
    William D. Tyndall, in his own Behalf, and all Other Certificate Holders of the Defendant Similarly Situated who will come in and Contribute to the Expense of this Suit, Plaintiff, and Clarence E. Muckler (Intervening Plaintiff), v. Pinelawn Cemetery, Defendant, and James P. Haney, May L. Aldrich, Mary E. Wood, John A. Hagerman, Catherine C. Schwalbe, as Executrix of the Will of William H. Schwalbe, Deceased, George S. Hagerman, David W. Boyd, James A. Williamson, Bessie Locke, Wray D. Hagerman, James Williamson, Martha H. Weaver, William Johnston, John C. DeGraw, Dollie Mapes, William de Anquinos, Malcolm B. Dutcher, James E. Smith (Intervening Defendants), and Richmond J. Reese (Intervening Defendant).
    (Supreme Court, New York Special Term,
    July, 1914.)
    Cemeteries — rights of certificate holders — motions and orders.
    Equity — actions in — interlocutory judgment — when rights of absent parties are known and ascertained — cemeteries.
    A representative action in equity is entirely under the control of the plaintiff until the entry of an interlocutory judgment giving opportunity for others to come in and make themselves parties.
    Where the interlocutory judgment in such an action prescribes a mode by which an opportunity to become parties was afforded, the judgment inures to the benefit of those given an opportunity to come in and become parties, and the final judgment entered in the action will be conclusive on them since they would be enjoined from prosecuting any other action in their own behalf.
    Where the rights of absent parties are known and ascertained by the proceedings in said action, provision may be properly made for them in the final judgment.
    Where the entire proceeds realized from cemetery property must be divided among or for the benefit of the certificate holders and the purchasers have the right to bury their dead in the cemetery ground and the directors of the corporation, though acting from the highest motives and in the wisest way to safeguard the interests of all whom they represent, have apparently taken a mistaken view in some matters as to the relative rights of the two., classes of persons they represent, a motion to confirm the referee’s report and to send the same back for further proceedings will be granted but the taking of testimony should not be permitted to extend beyond the limits of what is necessary to determine how said proceeds should be apportioned as between the two classes of persons indicated.
    • Motion for a reargument of the motion to confirm the referee’s report and to send back such report to the referee for further proceedings.
    Gilbert W. Minor, for defendant Pinelawn Cemetery, and motion.
    Gardner, Tyndall, Barton & Deyo (John M. Gardner, of counsel), for plaintiff, opposed.
   Giegerich, J.

It is urged by the defendant cemetery that the final judgment cannot do more than direct payment to the plaintiff and to such other certificate holders as have come in and been made parties, to the action of the sums respectively due to them, and the case of Atkins v. Trowbridge, reported in the Law Journal of July 9, 1914, is cited as authority for that proposition. That was an action at law to recover unliquidated damages for the breach of a contract. Like the present action it was a representative but not a derivative one. It was tried before a jury and a final judgment was. entered upon their verdict. There was no interlocutory judgment nor any other interlocutory proceedings by which other persons were given an opportunity to come in as parties or be foreclosed of their rights if they did not come in. The present action is quite different in these respects. It is a representative action in equity. It was entirely under the control of the plaintiff until an interlocutory judgment was entered giving an opportunity to others to come in and make themselves parties. By the interlocutory judgment a mode was prescribed by which such an opportunity was afforded, and that judgment inured to the benefit of all the certificate holders (Hirshfeld v. Fitzgerald, 157 N. Y. 166, and cases cited), and they will be concluded by the final judgment, and since they would be enjoined from prosecuting any other action on their own behalf (Hirshfeld v. Fitzgerald, supra), it is natural and proper that their rights should be provided for and protected by that judgment, if it can be done. If their claims were unliquidated or were otherwise dependent upon the particular facts underlying each individual claim it would be impossible in the nature of the case to make provision for them in the decree. But here the rights of one certificate holder are apparently precisely the same as the rights of all the others, and the extent of the relief to which they are entitled is dependent only upon the number of shares held by them respectively, and the referee’s report includes a list of the shareholders and of the number of shares held by each. Where the rights of the absent parties are