Tyndall v. Pinelawn Cemetery
| Decision Date | 05 April 1910 |
| Citation | 198 N.Y. 217,91 N.E. 591 |
| Parties | TYNDALL v. PINELAWN CEMETERY. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Suit by William D. Tyndall against the Pinelawn Cemetery. From a judgment of the Appellate Division, 134 App. Div. 970,119 N. Y. Supp. 1148, affirming a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed, and question answered.
Benjamin N. Cardozo, for appellant.
John M. Gardner, for respondent.
The plaintiff, as the owner of a certificate for ‘one hundred shares interest in one-half the gross proceeds of the sale of the use of lots in Pinelawn Cemetery,’ a domestic corporation, brought this action to compel an accounting for the moneys received by the defendant for the sale of lots and to recover his share thereof. Other relief of an equitable nature was also demanded. The certificate states that it
The statute under which the defendant was organized requires the trustees, ‘at least twice in each year, to apply the proceeds of all sales of lots and plats, in redemption of such certificates.’ (Laws 1847, c. 133; Laws 1860, c. 163, § 3.) The whole number of shares, as stated in the certificate in question, is 127,850. From July 24, 1906, to November 10, 1908, when the action was commenced, nothing had been paid to the plaintiff on account of his interest in the proceeds of the sale of lots, although the defendant had continuously sold lots and collected the proceeds during that period. In August, October, and November, 1907, as well as at other times, the plaintiff made due demand, twice in writing and at other times verbally, that the defendant account and pay over to him his share, but the demand was uniformly refused. The defendant also refused, although duly requested, to allow the plaintiff to examine its books or to render any statement whatever as to its action in the premises. The complaint is very long and contains many allegations in amplification of those stated, but these facts, which were duly set forth, are sufficient to show its general nature.
The defendant demurred on the ground that the complaint ‘does not state facts sufficient to constitute a cause of action.’ The demurrer was overruled at Special Term, and the interlocutory judgment was affirmed by the ...
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Ray v. Marine Midland Grace Trust Co.
...of the purported class were potential claimants to a limited fund for recovery of their several claims (see, e.g., Tyndall v. Pinelawn Cemetery, 198 N.Y. 217, 91 N.E. 591; Guffanti v. National Sur. Co., 196 N.Y. 452, 90 N.E. 174). Class actions were also sustained, without difficulty, where......
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Lichtyger v. Franchard Corp.
...Indian Motorcycle Co., 300 N.Y. 513, 89 N.E.2d 246; Kovarsky v. Brooklyn Union Gas Co., 279 N.Y. 304, 18 N.E.2d 287; Tyndall v. Pinelawn Cemetery, 198 N.Y. 217, 91 N.E. 591; Guffanti v. National Sur. Co., 196 N.Y. 452, 90 N.E. 174; Pfohl v. Simpson, 74 N.Y. 137.) To be sure, many of these c......
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Pinelawn Cemetery v. Simon
...receives in its own right may be considered. The part which it holds as agent or trustee for the shareholders (Tyndall v. Pinelawn Cemetery, 198 N.Y. 197, 91 N.E. 591; Reese v. Pinelawn Cemetery, 243 App.Div. 165, 276 N.Y.S. 381), should be excluded. The amount which must by statute be depo......
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Sullivan v. Mt. Carmel Cemetery Ass'n
...not been changed in this particular, and was not intended to be changed by reason of their omission after 1895. In Tyndall v. Pinelawn Cemetery, 198 N. Y. 217, 91 N. E. 591, it was decided that an action for an accounting upon the certificates of indebtedness there in suit was the proper re......