L. 1909, ch. 40 Cemetery Corporations § 65 erection thereupon, or any remains therein, be disturbed or removed without the consent of the lot owner, or if there be no such owner, without the consent of the heirs of the persons whose remains are buried in such grave. No cemetery shall hereafter be located in any city or incorporated village, without the consent of the common council of such city, or the board of trustees of such village, as the case may be. 5. The perpetual care and keeping in order of any lot, or part of lot therein, as prescribed by the creator in the trust instrument, or by his successor in right or interest in such lot, by a new or further declaration of trust, in writing. Such trust fund shall be invested and kept invested in such securities as savings. banks are permitted to invest in. The income of such trust fund shall be applied to the purposes above stated. The trustees of the corporation, or a majority of them, shall make, sign and file, at the annual meeting, a report countersigned by the treasurer, concerning all trust funds held under this subdivision and of the use made of the income thereof. This section was derived from the Membership Corporations Law of 1895, § 45, as amended by L. 1896, ch. 325, § 1. It was amended to read as above by L. 1909, ch. 274, § 2, and L. 1914, ch. 234. The amendment by L. 1909 inserted the word "Suffolk" after the word "Nassau" and before the word Kings near the end of the first sentence. The amendment by L. 1914 added the fifth subdivision. 66 66 The report of the Board of Statutory Consolidation (1907), page 3627, has the following note relating to this section: 'Word' Erie' inserted to make section conform to change in § 62 by L. 1896, ch. 193, § 1,." See also note to § 62, supra. Section 65 of the Membership Corporations Law of 1895 is now covered by § 100. Cemeteries in Nassau county: see infra, § 85. Acquisition of land by certain corporations: Religious corporations, see RELIGIOUS CORPORATIONS LAW, § 7; Rural cemetery corporations, see infra, § 83; Municipal corporations, see GENERAL MUNICIPAL Law, §§ 160, 161; Villages, see VILLAGE LAW, § 290. Acquisition of lands by individuals for cemetery purposes in certain counties: see REAL PROPERTY LAW, § 451. Condemnation proceedings generally: see Code Civ. Pro., § 3357 et seq. Trusts for care of cemetery lots: see REAL PROPERTY LAW, § 114-a; PERSONAL PROPERTY LAW, § 13-a. County treasurer as trustee of funds for cemetery lots: see COUNTY Law, § 152. Exemption from taxation: see TAX LAW, § 4. Taking of property for, as a public purpose: see 22 L. R. A. (N. S.) 171 note. Public character of charitable bequest for cemetery: see 37 L. R. A. (N. S.) 997 note. Dedication and abandonment of land for cemetery purposes: see 15 Ann. Cas. 172 note. What is necessary to effect a dedication of land as a cemetery or burial plot: see 27 L. R. A. (N. S.) 875 note. Validity of testamentary provision for erection of monument, or for the care and maintenance of tombs, burial grounds, etc.: see 1 B. R. C. 931 note. §§ 66, 67 Cemetery Corporations L. 1909, ch. 40 Power of municipality to take cemetery property as trustee: see 17 Ann. Cas. 747 note. Abandonment or sale by town or municipality of ground used for cemetery: see 42 L. R. A. (N. S.) 1216 note. Effect of language in grant specifying or restricting property for use of cemeteries: see 19 L. R. A. 266 note. Distinction between exception and reservation of cemetery in deed: see 18 Ann. Cas. 800 note. 66 Condemnation. A rural cemetery association, the certificate of incorporation or by-laws of which do not exclude any person from the privilege of purchasing lots in its cemetery for burial purposes on equal terms with all others, may constitutionally secure the condemnation of lands for cemetery purposes." Stannards Corners Rural Cemetery Ass'n v. Brandes, (1895) 14 Misc. 270, 35 N. Y. S. 1015. By this section taken together with sections 66 and 69, infra, an attempt was made to make the use of lands taken by a cemetery association a public one rather than a private one, and consequently to make the provisions permitting the taking of the land in the exercise of the right of eminent domain constitutional and valid. Matter of Lyons Cemetery Ass'n, (1904) 93 App. Div. 19, 86 N. Y. S. 960. See in this connection Matter of Deansville Cemetery Ass'n, (1876) 66 N. Y. 569, 23 Am. Rep. 86, reversing 5 Hun 482, where it was said that the provisions of L. 1873, ch. 452, authorizing the taking of land by a cemetery association for burial purposes was unconstitutional and void as the use was a private rather than a public one. Validity of unlimited bequest.