Tyndall v. Pinelawn Cemetery

151 N.Y.S. 428

Opinion

GIEGERICH, J.

I think the plaintiff is entitled to an accounting of the sales of land made by the cemetery company and of so much of the proceeds of such sales as belonged to the land purchase fund. Marvin v. Brooks, 94 N. Y. 71; Tyndall v. Pinelawn Cemetery, 198 N. Y. 217, 91 N. E. 591. The objection raised by the answer of certain of the defendants, that all the certificate holders are necessary parties, is disposed of, so far as this court is concerned, by the suggestion of the Court of Appeals on the appeal from the earlier interlock tory judgment that a representative action would be the appropriate form of remedy.

[1, 2] The requests for findings of the respective parties have been passed upon, and many of them have been refused because they are either purely evidentiary in character or relate to matters which are properly to be inquired into upon the accounting. Other proposed findings relate to the various interlocutory proceedings in the action, all of which necessarily appear in the record, and which are not the proper subject of findings. Findings should be confined to ultimate facts in issue under the pleadings. Adler v. Met. Elev. Ry., 138 N. Y. 173, 178, 33 N. E. 935.

. Let the decision in its direction for judgment provide for the reservation of all questions as to costs and allowances until the final judgment is presented for settlement. Submit decision and interlocutory judgment upon five days’ notice of presentation.