
    In the Matter of the Petition of Barrett P. Smith and May S. Gilpatric, Petitioners, against The Green-Wood Cemetery, Respondent.
    Supreme Court, Special Term, Kings County,
    January 15, 1940.
    
      
      Edmund W. Van Voorhis, for the petitioners.
    
      Anderson, Gasser, Ferris & Anderson [J. Wesley Seward of counsel], for the respondent.
   Dodd, J.

It appears that in 1861 George M. Totten purchased a burying plot in Green-Wood Cemetery and four interments were made in that plot, the last being in 1898, the bodies being those of himself, his wife (the grandparents of the petitioners herein) and those of a daughter and two sons. The plot was inclosed by an iron railing set in stone posts and appropriate headstones were placed upon the graves. One of Mr. Totten’s sons was killed in the Civil war, and, although his body was not buried in this plot, a stone in his memory was placed there. The petitioners applied to the cemetery for permission to disinter the remains buried in this plot, and, upon the refusal of their request, this proceeding was commenced. There can be no question about the intention of the purchaser of the plot to procure for himself and the members of his family a final resting place, and I can see no substantial reason why his wishes should not be respected. Moreover, these bodies have been in the plot for many years, one of them for more than seventy-nine years, and it is quite probable that nothing remains of that body and that it has become a part of the soil in which it was interred. The purchaser of the plot took it subject to the rules of the cemetery printed on the face of the deed, one of which provided that no disinterment should be allowed without permission being obtained from the cemetery authorities, and I am of opinion that this contract prevents the removal of the bodies sought by the petitioners. Application denied.  