
    In the Matter of John Valente, Doing Business as Valente Memorials, Petitioner, v. Memory’s Garden Cemetery, Respondent.
    County Court, Albany County,
    October 19, 1967.
    
      Maynard, O’Connor $ Smith for petitioner. Loren W. Lillis for respondent.
   Martin Schenck, J.

This is a motion by the petitioner for an order permitting removal of a cemetery marker at Memory’s Garden Cemetery. The petitioner secured a judgment against one Gilbert Geffner, apparently because of the failure of the said Geffner to pay for a headstone purchased from the petitioner for the grave of his son at Memory’s Garden. It appears to be conceded that the provisions of the Lien Law have not been complied with. The petitioner contends that this proceeding is based upon contract and is not subject to the Lien Law.

The contract between the petitioner and Geffner specifically refers to the fact that the marker in question was to be placed on a designated plot at Memory’s Garden Cemetery. It is clear, therefore, that the petitioner was aware that the marker would be placed at Memory’s Garden Cemetery and, accordingly, the petitioner had notice of and is bound by the rules and regulations of the cemetery. Those rules and regulations provide that a marker cannot be removed without the consent of the cemetery. The cemetery further points to the problems that would be involved by removal of such a marker.

I find it unnecessary to pass upon the question of whether or not the Lien Law should be involved herein. Upon the basis of the contract between the petitioner and Geffner, the rules and regulations of the cemetery must be found to be applicable to the contract. Petitioner, therefore, was under notice and should have understood that by unilateral action he would not be permitted to remove the marker from the cemetery.

Upon the question of public policy, furthermore, it would seem that the application should also be denied. Interference with the orderly arrangement of the cemetery should not be permitted in the absence of express contractual rights by the person or company providing a marker which was concededly designed for a designated plot in a specific cemetery. The petitioner has and is pursuing a remedy at law to collect the money, which he claims is owing to him, through legal processes. He has taken judgment. He, therefore, is not deprived of remedy at law and he must be remanded to pursuing the enforcement of his judgment through the supplementary proceedings provided by law.  