and are not the next of kin. Are these objections sound % Denis Coppers died on the 14th day of August, 1879. Arrangements were made to open the grave on the sixteenth of the same month, and the funeral was on the seventeenth (Sunday). By his will he had directed, the interment of his body (to repeat his own words) “ in Calvary cemetery, Hew York, with or near the remains of my mother, and in the burial lot of ground now owned by me there.”
The burial as directed by will was forbidden by the defendants on said seventeenth day of August, but permission to place the body in the receiving vault was given. On the
But the plaintiffs and relators have also a standing in court based upon a contract with the respondents and defendants. It was the money of the former which the latter received for the opening of the grave. That agreement remains unfulfilled and the price paid for the labor is unreturned. If the relief asked upon these motions is granted, the contract made will only be enforced against those who have promised performance, and in favor of those to whom the promise' was given. Upon this ground, also, as well as upon that based upon kinship to the deceased, and the necessities of the case, it is held that judicial action is properly invoked by those who seek it.
It is alsó argued that a mandamus is not the proper remedy. It is conceded that the cases are not uniform as to when the writ issues. Numerous decisions, however, can be found in which it has been held to properly issue to compel a corporation to do that which, by law, it is required to do, especially when no other adequate remedy exists. If we are right in
A careful examination of the questions which have been submitted leads me to the conclusion that the respondents must open the grave, for doing which they have received payment, and against them, as defendants in this action, an injunction must issue as prayed for. Such injunction is granted for the reason that as the defendants prevented the interment of the body in the spot to which it was entitled to be interred, and gave permission for its deposit in the vault, they cannot remove the same elsewhere for burial.
The order will be settled on notice, so as to preserve the status of parties pending an appeal, if the defendants elect so to do.