Brooks v. Tayntor — 70 N.Y. St. Rep. 822

Majority

p. 822

William Brooks, Resp’t, v. Charles E. Tayntor et al., App’lts.

(Supreme Court, General Term, First Department,

Filed December 18, 1895.)

Headnote

Cemetebies—Removal of monument.

Under chapter 543 of 1888, the claimant by a lien has no right to remove the monument in the absence of service of notice on the purchaser or owner of the lot by the superintendent or other person in. charge of the cemetery. '

Appeal from an order denying an injunction pendente lite.

Hugo Hirsh, for app’lts; A. Thains for resp’t.

The defendants are dealers in monuments, grave stones, etc. In the year 1893 they furnished a monument to the plaintiff, and erected the same on the plaintiff’s burial plot in Greenwood Cemetery. The-plaintiff paid the contract price of this monument partly in cash, and partly in notes, as required by the contract; and, because of the nonpayment of these notes, the defendants threatened to enforce the payment of thjit indebtedness, under chapter 543 of the Laws of 1888, and, to that end, to take possession of the monument, detach it from the soil, and sell it at auction. This action was brought to restrain the defendants from removing the monument, and from in any manner interfering therewith.

It is claimed upon the part of the respondent that the statute in question is unconstitutional, and that the method of procedure provided by the statute has not been complied with,. In the disposition of this appeal it does not seem to be necessary to consider the question of the constitutionality of this extraordinary legislative production, called chapter 543 of the Laws of 1888. The act provides that every person, etc., that shall furnish or place in any cemetery or burial ground within the state any monument, etc., shall have a lien upon such monument for the principal and interest of the agreed price thereof, or such portion of said price-as shall remain unpaid, until the same be paid in full; porvided such' person shall, at any time or within one year after the bill for the same becomes due, file with the superintendent or person in charge of such cemetery or burial ground a notice in writing to the effect that the person, etc., claims a lien on the same for the

p. 823

purchase price thereof, or such portion of the purchase price thereof as remains unpaid, with interest. After certain other provisions in regard to the form of the lien, the statute provides that it shall be the duty of the superintendent or person in charge of the cemetery with whom any such notice shall be hied to forthwith notify the owner or owners of the plot so described in said notice of the filing of said notice of lien. This is the only provision contained in' the act in regard to the service of this notice upon the owner of the monument. It seems to be somewhat difficult to understand exactly how such a requirement upon the part of a superintendent of a burial ground can be enforced. In the case at bar the superintendent did not give any notice. The next section provides that, in case the amount due be not paid within six months after the service of said notice on the plot owner as hereinbefore provided, the said person, etc., so claiming ■such liens, shall thereafter, and within sixty days, have the right, •on ten days’ notice to the superintendent or person in charge of the cemetery of his election so to'do, to remove from said burial ground the monument to the outside of the grounds of the cemetery, and, upon publishing a notice in two newspapers, may sell it.

In the case at bar, as above stated, no notice whatever was served by the superintendent. It is claimed upon the part of the' defendants that their agent served a copy of the notice of lien upon the plaintiff. The plaintiff, however, asserts that no such •service of notice of the filing of the lien was ever made upon him; that the notice served upon him was prior to the filing of the lien. It seems to be clear that the statute has not been complied with. The right to foreclose the lien under the statute depended upon the ■expiration of a certain time after the service of notice of the filing of the notice of lien by the superintendent of the cemetery, and no authority is given to anybody else to usurp this duty.. It is clear, therefore, that the defendants did not comply with the statute, and they had no right to commit this threatened trespass upon the plaintiff’s burial plot, even if this remarkable statue can be held to be constitutional, in respect to which we express no opinion.

The order appealed from should be affirmed, with $10 costs and disbursements.