Tonella v. Fishkill Rural Cemetery

Appellate Division of the Supreme Court of New York

Tonella v. Fishkill Rural Cemetery

229 A.D. 732

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1930

StatusPublished

Cited by4 cases

This text of 229 A.D. 732 (Tonella v. Fishkill Rural Cemetery) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tonella v. Fishkill Rural Cemetery, 229 A.D. 732 (N.Y. Ct. App. 1930).

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Opinion

Judgment unanimously affirmed, with costs. While we are "of opinion that the action was not properly brought by the plaintiffs’ testator, all the parties are now before the court and this action in equity may be determined upon the present pleadings. In effect the action is one on behalf of defendant Schrader. Upon the facts presented at the trial, we are of opinion that the cemetery was not warranted in preventing the erection of the mausoleum. In addition to the findings upon which this judgment is predicated, we find that the plaintiffs’ testator proceeded with diligence in the performance of the contract and that the mausoleum proposed to be erected was neither offensive, improper nor injurious to the appearance of the surrounding lot or grounds. Present — Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ. Settle order on notice. [135 Misc. 81.]

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Judgment unanimously affirmed, with costs. While we are "of opinion that the action was not properly brought by the plaintiffs’ testator, all the parties are now before the court and this action in equity may be determined upon the present pleadings. In effect the action is one on behalf of defendant Schrader. Upon the facts presented at the trial, we are of opinion that the cemetery was not warranted in preventing the erection of the mausoleum. In addition to the findings upon which this judgment is predicated, we find that the plaintiffs’ testator proceeded with diligence in the performance of the contract and that the mausoleum proposed to be erected was neither offensive, improper nor injurious to the appearance of the surrounding lot or grounds. Present — Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ. Settle order on notice. [135 Misc. 81.]

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Bluebook (online)

229 A.D. 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tonella-v-fishkill-rural-cemetery-nyappdiv-1930.

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