
    MITCHELL v. THORNE.
    N. Y. Supreme Court, Second Department, General Term;
    
      July, 1890.
    1. Burial plots; enjoining desecration.'] The right of a descendant to appeal to a court of equity to prevent a desecration of his ancestor’s grave, does not depend upon the intestacy of such ancestor and plaintiff’s consequent succession to the title ; and a complaint in an action for such relief need not allege such intestacy.
    
    8. Parties; action for damages for interference with family burial plot.] In an action to enjoin interference with a family burial plot, and the right of access thereto, and for damages for interference therewith, the fact that the complaint demands such damages does not make every member of the family possessing similar rights to plaintiff, a necessary party to the action, as the plaintiffs can only recover such damages as they have themselves sustained.
    3. Form of a sufficient complaint in such action.
    This action was brought by Charles T, Mitchell and others against Mary A. Thorne.
    The complaint alleged as follows :
    1st. That John T. Mitchell, the father of plaintiffs, together with his brothers and sisters, formerly owned as tenants in common, a certain farm, situated in Great Neck, North Hempstead, Queens County, State of New York, [description] containing two hundred acres of land, more or less.
    2nd. That the ancestors of plaintiff planned, laid out and established in one end of said farm, in front of and at some distance from the dwelling-house thereon, a family cemetery or burial ground, for the interment or burial of the family dead. And many of plaintiffs’ ancestors and relatives, both in the direct and collateral line, were and have been for a long time prior to the times hereinafter mentioned, interred therein, with suitable monuments and headstones, marking the exact spot where the remains of each one lay. That there was also erected therein a family vault. And the said grounds and premises so planned and laid out with a family cemetery or burial ground were surrounded by a fence distinctly marking it off from the rest of the premises as a family cemetery.
    3rd. That plaintiffs’ father and his co-tenants in common (said brothers and sisters), in and about the year 188 , granted and conveyed the above described farm lands and premises to one R V. W. Thorne, but in said deed or grant they, the grantors, reserved to themselves and their heirs the said family cemetery or burial plot, in the follqw-. ing language, viz.: “ Excepting and reserving the right of interment in the ground laid off for that purpose in the land hereby conveyed, and also a right of way to the same, to all the grantors of this deed, and to their heir or heirs forever.”
    4th. That defendant by several mesne conveyances (beginning from B. V. W. Thorne, the said grantee of plaintiffs’ father and brothers and sisters), has acquired the title to and is now the owner and possessor of the said farm and premises above described, but she holds and owns the same, subject to the easement of a family cemetery or burial plot, as planned and laid out by plaintiffs’ ancestors, and expressly reserved to them or their heirs by said grant or conveyance to the said E. V. W. Thorne.
    5th. That plaintiff’s said father and all the grantors in said deed to the said E. V. W. Thorne are now deceased, and the easement or right of family interment or burial reserved in said farm or land has descended to plaintiffs as heirs at law of the grantors in said deed. And plaintiffs, as' such heirs at law, are now, and for the last ten years have been entitled to have the said plot of ground reserved as a family cemetery, with the right of family burial therein, and are also entitled to have the monuments and headstones of their ancestors and relatives kept and maintained, and their remains to repose undisturbed therein, yet defendant, disregarding plaintiffs’ said rights in the premises, wrongfully and unlawfully and against equity and good conscience, lias in part torn down the fence that surrounds said burial plot and has destroyed some of the headstones marking or indicating the graves of plaintiffs’ said ancestors, and has levelled off the graves of some of them, obliterating all traces where they lie buried, and refuses to allow plaintiff a right of way to and from said plot or family burial ground all to the damage of plaintiffs of five thousand dollars.
    Plaintiffs further allege that defendant, denying their .said rights thereto, threatens to completely destroy the said family cemetery so plotted and laid out as aforesaid, and threatens to level and grade the same and form it into a lawn In front of her dwelling-house, greatly to their damage, and for which injury plaintiffs will have no adequate remedy at law.
    Wherefore, plaintiffs demand judgment:
    1st. Establishing and declaring their right to family burial in said plot of ground, together with a right of way thereto.
    2d. Restraining defendants from removing the headstones •of plaintiffs’ ancestors, or their remains, or obliterating their graves, or from leveling and grading off said grounds, or turning the same into a lawn, or from in any manner interfering with the said plot of ground as a family cemetery, or as a place for the burial of plaintiffs’ family dead, or in any manner interfering with plaintiffs’ right to the use of said ■cemetery, or to their right at all times of free ingress and egress to and therefrom.
    3d. For five thousand dollars damages, besides the costs ;and expenses of this action.
    The defendant demurred upon the following grounds:
    I. That it appears, upon the face of the complaint, that the complaint does not state facts sufficient to constitute a cause of action.
    II. That it appears, upon the face of the complaint, that there is a defect of parties plaintiff, in that it there appears that the heirs at law of the father of the plaintiff and of the-other grantors in the deed to E. V. W. Thorne mentioned in the complaint, are not, except the plaintiffs herein themselves, made parties plaintiff.
    III. That it appears, upon the face of the complaint, that there is a defect of parties defendant, in that it there-appears that the persons referred to in the last preceding paragraph as not being made parties plaintiff are not made parties defendant.
    Upon a trial by the court the demurrer was sustained upon the ground that the complaint did not state facts sufficient to constitute a cause of action ; that it appeared upon the face of the complaint that there was a defect of parties plaintiff, in that it there appears that the heirs at law of the-father of the plaintiff and of the other grantors are not, except plaintiffs themselves, made parties plaintiff; that it appears upon the face of the complaint that there is a defect of parties defendant, in that it there appears that the persons, referred to as not being made parties plaintiff are not made parties defendant.
    The following opinion was rendered at special term :
    
