Long v. Rosedale Cemetery

• Decision Date: 02 December 1897
• Citation: 84 F. 135
• Parties: LONG v. ROSEDALE CEMETERY.
• Court: U.S. District Court — District of New Jersey

84 F. 135

LONG v. ROSEDALE CEMETERY.

United States Circuit Court, D. New Jersey.

December 2, 1897

Francis J. Swayze, for demurrer.

Frank P. McDermott, opposed.

KIRKPATRICK District Judge.

The declaration in this case avers that the defendant is a corporation organized under the law of the state of New Jersey, and founds its complaint upon the ground of the negligent conduct of its managers and servants. That corporations are liable for the wrongful acts of their servants, committed while in the discharge of their duties cannot, as a general proposition, be denied. Brokaw v Transportation Co., 32 N.J. Law, 328. The defendant company is not distinguishable on the pleadings from any other corporation incorporated under the law of New Jersey except by its name, and that it is the 'proprietor and operator of a certain cemetery. ' The strongest conclusion favorable to the defendant that can be drawn from this assertion is that the company is incorporated under the general laws of the state relating to cemetery companies, and entitled to the immunities of that act. It nowhere appears that the defendant enjoys special privileges granted under special charter. The general cemetery act (1 Gen.St. p. 353 par. 18), among other things, provides:

'That the rents, issues, profits, incomes and revenues derived from any and all lands lying within the boundary of any cemetery or burying ground belonging to or used by or held in trust by an incorporated cemetery company in this state may be taken and sequestered under and by virtue of the orders and decrees of the court of chancery of the state according to the rules and practice of that court, and applied by said court of chancery to the payment of any judgment recovered in any of the courts of this state against said cemetery company.'

The legislature having provided a way by which judgments against cemetery companies may be satisfied, non constat that a judgment against this defendant would be a nullity. It may be that the defendant, like many another, has not the means from which an execution may be satisfied in the manner provided by law, but that inability to respond is not a bar to the recovery of the judgment. In this case the judgment is the necessary foundation of the sequestration proceedings before the chancellor, and without it the plaintiff would not have a standing in court to ascertain whether the defendant was possessed of 'rents, issues,...