L. 1909, ch. 40 Cemetery Corporations 8 71 2. Any husband or wife living separate from the other and having a burial lot in which the other, but for this section, would have no right of burial, and not desiring the remains of the other to be interred therein, may file a written objection to such interment with the cemetery corporation or association and if so filed at least thirty days before the death of the other, no right of interment shall be claimed or had under the foregoing provisions of this section. 3. A parent or child having a burial lot in which the other would have no right of burial but for this section, and not desiring the remains of the other to be interred therein, may file a written objection to such interment with the cemetery corporation or association, and if so filed at least thirty days before the death of the other, no right of interment shall be claimed or had by such other under this section; provided, that in such case, if the parent or child so excluded from burial in such lot, should die without having any place of interment provided, then the parent or child filing such objection shall at once furnish for the other a place of burial in some convenient cemetery; for the reasonable cost of which the estate of the deceased, if any, shall be responsible to the person furnishing such grave. 4. This section does not limit any existing rights of burial under other provisions of law. Nothing in this section contained, shall limit or curtail the right of alienation by the owner of a burial lot, under the rules of the cemetery corporation or association wherein such lot is situated, before the death of the person for whose remains the right of burial is provided herein, and no right of burial shall accrue to any person by reason of this section in any burial lot sold by its owner, before the death of the person for whose remains the right of burial is provided herein. If there be more than one lot owner of a lot in a cemetery of a cemetery corporation, no body of a dead person shall be buried therein without the consent of all the owners of such lot, unless such person, at the time of his death, was an owner of the lot, or a relative, wife or husband of an owner, or a relative of such wife or husband. A dead body lawfully buried in a lot in such a cemetery may be removed therefrom, with the consent of the corporation, and a written consent of the owners of such lot, and of the surviving wife, husband, children, if of full age, and $ 71 Cemetery Corporations L. 1909, ch. 40 parents of the deceased. If the consent of any such person can not be obtained, or if the corporation refuses its consent, the consent of the county court of the county or the supreme court, at a special term, held in the district, where the cemetery is situated, shall be sufficient. Notice of the application for the consent of the court must be given, at least eight days prior thereto, personally, or, at least sixteen days prior thereto, by mail, to the corporation or to the person not consenting, and to every other person on whom service of notice may be required by the court. This section was derived from the Membership Corporations Law of 1895, § 51, as amended by L. 1900, ch. 715, § 1. Section 71 of the Membership Corporations Law of 1895 is now covered by section 121. Regulations concerning burials: see supra, § 67. Widow's right of interment: see supra, § 69 and note. Duty of burial of dead: see PENAL LAW, § 2211. Right to direct disposal of one's own body after death: see PENAL LAW, § 2210. Burial in other states: see PENAL LAW, § 2212. Opening graves and body stealing: see PENAL LAW, §§ 2216, 2218. Removal of remains from one cemetery of a religious corporation to another owned by it: see RELIGIOUS CORPORATIONS LAW, § 9. Removal of remains of deceased soldiers: see Town Law, § 337. Power of court to order exhumation of dead bodies for evidentiary purposes: see Ann. Cas. 1916D 331 note. Removal of remains on abandonment of cemetery: see 3 L. R. A. (N. S.) 493 note. Application.— It seems that this section "clearly refers to a removal of a body from a cemetery owned by a cemetery corporation as defined by the act itself," and does not authorize an order for the removal of a body from a cemetery owned by a corporation created under special law, viz., L. 1841, ch. 115, as amended by L. 1851, ch. 445. Matter of Owens, (1903) 79 App. Div. 236, 79 N. Y. S. 1114. 66 Purpose of subdivision 4.