New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1879-11-15
THE RIGHT TO A CEMETERY LOT.


OF DENNIS coPPERs MUST BE BURIED IN CAL
VARY CEMETERY.
The decision of Justice Westbrook as to the
right OF the friends late Dennis Coppers to have
his body inferred In the lot in Calvary Cemetery which
lie had bought during his lifetime, was made
public yesterday, although the Justice has not yet
filed his decision, ia Supreme Court, Chambers.
Dennis Coppers, who prominent citizen OF HO-
boken, died August ii, and the lodge OF Free
Masons OF which he member conducted
the funeral services when the funeral procession
reached Calvary Cemetery, where the arrangements
had been made to have Mt COppers body placed beside
the bodies OF his wife and two child in his lot the
friends were met by an order from Vicar-Genera
that no Free Mason and no nOu-CathOlics could be
buried consecratcd ground. Permission was obtained
to put the body receiving vault aud two proceed
ngS were Al begun In the Supreme Court by the
5G comp ii % ST. P ms %
Of NewYork to bury tho body in the lot the other
burning II in unconsecrated ground.
After rccitng the facts Justice Westbrook In his dee
sion says:
The man proposition involved s thisi The defendant
is a corporation attached the Roman Catholic Church
of the body I'm the lot purchased by Dennis Coppers
his lifetime because such burial would be contrary
The burial in consecrated ground OF the body Of
Catholic. or of one VINO was member Of the Masonic
tant involved II Will be first examined.
The paper executed To Dennis Cuppers In his life
time Is certainly not a deed, which OF itself would
transfer the fee but as duly signed executed ana
H.
whose authority make valid instrument OF that
character questioned, aud as II declares that SO
ground sxs feet in Calvary Cemetery" which plot ~.
eptamed cspabe of exact location aud SscertanmenI
and deceased IN uis lifetime took actual posses
such plot by placing therein the remains OF mem
beers OF his family, 1t difficult TO why under the
well known maxim OF the law that what
has been agreed to lie done. and what ought
to be DONE shall, for the advancement of JUS
tce. be regarded as done" 1t should not he
awriiing duly subscribed by the that owner
had received from another person the entire purchase
the delivery ana acceptance by such buyer OF the In
srument and that followed by actual possession OF the
property, would certainly, al ordinary casss' en-
title the purchaser 10 a conveyance IN fee
simple absolute, ana IN any controversy pT t S
the vendor aud Vendee as To the use OF Tue
premises. though formal conveyance had not
passed the latter would both in law and equity be
jects and purposes for which tho defendants held
the language OF the instrument. IL rs reasonably
clear that writing intended TO confer not merely
"A use easement in the land FOX the purposes OF
burial. but TO the ownership Of the SOIL not for
any every but for the sole and Only one OF bury
ii the right intended conferred upon the deceased
simply an easement. the paper should so have de-
cnred nut on the contrary the $50 paid stated 10 be-
The full purchase money of plot OF ground IL e. OF
the land ITSELF H. then the words used are limited 10y
the surroundings, which Is lcSsenng their legal
I ami 16n SefcnGan1s are in The p"s,tlon
of parties VINO have conveyed Tor that which they
S6nners his heir and assigns Tie title of the land 10
b. used 10y hm and them Tor the purpose of Durying
their dead The defendants are to be regarded
as In the position OF grantOrs Of fee OF
land 10 be used and enjoyed by the purchaser.
his heirs and assigns for burial purposes only. II
his rights were TO be in wise limited such lmita-
ton should appear the instrument itself and not,
appearing, dogma or decree of "A church, however
rignt or proper In itself IL be- or however capab
of being nOrced II the power and right be properly
served be nterposed to prevent the CHERISHED ana
natural wish Of the deceased To have his mortal remains
deposited by the side o. those OF his mother from being
fulfilled.
Judge Westbr0ok several points raised by the
defendants and then concludes AS follows:
II IL also argued that mandamus II not the proper
remedy II IL conceded that the not uniform
as To when the wit issues Numerous decisions, bow
issue compel "A corporation 10 do that which by law II
is required TO do, especially when no other adequate
exists II right our view that the de-
PENDANTS should be deemed To be in the position OF
grantee, his heirs and assigns, for burying
their dead then, as they have also received
com pensatiOn for opening the grave, they are
bound TO do. The need of burial Is "a
which Is adequate TO the emergency. II. however the
has jurisdiction OF the subject matter ana OF the
parties objections founded the form of proceeding
have never been favOraDly regarded by me.
dress peculiar grievances, and tie power which
could create enlarge the original office.
provided the Jurisdiction of the Court IN the subject
matter and of the persons II not exceeded.
A careful examination of the questions which have
been submitted leads me 10 the conclusion that the
respondents must open the grave. for doing
which they have received payment, and against
them as PENDANTS IN the action an injunction must
issue prayed for. such Injunction Is granted
that The defendants prevented the
terment of the body In the spot to which II en-
titled to inferred aud permission for s deposit
In the vault they cannot remove the same elsewhere