Smith v. Green-Wood Cemetery

New York Supreme Court

Smith v. Green-Wood Cemetery

173 Misc. 215, 17 N.Y.S.2d 706, 1940 N.Y. Misc. LEXIS 1444

CourtNew York Supreme Court

DecidedJanuary 15, 1940

StatusPublished

Cited by2 cases

This text of 173 Misc. 215 (Smith v. Green-Wood Cemetery) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Green-Wood Cemetery, 173 Misc. 215, 17 N.Y.S.2d 706, 1940 N.Y. Misc. LEXIS 1444 (N.Y. Super. Ct. 1940).

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Opinion

Dodd, J.

It appears that in 1861 George M. Totten purchased a burying plot in Green-Wood Cemetery and four interments were made in that plot, the last being in 1898, the bodies being those of himself, his wife (the grandparents of the petitioners herein) and those of a daughter and two sons. The plot was inclosed by an iron railing set in stone posts and appropriate headstones were placed upon the graves. One of Mr. Totten’s sons was killed in the Civil war, and, although his body was not buried in this plot, a stone in his memory was placed there. The petitioners applied to the cemetery for permission to disinter the remains buried in this plot, and, upon the refusal of their request, this proceeding was commenced. There can be no question about the intention of the purchaser of the plot to procure for himself and the members of his family a final resting place, and I can see no substantial reason why his wishes should not be respected. Moreover, these bodies have been in the plot for many years, one of them for more than seventy-nine years, and it is quite probable that nothing remains of that body and that it has become a part of the soil in which it was interred. The purchaser of the plot took it subject to the rules of the cemetery printed on the face of the deed, one of which provided that no disinterment should be allowed without permission being obtained from the cemetery authorities, and I am of opinion that this contract prevents the removal of the bodies sought by the petitioners. Application denied.

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Dodd, J.

It appears that in 1861 George M. Totten purchased a burying plot in Green-Wood Cemetery and four interments were made in that plot, the last being in 1898, the bodies being those of himself, his wife (the grandparents of the petitioners herein) and those of a daughter and two sons. The plot was inclosed by an iron railing set in stone posts and appropriate headstones were placed upon the graves. One of Mr. Totten’s sons was killed in the Civil war, and, although his body was not buried in this plot, a stone in his memory was placed there. The petitioners applied to the cemetery for permission to disinter the remains buried in this plot, and, upon the refusal of their request, this proceeding was commenced. There can be no question about the intention of the purchaser of the plot to procure for himself and the members of his family a final resting place, and I can see no substantial reason why his wishes should not be respected. Moreover, these bodies have been in the plot for many years, one of them for more than seventy-nine years, and it is quite probable that nothing remains of that body and that it has become a part of the soil in which it was interred. The purchaser of the plot took it subject to the rules of the cemetery printed on the face of the deed, one of which provided that no disinterment should be allowed without permission being obtained from the cemetery authorities, and I am of opinion that this contract prevents the removal of the bodies sought by the petitioners. Application denied.

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Bluebook (online)

173 Misc. 215, 17 N.Y.S.2d 706, 1940 N.Y. Misc. LEXIS 1444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-green-wood-cemetery-nysupct-1940.

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