- The "evident purpose " of the provisions of subdivision 4 of this section with regard to removals was to settle a question long mooted as to the right of a cemetery corporation to allow disinterments and of the rights of relatives of deceased persons to cause such disinterments to be made, concerning which matters much doubt existed independently and irrespective of the question of unlawful disinterments which stands upon an entirely different basis." Matter of Ackermann, (1908) 124 App. Div. 684, 109 N. Y. S. 228. Legislative power to regulate burials and removals." The power of the legislature to prohibit interments in or to remove the dead from cemeteries, which in the advance of urban population may be detrimental to the public health or in danger of becoming so, is not at this day a debatable question." Went v. Methodist Protestant Church, (1894) 80 Hun 266, 30 N. Y. S. 157, affirmed (1896) 150 N. Y. 577, 44 N. E. 1129. Where it appeared that that part of the city of Brooklyn in which an incorporated cemetery was located, was rapidly increasing in population, and that streets and avenues had been laid out through the lands in question, an act of the legislature which prohibited further interments therein and authorized the removal of bodies therefrom, the sale of the land by the corporation and the application of the proceeds to the purchase of a new cemetery was held valid as against the attack of a lot owner who sought L. 1909, ch. 40 Cemetery Corporations 8 71 to restrain the corporation from so doing. Went v. Methodist Protestant Church, (1894) 80 Hun 266, 30 N. Y. S. 157, affirmed (1896) 150 N. Y. 577, 44 N. E. 1129. Manner of compelling removal.-" While it is apparent that the legislature, in directing the removal of the dead, must provide for the expense, and while I have no doubt that it may impose that expense upon the lots from which bodies are removed, or upon the owner thereof, it must proceed by lawful methods, and if the lot owner has a title to the land he cannot be deprived of his property without his consent, and a direction of the legislature to the corporation or association having general charge of the cemetery to sell and convey it would have no valid force or effect." Went v. Methodist Protestant Church, (1894) 80 Hun 266, 30 N. Y. S. 157, affirmed (1896) 150 N. Y. 577, 44 N. E. 1129. Jurisdiction in equity.— On an application for the removal of the petitioner's mother who was buried pursuant to her wish in the same grave with her deceased husband, a court of equity will not lend its aid in a family quarrel to disturb the repose of the dead, where certain of her children resist the application. Matter of Ackermann, (1908) 124 App. Div. 684, 109 N. Y. S. 228. On an application to the court for its consent to the removal of a dead body from a cemetery, Stover, J., quoted the following with approval: "The person having charge of the remains holds them as a sacred trust for the benefit of all who may, from family ties or friendship, have an interest in them; in case of a contention the court should assume an equitable jurisdiction over the subject, somewhat in analogy to the care and custody of infants, and make such a disposition as should seem to be best and right under all the circumstances." Matter of Bauer, (1901) 36 Misc. 33, 72 N. Y. S. 439, affirmed 68 App. Div. 212, 72 N. Y. S. 439, 74 N. Y. S. 155. Circumstances authorizing disinterment allowed.- Many circumstances arise from time to time necessitating a disturbance of the repose of the dead," but it must be some controlling public reason or superior private right which should induce the court to permit that to be done which from time immemorial has been considered abstractly as a work of desecration." Matter of Ackermann, (1908) 124 App. Div. 684, 109 N. Y. S. 228. Jurisdiction of Supreme Court.-The Supreme Court has no jurisdiction to order the removal of a dead body from a cemetery in the absence of specific statutory authority therefor. Matter of Owens, (1903) 79 App. Div. 236, 79 N. Y. S. 1114. Conclusiveness of finding as to refusal to permit burial. In a contest between one of the executors of one Charles W. Garlock and her co-executors and other interested parties as to whether the cost of a burial plot for the deceased was a proper charge against the estate, it appeared that a certain burial lot had belonged to the testator for many years prior to his death and there were buried therein the body of his first wife, the body of a daughter, and the body of a sister-in-law; that sufficient space still remained in this lot for the burial of three more bodies; that instead of burying the body of the testator there, his executrix caused his remains to be interred in another lot in the same cemetery which she purchased for the purpose, at an expenditure of $191.90, which amount the surrogate refused to allow her upon the accounting under review. It was held that the finding of the surrogate, sustained by the unanimous affirmance of the Appellate Division, "that the right to bury the said Charles W. Garlock in the lot owned by him at the time of his death was not refused by the executors or by the remaining family of the said Charles W. Garlock, and that there was no refusal by any person or persons having an interest in said cemetery lot to allow the burial of Addie Garlock (the executrix) therein in the event of her death," was conclusive in the Court of Appeals. Matter of Caldwell, (1907) 188 N. Y. 115, 80 N. E. 663, modifying 114 App. Div. 906, 100 N. Y. S. 1109. § 72 Cemetery Corporations L. 1909, ch. 40 § 72. Taxation of lot owners by corporations. If the funds of a cemetery corporation, applicable to the improvement and