
    Howard Cohen and Others, Respondents, v. Congregation Shearith Israel in the City of New York, Appellant.
    First Department,
    June 15, 1906.
    Cemetery — when equity will enforce right to disinter corpse — when interment conditional — equity not governed by rules of religious bodies.
    When a corpse is interred in a cemetery owned by a religious body with an intent to remove it, equity will enforce such right of removal.
    Such intent is established by proof that the deceased had expressed a wish that the family be buried together in one plot, the unanimous feeling of all the children to the same effect, and the purchase of-a new plot for that purpose.
    In the absence of a regulation adopted by a religious body as to who shall determine the right to remove a corpse hurled in its cemetery, the question will be determined by a court of equity upon equitable grounds, and not by the law of a religious body.
    Ecclesiastical law is not a part of the law of this State, or binding on a court of equity, which acts upon equitable principles irrespective of ecclesiastical or any other law.
    
      It seems, that equity would enforce an agreement not to disinter a corpse, or the rule of a religious body against disinterment when a member of the body has subscribed to the rule, but membership in such religious body is not of itself a subscription to such rule.
    Appeal by tlie defendant, the Congregation Shearith Israel in the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 18th day of July, 1905, upon the report of a referee.
    
      Edgar J. Nathan, for the appellant.
    
      William Victor Goldberg and Victor E. Whitlock, for the respondents.
   McLaughlin, J.:

The plaintiffs are the eight children of Daniel S. and Adela Cohen, deceased, and the defendant is a congregation of the Hebrew faith,i incorporated in 1805 under the Religious Incorporation Act of 1781. (See Laws of 1781, chap. 18.) Adela Cohen died on the 28th of February, 1890, and on the application of her husband Daniel S., permission was granted to, and she was buried in the row in defendant’s cemetery at Cypress Ilills, for which a nominal charge was made, and the next space in the row reserved for the grave of Daniel, which space remained vacant until after his death, April 3, 1901.

Adela Cohen, during her life, expressed to Daniel and their children her regret that they did not possess a family plot in which they could all he buried, and subsequent to her death Daniel expressed a wish that the whole family, including Adela, should be buried together, and he requested that his children obtain a plot, if possible, for that purpose. Two days before his death, and while he was very ill, his son Howard purchased a lot in Mount Heboh Cemetery, a short distance from the defendant’s cemetery, and the plaintiff caused his remains to be interred in that plot. Ho other interments have there been made, but it- was purchased by Howard for the purpose of being used as a family burying plot — his intent being to carry out the wish of his father in that respect. About the time this plot was purchased, and before the death of Daniel, application was made to the defendant for leave to disinter the remains of Adela for the purpose of reinterring them in this plot, but it was refused upon the ground that such disinterment was forbidden by the Jewish law. Subsequently this action was brought to procure a judgment establishing the right of the plaintiffs to disinter the remains of their mother for the purpose of reinterring them in the family plot in Mount Heboh Cemetery and enjoining the defendant from interfering with such disinterment. The issues raised by the pleadings were sent to a referee to hear and determine, and upon his report the plaintiffs had a judgment, from which defendant appeals.

Much evidence was given at the trial bearing upon the question as to whether it was permissible to disinter the remains under the Jewish law—that of the plaintiffs tending to show it was, and that of the defendant that it was not. The referee reached the conclusion that the contention of the plaintiffs was correct, and it is difficult to see how he could have done otherwise under his findings. In an elaborate and interesting opinion he fully sets forth-the reasons which led him to conclude, as he did, and which we would adopt were it not for the fact that subjects, are discussed which do not seem to us to be involved in, or neeessary to a disposition of the question presented. Having found, as a fact, that an expressed intent that a body interred may, perhaps, be removed, entitled the proper parties thereafter to remove it, under the practice adopted by the defendant corporation, and that Daniel S., at the time the remains of Adela were interred, had this intent, was all that was necessary to entitle the plaintiffs, when applying to a court of equity, to the relief asked. Especially is this so when such finding is read in connection with the other facts developed at the trial, and there is no finding that he did not express this intent to the proper authorities of the defendant or the person having charge of the cemetery. The finding that he had this intent, and that Adela had, previous to her death, expressed a wish that all of the family should be buried in one plot, and the unanimous feeling of all the children to the same effect, coupled with the purchase of another lot and the request made of the defendant prior to the death of Daniel, we think would have justified a finding that the interment of Adela was conditional, and, therefore, the disinterment was not contrary to the Jewish law.

The cemetery of the defendant is maintained pursuant to the authority of the laws of this State, and in the absence of a regulation adopted by the defendant as to who shall determine the right of removal, such right must be determined, when presented to a court of equity, upon equitable grounds and not by the Jewish law. Ecclesiastical law is not a part of the law of this State, nor are equitable rights to be determined by it; on the contrary, when a court of equity exercises its powers, it does so only upon equitable principles, irrespective of ecclesiastical or any other law. As was said in Matter of Donn (14 N. Y. Supp. 189): “When an ecclesiastical body assumes jurisdiction and control over a corpse, its acts are of a temporal and juridical character and not in any sense spiritual; and, under our laws and institutions, when it attempts so to do it is acting outside of its proper jurisdiction and domain.”

It may be that if an agreement were made, with a cemetery association that remains there interred could not thereafter be disinterred, a court of equity would enforce the agreement; or if a religious corporation had a rule, to which a member subscribed, that if his remains were interred in a cemetery controlled by it they could not thereafter be removed, that a court of equity would refuse to exercise its powers to. decree removal. But that is not this case. There was no agreement that the remains of Adeia would not, after interment, be disinterred. Nor had she subscribed to any rule of the defendant which prevented such removal, unless that fact be inferred from her membership alone, which is insufficient.

That the court liad the power, under the findings of the referee and the facts developed by the evidence, to decree a removal is sustained by numerous authorities. (Matter of Beekman Street, 4 Bradf. 503 ; Matter of Donn, supra; Matter of Bauer, 68 App. Div. 212; Snyder v. Snyder, 60 How. Pr. 368 ; Weld v. Walker, 130 Mass. 422.)

I am of the opinion that the judgment is right and should be . affirmed, with costs.

O’Brien, P. J., Ingraham, Clarice and Houghton, JJ., concurred.

Judgment affirmed, with costs. Order filed.  