THE CEMETERY
A Pullie Problem
Special Message of the Hon. Petes E. Dewey, Governor,
to the Legislature
BASED ON
Rics of the Hon. Nathaniel L: Goldstein, Attorney General,
to the Governor
February, 1949
Albany, February 14, 1949
TO THE LEGISLATURE:
I have the honor to submit to you today the report
of the Attorney General upon an intensive investigation
he has conducted into the operation of cemeteries org-
anized_under the Membership Corporations Law of our
State.\ The report reveals shocking abuses on a wide-
spread scale and of the most serious nature.
Because of the extreme mental anguish suffered by
the bereaved at the time of their contact with ceme-
teries, these abuses have continued unchecked, unnoted
and uncorrected for many decades. The Attorney Gen-
eral has rendered a great service to the people of our
State in the uncovering of these conditions. The uncov-
ering of the conditions, however, is but the preliminary
to the sorely needed remedy of correction. That remedy
is provided in the recommendations he makes for the
better regulation and supervision of cemetery corpora-
tions. Excluded from the scope of such supervision are
One
cemeteries operated by religious organizations since
such cemeteries have not been diverted to the extortion-
ate and exorbitant gain of private individuals.
It is clear from the report that for over one hundred
years the operation of cemeteries has been recognized
as affecting the public interest and of having the status
before the law and before the courts of quasi-public
utilities. The policy of the State in controlling their
operation has never been questioned. The machinery
for such regulation and supervision has been, as prov-
en, hopelessly inadequate. The existing statutes have
not prevented the public from being cheated, exploited
and subjected to indignities in a concern which is per-
haps the most pitiful of any suffered by man. To permit
these conditions to continue would be intolerable. I
am sure that the Legislature will feel as strongly as I
do that such conditions should not be permitted to
continue.
I earnestly submit for your careful consideration the
enactment of legislation implementing the recommen-
dations of the Attorney General. Those recommenda-
tions are based upon a year’s investigation and study.
In the light of the exposures contained in them, I
urge favorable action upon the legislation submitted
to cure the abuses described.\
STATE OF NEW YORK
DEPARTMENT OF LAW
ALBANY 1, N. Y.
NATHANIEL L. GOLDSTEIN
ATTORNEY-GENERAL
February 11, 1949
The Hon. Thomas E. Dewey,
Governor of the State of New York,
The Capitol,
Albany, N. Y.
Dear Governor Dewey:
Since March of 1948, I have been investigating
cemeteries operated by so-called non-profit cemetery
corporations or associations which were organized un-
der our present Membership Corporations Law and
its precedent statutes.
Within this category are approximately 70 per cent
of all the cemeteries of the State, large and small,
urban and rural. To them, in times of great emotional
stress or in somber anticipation of loss, a major patt
of our population must apply for space for the burial
of their dead and for the subsequent care of the graves.
Three
The nature and operation of so many cemeteries
upon which so great a number of people are dependent
must be matters of high concern to the State. Public
health, welfare, customs and sentiments are involved.
During the 1948 session of the Assembly, a reso-
lution was introduced by Assemblyman Nathan Lashin
calling for creation of a Joint Legislative Committee
to probe the conduct of cemeteries. He re-introduced
his resolution at the inception of the current session,
while Assemblyman Malcolm Wilson offered a similar
probe resolution with the stipulation that a legislative
committee report on the matter by March 1950.
My inquiry has been directed not only into the
possible violation of existing statutes affecting these
cemetery corporations but also into the nature of their
actual control, their practices and methods of perform-
ing their service, their day-to-day dealings with the
public, their rates and charges and the use and disposi-
tion of funds which the public pays for burial rights
and the care of graves.
The law intends these cemetery corporations to be
operated without profit and for the mutual benefit of
those persons who purchase burial space, In most in-
stances, the purchaser is entitled, theoretically, to vote
for the management trustees.
The People of the State, in recognition of the pub-
lic aspects, have granted to cemetery corporations cer-
tain definite and valuable benefits, including exemption
from taxation, and have reposed a serious trust upon
Four
those individuals who establish and maintain ceme-
teries.
Inasmuch as the service they are supposed to ren-
der is an essential one, the cemetery corporations may
well be regarded, in the exact sense, as public utilities.
Public need and public dependence upon their service
is certainly comparable to the need of and dependence
upon such public utilities as gas, electricity, transporta-
tion or communication! From the point of view of law-
maker, law enforcer and layman, the cemetery corpora-
tions are dedicated to, and holding their property for,
a public use.
There is, however, a shocking disparity between
theory and actuality.
The investigation by members of my staff under my
direction has disclosed that, far from being operated
on a non-profit basis in the interest of the public, a
large number — probably larger than is known — have
been and continue to be run as lucrative commercial
ventures.
Indeed, they have been cynically developed into
devices for profiteering on the widest possible scale.
Evidence is at hand that operators drain millions of
dollars annually from the cemetery corporations.
Nor is this all. In pursuit of enrichment, unscrupu-
lous operators take every means to exploit the needs
and grief of the public. Practices are employed or coun-
tenanced which work frauds and indignities upon peo-
“Five
ple and have given numerous occasions for valid
complaint.
There is a shameful neglect of grounds; rates and
charges are geared for extravagant profit without re-
lation to cost; trust moneys are diverted; unconscion-
able commissions are paid to boost sales; middle-men
are given free rein to mark-up prices; tie-in schemes
link cemetery and monument dealer; controls are per-
petuated and handed down in families from generation
to generation like heirlooms; bulk sales of plots are
made to favored individuals for re-sale at pressure
prices; plot owners are subjected to arrogant treatment
by officers and trustees; supervision of care is peddled
on a concession basis to the highest bidder; and, in-
evitably, certificates of indebtedness, which are in ef-
fect mortgages on cemeteries, are sold and traded by
speculators.
The story, which is amplified in the pages follow-
ing, is certain to have a grim ending unless these abuses
of a public trust are halted. It must be apparent from
the type of operation now on the increase that, in the
foreseeable future, when the corporations have been
drained of their last easy dollar, the operators will
abandon cemeteries and thrust them back upon munici-
palities to become public charges.
——
I have instituted a number of court proceedings
aimed at situations in which I believe the owners and
operators of cemeteries have gone beyond the fences of
the present laws relating to cemeteries. Other proceed-
ings are in preparation.
Six
However, it is my conviction that much of the
sorry condition in cemeteries can be attributed to the
very weakness of the laws. Having undergone sub-
stantially little change in almost one hundred years,
they are outmoded and ineffectual in the light of cur-
rent problems.
A trend toward profiteering with reckless disregard
of public interest became apparent some forty or so
years ago. This trend intensified in the decades follow-
ing the first World War and is now in full tide.
In the past four months I have had conferences
and interviews with a considerable number of individu-
als now engaged in cemetery operation and with rep-
resentatives of various cemetery associations. Although
there is a divergence of views among them, most are
agreed that some legislative correction of the cemetery
law is inevitable and some mode of supervision is
necessary.
It is my final conclusion that only a revision of the
present law, principally with an objective of providing
regulation and supervision in the public interest, can
remedy the general situation.
To accomplish this, I have drafted a bill. The key
elements are described at the end of this report. The
text is being submitted simultaneously.
The public aspects of this problem will be of great
interest to you, and it is my hope that you will adopt
this legislation as part of your program and recommend
it to the Senate and Assembly for passage at this
session.
Not All Cemeteries
It should be noted that my investigation, and my
concern, are limited to those cemetery corporations as
defined in the Membership Corporations Law, Sections
70571.
Excluded are cemeteries belonging to or operated
by religious corporations, Protestant, Catholic, Jewish
or other faiths, since it is patent that monies paid by
the public to these are never diverted to private gain.
Also excluded are cemeteries belonging to or op-
erated by municipal corporations, and burial grounds
which may be described as operated for family or in-
dividual use.
I do not wish to give the impression that all ceme-
tery corporations of the type under investigation are
engaged in the practices covered by this report. As a
matter of study, simultaneously with the investigation
of specific complaints and cases, my office circulated a
questionnaire to some 1,400 cemeteries throughout the
State.
The answers to some of these, together with the
findings based thereon, indicated, by and large, that
most rural cemeteries and some large urban cemeteries
are maintained along fair to good lines, although cer-
tain aspects of the majority could be improved.
It is self-evident that those cemeteries which are
operating in the public interest have nothing to fear
from the remedial proposals. They, and the People of
the State, would be helped by a sound, fair and effec-
tive law.
Eight
Law and Intent
Cemeteries obtain charters as non-profit member-
ship corporations under the Membership Corporations
Law. As far back as the initial statute covering burial
associations, Chapter 133 of the Laws of 1847, such
corporations were permitted to be organized on a non-
profit basis, and only on such basis, to be operated
exclusively for the burial of the dead.
Irrespective of the statute, cemetery corporations
have always been viewed as non-profit associations and
have been described by the Supreme Court of the
United States as being not “a mere land company, for
the exclusive benefit of the original associates and their
successors holding shares in the stock of the corpora-
tion,” but rather, associations so formed ‘‘that the
ultimate and principal object was to establish and
permanently maintain a cemetery for the burial of the
dead, which, if not strictly a charitable use, is in some
aspects a pious and public use.”
Our tax law grants to cemetery corporations an
exemption from real estate taxes of lands occupied
and used for cemetery purposes.” They are also exempt
from State franchise taxes and generally exempt
from federal income tax.® It is to be noted that the
tax exemption applies to the lands held by a cemetery
corporation for burial purposes regardless of whether
interments have actually taken place and even if fu-
1Close v. Glenwood Cemetery, 107 U. S. 466, 474 (1882). See
also Commissioner of Internal Revenue v. Kensico Cemetery, 96
Fed. 2d, 594.
2Tax Law, Sec. 4 (6).
3Commissioner of Internal Revenue v. Kensico, (supra).
ture legislation has forbidden further interments.‘
These cemetery corporations are given the right to
acquire lands for cemetery purposes through the exer-
cise of the power of eminent domain or condemnation
(Membership Corporations Law, Sec. 75). The grant-
ing of this power necessarily connotes a public use.
These cemetery corporations may either acquire
lands exclusively for cemetery purposes or within the
limitations set forth in Section 76 of the Membership
Corporations Law, are permitted to acquire lands for
purposes incidental to the cemetery use. In so far as
the land acquired for burial use is concerned, it is
clear from the cases that such lands, although under
private ownership, are held as dedicated to public
use.”
In People ex rel. Oak Hill Cemetery Association
v. Pratt, 129 N. Y. 68, 74, our Court of Appeals said:
“* * * Tt is thus seen * * * that the land
of the realtor is held exclusively for cemetery
purposes, and that it cannot be devoted to or
used for any other purpose. It has no power
to sell any of its land except to persons who
desire it for burial purposes, and all of its
land, the moment it acquires it and before
a dead body is buried therein, is absolutely
exempt from all taxation.”
' ~
*People ex rel. Buffalo Park Association v. Stilwell, 190 N. ¥:
ce ex rel. Oak Hill Cemetery Association v. Pratt, 129
5Whittemore v. Woodlawn Cemetery, 71 App. Div. 257: Matter
of Lyons Cemetery Association, 93 App. Div. 19; cf. People v.
N. Y. C. and H.R. R. R. Co: 28 Hun 543.
Ten
Under Section 450 of the Real Property Law, fur-
ther privileges are granted to cemetery corporations
with regard to exemption from taxes and assessments
and levy of executions under judgments.
It is clear, I repeat, that they are intended to be
non-profit membership associations with certain privi-
leges and immunities granted by the State, and de-
voted to and holding their property for a public use.
These cemetery corporations can be described as
public utilities and have even been termed quasi-pub-
lic corporations.°
The present provisions of the Membership Corpo-
rations Law dealing with cemetery corporations( Arti-
cle IX), attempt to preserve this non-profit and pub-
lic use concept. The present statute is, generally
speaking, a revised and amended copy of Chapter 133
of the Laws of 1847. During the course of the inter-
vening one hundred years, additions and changes have
been made in the law in a rather haphazard and loose
manner which tend to confuse rather than clarify.
The effect of this type of growth in our attempted
control of the activities of cemetery corporations has
been to bring about a statute which sets forth, in a
general way, the methods in which cemetery corpora-
tions should operate but has failed to provide measures
for the enforcement of proper practices and, of ever
greater importance is the fact that no provision is
made for the supervision of the activities of these sup-
posed non-profit corporations.
6Rosehill Cemetery Company v. Hopkinson, 29 N. E. (Illinois)
685; Faulk v. Buena Vista Burial Park Association, 152 8S. W.
2d (Texas) 891.
* Eleven
The Loopholes
To clearly understand the present statutory provi-
sions regarding the care and maintenance of cemetery
grounds, it is necessary to understand the makeup of
a cemetery corporation.
‘When the membership corporation is formed, it
must necessarily acquire land. Usually, we find that
the organizers of the corporation — the promoters —
own land which they then convey to the corporation,
at prices far above its cost or fair market value. The
corporation does not pay any cash for the land. It
makes payment in one of two ways. The corporation
and the vendors may agree upon the value of the land.
This value, it is to be noted, is not restricted by our
statute and may and does in practice, as my investi-
gation reveals, exceed the actual value or cost many
times over.’ The corporation then issues certificates
totaling this purchase price. The alternative method
is for the corporation and the vendors to wholly omit
the fixing of any purchase price and for the corporation
to issue to the vendors land shares under which the
corporation agrees to pay to the shareholders a spe-
cified percentage of the profits of the sale of burial
plots. This fixation is made irrespective of the cost
or fair market value of the land so conveyed. The
payments continue until the last plot is sold.
If these methods of payment be not limited by
statute, the proceeds of the sale of plots may be dis-
tributed wholly to the promoters with nothing retained
TUnited Disner Burial Association v. Springfield, L. I., Cemetery
Society, 171 Misc. 498.
Twelve
or used for the care and preservation of the cemetery.
My investigation discloses this practice to be patent.
Our present statute sets forth a theory of practice
under which a part of the proceeds of these sales is
to be used for the care and maintenance of the ceme-
tery. Unfortunately, however, the statute as drawn,
actually leaves it in the discretion of the directors of
the corporation to expend the monies as they see fit.
Section 87 of the Membership Corporations Law simply
makes it incumbent upon the directors to pay to the
certificate holders at least 50 per cent of the proceeds
of sale of plots and a sum not exceeding 50 per cent
to the shareholders. The “balance” of the proceeds,
if any, is to be used for the care, preservation and
embellishment of the cemetery.
There is nothing in the statute which prevents the
directors from paying out the entire proceeds to the
certificate and land shareholders, and this practice is
being followed in many cases. The late Chief Judge
Crane, when sitting at Special Term, said, as far back
as 1916, that it is a bad policy to take all the income
and apply it to the purchase price and that failure to
leave a proper amount for care and maintenance is
contrary to the spirit of the law, but that there is
nothing in the statute which makes illegal such action
on the part of the directors. (Matter of Norton, 97
Misc. 289).
As Judge Crane clearly points out, the statute con-
tains a wholly meritorious spirit and intention but fails
to make practices contrary to this spirit and intention
a violation of law for which the corporation and the
Thirteen
directors may be held liable. This, I find to be true
in almost all other important particulars of the statute.
No supervision is provided for and no specific punish-
ment or remedy is set out.
Section 82 of the Membership Corporations Law,
provides for rules and regulations which may be made
by the directors of the corporation. Included in this
section is a provision that the directors may make
“reasonable” charges in connection with the care and
management of plots. There is nothing in the statute
which defines what the word ‘reasonable’ means;
there is nothing in the law which gives anybody the
right to supervise or to examine into the charges;
there is nothing in the law which prevents the directors
from so fixing these charges as to make them “‘reason-
able” only in the sense that they permit tremendous
payment or profit to operators of the cemetery, and to
the promoters. These are common practices.
Section 91 of the Membership Corporations Law,
similarly allows the corporation to “adopt a reason-
able and uniform scale of prices to be charged for the
perpetual care of all lots in its cemetery.” All of the
criticism in connection with Section 82 applies here.
The abuses under these sections are flagrant and
widespread.
The same Section 91 makes provision for the pay-
ment to the corporation of a “reasonable” amount for
any perpetual care of a lot. The investigation indicated
that these trust funds so entrusted to the corporation
are frequently commingled with other funds and used
Fourteen
for profit rather than the care and maintenance of
the graves. This violates Section 76 of the Membership
Corporations Law and provisions of the Penal Law.
Actuality
The following sampling of facts and incidents may
provide a sharper illumination of present day cemetery
conditions.
They are taken from records of examinations, let-
ters from the public, spot investigations and court
cases now in progress. In no sense are they unique.
Rather, they suggest the typical.
* * *
Concession: W— Cemetery, the history of
which is a story in itself of financial marauding and
looting, no longer hires a Superintendent. The pres-
ent trustees, burdened with the problem of maintain-
ing a large cemetery after its funds had been dissipated
by others, now ‘“‘sells” the job. The present Superin-
tendent pays $6,000 a year for the post.
A Superintendent, of course, is the official re-
sponsible for the appearance of a cemetery and usually
arranges to care for the graves.
The Superintendent of W————— Cemetery is
given the “care concession” for his $6,000 annual
“rent.’” Plot owners must apply to him and pay his
prices.
Available figures show that the Superintendent of
W— clears on the concession $40,000 to
$50,000 a year above his “rent” and costs.
Fifteen
Similar concessions are in operation at M
and B————— Cemeteries. Their operation empha- .
sizes the difference between cost and charge in the
“non-profit” cemetery.
* * *
Stillborn: The S————— Cemetery Association
makes a flat all-inclusive charge of $30 to bury the
bodies of still-born infants.
It stipulates, however, that the interments will be
in “unmarked graves.”
In actual practice, these interments are in what
the cemetery officials describe as “the space between”
two standard occupied graves. Since grave space is
laid out in adjoining rectangles, the truth of the mat-
ter is that the stillborn infants are really buried at a
shallow level above other bodies . . . and the facts of
these burials are unknown either to the parents of the
dead infant OR TO THE OWNERS OF THE PLOT
IN WHICH THE BURIAL IS MADE.
* * *
Honored Dead: C————— Cemetery, like count-
less others, assesses plot owners $1 a year per grave
for the general maintenance of the cemetery grounds.
Its rules specify, in small type, that no interment will
be permitted in any plot unless all charges on that
plot, including the assessment, have been paid.
In mid-January, of this year, a family owning a
plot informed C officials that their son, a
G.I. killed in action in Germany, was being returned
Sixteen
to the United States and that the Army had arranged
to have the body available for burial on January 23.
The father of the dead G.I. was promptly informed
that $14 in back assessments were due and that there-
fore no burial would be allowed until the $14 were
paid. All plans were actually held up.
Section 87, you will recall, provides that funds
left from purchase money, AFTER payments to’ share
and certificate holders, should be used for the main-
tenance of a cemetery.
* ** ok
Grass: In 1929, the owner of a six-grave plot at
B————— Cemetery was billed $6 for grass-cutting.
This annual charge for the simplest kind of care
continued for a number of years.
The present charge for grass-cutting on the same
plot, he wrote, is $20 a year.
This example is cited here because of its wide
recurrence.
Some may think that $20 a year is a modest charge
for cutting the grass on six graves.
To understand the charge in its proper perspec-
tive, however, it should be considered that cemeteries
place about 1,200 graves to an acre. At a charge of
$3.33 per grave, the cemetery is collecting almost
$4,000 per acre per year — for cutting the grass. This
cutting is done but once in the Spring and once in the
Fall.
Seventeen
Contract: For the past several years, an organiza-
tion which owns burial rights in D-— Cemetery
has been receiving bills for the specific job of trim-
ming the hedges around the area.
Only recently did the officials of the organization
learn that the cemetery had uprooted the hedges more
than three years ago. Yet the trimming bills have been
coming.
Scores of complaints have been received for similar
failures to deliver care as per contract or for charging
on work never performed. 4
* bd
Size Of (the Box: (At Re Cemetery, the
charge for a grave opening is based on the type and
size of the burial container. When a plain coffin is
used, the charge is $16. A casket, $20. An “outer
box” and casket, $25. The so-called “concrete vault,”
a cement outer box, $35.
_ It is general practice to dig a grave of standard
size, no matter what the size of the box. Therefore
this charge has no relation to the cost of opening the
grave, only to the ability to pay of the bereaved family.
It is the unusual cemetery which has one price for
a grave opening.
Closely related to this profit device is the follow-
ing practice.
* * *
Package Sale: On the grounds of E—
Eighteen
tery is a sign alleging that the charge for a grave open-
ing is $3. This is a remarkably low price.
However, when a. funeral cortege arrives, the
mourners are told the charge for the grave opening
and “extras” is from $35 to $47 — again depending
upon the size of the coffin or casket. Persons who pro-
test are informed that the increased charge is for the
“extras” — a lowering device, artificial grass to cover
the raw mounded earth, a canopy, etc.
Unless the cortege wants to escort the body back
home, the package sale must be accepted.
ca * *
Mark-up: An action launched by my office and
involving M. G Cemetery disclosed
that not only persons in direct control but even middle-
men. are enriching themselves through “non-profit”
cemeteries.
A pseudo-real estate corporation, organized by
professional cemetery promoters, cleaned up a gross
profit of more than $1,650,000 in five years by “‘re-
tailing” M G graves.
The promoters, who invested only $200 in their
operating corporation, bought graves in bulk from
the cemetery and re-sold to the public at a 100 per cent
mark-up.
Actually, the promoters took the graves on consign-
ment and were not required to make any payment to
the cemetery until the full price had been collected
Nineteen
from the public purchaser. Thus, not only did the ceme-
tery trustees surrender their franchise to sell graves
but the cemetery received only half the funds the pub-
lic believed it was paying to it.°
* *
Paths: At M C Cemetery, a son
had his mother interred in 1931. In a complaint late
in 1948, he stated that other gtaves had been laid out
in such a fashion around that of his mother’s that
he was unable to reach hers except by walking on the
others.
To utilize every dollar-valuable foot of space, paths
are frequently converted to burial use, isolating all but
the graves on the fringe of a given section.
* * *
Self-arranged Bargains: An official of the large
P: —— Cemetery sold herself 5,000 burial plots for
$11,000.
The cemetery treasury got the $11,000, but the
official got: 5,000 plots, each plot consisting of four
Staves, each grave permitting of two interments, one
above the other. Simple arithmetic shows the official
on re-sale, is now equipped to make space available
for 40,000 bodies, the space for each body having
cost her only 27% cents.
Going price in the “open market” for these 2714-
cent burial spaces ranges between $50 and $100 each.
Twenty
Another official in the same cemetery bought 3,000
plots at about the same bargain price scale.
It’s idle to speculate on the profit these two offi-
cials wilk make. Suffice it to say that the cemetery re-
ceived less than $18,000 for 64,000 burial spaces. Out
of this $18,000 it must pay the original cost of the
ground occupied by the 64,000 spaces and provide for
current and future maintenance of the area.
A a *
Arbitrary “Debt”: M pm ise Ceme-
tery was recently purchased by an investor for approxi-
mately $100,000 cash.
For his $100,000 he bought an outstanding issue
of $7,000,000 worth of certificates of indebtedness
with interest on them amounting to another $5,000,000.
The land purchase by the original cemetery found-
ers cost an infinitesimal part of the $7,000,000 in certi-
ficates which were issued ostensibly for that purpose.
It is doubtful that $12,000,000 will ever go into
the cemetery treasury from the public sales. But the
new owner, having a $12,000,000 claim, will certainly
be able to take virtually every dollar that the public
does pay.
ca * x
Speculation: Certificates of indebtedness and land
shares issued by cemeteries, usually in inflated figures,
are objects of lively trading in over-the-counter houses
in New York City.
Twenty-one
At least 10 houses trade in Ww———, P—
and K——__—- securities.
. The speculators are realistic about the situation.
Certificates in one cemetery can be bought at about
65 cents although the cemetery gives them a book value
of $70.
* & a
Combination: The C G- Ceme-
tety Association, the subject of another action by my
office, operates some 250 acres. Investigation disclosed
that the group of officers and directors in control of
the Association split more than $2,268,000 in fees,
salaries and ‘‘dividends’’ among themselves in the past
seven years.
_ The money so divided was piled up, it is charged
in the complaint, by means of levying unreasonable,
excessive and illegal charges for care and services and
by the diversion of funds which properly should have
been used for the maintenance of the two cemeteries
on the site. :
_ It is interesting to note that the present combina-
tion of officers took over control in 1927 by investing
$1,400,000. It is difficult now to estimate how much
these men reaped from 1927 to the beginning of 1942.
But the figure cited above, for the past seven years,
was established from the cemeteries’ own books.
* * *
Tax Refuge: My office has moved to oppose the
Twenty-two
conveyance of a 17-acre section of the 40-acre E
Cemetery to a Mr. R. Mr. R. has a triple role in the
afrangement.
In 1936 Mr. R. sold the 40 acres to the cemetery.
Mr. R. is also the President of the so-called ‘‘non-
profit” corporation which owns and Operates the ceme-
tery.
And finally, Mr. R. is the prospective “purchaser”
of the 17 acres of land which have been held by the
cemetery — and therefore exempt from taxes — since
1936.
The consideration which Mr. R. offered to the
cemetery for the 17 acres is without real value but
would enable him to make a profit amounting at least
to the difference between what the land would have
brought on the open market in 1936 and what it might
bring on the open market now. In fact, Mr. R. also
saved taxes which would have been levied on the land
during the intervening years.
It should also be noted that the agreement under
which Mr. R. originally sold the land to the cemetery
provided that approximately 85% of the money te-
ceived from the sale of graves would be turned over
to him personally. And it is now proposed by Mr. R.
to continue this arrangement.
* * *
Real Estate: In 1908, Messts. G. and J. paid
$12,000 down for a 112-acre parcel of land on Long
Twenty-three
Island. Mr. C., the seller, held a $20,000 mortgage
on the parcel.
Shortly thereafter, Messrs. G., J. and C. organized
the S————— Cemetery Association and sold to it
the 112-acre parcel. To pay them for the land, $3,200,-
000 worth of certificates of indebtedness was issued.
Half of them, or $1,600,000. worth, went to Mr. C.
Messrs. G. and J. divided the other half, $800,000
worth each.
To date, more than $2,200,000 in cash has been
paid out by the cemetery from its receipts toward the
satisfaction of the certificates.
But the “improvement” of the local real estate by
Messrs. C. and J. did not stop with this rate of profit.
In 1924, Messrs. C. and J. sold to the cemetery
some 80 additional acres which they had under con-
tract of purchase for $54,000. The cemetery agreed to
pay the $54,000 and to issue to C. and J. certificates of
indebtedness, in addition, at such time as the land
could be used for burial purposes.
In 1937, the cemetery sold the 80 acres for $200,-
000 but retained unto itself 2 acres. In 1946, the New
York City Council granted the right to use these 2
acres for burial purposes. In 1947, the cemetery issued
$600,000 worth of certificates of indebtedness to C.
and J. which certificates were to be paid out of the
sale of plots or graves in these 2 acres.
In effect, an indebtedness of $300 per grave was
created before a single grave was sold.
ME * *
Twenty-four
Catalogue: Countless other incidents and examples
of profiteering and abuse could be cited.
There are, however, certain abuses which have a
high rate of recurrence. They stem from the failure
of the present law to set up either adequate stand-
ards or adequate sanctions. Among these abuses are:
... The self-perpetuation of the board of di-
rectors of these so termed non-profit corporations
so that management is concentrated in the hands
of the promoters and their successors in interest,
and are handed down from generation to genera-
tion.
. . Payment to various individuals in the
form of excessive salaries, management fees or
remuneration for services out of so-called “rea-
sonable” charges for maintenance and those en-
trusted for perpetual care.
.. . Arrogant and high-handed treatment of
plot owners by officers and directors.
. . . Maintenance charges forced upon plot
owners grossly out of proportion to the actual
care accorded them.
Levying of assessments and constant
changes in the rules and regulations of the ceme-
tery which make it possible to foist charges whol-
ly out of proportion to the actual cost and reason-
ableness thereof.
. . . Secret sales of plots to favored persons,
Twenty-five
organizations and undertakers, who may then
engage in speculation in the resale of the plots.
