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$$ 84, 85

Cemetery Corporations

L. 1909, ch. 40

§ 84. Streets or highways not to be laid out through certain cemetery lands. So long as the lands of a rural cemetery corporation organized under the act entitled “An act authorizing the incorporation of rural cemetery associations,” constituting chapter one hundred and thirty-three of the laws of eighteen hundred and forty-seven, and the acts amendatory thereof, shall remain dedicated to the purposes of a cemetery, no street, road, avenue or public thoroughfare shall be laid out through such cemetery, or any part of the lands held by such association for the purposes aforesaid, without the consent of the trustees of such association, and of two-thirds of the lot owners thereof, and then only by special permission of the legislature of the state.

This section was derived from L. 1904, ch. 237, § 1.
Laying out highways through burying-grounds: see HighWAY LAW, s 201.
Operation of motor vehicles in cemeteries: see HIGHWAY LAW, $ 300.

Location of pipe lines in cemeteries: see TRANSPORTATION CORPORATIONS LAW, 8 42.

Condemnation of cemetery property.-" The fact that lands have previously been devoted to cemetery purposes does not place them beyond the reach of the power of eminent domain. That is an absolute transcendent power belonging to the sovereign which can be exercised for the public welfare whenever the sovereign authority shall determine that a necessity for its exercise exists. By its existence the homes and the dwellings of the living, and the resting places of the dead may be alike condemned.” Matter of Board of Street Opening, etc., (1892) 133 N. Y. 329, 31 N. E. 102, 28 A. S. R. 640, 16 L. R. A. 180. The court said further: “We have examined the authorities, to which our attention has been called and none of them in the least degree sustain the contention that lands devoted to private cemeteries owned by private individuals or a private corporation, cannot be condemned under the general language authorizing their condemnation for public use. On the contrary the following authorities give strong sanction to the claim that such lands can be taken under general legislative authority for a public use unless specially protected by statute. (Wood v. Macon & Brunswick R. R. Co., 68 Ga. 539; In re opening of Twenty-second Street, 102 Penn. 108; Egypt Street, 2 Grant's Cases, (Pa.) 455; 4 Brad. Sur. 503; Schoonmaker v. Reformed Dutch Church, 5 How. Pr. 269; In the Matter of Albany Street, 11 Wend. 149; Windt v. German Reformed Church, 4 Sandf. Chan. 471).”

$ 85. Record of inscriptions to be filed. Whenever, under any general or special law, any cemetery is abandoned or is taken for a public use, the town board of the town in which such cemetery is located, shall cause to be made, at the time of the removal of the bodies interred therein, an exact and accurate copy of all inscriptions on each headstone, monument, slab or marker erected on each lot or plot in such cemetery and shall cause the same to be duly certified and shall file one copy thereof in the office of the town or city clerk of the town or city in which such cemetery was

L. 1909, vh. 40

Cemetery Corporations

§ 85

located and one copy in the office of the state historian and chief of the division of history in the department of education at Albany. In addition to such inscriptions, such certificate shall state the name and location of the cemetery so abandoned or taken for a public use, the cemetery in which each such body was so interred and the disposition of each such headstone, monument, slab or marker.

New. Added by L. 1912, ch. 151.

There are three sections numbered 85 to the Membership Corporations Law, one given above; one added by L. 1912, ch. 315; and one added by L. 1913, ch. 139.

§ 85. Perpetual care of lots. Every corporation organized under or subject to the provisions of this article shall adopt a reasonable and uniform wcale of prices to be charged for the perpetual care of all lots in such cemetery, which shall be separate from and in addition to the amount fixed as the price at which such lots will be sold and conveyed, and upon the application of a prospective purchaser of any such lot and upon the payment by such purchaser of the purchase price and the amount fixed as a reasonable charge for the perpetual care of such lot, as herein provided, shall include in the deed of conveyance an agreement to perpetually care for such lot. Such corporation shall also, upon the application of an owner of any lot and upon the payment of the amount fixed as a reasonable charge for the perpetual care of such lot, enter into an agreement with such owner to perpetually care for such lot. Such agreement shall be executed in the same manner as a deed is required to be executed and may be recorded as a deed of real property in the office of the clerk of the county in which such cemetery is located. On and after entering into such contract with such purchaser or owner it shall be the duty of such corporation at all times thereafter to properly care for such lot.

New. Added by L. 1912, ch. 315.

There have been three sections numbered 85 added to the Membership Corporations Law, the one given above; one added by L. 1912, ch. 151; and one added by L. 1913, ch. 139.

Validity of regulations concerning care or improvement of cemetery lots: see Ann. Cas. 1915E 168 note.

$ 85. Cemeteries in Nassau county. A cemetery corporation shall not hereafter be incorporated for the purpose of conducting

§ 86

Cemetery Corporations

L. 1909, cha 40

its operations in the county of Nassau, except as provided in sections seventy-six and seventy-nine of this chapter; it shall not be lawful for any corporation, association or person, except as hereinafter provided, hereafter to acquire or take by deed, devise or otherwise, or to set apart or use, any land in the said county for cemetery, burial or mausoleum purposes. Nothing herein contained shall prevent existing cemetery corporations owning in the said county cemeteries in which burials have been made prior to January first, nineteen hundred and thirteen, from acquiring contiguous land for cemetery purposes in the manner now provided by law and using for burial purposes any such land heretofore or hereafter so acquired contiguous to existing cemeteries; nor to prohibit the dedication or use of land within the said county for a family cemetery as provided in section seventyeight of this chapter.

