Johnson v. Ocean View Cemetery , 1921 N.Y. App. Div. LEXIS 8194 ( 1921 )

Putnam, J.:

The objection that the Attorney-General is not a party was not taken by demurrer or answer, and apparently not raised at the trial. It is not available here. (Code Civ. Proc. § 499; Jones v. Gould, 200 N. Y. 18.)

The notice of hen describes property “to be charged with the hen,” as follows:

“ The Plaza at the entrance of Ocean View Cemetery, Amboy Road, Oakwood, Staten Island, N. Y.; also Ocean View Drive on both sides of said Plaza and extending through said cemetery about 1950 feet; also Pine Road and Hemlock Road running from said Ocean View Drive and forming with it the triangle section in said cemetery; also Alder Path and Dogwood Path in said triangle section; also all the lots and plots fronting on and extending back from said Ocean Drive and the roads and paths aforesaid, being Lots two (2) to one hundred sixty-three (163), inclusive; Section B, Ocean View Cemetery, the map of which is filed in the office of the Clerk of Richmond County.”

The lots so numbered from 2 to 163 practically take in ah of section B.

This specification is, therefore, a detailed mention of where the work was done and materials furnished, with a statement of the property claimed to be subject to the hen.

The entire cemetery (certainly ah of section B) is benefited by paving the plaza, and laying out and surfacing these roads. The purpose of “ avenues, paths, alleys and walks ” was recognized in the Rural Cemetery Corporation Act (Laws of 1847, chap. 133, § 4, as amd. by Laws of 1874, chap. 245) and of “ improving and embellishing the said cemetery grounds and the avenues or roads leading thereto,” mentioned in Laws of 1879, chapter 108 (amdg. Laws of 1847, chap. 133, § 7). (See, also, Membership Corp. Law, §§ 66, 70.) There is no difficulty in such hens being regarded as affecting the entire property thus benefited, if at the time under a common use. (See Moran v. Chase, 52 N. Y. 346; Hall v. Sheehan, 69 id. 618; Woolf v. Schaefer, 103 App. Div. 567; National Wall Paper Co. v. Sire, 163 N. Y. 122.)

I cannot doubt the constitutionality of this statute, subjecting to judicial sale land in which are no graves, and no lots sold to individuals. This court has affirmed the principle in Matter of Chauncey (191 App. Div. 359), with a proviso as to proceeds, not applicable here. Even when interments had occurred, if the bodies had been afterwards removed, such land could be sold by the court on notice to all parties including the cemetery association. (Laws of 1874, chap. 245, § 3, amdg. Laws of 1847, chap. 133, § 11; Membership Corp. Law, § 82.) Even for unpaid lot taxes, a sale may be had of such portion of a single burial lot as has not been occupied (Membership Corp. Law, § 72, as amd. by Laws of 1912, chap. 301); also for unpaid expenses of restoring a lot after removal of the body (Membership Corp. Law, § 73). (See, • as to disused cemetery lands, Clarke v. Keating, 183 App. Div. 212.)

If cemetery holdings of such vacant lands were beyond reach of judicial process, great injustice might follow towards mechanics and laborers whose compensation would thus be unprotected.

The Mechanics’ Lien Law (which has no limitations in its-terms) clearly applied to a cemetery. (Lien Law, art. 2, as amd.) Article 5 of the present Lien Law gives a lien on monuments, gravestones and cemetery structures. (Lien Law, §§ 120-124.) The amendment of the Real Property Law permitting a sale of cemetery lands not yet occupied, to satisfy a judgment, recognizes that such unused lands, like other real estate, are not entitled to be exempted from legal process. The area subject to lien enforcement is restricted, consistent with the equity principle of the inverse order of alienation, so that the lienor’s resort properly is first to the cemetery’s unsold and vacant lands.

I recommend, therefore, to affirm, with costs.

Present — Blackmar, P. J., Mills, Putnam, Kelly and Manning, JJ.

Judgment unanimously affirmed, with_costs.