. . . Imposition of exorbitant charges for the
opening of graves. The corporation is well able
to collect these excessive charges since they are
usually made when a sorrowing member of the
public appears for the purpose of interring a
member of his family.
Remedy
It is evident that public need and public trust re-
quire not only clarification and amendment of the pres-
ent law but also a definite supervision and regulation
of cemetery membership corporations. The bill pre-
pared, and which is appended to this report, should
attain the objective.
It should be reiterated at this point that none of
the provisions of the proposed bill, with one exception
which will be noted, would apply to a religious corpo-
ration or to a cemetery operated by or for the exclusive
benefit of a religious corporation where the right of
burial is restricted to persons of the same religious
faith.
The bill provides for the establishment of a Ceme-
tery Board consisting of the Secretary of State, the
Attorney General and the Commissioner of Health.
This Board would be set up within the Department
of State. The Board would be empowered to administer
all provisions of the Cemetery Law; to order any ceme-
Twenty-six
tery corporation to do such acts as may be necessary
to comply with the law or any rule or regulation
adopted by the Board, or to refrain from doing any
act in violation thereof; to enforce its orders by manda-
mus of injunction; to maintain an action for civil pen-
alties.
Every finding, determination or ruling by the Board
would be subject to review by the State Courts.
A cemetery corporation would be required to file
annual reports of its financial status, its rates and
charges and its rules and regulations. The rules and
regulations and the reasonableness of the service
charges, would be subject to approval by the Cemetery
Board and would not be effective until so approved.
Civil penalties would be provided for failure to comply.
As far as feasible, the Cemetery Board should be
self-sustaining, with the expenses of administration
paid for by annual assessment against the cemetery
corporations in the following manner: $3 for each
acre, or 5% of the gross income of the cemetery, which-
ever is less, but in no event more than $1,000.
A cemetery corporation would be required to post
its approved rules, prices, rates and charges in a con-
spicuous place. The purchase of lots, plots and graves
by persons, firms or corporations for re-sale would be
banned.
A cemetery corporation would be forbidden to pay
or offer to pay, anyone save its own employees, com-
Twenty-seven
missions, or bonuses for the sale of plots. Violation
of this would be a misdemeanor.
A cemetery corporation would be required to main-
tain its burial grounds in good condition, and in order
to do so would also be required to establish a Perma-
nent Maintenance Fund and a Current Maintenance
Fund. At the time of making a sale of burial space,
at least 10% of the gross proceeds would have to be
put in the Permanent Maintenance Fund and an addi-
tional 15% in the Current Maintenance Fund. The
first fund would be a trust fund.
Monies paid into the cemetery for perpetual care
would have to be segregated and invested in legal
securities. It would be forbidden to commingle the
income of such funds. A list of the investment securities
would have to be filed each year and would be checked
regularly by the Cemetery Board. This provision would
also apply to cemeteries owned and operated by a re-
ligious corporation.
No cemetery would be permitted to refuse burial
for any reason except non-payment of the price of the
burial space. A cemetery would not be permitted to
levy any assessments on plot-owners except with ap-
proval of the Board.
To prevent future speculation, no cemetery would
hereafter be permitted to pay more than a fair and
reasonable market price, taking the method of payment
into consideration, for any real property which it might
purchase. The price would be subject to Court ap-
Twenty-eight
roval. Certificates of indebtedness would be issued
only for actual value and subject to approval by the
Cemetery Board.
ee *
It is submitted that the adoption of this legislation
will go a long way toward preventing “profiteering on
sorrow.”
Respectfully yours,
favs dasatoa
NATHANIEL L. GOLDSTEIN,
Attorney General
Twenty-nine
Upon receipt of the Governor's message, the
bill on cemeteries prepared by the Attorney General
was introduced in the Legislature by Senator Ben-
jamin F, Feinberg, Majority Leader of the Senate
(Intro. No. 1529, Print No. 1629) and Assembly-
man Lee B. Mailler, Majority Leader of the As-
sembly (Intro. No. 1760, Print No. 1829).
THE TENNY PRESS
250 WEST 54TH STREET
NEW YORK 19.N. Y.
<>.
CEMETERY LAW
CEMETERY LAW
STATE CEMETERY BOARD
NATHANIEL L. GOLDSTEIN
Attorney-General
THOMAS J. CURRAN
Secretary of State
Chairman
HERMAN E. HILLEBOE
Commissioner of Health
THEODORE D. Ostrow .
Director
Division of Cemeteries
OFFICES
164 State Street
Albany 1, N. Y.
270 Broadway
New York 7, N. Y.
State Office Building
Buffalo 2, N. Y.
472 So..Salina St.
Syracuse 2, N. Y.
Ow
CEMETERY LAW
Set forth herein are important provisions of the laws relating to
the maintenance, operation and preservation of cemetery corpora-
tions in the State of New York.
Declaration of policy as enunciated by the Legislature of the
State of New York pursuant to Chapter 533 of the laws of 1949.
The people of this state have a vital interest in the establish-
ment, maintenance and preservation of burial grounds and the
proper operation of the corporations which own and manage the
same. It is hereby declared that unhealthful, unfair, unjust, de-
structive, demoralizing and uneconomic practices have been and
are now being carried on in the maintenance and operation of ceme-
teries. To protect the well-being of our citizens, to promote the
public welfare and to prevent cemeteries from falling into disrepair
and dilapidation and becoming a burden upon the community, and
in furtherance of the public policy of this state that cemeteries
shall be conducted on a non-profit basis for the mutual benefit of
plot owners therein, the following provisions are enacted in the
exercise of the police power of the state.
The following statutes, except as otherwise indicated, are con-
tained in the membership corporations law.
§ 11. Special provisions for incorporation.
al
7s
Ped
7
3. The certificate of incorporation of a cemetery corporation
organized after September first, nineteen hundred forty-nine, shall
have endorsed thereon the approval of the cemetery board and
shall be filed in the office of the clerk of each county in which any
part of the cemetery is proposed to be or is situated, as well as in
the offices specified in the general corporation law, and shall state:
(a) Each city, village or town and county in which any part of
the cemetery is proposed to be or is situated ;
(b) The time of the annual meeting.
The provisions of this subdivision as to approval by the cemetery
board shall not apply with respect to the certificate of incorpora-
tion of any corporation enumerated in section seventy-one of this
chapter.
H
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y
4
§ 27. Investment of funds. Subject to the limitations and con-
ditions contained in any gift, devise or bequest, a membership
corporation, created by or under a general or special law, may
invest its funds in such mortgages, bonds, debentures, shares of
preferred and common stock and other securities as its directors
shall deem advisable, except as otherwise provided in article nine
of this chapter with respect to cemetery corporations.
§ 70. Definitions. As used in this article:
1. The term “cemetery corporation” means any corporation
organized under a general or special law for the burial of the dead
in a grave, mausoleum, vault, columbarium or other receptacle but
does not include a family cemetery corporation or a private ceme-
tery corporation.
2. The term “lot owner” or “owner of a lot” means any person
having a lawful title to the use of a lot, plot or part thereof, in a
cemetery.
3. The term “cemetery board” means the cemetery board in the
division of cemeteries in the department of state.
§ 71. Application. This article, except as otherwise provided
in section ninety-two, does not apply to (1) a religious corpora-
tion, (2) a municipal corporation, (3) a cemetery corporation
owning a cemetery operated, supervised or controlled by or in
connection with a religious corporation, or (4) a cemetery belong-
ing to a religious or a municipal corporation, or operated, super-
vised or controlled by or in connection with a religious corporation ;
unless any officer, member or employee of any corporation enumer-
ated in this section shall receive or may be lawfully entitled to
receive any pecuniary profit from the operations thereof, except
reasonable compensation for services in effecting one or more of
the purposes of such corporation, or as proper beneficiaries of its
strictly charitable purposes; or unless the organization of such
corporation for any of its avowed purposes be a guise or pretense
for directly or indirectly making any other pecuniary profit for
such corporation, or for any of its officers, members or employees ;
and unless such corporation be not in good faith organized or con-
ducted exclusively for one or more of its stated purposes.
§ Tl-a. Cemetery board. 1. There is hereby created a cemetery
board within the division of cemeteries in the department of state.
2. The members of such board shall be the secretary of state, the
attorney-general and the commissioner of health, who shall serve
without additional compensation.
3. The secretary of state, attorney-general and commissioner of
health may each, by official order filed in the office of his respective
department and in the office of the board, designate a deputy or
other representative in his department to perform any or all of the
duties under this article of the department head making such
designation, as may be provided in such order, except the power to
sign any order or determination of the board. Such designation
shall be deemed temporary only and shall not affect the civil service
vd
or retirement rights of any person so designated. Such designees
shall serve without additional compensation.
4. The secretary of state shall be chairman of such board, pro-
vided that in his absence at any meeting of the board the attorney-
general or the commissioner of health, in such order, if either or
both be present, shall act as chairman. When designees of such
officers, in the absence of all such officers, and acting for them, are
present at any meeting of the board, the designee of the secretary of
state, if present, and in his absence one of the other designees pres-
ent, in the same order of preference as provided for the officer
appointing him when present at a meeting, shall act as chairman.
5. Technical, legal or other services shall be performed in so far
as practicable by personnel of the departments of state, law and
health without additional compensation but the board may employ
and compensate within appropriations available therefor such
assistants and employees as may be necessary to carry out the pro-
visions of this article and may prescribe their powers and duties.
6. Two members of the board shall constitute a quorum to trans-
act the business of the board at both regular and special meetings.
7. The board shall meet at least once a month, shall keep a record
of all its proceedings and shall determine the rules of its own
proceedings.
8. Special meetings may be called by the chairman upon his initi-
ative, and must be called by him upon receipt of a written request
therefor signed by another member of the board. Written notice of
the time and place of such special meeting shall be delivered to the
office of each member of the board.
9. The board shall have the duty of administering the provisions
of this chapter which deal with cemetery corporations other than
cemeteries and cemetery corporations enumerated in section
seventy-one of this article and shall have all the powers herein pro-
vided and such other powers and duties as may be otherwise pre-
seribed by law.
§ 71-b. Director of the division of cemeteries. The cemetery
board shall appoint a director of the division of cemeteries who
shall hold his office for a term of six years. He shall receive an
annual salary to be fixed by the board within the appropriations
available to the board. Subject to the supervision, direction and
control of the board, the director of the division of cemeteries
shall be responsible for the administration of this article and he
shall exercise and perform such duties and functions of the board
as it may assign or delegate to him from time to time.
§ 72. Consent of local authorities. 1. No cemetery shall here-
after be located in any city or village, without the consent of the
local legislative body of such city, or the board of trustees of such
village.
2. No cemetery shall hereafter be located in any town, outside
of an incorporated village in Suffolk county without the consent of
the town board of such town.
br esre
SPI eS RTO ea
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Pir Bhs CL aN IN CT AN REM ET Coaee ee
ISR rete
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Cope St
6
§ 73. Cemeteries in Kings, Queens, Rockland, Westchester,
Nassau, Suffolk, Putnam and Erie counties. A cemetery corpo-
ration shall not take by deed, devise or otherwise, any land in the
counties of Kings, Queens, Rockland, Westchester, Nassau, Suffolk,
Putnam or Erie for cemetery purposes, or set apart any ground
therefor in any of such counties, unless the consent of the board
of supervisors or legislative body thereof, or of the board of alder-
men of the city of New York, in respect to Kings or Queens county,
be first obtained. Such consent may be granted upon such eondi-
tions, and under such regulations and restrictions as the public
health and welfare may require. Notice of application for such
consent shall be published once a week for six weeks, in the news-
papers designated to publish the session laws and in such other
newspapers published in the county as such board or body may
direct, stating the time when the application will be made, a brief
description of the lands proposed to be acquired, their location and
the area thereof. Any person interested therein may be heard on
such presentation. If such consent is granted the corporation may
take and hold the lands designated therein. The consent shall not
authorize any one corporation to take or hold more than two hun-
dred and fifty acres of land. Nothing contained in this section shall
prevent any religious corporation in existence on April fifteenth,
eighteen hundred and fifty-four, in any of said counties from using
as heretofore any burial ground then belonging to it within such
county. Such board or body, from time to time, may make such
regulation as to burials in any cemetery in the county as the public
health may require.
§ 74. Corporate meetings. Each owner of full age of a lot in
the cemetery of the corporation, as shown on the cemetery map at
the time of the purchase of the lot from the corporation, and having
an area of at least sixty square feet, or if there be two or more
owners, then one of them designated in writing by a majority of
them, may cast, in person or by proxy, one vote at meetings of the
corporation in respect to each such lot so owned. At such meetings,
each owner of a certificate of stock heretofore lawfully issued shall
be entitled to one vote for each share of stock owned by him and
each owner of a certificate of indebtedness shall be entitled to one
vote for each one hundred dollars of such indebtedness remaining
unpaid. No lot owner shall be entitled to vote unless all assessments
against the lot of such owner shall have been paid. A quorum for
the transaction of business, unless the certificate of incorporation
or by-laws otherwise provide, shall be five members entitled to vote
at the meeting.
§ 75. Acquisition of property. If the certificate of incorpora-
tion or by-laws of a cemetery corporation do not exclude any person,
on equal terms with other persons, from the privilege of purchasing
a lot or of burial in its cemetery, such corporation may, from time
to time, acquire by condemnation, exclusively for the purposes of
a cemetery, not more than two hundred acres of land in the aggre-
gate, forming one continuous tract, wholly or partly within the
|
|
7
county in which its certificate of incorporation is filed or recorded
except as in this article otherwise provided as to the counties of
Erie, Nassau, Suffolk, Kings, Queens, Rockland and Westchester. A
cemetery corporation may acquire by condemnation, exclusively for
the purposes of a cemetery, any real property or any interest therein
necessary to supply water for the uses of such cemetery, and the
right to lay, relay, repair and maintain conduits and water pipes
with connections and fixtures, in, through or over the lands of others ;
the right to intercept and divert the flow of waters from the lands
of riparian owners, and from persons owning or interested in any
waters. But no such cemetery corporation shall have power to
take or use water from any of the canals of this state, or any canal
reservoirs as feeders, or any streams which have been taken by the
state for the purpose of supplying the canals with water. A ceme-
tery corporation may acquire, otherwise than by condemnation, real
property as aforesaid and additional real property, not exceeding
in value two hundred thousand dollars, for the purposes of the
convenient transaction of its business, no portion of which shall be
used for the purposes of a cemetery.
§ 76. Acquisition of property for special purposes and in trust.
A cemetery corporation may acquire, otherwise than by condemna-
tion, real or personal property, absolutely or in trust, in perpetuity
or otherwise, and shall use the same or the income therefrom in
pursuance of the terms of the instrument by which it was acquired
for the following purposes only:
1. The improvement or embellishment, but not the enlargement
of its cemetery;
2. The construction, preservation or replacement of any building
structure, fence, wall, or walk therein; :
3. The erection, renewal or preservation of any tomb, monument
stone, fence, wall, railing or other erection or structure on or around
its cemetery or any lot or plot therein;
4. The planting or cultivation of trees, grass, shrubs, flowers or
plants in or about its cemetery or any lot or plot therein;
5. The construction, operation, maintenance, repair and replace-
ment of a crematory or columbarium or both in its cemetery;
6. The care, keeping in order and embellishment of any lot, plot
or part thereof or the structures thereon, in its cemetery as pre-
seribed in the instrument transferring such property to the ceme-
tery corporation, or by the person or persons from time to time
having possession, care and control of such ]
@ : | ot, plot or pa
as the case may be. »P part thereof,
All moneys and property received by a cemetery corporation in
trust under this section, unless otherwise provided in the instru-
ment under which such moneys or property were received and unless
already so invested when received, shall be invested within a rea-
sonable time after the receipt thereof, and kept invested, in such
securities as are permitted for the investment of trust funds by
section twenty-one of the personal property law, provided that no
investment shall be made pursuant to this section which, at the
8
time such investment shall be made, will cause the aggregate i.
value of the investments not made gy ae rad ype wee See
(1) of subdivision one of said section twenty-on
ae law to exceed twenty al i yeanbgtee cea tag Lalit
; m
value of all the property of the fund at the tl as
i i h investment shall be ma
the investment, and provided that no suc all b p
t trust obligations, o
j bonds, debentures, notes, equipment
oiled, fay ebed of indebtedness not made eligible by said parnereD os
(a) to (L) of subdivision one of said section any OPE 9 ee
personal property law unless he obhere Lp) aula peny ag AY ie
: : s
in default for a period exceeding thirty days a 2
i i f such investment on any
the fifteen years preceding the date o: ae
i j i ding during such period, a
of its evidences of indebtedness outstan § —
i i tment shall be made in any comm
provided that no such inves ll be ma oe aii
; the corporation issuing suc
preferred stocks, unless : She
aid divi the fifteen years preceding
have paid dividends during each 0
i k outstanding during suc
date of such investment on all of its stoc é a
i i for the purpose of investing
period. The corporation may, et cand
i ting such funds, add the same to any
ap anal si apportion shares or interests . each one mee ap
i erest.
i on its records at all times every share or in a
hi ee the fifteenth day of March in each calendar ar oaed
cemetery corporation which has moneys or DEnpeE ae o aa
I i j 7 boar g
under this section shall file with the cemetery pe
i fund or funds for the previo
and report concerning such trust dee
h accounting and report s
calendar or fiseal year. A copy of suc sae
j i the corporation, auring
t all times available at the office of
deat business hours, for inspection and copy by any contributor
to the trust fund inspected.
§ 77. Limitation on the acquisition of land by rural cemetery
corporations It shall not be lawful for ae Bier iu ad 1
i : i take by deed, devise or 0 ;
poration hereafter to acquire or Pe
i 7 7 hin the state of New York,
any land in any county wit ae we at Gag thd
lation of between one hundred and seventy-
Pe nani thousand, according to the federal census Sea.
tery purpos :
hundred, or set apart any ground for ceme i
5 ch county, five
there there has already been set apart in any su
hindered acres of land for rural enna a Nasr ad a aieted
board of supervisors of any such county sha
vias there has already been granted five hundred acres of ee ae
upwards, within such county, to rural cemetery corporations. ut
nothing herein contained shall effect any lawful consent or gran
hitherto made by the board of supervisors of any such county.
§ 78. Limitations on the acquisition of land for cemetery a
poses in certain counties. It shall not be lawful for any nore?
tion, association or person Barer iat seh ee id Lip ay ia 34
lands in any county within the vecte
pee ad avs first, eighteen hundred and ninety, spans she
of the first class and having a population of between eig y a naa
and eighty-five thousand according to the federal census of nin
9
hundred and ten; but nothing herein contained shall prevent ceme-
tery corporations formed prior to January first, nineteen hundred
and seventeen, which own in such county a cemetery in which
burials have been made prior to such date, from setting apart and
using for burial purposes lands lying contiguous or adjacent to such
cemetery which lands have been heretofore acquired by a recorded
deed of conveyance made to such a cemetery corporation either for
burial purposes, or for the purposes of the convenient transaction
of its general business, which lands shall have been acquired with
the consent of the board of supervisors; nor to prohibit the dedica-
tion or use of land within such county for a family cemetery as
provided in section one hundred and five of this chapter.
§ 79. Conveyance by religious corporation or by trustees. A
cemetery corporation may accept a conveyance of real property
held by a religious corporation for burial purposes, or by trustees
for such purposes if all such trustees living and residing in this
state unite in the conveyance, subject to all trusts, restrictions and
conditions upon the title or use. Lots previously sold and grants
for burial purposes shall not be affected by any such conveyance;
nor shall any grave, monument or other erection, or any remains,
be disturbed or removed without the consent of the lot owner, or
if there be no such owner, without the consent of the heirs of the
persons whose remains are buried in such grave.
§ 79-a. Conveyance by cemetery corporation to city or village.
A cemetery corporation may convey and transfer its real property
held for burial purposes, together with its other assets, to a city
having a population of less than one million inhabitants in which
such real property is located, or to a village, provided such real prop-
erty is located within such village or wholly within three miles of
the boundaries thereof, or to a town, in which such real property is
located, if all the directors and trustees of such cemetery corporation
living and residing in the state of New York unite in the conveyance
and transfer. Such conveyance and transfer shall be subject to all
agreements as to lots sold and all trusts, restrictions and conditions
upon the title or use of such real property and assets. Lots pre-
viously sold and grants previously made for burial purposes shall
not be affected by such conveyance, nor shall any grave, monument
or other erection or any monuments be disturbed or removed except
in accordance with law. No such conveyance shall be effective
unless and until the legislative body of such city, town or village
shall by ordinance or resolution accept the same subject to the con-
ditions and restrictions hereinabove imposed, which ordinance or
resolution said legislative body is hereby authorized and empowered
to adopt by a majority vote of such body. Upon such conveyance
and transfer such property shall be and become a municipal ceme-
tery of such city, town or village and such property and assets so
conveyed and transferred shall be administered as any other munic-
ipal cemetery of such city, town or village and the said cemetery
corporation shall be dissolved by the recording of such conveyance
and transfer.
10
§ 80. Surveys and maps of cemetery. 1. Every cemetery cor-
poration, from time to time, as land in its cemetery may be required
for burial purposes, shall survey and subdivide such lands and
make and file in the office of the corporation a map thereof, open
to public inspection, delineating the lots or plots, avenues, paths,
alleys and walks and their respective designations; a true copy
thereof shall upon its written request, be filed with the cemetery
board. Any unsold lots, plots or parts thereof, in which there
are no remains, by order of the directors, may be resurveyed and
altered in shape or size, and properly designated on such map.
2. Every cemetery corporation shall provide reasonable access
to every lot, plot and grave. This provision shall not be applicable
where, on September first, nineteen hundred forty-nine, such access
cannot be provided without the disinterment of a body or bodies. A
cemetery corporation shall not permit or allow a body to be interred
hereafter in a path, alley, avenue or walk shown on the cemetery
maps or actually in existence. Nothing herein contained, however,
shall prevent a cemetery corporation in special cases from enlarging
a lot by selling to the owner thereof the access space next to such
lot, and permitting interments therein, provided reasonable access
to such lot and to adjoining lots is not thereby eliminated, and
provided the approval of the cemetery board shall have first been
obtained.
§ 81. Sale or disposition of cemetery lands. 1. No cemetery
corporation may sell or dispose of the fee of all or any part of its
lands dedicated to cemetery use, unless it shall prove to the satis-
faction of the supreme court in the district where any portion of
the cemetery lands is located, either
(a) that all bodies have been removed from each and every
part of the cemetery, that all the lots in the entire cemetery have
been reconveyed to the corporation and are not used for burial
purposes, and that it has no debts and liabilities, or
(b) that the land to be sold or disposed of is not used and is not
physically adaptable for burial purposes and that the sale or dis-
position will benefit the cemetery corporation and the owners of
plots and graves in the cemetery.
2. If the sale or disposition of the land is made pursuant to
paragraph (b) of the preceding subdivision, the court shall order
that the consideration received by the cemetery corporation less
the necessary expenses incurred shall be deposited into the per-
manent maintenance fund established by the cemetery corporation
pursuant to section eighty-six-a of this article.
3. Notice of any application hereunder shall be given to the
cemetery board, to the holders of certificates of indebtedness and
land shares of the cemetery corporation, and to any person inter-
ested in the proceeding pursuant to section fifty-one of the general
corporation law.
§ 82. Rules, regulations and charges. 1. The directors of a
cemetery corporation shall make reasonable rules and regulations
for the use, care, management and protection of the property of
11
the corporation and of all lots, plots and parts thereof; for regulat-
ing the dividing marks between the lots, plots and parts thereof; for
prohibiting or regulating the erection of structures upon such lots,
plots or parts thereof; for preventing unsightly monuments, effigies
and structures within the cemetery grounds, and for the removal
thereof; for regulating the introduction and care of plants, trees
and shrubs within such grounds; for the prevention of the burial
in a lot, plot or part thereof, of a body not entitled to burial
therein; for regulating or preventing disinterments; for regulating
the eonduct of persons while within the cemetery grounds; for
excluding improper persons and preventing improper assemblages
therein; and shall fix and make reasonable charges for any acts and
services ordered by the owner and rendered by the corporation in
connection with the use, care, including perpetual, annual and
special care, management and protection of lots, plots and parts
thereof. In determining said charges the directors shall consider
the propriety and the fair and reasonable cost and expense of
rendering the services or performing the work for which such
charges are made.
The directors may prescribe penalties for the violation of any
such rule or regulation, not exceeding twenty-five dollars for each
violation, which shall be recoverable by the corporation in a civil
action.
2. Such rules, regulations and charges shall not become effective
unless and until approved by the cemetery board as hereinafter
provided.
3. The directors of any cemetery corporation, organized on or
before August thirty-first, nineteen hundred forty-nine, shall file in
the office of the cemetery board the name and address of the cor-
poration together with its rules, regulations and charges, and a
statement showing the basis upon which they were made, within
ninety days after the time this section as hereby amended takes
effect. The directors of any cemetery corporation organized on or
after September first, nineteen hundred forty-nine, shall file in the
office of the cemetery board the name and address of the corporation
together with its rules, regulations, and charges, and a statement
showing the basis on which they were made, within ninety days after
the date of the filing of the certificate of incorporation in the depart-
ment of state. Within six months after the date of such filing, the
cemetery board shall make and file in its office an order approving,
disapproving or amending such rules, regulations, and charges in
whole or in part. Such rules, regulations and charges, if approved
with or without amendment, shall become effective as approved upon
the filing of such order by the cemetery board in its office. The
cemetery board shall notify the directors of the action taken by it
and its reasons therefor by registered mail addressed to the corpora-
tion at its principal office. In making its determination as to the
schedule of charges the cemetery board shall consider the propriety
and the fair and reasonable cost and expense of rendering the serv-
ices or performing the work for which such charges are made. In
passing upon the rules and regulations, the cemetery board shall
12
consider the interests of the members of the corporation and the
publie interest in the proper maintenance and operation of burial
grounds. ;
4. The rules, regulations and charges of any cemetery corporation
existing on or before August thirty-first, nineteen hundred forty-
nine, shall remain in effect until the cemetery board files in its
office an order pursuant to the provisions of subdivision three hereof.
A cemetery corporation organized on or after September first, nine-
teen hundred forty-nine, may enforce the rules, regulations, and
eharges filed by it in the office of the cemetery board until the ceme-
tery board files in its office an order pursuant to the provisions of
subdivision three hereof.
5. In the event that a cemetery corporation provides any services
not included in the list of charges, and for which a charge cannot
reasonably be fixed in advance, the charges made therefor shall be
reviewable by the cemetery board. In the event that the cemetery
board determines that an excessive, unauthorized or improper charge
has been made for such services or that the services have not been
properly performed, it may direct the cemetery corporation to pay
to the person from whom such charge was collected a sum equivalent
to three times the amount of the excess as determined by the ceme-
tery board, or in the case of work not properly performed, it may
direct the cemetery corporation to perform the work properly.
6. The rules, regulations and charges of a cemetery corporation
may be amended or added to by the corporation by filing such
proposed amendments or additions in the office of the cemetery
board but no such amendment or addition shall be effective unless
and until an order approving such amendments or additions is made
by the cemetery board and filed in its office in the same manner as
that applicable to the original filing of the rules, regulations and
charges of the cemetery corporation.
7. The effective rules, regulations or charges of a cemetery cor-
poration may be amended, modified or vacated by the cemetery
board at any time. The cemetery board shall notify the directors
of the action taken by it and its reasons therefor by registered
mail addressed to the corporation at its principal office. In amend-
ing, modifying or vacating any rule, regulation or charge, the
cemetery board shall be guided by the standards set forth in sub-
division three hereof.
§ 82-a. Posting of rules, regulations, charges and prices. The
rules, regulations, charges, and prices of lots, plots or parts thereof
shall be suitably printed and shall be conspicuously posted by the
corporation in each of its offices. For each day in which the cor-
poration fails to post the rules, regulations, charges and prices the
corporation shall be subject to a penalty of twenty-five dollars
which may be recovered in a civil action by the cemetery board.
The cemetery board may waive the payment of the penalty or any
part thereof.
