
    Frank W. Angel, Appellant, v. The Methodist Protestant Church of Williamsburgh, Kings County, and Others, Respondents.
    
      Specific performance—what delay in enforcing a contract will defeat it — a conveyance of a cemetery is subject to the easement therein of the lot owners.
    
    In an action for the specific performance of a contract made April 3, 1893, by which a rural cemetery association agreed to sell its cemetery to the plaintiff’s assignor, and to procure legislative authority to enable it to remove the bodies and consummate the sale, it appeared that by chapter 352 of the Laws of 1893 • the cemetery association was “ authorized to remove or cause to be removed from said land the remains of all bodies buried and now remaining therein ” to other lands to be procured by it, and to sell the cemetery at public or private sale, and to apply the proceeds of the sale toward the payment of the expenses of removing the bodies and procuring a suitable place'to which the removal might be made.
    It also appeared that, in a litigation terminating in 1896, the law was adjudged to be valid, and that, while some negotiations were entered into between the plaintiff and the cemetery association with a view to carrying out the original contract as well as to making a new contract, the plaintiff made no attempt to assert his rights under the contract;, and that on November 27, 1897, the cemetery association conveyed the cemetery to George W. Sloane, who, under the contract of sale, agreed to remove the bodies .from the new cemetery-to a plot in another cemetery, and afterwards performed such work at an expense of $39,500; that on the same day the cemetery was conveyed to Sloane the latter conveyed it to one Batterman for §90,000, §10,000 of which was paid down to the cemetery association. So far as appeared, Sloane had no knowledge of the contract with the plaintiff’s.assignor.
    
      Reld, that the plaintiff was not entitled to the specific performance of the contract;
    That it was within the discretion of the Legislature to permit the cemetery association to sell the land with the bodies still in the. ground; provision having been made for their proper removal to another place of interment; and that the fact that the conveyances to Sloane and Batterman were made before such removal did not invalidate them;
    That whether the provision of the. statute directing the removal of the bodies was mandatory or permissive would not affect the result, as the statute contemplated that the sale of the cemetery and the removal of the bodies would be practically contemporaneous, and that if the deed were executed prior to the removal of the bodies the vendee’s title would be subject to the easement of the lot owners, which could only be extinguished by the removal of the bodies.
    Appeal by the plaintiff, Frank W. Angel, from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 7th day of March, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term, as provides as follows :
    “ 1. That as to the defendant. The Methodist Protestant Church of Williamsburgh, Kings county; the complaint be and it hereby is dismissed upon the merits ;
    “ 2. That as to the defendant George W. Sloane the complaint be and it hereby is dismissed upon the merits; and that the said George W- Sloane recover of the plaintiff, Frank W. Angel, the sum of Ninety-six and 57-100 dollars ($96.57-100), his costs as taxed, and that execution issue therefor ;
    “ 3.' That as to each of the defendants Henry Batterman and Sarah E. Batterman the complaint be and it hereby is dismissed upon the merits; and that the said defendants Henry Batterman and Sarah E. Batterman, his wife, recover .of the plaintiff, Frank W. Angel, the sum of Ninety-nine and 23-100 dollars ($99.23-100) their costs as taxed, and that execution issue therefor ; - ■
    “ That the plaintiff, Frank W. Angel, recover of the defendant The Methodist Protestant Church of Williamsburgh, Kings county, the sum of Two thousand dollars ($2,000) and that execution issue therefor.”
    The action was brought for the specific performance <$f a contract.
    
      John J. Allen, for the appellant.
    
      Charles F. Brown, for the respondent George W. Sloane.
    
      David B. Ogden, for the respondents Henry Batterman and the Lawyers’ Title Insurance Company.
   Woodward, J.:

This case was properly disposed of by this court at Special Term by a judgment which allowed to the plaintiff .the amount he is conceded to have paid at the time of entering into the contract of purchase which he now seeks to have specifically performed. The only question now before this court is upon the dismissal of the complaint, and the refusal to grant the judgment demanded.

On the 3d day of April, 1893, plaintiff’s assignor entered into a written contract with the Methodist Protestant Church of Williainsburgh for the purchase of certain land known as Union Cemetery. At the time of entering into this contract the church had no authority to sell the property, which was held by the church as a “ rural cemetery association ” under the provisions of chapter 196 of the Laws of 1853, as subsequently amended; but it was. agreed in the contract that the church should undertake to procure the necessary legislation to enable it to remove the bodies, etc., and that upon the work being accomplished the church should deliver a deed to the purchaser for and in consideration of the sum of $75,000, payments upon which were to be made from time to time in various ways not necessary here to detail. Pursuant to this agreement, chapter 352 of the Laws of 1893 was enacted, and it was provided that further interments should not be made in Union Cemetery, and that “ The Methodist Protestant Church of the village of Williamsburgh is hereby authorized to remove or cause to be removed from said land, the remains of all bodies buried and now remaining therein, and all monuments, headstones and lot or plot fences thereon, to some cemetery or other suitable place or places, and to procure, by purchase or otherwise, other land to be used for cemetery purposes ; and to sell, at public or private sale, the said land now belonging to said Methodist Protestant Church of the village of Williamsburgh, and by good and sufficient (leed or deeds to convey the same to the purchaser or purchasers thereof, and to apply so much of the proceeds of such sales as may be required for such purpose toward payment of the expenses of said removal and the procuring of a suitable place or places to which such removal may be made as herein provided for.” Soon after the adoption of this statutory provision a litigation was instituted to test the validity of the law, the court sustaining the power of the Legislature in the premises. (Went v. Methodist Protestant Church, 80 Hun, 266; affd., 150 N. Y. 577.)

