#### BROOKS v. TAYNTOR et al.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Cemeteries—Removal oe Monument by Seller—When Unauthorized.

Laws 1888, c. 543, gives one who furnishes any monument, etc., a lien on it for the price by filing within a year after it becomes due a notice of claim with the superintendent or person in charge of the cemetery, who shall forthwith notify the owner or owners of the plot described in the notice of the filing of such notice of lien; and, “in case the amount *247due *be*not paid within six months after the service of said notice on the plot owner as hereinbefore provided, the said person” claiming the lien shall thereafter, and within GO days, have the right, on 10 days’ notice to the superintendent or person in charge of his election so to do, to remove the monument. *Held,*that the claimant of a lien has no right to remove a monument in the absence of service of notice on the purchaser or owner of the lot by the superintendent or other person in charge of the cemetery.

Appeal from special term, New York county.

Action by William Brooks against Charles E. Tayntor and others. From an order continuing an injunction pendente lite, defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN, J.

Hugo Hirsh, for appellants.

A. Thain, for respondent.

VAN BRUNT, P. J.

The defendants are dealers in monuments, grave stones, etc. In the year 1893 they furnished a monument to the plaintiff, and erected the same on the plaintiff’s burial plot in Greenwood Cemeterju The plaintiff paid the contract price of this monument partly in cash, and partly in notes, as required by the contract; and, because of the nonpayment of these notes, the defendants threatened to enforce the payment of that indebtedness, under chapter 543 of the Laws of 1888, and, to that end, to take possession of the monument, detach it from the soil, and sell it at auction. This action was brought to restrain the defendants from removing the monument, and from in any manner interfering therewith.

It is claimed upon the part of the respondent that the statute in question is unconstitutional, and that the method of procedure provided by the statute has not been complied with. In the disposition of this appeal it does not seem to be necessary to consider the question of the constitutionality of this extraordinary legislative production, called chapter 543 of the Laws of 1888. The act provides that every person, etc., that shall furnish or place in any cemetery or burial ground within the state any monument, etc., shall have a lien upon such monument for the principal and interest of the agreed price thereof, or such portion of said price as shall remain unpaid, until the same be paid in full; provided such person shall, at any time or within one year after the bill for the same becomes due, file with the superintendent or person in charge of such cemetery or burial ground a notice in writing to the effect that the person, etc., claims a lien on the same for the purchase price thereof, or such portion of the purchase price thereof as remains unpaid, with interest. After certain other provisions in regard to the form of .the lien, the statute provides that it shall be the duty of the superintendent or person in charge of the cemetery with whom any such notice shall be filed to forthwith notify the owner or owners of the plot so described in said notice of the filing of said notice of lien. This is the only provision contained in the act in regard to the service of this notice upon the owner of the monument. It seems to be somewhat difficult to understand exactly how such a requirement upon the part of a superintendent of a *248burial ground can be enforced. In the case at bar the superintendent did not give any notice. The next section provides that, in case the amount due be not paid within six months after the service of said notice on the plot owner as hereinbefore provided, the said person, etc., so claiming such liens, shall thereafter, and within 60 days, have the right, on 10 days’ notice to the superintendent or person in charge of the cemetery of his election so to do, to remove from said burial ground the monument to the outside of the grounds of the cemetery, and, upon publishing a notice in two newspapers, may sell it.

In the case at bar, as above stated, no notice whatever was served by the superintendent. It is claimed upon the part of the defendants that their agent served a copy of the notice of lien upon the plaintiff. The plaintiff, however, asserts that no such service of notice of the filing of the lien was ever made upon him; that the notice served upon him was prior to the filing of the lien. It seems to be clear that the statute has not been complied with. The right to foreclose the lien under the statute depended upon the expiration of a certain time after the service of notice of the filing of the notice of lien by the superintendent of the cemetery, and no authority is given tó anybody else to usurp this duty. It is clear, therefore, that the defendants did not comply with the statute, and they had no right to commit this threatened trespass upon the plaintiff’s burial plot, even if this remarkable statute can be held to be constitutional, in respect to which we express no opinion.

The order appealed from should be affirmed, with $10 costs and disbursements.