      
       See note in 18 Abb. N. C. 25
    
   Cullen, J.

While the lands held by certain cemetery-associations and also burial lots therein are inalienable, I know of no general rule of law that makes all lands used for burial purposes incapable of disposition by sale or devise. The exception and reservation in the deed to defendant’s remote grantor was therefore subject to the same tenure as-other real property, and the plaintiffs must show and allege-title thereto as specifically as in an action of ejectment. The complaint fails to show title in the plaintiffs, because it does-not aver that their father died intestate. I assume that the plaintiff might maintain a suit in equity on showing title-even to undivided interests in themselves. But the complaint seeks to recover damages. In such an action all the persons in interest must join. To sustain such an action, it is necessary that the plaintiffs should show that they have-succeeded to the rights of all the parties in whose favor the reservation was made. Judgment for the defendant on the demurrer with costs, with leave to plaintiffs to amend complaint on payment of costs.

A. N. Weller, for appellants.

Stickney & Shepard, for respondent,

From the judgment sustaining the demurrer this appeal was taken by the plaintiffs.

Pratt, J.

The demurrer admits that plaintiffs’ ancestor set apart a portion of his lands as a burial place whereon many members of plaintiffs’ family have been buried; and that, upon conveyance of the lands to defendant’s predecessor in title, said ancestor reserved to himself and his heirs-, forever the right of interment in the land set apart for that purpose, and also right of way to the ■ same., The plaintiffs’ ancestor is dead, and defendant is proceeding to level off the. graves, tear down headstones, destroy the inclosing fence, and threatens to continue said acts. The complaint does not aver that plaintiffs’ ancestor died intestate, and defendant* argues that, in the absence of such allegation, it does not appear that plaintiffs have any right of property in the cemetery, and that-, in the absence of such right, this action cannot be maintained. This view prevailed at special term. But we are of opinion that the right of a descendant to appeal to a court of equity to prevent a desecration of his ancestors’' grave does not depend upon the intestacy of the ancestor. The religious sensibility of the living in respect to the repose-of the dead, and the protection that will be extended to it by a court of chancery, does not depend strictly upon statutes. The wife has the first right to bury her husband, but that, right does not exclude the right of his next of kin to take-care that his place of burial, once established, shall be exempt, from arbitrary interference (Pierce v. Proprietors, 10 R. I. 227; Wynkoop v. Wynkoop, 42 Pa. St. 293). An opinion. was expressed below that, as the complaint prays damages, .it was defective in not showing that all parties having the same interest as plaintiffs are made parties to the suit. We do not regard that omission as important. It will scarcely -be contended that plaintiffs can recover for the damages sustained by persons not made parties to the suit. But such damages, if any, as plaintiffs have themselves sustained, can properly be recovered, and do not require the presence of •other parties. Judgment reversed, demurrer overruled, and judgment ordered for plaintiffs on demurrer, with leave to defendant to answer on payment of costs of special and gen-eral term.

Babxabd, P. J., and Dtkmau, J., concurred.  