§ 83. Record of burials, A record shall be kept of every
burial in the cemetery of a cemetery corporation, showing the date
-distributees, other than the surviving spouse of.................
13
of the burial, the name, age and place of birth of the person buried,
when these particulars can be conveniently obtained, and the lot,
plat, or part thereof, in which such burial was made. A copy of
such record, duly certified by the secretary of such corporation,
shall be furnished on demand and payment of such fees therefor
as are allowed the county clerk for certified copies of records.
§ 84. Title and rights of lot owners. 1. The directors must fix
and determine the prices of the burial lots, plots or parts thereof,
and keep a plainly printed copy of the schedules of such prices
conspicuously posted in each of the offices of the corporation, open
at all reasonable times to inspection, and shall file a schedule of
such prices in the office of the cemetery board.
2. Unless its certificate of incorporation or by-laws otherwise pro-
vide, and subject to its rules and regulations, the corporation shall
sell and convey to any person the use of the lots, plots or parts
thereof designated on the map filed in the office of the corporation,
on payment of the prices so fixed and determined, but need not
sell and convey more than one lot, plot or part thereof to any one
person. Conveyanees of lots, plots and parts thereof shall be signed
by the president or vice-president and treasurer or assistant treas-
urer of the corporation.
3. A cemetery corporation that shall sell a lot, plot or part
thereof, in excess of the price shown on the schedule filed in the
office of the cemetery board, and any person acting for or on
behalf of the cemetery corporation in connection with such sale,
shall each forfeit to the people of the state of New York a sum
equivalent to three times the excess amount so paid. Such penalty
may be recovered in a civil action by the cemetery board.
4. The instrument of conveyance of any burial lot, plot or part
thereof shall include the actual amount paid therefor and a descrip-
tion showing the dimensions of the property conveyed, and the plot
number, section and block number as they appear on the cemetery
map.
5. Whenever a lot, plot or part thereof shall be purchased by
the executor, administrator or representative of a decedent from
estate funds for the burial of the decedent, the surviving spouse
of the decedent shall have the right of interment therein, and the
deed shall run to the names of the distributees, other than the
surviving spouse, of the decedent, or to “The distributees, other
than thé surviving ap0iise, of. tec. 8030.60. sie oe on , deceased’, if
there be such surviving spouse, otherwise to “The distributees of
i >iNet ae dee eon , deceased.”’ If the deed shall run to “The
?
deceased,” or to “The distributees of.................. , deceased,”
the executor, administrator or representative shall, at the time
of delivery of the deed to such lot, plot or part thereof, file
with the corporation an affidavit setting forth the names and places
of residence of all the decedent’s distributees, and the corporation
shall be entitled to rely upon the truth of the statements con-
tained in such affidavit.
14
6. All lots, plots or parts thereof, the use of which has been
conveyed as a separate lot, shall be indivisible, except with the
consent of the lot owner or lot owners and the corporation, or as in
this article provided. After a burial therein, the same shall be
inalienable, except as otherwise provided. Upon the death of an
owner or co-owner of any lot, plot or part thereof, unless the
same shall be held in joint tenancy, or tenancy by the entirety,
the interest of the deceased lot owner shall pass to the devisees
of such lot owner, but, if such interest be not effectually devised,
then to his or her descendants then surviving, and if there be
none, then to the surviving spouse, and if there be none, then to those
entitled to take the real and personal property of the deceased lot
owner pursuant to article three of the decedent estate law, pro-
vided, however, that no interest in any lot, plot or part thereof
shall pass by any residuary or other general clause in a will and
such interest shall pass by will only if the lot, plot or part thereof
sought to be devised is specifically referred to in such will. The
surviving spouse of a deceased lot owner during his or her life and
the owners from time to time of the deceased lot owner’s lot, plot
or part thereof, shall have in common the possession, care and
control of such lot, plot or part thereof.
7. A deceased person shall have the right of interment in any
lot, plot or part thereof of which he or she was the owner or co-
owner at the time of his or her death, or in any tomb erected
thereon. The surviving spouse shall have the right of interment
for his or her body in a lot or tomb in which the deceased spouse
was an owner or co-owner at the time of his or her death, and a
right to have his or her body remain permanently interred or en-
tombed therein, except that such body may be removed therefrom as
provided in section eighty-nine. Such right may be enforced and
protected by his or her personal representatives. The remains of a
spouse, parent or child of a person who is an owner or co-owner
thereof may be interred in such lot or tomb without the consent
of any person claiming any interest therein, subject, however, to
the following rules and exceptions:
(a) The place of interment in such lot shall be subject to the
reasonable determination by a majority of the co-owners or in
the absence of such determination by the cemetery corporation or
its officer or agent having immediate charge of interments.
(b) Any husband or wife living separate from, the other and
owning a lot in which the other, but for this section, would have
no right of burial, at least thirty days before the death of the
other, may file with the cemetery corporation a written objection
to the interment of the other, and thereupon there shall be no right
of interment under this section.
(c) A parent or child owning a lot in which the other would
have no right of burial but for this section, at least thirty days
before the death of the other, may file with the cemetery corpora-
tion a written objection to the interment of the other, and there-
upon there shall be no right of interment under this section. In
such ease, if the parent or child so excluded from burial in such
15
lot, die without having any place of interment, then the person
filing such objection shall at once provide for the other a suitable
place of burial in a convenient cemetery. The cost of such place of
interment shall be chargeable to the decedent’s estate, if any.
(d) This section shall not permit a burial in any ground or place
contrary to or in violation of any precept, rule, regulation or usage
of any church or religious society, association or corporation re-
stricting burial therein. This section shall not limit any existing
right of burial under other provisions of law, nor shall it limit or
curtail the right of alienation, under the rules of the cemetery
corporation wherein such lot is situated, by the owner of a lot be-
fore the death of the person for whose remains the right of burial
is provided herein, and there shall be no right of burial in any lot
sold by its owner, before the death of the person for whose remains
the right of burial is provided herein.
8. At any time when more than one person is entitled to the
possession, care or control of such lot, plot or part thereof, the
persons so entitled thereto shall file with the corporation a desig-
nation of a person who shall represent the lot, plot or part thereof,
and so long as they shall fail to designate, the corporation may
make such designation. A distributee may release his or her interest
in a lot, plot or part thereof, to the other distributees, and a joint
owner may release or devise to the other joint owners, his or her
right in the lot, plot or part thereof, on conditions specified in the
release or will, the original or certified copy of which shall be filed
in the office of the corporation. The surviving spouse not excluded
from the right of burial under the provisions of paragraph (b) of
subdivision seven of this section eighty-four, at any time may re-
lease his or her right in such lot, plot or part thereof, but no
conveyance or devise by any other person shall deprive him or
her of such right.
9. At any time all the owners of a lot, and any surviving spouse
having a right of interment therein, may execute, acknowledge and
file with the corporation an instrument which may (a) designate
the person or persons or class of persons who may thereafter be
interred in said lot or in a tomb in such lot and the places of
their interment; (b) direct that upon the interment of certain
named persons the lot or tomb in such lot shall be closed to fur-
ther interments; (¢) direct that the title of the lot shall upon
the death of any one or more of the owners, descend in perpetuity
to his, her or their distributees, unaffected by any devise. In
any case in which an irrevocable designation of a person, persons
or class of persons who may be interred in any lot or tomb has been
made pursuant to this section and in which the designated person or
persons, or all of the known class of designated persons, have died
and have not been buried in the places designated in said lot or
tomb, or have by a written instrument duly signed and acknowledged
and filed with the corporation, renounced the right of interment
pursuant to such designation, then, and in any such event, the then
owner or owners of said lot or tomb and any surviving spouse having
the right of interment therein, may designate another person or
16
persons or class of persons who may thereafter be interred in said
lot or in a tomb in said lot, and the places of their interment,
unless the original designation clearly indicated not only that it
was irrevocable, but also that no further designations were to be
made. Any designation provided for by this subdivision shall be
deemed revocable unless such instrument provides otherwise.
10. At any time when more than one person is entitled to the
possession, care and control of such lot, any of the persons so
entitled thereto may file with the corporation an affidavit setting
forth the names and places of residence of all the persons entitled
to the possession, care and control of such lot, and the corporation
shall be entitled to rely upon the truth of the statements contained
in such affidavit. The corporation shall be entitled to collect a rea-
sonable fee for filing and recording such affidavit and other docu-
ments filed in its office.
11. The title of a lot owner shall not be affected by the dissolu-
tion of the corporation, by non-user of its corporate rights and
franchises, by any act of forfeiture on its part, by any alienation
of its property or by incumbrance thereon made or suffered by it.
§ 85. Conveyance of lots. 1. Except as otherwise provided in
this section, the right to use any lot, plot or part thereof may be
sold or conveyed only by the cemetery corporation.
2. It shall be unlawful for any person, firm or corporation to
purchase or for a cemetery corporation to sell a lot, plot or part
thereof for the purpose of resale. This provision, however, shall not
apply to the sale to its members of lots, plots or parts thereof, or
the right to use any lot, plot or part thereof, by a membership or
religious corporation or unincorporated association or society which
provides burial benefits for its members.
3. Before any burial shall have been made in any such lot, plot or
part thereof, or, if all the bodies therein have been lawfully removed,
the lot owner may sell or convey such lot, plot or part thereof sub-
ject to the prior approval of the cemetery board. Such approval
shall not be granted unless the owner of such lot, plot or part thereof
shall first have offered it to the cemetery corporation at the original
price paid therefor, together with simple interest at the rate of two
per centum per annum, and the cemetery corporation shall have
refused such offer within thirty days after the making thereof. The
secretary of the cemetery corporation shall file and record in its
books all instruments of transfer. An owner may convey or devise
to the corporation his right and title in and to any such lot, plot
or part thereof.
4. It shall be unlawful for a cemetery corporation to pay or
offer to pay, or for any person, firm or corporation to receive,
directly or indirectly, a commission, bonus, rebate or other thing of
value for or in connection with the sale of any lot, plot or part
thereof, or the sale of space in a public mausoleum. The provisions
of this subdivision shall not apply to a person regularly employed
and supervised by the cemetery corporation.
17
5. A violation of this section shall constitute a misdemeanor and
shall be punishable by a fine of not more than five hundred dollars
or not more than six months imprisonment or both. Each violation
shall constitute a separate offense.
§ 86. Lots held in inalienable form. 1. No portion of the ceme-
tery of a cemetery corporation which any person other than the cor-
poration is entitled to use for burial purposes, or in which bodies
have been buried and not removed, shall be sold, mortgaged or
leased by the corporation. A cemetery corporation may convey
any lot so that upon such conveyanee, or after an interment therein,
such lot shall be forever inalienable, and upon the death of the
lot owner shall pass to such person or persons as may be designated
in the conveyance, or if no such designation be made, shall descend
as provided in section eighty-four. Any one or more of the owners
of such a lot may release or devise to any other owner of the lot
his interest therein on such conditions as shall be specified in the
release or will.
2. A cemetery corporation may take and hold any lot conveyed
or devised to it by the lot owner so that thereafter it will be inalien-
able, and the interments therein shall be restricted to such person
or class of persons as may be designated in the conveyance or devise.
3. The owner of any inalienable lot by an instrument in writing
or by will may change the designation in whole or in part so as to
restrict interments therein to another person or class of persons.
§ 86-a. Maintenance and preservation; permanent maintenance
fund; current maintenance fund. Subject to rules and regula-
tions of the cemetery board: 1. Every cemetery corporation shall
maintain and preserve the cemetery, including all lots, plots and
parts thereof. For the sole purpose of such maintenance and preser-
vation, every cemetery corporation shall establish and maintain (a)
a permanent maintenance fund; and (b) a current maintenance
fund. At the time of making sale of a lot, plot or part thereof, the
cemetery corporation shall deposit not less than ten per centum of
the gross proceeds of the sale into the permanent maintenance fund.
An additional fifteen per centum of the gross proceeds of the sale
shall be deposited in the eurrent maintenance fund.
2. The permanent maintenance fund is hereby declared to be and
shall be held by the corporation as a trust fund, for the purpose
of maintaining and preserving the cemetery, including all lots,
plots and parts thereof. The principal of such fund shall be de-
posited in a state bank, savings bank, trust company, national
bank or industrial bank or invested in such securities as are per-
mitted for the investment of trust funds by section twenty-one
of the personal property law, provided that no investment shall be
made pursuant to this section which, at the time such investment
shall be made, will cause the aggregate market value of the in-
vestments not made eligible by paragraphs (a) to (1) of sub-
division one of said section twenty-one of the personal property
law to exceed twenty per centum of the aggregate market value of
all the property of the fund at the time of the making of the
18
investment, and provided that no such investment shall be made in
any bonds, debentures, notes, equipment trust obligations, or other
evidences of indebtedness not made eligible by said paragraphs
(a) to (1) of subdivision one of said section twenty-one of the
personal property law unless the obligor thereon shall not have
been in default for a period exceeding thirty days at any time dur-
ing the fifteen years preceding the date of such investment on any
of its evidences of indebtedness oustanding during such period,
and provided that no such investment shall be made in any common
or preferred stocks, unless the corporation issuing such stocks shall
have paid dividends during each of the fifteen years preceding the
date of such investment on all of its stock outstanding during such
period. The income arising therefrom shall be used solely for the
maintenance and preservation of the cemetery grounds. The prin-
cipal of such fund shall remain inviolate, except that upon appli-
cation to the supreme court in a district where a portion of the
cemetery grounds is located, the court may make an order permit-
ting the principal or a part thereof to be used for the purpose
of current maintenance and preservation of the cemetery or other-
wise. Such application may be made by the cemetery board on
notice to the corporation or by the corporation on notice to the
cemetery board.
3. The current maintenance fund shall be used and applied for
the sole purpose of ordinary and necessary expenses of the care
and maintenance of the cemetery. When all burial rights in the
cemetery have been conveyed, the fund remaining on deposit or to
the credit of the current maintenance fund shall be transferred into
the permanent maintenance fund.
4. The percentage of the proceeds of sales required to be deposited
in the permanent maintenance fund or current maintenance fund
by a particular cemetery corporation may be increased or dimin-
ished by order of the supreme court in a district where any portion
of the cemetery is located. Such application may be made by the
cemetery board on notice to the corporation or by the corporation
on notice to the cemetery board.
§ 87. Application of proceeds of sales of lots. 1. At least one-
half of the proceeds of sales of lots or the use thereof remaining
after the deductions for the portion thereof required to be deposited
in the permanent maintenance fund and current maintenance fund
together with the expenses of sale shall be applied by a cemetery
corporation to the payment of the purchase-price of the real prop-
erty acquired by it. The remainder of such proceeds shall be applied
by the corporation to preserving, improving and embellishing the
cemetery grounds and the avenues and roads leading thereto, and
to defraying its expenses and discharging its liabilities. After the
payment of such purchase-price, and the expense of surveying and
laying out the cemetery, all the proceeds of such sales shall be
applied to the improvement, preservation and embellishment of
the cemetery and to such expenses and liabilities.
2. Where a corporation has agreed with a person from whom
——- ==
19
any such lands were purchased to pay therefor a specified share
not exceeding one-half of the proceeds of sales of lots therein or
the use thereof, such corporation may continue to make payments as
so agreed, provided however that there be first deducted from said
proceeds of sales the amount required to be deposited in the per-
manent maintenance fund and current maintenance fund as afore-
said together with the expenses of sale. The balance of such pro-
ceeds shall continue to be applied by the corporation to the preser-
vation, improvement and embellishment of the cemetery, and the
expenses and liabilities of the corporation. Where the corporation
has heretofore agreed to pay a specified share of the proceeds as
aforesaid in payment of the purchase-price of land, the prices of
lots or the use thereof in force when such purchase was made, shall
not be changed, while the purchase-price remains unpaid, without
the written consent of a majority in interest of the persons from
whom the lands were purchased or their legal representatives.
3. No cemetery corporation, in purchasing real property here-
after, shall pay or agree to pay more than the fair and reasonable
market value thereof. The terms of the purchase, including the
price to be paid and the method of payment, shall be subject, upon
notice to the cemetery board, to approval by the supreme court in
a district where any portion of the land is located. In determining
the fair and reasonable market value, the court may take into
consideration the method by which the purchase price is to be paid.
4. A corporation which has heretofore issued certificates of land
shares which entitle the owner to a specified share in the proceeds
of the sale of lots, may purchase such certificates with its surplus
or reserve funds and hold such certificates for the benefit of its
surplus or reserve funds, but such certificates may not thereafter
be sold or reissued.
5. On or before the fifteenth day of March in each calendar year,
every cemetery corporation shall file with the cemetery board an
accounting and report concerning the disposition of proceeds of
sales of lots, plots, or parts thereof, during the preceding calendar
or fiscal year.
§ 88. When burial not to be refused. No cemetery corporation
shall refuse or deny the right of burial and the privileges incidental
thereto in any lot, plot or part thereof to those, otherwise lawfully
entitled to be buried therein, for any reason except for the non-pay-
ment of interment charges and the purchase price of the lot, plot
or part thereof, in accordance with the terms of the contract of
purchase or except as provided in section ninety of this article.
§ 89. Removals. A body interred in a lot in a cemetery owned
or operated by a corporation incorporated by or under a general
or special law may be removed therefrom, with the consent of the
corporation, and the written consent of the owners of the lot, and
of the surviving wife, husband, children, if of full age, and parents
of the deceased. If the consent of any such person or of the corpora-
tion can not be obtained permission by the county court of the
county, or by the supreme court in the district, where the cemetery
20
is situated, shall be sufficient. Notice of application for such permis-
sion must be given, at least eight days prior thereto, personally,
or, at least sixteen days prior thereto, by mail, to the corporation
or to the persons not consenting, and to every other person or
corporation on whom service of notice may be required by the
court.
§ 90. Taxation of lot owners by corporations. 1. If the funds
of a cemetery corporation, applicable to the improvement and care
of its cemetery, or applicable to the construction of a receiving
vault therein for the common use of lot owners, be insufficient for
such purposes, the directors of the corporation, not oftener. than
once in any year and for such purposes only, may, upon the prior
approval of the cemetery board, which shall determine the neces-
sity and propriety thereof, levy a tax on some basis to be deter-
mined by the directors of such corporation, but no such tax shall
exceed two dollars on any one lot, except that with the written
consent of two-thirds of the lot owners or by the vote of a major-
ity of the lot owners present at an annual meeting, or at a special
meeting duly called for such purpose, such tax may be for an
amount which shall not exceed a total of five dollars per annum
per lot, and the tax on any one lot shall not exceed five dollars
per annum but the taxes may be levied upon each lot in the first
instance for a sum sufficient for the improvement and care of the
lot, but no greater sum than five dollars shall be collected in any
one year. The whole tax levied may be collected in sums of five
dollars in successive years in the manner herein provided.
2. Notice of such tax shall be served on the lot owners or where
two or more persons are owners of the same lot, on one of them,
either personally, or by leaving it at his residence, with a person
of mature age and discretion, or by mail, if he resides in a city,
town or village where the office of the corporation is not located,
or in ease the residence or whereabouts of the owner can not be
ascertained, by publication once a week for four successive weeks in
a newspaper published in the town where such cemetery is located,
or if no newspaper is published in such town then in some news-
paper published in the county where such cemetery is located.
3. If such tax remain unpaid for more than thirty days after
the service of such notice, the president and secretary of the cor-
poration may issue a warrant to the treasurer of the corporation,
requiring him to collect such tax in the same manner as school
collectors are required to collect school taxes; and such treasurer
shall have the same power and be subject to the same liabilities in
executing such warrant as a collector of school taxes has or is
subject to by law in executing a warrant for the collection of
school taxes.
4. If the taxes so levied remain unpaid for five years after the
levying of such tax the amount thereof with interest shall be a lien
on the unused portion of the lot which is subject to such tax, and
no portion of the lot so taxed shall be used by the owner thereof
for burial purposes, while any such tax remains unpaid.
21
5. If at the expiration of five years from the date of the service
of the first notice of assessment as herein provided, any such assess-
ment or the interest thereon shall remain unpaid, the corporation
may sell the unused portion of such lot at public auction upon the
cemetery grounds, in the following manner: If the person owning
such lot resides within the state, a written notice, under the seal of
such cemetery corporation, if it have a seal, and the hand of the
president or secretary thereof, stating the amount of such tax or
taxes unpaid and that such unused portion of such lot will be sold
at a time therein to be specified, not less than twenty days from the
date of the service of such notice, shall be personally served upon
such owner; if such owner is not a resident of the state, or if the
place of his residence cannot with due diligence be ascertained, or if,
for any other reason satisfactory to the court, personal service
ean not with due diligence be made upon such owner, such cemetery
corporation, or any of its officers, may present a duly verified peti-
tion stating the facts to the county court of the county in which
such cemetery lands are situated, or to the supreme court, and such
court may upon satisfactory proof, by its order, direct the service
of such notice in the manner provided by the civil practice act, for
the substituted service of a summons. The president or secretary
of such corporation, or any suitable and proper person appointed
by it or by the court, upon filing proof of publication and service
of such notice as provided by section sixty-one of the surrogate’s
court act may make such sale, and such sale may be adjourned from
time to time for the accommodation of the parties or for other
proper reasons. Previous notice of such sale shall be posted at the
main entrance of the cemetery. Prior to such sale such corporation
shall cause such lot to be resurveyed and replatted showing the
part thereof not used for burial purposes and only such unused
portion shall be sold. The cemetery corporation may at any such
sale purchase any such lots or parts of lots. The surplus remaining
after paying all assessments, interest, cost and charges shall be set
aside by the corporation, as a fund for the care and improvement of
the portion of such lot that has been used for burial purposes. In
ease the proceeds of such sale shall amount to more than thirty
dollars the person making it shall make his report, under oath, to
the court, of the proceedings and shall state the amount for which
such lot was sold and that it was sold to the highest responsible
bidder, together with the names of the purchasers, and the court
may and in a proper case shall, by order, confirm the sale; in all
other cases the person making such sale shall file in the office of the
county clerk of the county in which the cemetery lands are situated
a like report duly verified; on the filing of such order of confirmation
or such report, as the case may be, the ownership of the unoccupied
portion of such lot shall vest in the purchaser thereof.
6. The directors of any such corporation may make a contract
with a lot owner which shall provide for the payment by him of an
agreed gross sum in lieu of further taxes and assessments and that
upon the payment of such gross sum the lot of such owner shall
be thereafter exempt from taxes and assessments.
aS
§ 90-a. Lien and collection of annual charges for care of indi-
vidual lots. 1. Hereafter where in a cemetery of a cemetery cor-
poration not located within a city having a population of one hun-
dred thousand or more inhabitants and in which cemetery there
remains unused less than fifty per centum of the lot area, there is
or are any lot or lots which are not under perpetual care and upon
which the owners have paid or are liable to pay for the care of the
same annually to the cemetery corporation and such annual charges
have not been paid for a period of fifteen years or more, and no
burials shall have been made therein for fifteen years or more, the
corporation shall have a lien upon any unused portion or portions of
such lots for the amount of such annual charges.
2. Where, at the time this section takes effect, in such a ceme-
tery, such annual charges shall have remained unpaid for a period
of fifteen years or more and no burials have been made in any such
lot or lots for fifteen years, the corporation shall have a lien upon
any unused portion or portions of such a lot or lots for the amount
ef such accumulated annual charges.
3. The corporation shall have the right to petition the supreme
court of the state of New York for leave to sell at public auction
such unused portion or portions of such lots upon which it has
a lien if, after having given notice by mail, postage prepaid, of the
nonpayment of such charges, specifying the amounts and demand-
ing payment, to the persons whose names appear on the books as
the owners, addressed to them at their respective addresses as they
shall appear on the books of the corporation, the charges remain
unpaid for thirty days from the day of such mailing, as determined
by the post-mark of a post office within the city or town in which
the office of the corporation is located. The above provisions shall
not prevent the giving of such notice, with such demand, by per-
sonal service thereof, within or without the state, upon the known
and actual owner of such a lot, in lieu of the mailing above pre-
scribed, and if so given the said thirty day period of default shall
be computed from the day of such service.
4. The court, upon presentation of such petition, shall make an
order requiring all persons interested to show cause at a certain
time and place why such unused portion or portions of said lots
should not be sold, which order shall be served upon such persons
and in such manner as the court shall direct.
5. Upon being satisfied on the return day that the matters al-
leged in the petition are true, the court, in its discretion, may make
an order directing that such portion, or portions, of such lots upon
which the corporation has a lien, be sold at a publie auction to be
conducted by an officer of the corporation. Such order shall pre-
scribe the time and place of such auction and shall direct that no-
tice thereof be published in such newspaper, or newspapers, and
for such time as the court shall direct. It shall also direct that a
copy of such order be posted at the front gate of the cemetery in
which are located the portion, or portions, of lots to be sold.
6. At the time of such sale and available to any person interested
in bidding at the sale, there shall be a map of the cemetery, showing
23
the unused portions of the lot or lots to be sold.
7. The corporation may bid at the sale and acquire title to any
such lot or unused portion; but the sale of a lot to it, though for
a less sum than the amount of the charges against the lot, and ex-
penses, shall extinguish the claim of the corporation against the
lot owner personally for the unpaid charges or any part thereof to
satisfy which the lot was sold.
8. The officer conducting such sale shall execute a deed of con-
veyance to the respective buyers of the lots so sold by him; except
that where a lot or unused portion thereof is sold to the corporation,
a certificate thereof, describing the lot and specifying the amount
of the bid, subscribed by such officer and a majority of the trustees
and duly and severally acknowledged by them, shall be prepared
in duplicate, one of which shall be filed in the office of the corpora-
tion and the other appended to and filed with the other papers in
the proceeding. In case of his inability to act, any other officer of
the corporation who attended the sale, may execute the conveyance
or subscribe such certificate in his place and stead.
9. In case any lot or portion thereof so sold shall sell for more than
the amount of the lien chargeable to it plus a reasonable proportion
of the expenses of the sale, properly attributable to it, such surplus
shall be placed in a fund for the care and maintenance of those lots
or portions thereof in which burials have been made and no provi-
sions made for its or their perpetual care.
10. After a sale has been held, as aforesaid, and conveyances
have been executed and delivered to the purchasers thereat, the
officer making the sale shall report his proceedings to the court
under oath. If the court shall be satisfied therewith in all respects,
it shall make an order confirming the sale.
§ 91. Perpetual care of lots. Upon the application of a pros-
pective purchaser of any lot, plot or part thereof and upon payment
of the purchase price and the amount fixed as a reasonable charge
for the perpetual care of any lot, plot or part thereof, every
cemetery corporation shall include with the deed of conveyance
an agreement perpetually to care for such lot, plot, or part thereof,
to the extent that the income derived by the corporation from
such amount will permit. Such corporation also, upon the applica-
tion of an owner or of the executor or administrator of a deceased
owner of any lot and upon the payment of the amount fixed as
a reasonable charge for the perpetual care of such lot, shall, and
upon the application of any other person and the payment of such
amount, may enter into a like agreement with him. Such agree-
ment shall be executed and may be recorded in the same manner
as a deed. Any corporation organized under or subject to the
provisions of this article may enter into an agreement in writing
‘with any executor or executors, trustee or trustees, under a last
will and testament to whom there has heretofore been, or may
hereafter be, bequeathed a sum for the perpetual care of any lot,
plot or part thereof in any such cemetery or with any administrator
or administrators with the will annexed under any such will per-
24
petually to care for such lot, plot or part thereof under the provi-
sions of the terms of such last will and testament, and subject in
all cases to the approval of the surrogate’s court having juris-
diction over such trust estate. Such approval may be evidenced
by the written endorsement of the surrogate on a duplicate original
of such agreement filed in the surrogate’s court. In ease the surro-
gate shall approve such agreement any such executor, trustee or
administrator with the will annexed thereupon shall pay over to
the treasurer of such perpetual care fund of such cemetery cor-
poration any moneys remaining or being in his hands belonging
to such trust, and upon making such payment and accounting there-
for to the surrogate’s court may be discharged from said trust as
such executor, trustee or administrator with the will annexed.
