Sonkin v. Sullivan — 244 N.Y. 571

Majority

p. 571

Philip Sonkin, on Behalf of Himself and Others, Respondent, v. Hannah Sullivan, as Receiver of the Estate of Timothy D. Sullivan, Deceased, Appellant, Impleaded with Others.

Headnote

Cemeteries — lot owners —• interest too remote to maintain action for adjudication of right of third party against cemetery association.

Sonkin v. Sullivan, 217 App. Div. 780 , reversed.

(Argued January 11, 1927;

decided February 23, 1927.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which reversed an order of Special Term granting a motion for a dismissal of the complaint. The plaintiff is a lot owner in the defendant cemetery association and sues in behalf of all other lot owners, to restrain the prosecution of three actions at law against the cemetery association to recover sums of money represented by the association’s certificates of indebtedness held by the various plaintiffs in the actions.

The following question was certified:

“ Does the complaint state facts sufficient to constitute a cause of action against the defendants Mount Carmel

p. 572

Cemetery Association, Arthur R. Peris, Louis Singer, Elias Schlein, Morris Cohen, Hannah Sullivan, as receiver of the property, assets, rights and effects of the estate of Timothy D. Sullivan, deceased, and all others who may intervene herein as parties defendant and /or who may be similarly situated? ”

Abraham Benedict, Gustamos A. Rogers and Edith H. Kunen for appellant.

Clinton T. Roe and Ely Rosenberg for respondent.

The interest of the plaintiff as a lot owner is too remote to enable him to bring this action to obtain adjudication of the rights of a third party against the cemetery corporation.

The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division. Certified question answered in the negative.

Cardozo, Ch. J., Pound, Crane, Andrews and Lehman, JJ., concur; Kellogg, J., absent.

Ordered accordingly.