
    Sam Beller et al., Appellants, v. City of New York, Respondent.
    First Department,
    November 2, 1945.
    
      
      Solomon Abelow for appellants.
    
      Fred Jacobs of counsel (James Hall Prothero with him on the brief; Ignatius M. Wilkinson, Corporation Counsel), for respondent.
   Per Curiam.

The law is well settled that a cause of action will lie for an unauthorized autopsy. (Grawunder v. Beth Israel Hospital Assn., 242 App. Div. 56, affd. 266 N. Y. 605; Darcy v. Presbyterian Hospital, 202 N. Y. 259.) In the absence of a testamentary disposition, the right to the possession of the. body of one who has died belongs to the surviving husband or wife or next of kin for the purpose of preservation and burial. Anyone infringing upon such right by mutilating the remains without the consent of the person or persons entitled to the posséssion thereof may be required to pay damages for the injury to the feelings and for mental suffering resulting from such unlawful act, even though no pecuniary damage is alleged or proved. (Darcy v. Presbyterian Hospital, supra, 262.)

Upon the record in this case we think that the trial court erred in directing a verdict for defendant. Whether there was an unnecessary mutilation of the remains of the deceased by defendant here, and if so, whether such act was committed without the authorization of the deceased’s next of kin, and what damages, if any, plaintiffs sustained, are issues of fact which should have been left to the jury for determination.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Martin, P. J., Townley, Glennon, Dore and Cohn, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event.  