§.. 92. Perpetual care fund. Every cemetery corporation and
every religious corporation having charge and control of a cemetery
which heretofore has been or which hereafter may be used for
burials, shall keep separate and apart from its other funds. all
moneys and property received by it, whether by contract, in trust
or otherwise, for the perpetual care and maintenance of any lot
plot or part thereof in its cemetery, and all such moneys or prop-
erty so received by any such corporation are hereby declared to be
and shall be held by the corporation as, trust funds. Any moneys
and property so received, unless otherwise provided in the instru-
ment under which such moneys or property were received, shall
be kept in a separate fund to be known as the perpetual care fund.
The principal of such funds, whether kept in the perpetual care
fund or otherwise, and unless already so invested when received
shall be invested within a reasonable time after receipt thereof and
kept invested, in such securities as are permitted for the investment
of trust funds by section twenty-one of the personal property law
provided that no investment shall be made pursuant to this section
which, at the time such investment shall be made, will cause the
aggregate market value of the investments not made eligible by
paragraphs (a) to (l) of subdivision one of said section twenty-
one of the personal property law to exceed twenty per centum of
the ageregate market value of all the property of the fund at the
time of the making of the investment, and provided that no such
investment shall be made in any bonds, debentures, notes equip-
ment trust obligations, or other evidences of indebtedness not made
eligible by said paragraphs (a) to (l) of subdivision one of said
section twenty-one of the personal property law unless the obligor
thereon shall not have been in default for a period exceeding thirty
days at any time during the fifteen years preceding the date of
such investment on any of its evidences of indebtedness outstanding
during such period, and provided that no such investment shall be
made in any common or preferred stocks, unless the corporation
issuing such stocks shall have paid dividends during each of the
fifteen years preceding the date of such investment on all of its
stock outstanding during such period, and the income arisine there-
from shall be used solely for the perpetual care and maintenance
25
of the lot or lots or parts thereof for which such income has been
provided. The corporation may, for the purpose of investing and
reinvesting such funds, add the same to any similar trust fund or
funds and apportion shares or interests to each trust fund, showing
upon its records at all times every share or interest. The corpora-
tion may, however, accept in trust for the perpetual care of a lot,
plot or part thereof in its cemetery, property not made eligible
for the investment of trust funds under the foregoing provisions
of this section, and may retain such property in the form in which
received, separate and apart from the perpetual care fund, if di-
rected so to do by the instrument under which such property is
received, so long as such property remains in the form in which
it was received; but whenever such property is sold or otherwise
diposed of, the proceeds of such sale or other disposition shall be
invested in the manner heretofore provided in this section for the
investment of trust funds. The exchange of stock or evidences of
indebtedness issued by a corporation for stock or evidences of in-
debtedness of the same corporation, or for stock, evidences of indebt-
edness, warrants or script received as a result of merger, consoli-
dation or reorganization of such corporation, or the receipt of
additional stock or evidences of indebtedness of such corporation,
as a distribution by such corporation, shall not be deemed to be a
disposition of the property originally received in trust, and such
exchanged or additional property may be retained in place and
stead of the property originally received, and under the same con-
ditions. The corporation shall keep accurate accounts of all funds
for the perpetual care and maintenance of cemetery lots, plots or
parts thereof, separate and apart from its other funds.
§ 92-a. Perpetual care fund; allocation of income and cost of
care and maintenance, accounting and report. 1. On or before
the fifteenth day of March in each calendar year the officers of
every cemetery corporation shall fix and determine that portion
of the income on the investment of the principal of the perpetual
care fund during the calendar or fiseal year immediately preceding,
to be apportioned to each separate lot or part thereof for which a
perpetual care agreement has been made. The cost during such
previous calendar or fiscal year of the care of each lot or part
thereof shall be allocated and charged against the income so appor-
tioned to it. Any excess of the income so apportioned over and
above the allocated cost of the care and maintenance of such lot
or part thereof shall be credited to such lot or part thereof, to be
used in any future years to make up the deficiency if the income
apportioned to such lot or part thereof should, in any year since
September first, nineteen hundred forty-nine, or in any future year,
fall, or have fallen, below the cost of care thereof.
2. On or before the fifteenth day of March in each calendar
year every cemetery corporation shall file with the cemetery board
an accounting and report concerning the perpetual care fund for
such previous calendar or fiscal year. A copy of such accounting
and report for the previous calendar or fiscal year shall be at all
26
times available at the office of the corporation, during usual busi-
ness hours, for inspection and copy by any owner of an endowed
lot or his representative.
§ 92-b. Designation of fiduciary corporation by directors or
trustees of cemetery corporation to act as custodian of funds.
Notwithstanding the provisions of any other law, the directors or
trustees of cemetery corporations are hereby authorized to desig-
nate a bank or trust company to act as custodian and trustee of
the funds of such cemetery corporation received by it for the per-
petual care of lots in the cemetery thereof, and to expend and
apply the income of the same to the perpetual care of the lots in such
cemetery which are entitled thereto; and for which the funds so
placed in trust were paid by the owners thereof. Such corporate
trustee shall be designated by a resolution duly adopted by the
board of directors or trustees and approved by a justice of the
supreme court of the judiciary district in which the cemetery of said
corporation is located; and the directors or trustees of such ceme-
tery corporation may, with the approval of the justice of the su-
preme court, revoke such trust, and either take over such trust
fund or name another trustee to handle the same, but if not so
revoked, such trust shall be perpetual. Any bank or trust company
accepting such cemetery fund shall keep the same separate from
all other funds, and shall apply the income thereof in the manner
above provided.
§ 93. Expenses of improving vacated lot. Whenever a person
having a lot in a cemetery shall vacate the same by a removal of
all the bodies therefrom, and leave such lot in an unsightly condi-
tion for one month, the corporation may grade, cut, fill or otherwise
change the surface thereof, without reducing the area of the lot.
The expense, not exceeding ten dollars, shall be chargeable to the
lot. If the owners of such lot, within six months after such expense
has been incurred, shall not repay such expense, the corporation
may sell the lot at public auction upon the cemetery grounds, previ-
ous notice of such sale having been posted at the main entrance
of the cemetery, and mailed to the owners of such lot at their last-
known post-office address, at least ten days prior to the day of sale,
and shall pay the surplus, if any, on demand, to the owners of
such lot.
§ 95. Streets or highways not to be laid out through certain
cemetery lands. So long as the lands of a rural cemetery cor-
poration organized under the act entitled “An act authorizing the
incorporation of rural cemetery associations,” constituting chapter
one hundred and thirty-three of the laws of eighteen hundred and
forty-seven, and the acts amendatory thereof, shall remain dedi-
cated to the purposes of a cemetery, no street, road, avenue or public
thoroughfare shall be laid out through such cemetery, or any part
of the lands held by such association for the purposes aforesaid,
without the consent of the trustees of such association, and of two-
thirds of the lot owners thereof, and then only by special permission
of the legislature.
27
§ 96. Record of inscriptions to be filed. Whenever, under any
general or special law, any cemetery is abandoned or is taken for
a public use, the town board of the town or the governing body of
the city in which such cemetery is located, shall cause to be made,
at the time of the removal of the bodies interred therein, an exact
copy of all inscriptions on each headstone, monument, slab or marker
erected on each lot or plot in such cemetery and shall cause the same
to be duly certified and shall file one copy thereof in the office of
the town or city clerk of the town or city in which such cemetery
was located and one copy in the office of the state historian and
chief of the division of history in the department of education at
Albany. In addition to such inscriptions, such certificate shall state
the name and loaction of the cemetery so abandoned or taken-for a
public use, the cemetery in which each such body was so interred
and the disposition of each such headstone, monument, slab or
marker.
§ 97. Certificates of indebtedness. 1. If a cemetery corporation
be indebted for lands purchased for cemetery purposes, or for ser-
vices rendered or materials furnished in connection with the neces-
sary and proper preservation or improvement of its cemetery or for
moneys borrowed exclusively for payment of such services or ma-
terials, the directors, by the concurring vote of a majority of their
whole number, with the consent of the creditor to whom such in-
debtedness is owing, may issue certificates under the corporate seal,
signed by the president and secretary, for such amount, payable
at the times and at the rate of interest agreed on but not to exceed
six per centum per annum; provided, however, that there be first
obtained from the cemetery board an order approving the issuance
of such certificates. In the case of certificates of indebtedness issued
for moneys borrowed exclusively for payment for services rendered
or materials furnished in connection with the necessary and proper
preservation or improvement of its cemetery the consent of the
ereditor to whom such indebtedness is owing shall not be required.
Such approval shall be given by the cemetery board only if it de-
termines that the amount of the certificates proposed to be issued
does not exceed the fair and reasonable value of the services ren-
dered or materials furnished or the purchase price of real property
as fixed in accordance with section eighty-seven hereof. No certifi-
cate issued after the time when this section as hereby amended. takes
effect shall be valid or enforceable unless there has first been issued
by the cemetery board an order of approval as herein provided. No
certificate shall be for less than one hundred dollars. The certificate
shall be transferable by delivery, unless therein otherwise provided.
2. The directors shall keep an account of the number and amount
of such certificates, the persons to whom issued, the date of maturity,
the rate of interest and the purpose for which the same were issued.
Within sixty days after the time when this section as hereby
amended takes effect, each cemetery corporation shall file with the
cemetery board a verified copy of such account. On or before the
fifteenth day of March in each succeeding calendar year, each
28
cemetery corporation shall file with the cemetery board a verified
statement setting forth all changes in such account during the
previous calendar or fiscal year.
3. The directors shall set aside from the proceeds of sales of
lots, plots and parts thereof such sums to pay such certificates at
maturity as they deem necessary. Until the certificates are paid the
holders thereof shall be entitled at all meetings of the corporation,
to one vote for each one hundred dollars of the indebtedness
remaining unpaid, except that those certificates of indebtedness
issued for moneys borrowed exclusively for payment of services or
materials shall have no voting power. The certificates shall not be
a lien upon any lot, plot or part thereof belonging to a lot owner.
§ 98. Certificates of stock formerly issued. If a cemetery cor-
poration, incorporated under a law repealed by this chapter, prior
to September first, eighteen hundred and ninety-five, converted its
outstanding indebtedness or certificates of indebtedness into certifi-
cates of stock, in pursuance of law, no interest shall accrue to the
holders of such stock, but they shall receive annually or semi-
annually a dividend thereon for their proportional part of the
entire surplus or net receipts of the corporation over and above
current expenses; or if the proportion of the net receipts or sur-
plus which stockholders shall be entitled to receive shall have been
fixed by agreement at the time of issuing such stock, such stock-
holders shall be entitled to receive dividends in accordance with
such agreement. Such certificates of stock shall be transferable
only on the books of the corporation on the surrender of the
certificate, unless otherwise provided on the face thereof, and on
every such surrender a new certificate of stock shall be issued to
the person to whom the same has been transferred; and the holders
of such stock shall be entitled, in person or by proxy, to one vote
for every share thereof, at each meeting of the corporation. A
register of the stock issued by the corporation shall be kept by its
directors showing the date of issue, the number of shares, the par
value thereof, the name of each person to whom issued, the number
of the certificates therefor; and all transfers of such stock shall be
noted and entered in such register, and the certificates surrendered
shall be deemed canceled by the issue of a new ertificate, and the
surrendered certificate shall be destroyed. Any director may
become the holder or transferee of such stock for his own indi-
vidual use or benefit. No such stock shall be a lien on the lot of any
individual lot owner within the cemetery limits; and no other or
greater liability of the corporation issuing such stock shall be
created or deemed to exist than may be necessary to enforce the
faithful application of the surplus or net receipts of the corpo-
ration to and among the holders of the stock in the manner here-
inbefore specified.
A cemetery which has heretofore issued such certificates of
stock is a membership corporation and not a stock corporation.
29
§ 98-a. Retirement of certificates of stock of certain cemetery
corporations. If a cemetery association, incorporated under a
law repealed by chapter five hundred fifty-nine of the laws of
eighteen hundred ninety-five has changed certificates of indebted-
ness into certificates of stock, pursuant to chapter one hundred
seven of the laws of eighteen hundred seventy-nine, and said
stock remains unimpaired, such association may retire such stock
and issue in exchange therefor certificates of indebtedness repre-
senting the par value of said stock, such certificates of indebted-
ness to bear interest at a rate not exceeding six per centum per
annum from the date of the last preceding dividend payment;
provided, however, the exchange of such stock for certificates of
indebtedness shall be authorized at a duly called meeting of said
association by the affirmative vote of at least two-thirds of the
stock issued and outstanding and of at least two-thirds of all
votes cast at said meeting in favor of such exchange. Any holder
of such stock not voting in favor of the exchange of such stock for
certificates of indebtedness may at any time prior to the vote
authorizing such exchange, or if notice of the meeting to vote upon
such exchange was not mailed to him at least twenty days prior
to the taking of such vote, then within twenty days after the mail-
ing of such notice, object to such exchange and demand payment
for his stock and thereupon such stockholder or the corporation
shall have the right, subject to the same conditions and provisions
as are contained in section twenty-one of the stock corporation
law, to have such stock appraised and paid for as provided in
said section. Such objection and demand must be in writing and
filed with the corporation.
The provisions of this article relating to certificates of indebted-
ness and the rights of the holders thereof shall apply to certifi-
cates of indebtedness issued as provided in this section. The stocks
so retired shall not be reissued by said association and it shall
have no right thereafter to issue any certificates of stock.
§ 98-b. Purchase and retirement of stock. A cemetery corpo-
ration which has issued certificates of stock, pursuant to chapter
one hundred seven of the laws of eighteen hundred seventy-nine,
or chapter two hundred sixty-seven of the laws of eighteen hun-
dred ninety-four, may purchase such certificates of stock with its
surplus or reserve funds, and hold such certificates for the benefit
of its surplus or reserve funds, but such certificates of stock so
purchased may not thereafter be sold or reissued.
A cemetery corporation which has issued certificates of stock
may also effect the retirement of such stock as follows: The board
of directors of said corporation shall adopt by vote of a majority
of the entire number of such directors a plan for such retirement
which shall include the fixing of a price which the corporation
will pay for all shares of stock then outstanding, which price shall,
in the opinion of the said directors, represent the fair value of said
stock. The said plan shall be submitted to a meeting of the mem-
bers of said corporation duly called, and, if approved by the
30
affirmative vote of at least two-thirds of all votes cast at said
meeting, including the affirmative vote of the holders of record
of at least two-thirds of all shares of stock issued and then out-
standing exclusive of any shares of stock held by the corporation,
Shall become binding upon all stockholders, and they shall pro-
ceed to transfer and surrender to the corporation their certificates
of stock and to receive payment therefor in accordance with the
terms of said plan. Any holder of shares of such stock not voting
in favor of the approval of said plan may at any time prior to the
vote approving such plan, or if notice of the meeting to vote upon
such plan was not deposited in the United States mail, addressed
to him at his last known address as shown on the books of the
corporation, at least twenty days prior to the taking of such vote,
then within twenty days after the mailing of such notice, but in
any event within ten days after the taking of said vote, by written
notice filed with said cemetery corporation, ob ject to said plan and
demand appraisal of the value of his shares of stock, and there-
upon such stockholder and said corporation shall have the right,
subject to the same conditions and provisions as are contained in
section twenty-one of the stock corporation law, to have such
stock appraised and paid for as provided for in said section.
§ 99. Exchange of certificates for shares. The directors of a
cemetery corporation, which has issued certificates for shares,
from time to time by resolution, may fix the value of each of such
Shares and authorize the acceptance by the corporation of such
certificates at the value so fixed in payment for land. All ecertifi-
cates so accepted shall be immediately cancelled and shall not be
again issued.
§ 100. Lot owners in unincorporated cemeteries may incorpo-
rate. Not less than three owners of lots in an unincorporated
cemetery may cause a notice to be posted in at least six conspic-
uous places in the city, town or village in which such cemetery
is located, and to be published once in each week for three suec-
cessive weeks in a newspaper, if any, published in such munici-
pality, stating that at a time and place specified, a meeting of the
lot owners will be held to determine whether such cemetery shall
be incorporated, pursuant to this chapter.
§ 101. Meeting to determine such question. The meeting shall
be held at a convenient place in the city, town or village in which
the cemetery is located, not less than twenty-five nor more than
thirty days after the first posting and publication of the notice
of the meeting. At such meeting every lot owner shall be entitled
to one vote in person or by proxy for each lot owned by him.
The persons entitled to vote at such meeting shall select a chair-
man and secretary, and determine by ballot whether or not the
lot owners shall incorporate pursuant to this chapter.
§ 102. Incorporation pursuant to meeting; conveyance of prop-
erty to corporation. If a majority of the ballots are in favor of
31
incorporation, the persons entitled to vote at such meeting shall
select three lot owners to incorporate and the provisions of this
chapter shall be applicable, except that three persons may incor-
porate, and the corporation shall not be required to have more
than three directors. Upon such incorporation, the lot owners
shall be members of the corporation, and it shall be vested with
the title to such cemetery and the personal property appertaining
thereto. If the title to the cemetery has prior to such incorporation
vested in the town, pursuant to section three hundred and thirty-
two! of the town law, or section one of title seven of chapter
eleven of part one of the revised statutes, the supervisor of such
town shall on request of the directors of such corporation, execute
to it a deed of such cemetery lands releasing all interest of the
town therein, and thereafter the title shall be vested in the
corporation.
1Now Town Law, Section 291.
§ 106. Judicial review. Any order or determination of the
cemetery board made pursuant to any section of this article shall
be subject to review by the supreme court in the manner provided
by article seventy-eight of the civil practice act; provided, how-
ever, that an application for review of such order must be made
within thirty days from the date of the filing of such order, and
provided further that no stay shall be granted pending the deter-
mination of the matter except on notice to the cemetery board and
for a period not exceeding thirty days. Proceedings to review
such order shall be entitled to a preference.
: orts; payments; penalities. ‘es
eS poe Ain ganttosth at examination and administration,
each cemetery corporation shall, at the time of filing its account-
ing and report as to its permanent maintenance fund, but not
later than March fifteenth in each calendar year, pay to the
cemetery board the sum of five dollars for each acre or fraction
thereof in excess of five acres of tax exempt property owned by
the cemetery corporation or at the rate of one dollar per interment
in excess of twenty-five interments for the preceding calendar
; ichever is less. ne
Ue elie corporation or individual failing to file any
report or any schedule of rules, regulations and charges pemre’
by this article shall forfeit to the people of the state the sum o
one hundred dollars for each day that each such report shall be
delayed or withheld, except that the cemetery board may Oxhestd
the time for filing any such report and may waive payment of any
penalty or part thereof provided herein. sie
3. The cemetery board may address to any cemetery corporation
or its officers or any person any inquiry in relation to the tran-
sactions or conditions of the cemetery corporation or any matter
connected therewith, and may require that a reply be verified.
Failure to submit such reply within the time designated by the
cemetery board shall subject the corporation, officer or person
32
so addressed to the penalties provided in subdivision two hereof.
4. Wherever under the provisions of this article a person violat-
ing any part thereof is deemed to be guilty of a misdemeanor and
no specific penalty is provided, the penalty for each separate
violation shall be imprisonment for not more than six months or a
fine of not more than ‘five hundred dollars, or both.
§ 108. Powers and duties of the cemetery board. With respect
to any cemetery or cemetery corporation, the cemetery board shall
have the following duties and powers:
1. To adopt such reasonable rules and regulations as the ceme-
tery board shall deem necessary for the proper administration of
this article.
2. To order any cemetery corporation to do such acts as may be
necessary to comply with the provisions of this article or any rule
or regulation adopted by the cemetery board or to refrain from
doing any act in violation thereof.
3. To enforce its orders by mandamus or injunction in a sum-
mary proceeding or otherwise.
4. To maintain a civil action in the name of the people of the
state to recover a judgment for a money penalty imposed under
the provisions of this article.
§ 108-a. Actions affecting cemetery corporations. In any action
or proceeding affecting or instituted by any cemetery corporation
the cemetery board shall be served with notice thereof in the same
manner as any necessary party and shall take such steps in the
action or proceeding as it may deem necessary to protect the
publie interest.
Penal Law.
§ 449. Cemetery to state true location. Any cemetery corpora-
tion or employee or agent thereof that shall advertise in a news-
paper, magazine or other publication or in the form of a book,
notice, circular, pamphlet, letter, poster, card, or over any radio
station, or in any other way for the purpose of selling lots, plots or
parts thereof in its cemetery shall in such advertisement state the
location of the cemetery grounds, including the city, town or
village, and the county and state. A violation of the provisions
of this section shall constitute a misdemeanor and shall be punish-
able by a fine of not more than five hundred dollars or not more
than six months imprisonment or both.
Penal Law. |
§ 450. Unauthorized charges in connection with permits for
burials or erection of monuments. It shall be unlawful for a
society or fraternal organization or a representative thereof to
obtain, receive, or exact or attempt to obtain, receive, or exact, a
fee or thing of value in addition to the regular dues or charges
required to be paid pursuant to the by-laws, constitution, or rules
of such society or fraternal organization as a condition to grant-
ing a permit for or consent to burial in or the erection of a monu-
33
ment or memorial upon a lot or plot in a cemetery. A violation of
this section shall constitute a misdemeanor and shall be punish-
able by a fine of not more than five hundred dollars or not more
than six months imprisonment or both.
Penal Law.
§ 663-a. Foreign corporations doing business in this state with-
out authority. A foreign corporation, however designated, which
shall do business in this state by carrying on therein any kind of
educational institution, or hospital, or lying-in asylum, or home
for convalescents, or for invalids, or for juvenile delinquents, or
for aged or indigent persons, or institution for the care of children,
or for the care and treatment of the insane or mentally defective,
or which shall do business in this state in the selling or offering
for sale of cemetery lots, plots or parts thereof, whether located
within or without this state, without a certificate of authority
from the secretary of state issued in conformity with the require-
ments of the general corporation law, and any director, trustee,
officer, manager, or superintendent of such corporation engaged
in doing its business in this state, is guilty of misdemeanor.
Stock Corporation Law.
§ 9-a. Cemetery corporations. No corporation shall be organ-
ized under the provisions of this article for the purpose of owning,
operating or managing a cemetery, or for the purpose of selling or
conveying lots, plots, or parts thereof in any cemetery.
Real Property Law.
§ 451. Acquisition of lands for cemetery purposes in certain
counties. It shall not be lawful for any person to take by deed,
devise or otherwise or set apart or use any land or ground in any
of the counties of Westchester, Kings, Queens, Richmond, Rock-
land, Suffolk, Putnam or Nassau for cemetery purposes without
the consent of the board of supervisors for such county, or of the
board of aldermen of the city of New York, as the case may be,
first had and obtained in like manner as provided for in the mem-
bership corporations law; and said board of supervisors or board
of aldermen in granting such consent may annex thereto such
conditions, regulations and restrictions as such board may deem
the public health or the public good require.
34
Rules of Procedure of the State Cemetery Board
1. Administration. Subject to the supervision, direction and
control of the Cemetery Board, the director of the Division of
Cemeteries shall be responsible for the administration of the Divi-
sion of Cemeteries.
2. Applications for orders or determinations. a. All applica-
tions, required to be made to the Cemetery Board for orders or deter-
minations, except applications for approval of rates and charges or
for authority to issue certificates of indebtedness, pursuant to
sections 82 and 97 of the Membership Corporations Law, shall be
determined and the orders made by the director in the first
instance.
b. A party aggrieved by an order or determination so made by
the director, may file a protest with the Cemetery Board within
30 days after the effective date of such order or determination.
e. If a protest be not filed with the Cemetery Board within 30
days after the effective date of the order or determination made
by the director, said order or determination shall be considered
the final order or determination of the Cemetery Board unless
(1) the time to file a protest is, for good cause, extended by the
Cemetery Board, or (2) the Cemetery Board, within 60 days
after the effective date of the order or determination made by the
director, shall upon its own action make an order or determination
modifying, amending, supplementing or rescinding the order or
determination of the director.
d. The protest shall specify the objections to the subject order
or determination. The board, in passing upon the protest, will
consider only those objections so specified and may afford a
hearing or limit the protestant to the filing of affidavits or
memoranda.
e. The filing and determination of a protest to the Cemetery
Board shall be a prerequisite to obtaining judicial review of any
order or determination made by the director under section 1
hereof.
f. Any protest not acted upon by the Cemetery Board within
60 days after the filing thereof shall be deemed to be denied in
all respects.
3. Filing of reports. At the time of filing the accounting and
report concerning the disposition of proceeds of sales of lots,
plots, or parts thereof, as required by subdivision 5 of section 87
of the Membership Corporations Law, every cemetery corporation
shall also file with the Cemetery Board an accounting and report
ere its permanent maintenance and current maintenance
funds.
4. Location of offices. The principal office of the State Ceme-
tery Board is located in the State Office Building, 270 Broadway,
New York 7, New York. There are branch offices at 164 State
Street, Albany, N. Y., 472 South Salina Street, Syracuse 2, New
York, and the State Office Building, Buffalo 2, New York.
35
5. Addressing of communications. All communications to the
State Cemetery Board should be addressed to State Cemetery
Board, State Office Building, 270 Broadway, New York 7, N. Y.,
unless otherwise specified.
6. Filing of reports, papers, maps, documents, etc. All orders
by the State Cemetery Board and all papers, maps or copies
thereof, reports or documents filed with the State Cemetery Board
pursuant to statute, shall be filed in the principal office of the
State Cemetery Board.
7. Filing of application for extension of time for filing reports.
When an application is made for extension of time within which
to make and file any annual or periodic report with the State
Cemetery Board or to otherwise comply with any statutory re-
quirement or order of the State Cemetery Board, the petition for
such extension of time shall be filed before the expiration of the
period prescribed, shall be verified, and shall set forth in detail:
(1) What effort has been made by the applicant to prepare
such report or to comply with the statute or order specified.
(2) Facts tending to show why said report could not be made
and filed or the statute or order complied with within the time
prescribed.
(3) Other facts which justify an extension of time.
(4) The further period of time necessarily required within
which to make and file such report or to comply with such statute
or order.
The foregoing rules may be waived in a specific case only by
the State Cemetery Board or its duly authorized agent. Petitions
for a waiver must be made in writing and shall state the facts
and reasons in support of such requests. The action of the State
Cemetery Board on such petition shall also be in writing.
8. Serving of notices. Unless otherwise specified by statute, all
notices or other papers shall be served by the State Cemetery
Lsoard personally or by mail. When any party is represented by an
attorney, service upon such attorney shall be deemed service upon
the party.
CEMETERY LAW
Cl Guide to the 1949 Revision
CEMETERY LAW
Cl Guide to the 1949 Revision
It has long been the policy of the State of New York that cemeteries
shall be operated on a mutual basis for the benefit of its plot owners.
The advantages to communal health and welfare and a decent regard
for the customs and sentiments of people make such a policy eminently
desirable.
No one can question the fact that many officers, trustees, managers
and employees of cemeteries throughout the State, large and small, have
always been guided by this policy in their dealings with the public.
Yet it is equally true that within recent years certain conditions
developed which enabled unscrupulous operators to use a cemetery as
a medium for unconscionable profits.
Disclosure of these conditions andthe resultant abuses led the Legis-
lature to amend the body of law relating to cemeteries.
The new law, which is effective September 1, 1949, is the result of
a statewide investigation of cemeteries conducted by the State Attorney
General and is designed to give practical expression to the interest all
people have in the proper maintenance and operation of our cemeteries.
With an eye to the realities of the present and the needs of the future,
the new law has a dual purpose.
It seeks not only to protect the general public in transactions with
cemetery corporations but also to so order the operation of cemeteries
that they may be maintained without disadvantage to either plot owner
or the operating corporation and therefore preserved for the benefit of
the community.
The new law creates a State Cemetery Board and assigns to it the
duties of supervising the activities of cemetery corporations. Further-
more, it outlines operative procedure for cemeteries.
It is the intention of the Cemetery Board to elicit the cooperation of
all cemetery officials, in guaranteeing the rights of the public and as-
suring the proper maintenance and preservation of cemeteries.
In the following pages there will be found a summary of the chief
provisions of the new law, a text of the law itself and a calendar of im-
portant dates relating to the operation of cemeteries.