New. Added by L. 1913, ch. 131, and amended to read as above by L. 1916, ch. 178. As added by L. 1913, ch. 131, the section read as follows: cemetery corporation shall not hereafter be incorporated for the purpose of conducting its operations in the county of Nassau; nor shall it be lawful for any corporation, association or person, except as herein provided, hereafter to acquire or take by deed, devise or otherwise, or to set apart or use, any land in the said county for cemetery, burial or mausoleum purposes. Nothing herein contained shall prevent existing corporations owning in the said county cemeteries in which burials have been made prior to January first, nineteen hundred and thirteen, from acquiring contiguous land for cemetery purposes in the manner now permitted by law; nor to prohibit the dedication or use of land within the said county for a family cemetery as provided in section seventy-eight of this article."

There have been three sections numbered 85 added to the Membership Corporations Law, one given above; one added by L. 1912, ch. 151; and one added by L. 1912, ch. 315.

A

§ 86. [Exchange and cancellation of certificates.] The directors of a corporation mentioned in this article, which has issued certificates for shares, may, from time to time by resolution fix the value of each of such shares; and may by resolution, authorize the acceptance by the corporation of such certificates for shares at the value so fixed in payment for land. All certificates so accepted shall be immediately cancelled and shall not be again issued.

New. Added by L. 1913, ch. 648. As enacted this section had no heading and the one given above has been added for facility of reference.

L. 1909, cha 40

Fire Corporations

§ 100

ARTICLE V *

FIRE CORPORATIONS

Section 100. Certificate of incorporation. 101. Incorporation of fire corporations in towns legal

ized.
102. Powers.
103. Fire corporation may take by will.
104. Duty of trustees, directors or managers to file re-

port.
105. General powers conferred.

$ 100. Certificate of incorporation. Ten or more persons may become a fire, hose, protective or hook and ladder corporation by making, acknowledging and filing a certificate, stating the particular object for which the corporation is to be formed; the name of the proposed corporation; the city, village, fire district, or town in which it proposes to act; the number of directors; and the names and places of residence of the persons to be directors until its first annual meeting.

Such certificate shall not be filed without the approval indorsed thereupon, or annexed thereto, of a justice of the supreme court of the judicial district in which said corporation proposes to act, nor unless there is annexed thereto a certified copy of a resolution of the board of trustees of the village or the fire commissioners of a fire district or the approval of the mayor of the city, or, if not within a village, city or fire district, a resolution of the town board of the town in which the corporation proposes to act, or if the territory to be served by such corporation is located in more than one town, a resolution of the town board of each town in which any part of the territory in which said corporation proposes to act is located, consenting to its incorporation.

On filing such certificate, the signers thereof, their associates and successors, shall be a corporation in accordance with the provisions of such certificate.

* This was article 4 of the Membership Corporations Law of 1895, and then consisted of section 65, “ Certificate of incorporation," and section 66, “Powers." These sections were consolidated in the Membership Corporations Law of 1909, and the provisions of L. 1873, ch. 397, § 5, and L. 1887, ch. 316, were added. The article was amended by L. 1916, ch. 595.

§ 101

Fire Corporations

L. 1909, chi 40

In towns outside of villages and fire districts, the consent of the town board or boards to the incorporation of said corporations shall be an appointment of the several persons named in the certificate of incorporation as town firemen. Other persons may be elected as members of the corporation by the members thereof under such by-laws as may be adopted from time to time by such corporation, but the election of a member must be confirmed by the town board of the town in which he resides.

Such corporations shall, in law, be capable of taking, receiving, purchasing and holding real estate for the purposes of their incorporation, and for no other purpose.

This section was derived from the Membership Corporations Law of 1895, § 65, to which was added provisions taken from L. 1887, ch. 315, § 2. It was amended to read as above by L. 1916, ch. 595.

Section 100 of the Membership Corporations Law of 1895 is now covered by section 150.

Term certificate of incorporation: see GENERAL CORPORATION LAW, § 3, subd. 7. Qualifications of incorporators and filing and recording certificates of incorporation : see GENERAL CORPORATION LAW, $$ 4, 5. Frauds in organization of corporations : see PENAL LAW, $$ 660, 661. Corporate names generally: see GENERAL CORPORATION LAW, $ 6. Unlawful use of certain titles in connection with corporate name: see PENAL LAW, § 666.

Validity of devise in excess of authorized amount.—Where a corporation owns property in an amount less than that which it is authorized by law to hold, a devise to it of an amount sufficient to make the total of its property in excess of the amount authorized is not void but is only voidable as to the excess. Hornberger v. Miller, (1898) 28 App. Div. 199, 50 N. Y. S. 1079, affirmed (1900) 163 N. Y. 578 mem.

§ 101. Incorporation of fire corporations in towns legalized. Any fire, hose, protective or hook and ladder corporation heretofore organized under chapter three hundred and ninety-seven of the laws of eighteen hundred and seventy-three, or chapter three hundred and fifteen of the laws of eighteen hundred and eighty-seven, or under this article, with the consent of the town board, if the territory served by such corporation is located in a town, or with the consent of two or more town boards, if the territory served by such corporation is located in two or more towns, is hereby legalized and confirmed, notwithstanding the omission of any town board to appoint the members of such corporations as town firemen, or to exercise governmental control over them. Any such corporation shall hereafter be subject to the provisions of this article.

Amended to read as above by L. 1916, ch. 595. The subject matter is new. Before its amendment as above this section related to “ Powers," and its provisions are now contained in section 102.

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