Lillis v. DeSapio , 176 N.Y.S.2d 732 ( 1958 )

Appeal from an order of Special Term, Albany County, pursuant to article 78 of the Civil Practice Act, revoking an order of the New York State Cemetery Board which directed postponement of the annual membership meeting of Memory Gardens, Inc., a cemetery corporation. The facts are not in dispute. Memory Gardens, Inc., is a membership corporation organized under the laws of the State of New York and engaged in the operation of a cemetery in the town of Colonie, Albany County, New York. The petitioner, a lot owner, is a member of the corporation. A notice was duly published of the annual meeting of the corporation to be held February 10, 1958 at a specified time and place. A director was to be elected and a proxy fight ensued between different factions of the corporation in the course of which pamphlets were published charging mismanagement, one of which came to the attention of the appellant. As a result, on February 4,1958, the director of appellant sent a letter to the corporation which stated that “ the said annual meeting be adjourned from February 10th for at least thirty days pending the further direction of this division.” The petitioner thereafter obtained this order to show cause. The question involved is one of law. Does the appellant have the authority to issue a directive to a cemetery corporation to adjourn its annual meeting pending further direction from the appellant? In 1949, the Legislature after-an extensive investigation by the Attorney-General’s office and on recommendation of the Governor, made drastic changes to the Membership Corporations Law as affecting cemeteries (§§ 71-a-108-a). It created the appellant herein and gave it extensive authority with the further delegation to make rules, regulations and orders (§ 108). It amended section 74 (corporate meetings') in stating who was eligible to vote but it gave no statutory authority, expressed or by implication, to supervise or control lawfully scheduled annual meetings and elections. There is no statutory authority for such action. Order appealed from affirmed, with $10 costs to the respondent and the matter referred to the Special Term for further proceedings. Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ., concur.