September 1, 1949.
THE STATE CEMETERY BOARD
Thomas J. Curran Nathaniel L. Goldstein Herman FE. Hilleboe
Secretary of State Attorney-General
Commissioner of Health
RULES, REGULATIONS AND CHARGES
(Memb. Corps. Law §§ 82; 82-a)
The new law fixes several definite responsibilities on a cemetery
corporation in connection with its own rules, regulations and charges.
Each cemetery corporation shall make reasonable rules and regula-
tions for the use, care, management and protection of the cemetery, in-
cluding such things as erection of structures, horticulture embellishment,
disinterment, admission to the cemetery grounds, etc.
In addition, each cemetery corporation shall prepare a schedule of its
charges for the various services which it renders, including such things
as perpetual, annual or special care. In fixing these charges the corpora-
tion is to consider the fair and reasonable cost and expense of rendering
the service or performing the work for which such charge is made.
These rules, regulations and charges must be filed with and approved
by the Cemetery Board before they may be enforced. However, pending
action by the Board, the Cemetery Corporation may continue to enforce
its rules, regulations and charges which were in effect prior to September
1, 1949.
The new law sets forth the procedure for obtaining the approval of
the Board.
On or before November 29, 1949 each cemetery corporation shall file
with the Cemetery Board a copy of its proposed rules and regulations
and schedule of charges together with a statement showing the basis
upon which they were made.
Within six months after such filing the Cemetery Board will notify
the corporation of its approval, disapproval or amendment of any such
rules, regulations or charges.
The cemetery corporation must at all times have a copy of its rules,
regulations and charges conspicuously posted in each of its offices,
No later than March 15 in each calendar year, the rules, regulations
and charges of each cemetery corporation shall be re-filed with the
Cemetery Board together with a statement showing any changes which
the cemetery corporation may propose. Such changes shall not be ef-
fective and may not be enforced until approved by the Cemetery Board.
It is to be noted that such re-filing must be made in each calendar
year, even though no amendments may be desired by the cemetery cor-
poration.
my
The law takes note of the fact that the cemetery corporation may
render services ordered by a plot owner for which a charge cannot reason-
ably be fixed in advance in the form of a schedule, as in the case of
unusual repairs. If such services are rendered and a charge made, the
Cemetery Board may review the charge and the performance of the work.
MAINTENANCE FUNDS
(Memb. Corps. Law §§ 86-a; 87)
In order to enable the corporation to properly maintain the cemetery
and to insure its preservation, the law compels each cemetery corpora-
tion to establish a Permanent Maintenance Fund and a Current Main-
tenance Fund.
At least ten per cent of the gross proceeds of each sale of a grave
or plot must be deposited into the Permanent Maintenance Fund. This
fund is to be kept as a trust fund and may be invested only in such se-
curities as are legal for institutions such as savings banks. The prin-
cipal of the fund may not be touched except upon order of the Supreme
Court. However, the income resulting from investment may be used for
the maintenance and preservation of the cemetery grounds.
In addition to the deposit into the Permanent Maintenance Fund, at
least fifteen per cent of the gross proceeds of each sale of a grave or
plot must be deposited in the Current Maintenance Fund. The principal
and interest of this fund may both be used, but only for the current care
and maintenance of the cemetery.
Where the sale is made on an installment basis, the cemetery cor-
poration must deposit into the Permanent Maintenance Fund and Cur-
rent Maintenance Fund at least twenty-five per cent of the initial pay-
ment made by the purchaser and of each succeeding installment until
the total on deposit reaches twenty-five per cent of the gross purchase
price.
On or before March 15 in each calendar year, every cemetery cor-
poration shall file with the Cemetery Board a complete accounting and
report showing the exact disposition of proceeds of sales of graves and
plots and the status of the Permanent Maintenance and Current Main-
tenance Funds.
The creation of these two funds does not mean that no other moneys
shall be spent for care and maintenance.
In fact, the law imposes the duty upon the cemetery corporation to
maintain and preserve the cemetery, including all lots, plots and parts
2
thereof, and continues the long-existing provision that proceeds of
sales shall be used only for the preservation, improvement and en-
bellishment of the cemetery, payment of proper expenses and liabilities
and necessary payments to certificate and share owners.
Some cemeteries may accumulate an excess or surplus of income
from operation. In such case, provided the cemetery has complied with
the necessary requirements of the law, it may establish in addition a
voluntary fund, for the benefit of the cemetery. This fund may of course
be used in the discretion of the cemetery for care, improvement, preser-
vation and development. It is not to be confused with the Perpetual Care
Fund or the statutory Permanent Maintenance Fund. It is separate and
distinct, and is at all times moneys belonging to and under the control
of the’ cemetery, but may be used only for the benefit of the cemetery.
PERPETUAL CARE
(Memb. Corps. Law §§ 76; 91; 92; 92-a)
As is known, a cemetery is authorized to accept funds for the per-
petual care of an individual plot or grave. There is nothing new about
this.
The new law, however, provides that all moneys received for per
petual care shall be kept separately in a Perpetual Care Fund. This
shall be held as a trust fund and may be invested only in such secur-
ities as are permitted to institutions such as savings banks.
On or before March 15 in each calendar year, the cemetery corpora-
tion shall determine the income resulting from the investment of the
fund during the preceding calendar or fiscal year, and apportion the
same to each lot for which a perpetual care agreement is in existence.
The excess of such allocated income over and above the amount actually
spent for the care of the particular lot during that year shall be credited
to such lot for use in future years in which there may be a deficiency
of income.
On or before March 15 in each calendar year, the corporation shall
file with the Cemetery Board an accounting and report showing the
status of the Perpetual Care Fund as of the close of the previous cal-
endar or fiscal year. A copy of such accounting and report shall be held
available at the corporation’s office for inspection by interested lot
owners.
SALES
(Memb, Corps. Law §§ 81; 82-a; 84)
The law requires a cemetery corporation to prepare a schedule of
prices for graves and plots.
One copy of the schedule shall be filed with the Cemetery Board
and another copy posted conspicuously in each of the cemetery offices.
If any sale be made at a price in excess of the schedule filed with
the Cemetery Board the corporation is made subject to a penalty in the
amount of three times such excess.
When a sale is made, the instrument of conveyance must show the
price paid. The description of the property in the conveyance must
show the plot number, section and block number and the dimensions of
the property conveyed.
So long as there are any bodies interred, and the cemetery continues
in existence, no sale may be made of the fee title to the land, as dis-
tinguished from burial rights.
RESALES
(Memb. Corps. Law § 85)
The new law seeks to prevent speculation in cemetery plots.
A plot owner may not resell his plot unless he offers the cemetery
corporation an opportunity to buy it back at the original price plus two
per cent simple interest from the date of purchase.
The corporation must accept or reject the offer within thirty days.
If the cemetery corporation does not repurchase the plot, the plot owner
may, upon obtaining the approval of the Cemetery Board, sell his plot
to any other purchaser.
Except in the case of a sale to a bona fide society which provides
burial benefits for its members, the new law makes it a penal offense
for any cemetery corporation to sell a grave or plot which it knows or
has reason to know is being acquired for the purpose of resale. Similar
penalty is provided for the purchaser in such transactions.
ACQUISITION OF LAND
(Memb. Corps. Law § 87)
All future purchases of real property shall be subject to approval
by the Supreme Court in the district wherein the land is located.
it
The Cemetery Board must be given written notice of any application
to a court for the approval of land acquisition.
CERTIFICATES OF INDEBTEDNESS
(Memb. Corps. Law § 97)
Inflated or indiscriminate issuance of certificates of indebtedness
is barred by the new law.
Certificates may be issued only for the fair and reasonable value of
services rendered or materials furnished in connection with the necessary
and proper preservation or improvement of the cemetery or for the approved
price of real property purchased by the cemetery corporation.
Before any such certificates may be issued, however, the consent of
the Cemetery Board must be obtained.
Cn or before October 29, 1949, each cemetery corporation shall file
with the Cemetery Board an accounting of its outstanding certificated
indebtedness.
On or before March 15 in each calendar year, every cemetery Corpora
tion must file with the Cemetery Board an accounting showing the ys
ance of certificates and payments made on outstanding certificates dur
ing the preceding calendar year.
MISCELLANEOUS
In addition to the foregoing major provisions of the new law, other
noteworthy changes include those relating to:
VOTING RIGHTS (Memb. Corps. Law § 74) --Two significant changes
are made with respect to voting rights:
1) A lot of only 60 square feet of land (instead of 96) is made
a prerequisite to a voting right;
2) The holder of a certificate of indebtedness is entitled to
a vote for each $100. of the indebtedness remaining unpaid
rather than of the face amount of the certificate.
COMMISSIONS (Memb. Corps. Law § 85 [4]) - Commissions in con-
nection with the sale of graves or plots may be paid only to parsom
regularly employed and supervised by the cemetery corporation.
Regularly employed means that the usual relationship of employer
and employee exists.
=
MAPS AND ACCESS (Memb. Corps. Law § 80) -- Each cemetery
is required to file a true copy of its sectional maps showing the lay-
out of lots and single grave sections. A blueprint of the tracing,
photograph or photostatreduced to a reasonable size will be accepted.
Reasonable access by means of paths, alleys or walks, must be
provided for each grave and plot. If access to any particular grave
or plot is now impeded by other graves or plots it is not necessary
for the corporation to disinter bodies in order to provide access.
In the future, however, no body shall be interred in any path, alley,
avenue or walk which is in existence or which is shown on the ceme-
tery map.
TAXATION (Memb. Corps. Law § 90) -- The right of taxation for the
improvement and care of the cemetery is continued and made state-
wide, with the provision, however, that no tax may be levied with-
out first obtaining the approval of the Cemetery Board.
REFUSAL OF BURIAL (Memb. Corps. Law § 88) -- Burial may not
be refused for any reason except non-payment of the purchase price
of the grave or plot or failure to pay, within five years, a tax levied
in accordance with Sec. 90 of the Membership Corporations Law.
ADVERTISEMENT (Penal Law § 449) -- All advertisements with
respect to the cemetery must specify the location of the cemetery
grounds, including the city, town or village and the county and state.
NOTICE OF ACTIONS (Memb. Corps. Law § 108-a) -- The Cemetery
Board shall promptly be notified of any action or proceeding insti-
tuted by or affecting the cemetery.
NEW CORPORATIONS (stock Corporation Law § 9-a) -- Anew
cemetery may not be organized without the approval of the Cemetery
Board.
Attention is called to the following three provisions of the new law:
ADMINISTRATION EXPENSES
(Memb. Corps. Law § 107)
To defray the expense of administration and examination, every
cemetery corporation, at the time of filing the accounting and report
as to its Permanent Maintenance Fund, but not later than March 15,
1950 and in each calendar year, shall pay to the Cemetery Board the
sum ofthree dollars for each acre or fraction thereof of tax exempt proper-
ty owned by it, or at the rate of one dollar per interment for the entire
i}
preceding calendar year, whichever is less, but in no event shall the
sum paid exceed one thousand dollars.
PENALTIES
(Memb. Corps. Law § 107)
The law provides both civil and criminal penalties for failure to
to abide by its provisions. Of particular importance is the provision that
failure to file any required report or schedule entails a penalty of one
hundred dollars for each day of delay, unless an extension of time has
been granted by the Cemetery Board.
JUDICIAL REVIEW
(Memb. Corps. Law § 106)
For the benefit of cemetery corporations, the law provides for re-
view by the Supreme Court of orders or determinations of the Cemetery
Board. Applications for such review must be made within thirty days
from the date of the filing of the order or determination.
RULES OF PROCEDURE OF
THE STATE CEMETERY BOARD
The principal office of the State Cemetery Board is located in the
State Office Building, 270 Broadway, New York 7, New York. There
is a branch office at 164 State Street, Albany, N. Y.
All communications to the State Cemetery Board should be addressed
to State Cemetery Board, State Office Building, 270 Broadway , New
York 7, N. Y., unless otherwise notified.
All orders made by the State Cemetery Board and all papers, maps
or copies thereof, reports or documents filed with the State Cemetery
Board pursuant to statute, shall be filed in the principal office of the
State Cemetery Board.
When an application is made for extension of time within which to
make and file any annual or periodic report with the State Cemetery
Board or to otherwise comply with any statutory requirement or order
of the State Cemetery Board, the petition for such extension of time
shall be filed before the expiration of the period prescribed, shall be
verified, and shall set forth in detail:
1. What effort has been made by the applicant to pre-
_ pare such report or to comply with the statute or order
specified.
2. Facts tending to show why said report could not be
made and filed or the statute or order complied with
within the time prescribed.
3. Other facts which justify an extension of time.
4. The further period of time necessarily required with-
in which to make and file such report or to comply
with such statute or order.
The foregoing rules may be waived in a specific case only by the
State Cemetery Board or its duly authorized agent. Petitions for a waiver
must be made in writing and shall state the facts and reasons in support
of such request. The action of the State Cemetery Board on such petition
shall also be in writing.
Unless otherwise specified by statute, all notices or other papers
shall be served by the State Cemetery Board personally or by mail. When
any party is represented by an attorney, service upon such attorney shall
be deemed service upon the party.
-9-
eS ee
CALENDAR
For the convenience of cemeteries, the following time table or re-
ports to file and miscellaneous data is hereby set forth below:
1. By October 30, 1949, a cemetery corporation shall
file a verified copy of an account showing the num-
ber and amount of certificates of indebtedness, the
persons to whom issued, the date of maturity, the
rate of interest, and the purpose for which the same
were issued.
2. November 29, 1949, the last day to file schedule of
rules, regulations and charges, together with a
statement showing the basis upon which they were
made (for cemeteries in existence on September 1,
1949). +
3. Cemetery corporations organized after September 1,
1949 must file schedule of rules, regulations and
charges within 90 days after date of filing certifi-
cate of incorporation.
4, March 15, in each year is the last day:
(a) For re-filing of schedule of rules, regulations
and charges.
(b) To comply with the Law requiring filing with
the Cemetery Board an accounting and report
concerning the disposition of proceeds of
sales of lots, plots or parts thereof, during
the preceding calendar or fiscal year, and
the status of the Permanent and Current Main-
tenance Funds.
(c) To file report concerning disposition and
status of perpetual care funds and the income
thereof,
(d) To file a verified statement setting forth all
changes that may have taken place during the
previous calendar or fiscal year with respect
to certificates of indebtedness.
(e) To pay the expenses of examination and ad-
ministration based upon the number of acres
or the amount of interments, to wit: $3 for
each acre or fraction thereof, of tax exempt
property owned by it, or $1 per interment for
the preceding calendar year, whichever is
less, but in no event shall the sum paid ex-
ceed $1,000.00.
-10-
Membership
Corporations
Law, § 97.
Membership
Corporations
Law, § 82.
Membership
Corporations
haw, -§. 82.
Membership
Corporations
Law, § 82.
Membership
Corporations
Law, § 87.
Membership
Corporations
Law, §§ 76;
92-a.
Membership
Corporations
Law, § 9%.
Membership
Corporations
Law, § 107.
STATE CEMETERY BOARD
THOMAS J. CURRAN NATHANIEL L. GOLDSTEIN
Chairman Attorney-General
HERMAN E. HILLEBOE
Commissioner of Health
THEODORE D. OSTROW
Director
OFFICES
270 Broadway
New York 7, N. Y.
164 State Street
Albany, N. Y.
CEMETERY ADVISORY BOARD
MR. WILLIAM A. CONE
Mount Ararat Cemetery, East Farmingdale
MR. LEE ROY CROSWELL
Montrepose Cemetery, Kingston
MR. FLOYD B. GALLAGHER
Cortland Rural Cemetery, Cortland
MR. CRAWFORD T. PERKINSON
Mount Hope Cemetery, Hastings-on-Hudson
MR. VERNON L. THOMPSON
Forest Lawn Cemetery, Buffalo
li
LAWS OF NEW YORK.—By Authority
CHAPTER 533
AN ACT to amend the membership corporations law, the penal law, the
state departments law and the stock corporation law, in relation to
cemeteries and cemetery corporations, establishing a division of cemeteries
in the department of state, providing for and prescribing the powers and
duties of a cemetery board therein, and making an appropriation for the
expenses of such division
Became a law April 11, 1949, with the approval of the Governor. Passed,
by a majority vote, three-fifths being present
The People of the State of New York, represented in Senate and Assembly,
do enact as follows:
Section 1. The people of this state have a vital interest in the
establishment, maintenance and preservation of burial grounds and
the proper operation of the corporations which own and manage the
same. It is hereby declared that unhealthful, unfair, unjust,
destructive, demoralizing and uneconomic practices have been and
are now being carried on in the maintenance and operation of ceme-
teries. To protect the well-being of our citizens, to promote the
public welfare and to prevent cemeteries from falling into disrepair
and dilapidation and becoming a burden upon the community, and
in furtherance of the public policy of this state that cemeteries shall
be conducted on a non-profit basis for the mutual benefit of plot
owners therein, the following provisions are enacted in the exercise
of the police power of the state.
§ 2. Subdivision three of section eleven of the membership cor-
porations law is hereby amended to read as follows: :
3. The certificate of incorporation of a cemetery corporation
organized after September first, nineteen hundred forty-nine,
shall have endorsed thereon the approval of the cemetery board and
shall be filed in the office of the clerk of each county in which any
part of the cemetery is proposed to be or is situated, as well as in
the offices specified in the general corporation law, and shall state:
(a) Each city, village or town and county in which any part of
the cemetery is proposed to be or is situated:
(b) The time of the annual meeting.
The provisions of this subdivision as to approval by the cemetery
board shall not apply with respect to the certificate of incorpora-
tion of any corporation enumerated in section seventy-one of this
chapter.
§ 3. Section twenty-seven of such law, as added by chapter seven
hundred ten of the laws of nineteen hundred forty-five, is hereby
amended to read as follows:
§ 27. Investment of funds. Subject to the limitations and con-
ditions contained in any gift, devise or bequest, a membership cor-
poration, created by or under a general or special law, may invest
its funds in such mortgages, bonds, debentures, shares of preferred
2
and common stock and other securities as its directors shall deem
advisable, except as otherwise provided in article nine of this chap-
ter with respect to cemetery corporations.
§ 4. The article heading of article nine of such law is hereby
amended to read as follows:
ARTICLE [IX
CEMETERY CORPORATIONS
§ 5. Sections seventy and seventy-one of such law are hereby
amended to read, respectively, as follows:
§ 70. Definitions. As used in this article:
1. The term ‘‘cemetery corporation’? means any corporation
organized under a general or special law for the burial of the dead in
a grave, mausoleum, vault or other receptacle but does not inelude
a family cemetery corporation or a private cemetery corporation.
9. The term ‘‘lot owner’’ or ‘‘owner of a lot’? means any person
having a lawful title to the use of a lot, plut or part thereof, in a
cemetery.
8 The term ‘‘cemetery board’’ means the cemetery board in the
division of cemeteries in the department of state.
§ 71. Application. This article, except as otherwise provided in
section ninety-two, does not apply to (1) a religious corporation,
(2) a municipal corporation, (3) a cemetery corporation owning a
cemetery operated, supervised or controlled by or in connection
with a religious corporation, or (4) a cemetery belonging to a
religious or a municipal corporation, or operated, supervised or
controlled by or in connection with a religious corporation; unless
any officer, member or employee of any corporation enumerated in
this section shall receive or may be lawfully entitled to receive any
pecuniary profit from the operations thereof, except reasonable
compensation for services in effecting one or more of the purposes
of such corporation, or as proper beneficiaries of its strictly chari-
table purposes; or unless the organization of such corporation for
any of its avowed purposes be a guise or pretense for directly or
indirectly making any other pecuniary profit for such corporation,
or for any of its officers, members or employees; and unless such
corporation be not in good faith organized or conducted exclusively
for one or more of its stated purposes.
§ 6. Such law is hereby amended by inserting therein a new sec-
tion. to be section seventy-one-a, to read as follows: :
'71-a. Cemetery board. 1. There is hereby created a cemetery
board within the division of cemeteries in the department of state.
2 The members of such board shall be the secretary of state, the
attorney-general and the commissioner of health, who shall serve
without additional compensation.
8 The secretary of state, attorney-general and commissioner of
health may each, by official order filed in the office of his respective
department and in the office of the board, designate a deputy or
other representative in his department to perform any or all of the
duties under this article of the department head making such desig-
nation, as may be provided in such order, provided however that all
3
orders or determinations of the board which are made reviewable in
this article pursuant to the provisions of article seventy-eight of the
civil practice act shall be signed by at least two of the members of
said board and not by a designee or designees. Such designation
shall be deemed temporary only and shall not affect the civil service
or retirement rights of any person so designated. Such designees
shall serve without additional compensation.
4. The secretary of state shall be chairman of such board, pro-
vided that in his absence at any meeting of the board the attorney-
general or the commissioner of health, in such order, if either or
both be present, shall act as chairman. When designees of such
officers, in the absence of all such officers, and acting for them, are
present at any meeting of the board, the designee of the secretary of
state, if present, and in his absence one of the other designees pres-
ent, in the same order of preference as provided for the officer
appointing him when present at a meeting, shall act as chairman.
5. Technical, legal or other services shall be performed in so far
as practicable by personnel of the departments of state, law and
health without additional compensation but the board may employ
- and compensate within appropriations available therefor such
assistants and employees as may be necessary to carry out the pro-
visions of this article and may prescribe their powers and duties.
6. Two members of the board shall constitute a quorum to trans-
act the business of the board at both regular and special meetings.
7. The board shall meet at least once a month, shall keep a record
of all its proceedings and shall determine the rules of its own
proceedings.
8. Special. meetings may be called by the chairman upon his initi-
ative, and must be called by him upon receipt of a written request
therefor signed by another member of the board. Written notice of
the time and place of such special meeting shall be delivered to the
office of each member of the board.
9. The board shall have the duty of administering the provisions
of this chapter which deal with cemetery corporations other than
cemeteries and cemetery corporations enumerated in section seventy-
one of this article and shall have all the powers herein provided and
such other powers and duties as may be otherwise prescribed by
law. No official act shall be taken, rule or regulation promulgated,
or official order made or enforced without the written approval of a
majority of the members of the board.
§ 7. Section seventy-four of such law, as amended by chapter
four hundred eight of the laws of nineteen hundred thirty-two, is
hereby amended to read as follows:
§ 74. Corporate meetings. Each owner of full age of a lot,
containing at least sixty square feet of land in the cemetery
of the corporation, or if there be two or more owners, then one
of them designated by a majority of them, may cast one vote at
meetings of the corporation in respect to such lot. At such meet-
ings, each owner of a certificate of stock heretofore lawfully issued
shall be entitled to one vote for each share of stock owned by him
and each owner of a certificate of indebtedness shall be entitled to
4
one vote for each one hundred dollars of such indebtedness remain-
ing unpaid. No lot owner shall be entitled to vote unless all assess-
ments against the lot of such owner have been paid. A quorum for
the transaction of business, unless the certificate of incorporation or
by-laws otherwise provide, shall be five members entitled to vote at
the meeting.
§ 8. Section seventy-six of such law, as last amended by chapter
three hundred twenty-seven of the laws of nineteen hundred forty-
five, is hereby amended to read as follows:
§ 76. Acquisition of property for special purposes and in trust.
A cemetery corporation may acquire, otherwise than by condemna-
tion, additional real or personal property, absolutely or in trust, in
perpetuity or otherwise; and use the same or the income therefrom
in pursuance of the terms on which the same is acquired, for the
following purposes, only:
1. The improvement or embellishment, but not the enlargement,
of its cemetery ;
2. The construction or preservation of a building, structure, fence
or walk therein;
3. The renewal, erection or preservation of a tomb, monument,
stone, fence, railing or other erection or structure on or around
any lot therein;
4. The planting or cultivation of trees, shrubs, flowers or plants
in or about a lot therein;
5. The construction and operation of a crematory and colum-
barium therein;
6. The perpetual care, keeping in order and embellishment of any
lot, plot or part thereof, or of the structures thereon as prescribed
in the instrument, or by his successor in right or interest in such lot,
by a new or further declaration of trust, in writing. i
Such trust moneys shall be invested within a reasonable time
after receipt thereof and kept invested in such securities as are
permitted for investment by savings banks or in a savings and loan
association or in a federal savings and loan association organized
under the home owner’s loan act of nineteen hundred thirty-three, as
amended, having its principal place of business in the state of New
York. The corporation may, for the purpose of investing and rein-
vesting such moneys, add the same to any similar trust fund or
funds and apportion shares or interests to each trust fund show-
ing upon its records at all times every such share or interest. A
majority of the directors and the treasurer of the corporation shall
annually, within sixty days after the close of each calendar or fiscal
year, make and sign, and shall file at the office of the corporation a
detailed accounting and report concerning such trust funds, and the
use made of such funds or of the income thereof for the preceding
ealendar or fiscal year, which shall include, among other things,
properly itemized, the securities in which the same is then invested
and any purchases, sales or other changes made therein during the
period covered by such report. Such accounting and report shall be
at all times available at the office of the corporation, during usual
business hours for inspection and copy by any lot owner or any
5
contributor to such trust fund. On or before the fifteenth day of
March in each calendar year every cemetery corporation shall file
with the cemetery board an accounting and report concerning such
trust funds.
§ 9. Section eighty of such law is hereby amended to read as
follows:
§ 80. Surveys and maps of cemetery. 1. Every cemetery cor-
poration, from time to time, as land in its cemetery may be required
for burial purposes, shall survey and subdivide such lands and make
and file in the office of the corporation a map thereof, open to public
inspection, delineating the lots or plots, avenues, paths, alleys and
walks and their respective designations; a true copy thereof shall
be filed with the cemetery board. Any unsold lots, plots or parts
thereof, in which there are no remains, by order of the directors,
‘may be resurveyed and altered in shape or size, and properly
designated on such map.
2. Every cemetery corporation shall provide reasonable access to
every lot, plot and grave. This provision shall not be applicable
where, at the time this section as hereby amended takes effect, such
access cannot be provided without the disinterment of a body or
bodies. A cemetery corporation shall not permit or allow a body to
be interred hereafter in a path, alley, avenue or walk shown on the
cemetery maps or actually in existence.
§ 10. Section eighty-one of such law, as last amended by chapter
one hundred twenty-nine of the laws of nineteen hundred forty-two,
is hereby repealed, and such law is hereby amended by inserting
therein, in place of such section, a new section, to be section eighty-
one, to read as follows:
§ 81. Sale or disposition of cemetery lands. No cemetery cor-
poration may sell or dispose of the fee of all or any part of its lands
dedicated to cemetery use, unless it shall prove to the satisfaction of
the supreme court in the district where any portion of the cemetery
lands is located, that all bodies have been removed from each and
every part of the cemetery, that all the lots in the entire cemetery
have been reconveyed to the corporation and are not used for burial
purposes, and that it has no debts and liabilities. Thereupon the
court may make an order authorizing it to sell or dispose of such
land.
§ 11. Section eighty-two of such law, as amended by chapter one
hundred sixty-six of the laws of nineteen hundred forty-five, is
hereby amended to read as follows:
§ 82. Rules, regulations and charges. 1. The directors of a
cemetery corporation shall make reasonable rules and regulations
for the use, care, management and protection of the property of
the corporation and of all lots, plots and parts thereof; for regulat-
ing the dividing marks between the lots, plots and parts thereof ; for
prohibiting or regulating the erection of structures upon such lots,
plots or parts thereof; for preventing unsightly monuments, effigies
and structures within the cemetery grounds, and for the removal
thereof; for regulating the introduction and care of plants, trees
and shrubs within such grounds; for the preventior of the burial
6
t entitled to burial
i lot, plot or part thereof, of a body no
iui ” tor Hiealcting or preventing prepare Be ae
? . . . r i
nduct of persons while within the cemetery & ;
Sais -aeedietes persons and preventing improper (ig api
therein; and shall fix and make ee epee saucer Mena
ices e corp
services ordered by the owner and rendered by Pia
i i luding perpetual, annual an
connection with the use, care, mciuda te en
i d protection of lots, plots and pi
ee Se geaeiiaiua oa the directors shall consider
thereof. In determining said charges A pele om :
i i pense 0
ropriety and the fair and reasonab e cost a f
Pidaerine the services or performing the work for which such
ade. Ses
Oris aiketond may prescribe penalties for ae pang a spd
i <ceedi ty-five dollars
h rule or regulation, not exceeding twen lars acl]
ialagion, which shall be recoverable by the corporation in a civil
OFS. Buek rules, regulations and charges shall not become ne
unless and until approved by the cemetery board as hereinatter
i d. * .