known and ascertained by the proceedings in the action provision may properly be made for them in the final judgment, Hallett v, Hallett, 2 Paige, 15, 19, 20, In the present case it is only the prima facie rights of the certificate holders that have been ascertained or are ascertainable upon the record as it now stands. One of the purposes for which it is sought to have the case sent back to the referee for further testimony is that the defendant cemetery may be given an opportunity to show that such apparent rights of some of the certificate holders do .not in fact exist. The moving affidavit states that the defendant cemetery can show that ninety-seven per cent in number and amount of the certificate holders desired and consented and directed that the moneys in question be used as they were used. If it be the fact that some of the certificate holders did so consent to and direct the use of all or any part of the moneys in question, then their respective rights to interest will be wholly defeated or proportionately reduced, as the case may be. So, also, if the defendant cemetery can show that any part of such moneys was used to defray charges which should properly fall upon the half of the proceeds belonging to the certificate holders and not upon the half provided by the statute to be retained by the company for the maintenance of the cemetery, then, due effect should be given to that circumstance when the final judgment is entered. It appears to me that the interest of justice requires that the case be sent back to the referee for the taking of evidence on the two points referred to, and an order may be entered accordingly. The moving papers indicate that a broader scope is desired in the further proceedings before the referee than testimony on the two points above indicated, and especially that it is sought to show that the course taken by the directors of the cemetery was for the benefit of the property under their control and for the good of all having any interest in that property, including the certificate holders. There is no issue in the case, however, as to the good faith of the directors. In my mind, there is no question that they are honorable and capable men who have acted from the highest motives and in the wisest way to safeguard the interests of all whom they represent. There is no issue as to all that. The point is that they apparently took a mistaken view in some matters as to the relative rights of the two classes of persons they represent. The learned referee has analyzed the situation in his opinion and has pointed out with admirable clearness the two classes whose interests are involved in this litigation and whose interests are necessarily conflicting in some respects, because the entire proceeds realized from the cemetery property have to be divided between, or for the benefit of, these two classes, the certificate holders on the one hand, and on the other those who have purchased the right to bury their dead in the cemetery grounds. Whatever is paid out to the certificate holders cannot be reserved and used for the maintenance and improvement and embellishment of the cemetery grounds, and whatever is so reserved or used cannot be so paid out. If there was any question ns to the relative rights of the two classes, the trustees cannot fairly be blamed for giving the benefit of such doubt to the class least able to organize and protect its rights, and that is apparently Avhat they did. It does not follow, however, that the taking of testimony should be permitted to extend beyond the limits of what is necessary to determine how the proceeds should be apportioned as between the two classes above indicated. The expense of improving the cemetery was properly chargeable against the lot owners’ share of the proceeds, and if any part of such expense was, even though temporarily, taken out of the certificate holders’ share, that share is" entitled to interest for such use, and the fact that the improvement benefited the remaining and unsold portion of the property and so resulted in ultimate benefit to the certificate holders to be realized in the form of higher prices on the future sales of lots is immaterial. The benefit of improvements made with the lot owners ’ share of the proceeds of sale is something the certificate owners are entitled to anyway under the plan of such organizations provided in the statute. If any part of the certificate holders’ share is withheld and temporarily used for such improvements, there is no injustice to the lot owners, when payment finally comes to be made to the certificate holders, in requiring that interest be added. The certificate holders’ share has been bearing a burden belonging to the lot owners’ share and the latter, in addition to the benefit of such temporary exoneration from its burden, will also receive a further benefit in the form of its share of the increased value of the unsold lots resulting from such improvements. Motion disposed of as indicated.

Ordered accordingly.  