
    Walter G. Frey, Respondent, v. The Lutheran Cemetery, Appellant.
    
      Cemeteries — action to recover for mutilation of remains of parents and of caskets containing said remains.
    
    
      Frey v. Lutheran Cemetery, 194 App. Div. 970, affirmed.
    (Argued March 10, 1922;
    decided March 24, 1922.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 4, 1921, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was to recover damages alleged to have been suffered by plaintiff in consequence of the mutilation by defendant of the caskets and outer boxes in which the remains of his parents were buried and of the remains themselves. The complaint alleged that a certain lot in the defendant’s cemetery was owned by the plaintiff’s mother and that in 1906 she was interred in it. In 1908 plaintiff’s father was interred in the same grave, the two caskets being placed one on top of the other. In 1918 the plaintiff, desiring to erect a monument over the grave, obtained leave from the defendant to do so in accordance with its rules and regulations. Under these rules the defendant reserved the right to prepare the foundations for monuments, charging a fixed fee for the work. The defendant reported to the plaintiff that according to its diagram the head of the grave was so close to the boundary line of the lot that it would be necessary to. move back the grave in order to make room for the foundation. Plaintiff accordingly gave an authorization to the defendant to do this; that while the work was being executed the plaintiff went to the cemetery to inspect it. He found that instead of lengthening the grave and moving back the remains the defendant had uncovered the grave for a distance of six feet only, and at the head of the grave where the foundation was to be installed had made room for the foundation by digging straight down six feet through the heads of the boxes, caskets and remains themselves and had severed the heads of the boxes, the heads of the caskets and the heads of the remains.
    
      Cecil B. Ruskay for appellant.
    
      Herman S. Herlwig and William Montague Geer, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Caedozo, Pound, McLaughlin, Grane and Andeews, JJ.  