Br The directors of any pasieg! Se ere who ca a i
; i i orty-nine,
before August thirty-first, nineteen hunare aid
he name and address 0 ec
the office of the cemetery board t . ne;
i ith its rules, regulations and charges, and _
poration together with its” ; Ce cy Maem NNaae: eithin
statement showing the basis upon whi By ar tad Lekoe
i days after the time this section as hereby
sf aid The directors of any ya Seine fare iahel
i hundred forty-nine, t
after September first, nineteen Poy Ee aa iratGon
office of the cemetery board the name and a et
ith i reculations, and charges, and a state
together with its rules, regu P rges, a : re
i i ade, within ninety days
showing the basis on which they were made, oleh ole
i te of incorporation in the dep
the date of the filing of the certifica So aganniine the
: tate. Within six months after the date 0 %
Baer board shall make and file in its sn an phil papas
di ing or amending such rules, regwiations, and
Peale de i ae: Such rules, regulations and charges, if gt aati
with or without amendment, shall become Choe as atte ns
i tery board in :
the filing of such order by the ceme tiers
tors of the action taken by 1
cemetery board shall notify the directors :
its T d mail addressed to the corpora
and its reasons therefor by registered mal eae esas
i i rincipal office. In making its determin :
edit of ewes the cemetery board shall ie rohae the Hes pieonk
i d expense of rendering -
and the fair and reasonable cost and Beg
i i k for which such charges are made.
ices or performing the wor ( : ae sad deal
i on the rules and regulations, the ce
Dialer the interests of the members of -the corporation ee re
public interest in the proper maintenance and operation of buria
signe rules, regulations and charges of any cemetery ee:
existing on or before August thirty-first, peer bap ht es
i emain in effect until the cemetery Doar
office a ies pursuant to the provisions of subdivision three hereof.
Ne
A cemetery corporation organized on or after September first, nine-
teen hundred forty-nine, may enforce the rules, regulations, and
charges filed by it in the office of the cemetery board until the ceme-
tery board files in its office an order pursuant to the provisions of
subdivision three. hereof.
0. In the event that a cemetery corporation provides any services
not included in the list of charges, and for which a charge cannot
reasonably be fixed in advance, the charges made therefor shall be
reviewable by the cemetery board. In the event that the cemetery
board determines that an excessive, unauthorized or improper charge
has been made for such services or that the services have not been
properly performed, it may direct the cemetery corporation to pay
to the person from whom such charge was collected a sum equivalent
to three times the amount of the excess as determined by the ceme-
tery board, or in the case of work not properly performed, it may
direct the cemetery corporation to perform the work properly.
6. The rules, regulations and charges of a cemetery corporation
may be amended by the corporation by filing such proposed amend-
ments with the cemetery board and obtaining from it an order
approving or disapproving such amendments, in the same manner
applicable to the original filing of its rules, regulations and charges.
7. The rules, regulations and charges of a cemetery corporation
shall be re-filed on or before March fifteenth in each calendar year
together with any amendments or changes proposed therein.
Amendments or changes shall be clearly specified as such. The
cemetery board shall make an order approving, disapproving or
amending such rules, regulations and charges in the same manner
applicable to the original filing thereof. Until an order is filed by
the cemetery board, the rules, regulations and charges existing at
the close of the previous calendar year shall continue in force and
effect.
§ 12. Such law is hereby amended by inserting therein a new
section, to be section eighty-two-a, to read as follows:
§ 82-a. Posting of rules, regulations, charges and prices. The
rules, regulations, charges, and prices of lots, plots or parts thereof
shall be suitably printed and shall be conspicuously posted by the
corporation in each of its offices. For each day in which the cor-
poration fails to post the rules, regulations, charges and prices the
corporation shall be subject to a penalty of twenty-five dollars
which may be recovered in a civil action by the cemetery board.
The cemetery board may waive the payment of the penalty or any
part thereof.
§ 13. Section eighty-four of such law, as last amended by chap-
ter seven hundred fifty-one of the laws of nineteen hundred forty-
five, is hereby amended to read as follows:
§ 84. Title and rights of lot owners. 1. The directors must fix
and determine the prices of the burial lots, plots or parts thereof,
and keep a plainly printed copy of the schedules of such prices con-
spicuously posted in each of the offices of the corporation, open at
all reasonable times to inspection, and shall file a schedule of such
prices in the office of the cemetery board.
8
i & ration or by-laws otherwise pro-
a: eee bi peratcne Oe aataah the parpar ao” pee
ee a ee to any person the use of the lots, ze? lees
ey ee sated on the map filed in the office 0: ee ayy
este i of the prices so ies ane Be ace game
ty ne lot, plot or
paar ee pov alaapape ‘ots, cite tnd parts thereof Past
a Py ae president or vice-president and treasurer or
signe
Larges ie seen that shall sell a lot, re {gre
ie agi me of the price shown on the aghedne ‘i ney
are th } emetery board, and any person acting ae oe cach
Lyeigde et corporation in connection with such sa on i oaege
ot ae a a eiy of the state were Cea A ae yeaa
imes the excess amount so paid.
eat civil action by the cemetery giles Siti oe part
9’ The instrument of conveyance of any burl : Soa aes
ays shall include the actual amount paid thereior
4 nd the plot
tion showing the dimensions of the property conveyed, a
etery
ber, section and block number as they appear on the cem
number,
he
ee Whenever a lot, plot or part thereof shall be a puiee pie e
x t se ninistrator or representative of a siti ss "Seger
Fda oe for the burial of the ei rcey yna i a ye a Bate
un pone
j j he names 0
otherwise eel. run to t Ban ash deed Se ran to
aes t law of ; , deceased, the fe A :
Cet a as Or representa Pere Lara at ean ayia
t, plot or par ere ape
os ‘ibe forth the names and places of ewer
Saat. heirs-at-law and the corporatinn foe a ya pena
f the statements contained in eas:
aA een or parts thereof, the use of which has be
zg ?
ane gate : -
nveyed as a separate lot, shall be indivisible, except with t
co
art of the lot owner and the corpor
ation, or as in this ght
j i ll be inalienable, excep
i ial therein the same sha
Fe ide Upon the death of an owner of such lot, the
as 0 :
title thereto shall pass
to his heirs-at-law or devisees, subject, how-
ever, to the following limitations and ¢
onditions: (a) if he leaves a
widow and one or more children or either, th
ey shall have in ae
: ae ieee
the possession, care and control of such lot during their liv
mon ;
i i . (b) title to any lot shall not
rales life. of the survivor of Fame or other eg aa
ofa igi ts will unless specific reference 1s made punkgn 4 ei
‘eg (¢) the husband shall have the same rights sae eae or
i eae wife as the wife has in that of her husband.
7. The surviving spouse shall have the right of interment for his
her body in a lot or tomb in which the deceased spouse was an
or her
owner or co-owner at the time
his or her body remain permanently interred or entombed therein,
therefrom as provided in
except that such body may be removed
9
section eighty-nine. Such right may be enforced and protected by
his or her personal representatives. The remains of a spouse, par-
ent or child of a person who is an owner or co-owner thereof may be
interred in such lot or tomb without the consent of any person claim-
ing any interest therein, subject, however, to the following rules
and exceptions:
(a) The place of interment in such lot shall be subject to
the reasonable determination by a majority of the co-owners or in
the absence of such determination by the cemetery corporation or its
officer or agent having immediate charge of interments.
(b) Any husband or wife living separate from the other
and owning a lot in which the other, but for this section, would have
no right of burial, at least thirty days before the death of the other,
may file with the cemetery corporation a written objection to the
interment of the other, and thereupon there shall be no right of
interment under this section.
(c) A parent or child owning a lot in which the other
would have no right of burial but for this section, at least thirty
days before the death of the other, may file with the cemetery cor-
poration a written objection to the interment of the other, and
thereupon there shall be no right of interment under this section.
In such ease, if the parent or child so excluded from burial in such
lot, die without having any place of interment, then the person filing
such objection shall at once provide for the other a suitable place
of burial in a convenient cemetery. The cost of such place of
interment shall be chargeable to the decedent’s estate, if any.
(d) This section shall not permit a burial in any ground or
place contrary to or in violation of any precept, rule, regulation
or usage of any church or religious society, association or corpora-
tion restricting burial therein. This section shall not limit any
existing right of burial under other provisions of law, nor shall it
limit or curtail the right of alienation, under the rules of the ceme-
tery corporation wherein such lot is situated, by the owner of a lot
betore the death of the person for whose remains the right of burial
is provided herein, and there shall be no right of burial in any lot
sold by its owner, before the death of the person for whose remains
the right of burial is provided herein.
8. At any time when more than one person is entitled to the
possession, care or control of such lot, the persons so entitled thereto
shall file with the corporation a designation of a person who shall
represent the lot, and so long as they shall fail to designate, the
directors of the corporation may make such designation. An heir
may release to the other heirs, and a joint owner may release or
devise to the other joint owners, his right in the lot, on conditions
specified in the release or will, the original or certified copy of
which shall be filed in the office of the corporation. The widow at
any time may release her right in such lot, but no conveyance or
devise by any other person shall deprive her of such right.
9. At any time all the owners of a lot, including a surviving
spouse having a right of interment therein, may execute, acknow-
ledge and file with the corporation an instrument which may (a)
10
interred in
ho may thereafter be in
pa aan of their interment;
i lot
i i ent of certain named persons the
Ser is Ses ahall bé-cloned to further interments ; re
ieee title of the lot shall upon the death of any ~ og
ade ain ‘descend in perpetuity to his or pee bei co
= re Sei be any testamentary devise. Any — instrum
acc ed irrevocable unless otherwise provided. ee patie
ce. At time when more than one person 1s peegicno at
ae gs ee and control of such lot, any of rhea ~gnerea
seaieds eats may file with the corporation an a eat
Bc aataes and places of residence of all the person
or
tion shall
j uch lot, and the corporatio:
es tn ceby ors ge the statements contained in such
: he t , ble
be entitled to rely upon t titled to collect a reasona
: ation shall be enti filed
Seer ling and recording such affidavit and other ea pare
zi + rEnicfls of a lot owner shall not be affected by the dissolution
} li . f .
i feiture on i :
chises, by any act of for sateen
incumbrance thereon made 4
Eee section "eighty-five of such law’ is hereby repealed, an
: . in, in place of such
: ded by inserting therein, 1 Rew:
such law is hereby amen y : chty-five, to read as follows:
. i section eighty ’ : .
ae wij atone ae. 1. Except as otic ee oi
ine Suid the right to use any lot, plot or ee eS
ld , conveyed only by the cemetery bye te corporation to
N2, Tt shall be unlawiul ey ee fo sell a lot, plot or part
a emetery corporat :
purchase or for a ¢
Ss ? ? s
; ale to its members of lots, rship or
appl tothe sale 1 ey part cereal, by a memberbip.
nig os corporation or unincorporated association
religio
i ts for its members. |
i eens rales ain have been made in any such lot, plot or
: moved,
hereof, or, if all the bodies therein have been pee and
parse ab may sell or convey such lot, plot a p al pavovel
Sige ‘the prior approval of the ea rene Tot ielot or part thereof
J : the owner of su , Pi i
call a caret pie the cemetery corporation at the original
rs Appr
ease paid therefor, paeapaaiiar simp
centum per annum, anc ©".
beteced such offer deinen aaa a
‘4 the cemetery
ae ba ter? of transfer. An owner may conve
to the corporation his right an
rt thereof.
aps £ ot shall be unlawful for a cemeter
i re
to pay, or for any person, firm or eagaebe nes ar:
~ ndurectly, a commission or bonus or Yr
value for or in connec
j : ersons
designate the person or P
said lot or in a tomb in such lot
.
le interest at the ert ele
i ve
-emetery corporation sha a
Hi es after the making thereof. The
all file and record in its
y or devise
d title in and to any such lot, plot
oration to pay or offer
het ceive, directly
ther thing of
tion with the sale of a lot, plot or part thereof.
1l
The provisions of this subdivision shall not apply to a person regu-
larly employed and supervised by the cemetery corporation.
9d. A violation of this section shall constitute a misdemeanor and
shall be punishable by a fine of not more than five hundred dollars
or not more than six months imprisonment or both. Each violation
shall constitute a separate offense.
§ 15. Section eighty-six of such law is hereby amended to read
as follows:
§ 86. Lots held in inalienable form. 1. No portion of the ceme-
tery of a cemetery corporation which any person other than the cor-
poration is entitled to use for burial purposes, or in which bodies
have been buried and not removed, shall be sold, mortgaged or
leased by the corporation. A cemetery corporation may convey
any lot so that upon such conveyance, or after an interment therein,
such lot shall be forever inalienable, and upon the death of the
lot owner shall pass to such person or persons as may be designated
in the conveyance, or if no such designation be made, shall descend
as provided in section eighty-four. Any one or more of the owners
of such a lot may release or devise to any other owner of the lot
his interest therein on such conditions as shall be specified in the
release or will.
2. A cemetery corporation may take and hold any lot conveyed
or devised to it by the lot owner so that thereafter it will be inalien-
able, and the interments therein shall be restricted to such person
or class of persons as may be designated in the conveyance or devise.
3. The owner of any inalienable lot by an instrument in writing
or by will may change the designation in whole or in part so as to
restrict interments therein to another person or class of persons.
_§ 16. Such law is hereby amended by inserting therein a new
section, to be section eighty-six-a, to read as follows:
§ 86-a. Maintenance and preservation; permanent maintenance
fund; current maintenance fund. Subject to rules and regulations
of the cemetery board: 1. Every cemetery corporation shall main-
tain and preserve the cemetery, including all lots, plots and parts
thereof. For the sole purpose of such maintenance and preserva-
tion, every cemetery corporation shall establish and maintain (a)
a permanent maintenance fund; and (b) a current maintenance
fund. At the time of making sale of a lot, plot or part thereof, the
cemetery corporation shall deposit not less than ten per centum of
the gross proceeds of the sale into the permanent maintenance fund.
An additional fifteen per centum of the gross proceeds of the sale
shall be deposited in the current maintenance fund.
2. The permanent maintenance fund is hereby declared to be
and shall be held by the corporation as a trust fund, for the pur-
pose of maintaining and preserving the cemetery, including all
lots, plots and parts thereof. The principal of such fund shall be
invested and kept invested only in such securities as are permitted
for investment by savings banks or in a savings and loan associa-
tion or in a federal savings and loan association organized under
the home owner’s loan act of nineteen hundred thirty-three, as
amended, having its principal place of business in the state of
12
New York. ‘The income arising therefrom shall be used solely
j ds.
intenance and preservation of the cemetery groun
The Ey aoelt such fund shall remain inviolate, a Re aaa
application to the supreme court in a district yh a “i eae
emetery grounds is located, the court may ma . en is
: itting the principal or a part thereof to be used for p Sor:
of oe abe maintenance and preservation of the cemetery need a
ss Such application may be made by the el na
br ae to the corporation or by the corporation on notic
he est maintenance fund shall be used and ee ae
the sole purpose of ordinary and necessary ~ceglie aad
and maintenance of the cemetery. When all bur Bee er beta
emetery have been conveyed, the fund remaining 0 anber
the eredit of the current maintenance fund shall be trans
intenance fund. 5
ba Beads cottage of the proceeds of sales required to be eae
in the permanent maintenance fund or current nce am epee
b articular cemetery corporation may be increase mee
died b order of the supreme court in a district where ea ~ ae
of the secgevd is located. Such application may oe made OT
beowiery board on notice to the corporation or by the corp
i board.
a ES estan peed of such law, as amended a eae
two hundred seventy-six of the laws of nineteen hundre }
eight, is hereby amended to read as follows sat tons one
: Ba ey ane - aeons ae ‘iss thereof remaining
of sales se
ae Oe aes for the portion thereof required to be meanest
i th ermanent maintenance fund and current maintenance a _
sepentior with the expenses of sale ee ne see bowie ve sc
-price
corporation to the payment of the pure can Pp Saaitc nc ouee
_ The remainder of such proceeds be a
ee neuen to preserving, improving and hi aa be
: tery grounds and the avenues and roads leading pon rte
eae fies ne its expenses and discharging its liabilities. i m :
. ed of such purchase-price, and the expense of ae :
layin out the cemetery, all the proceeds of such “saad m a
ieeticd to the improvement, preservation and embellishme
an cemetery and to such expenses and liabilities. ee
2. Where a corporation has agreed with a person Sete
ia such lands were purchased to pay therefor a + ieee emir
4 edine one-half of the proceeds of sales of lots there1
ee iaithareot such corporation may continue to make payments a
5 3eek d rovided however that there be first deducted from sai
i soe of sales the amount required to be deposited in the per-
te et smnitntemnste fund and current maintenance fund as afore-
—. ether with the expenses of sale. The balance of such pro-
ide shall continue to be applied by a ee aret, end tid
ion, 1 nd embellishment of the ¢ ;
Be oan iauinice of the corporation. Where the corporation
13
has heretofore agreed to pay a specified share of the proceeds as
aforesaid in payment of the purchase-price of land, the prices of
lots or the use thereof in force when such purchase was made, shall
not be changed, while the purchase-price remains unpaid, without
the written consent of a majority in interest of the persons from
whom the lands were purchased or their legal representatives.
3. No cemetery corporation, in purchasing real property here-
after, shall pay or agree to pay more than the fair and reasonable
market value thereof. The terms of the purchase, including the
price to be paid and the method of payment, shall be subject, upon
notice to the cemetery board, to approval by the supreme court in
a district where any portion of the land is located. In determining
the fair and reasonable market value, the court may take into
consideration the method by which the purchase price is to be paid.
4. A corporation which has heretofore issued certificates of land
shares which entitle the owner to a specified share in the proceeds
of the sale of lots, may purchase such certificates with its surplus
or reserve funds and hold such certificates for the benefit of its
surplus or reserve funds, but such certificates may not thereafter
be sold or reissued.
5. On or before the fifteenth day of March in each calendar year,
every cemetery corporation shall file with the cemetery board an
accounting and report concerning the disposition of proceeds of
sales of lots, plots, or parts thereof, during the preceding calendar
or fiscal year.
§ 18. Such law is hereby amended by inserting therein a new
section, to be section eighty-eight, to read as follows:
§ 88. When burial not to be refused. No cemetery corporation
shall refuse or deny the right of burial and the privileges inci-
dental thereto in any lot, plot or part thereof to those otherwise
lawfully entitled to be buried therein, for any reason except for
the non-payment of the purchase price of the lot, plot or part
thereof, in accordance with the terms of the contract of purchase
or except as provided in section ninety of this article.
§ 19. Section ninety of such law is hereby amended to read
as follows:
§ 90. Taxation of lot owners by corporations. 1. If the funds
of a cemetery corporation, applicable to the improvement and care
of its cemetery, or applicable to the construction of a receiving
vault therein for the common use of lot owners, be insufficient for
such purposes, the directors of the corporation, not oftener than
once in any year and for such purposes only, may, upon the prior
approval of the cemetery board, which shall determine the neces-
sity and propriety thereof, levy a tax on some basis to be deter-
mined by the directors of such corporation, but no such tax shall
exceed two dollars on any one lot, except that with the written
consent of two-thirds of the lot owners or by the vote of a major-
ity of the lot owners present at an annual meeting, or at a special
meeting duly called for such purpose, such tax may be for an
amount which shall not exceed a total of five dollars per annum
per lot, and the tax on any one lot shall not exceed five dollars
14
: ; a
er annum but the taxes may be levied upon each as longa :
i for a sum sufficient for the improvement an he any
eas no greater sum than five gui a sure wah pique -..
whole tax levied may be collec
Epi maag ote we years in the manner ora Drea bi
9 Notice of such tax shall be served on a or ets toon
t or more persons are owners of the same lot, ee aereon
ith ersonally, or by leaving it at his residence, with | ay
oe age and discretion, or by mail, if he resides ae we
oa pane xe where the office of the corporation is not pe a,
ayaa the residence or whereabouts of the owner can ae e
as: nek by publication once a week for four successive “ a
spas er a hiiehed in the town where such cemetery 1s ii
2 “ a Ho, aper is published in such town then in cea
ae bli oa in the county where such cemetery 18 1oca a
pe. IE ap tax remain unpaid for more than thirty gh nad
oo ice of such notice, the president and secretary 0 ae
=H issue a warrant to the treasurer of the corp er
so ea to collect such tax in . a me seat
? se ; *y",° -
Lng em Speier ase a to the same liabilities =
sa a ; a. warrant as a collector of school Lect peat or =
Lue put law in executing a warrant for the collection
s
Oras tee so levied remain unpaid for five bi viet —
1 ‘ing of such tax the amount thereof with interest a ldo
auch ed portion of the lot which is subject to suc “eer
' or “of the lot so taxed shall be used by the ne
for burial purposes, while any euch ts remains MPA,
xpiration 0 :
eae eae assessment as herein provided, nied cacao
aay the interest thereon shall remain unpaid, the corp ~
aye el the peat portion ot such lot at public auction yr,
gitbogs rounds, in the following manner: If the alt ry) vag ag
ae at wate within the state, . written ares urrhsact en sor i
ation, if it have a seal,
ae oe eee thereof, stating the amount of art gee
gaa aid and that such unused portion of such lot wi S segee
a Wee teeth to be specified, not less than twenty days a .eP
Or ot the service of such notice, ae ewer Meg - pou
i is not a residen L
ae Me his Sl aa cane with due diligence be pig dbanr iis os if
pay otnae reason satisfactory to the court, Nat sia
= Ait with due diligence be made upon such owner, suc ey ay
eer tion, or any of its officers, may present a duly verifie Ly -
Ce statin > the facts to the county court of the county in habe
my oe see lands are situated, or to the pana erates i
Ore min ates satisfactory proof, by its order, direct the i 33
plo in the manner provided ir A pelt ihateiabcoines ‘a
i ice of a summons. e pr
eb gekanaaahee x any suitable and proper person appointed
15
by it or by the court, upon filing proof of publication and service
of such notice as provided by section sixty-one of the surrogate’s
court act may make such sale, and such sale may be adjourned from
time to time for the accommodation of the parties or for other
proper reasons. Previous notice of such sale shall be posted at the
main entrance of the cemetery. Prior to such sale such corporation
shall cause such lot to be resurveyed and replatted showing the
part thereof not used for burial purposes and only such unused
portion shall be sold. The cemetery corporation may at any such
sale purchase any such lots or parts of lots. The surplus remaining
after paying all assessments, interest, cost and charges shall be set
aside by the corporation, as a fund for the care and improvement of
the portion of such lot that has been used for burial purposes. In
case the proceeds of such sale shall amount to more than thirty
dollars the person making it shall make his report, under oath, to
the court, of the proceedings and shal) state the amount for which
such lot was sold and that it was sold to the highest responsible
bidder, together with the names of the purchasers, and the court
may and in a proper case shall, by order, confirm the sale; in all
other cases the person making such sale shall file in the office of the
county clerk of the county in which the cemetery lands are situated
a like report duly verified ; on the filing of such order of confirmation
or such report, as the case may be, the ownership of the unoccupied
portion of such lot shall vest in the purchaser thereof.
6. The directors of any such corporation may make a contract
ith a lot owner which shall provide for the payment by him of an
agreed gross sum in lieu of further taxes and assessments and that
upon the payment of such gross sum the lot of such owner shall
be thereafter exempt from taxes and assessments.
§ 20. Sections ninety-one and ninety-two of such law, section
ninety-one having been amended by chapter one hundred sixty-five
of the laws of nineteen hundred forty-five, and section ninety-two
having been amended by chapter one hundred sixty-four of the
laws of nineteen hundred forty-five, are hereby amended to read,
respectively, as follows:
§ 91. Perpetual care of lots. Upon the a
tive purchaser of any lot, plot or
of the purchase price and the am
for the perpetual care of any
tery corporation shall include
ment perpetually to care for
pplication of a prospec-
part thereof and upon payment
ount fixed as a reasonable charge
lot, plot or part thereof, every ceme-
in the deed of conveyance an agree-
such lot, plot, or part thereof. to the
extent that the income derived by the corporation from such amount
will permit. Such corporation also, upon the application of an
owner of any lot and upon the payment of the amount fixed as a
reasonable charge for the perpetual care of such lot, shall enter
into a like agreement with him. Such agreement shall be executed
and may be recorded in the same manner as a deed. Any corporation
organized under or subject to the provisions of this article which
maintains and has set up a perpetual care fund for the perpetual
care of lots in its cemetery may enter into an agreement in writ-
ing with any executor or executors, trustee or trustees, under a
16
last will and testament to whom there has heretofore been, or may
hereafter be, bequeathed a sum for the perpetual care of any lot,
plot or part thereof in any such cemetery or with any administrator
or administrators with the will annexed under any such will per-
petually to care for such lot, plot or part thereof under the pro-
visions of the terms of such last will and testament, and subject
in all cases to the approval of the surrogate’s court having juris-
diction over such trust estate. Such approval may be evidenced by
the written endorsement of the surrogate on a duplicate original
of such agreement filed in the surrogate ’s court. In case the sur-
rogate shall approve such agreement any such executor, trustee or
administrator with the will annexed thereupon shall pay over to the
treasurer of such perpetual care fund of such cemetery corporation
any moneys remaining or being in his hands belonging to such trust,
and upon making such payment and accounting therefor. to the
surrogate’s court may be discharged from said trust as such
executor, trustee or administrator with the will annexed.
§ 92. Perpetual care fund. Every cemetery corporation and
ion having charge and control of a ceme-
every religious corporati
tery, which heretofore has been or which hereafter may be used
for burials shall keep separate and apart from its other funds, all
moneys and property received by it, whether by contract, in trust
or otherwise, for the perpetual care and maintenance of any lot,
plot or part thereof in its cemetery. Any moneys and property so
received shall be kept in a separate fund to be known as the per-
petual care fund. Such perpetual care fund is hereby declared
- to be and shall be held by the corporation as a trust fund. The
moneys in such fund shall be invested within a reasonable time after
receipt thereof, and kept invested in such securities as are permitted
for investment by savings banks or in a savings and loan associa-
tion or in a federal savings and loan association organized under
the home owners’ loan act of nineteen hundred thirty-three, as
amended, having its principal place of business in the state of
New York, and the income arising therefrom shall be used solely
for the perpetual care and maintenance of the lot or lots or parts
thereof for which such income has been provided. The officers of
the corporation shall keep accurate accounts of such funds separate
and apart from its other funds.