-An unlimited bequest to a corporation organized "to cremate the human dead in the quickest, best and most economical manner," and having power to "take by devise or bequest ‘land, tracts, buildings, machinery, rights or chattels' for the purposes of incorporation or any of them," is valid as a gift for its authorized purposes. Spencer v. De Witt C. Hay Library Ass'n, (1901) 36 Misc. 393, 73 N. Y. S. 712. Testamentary gifts for care of lots. A testamentary gift to trustees to provide for the care of the testator's burial lot is not invalid as offending against the statute of perpetuities. Driscoll v. Hewlett, (1909) 132 App. Div. 125, 116 N. Y. S. 466, affirmed (1910) 198 N. Y. 297. § 66. Surveys and maps of cemetery. Every cemetery corporation shall, from time to time, as land in its cemetery may be required for burial purposes, survey and subdivide such land into lots or plats, with avenues, paths, alleys, walks and ornamental plats; and make and file a map thereof in the office of the corporation, open to the inspection of all persons. Any unsold lots, plats or parts of lots or plats, in which there have not been any burials may, by order of the directors, be resurveyed and altered in shape or size, and properly designated on such maps. This section was derived from the Membership Corporations Law of 1895, § 46. Section 66 of the Membership Corporations Law of 1895 is now covered by section 101. Maps, surveys, etc.- The provisions of this section and of section 69 as to maps, surveys, and schedule of prices cannot well be complied with until title to the land in question is acquired. Matter of Lyons Cemetery Ass'n, (1904) 93 App. Div. 19, 86 N. Y. S. 960. § 67. Rules and regulations. The directors of a cemetery cor poration may make reasonable rules and regulations for the use L. 1909, ch. 40 Cemetery Corporations 67 care, management and protection of the property of the corporation and of all lots, plats and parts thereof in its cemetery; for regulating the dividing marks between the various lots, plats and parts thereof, their size, shape, location, and the size of erections thereupon; for the prohibiting or regulating the erection of structures upon such lots, plats or parts thereof; for preventing unsightly monuments, effigies and structures within the cemetery grounds, and for the removal thereof; for regulating the introduction and care of plants, trees and shrubs within such grounds; for the prevention of the burial in a lot, plat or part thereof, of a person not entitled to burial therein; for regulating or preventing disinterments; for the conduct of persons while within the cemetery grounds; and for the exclusion of improper persons therefrom and improper assemblages therein. Such rules and regulations shall be plainly printed and publicly posted in the principal office of the corporation, and in such places upon the cemetery grounds as the directors by resolution prescribe. The directors may prescribe penalties to be paid by a person violating any such rule or regulation, not exceeding twenty-five dollars for each violation, which shall be recoverable by the corporation in a civil action. This section was derived from the Membership Corporations Law of 1895, § 47. Regulation of interments in cemeteries of third class cities: see PUBLIC HEALTH LAW, § 24. Excluding certain persons from cemeteries: see PENAL LAW, § 514. Killing, wounding or trapping birds in cemeteries: see PENal Law, § 1425. Injury to property in cemeteries: see PENAL LAW, § 1427. Prohibition against liquor traffic on any cemetery premises: see LIQUOR TAX LAW, § 23, subd. 6. Liens on monuments, gravestones and cemetery structures: see LIEN LAW, § 120 et seq. Regulations of burials and cemeteries: see 27 L. R. A. (N. S.) 260 note. Validity of state or municipal regulations or restrictions as to burial of dead: see 14 Ann. Cas. 1085 note. Right of cemetery corporation or association to refuse privileges of cemetery to applicant: see Ann. Cas. 1914B 280 note. See also supra, § 69, notes. Forbidding burial of negro in cemetery controlled by white persons: see 7 L. R. A. (N. S.) 155 note. Binding effect of rules and regulations.— While cemetery associations have "the right to make rules and regulations that are binding upon those who voluntarily become members, . . . such rules and regulations have not, as to third persons, the force of statutes. Undoubtedly they may pass rules and regulations excluding persons not lot owners from coming upon their grounds, and treat them as trespassers, and may recover whatever damage may be adjudged to have been occasioned by such trespassing, but they cannot, by by-laws or regulations, fix an arbitrary sum as the measure of such damage by a fine or a penalty." Johnstown Cemetery Ass'n v. Parker, (1899) 45 App. Div. 55, 60 N. Y. S. 1015, affirming 28 Misc. 280, 59 N. Y. S. 821. §§ 68, 69 Cemetery Corporations L. 1909, ch. 40 Presumption as to knowledge of rules regulating burials.