166 Misc. 329 | N.Y. Sup. Ct. | 1937
Plaintiffs seek to restrain the defendants from interfering with the disinterment of the body of their father. Epitomizing the facts elicited at the trial, it appears that the father of the plaintiffs was buried in 1905 in a consecrated plot owned by the
It is, therefore, necessary to determine, in view of the defendant’s opposition, whether, all other elements being favorable, an objection based on ecclesiastical law is sufficient to sway the mind of equity. To a query of this character the answer generally must be in the negative. Since ecclesiastical law is not part of the law of the State, equitable rights are not to be determined in accordance therewith. In Cohen v. Congregation Shearith Israel (114 App. Div. 117, 119) j we are taught that: “ Ecclesiastical law is not a part of the law of j this State, nor are equitable rights to be determined by it; on the
While it is not indispensable to decide which of the proposed viewpoints is to be accepted as the correct interpretation and thus indirectly assume the power of defining ecclesiastical rule and regulation, yet it is assuring to know that even among the cognoscenti grave doubt exists as to whether, under circumstances herein prevailing,
The conclusion arrived at in consequence of this investigation is that whatever remains of the remains of the paternal parent of these plaintiffs continue to stay peacefully in the spot presumptively selected by him in his lifetime and which selection must be considered paramount to all consideration. (Matter of Donn, 14 N. Y. Supp. 189.)
Finally, judgment is decreed the defendant because, while ecclesiastical law may not control equity, yet, mindful of the horror with which orthodox Jewry regards all exhumation, in the absence of a compelling reason for permitting what has always been considered a desecration abhorrent to the finer and humanitarian interests prevalent since the beginning of civilization, heed will be given to the religious inhibitions affecting the parties herein concerned. It is not a matter of absolute right to disinter the remains of the dead. (Yome v. Gorman, 242 N. Y. 395.) Nor are the wishes of wife and children superior in this respect whether the body be buried or
Submit judgment accordingly. No costs.