
    In the Matter of the Application of Abram Bauer, Respondent, for the Removal of the Body of Lazarus Bauer, Deceased; Aryeh Lodge, No. 6, of the Independent Order, Free Sons of Israel, Appellant.
    
      JRemoval of a body from a cemetery lot-.— when the consent of the Supreme Court mil be granted—by-law of the cemetery forbidding it — what corporation comes within section 40 of the Membership Corporations. Law — construction of section 51 of that act—by obtaining the privilege of interment and, erecting a gravestone, the children are not estopped to remove the body.
    
    JJpon an application, under subdivision 4 oí section 51 of the Membership Corporations Law (Laws of 1895, chap. 559, as amd. by Laws of 1900, chap. 750), for the consent of the Supreme Court to the removal of the dead body of Lazarus Bauer from the Maimonides Benevolent Society Cemetery, it appeared that the lot in which Lazarus Bauer had been interred had been conveyed by the cemetery society to the Aryeh Widow and Orphan Association and that the latter had authorized the Aryeh Lodge to permit the bodies of members of the lodge and their relatives to he buried there. Lazarus Bauer was not a member of the lodge and his interment in the plot was upon the application of his son-in-law, who was a member. After his widow’s death it was discovered that there was not sufficient room in the lot to enable her to be interred at her husband’s side.
    The application was made on behalf of all of the children of Lazarus Bauer, and was contested only by the Aryeh Lodge, the by-laws of which provided; “But in no case shall any one ever receive permission to remove a corpse for reinterment in another burial ground.”
    
      Held, that the application should be granted;
    That the evidence .indicated that the Maimonides Benevolent Society was created for cemetery purposes under a statute repealed»by the Membership Corporations Law, and that it was brought within the operation of that law by section 40 thereof;
    That section 51 of the Membership Corporations- Law- applied to a case where the lot was no longer owned by the cemetery corporation;
    That by authorizing her son-in-law to obtain the grave privilege from the lodge, the widow did not authorize him to enter into an agreement in her behalf which would deprive her or her children of the right in the future to remove her husband’s body in case the circumstances should render, such a removal proper;
    That the fact that the widow had caused a suitable headstone to be erected upon her husband’s grave, after she had been informed that there was no place for her own grave beside that of her husband, and. that she could not he permitted to remove his body to another plot, did not estop her children from insisting upon the right to remove the body.
    
      Appeal by the Ary eh Lodge, No. 6, of the Independent Order, Free Sons of Israel, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the. clerk of the county of Kings on the 7th day of October, 1901, consenting to the removal of the remains of Lazarus Bauer, deceased,, from their place of interment in the Maimonides Benevolent Society Cemetery to a family plot in said cemetery.
    
      Joseph Fettretch, for the appellant.
    
      David, B. Gahn, for the respondent.
   Willard Bartlett, J,:

This was an application under subdivision 4 of section 51 of the-Membership Corporations Law for the consent of the Supreme Court to the removal of the dead body of Lazarus Bauer from the Maimonides Benevolent Society Cemetery. (Laws of 1895, chap. 559, as amd. by Laws of 1900, chap. 715.)

The portion of that subdivision material to be considered here is as follows: “ A dead body lawfully buried in a lot in such a cemetery may be removed therefrom, with the consent of the corporation, and a written consent of the owners of such lot, and of the surviving wife, husband, children, if of full age, and parents of the deceased. If the consent of any such person can not be obtained,, or if the corporation refuses its consent, the consent of the County-Court of the county or the Supreme Court, at a Special Term, held in the district where the cemetery is situated, shall be sufficient.. Notice of the application for the consent of- the court must be given, at least eight days prior thereto, personally, or, at least sixteen days prior thereto, by mail, to the corporation or to the person not consenting, and to every other person on whom service of notice may be required by the court.”

