The New York herald., 1879-09-30
DENIS COPPERS' GRAVE.

NEUTRALITY-SUSPICIOUS. GENrILITIES-JuDGE
wEsrBRooK ASKS FOR THE PAPERS IN TaE
CASE.
The famous Coppers case again up for srgu.
ment in Supreme Court. Chambers. before Judge
westbrook yesterday, Mr.. Charles W. Brooke appear
ing on the sido and Mr.. John Z. Develin on the
other. In opening his argument Mr.. Develin re-
minded the Court that in this there is action
and proceeding-he latter. OF course. for man.
damus to compel the trustees of St. Paricks Cathe-
drl to receive and bury the body Of Denis Coppers.
These trustees Incorporated by special act of
the Legislature. In summarizing the history of the
case Mr.. Develln assumed that Coppers u non-
| Catholic. to which Mr.. Brooke assented with ap-
| parent satisfaction.
| "rhey may take either horn of the dilemma" Mr..
| Brooke said to the HERALD reporter. "If Coppers
| was Catholic, thon there is no provision in the
DEGREES of the Penary Council against Freemasons;
If he Catholic. ho was not subject to ex-
communication. and Is entitled To be buried in his
family plot by the side of his relatives, who
Catholics"
These words were uttered during an interruption
in MryDevelns argument caused by the bulging il
of counsel In Qthor cases. practice which is max
ing Supreme Court Chambers perfect bear garden.
Mr. Dovelin. however. did not allow himself to bo
disturbed by the interruption. and only romarked:
II am always willing to oblge my brothers-in-
law"
While the delay continued messengers were sent
in every direction for additional authorities and
tho table for counsel array Of law books sell
dom seen in New York court. There wore for in
stance an authorized copy of "Concilii Plenarii
Boltimorensis IT,; copy of Smiths elements of
Ecclesiastical Law and o pamphlet report of the
Guibord case.
Is THE RECEIPT DEED?
paauvriuo Mr. neve1in eontended that thia WI
not q question between relatives to where the
body Of Coppers should be buried. 1t was ques-
ton as to whether tho trustees wore compelled to
receive it, The paper which the right of the
Coppersee based was only receipt for purchase
money. 1t not deod for it had no seal
and It could not be conveyance of any
kind. Indeed. there could be no conveyance
in such cases as this without the consent
Of the Chancellor and no such consent had
been given. 1t was at best only an easement.
and even as such 1t Is void under the statute of
frauds 1t is an incomplete contract, and its terms
| can only be established by parole testimony. No
court would undertake to enforce it. Whatever the
right conferred by this receipt there can be action
under it. II right at all exists 1t is In the hoirs
or devisees of tho deceased By them or by. the
| executors only can such rghtbe enforced. These
parties can have standing In court-they are not
heirs, they not devsees. they are not even next
Of kim suppose we consider this contract as COM
plec. Then is conveyance OF real estate and
any other real estate to the heirs OF dovsees
The duty Of enforcing tho provisions of Coppers'
| will il then thrown upon the executors and they
| not the parties to this proceeding.
But even If they have standing in court they
| are not entitled to this writ writ of mandamus
! will issue to enforce u contract. 1t only
issues In OF clear legal right where there no
| Cathedral incorporated as private religious
| corporation. They may change they doctrines and
When tho noman Catholics of New York became in.
! corporated In 1873, they became religious
poration as Roman Catholics: Tho Legislature in
tended that all the rights in the corporation should
be enjoyed only by Roman Catholics. In the grave
| yards belonging to the corporation no ono was en-
titled to be buried except Roman Catholics. Denis
| Coppers must be held to have known when he pur-
chased the property that it was Catholic cemotery
except as Roman Catholics II was his duty to
| know that under the decrees OF the Church non
| Catholics and Freemasons were not entitled to be
| buried IN consecrated ground.
