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§ 62

Cemetery Corporations

L. 1909, ch. 40

such consent shall be published once a week for six weeks,” in the newspapers designated to public the session laws and in such other newspapers published in the county as the board of supervisors, or the board of aldermen of the city of New York as the case may be, may direct,” stating the time when the application will be made, a brief description of the lands proposed to be acquired, their location and the quantity thereof. All persons interested therein may be heard on the presentation of such application; and if such consent is granted the corporation may take and hold the lands designated in such consent, which shall not authorize any one corporation to take or hold more than two hundred and fifty acres. Nothing contained in this section shall prevent any ecclesiastical incorporation in existence on April fifteenth, eighteen hundred and fifty-four, in either of said counties, from using any burial ground then belonging to it within such county as it has been heretofore accustomed. The board of supervisors of each such county, or counties, or the board of aldermen of the city of New York as the case may be, may, from time to time, make such regulations as to burials in any cemetery in the county as, in its judgment, the public health may require.

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This section was derived from the Membership Corporations Law of 1895, $ 42, as amended by L. 1896, ch. 193, § 1, and from L. 1854, ch. 238, § 2. It was amended by L. 1909, ch. 274, § 2, which inserted the word “ Suffolk ” after the word “Nassau and before the words

or Erie "

near the beginning of the first sentence and the clause beginning or the board” and ending

near the middle thereof, and struck out the word “board " before the ensuing words may grant.” Also inserted in the clause beginning “ or the board ” and ending case may be " in last sentence, and struck out words “ the mode of” before the word “burial” in same sentence. By L. 1911, ch. 706, it was amended to read as above. The amendments are given in the footnotes.

The report of the Board of Statutory Consolidation (1907), page 3627, has the following note relating to this section: As a part of Queens county was added to New York city and the remainder was afterward erected into Nassau county, the word 'Nassau' has been inserted in this section to preserve the rights of that portion of the original county."

Section 62 of the Membership Corporations Law of 1895 is now covered by section 80.

Cemeteries in Nassau county: see infra, g 85.

Acquisition of lands by individuals for cemetery purposes in certain coun ties: see REAL PROPERTY LAW, $ 451.

Power to restrict use of land for cemetery purposes. “ It is clearly within the police power of the state to restrain the use of land in crowded and

1 Words “in two newspapers of the county having the largest circulation therein," omitted.

2 Words “in the newspapers designated . . may direct," new. 3 Formerly read: “county.”

L. 1909, ch. 40

Cemetery Corporations

§ 63

growing communities where the water supply is endangered and the public health menaced by determining the amount of land which may be used for cemetery purposes.” Palmer v. Hickory Grove Cemetery, (1903) 84 App. Div. 600, 82 N. Y. S. 973.

Period of publication.— “ It seems clear to us that this statute contemplates that there shall be a corporation duly organized, and that this corporation, acting in the manner pointed out by section 39 of the General Corporation Law (now section 43), shall authorize and direct the publication of a notice 'once a week for six weeks' before such application is to be made; that is, that there shall be six publications, one in each week, and that this notice shall be published for the full period of six weeks, or forty-two days, before such application is made, so that the public shall have at least six weeks' notice before the hearing provided ” in this section. Palmer y. Hickory Grove Cemetery, (1903) 84 App. Div. 600, 82 N. Y. S. 973.

Effect of failure to publish notice.- Under former section 42, it was held that where the notice was not published for the full period of six weeks before the application to the board of supervisors nor in the newspapers having the largest circulation in the county as required by that section, the board of supervisors had no jurisdiction of the application, and the applicant acquired no rights by virtue of the proceedings. Palmer v. Hickory Grove Cemetery, (1903) 84 App. Div. 600, 82 N. Y. S. 973.

Necessity of consent of supervisors in Nassau county.- It was held that a cemetery association could maintain a cemetery in the county of Nassau without first obtaining the consent of the board of supervisors as required by former section 42 which required such consent in Queens county prior to the separation of the present county of Nassau from Queens. Baylis v. Rosemount Cemetery, (1909) 134 App. Div. 251, 118 N. Y. S. 947.

§ 63. Corporate meetings. Public notice of each annual meeting of a cemetery corporation shall be given in a manner to be prescribed by its by-laws. Each person of full age owning the use of a lot or plat, or part of either, containing at least ninetysix square feet of land in the cemetery of the corporation, or if there be two or more owners of such lot, then one of them designated by a majority of such joint owners to represent such lot or plat, or part of either, may cast one vote for each such lot or plat, or part of either, so owned, at the meetings of the corporation.

Each owner of a certificate of stock heretofore lawfully issued, and each owner of a certificate of indebtedness of a cemetery corporation, may vote at the meetings of the corporation. Each owner of stock heretofore lawfully issued shall be entitled to one vote for each share of stock owned by him at the meetings of the corporation. Each owner of a certificate of indebtedness of a cemetery corporation shall be entitled to one vote at such meetings for each one hundred dollars of such indebtedness.

This section was derived from the Membership Corporations Law of 1895, § 43.

Section 63 of the Membership Corporations Law of 1895 is now covered by section 81.

§ 64

Cemetery Corporations

L. 1909, ch. 40

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Method of electing directors. The provisions of this and the following sections seem to require the election of directors to be accomplished by one of the following methods: 1. If one-third of the owners of lots shall be present or represented by proxy, then the plot owners, certificate holders and stockholders (entitled to the number of votes specified) shall all vote together, and a majority of the votes cast shall be sufficient to elect. 2. If one-third of the plot owners shall not be present or represented by proxy, then the plot owners are disfranchised and the election is to be by a majority of the votes of the owners of certificates of indebtedness and of stock, but in the event that no holders of such certificates of stock or indebtedness shall cast their votes, then the existing directors shall elect.” Springfield Cemetery Soc. v. Gilleran, (1914) 163 App. Div. 1, 147 N. Y. S. 511, affirmed (1914) 212 N. Y. 336, 106 N. E. 110.