It appears that the remains of Lazarus Bauer had been buried in a part of the cemetery which is described as being controlled by Aryeh Lodge, No. 6, Independent Order, Free Sons of Israel. The plot or space in which Lazarus Bauer was buried is a portion of certain ground, the control of which has been acquired by the lodge for the purpose of interring the bodies of members of the lodge and their relatives. Hannah Bauer, the widow of Lazarus, desired to be buried at the side of her husband. After her death one of her sons, the petitioner, finding that there was not room in the lot of the Aryeh Lodge to inter his mother’s remains near those of his father, purchased another plot in the same cemetery and requested the lodge to consent that his father’s body be disinterred in order that it might be buried next to the body of his mother in the newly-purchased family lot. This consent the lodge refused to give, on the ground that to grant such permission would be contrary to one of the lodge’s by-laws, which provides that in no case shall any one ever receive permission to remove a corpse for reinterment in any other burial ground.

The other three children of Lazarus Bauer united with the petitioner in his wish to have the body of their father removed, but, as the acquiescence of the lodge could not be obtained, he was forced to make the application to the court, which has resulted in the order-appealed from.

It is to be observed that-the application was opposed-only by the Aryeh Lodge, and not by the Maimonides Benevolent Society, the owner of the cemetery. The only objection came from the Aryeh Lodge, and that organization is the sole appellant. Its status in this proceeding is not as the owner of the lot in which the body of Lazarus Bauer was originally interred,. but as the representative of the owner. The lot appears to have been conveyed by the Maimonides Benevolent Society, not tó the Aryeh Lodge, but to the Aryeh -Widow and Orphan Association, which in turn has authorized the lodge to permit bodies to be buried there and to receive certain fees and emoluments therefor.

■ The interment of the body of Lazarus Bauer in this lot was upon the application of his son-in-law, who was a member of the Aryeh Lodge, and it is contended in behalf of the appellant that although Lazarus Baiter himself was not a member, his son-in-law’s membership made the burial subject to the by-laws of the lodge, which provides as follows: But in no case shall anyone ever receive permission to remove a corpse for reinterment in another burial ground.”

It is sought to spell out a contract between the widow and representatives of Lazarus Bauer, on the one hand, and the Aryeh Lodge on the other, whereby the former agreed that the body should remain in the Aryeh Lodge for all time. The son-in-law paid to the financial secretary of the lodge twenty-live dollars to be held as security for the erection of a suitable headstone at the grave. The widow caused this required headstone to be erected after she had been informed that there was no place for her own grave beside that of her husband, and that she could not be permitted to remove his body to another plot. The deposit of twenty-five dollars was thereupon repaid to the son-in-law. From these facts we are asked to infer that the widow entered into a contract with the lodge, which is effective to prohibit the removal of her husband’s remains from one lot to another in the same cemetery, and that the children who now desire such removal, having tacitly recognized the agreement and acquiesced in its fulfillment, are estopped from denying its force and validity.

■ I am unable to agree with the learned counsel foi*the appellant in his view that the evidence establishes a contract whereby the widow agreed that the body of her deceased husband should never be disinterred. Assuming that the by-law prohibiting disinterment was binding upon her son-in-law (with reference to the burial of a body the disposition of which he could legally control) because he was a member of Aryeh Lodge, it did not become binding upon the widow merely because he acted as a friend in her behalf in securing the grave in which her husband was buried. It is manifest that she had no knowledge or information at that time of the existence of any such by-law ; nor does it seem to me that she can properly be held chargeable with the knowledge possessed by her son-in-law arising out of his membership in the lodge. By making him her agent to obtain the grave privilege she did not authorize him to enter into an agreement in her behalf which should deprive her or her children of the right now sought to be exercised under the Membership Corporations Law of procuring at some future time a removal of the body through the assistance of the Supreme Court in case circumstances should render such removal proper. “There is no general rule compelling persons dealing with a corporation, at their peril, to take notice of its by-laws.” (2 Morawetz Priv. Corp. [2d ed.] § 593.) The subsequent erection of a headstone with an inscription satisfactory to the lodge was neither a contractual act on the part of the widow, nor a waiver of any statutory light, and constitutes no estoppel against the petitioner in this proceeding.