DECREEs OF THE PIENARY COUNCIL.
| Quoting from the decrees of the plenary Council
Of Baltimore, Forro sepuitsva eccesasca p'icantur
inJdeics hGreci ct sctsmat,c Mr.. Devein contended
that the word hGretict prevented the burial of any
| body who was not Catholic. And then referring to
the clause of toieraton-"Es ments Sedis Aposoiiee
toerduy ut ia sepuchys gentis qua rdetice precatd
etpecuaria Cathoocis laicorm tamitsis adcaatur
c00,,atorum ct d6inum ...am AcaG0iicorupl corpora
tstmuietur-he argued that the controlling word is
''sdifcantur," which means. to build. 1t must be
something moro than q mere grave In tho ground-!t
must be built He explained that tho toleration
temputed by the Plenary Council was only in private
cemeteries. "SepuctrIs gentits" Mr.. Develin trans
lated meaning family vaults whereas Mr..
Brooke contended for family plots, and all ut
the whole case resolved itself into the Interpretation
| OF phrase In the language of the Church. In
| clusion. Mr.. Develn contended that there was
analogy between this case and the Guibord case.
! Then the court took u recess OF half an hour.
| When .he court again convened Mr. Develin pre-
sented number Of points. claiming first. that the
writ Of mandamus is q discretionary one; that tho
association was voluntary one: that Denis Coppers
was bound to inform the trustees that he was nom
| Catholic and Mason and that because he failed to
do So the net OF selling him plot lin the cemetery
| unauthorized one.
| MIR. BnooKE's LAST SPEECH.
Mr.. Brooke then combatted tho argument of coun-
sci the other side relating to the claim that the
executors of Coppcrs wcro tho proper parties to
bring the present action and not tho next OF kin,
and that the relators were not oven next of kin.
He said that when this action begun the will Of
Denis Coppers had not yet been probated. and that
| consequently, they in position to
take any part in 1t. Ho denied the control Of
| executors ovcr the disposition Of the body of
the docedent and then quoted authorities to prove
that in the sale OF cemetery lot right Of perpetu
ity passed. The trustees Of Calvary Cemetery arc
entitled under the act of 1864. to certain lands
| IN Queens county tor cemetery purposes. and the
lots are disposed Of BY tho trustees aud described by
mctos and bounds. 1t was not necessary that any
map should be hled any where. Denis Coppers pur-
chased lot as other persons did and received the
customary evidence OF title. This Mr.. Brooke called
ga doed," whilo Mr.. Develin contended that no de-
scrption by metes and bounds was contained in the
dcedthut these followed the signature the paper
Of tho plot and OF the graves were in
the same handwriting with the rest of the
| paper aud part OF tho docd. Through these
| many devious ways. ho cainc back at last to his
original proposition--that Denis Coppers had per-
petual right in the cemetery plot and that his next
Of kin the persons charged with the burial Of
| his body in his own burial ground. II the law gives
the right 1t gives IL to those who have the legal age
| and other requisites to its exercise.
warm discussion of the Guibord case ensued. In
regard to the force OF which counsel differed Mr..
| Devcn contcnded that Guibord not excommuni-
| Gated. Mr.. Brooke that he was communicated In
the same way that Freemasons are. At this point
| Judge westbrook interrupted the argument with on
intimaton that he was anxious to keep nm engage.
ment at halfpast three o'clock II being then within
fifteen minutes OF that time.
This suggestion hastened tho conclusion Of the
| argument which ended with somewhat unique
| scene.
"will you please send all tho papers in to at
KingstonY' asked Judge Westbrook.
"'Smiths Elements of Ecclesiastical Lawr" asked
| Brooke.
| yes"
"And tho 'Conciln Plenariiy"
| eyes"
| "And the Guibord pamphlet"
"To that object" put in Mr.. Devolin. 'The case
Is much better presented In the regular report"
| "It doesn't give the proceedings In the court be-
| low" said Brooke.