New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1880-05-15
LIMITING TIE RIGHT OF BURIAL.


DECISION ON THE APPEAL IN THE CASE OF DENIS
CoPPERs-THE CLAIMS OF THE CATHOLIC
CHURCH SUSTAINED.
Denis COppers, prominent Freemason OF
HObOken, died in September. 1870, and his friends
desired to bury his body by the side Of his wife and
children in the lot In Calvary Cemetery which he
had purchased. The refuPal Of the trustees OF
st. Patricks Cathedral to allow the body to be
buried there, the ground that he Mason and
Protestant, caused much comment at that time After
prolonged argument Justice WestbrOOk granted per-
emptory mandamus compelling the trustees to permit
the burial An appeal taken to the Supreme Court
General Term, and decision handed down yester-
day reversing Justice Westbrook's action.
The leading opinion was written by Justice Barrett,
and was concurred by Justices Davis Brady The
main reliance of the plaintiffs who the brothers OF
Denis Coppers was upon the receipt or certificate OF
sale Of the lot signed by the superintendent Of the Gem
etery. 1t cOntended that this created title In fee
simple and that the defendants could not prevent the
plaintiffs from using tLis land for the purpose for
which the grant had been made namely, burial-no
matter what the creed social position Of the deceased
Justice Barrett says however that Denis COppers
received deed or other conveyance In writing
OF the plot In question: and he therefore had title In
fee simple. The receipt signed by the superintendent
was IN fact not contract Of sale at a 1t possessed
none OF the features OF an executory agreement
Justice Barrett says further:
III the surrounding circumstances may be resorted
to when the language of deed Ia ambiguous Jort0rt
where there Is nothing whatever to throw light upon
the contract except paper admitting the receipt OF
purchase money What, then, are the surrounding cir
cums,ances of the present casel Clearly the rules,
regulations aud OF the defendant with regard to
the burias It's cemetery. Every applicant presumed
that 1t is not an ordinary cemetery tncorpo-
rated and conducted for the purposes OF general and In
discriminate burial but corporation attached to the
Roman Catholic Church, with power to make lawful
rules regulations and bylaws; In fact, that the ceme
terry is part OF the temperatures OF this great Church. It
is in evidence without dispute that under the
rules and uSages applicable to the cemetery
I'm question, the burial OF non-CatholIcs
or Of FreemasOns forbidden and that such right IS
reserved exclusively for Roman Catholics dying In
communion with the Church 1t also appears that the
cemetery was duly cOnsecrated by appropriate rites and
ceremonest that the trustees members OF the
Church. spiritually subject TO It's laws usagee and dis
cpline and In substance. that the business affairs OF
the cemetery were aud are being conducted in
good faith by these trustees TO give effect
TO such laws, usages and discipline. When
party applies for O burial plot at the office Of dis
tncy Roman Catholic cemetery, IL Ia with the tacit
understanding that he s either Roman CATHOLIC anu
as such eligible 10 burial at least that ne applies on
behalf Of those who In communion with the Church
The entire business is transacted on that basis. The
parties may notwithstanding contract If they choose
BUDDHIST Mahom edau. aVOwed atheist. will have
legal night to PPTs IN 6s % a% sTs
object control in entire disregard OF tine OnuIcn Jaws
ssEss ES n right to disturb what
to be the spiritual harmony OF the eurronna-
Tecsipt would have to be secured We might go fur
her and say that such an instrument to be OF any va
to make contract unusual and so contrary to the
spirit of the Institution 1t might well Se 6oIStea %c
could confer such right, under his ordinary power,
which to be limited TO the issunH OF rece'pts
.grn iIoH tn hot mndAF confederation.
1t is quite clear that in no aspect Of the case
estate in fee none OF easement There was not even
written contract for right Of burial At most there
Ss which
t'"IIsS not lie to enforce mere private contracts
TSS l@w to does satisfy nGS eVsy neSd
heart THIS It cannO! DO remedy may be adequate ate
carnes sire Of the suitOr What we conceive to have
the Of the Court 6eOy W. %as tine to S
grave and permit this burial Here the defendaht,
bound a all was so bound by sS8raS5 % apa TUS O
are neither the legal representative, next OF
KIN nor asSness OF the GsSeased SSnsT burial sy of there
breihor but when the Hight to burial in particular
GS or Tgs By those
to whom they have descended In every aspect OF tns
granted The order appealed from should, therefore,
In his concurrng opinion Chief Justice Davis says
without expressing concurrence IN i, or o. %s, ~.
sent from all the views OF my Or0tner ~ cOncson @
bat the order of the Court below must be reversed
think 1t cannot be doubted that religious cor
nnrnttons NAV lawfully establish cemeteries ana bury
roins Exclusively omin atonal, and guard and
project tile same by rules and regulations as make
efrcye the ehects and purposes OF their organization
When established the corporation may impose
,,pnn than rules and regulations operating
equally upon all who seek to use the privileges
III burial Within them. Whoever purchases right OF
hrIai and fnkPs certificate Of his right which does
nor Grant or convey some absolute interest or title free
from such rules and regulations, must be deemed 70
take subject them, and n short to nave conrace1
with the CORPORATION that bis right shall be subject 10
and controlled by such lawful rules and regulations as
the corporation may have prescribed"