care of its cemetery wholly outside of a city of the first or second class, or applicable to the construction of a receiving vault therein for the common use of lot owners, be insufficient for such purposes, the directors of the corporation, not oftener than once in any year and for such purposes only, may levy a tax on some basis to be determined by the directors of said corporation, but no such tax shall exceed two dollars on any one lot, except that with the written consent of two-thirds of the lot owners or by the vote of a majority of the lot owners present at an annual meeting, or at a special meeting duly called for such purpose, such tax may be for an amount which shall not exceed a total of five dollars per annum per lot, and the tax on any one lot shall not exceed five dollars per annum but the taxes may be levied upon each lot in the first instance for a sum sufficient for the improvement and care of the lot, but no greater sum than five dollars shall be collected in any one year. The whole tax levied may be collected in sums of five dollars in successive years in the manner herein provided.1 Notice of such tax shall be served on the lot owners or where two or more persons are owners of the same lot, on one of them, either personally, or by leaving it at his residence, with a person of mature age and discretion, or by mail, if he resides in a city, town or village where the office of the corporation is not located, or in case the residence or whereabouts of the owner can not be ascertained, by publication once a week for four successive weeks in a newspaper published in the town where such cemetery is located, or if no newspaper is published 66 1 This part of the section formerly read as follows: "§ 72. Taxation of lot owners by corporations. If the funds of a cemetery corporation, applicable to the improvement and care of its cemetery wholly outside of a city of the first or second class, or applicable to the construction of a receiving vault therein for the common use of lot owners, be insufficient for such purposes, the directors of the corporation, not oftener than once in any year and for such purposes only, may levy a tax of not to exceed two dollars on the owners of each lot, or, with the written consent of two-thirds of the lot owners, or with the concurrent vote of a majority of the lot owners, at an annual meeting, or at a special meeting duly called for such purpose, may levy a tax on the lot owners at a rate not exceeding five dollars for each lot of average value proportionately to the prices at which the lots were respectively sold by the corporation." 1 § 72 in such town then in some newspaper published in the county where such cemetery is located. If such tax remain unpaid for more than thirty days after the service of such notice, the president and secretary of the corporation may issue a warrant to the treasurer of the corporation, requiring him to collect such tax in the same manner as school collectors are required to collect school taxes; and such treasurer shall have the same power and be subject to the same liabilities in executing such warrant as a collector of school taxes has or is subject to by law in executing a warrant for the collection of school taxes. If the taxes so levied remain unpaid for five years after the levying of such tax the amount thereof with interest shall be a lien on the unused portion of the lot which is subject to such tax, and no portion of the lot so taxed shall be used by the owner thereof for burial purposes, while any such tax remains unpaid. If at the expiration of five years from the date of the service of the first notice of assessment as herein provided, any such assessment or the interest thereon shall remain unpaid, the corporation may sell the unused portion of such lot at public auction upon the cemetery grounds, in the following manner: If the person owning such lot resides within the state, a written notice, under the seal of such cemetery association, if it have a seal, and the hand of the president or secretary thereof, stating the amount of such tax or taxes unpaid and that such unused portion of such lot will be sold at a time therein to be specified, not less than twenty days from the date of the service of such notice, shall be personally served upon such owner; if such owner is not a resident of the state, or if the place of his residence can not with due diligence be ascertained, or if, for any other reason satisfactory to the court, personal service can not with due diligence be made upon such owner, such cemetery association, or any of its officers, may present a duly verified petition stating the facts to the county court of the county in which such cemetery lands are situated, or to the supreme court, and such court may upon satisfactory proof, by its order, direct the service of such notice in the manner provided by the code of civil procedure, for the substituted service of a summons. The president or secretary of such association, or any suitable and proper person 1 Words "after the levying of such tax," new. |