
    Clarence R. Conger, App’lt, v. John Treadway, Resp’t.
    
      (Supreme Court, General Term,, Second Department,
    
    
      Filed December 10, 1888.)
    
    Cemeteries—Right to burial in lot—Formal deed not necessary.
    In an action of ejectment to recover from defendant the possession of a burial plot in a cemetery the evidence disclosed that defendant purchased the plot in April, 1867, by verbal agreement with one John 8. Gunner, who was a part owner of the cemetery lands, and authorized by power of attorney to make sales of plots for the other owners; that defendant agreed to pay seventy-two dollars for the plot; that he subsequently gave another agent of the owners a portion of the purchase money and received a receipt therefor; that he has buried portions of his family in the plot and erected tombstones over their graves. Held, that plaintiff has no claim to the lot exclusive of the defendant’s right of burial there; no formal deed was necessary to confer the exclusive right to the use of the lot for burial purposes; exclusive permission to bury in it was sufficient to defeat the action.
    Appeal from a judgment of the circuit court of Rock-land county entered upon a verdict in favor of the defendant, and from an order denying plaintiff’s motion for a new trial on the minutes.
    The action is in ejectment to recover a plot of ground in “Mount Repose Cemetery,” in Haverstraw, Rockland county.
    
      Seaman & Conger, for app’lt; George W. Weiant, for resp’t.
   Barnard, P. J.

The case shows that one De Noyells, being the owner of a lot of land containing some thirteen acres,- conveyed ten elevenths of the same to ten individuals on the condition that the same was conveyed “For the purpose of a cemetery or burying place for the dead, and for no other purpose.” The plaintiff became subsequently the owner by deed in partition dated January 9, 1882, of all those portions of the lot “not sold or parted with before the date of said deed.” The defendant claims to have been a purchaser of the lot in question before plaintiff got his deed. The evidence shows that the associates in the title gave a power of attorney to sell plots to two of their number, John S. Gunner and Isaiah Mill-bum, in April, 1884. The actor for the owner seemed at first to have been John S. Gunner, and when he became incapacitated by ill health, one Richard T. Blanch “acted in reference to the sale of plots and the management of the cemetery ” for “eight or ten years up to the time of his death.” Blanch sold plots and collected money for plots; he made repairs. The cemetery was not incorporated and no written power seems to have been given by the owners to Blanch. In April, 1867, the defendant made; a contract with John S. Gunner for the purchase of plot 192, which includes the lands in question. “He told me what lot to take.”

The deed was to be ready in two or three weeks. The defendant began to bury his dead in the lot about three weeks after this agreement and now has a son and a daughter and four or five grandchildren buried in the lot. In November, 1869, the defendant paid Blanch as part payment for the lot, $30.47. Blanch said he could not give a deed, but could give a receipt. The defendant wanted his deed and was ready and offered to pay the whole of the purchase-money. Blanch told the defendant, “It must be fixed differently very shortly.” Hothing further was ever done; no deed has ever been tendered and in June, 1887, the defendant tendered the present owner of the land the balance and asked for the deed. The plaintiff has no claim to the possession of the land involved in this action to the exclusion of the defendant’s rights of burial there. Ho title to the land itself will pass to the defendant by deed so called. The owner will still remain owner and the defendant will have a right, exclusive of all others, to bury upon it. Buffalo City Cemetery v. City of Buffalo, 46 N. Y., 503.

Ho formal deed was necessary as if to convey the fee; exclusive permission to bury in it was all that was needed. If a deed was necessary, power was given by paroi and burials were made in the lot with the knowledge and assent of the joint-owners. Monuments were put up and the lot has been constantly beautified by the defendant since the purchase of the right by him.

Equity will enforce such a contract even for the sale of land where it has been partly performed.

But only permission to bury in the plot was needed and that was fully proven.

The exception should be overruled and judgment rendered for the defendant upon the verdict, with costs.

Pratt, J., concurs.  