Eickelberg v. Board of Health — 14 N.Y. St. Rep. 509

Majority

p. 509

August Eickelberg et al., Resp’ts, v. The Board of Health of the Town of Newtown, App’lts.

(Supreme Court, General Term, Second Department,

Filed February, 13, 1888.)

Headnote

1. Boards of health—Burial permits—Not necessary where transit PERMIT HAS ISSUED—LAWS 1885, CHAP. 270, §3, SUED. 5.

It is the duty of the boards of health, organized in this state, to designate the persons who shall, upon the presentation ana recording of the required certificate, grant burial permits for the burial of the dead, and transit permits for the transportation of the dead bodies of persons which are to be carried for burial beyond the limits of the county where the death occurs. (See Laws 1885, chap. 270, § 3, subd. 5). Held, that when either of said permits have been procured, the body may be buried in the county, or transported and buried out of the county where the death occurs, without further ceremony or permission.

2. Same—No power to interfere with burial given in subdivision 3.

The power and authority bestowed, and the duty imposed upon boards of health by subdivision 3, of said section, to guard against the introduction of contagious and_ infectious diseases, clothes such boards with no power to arrest the burial of a dead body where a proper permit has been obtained under the provisions of subdivision five.

p. 510

An appeal from an injunction order, made at special term, and entered in the clerk’s office of Kings county.

The defendant claimed that it possesses the power to prevent burials in the cemetries of the town of Newtown, in any case where the body is brought from New York or Brooklyn, unless a permit is obtained from it authorizing the burial, although the body is accompanied by a transit permit.

Merritt & Terry, for resp’ts; William E. Slocum, for app’lt, Merrit.E. Sawyer, for app,lts.

It is the duty of the boards of health organized in this state to designate the persons who shall grant burial permits for the burial of the dead, and transit permits for the transportation of the dead bodies of persons which are to be carried for burial beyond the limits of the county where the death occurs; and it is the duty of the undertaker or other person having charge of the body of any dead person, to procure a record of the death and its probable cause, duly certified by the physician in attendance on the deceased during his last illness, or by the coroner where an inquest is required by law; and there shall be no burial nor removal of the body of any dead person until such duly certified record shall have been presented to the board of health, or a person designated by them, and until thereupon a permit for burial or transit” shall have been obtained. Chapter 270, Laws of 1885, § 3, subd. 5.

The foregoing is a substantial extract from the statute, and it comprehends every preliminary requisite to be observed in the burial of the dead body of any human being in this state.

The boards of health must designate persons who shall grant permits for the burial of the dead and transit permits. If the body is to be buried in the county where the death occurs, a permit for the burial is alone sufficient. If the body is to be carried beyond the limits of the county where the death occurs, for burial, then a transit permit for the transportation of the body beyond such limits must be obtained. These permits are both granted upon the certificate of the physician in attendance on the deceased during his last illness, or of the coroner where an inquest is required to be held, and there can be no burial or removal of the body of any dead person until such duly certified record has been presented and a permit for burial or transit as the case may require has been obtained, and as those are the only requirements of the statute, when either of such permits have been procured, the body may be buried in the county or transported and buried out of the county where the death occurs without further ceremony or permission.

p. 511

The power and authority bestowed, and the duty imposed upon boards of health by subdivision three of the same section three to guard against the introduction of contagious and infectious diseases by the exercise of proper and vigilant medical inspection, has no reference to the burial of the dead especially. The provision relates to all modes by which infectious or contagious diseases might be introduced, but it clothes such boards with no power to arrest the burial of a dead body where a proper permit has been obtained under the provisions of subdivision five.

The order appealed from should be affirmed with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.