Yome v. Gorman
| Decision Date | 04 May 1926 |
| Citation | 152 N.E. 126,242 N.Y. 395 |
| Parties | YOME v. GORMAN et al. |
| Court | New York Court of Appeals Court of Appeals |
Action by Anna Yome against John B. Gorman, as Supervisor of Roman Catholic Cemeteries, Diocese of Brooklyn, and another. An order of the special term (125 Misc. Rep. 322, 209 N. Y. S. 739), granting plaintiff's motion for preliminary injunction to restrain defendants from interfering with removal of bodies of plaintiff's husband, children, mother, and brother from Holy Cross Cemetery, was affirmed by the Appellate Division (213 App. Div. 329, 210 N. Y. S. 372), and defendants appeal by permission on certified questions.
Order reversed, and questions answered.
The Appellate Division certified the following questions:
‘(1) The Roman Catholic Diocese of Brooklyn, a religious corporation, by written instrument on September 20, 1916, granted to John D. Yome and the plaintiff a qualified right of burial in the cemetery of the Holy Cross, a cemetery owned and operated by it under the rules of the Roman Catholic Church in the borough of Brooklyn. Said grant is in the following form:
“This is to certify that * * * is the proprietor of the right of burial in that certain lot, * * * on a certain map entitled, ‘Cemetery of the Holy Cross,’ * * * subject to the rules and regulations to be made by the Right Reverend Bishop of Brooklyn relating to said cemetery: Provided that nothing herein contained shall be construed to grnat any other right or privilege whatever than the right of burial therein; and provided, further, that the said right shall not extend to the burial of any deceased person who shall have departed this life not in communion with the Catholic Church.
‘(2) Where a husband and wife have purchased from a religious corporation a right of burial in a cemetery owned and operated by said religious corporation, and the instrument granting said right provides that it grants the right of burial only and no other right, and that the right of burial is subject to the rules and regulations referring to said cemetery made by the chief officer of said church corporation, and where there have at all times existed rules made by said chief officer preventing the burial in said cemetery of the bodies of persons who have died not in communion with said church, and preventing the removal of bodies of persons who have been buried in said cemetery for the purpose of reburying them in any other cemetery not connected with said church, and where said husband has caused to be buried in said lot and under said rules certain deceased members of his family, and where said husband shortly before his death with the consent and procurement of said wife receives the communion of said church for the purpose of enabling his body to be buried in said cemetery, and where said husband dies and said wife (now widow) causes his funeral to be held by the representatives of said church for the purpose of having his body buried in said cemetery, and where the widow causes his body to be buried in said cemetery under said rules and regulations, has said widow, with the consent of the surviving children of said husband, the right thereafter to remove the body of said deceased husband for burial in another cemetery not connected with said church?
‘(3) Where the body of a deceased husband has been buried by his widow in a cemetery under a contract by which it was not to be removed from said cemetery except under the rules of the chief officer of a religious corporation which owned and operated said cemetery, has the widow of said deceased husband, with the consent of his surviving children, the right to remove the body of said deceased husband from said cemetery against the rules made by the chief officer of said religious corporation relating to removal of bodies from said cemetery?
‘(4) Is the plaintiff herein entitled to a preliminary injunction restraining the defendants from interfering with her removal of the body of John D. Yome and the other bodies involved with Holy Cross Cemetery?’
Appeal from Supreme Court, appellate Division, Second department.
John J. Curtin and Wesley S. Sawyer, both of New York City, for appellants.
Henry Waldman, of New York City, for respondent.
The controversy has its origin in an attempted disinterment of the bodies of the dead.
John D. Yome and the plaintiff, Anna Yome, his wife, bought an eight-grave plot in Holy Cross Cemetery, Brooklyn. They had buried two infant children in the same cemetery many years before. The approach of old age seems to have warned them of the need of providing a resting place for themselves and for others who were close to them. There is a statement by the plaintiff that the plot was taken with the thought of supplying a place of merely temporary burial. Its size, however, the number of its graves, and the use thereafter made of it, suggest a purpose more enduring. Holy Cross Cemetery is maintained by the Roman Catholic Diocese of Brooklyn. Burial within the cemetery is a privilege reserved to those who have died in communion with the Roman Catholic Church. The certificate of ownership delivered to the purchasers of plots expressly so provides, and provides also that the right of burial shall be subject to the rules and regulations of the Bishop of the Diocese. In the faith of the Church, plaintiff's mother and brother were buried in the plot so purchased. This was done some years ago while Mr. Yome was yet alive. The end came for him in February, 1925. On his deathbed he received the sacraments of his church, and he was laid in his grave in accordance with its rites. A rule of the Church forbids the removal of a body from consecrated ground to ground that is unconsecrated, or consecrated to another faith.
There was swiftly a change of heart. Plaintiff, though baptized a Roman Catholic, became the owner of a plot in a non-Catholic cemetery, where it is now her purpose to be buried. She made demand upon the defendants, the Roman Catholic Diocese and the Supervisor of Cemeteries, for permission to remove the bodies. They refused to yield to the demand on the ground that disinterment for the purpose of removal to a cemetery of another faith would be an act of desecration. Plaintiff, seeking to justify her position, insists that her husband was without devotion to the tenets of the Church, and did not care where he was buried if only he was close to her. Defendants remind us on the other hand that he was reared in the faith of the Church, and died in it, sending for a priest upon his deathbed to gain the privilege of burial in consecrated ground. What the plaintiff says of her husband, she...
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