It is further contended in behalf of the appellant that the third, article of the Membership Corporations Law, relating to cemetery corporations, applies .only to cemeteries organized under .that act., and can have no application to a case where the land, though within . cemetery limits, does not belong to the cemetery, but to another and. a distinct’corporation, association or individual. Section 40 of the-. statute- declares that the- term cemetery corporation ” as used in article 3 means any corporation heretofore created for cemetery-purposes under a law repealed by this chapter or hereafter created under this article, but.the general term cemetery corporation' does- ■ not include a-family cemetery- corporation or a private cemetery. corporation. This article does not apply to cemeteries belonging to-. religious or municipal corporations.” (Laws of. 1895, chap.. 559.)-The cemetery in question is owned by the .Maimonides Benevolent. Society, which is not shown- to belong to any of the classes excepted from the operation of the statute and which is stated in the affidavit, read in opposition to the motion to have conveyed the lot in which. Lazarus-Bauer was subsequently buried to the Aryeh Widow and. Orphan Association on the 8th day of January, 1883.. This conveyance in 1883, twelve years before the enactment of the- Membership Corporations. Law, indicates that the Maimonides. Benevolent, Society must have been created under one of the statutes repealed by that law, and, hence, that it is embraced within its purview and scope..

The point that.the act does not apply where the lot, is .no longer, owned by the cemetery organization itself is clearly untenable, for section 51, as amended, distinguishes between ■ the corporation and. the owners of the lot, requiring the consent of both to the removal of a dead body, , or in lieu thereof, the consent of the. County Court, or Supreme Court.

■Upon the merits of the case I think it unnecessary to add anything to the reasons given by Mr. Justice Stover for granting the-application, and I should have been quite content to affirm upon that opinion if it had not seemed due to counsel to notice some-points which do not appear to have been as fully discussed below as they were upon the argument of the appeal.

I think the order under review should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
       The following is the opinion of Stover, J., delivered at Special Term-. Stover, J.:
      This is an application for the consent of the court to the removal of a dead body-from a general burying plot in "a portion of “Maimonides” Cemetery owned by Aryeh Lodge, to a family plot in the same cemetery.
      
        The application is made under chapter 715 of the Laws of 1900 (Amdg. Laws, of 1895, chap. 559, § 51), which requires the consent of the court in cases where the consent of certain parties cannot be had. This application is opposed upon the ground that the rules of the society owning the plot forbid the disinterment of a body, and that the removal of a dead body is contrary to the rules of a. religious society to which the deceased belonged.
      I think the doctrine laid down in Snyder v. Snyder (60 How. Pr. 868) is the correct one, under the laws of this State, namely: “ The question as to the right to select the place of burial of deceased must be solved upon equitable grounds. While there is property in the burial lot, in the monuments, in the ornaments and decorations of the deceased or his grave, there is none in the remains themselves.” Again, “ the person having charge of the remains held them as a sacred trust for the benefit of all who may from family ties or friendship have an interest in them ; in case of a contention, the court should assume an equitable jurisdiction over the subject, somewhat in analogy to the care and custody of infants, and make such a disposition as should seem to be best and right under all the circumstances.”
      
        While this is a Special Term decision, the questions in issue are so tersely stated, and the authorities so exhaustively cited, that I can add nothing by a further discussion of the questions.
      In the case under consideration, while it may, be said that the question of the religious belief, and the rules governing the society ought to have due consideration, and while I have given to them the consideration which, I think they are entitled to, yet if the party who, under the cases, holds the body in trust, does not feel himself hound by the obligations of -the religious belief, and where his relation is such as to justify .the court in the - conclusion, that he- is actuated solely by a desire to properly discharge the trust and in obedience to a sentiment. Which ought properly to control him, namely, that the remains of- a husband or wife and mother should find their final resting place side by side, the court ought-not to refuse its consent, but ought rather to aid, so -far as possible, the discharge of the duty of the trustee. -,
      The motion is granted.
     