§ 64. Directors. The directors of a cemetery corporation shall be elected at its annual meetings, by ballot, by the persons entitled to vote thereat. If at any such meeting one-fifth of the owners of lots or plats shall not, in person or by proxy, vote thereat, the directors shall be chosen by the existing directors, or a majority of them, unless such directors shall, at such meeting, be chosen by a majority of the votes of the owners of certificates of stock or indebtedness. The term of office of a director shall be three years.

A vacancy in the office of a director shall be filled by appointment, by the remaining directors, until the next annual meeting, when it shall be filled by election for the unexpired term. After the first annual meeting, no one but a lot owner shall be eligible to the office of director.

The directors may change their number to either six, nine, twelve or fifteen, by signing, acknowledging and filing a supplemental certificate stating the number of directors the corporation shall thereafter have; and thereafter there shall be elected at each annual meeting, one-third of the number of directors fixed by such certificate; but the directors then in office shall continue in office until the expiration of their term. In case any annual meeting of a cemetery corporation shall not be held on the day designated by the certificate of incorporation, the directors shall forthwith call a meeting of the members of the corporation for the purpose of electing directors, of which meeting notice shall be given in the same manner as of the annual meeting for the election of directors. If such meeting shall not be so called within one month, or, if held, shall result in a failure to elect directors, any member of the corporation may call a meeting for the purpose of electing directors by publishing a notice of the

L. 1909, cha 40

Cemetery Corporations

$ 65

time and place of holding such meeting at least once in each week for two successive weeks immediately preceding the election in a newspaper published in the county where the election is to be held, and in such other manner as may be prescribed in the bylaws for the publishing of notice of the annual meeting, and by posting at least six printed or written, or partly printed and partly written, notices in six conspicuous places in the town or city in which such corporation has its principal place of business, at least two weeks before such meeting. The directors so elected at such special meeting to fill a vacancy caused by the expiration of a term of office shall be chosen for the full term of three years, except where the aggregate number of the directors so chosen shall exceed one-third of the whole number of directors, and in that event such directors shall be chosen in such manner that the term of office of one-third of the whole number of directors of such corporation shall expire at the time of holding each annual meeting thereafter.

That part of this section having reference to the calling of a special meeting by any member of the corporation for the purpose of electing directors, shall be construed to apply to the calling of all such special meetings for the purpose aforesaid hereafter arising on account of a failure to hold any annual meeting of such corporation on the day designated by the certificate of incorporation. No lot owner shall be entitled to vote at any such meeting unless prior thereto, all assessments against the lot of such owner shall have been paid.

This section was derived from the Membership Corporations Law of 1895, § 44, as amended by L. 1901, ch. 415. It was amended to read as above by L. 1912, ch. 301. The amendment added the last sentence to the section.

Election of directors: see supra, § 63, note.
Corporate elections generally: see GENERAL CORPORATION LAW, § 23 et seq.

$ 65. Acquisition of property. If the certificate of incorporation or by-laws of a cemetery corporation do not exclude any person from the privilege, on equal terms with other persons, of purchasing a lot or of burial in its cemetery, such corporation may, from time to time, acquire by condemnation, exclusively for the purposes of a cemetery, not more than two hundred acres of land in the aggregate, forming one continuous tract, wholly or partly within the county in which its certificate of incorporation is recorded, except as in this article otherwise provided, as to the

§ 65

Cemetery Corporations

L 1909, ch. 40

acquisition of land in the counties of Erie, Nassau, Suffolk, Kings, Queens, Rockland and Westchester. A cemetery corporation may acquire by condemnation, exclusively for the purposes of a cemetery, any real estate or any interest therein necessary to supply water for the uses of such cemetery, and the right to lay, relay, repair and maintain conduits and water pipes with connections and fixtures, in, through or over the lands of others; the right to intercept and divert the flow of waters from the lands of riparian owners, and from persons owning or interested in any waters. But no such cemetery corporation shall have power to take or use water from any of the canals of this state, or any canal reservoirs as feeders, or any streams which have been taken by the state for the purpose of supplying the canals with water. A cemetery corporation may acquire, otherwise than by condemnation, real property as aforesaid and additional real property, not exceeding in value two hundred thousand dollars, for the purposes of the convenient transaction of its general business, no portion of which shall be used for the purposes of a cemetery. A cemetery corporation may acquire, otherwise than by condemnation, additional real or personal property, absolutely or in trust, in perpetuity or otherwise; and use the same or the income therefrom in pursuance of the terms on which the same is acquired, for the following purposes, only:

1. The improvement or embellishment, but not the enlargement, of its cemetery;

2. The construction or preservation of a building, structure, fence or walk therein;

3. The renewal, erection or preservation of a tomb, monument, stone, fence, railing or other erection or structure on or around any lot therein; or,

4. The planting or cultivation of trees, shrubs, flowers or plants in or about a lot therein.

A cemetery corporation may accept a conveyance of real property held by a religious corporation for burial purposes, or by trustees for such purposes, if all such trustees, living and residing in this state, unite in the conveyance, subject to all burdens, trusts and conditions to which the title of such grantors was subject. Lots previously sold in any such lands, and grants for burial purposes therein previously made, shall not be affected by any such conveyance; nor shall any grave, monument or other

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