During and subsequent to the determination of the litigation, the plaintiff does not appear to have done anything to assert, his rights, although given the power to act under various clauses of the contract ; and while we do not think it can be fairly urged that it came to an end under the terms of. the agreement, in 1894, we are persuaded that the plaintiff is not in a position to warrant a court of equity in interfering as between him and a subsequent purchaser in good faith who is now in possession of the property. The litigation terminated in 1896, and' while there appear to have been some negotiations between the plaintiff and the church looking to the carrying out of the original contract, as well as to the making of a new contract, the plaintiff took no steps to assert his rights under the contract, as he was authorized by the agreement to do, and on the 27th day of November, 1897, the church con, veyed the land to the defendant George W. Sloane. By the terms of the contract between Sloane and the church, six acres of land in Cedar Grove Cemetery were conveyed to the church for a new burial ground'at the price of $30,000, none of which has been paid, and Sloane agreed to remove the bodies from Union Cemetery to Cedar Grove Cemetery, which work he has performed at an expense of $39,500. On the same day the property was conveyed by Sloane to the defendant Battennan for a consideration of $90,000, $10,000 of which was' paid down and immediately transferred to the church, while $80,000 of the amount was deposited with the Manufacturers’ Trust Company of Brooklyn, to be paid to Sloane when the provisions of the contracts involved were carried out.

The plaintiff urges that, as the bodies had not been removed from the Union Cemetery at the time of these transfers, and as the ■sale contemplated conveyance of a fee simple, the instruments were incapable of conferring.title dming the time that the bodies remained; and this action, being brought before the removal of the bodies, there was no purchase in good faith for a bona fide consideration without notice of the rights of the plaintiff. We are of opinion, however, that it. was within the discretion of the. Legislature to permit the church to sell the land with the bodies still in the ground, provision being made for their proper removal to another place of interment, and that the Legislature did authorize such a transfer if that was a reasonable and proper method of carrying out the provisions of the law. The contention of the plaintiff that the statute ■ being merely permissive, did not impose the duty on the church of performing its trust, and that it could not cut itself free from the title to the property without having discharged the trust, is of doubtful application to the facts of this case. In Baltimore v. Marriott (9 Md. 174; cited' in 3 Ann. ■& Eng. Ency. of Law [2d ed.], 517) it Was held that it is a well-settled principle that when a statute confers power and authority upon a corporation, to be exercised for the public good, the words “power and authority ” in such case may be construed “ duty and obligation; ” and in Gilmore v. City of Utica (121 N. Y. 561, 568) the court says : “ Generally, permissive words used in statutes, conferring power and authority upon public officers or bodies will be held to be mandatory where the act authorized to be done concerns the public interest or the rights of individuals.” In the case at bar the Legislature had forbidden further interments in this cemetery, located in a populous community. It must be presumed that the Legislature, in taking this step, acted for the public good; and when it went one step further and declared that “The Methodist Protestant Church of the village of Williamsburgh is hereby authorized to remove or cause to be removed from said land the remains of all bodies buried and now remaining therein,” the language is susceptible of an interpretation commanding that these bodies- shall be removed, and the statute points out a method of meeting the expenditures necessary for carrying out this work. To do this the church is authorized to “ sell,- at public or private sale, the said land now belonging to said Methodist Protestant Church of the village of Williamsburgh, and by good and sufficient deed or deeds to convey the same to the purchaser or purchasers thereof, and to apply so much of the proceeds of such sale as may be required for such purpose, toward payment of the expenses of. said removal .and the procuring of a suitable . place,” etc.; and it is further provided that this act shall take effect immediately.

It is not necessary, however, that we hold the statute to be mandatory, compelling a removal of the bodies; for treating its language as permissive merefy, the result is the same. The statute clearly contemplates the sale and removal as practically contemporaneous acts, though either might precede the other. It is quite within the terms of the act to assume that a sale of the land might be necessary to enable the corporation to procure another burial lot and pay the cost of the removal of the bodies. Under such circumstances the deed, if made prior to removal, would be subject to the easement which the lot owners held, which would only-he extinguished upon a removal of the bodies; but where they are removed, the deed takes effect in accordance with its terms. There is nothing repugnant to morals or religion in this transaction. The rights of .the dead áre protected, and' the tenure of the lot owners remains unimpaired; the right to make use of the land is restrained until all easements are extinguished, hut this does not prevent the possessing of title subject thereto.

The purposes of the law have been fully carried out under the provisions of the contract entered into between the defendants Sloane and the church, at a large expenditure on. the part of the former; the property has been reduced to possession by Batterman, and the equities are so preponderating in his favor that it would ill become this court to attempt to divest him of his title, especially as there is no evidence which would warrant us in concluding that defendant Sloane purchased the property with any notice of plaintiff’s equity in the premises.

The judgment appealed from should be affirmed, with costs.

All concurred, except Hibsohberg, J., taking no part..

Judgment affirmed, with costs.  