
    Charles T. Mitchell et al., App’lts, v. Mary A. Thorne, Resp’t.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Injunction — Desecration oe burial lot — Pleading.
    In an action to restrain defendant from desecrating a burial lot reserved in a deed f: om plaintiffs’ ancestor, and for damages, the complaint need not aver that such ancestor died intestate.
    
      2. Same — Parties.
    Nor is it necessary that the complaint show that all persons having an interest therein are made parties to the action, as the plaintiffs can only recover the damages they have themselves sustained.
    Appeal from, order sustaining a demurrer to the complaint
    The action is brought by the plaintiffs to establish their alleged right to a family burial plot, and a right of way thereto, and to restrain defendant from interfering in any way with plaintiffs’ use-of the plot or their right of free ingress and egress thereto and therefrom, and to recover damages.
    The facts stated in the complaint sufficiently appear in the opinion. Defendant demurred on the grounds:
    (1.) That the complaint does not state facts sufficient to constitute a cause of action. (2.) That upon the face of the complaint it appears that there is a defect of parties plaintiff, who are sufficiently described in the demurrer. (3.) That upon the face of the complaint there is a defect of parties defendant.
    
      A. N. Weller, for app’lts; Parsons, Shepard & Ogden (John M. Perry, of counsel), for resp’t.
   The demurrer was sustained and the following opinion delivered :

Cullen, J.

While the lands held by certain cemetery associations and also burial lots therein are inalienable, I know of no general rule of law that makes all lands used for burial purposes incapable of disposition by sale or devise. The exception and reservation in the deed to defendant’s remote grantor was therefore subject to the same tenure as other real property, and the plaintiffs must show and allege title thereto as specifically as in an action of ejectment. The complaint fails to show title in the plaintiffs, because it does not aver that their father died intestate. I assume that the plaintiffs might maintain a suit in equity on showing title even to undivided interests in themselves. But the complaint seeks to recover damages. In such an action all the persons in interest must join. To sustain such an action, it is necessary that the plaintiffs should show that they have succeeded to the rights of all - the parties in whose favor the reservation was made.

Judgment for the defendant on the demurrer, with costs, with leave to plaintiffs to amend complaint on payment of costs.

Pratt, J.

The demurrer admits that plaintiff’s ancestor set apart a portion of his lands as a burial place, whereon many members of plaintiff’s family have been buried, and that upon conveyance of the lands to defendant’s predecessor in title said ancestor reserved to himself and his heirs forever the right of interment in the land set apart for that purpose, and also right of Way to the same.

That plaintiff’s ancestor is dead, and defendant is proceeding to level off the graves, tear down headstones, destroy the enclosing fence, and threatens to continue said acts. The complaint does not aver that plaintiff’s ancestor died intestate, and defendants argue that in the absence of such allegation it does not appear that plaintiff has any right of property in the cemetery, and that in the absence of such right this action cannot be maintained.

This view prevailed at special term. But we are of opinion that the right of a descendant to appeal to a court of equity to prevent a desecration of his ancestor’s grave does not depend upon the intestacy of the ancestor.

The religious sensibility of the living in respect to the repose ■of the dead and the protection that will be extended to it by a court of chancery does not depend strictly upon statutes.

The wife has the first right to bury her husband, but that right does not exclude the right of his next of kin to take care that his place of burial once established shall be exempt from arbitrary interference., 10 R. I., 227; 42 Pa. St., 293.

An opinion was expressed below, that as the complaint prays damages, it was defective in not showing that all parties having the same" interest as plaintiffs are made parties to the suit.

We do not regard that omission as important. It will scarcely be contended that plaintiffs can recover for the damages sustained by persons not made parties to the suit. But such damages, if any, as plaintiffs have themselves sustained can properly be recovered and does not require the presence of other parties.

Judgment reversed, demurrer overruled, and judgment ordered for plaintiffs on’ demurrer, with leave to defendant to answer, on payment of costs of special and general term.

Barnard P. J., and Dykman, J., concur.  