§ 21. Existing section ninety-two-a of such law, as added by
chapter six hundred eighty of the laws of nineteen hundred thirty-
-b, and such law is
one, is hereby renumbered section ninety-two
hereby amended by inserting therein a new section, to be section
ninety-two-a, to read as follows:
§ 92-a. Perpetual care fund; allocation of income and cost of
care and maintenance, accounting and report. 1. On or before the
fifteenth day of March in each calendar year the officers of every
cemetery corporation shall fix and determine that portion of the
income on the investment of the principal of the perpetual care fund
during the calendar or fiscal year immediately preceding, to be
apportioned to each separate lot or part thereof for which a per-
2 AA Sa a OE) Sim ati ae i cal Maat REE —" ; 3
Bsns On eRede ELE Wate Mat EA 2s 2 aN ve Z. he
17
poop ean oo has ip ape The cost during such pre
pacity year of the care of each lot
e allocated and charged against the income so pele es
to such lot or part the °
reof sh
on se of care thereof ould, in any such future year, fall
. On or before the fifteenth d
én L ay of March i
a - voarhi ae corporation shall file with Bode ee
pags Beinn aa report concerning the perpetual care fu ppt
and report shall ae or fiscal year. A copy of such accounting
poration, during rte a nes rata ges at the office of pr tapi
? usiness i : :
any lot owner or his representati tr for inspection and copy by
§ 22. Section ninety-gev ;
as follows: ety-seven of such law is hereby amended to read
§ 97. Certificates of ind
ebtedness. 1. If i
be indebted for lands purchased for eas aerate ant eu
) y or
. e
ofs i Ww y
uch certificates, the persons to whom issued the date of maturit
’ ’
r
year, each cemetery cor i
a poration shall file wi
» : with
ite pea! statement setting forth all changes = igi board
previous calendar or fiscal] year ea reas a
18
h sums to pay such certificates at
Until the certificates are paid
d at all meetings of the corpora-
dred dollars of the indebtedness
ot be a lien upon any
lots, plots and parts thereof suc
maturity as they deem necessary.
the holders thereof shall be entitle
tion, to one vote for each one hun
remaining unpaid. The certificates shall n
lot, plot or part thereof belonging to 4 lot owner. | i
§ 23. Such law is hereby amended by inserting in article nine
thereof four new sections to be sections one hundred six, one hun-
dred seven, one hundred eight and one hundred eight-a, to read,
respectively, as follows: aes
§ 106. Judicial review. Any order or determination of the
cemetery board made pursuant to any section of this article shall
be subject to review by the supreme court in the manner provided
by article seventy-eight of the civil practice act; provided, however,
that an application for review of such order must be made within
thirty days from the date of the filing of such order, and provided
further that no stay shall be granted pending the determination
of the matter except on notice to the cemetery board and for a
period not exceeding thirty days. Proceedings to review such
order shall be entitled to a preference.
§ 107. Reports; payments ; penalties. 1. To defray the expenses
of examination and administration, each cemetery corporation shall,
at the time of filing its accounting and report as to its permanent
maintenance fund, but not later than March fifteenth in each
calendar year, pay to the cemetery board the sum of three dollars
for each acre or fraction thereof of tax exempt property owned by
the cemetery corporation or at the rate of one dollar per interment
for the preceding calendar year, whichever is less, but in no event
shall the sum paid exceed one thousand dollars.
2. Any cemetery corporation or individual failing to file any
report or any schedule of rules, regulations and charges required
by this article shall forfeit to the people of the state the sum of one
hundred dollars for each day that each such report shall be delayed
or withheld, except that the cemetery board may extend the time
for filing any such report and may waive payment of any penalty
or part thereof provided herein.
3 The cemetery board may address to any cemetery corpora-
tion or its officers or any person any inquiry in relation to the
transactions or conditions of the cemetery corporation or any
matter connected therewith, and may require that a reply be
verified. Failure to submit such reply within the time designated
by the cemetery board shall subject the corporation, officer or per-
son so addressed to the penalties provided in subdivision two hereof.
4. Wherever under the provisions of this article a person violat-
ing any part thereof is deemed to be guilty of a misdemeanor and
no specific penalty is provided, the penalty for each separate viola-
tion shall be imprisonment for not more than six months or a fine
of not more than five hundred dollars, or both
§ 108. Powers and duties of the cemetery board. With respect
to any cemetery or cemetery corporation, t
have the following duties and powers:
he cemetery board shall
ape
19
1. To ado
board shall
article.
or regulation adopted b
Sao ‘ ’ the cem ,
doing any act in iglgtian Sarat shihig ah psiahth 0 sdingusin: gz
€ rl =
| 3. To enforce its orders b
proceeding or otherwise.
oes i maintain a civil action in th
o o recover a judgment for
e provisions of this article
S 108- i :
8 a. Actions affect
. in .
or proceeding affectin § cemetery corporations. In any acti
ripe aiptate a g or instituted by any cemetery corp action
EA. ipa mice be served with notice thereof in eae
action or prodesllaumnaer party and shall take such steps Sey
attend f may deem necessary to protect the public
§ 24 TI) ; :
<4. Lhe penal law is her
: eby amended i ;
new sectior : : ed by insert
yen “baa . w be sections four hundred Pacha ioc) saat
§ 449. ¢ a nite respectively, as follows: pam gc ii
. Ceme ; :
Peg Keb Ansan deal pena true location. Any cemetery corpor:
paper, magazi agent thereof that shall advertise in ; a
tbr Se is el or other publication or in the form of : ras
station, or in a letter, poster, card, or over uae ote
Rb ee aa eh sie way for the purpose of selling Toki claw
locaton oftahe yeas shall in such advertisement stad the
village, and the pice i tibiee Aes Penn aE oe town or
hid ; y and state. <A violati ee soll
of this sect 5 ‘ . aa violation of the risions
able by a ii ui Nite ed a misdemeanor and shall boop haat
than six months i ot more than five hundred dollars or aries.
$ 5G; Mametharnd tee ae ema
Tt shall be wnlentah ee ee in connection with burial permits
representative ther ries a society or fraternal organization
obtnen aes a : eo to obtain, receive, or exact or atte or’a
regular dues or Aris 5 fee or thing of value in sdditvors ee
Pe ct ha esa gab da to be paid pursuant to the by-lay =
a condition to seta of such society or fraternal organizatior
tion of this ey ie 1 permit for or consent to burial ‘A me i:
punaheie fea ri ari Pian a misdemeanor and shall he
: more than five }
Aaa : e hun iach
img oes months imprisonment or both ode
ne skapiee He ee sixty-three-a of the penal law, as added
husdecd ee un lred ninety-seven of the laws of toons
§ 663-a. Fo y-seven, is hereby amended to read as follo mee
ae a a me corporations doing business in this stat with
shall do business ius StS abate ttre cena however designated, which
: ete e by earryin - Fhe
educati : y ying on therein
sk pics institution, or hospital, or lying-in seth ( kind of
for aceaee a or for invalids, or for juvenile deltioud ry
wr ~ m4 ° . .
igent persons, or institution for the care of child
en,
tsu :
paige te nesemmnle rules and regulations as the cemetery
ssary for the proper administration of this
, m © 7 ~ . . My ; >
y mandamus or injunction in a summary
, e name of the people of the
a money penalty imposed under
a
2U
or for the care and treatment of the insane or mentally defective,
or which shall do business in this state in the selling or offering for
sale of cemetery tots, plots or parts thereof, whether located within
or without this state, without a certificate of authority from the
secretary of state issued in conformity with the requirements of
the general corporation law, and any director, trustee, officer,
manager, or superintendent of such corporation engaged in doing
its business in this state, is guilty of misdemeanor.
§ 26. The state departments law is hereby amended by inserting
therein a new section, to be section one hundred ninety-eight, to
read as follows:
§ 198. The division of cemeteries. There is hereby created in the
department of state a division of cemeteries, in addition to the other
divisions in such department provided by law. The head of such
division shall be the cemetery board provided for in article nine
of the membership corporations law.
§ 27. The stock corporation law is hereby amended by inserting
in article two thereof a new section, to be section nine-a, to read
as follows:
§ 9-a. Cemetery corporations. No corporation shall be organized
under the provisions of this article for the purpose of owning,
operating or managing a cemetery, or for the purpose of selling or
conveying lots, plots, or parts thereof in any cemetery.
§ 28. If any word, phrase, clause, sentence, paragraph, section
or part of this act shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder or any other part or portion of this
act, but shall be confined in its operation to such portion, section,
sections, or parts hereof directly involved in the controversy in
which such judgment shall have been rendered.
§ 29. The sum of fifty thousand dollars ($50,000), or so much
thereof as may be necessary, is hereby appropriated to the division
of cemeteries in the department of state from any moneys in the
state treasury in the general fund to the credit of the state purposes
fund, and not otherwise appropriated, for the expenses of such
division in earrying out the provisions of article nine of the mem-
bership corporations law, as amended by this act, including personal
service, operation and maintenance and travel expenses, during
the fiscal year ending March thirty-first, nineteen hundred fifty,
payable on the audit and warrant of the comptroller in the manner
provided by law.
§ 30. This act shall take effect September first, nineteen hundred
forty-nine.
STATE OF NEW YORK, }
> S88.
Depa tment of State. |
| have compared the preceding with the original law on file in this office, and
do hereby certify that the same is a correct cranscript therefrom and of the
whole of said original law.
THOMAS J. CURRAN
i
Legislative Document (1949) No. 7
STATE OF NEW YORK
REPORT
OF THE
ATTORNEY GENERAL
ON
THE SUBJECT OF CEMETERIES
1949
We.
€
2
i ig
re
3 ; Me
ie
ee.
S ees
5c:
ALBANY
; WILLIAMS PRESS, INC.
: 1949
Legislative Document (1949)
STATE OF NEW YORK
REPORT
OF THE
ATTORNEY GENERAL
ON
THE SUBJECT OF CEMETERIES
1949
ALBANY
WILLIAMS PRESS, INC.
1949
STATE OF NEW YORK
EXECUTIVE CHAMBER
ALBANY, February 14, 1949
To the Legislature:
! have the honor to submit to you today the report of the Attorney
General upon an intensive investigation he has conducted into the
operation of cemeteries organized under the Membership Cor-
porations Law of our State. The report reveals shocking abuses on
a widespread scale and of the most serious nature.
Because of the extreme mental anguish suffered by the bereaved
at the time of their contact with cemeteries, these abuses have
continued unchecked, unnoted and uncorrected for many decades.
The Attorney General has rendered a great service to the people
of our State in the uncovering of these conditions. The uncovering
of the conditions, however, is but the preliminary to the sorely
needed remedy of correction. That remedy is provided in the recom-
mendations he makes for the better regulation and supervision of
cemetery corporations. Excluded from the scope of such supervision
are cemeteries operated by religious organizations since such ceme-
teries have not been diverted to the extortionate and exorbitant gain
of private individuals.
It is clear from the report that for over one hundred years the
operation of cemeteries has been recognized as affecting the public
interest and of having the status before the law and before the
courts of quasi-public utilities. The policy of the State in con-
trolling their operation has never been questioned. The machinery
for such regulation and supervision has been, as proven, hopelessly
inadequate. The existing statutes have not prevented the public
from being cheated, exploited and subjected to indignities in a
concern which is perhaps the most pitiful of any suffered by man.
To permit these conditions to continue would be intolerable. I am
sure that the Legislature will feel as strongly as I do that such
conditions should not be permitted to continue.
I earnestly submit for your careful consideration the enactment
of legislation implementing the recommendations of the Attorney
General. Those recommendations are based upon a year’s investiga-
tion and study. In the light of the exposures contained in them, I
urge favorable action upon the legislation submitted to cure the
abuses described.
THOMAS E. DEWEY
REPORT ON THE INVESTIGATION
INTO THE OPERATION OF CEMETERIES
February 11, 1949
The Hon. Tuomas E. Dewey, Governor of the State of New York,
the Capitol, Albany, N. Y.:
DEAR GOVERNOR Dewey:
Since March of 1948, I have been investigating cemeteries oper-
ated by so-called non- -_profit cemetery corporations or associations
which were organized under our present Membership Corporations
Law and its precedent statutes.
Within this category are appepmimated y 7O per cent of all the
cemeteries of the State: large and small, urban and rural. To them,
in times of great emotional stress or in sombre anticipation of loss,
a major part of our population must apply for space for the burial
of their dead and for the subsequent care of the graves.
The nature and operation of so many cemeteries upon which so
great a number of people are dependent must be matters of high
concern to the State. Public health, welfare, customs and sentiments
are involved.
During the 1948 session of the Assembly, a resolution was. intro-
duced by Assemblyman Nathan Lashin calling for creation of a
joint legislative committee to probe the conduct of cemeteries. He
re- introduced his resolution at the inception of the current session,
while Assemblyman Malcolm Wilson offered a similar probe resolu-
tion with the stipulation that a legislative committee report on the
matter by March 1950.
My inquiry has been directed not only into the possible violation
of existing statutes affecting these- cemetery corporations but also
into the nature of their actual control, their practices and methods
of performing their service, their day-to- -day dealings with the
public, their rates and charges and the use and disposition of funds
which the public pays for burial rights and the care of graves.
The law intends these cemetery corporations to be operated with-
out profit and for the mutual benefit of those persons who purchase
burial space. In most instances, the purchaser is entitled, theoreti-
cally, to vote for the management trustees.
The people of the State, in recognition of the public aspects, have
granted to cemetery corporations certain definite and valuable
benefits, including exemption from taxation, and have reposed a
serious trust upon those individuals who establish and» maintain
cemeteries.
Inasmuch as the service they are supposed to render is an essen-
tial one, the cemetery corporations may well be regarded, in the
exact sense, as public utilities. Public need and public dependence
upon their service is certainly comparable to the need of and depend-
ence upon such public utilities as gas, electricity, transportation or
communication. From the point of view of lawmaker, law enforcer
5
6
and layman, the cemetery corporations are dedicated to, and hold-
ing their property for, a public use.
There is, however, a shocking disparity between theory and
actuality.
The investigation by members of my staff under my direction
has disclosed that, far from being operated on a non-profit basis
in the interest of the public, a large number—probably larger than
is known—have been and continue to be run as lucrative commercial
ventures. :
Indeed, they have been cynically developed into devices for prot-
iteering on the widest possible scale. Evidence is at hand that opera-
tors drain millions of dollars annually from the cemetery
corporations.
Nor is this all. In pursuit of enrichment, unscrupulous operators
take every means to exploit the needs and grief of the public.
Practices are employed or countenanced which work frauds and
indignities upon people and have given numerous occasions for
valid complaint.
There is a shameful neglect of grounds; rates and charges are
geared for extravagant profit without relation to cost; trust moneys
are diverted; unconscionable ‘commissions are paid to boost sales ;
middle-men are given free rein to mark-up prices; tie-in schemes
link cemetery and monument dealer; controls are perpetuated and
handed down in families from generation to generation like heir-
looms; bulk sales of plots are made to favored individuals for re-sale
at pressure prices; plot owners are subjected to arrogant treatment
by officers and trustees; supervision of care is peddled on a con-
cession basis to the highest bidder; and, inevitably, certificates of
indebtedness, which are in effect mortgages on cemeteries, are sold
and traded by speculators. : ;
The story, which is amplified in the pages following, is certain
to have a grim ending unless these abuses of a public trust are
halted. It must be apparent from the type of operation now on the
increase that, in the foreseeable future, when the corporations have
been drained of their last easy dollar, the operators will abandon
cemeteries and thrust them back upon municipalities to become
public charges.
I have instituted a number of court proceedings aimed at situa-
tions in which I believe the owners and operators of cemeteries
have gone beyond the fences of the present laws relating to ceme-
teries. Other proceedings are in preparation.
However, it is my conviction that much of the sorry condition
in cemeteries can be attributed to the very weakness of the laws.
Having undergone substantially little change in almost one hundred
years, they are outmoded and ineffectual in the light of current
problems.
A trend toward profiteering with reckless disregard of public
interest became apparent some forty or so years ago. This trend
intensified in the decades following the first world war and is now
in full tide.
/
In the past four months I have had conferences and interviews
with a considerable number of individuals now engaged in cemetery
operation and with representatives of various cemetery associa-
tions. Although there is a divergence of views among them, most
are agreed that some legislative correction of the cemetery law is
inevitable and some mode of supervision is necessary.
It is my final conclusion that only a revision of the present law,
principally with an objective of providing regulation and supervision
in the public interest, can remedy the general situation.
To accomplish this, I have drafted a bill. The key elements are
described at the end of this report. The text is being submitted
simultaneously.
The public aspects of this problem will be of great interest to
you, and it is my hope that you will adopt this legislation as part
of your program and recommend it to the Senate and Assembly
for passage at this session.
NOT ALL CEMETERIES
It should be noted that my investigation, and my concern, are
limited to those cemetery corporations as defined in the Membership
Corporations Law, sections 70, 71.
Excluded are cemeteries belonging to or operated by religious
corporations, Protestant, Catholic, Jewish or other faiths, since it
is patent that moneys paid by the public to these are never diverted
to private gain.
Also excluded are cemeteries belonging to or operated by munic-
ipal corporations, and burial grounds which may be described as
operated for family or individual use.
I do not wish to give the impression that all cemetery corpora-
tions of the type under investigation are engaged in the practices
covered by this report. As a matter of study, simultaneously with
the investigation of specific complaints and cases, my office cir-
culated a questionnaire to some 1,400 cemeteries throughout the
Stabe:
The answers to some of these, together with the findings based
thereon, indicated, by and large, that most rural cemeteries and
some large urban cemeteries are maintained along fair to good lines,
although certain aspects of the majority could be improved.
It is self-evident that those cemeteries which are operating in the
public interest have nothing to fear from the remedial proposals.
They, and the people of the State, would bevhelped by a sound, fair
and effective law.
LAW AND INTENT
Cemeteries obtain charters as non-profit membership corporations
under the Membership Corporations Law. As far back as the initial
statute covering burial associations, chapter 133 of the Laws of 1847,
such corporations were permitted to be organized on a non-profit
basis, and only on such basis, to be operated exclusively for the
burial of the dead.
8
Irrespective of the statute, cemetery corporations have always
been viewed as non-profit associations and have been described by
the Supreme Court of the United States as being not “a mere land
company, for the exclusive benefit of the original associates and
their successors holding shares in the stock of the corporation,” but
rather, associations so formed “that the ultimate and principal object
was to establish and permanently maintain a cemetery for the burial
of the dead, which, if not strictly a charitable use, is in some aspects
a pious and public use.” ? :
Our tax law grants to cemetery corporations an exemption from
real estate taxes of lands occupied and used for cemetery purposes.”
They are also exempt from State franchise taxes and generally
exempt from Federal income tax.® It is to be noted that the tax
exemption applies to the lands held by a cemetery corporation for
burial purposes regardless of whether interments have actually
taken place and even if future legislation has forbidden further
interments.*
These cemetery corporations are given the right to acquire lands
for cemetery purposes through the exercise of the power of eminent
domain or condemnation (Membership Corporations Law, Sec. 75).
The granting of this power necessarily connotes a public use. _
These cemetery corporations may either acquire lands exclusively
for cemetery purposes or within the limitations set forth in section
76 of the Membership Corporations Law, are permitted to acquire
lands for purposes incidental to the cemetery use. In so far as the
land acquired for burial use is concerned, it is clear from the cases
that such lands, although under private ownership, are held as
dedicated to public use.®
In People ex rel, Oak Hill Cemetery Association v. Pratt, 129
N. Y. 68, 74, our Court of Appeals said:
‘ok #& & Tt is thus:seen * * * that the land of the relator is
held exclusively for cemetery purposes, and that it cannot be
devoted to or used for any other purpose. It has no power to
sell any of its land except to persons who desire it for burial
purposes, and all of its land, the moment it acquires it and
before a dead body is buried therein, is absolutely exempt from
all taxation.”’
Under section 450 of the Real Property Law, further privileges
are granted to cemetery corporations with regard to exemption from
taxes and assessments and levy of executions under judgments.
It is clear, I repeat, that they are intended to be non-profit mem-
1Qlose v. Glenwood Cemetery, 107 U. S. 466, 474 (1882). See also Commissioner
of Internal Revenue v. Kensico Cemetery, 96 Fed. 2d, 594. ;
2Tax Law, Sec. 4 (6). ees
3 Commissioner of Internal Revenue vy. Kensico, (supra).
. 4People ex rel. Buffalo Park Association v. Stilwell, 190 N. Y. 284; People ex rel.
Oak Hill Cemetery Association v. Pratt, 129 N. Y. 68.
5 Whittemore v. Woodlawn Cemetery, 71 App. Div. 257; Matter of Lyons Ceme-
itd 3 gaiaiee 93° App. Div. 19; cf. People v. N. Y. C. and H. R. BR. R. Co., 28
un 5438. :
9
bership associations with certain privileges and immunities granted
by the State, and devoted to and holding their property for a public
use.
These cemetery corporations can be described as public utilities
and have even been termed quasi-public corporations.®
The present provisions of the Membership Corporations Law
dealing with cemetery corporations (Article 1X), attempt to preserve
this non-profit and public use concept. The present statute is, gen-
erally speaking, a revised and amended copy of chapter 133 of the
Laws of 1847. During the course of the intervening one hundred
years, additions and changes have been made in the law in a rather
haphazard and loose manner which tend to confuse rather than
clarify.
The effect of this type of growth in our attempted control of the
activities of cemetery corporations has been to bring about a statute
which sets forth, in a general way, the methods in which cemetery
corporations should operate but has failed to provide measures for
the enforcement of proper practices and, of even greater importance
is the fact that no provision is made for the supervision of the
activities of these supposed non-profit corporations.
THE LOOPHOLES
To clearly understand the present statutory provisions regarding
the care and maintenance of cemetery grounds, it is necessary to
understand the makeup of a cemetery corporation.
When the membership corporation is formed, it must necessarily
acquire land. Usually, we find that the organizers of the corpora-
tion—the promoters—own land which they then convey to the
corporation, at prices far above its cost or fair market value. The
corporation does not pay any cash for the land. It makes payment
in one of two ways. The corporation and the vendors may agree
upon the value of the land. This value, it is to be noted, is not
restricted by our statute and may and does in practice, as my inves-
tigation reveals, exceed the actual value or cost many times over,?
The corporation then issues certificates totaling this purchase price.
The alternative method is for the corporation and the vendors to
wholly omit the fixing of any purchase price and for the corporation
to issue to the vendors land shares under which the corporation
agrees to pay to the shareholders a specified percentage of the profits
of the sale of burial plots. This fixation is made irrespective of the
cost or fair market value of the land so conveyed. The payments
continue until the last plot is sold.
If these methods of payment be not limited by statute, the
proceeds of the sale of plots may be distributed wholly to the
promoters with nothing retained or used for the care and preserva-
® Rosehill Cemetery Company vy. Hopkinson, 29 N. EB. (Illinois) 685; Faulk v.
Buena Vista Burial Park Association, 152 8. W. 2d (Texas) 891.
an, age i Disner Burial Association vy. Springfield, L. I., Cemetery Society, 171
ise. 3
10
tion of the cemetery. My investigation discloses this practice to be
patent. Our present statute sets forth a theory of practice under
which a part of the proceeds of these sales is to be used for the
care and maintenance of the cemetery. Unfortunately, however, the
statute as drawn, actually leaves it in the discretion of the directors
of the corporation to expend the moneys as they see fit. Section 87
of the Membership Corporations Law simply makes it incumbent
upon the directors to pay to the certificate holders at least 50 per
cent of the proceeds of sale of plots and a sum not exceeding 50
per cent to the shareholders. The “balance” of the proceeds, if any,
is to be used for the care, preservation and embellishment of the
cemetery.
There is nothing in the statute which prevents the directors from
paying out the entire proceeds to the certificate and land share-
holders, and this practice is being followed in many cases. The
late Chief Judge Crane, when sitting at Special Term, said, as far
back as 1916, that it is a bad policy to take all the income and apply
it to the purchase price and that failure to leave a proper amount
for care and maintenance is contrary to the spirit of the law, but
that there is nothing in the statute which makes illegal such action
on the part of the directors. (Matter of Norton, 97 Misc. 289.)
As Judge Crane clearly points out, the statute contains a wholly
meritorious spirit and intention but fails to make practices contrary
to this spirit and intention a violation of law for which the corpora-
tion and the directors may be held liable. This, I find to be true
in almost all other important particulars of the statute. No super-
vision is provided for and no specific punishment or remedy is set
out.
Section 82 of the Membership Corporations Law, provides for
rules and regulations which may be made by the directors of the
corporation. Included in this section is a provision that the directors
may make “reasonable” charges in connection with the care and
management of plots. There is nothing in the statute which defines
what the word “reasonable” means; there is nothing in the law
which gives anybody the right to supervise or to examine into the
charges; there is nothing in the law which prevents the directors
from so fixing these charges as to make them “reasonable” only in
the sense that they permit tremendous payment or profit to operators
of the cemetery, and to the promoters. These are common practices.
Section 91 of the Membership Corporations Law, similarly allows
the corporation to “adopt a reasonable and uniform scale of prices
to be charged for the perpetual care of all lots in its cemetery.” All
of the criticism in connection with section 82 applies here.
The abuses under these sections are flagrant and widespread.
The same section 91 makes provision for the payment to the
corporation of a “reasonable” amount for any perpetual care of a
lot. The investigation indicated that these trust funds so entrusted
to the corporation are frequently commingled with other funds and
used for profit rather than the care and maintenance of the graves.
This violates section 76 of the Membership Corporations Law.
11
ACTUALITY
The following sampling of facts and incidents may provide a
sharper illumination of present day cemetery conditions. :
They are taken from records of examinations, letters from the
public, spot investigations and court cases now in progress. In no
sense are they unique. Rather, they suggest the typical.
* *K K
Concession: W— Cemetery, the history of which is a
story in itself of financial marauding and looting, no longer hires a
superintendent. The present trustees, burdened with the problem
of maintaining a large cemetery after its funds had been dissipated
by others, now “sells” the job. The present superintendent pays
$6,000 a year for the post. :
A superintendent, of course, is the official responsible for the
appearance of a cemetery and usually arranges to care for the
graves. - PoCe :
The superintendent of W-—————_ Cemetery 1s given the “care
concession” for his $6,000 annual “rent”. Plot owners must apply
to him and pay his prices. ee
Available figures show that the superintendent of W- :
clears on the concession $40,000 to $50,000 a year above his “rent
and costs.
Similar concessions are in operation at M———\ and B—
cemeteries. Their operation emphasizes the difference between cost
and charge in the “non-profit” cemetery.
K 2K K
Stillborn: The 5 — Cemetery Association makes a flat all-
inclusive charge of $30 to bury the bodies of still-born infants.
It stipulates, however, that the interments will be in “unmarked
graves.”
In actual practice, these interments are in what the cemetery
officials describe as “the space between” two standard occupied
graves. Since grave space is laid out in adjoining rectangles, the
truth of the matter is that the still-born infants are really buried at
a shallow level above other bodies ... and the facts of these
burials are unknown either to the parents of the dead infant or to
the owners of the plot in which the burial 1s made.
*K K *K
Honored Dead: C————— ‘Cemetery, like countless others,
assesses plot owners $1 a year per grave for the general maintenance
of the cemetery grounds. Its rules specity, in small type, that no
interment will be permitted in any plot unless all charges on that
plot, including the assessment, have been paid. _ is
In mid-January, of this year, a family owning a plot informed
C—___— officials that their son, a G. I. killed in action in Germany,
12
was being returned to the United States and that the Army had
arranged to have the body available for burial on January 23.
The father of the dead G. 1. was promptly informed that $14 in
back assessments were due and that therefore no burial would be
allowed until the $14 were paid. All plans were actually held up.
Section 87, you will recall, provides that funds left from pur-
chase money, after payments to share and certificate holders, should
be used for the maintenance of a cemetery.
* * 2
Grass: In 1929, the owner of a six-grave plot at B
Cemetery was billed $6 for grass-cutting. This annual charge for
the simplest kind of care continued for a number of years.
The present charge for grass-cutting on the same plot, he wrote,
is $20 a year.
This example is cited here because of its wide recurrence.
Some may think that $20 a year is a modest charge for cutting
the grass on six graves.
To understand the charge in its proper perspective, however, it
should be considered that cemeteries place about 1,200 graves to
an acre. At a charge of $3.33 per grave, the cemetery is collecting
almost $4,000 per acre per year—for cutting the grass. This cutting
is done but once in the spring and once in the fall.
4 7 4
7 * *
Contract: Vor the past several years, an organization which owns
burial rights in D —— Cemetery has been receiving bills for
the specific job of trimming the hedges around the area.
Only recently did the officials of the organization learn that the
cemetery had uprooted the hedges more than three years ago. Yet
the trimming bills have been coming.
Scores of complaints have been received for similar failures to
deliver care as per contract or for charging on work never
performed.
*k * *
Size of the Box: At R———_ Cemetery, the charge for a grave
opening is based on the type and size of the burial container. When
a plain coffin is used, the charge is $16. A casket, $20. An “outer
box” and casket, $25. The so-called “concrete vault,’ a cement
outer box; $35.
It is general practice to dig a grave of standard size, no matter
what the size of the box. Therefore this charge has no relation
to the cost of opening the grave, only to the ability to pay of the
bereaved family.
It is the unusual cemetery which has one price for a grave opening.
