Conger v. Weyant — 20 N.Y. St. Rep. 775

Majority

p. 775

Clarence R. Conger, App’lt, v. Wolsey T. Weyant and Sallie V. Weyant, Resp’ts.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

Cemeteries—Sale of lots—Right of burial—Evidence—Sufficiency OF.

In an action of ejectment to recover a plot of ground in a cemetery, it

p. 776

appeared that defendant’s family used the lot for burial purposes, without objection, for over twenty years, erecting grave stones marked with the initials of the family, their right being recognized by the managers of the cemetery association, and a memorandum of the sale of the lot to defendant being produced, which was in the handwriting of the manager. Held, that a sale to defendant of the right to use such lot was sufficiently • shown.

Appeal from a judgment of the circuit court of Rock-land county, entered upon a verdict in favor of defendant, and from an order denying plaintiff’s motion for a new trial on the minutes.

The action is in ejectment to recover a plot of ground in “Mount Repose Cemetery,” in Haverstraw, Rockland county. The facts in the case are the same as in Conger v. Treadway, ante p. 774.

Seaman & Conger, for app’lt; George W. Weiant, for resp’ts.

The evidence is not sufficient to support this action. Eleven men own a tract of thirteen acres for burial purposes. They were not incorporated. At first two of the owners were empowered to manage the sale of the plots, and next a manager, one Blanch, acted for many •years. The defendant, Woolsey T. Weyant, is a son of Abram Weyant. In 1864 Abram Weyant buried a son in the plot in question, being No. 153. A tombstone was, •soon after the burial, erected at the place of his burial. Other burials have followed from the family of Abram Weyant, the latest in 1882. Sixteen or eighteen years ago Blanch, Abram Weyant and others of his family measured off the lot so as to erect monument stones at the corners, which was done. Eight marble slabs were placed in the ground, extending two feet above the surface, and marked with the initials of the Weyant family. The lot was graded and sodded, and shubbery and flowers put on by them. Blanch and Abram Weyant are both deceased. The owners filed a map showing No. 153 on it. In 1864 Abram Weyant commenced to bury in it. Blanch, a general manager of the cemetery, recognized the ownership of the exclusive right of burial in Weyant. Burial after burial was made in it extending over some twenty years without objection. A book is produced in Blanch’s handwriting of the sale to Weyant in 1862 in this form:

lf May 30th, 1862, Abram Weyant, 153.20 x 38; aggregate number of feet 700, $105.”

The evidence abundantly supports Abram Weyant’s ex-elusive right of burial in the plot in question.

•The exceptions should, therefore, be overruled and judgment rendered upon the verdict, with costs.

Pratt, J., concurs.