
    Matter of the Application of Abram Bauer for the Removal of the Body of Lazarus Bauer, Deceased.
    (Supreme Court, Kings Special Term,
    September, 1901.)
    Cemetery — Removal of body from one lot to another — It. 1898, ch. 559, § 51; amd. 1900, ch. 715.
    An application to the court under the Membership Corporations Law for its consent to the removal of a body to a family plot from a general plot owned in a cemetery by a lodge, necessary statutory consents having been refused, must be decided upon equitable grounds and upon the assumption that the person having charge of the body holds it as a sacred trust for all who have an interest in it.
    Where it appeared that such person did not feel himself bound by the obligations of a certain religious belief and where he seemed to be acting in obedience to a sentiment that a husband and a wife and their children should rest together, the court overruled objections to removal based on the contentions that the rules of the lodge forbid disinterment, and that such an act was contrary to the rules of a ^religious society to which the deceased had belonged.
    Application for consent of the court to the removal of a dead body from a general burying plot, in “ Maimonides ” Cemetery, owned by Aryeh Lodge, to a family plot in the same cemetery.
    L. 1900, ch. 715, amending L. 1895, ch. 559, § 51, the Membership Corporations Law.
    David B. Cahn, for motion.
    Roeder & Bernard (Joseph Fettretch, of counsel), opposed.
   Stoves, 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, 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. 368, 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 noue in the remains themselves.” Again, “ The person having charge of the remains' holds 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 t£em 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 bound 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 hrm, namely, that the remains of a husband and wife or father 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 duties of the trustee.

The motion is granted.

Motion granted.  