#### Mitchell *et al. v.*Thorne.

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

1. Injunction—Pleading.

A complaint praying that defendant be restrained from desecrating the burial ground of plaintiffs’ ancestors, which was reserved in a grant of the land to defendant’s predecessor in title as a burial-place for the grantor and his heirs forever, need not aver the intestacy of the ancestor.

S. Same.

Where such complaint prays damages for the destruction already committed, it is not defective for failing to show that all persons in interest are made parties, for plaintiffs can only recover for such damages as they have sustained, and not for those sustained by persons not parties to the suit.

Appeal from special term, Queens county.

Action by Charles T. Mitchell and others against Mary A. W. Thorne, to restrain defendant from desecrating the burial ground of plaintiffs’- ancestors, which plaintiffs allege was reserved by their ancestor in a conveyance of the land to defendant’s predecessor in title as a place of interment for himself and his heirs, together with a right of way to the same. Defendant’s demurrer to the complaint was sustained, and plaintiffs appeal.

Argued before Barnard, P. J., and Pratt and Dykman, JJ.

*A. N. Weller,*for appellants. *Parsons, Shepard & Ogden, (John M. Perry,*of counsel,) for respondent.

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 head-stones, destroy the inclosing fence, *683and 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 ancestor’s 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 general term.

All concur.