- Where, in a controversy over the right to burial in a Catholic cemetery, it appears "without dispute, that under the rules and usages applicable to the cemetery in question, the burial of non-Catholics or of Freemasons 'is forbidden, and that such right is reserved exclusively for Roman Catholics dying in communion with the church," a person whose right to burial is based on an instrument in writing evidencing the purchase of lots in the cemetery, will be presumed to have had knowledge of such rules and usages. People v. St. Patrick's Cathedral, (1880) 21 Hun 184. § 68. Record of burials. A record shall be kept of every burial in the cemetery of a cemetery corporation, showing the date of the burial, the name, age and place of birth of the person buried, when these particulars can be conveniently obtained, and the lot, plat, or part thereof, in which such burial was made. A copy of such record, duly certified by the secretary of such corporation, shall be furnished on demand and payment of such fees therefor as are allowed the county clerk for certified copies of records. This section was derived from the Membership Corporations Law of 1895, § 48. § 69. Title and rights of lot owners. The directors must fix and determine the prices of the burial lots or plats, and keep a plainly printed copy of the schedule of such prices publicly posted in the principal office of the corporation, open at all reasonable times to the inspection of all persons. The corporation, unless its certificate of incorporation or by-laws otherwise provide, shall, subject to its rules and regulations, sell and convey to any person, the use of the lots or plats designated on the map filed in the office of the corporation, on payment of the prices so fixed and determined, but need not sell and convey more than one lot or plat to one person. The con veyances of lots and plats shall be signed by the president or vicepresident and treasurer of the corporation. All lots, plats or parts thereof, the use of which has been so conveyed as a separate lot, shall be indivisible, except with the consent of the lot owner and the corporation, or as in this article provided; and the use of the same for burial purposes, after a burial therein, shall be inalienable and be held in perpetuity by the grantee and his heirs, except as otherwise provided; and upon the decease of a proprietor of such lot the title thereto shall descend to his heirs-atlaw or devisees, subject. however, to the following limitations and L. 1909, ch. 40 Cemetery Corporations § 69 conditions: If he leaves a widow and children, they shall have in common the possession, care and control of such lot during her life. If he leaves a widow and no children, she shall have the possession, care and control of such lot during her life. If he leaves children and no widow, they, or the survivor of them shall in common have the possession, care and control of such lot during the life of the survivor of them. The parties having such possession, care and control of such lot during the term thereof, may erect a monument and make other permanent improvements thereon. The widow shall have the right of interment for her body in such lot, or in a tomb in such lot, and a right to have her body remain permanently interred or entombed therein, except that her body may be removed therefrom to some other family lot or tomb with the consent of her heirs. At any time when more than one person is entitled to the possession, care or control of such lot, the persons so entitled thereto shall designate in writing to the clerk of the corporation which of their number shall represent the lot, and on their failure to designate, the board of trustees or directors or commissioners of the corporation or commission shall enter of record which of said parties shall represent the lot while such failure continues. An heir may release to the other heirs, and a joint owner may release to the other joint owners, his interest therein, on conditions specified in the release, which shall be filed in the office of the corporation. The widow may at any time release her right in such lot, but no conveyance or devise by any other person shall deprive her of such right. The title of a grantee, or his heirs, shall not be affected by the dissolution of the corporation or its non-user of its corporate rights and franchises, or any act of forfeiture on its part, or any alienation of its property or incumbrance thereon made or suffered by it. If no burial be made in any such lot, or if all the dead bodies buried therein be lawfully removed therefrom, the owners thereof may, with the consent of the corporation, sell the use of such lot. secretary of the cemetery corporation shall file and record in its books all deeds of transfer. A lot owner may reconvey or devise to the corporation his right and title in and to any lot theretofore conveyed to him by such corporation. The This section was derived from the Membership Corporations Law of 1895, § 49, as amended by L. 1907, ch. 486, § 1, and from L. 1898, ch. 543, § 1. Lot owner's right in cemeteries of religious corporations: see RELIGIOUS |