Closely related to this profit device is the following practice.
2K 7K Kk
13
Package Sale: On the grounds of E————— Cemetery is a sign
alleging that the charge for a grave opening is $3. This is a remark-
ably low price.
However, when a funeral cortege arrives, the mourners are told
the charge for the grave opening and “extras” is from $35 to $47—
again depending upon the size of the coffin and casket. Persons
who protest are informed that the increased charge is for the
“extras’—a lowering device, artificial grass to cover the raw
mounded earth, a canopy, etc.
Unless the cortege wants to escort the body back home, the
package sale must be accepted.
2k ok ok
Mark-up: An action launched by my office and_ involving
M G Cemetery disclosed that not only persons in
direct control but even middle-men are enriching themselves through
“non-profit” cemeteries.
A pseudo-real estate corporation, organized by professional ceme-
tery promoters, cleaned up a gross profit of more than $1,650,000
in five years by “retailing” M——_-_—__ G-_——— graves.
The promoters, who invested only $200 in their operating cor-
poration, bought graves in bulk from the cemetery and re-sold to
the public at a 100 per cent mark-up.
Actually, the promoters took the graves on consignment and were
not required to make any payment -to the cemetery until the full
price had been collected from the public purchaser. Thus, not only
did the cemetery trustees surrender their franchise to sell graves
but the cemetery received only half the funds the public believed it
was paying to it.
a 4 -
Paths: At M————_— C—————_ Cemetery, a son had his mother
interred in 1931. In a complaint late in 1948, he stated that other
graves had been laid out in such a fashion around that of his
mother’s that he was unable to reach hers except by walking on
the others.
To utilize every dollar-valuable foot of space, paths are frequently
converted to burial use, isolating all but the graves on the fringe of
a given section.
K 2K *K
Self-arranged Bargains: An official of the large P
Cemetery sold herself 5,000 burial plots for $11,000.
The cemetery treasury got the $11,000, but the official got: 5,000
plots, each plot consisting of four graves, each grave permitting of
two interments, one above the other. Simple arithmetic shows the
official, on re-sale, is now equipped to make space available for
40,000 bodies, the space for each body having cost her only 27%
cents.
Going price in the “open market” for these 271%4-cent burial
spaces ranges between $50 and $100 each.
14
Another official in the same cemetery bought 3,000 plots at about
the same bargain price scale.
It’s idle to speculate on the profit these two officials will make.
Suffice it to say that the cemetery received less than $18,000 for
64,000 burial spaces. Out of this $18,000 it must pay the original
cost of the ground occupied by the 64,000 spaces and provide for
current and future maintenance of the area.
K 7K *K
Arbitrary “Debt”: M W Cemetery was recently
purchased by an investor for approximately $100,000 cash.
For his $100,000 he bought an outstanding issue of $7,000,000
worth of certificates of indebtedness with interest on them amount-
ing to another $5,000,000.
The land purchase by the original cemetery founders cost an
infinitesimal part of the $7,000,000 in certificates which were issued
ostensibly for that purpose.
It is doubtful that $12,000,000 will ever go into the cemetery
treasury from the public sales. But the new owner, having a
$12,000,000 claim, will certainly be able to take virtually every dollar
that the public does pay.
*K 2K *K
Speculation: Certificates of indebtedness and land shares issued
by cemeteries, usually in inflated figures, are objects of lively trading
in over-the-counter houses in New York City.
At least 10 houses trade in W. rae and K——_—_——
securities.
The speculators are realistic about the situation. Certificates in
one cemetery can be bought at about 65 cents although the cemetery
gives them a book value of $70.
ok K K
Combination: The C G Cemetery Association,
the subject of another action by my office, operates some 250 acres.
Investigation disclosed that the group of officers and directors in
control of the association split more than $2,268,000 in fees, salaries
and “dividends” among themselves in the past seven years.
The money so divided was piled up, it is charged in the com-
plaint, by means of levying unreasonable, excessive and illegal
charges for care rs services and by the diversion of funds which
properly should have been used for the maintenance of the two
cemeteries on the site.
It is interesting to note that the present combination of officers
took over control in 1927 by investing $1,400,000. It is difficult
now to estimate how much these men reaped from 1927 to the
beginning of 1942. But the figure cited above, for the past seven
years, was established from the cemeteries’ own books.
* * ok
15
Tax Refuge: My office has moved to oppose the conveyance of
a 17-acre section of the 40-acre E————— Cemetery to a Mr. R.
Mr. R. has a triple role in the arrangement.
In 1936 Mr. R. sold the 40 acres to the cemetery.
Mr. R. is also the President of the so-called “non-profit” corpora-
tion which owns and operates the cemetery.
And finally, Mr. R. is the prospective “purchaser” of the 17
acres of land which have been held by the cemetery—and therefore
exempt from taxes—since 1936.
The consideration which Mr. R. offered to the cemetery for the
17 acres is without real value but would enable him to make a
profit amounting at least to the difference between what the land
would have brought on the open market in 1936 and what it might
bring on the open market now. In fact, Mr. R. also saved taxes
which would have been levied on the land during the intervening
years.
It should also be noted that the agreement under which Mr. R.
originally sold the land to the cemetery provided that approximately
85 per cent of the money received from the sale of graves would
be turned over to him personally. And it is now proposed by Mr. R.
to continue this arrangement.
Real Estate: In 1908, Messrs. G. and J. paid $12,000 down for
a 112-acre parcel of land on Long Island. Mr. C., the seller, held
a $20,000 mortgage on the parcel.
Shortly thereafter, Messrs. G., J. and C. organized the 5
Cemetery Association and sold to it the 112- acre parcel. To pay
them for the land, $3,200,000 worth of certificates of indebtedness
was issued. Half of them, or $1,600,000 worth, went to Mr. C.
Messrs. G. and J. divided the other half, $800,000 worth each.
To date, more than $2,200,000 in cash has been paid out by the
cemetery from its receipts toward the satisfaction of the certificates.
But the “improvement” of the local real estate by Messrs. C. and
J. did not stop with this rate of profit.
In 1924, Messrs. C. and J. sold to the cemetery some 80 additional
acres which they had under contract of purchase for $54,000. The
cemetery agreed to pay the $54,000 and to issue to C. and J. cer-
tificates of indebtedness, in addition, at such time as the land could
be used for burial purposes.
In 1937, the cemetery sold the 80 acres for $200,000 but retained
unto itself two acres. In 1946, The New York City Council granted
the right to use these two acres for burial purposes. In 1947, the
cemetery issued $600,000 worth of certificates of indebtedness to
C. and 7 which certificates were to be paid out of the sale of plots
or graves in these two acres.
In effect, an indebtedness of $300 per grave was created before
a single grave was sold.
* 3k *
16
Catalogue: Countless other incidents and examples of profiteering
and abuse could be cited.
There are, however, certain abuses which have a high rate of
recurrence. They stem either from the failure of the present law
to set up adequate standards or adequate sanctions. Among these
abuses are:
The self-perpetuation of the board of directors of these
so termed non-profit corporations so that management is con-
centrated in the hands of the promoters and their successors
in interest, and are handed down from generation to generation.
Payment to various individuals in the form of excessive
salaries, management fees or remuneration for services out of.
so-called “reasonable” charges for maintenance and_ those
entrusted for perpetual care.
Arrogant and high-handed treatment of plot owners by
officers and directors.
. . . Maintenance charges forced upon plot owners grossly
out of proportion to the actual care accorded them.
. . . Levying of assessments and constant changes in the
rules and regulations of the cemetery which make it possible
to foist charges wholly out of proportion to the actual cost and
reasonableness thereof.
Secret sales of plots to favored persons, organizations
and undertakers, who may then engage in speculation in the
resale of the plots.
. . Imposition of exorbitant charges for the opening of
graves. The corporation is well able to collect these excessive
charges since they are usually made when a sorrowing member
of the public appears for the purpose of interring a member of
his family.
REMEDY
It is evident that public need and public trust require not only
clarification and amendment of the present law but also a definite
supervision and regulation of cemetery membership corporations.
The bill prepared, and which is appended to this report, should attain
the objective.
It should be reiterated at this point that none of the provisions
of the proposed bill, with one exception which will be noted, would
apply to a religious corporation or to a cemetery operated by or for
the exclusive benefit of a religious corporation where the right of
burial is restricted to persons of the same religious faith.
The bill provides for the establishment of a cemetery board con-
sisting of the Secretary of State, the Attorney General and the
Commissioner of Health. This board would be set up within the
Department of State. The board would be empowered to administer
17
all provisions of the Cemetery Law; to order any cemetery corpora-
tion to do such acts as may be necessary to comply with the law
or any rule or regulation adopted by the board, or to refrain from
doing any act in violation thereof; to enforce its orders by man-
damus or injunction; to maintain an action for civil penalties.
Every finding, determination or ruling by the board would be
subject to review by the State courts.
A cemetery corporation would be required to file annual reports
of its financial status, its rates and charges and its rules and regula-
tions. The rules and regulations and the reasonableness of the rates
and charges would be subject to approval by the cemetery board and
would not be effective until so approved. Civil penalties would be
provided for failure to comply.
As far as feasible, the cemetery board should be self-sustaining,
with the expenses of administration paid for by annual assessment
against the cemetery corporations in the following manner: $3 for
each acre, or 5 per cent of the gross income of the cemetery, which-
ever is less, but in no event more than $1,000.
A cemetery corporation would be required to post its approved
rules, prices, rates and charges in a conspicuous place. The purchase
of lots, plots and graves by persons, firms or corporations for re-sale
would be banned.
A cemetery corporation would be forbidden to pay or offer to
pay, anyone save its own employees, commissions, or bonuses for
the sale of plots. Violation of this would be a misdemeanor.
A cemetery corporation would be required to maintain its burial
grounds in good condition, and in order to do so would also be
required to establish a permanent maintenance fund and a current
maintenance fund. At the time of making a sale of burial space,
at least 10 per cent of the gross proceeds would have to be put in
the permanent maintenance fund and an additional 15 per cent in
the current maintenance fund. The first fund would be a trust
fund.
Moneys paid into the cemetery for perpetual care would have to
be segregated and invested in legal securities. It would be forbidden
to commingle the income of such funds. A list of the investment
securities would have to be filed each year and would be checked
regularly by the cemetery board. This provision would also apply
to cemeteries owned and operated by a religious corporation.
No cemetery would be permitted to refuse burial for any reason
except non-payment of the price of the burial space. A cemetery
would not be permitted to levy any assessments on plot-owners
except with approval of the board.
To prevent future speculation, no cemetery would hereafter be
permitted to pay more than a fair and reasonable market price, tak-
ing the method of payment into consideration, for any real property
which it might purchase. The price would be subject to Court
approval. Certificates of indebtedness would be issued only for
actual value and subject to approval by the cemetery board.
*K *K ok
19
18
It is submitted that the adoption of this legislation will go a long
way toward preventing “profiteering on sorrow.”
Respectfully yours,
NATHANIEL L. GOLDSTEIN,
: Attorney General ,
NEGLECT
The following pictures were taken during November
1948 at cemeteries in the Metropolitan Area of New
York City.
29
AN ACT
To amend the membership corporations law, the penal law, the
state departments law and the stock corporation law, in relation
to cemeteries and cemetery corporations, establishing a division
of cemeteries in the department of state, providing for and pre-
scribing the powers and duties of a cemetery board therein,
and making an appropriation for the expenses of such division
The People of the State of New York, represented in Senate
and Assembly, do enact as follows:
Section. 1. The people of this state have a vital interest in the
establishment, maintenance and preservation of burial grounds and
the proper operation of the a cranes which own and manage
the same. It is hereby declared that unhealthful, unfair, unjust,
destructive, demoralizing and uneconomic practices have been and
are now being carried on in the maintenance and operation of
cemeteries. To protect the well-being of our citizens, to promote the
public welfare and to prevent cemeteries from falling into disrepair
and dilapidation and becoming a burden upon the community, and
in furtherance of the public policy of this state that cemeteries shall
be conducted on a non-profit-basis for the mutual benefit of plot
owners therein, the following provisions are enacted in the exercise
of the police power of the state.
§ 2. Subdivision three of section eleven of the membership cor-
porations law is hereby amended to read as follows:
3. The certificate of incorporation of a cemetery corporation
shall have endorsed thereon the approval of the cemetery: board
and shall be filed in the office of the clerk of each county in which
any part of the cemetery is proposed to be or is situated, as well as
in the offices specified in the general corporation law, and shall state:
(a) Each city, village or town and county in which any part
of the cemetery 1s proposed to be or is situated ;
(b) The time of the annual meeting[ ;]
[(c) The percentage, if any, of the surplus proceeds of sales
of lots, after payment of the purchase price of the real property of
the corporation, to be invested as a permanent fund, the income of
which shall be used only for the improvement, preservation and
embellishment of the cemetery].
§ 3. Section twenty-seven of such law, as added by chapter
ey en hundred ten of the laws of nineteen hundred forty-five, is
hereby amended to read as follows:
§ 27. Investment of funds. Subject to the limitations and condi-
eae contained in any gift, devise or bequest, a membership cor-
poration, created by or under a general or special law, may invest
its funds in such mortgages, bonds, debentures, shares of preferred
and common stock and other securities as its directors shall deem
advisable, except as otherwise provided in article nine of this chapter
with respect to cemetery corporations.
§ 4. The article heading of article nine of such law is hereby
amended to read as follows:
30
ARTICLE IX
CEMETERY [ASSOCIATIONS] CORPORATIONS
§ 5. Sections seventy and seventy-one of such law are hereby
amended to read, respectively, as follows:
§ 70. Definitions. As used in this article:
1. The term “cemetery corporation” means any corporation
organized under a general or special law for the burial of the dead
in a grave, mausoleum, vault or other receptacle but does not include
a family cemetery corporation or a private cemetery corporation.
2. The term “lot owner” or “owner of a lot” means any person
having a lawful title to the use of a lot, [plat] plot or part thereof,
in a cemetery.
3. The term “cemetery board” means the cemetery board in the
division of cemeteries in the department of state.
§ 71. Application. This article, except as otherwise provided in
section ninety-two, does not apply (1) to a cemetery belonging to
a religious or a municipal corporation, or (2) to a cemetery operated
by or for the excluswe benefit of a religious corporation or religious
corporations where the right of burial is limited to persons of the
same religious faith.
§ 6. Such law is hereby amended by inserting therein a new
section, to be section seventy-one-a, to read as follows:
§ 71-a. Cemetery board. 1. There is hereby created a cemetery
board within the division of cemeteries in the department of state.
2. The members of such board shall be the secretary of state,
the attorney-general and the commissioner of health, who shall serve
without additional compensation.
3. The secretary of state, attorney-general and commissioner of
health may each, by official order filed in the office of his respective
department and in the office of the board, designate a deputy or
other representative in lis department to perform any or all of the
duties under this article of the department head making such desig-
nation, as may be provided in such order, provided however that
all orders or determinations of the board which are made reviewable
in this article pursuant to the provisions of article seventy-eight of
the civil practice act shall be signed by at least two of the members
of said board and not by a designee or designees. Such designation
shall be deemed temporary only and shall not affect the civil service
or retirement rights of any person so designated. Such designees
shall serve without additional compensation. ;
4. The secretary of state shall be chairman of such board, pro-
vided that in his absence at any meeting of the board the attorney-
general or the commissioner of health, in such order, if either or
both be present, shall act as chairman. When designees of such
officers, in the absence of all such officers, and acting for them,
are present at any meeting of the board, the designee of the secre-
tary of state, if present, and in his absence one of the other designees
31
present, in the same order of preference as provided for the officer
appointing him when present at a meeting, shall act as chairman.
5. Technical, legal or other services shall be performed im so
far as practicable by personnel of the departments of state, law and
health without additional compensation but the board may employ
and compensate within appropriations available therefor such assist-
ants and employees as may be necessary to carry out the provisions
of this article and may prescribe their powers and duties.
6. Two members of the board shall constitute a quorum to _trans-
act the business of the board at both regular and special meetings.
7. The board shall meet at least once a month, shall keep a com-
plete record of all its proceedings and shall determine the rules of
its own proceedings.
8. Special meetings may be called by the chairman upon. his
initiative, and must be called by him upon receipt of a written
request therefor signed by another member of the board. Written
notice of the time and place of such special meeting shall be delivered
to the office of each member of the board.
9. The board shall have the duty of administering the provisions
of this chapter dealing with cemetery corporations and shall have all
the powers therein provided and such other powers and duties as
may be otherwise prescribed by law. No official act shall be taken,
rule or regulation promulgated, or official order made or enforced
without the approval of a majority of the members of the board.
§ 7. Section seventy-four of such law, as amended by chapter
four hundred eight of the laws of nineteen hundred thirty-two, is
hereby amended to read as follows:
§ 74. Corporate meetings. Each owner of full age of a lot, con-
taining at least [ninety-six] sixty square feet of land in the ceme-
tery of the corporation, or if there be two or more owners, then
one of them designated by a majority of them, may cast one vote
at meetings of the corporation in respect to such lot. At such meet-
ings, each owner of a certificate of stock heretofore lawfully issued
shall be entitied to one vote for each share of stock owned by him
and each owner of a certificate of indebtedness shall be entitled to
one vote for each one hundred dollars of such indebtedness remain-
ing unpaid. No lot owner shall be entitled to vote unless all assess-
ments against the lot of such owner have been paid. A quorum for
the transaction of business, unless the certificate of incorporation
or by-laws otherwise provide, shall be five members entitled to vote
at the meeting.
§ 8. Section seventy-six of such law, as last amended by chapter
three hundred twenty-seven of the laws of nineteen hundred forty-
five, is hereby amended to read as follows:
§ 76. Acquisition of property for special purposes and in trust.
A cemetery corporation may acquire, otherwise than by condemna-
tion, additional real or personal property, absolutely or in trust, in
perpetuity or otherwise; and use the same or the income therefrom
in pursuance of the terms on which the same is acquired, for the
following purposes, only:
BA
1. The improvement or embellishment, but not the enlargement,
of its cemetery ;
2. The construction or preservation of a building, structure, fence
or walk therein;
3. The renewal, erection or preservation of a tomb, monument,
stone, fence, railing or other erection or structure on or around
any lot therein;
4. The planting or cultivation of trees, shrubs, flowers or plants
in or about a lot therein;
9. The construction and operation of a crematory and colum-
barium therein;
6. The perpetual care, keeping in order and embellishment of any
lot, plot or part thereof, or of the structures thereon as prescribed
in the instrument, or by his successor in right or interest in such
lot, by a new or further declaration of trust. in writing.
Such trust funds shall be invested within a reasonable time after
receipt thereof and kept invested in such securities as are permitted
for investment by savings banks or in a savings and loan association
or in a federal savings and loan association organized under the
home owner's loan act of nineteen hundred thirty-three, as amended
having its principal place of business in the state of New York.
The corporation may, for the purpose of investing and reinvesting
such funds, add the same to any similar trust fund or funds and
apportion shares or interests to each trust fund showing upon its
records at all times every such share or interest. A majority of
the directors and the treasurer of the corporation shall annually
within sixty days after the close of each calendar or fiscal year ay
and sign, and shall file at the office of the corporation a detailed
accounting and report concerning such trust funds, and the use
made of such funds or of the income thereof for the precedin.
calendar or fiscal year, which shall include, among other cass
pay itemized, the securiiies in which the same is then invested
ey cutee changes made therein during the
ee ea ort. Such accounting and report shall be
¥ : °S availz > > ae % is eee °
business hours. as Gnepecion ai ie by. soe gee eee one
contributor to such trust fund O eX Bags sy cal ney
January in each calendar year ca is or 2 tharty-first day of
ag apenas she ae every cemetery corporation shall file
a ade ; ” accounting and report concerning such
§ 9.
7 Section eighty
tollows: :
or such law is hereby amended to read as
SD i :
Yee Keen > Bolles
Boraton Pree bo and maps otf cemetery. 1. Every cemetery cor-
c > + . . ~ ,
fe tairiad rom time to time, as land in its cemetery may be required
“ cpurposes, shall survey and subdivide such lands and
make and file with the cemetery board and in the office of the cor-
to public inspection, delineating the
avenues, paths, alleys and walks and their
Any unsold lots, [plats] plots or parts
poration a map thereof. open
lots or [plats] plots,
respective designations.
33
thereof, in which there are no remains, by order of the directors,
may be resurveyed and altered in shape or size, and properly
designated on such map.
2. Every cemetery corporation shall provide reasonable access
to every lot, plot and grave. This provision shall not be applicable
where, at the time this section as hereby amended takes effect, such
access cannot be provided without the disinterment of a body or
bodies. A cemetery corporation shall not permit or allow a body to
be interred hereafter in a path, alley, avenue or walk shown on the
cemetery maps or actually in existence.
§ 10. Section eighty-one of such law, as last amended by chapter
one hundred twenty-nine of the laws of nineteen hundred forty-two
is hereby repealed, and such law is hereby amended by inserting
therein, in place of such section, a new section, to be section eighty-
one, to read as follows:
§ 81. Sale or disposition of cemetery lands. No cemetery cor-
poration may sell or dispose of the fee of all or any part of its
lands dedicated to cemetery use, unless it shall prove to the satis-
faction of the supreme court in the district where any portion of the
cemetery lands is located, that all bodies have been removed from
each and every part of the cemetery, that all the lots in the entire
cemetery have been reconveyed to the corporation and are not used
for burial purposes, and that it has no debts and liabilities. There-
upon the court may make an order authorizing it to sell or dispose
of such land.
§ 1l. Section eighty-two of such law, as amended by chapter
one hundred sixty-six of the laws of nineteen hundred forty-five, is
hereby amended to read as follows:
§ 82. Rules [and], regulations and charges. 1. The directors
of a cemetery corporation [may] shall make reasonable rules and
regulations for the use, care, management and protection of the
property of the corporation and of all lots, [plats] plots and parts
thereof; for regulating the dividing marks between the lots,
[plats] plots and parts thereof; for prohibiting or regulating the
erection of structures upon such lots, [plats] plots or parts thereof ;
for preventing unsightly monuments, effigies and structures within
the cemetery grounds, and for the removal thereof; for regulating
the introduction and care of plants, trees and shrubs within such
grounds; for the prevention of the burial in a lot, [plat] plot or
part thereof, of a body not entitled to burial therein; for regulating
or preventing disinterments; for regulating the conduct of persons
while within the cemetery grounds; for excluding improper persons
and preventing improper assemblages therein; and [may] shall fix
and make reasonable charges for any acts and services [authorized]
ordered by the owner and rendered by the corporation in connection
with the use, care, including perpetual, annual and special care,
management and protection of lots, [plats] plots and parts thereof
[in pursuance of the foregoing]. Jn determining said charges the
34
directors shall consider the propriety and the fair and reasonable
cost and expense of rendering the services or performing the work
for which such charges are made. 1
[Such rules, regulations and list of charges shall be plainly
printed and conspicuously posted in the office of the corneeatt
and in such places upon the cemetery grounds as the directors ;
prescribe.] s iu
The directors may prescribe penalties for the violation of any
ia rule or regulation, not exceeding twenty-five dollars for en
hele which shall be recoverable by the corporation in a civil
4 Such rules, regulations and charges shall not become effective
Fie ire te until approved by the cemetery board as hereinafter
3. The directors of any cemetery corporatio rganize ;
before August thirty-first, nineteen eee ene ae file
im the office of the cemetery board the name and address of the
corporation together with its rules, regulations and chare ex; 1
a statement showing the basis upon which they were aie withis
ninety days after the time this section as hereby amended Ge
effect. The directors of any cemetery corporation organized o is
after September first, nineteen hundred forty-nine chal file 1 eis
office of the cemetery board the name and address of the ase ‘
together with its rules, regulations, and charges and a ff on pi
showing the basis on which they were made, within ninety age apie
the date of the filing of the certificate of incorporation in th » de
ment of state. Within six months after the date of ain fiir ;
the cemetery board shall make and file in its office an vie
approving, disapproving or amending such rules ke
charges in whole or in part. Such rules, regulations and cha bibs
if approved with or without amendment, shall become DIE
approved upon the filing of such order by the Aanetery ‘i a s
us office. The cemetery board shall notify the directors of the
action taken by it and its reasons therefor by regist ate il
addressed to the corporation at its principal office apes aes
determination as to the schedule of charges the ‘cemet ry sh er
shall consider the propriety and the fair and ieconable cost aoe
expense of rendering the services or performing the work for? Hitch
such charges are made. In passing upon the rules and rec lations the
cemetery board shall consider the interests of the ein ors if the
corporation and the public interest in the proper anton ; se d
operation of burial grounds. oe
othe rules, regulations and charges of any cemetery corpora-
tion existing on or before August thirty-first, nineteen Raggritee
forty-nine, shall remain in effect until the cemetery board files
its office an order pursuant to the provisions of subdivision th os
hereof. -A cemetery corporation organized on or after Septe tee
first, nineteen hundred forty-nine, may enforce the rules iat =F
and charges filed by it in the office of the cemetery Kid onhi ae
cemetery board files in its office an order pursuant to the pr xt oak
of subdivision three hereof. Biase
wn
3
5. In the event that a cemetery corporation provides any services
not included in the list of charges, and for which a charge cannot
reasonably be fixed in advance, the charges made therefor shall
be reviewable by the cemetery board. In the event that the cemetery
board determines that an excessive, unauthorized or improper charge
has been made for such services or that the services have not been
properly performed, it may direct the cemetery corporation to pay
to the person from whom such charge was collected a sum equi-
valent to three times the amount of the excess as determined by the
cemetery board, or in the case of work not properly performed, it
may direct the cemetery corporation to perform the work properly.
6. The rules, regulations and charges of a cemetery corporation
may be amended by the corporation by filing such proposed amend-
ments with the cemetery board and obtaining from it an order
approving or disapproving such amendments, in the same manner
applicable to the original filing of its rules regulations and charges.
7. The rules, regulations and charges of a cemetery corporation
shall be re-filed on or before January thirty-first in each calendar
year together with any amendments or changes proposed therein.
Amendments or changes shall be clearly specified as such.’ The
cemetery board shall make an order approving, disapproving or
amending such rules, regulations and charges in the same manner
applicable to the original filing thereof. Until an order is filed by
the cemetery board, the rules, regulations and charges existing at
the close of the previous calendar year shall continue in force and
effect.
§ 12. Such law is hereby amended by inserting therein a new
section, to be section eighty-two-a, to read as follows:
§ §2-a. Posting of rules, regulations, charges and prices. The
rules, regulations, charges, and prices of lots, plots or parts thereof
shall be suitably printed for display as approved by the cemetery
board: and shali be conspicuously posted by the corporation in each
of its offices. For each day in which the corporation fails to post
the rules, regulations, charges and prices the corporation shall be
subject to a penalty of twenty-five dollars which may be recovered
in a civil action by the cemetery board. The cemetery board may
waive the payment of the penalty or any part thereof.
§ 13. Section eighty-four of such law, as last amended by
chapter seven hundred fifty-one of the laws of nineteen hundred
forty-five, is hereby amended to read as follows:
§ 84. Title and rights of lot owners. 7. The directors must fix
and determine.the prices of the burial lots [or plats], plots or
parts thereof, and keep a plainly printed copy of the schedules of
such prices conspicuously posted in each of the [office] offices of
the corporation, open at all reasonable times to inspection, and shall
file a schedule of such prices in the office of the cemetery board.
2. Unless its certificate of incorporation or by-laws otherwise
provide, and subject to its rules and regulations, the corporation
shall sell and convey to any person the use of the lots [or plats],
36
lots or parts :
plot. barts thereo sionate ree. . “
the ‘islands on lle, scary ie BP eat
ie yment of the prices so fixed ; *rminec
"nite eae seer a S so hxed and determined.
pa ng not sell and convey more than one lot Lor plat], plot or part
Ty > = ~ , !
and ie) i Pied one person. Conveyances of lots [and plats], plots
hae fees : vereof shall be signed by the president or vice-president
é ; oe or assistant treasurer of the corporation
pane cemetery corporation that shall sel] a lot, plot or part
! IY rPp CE is , Y )
phic MY m5 gofa: of the price shown On the schedule filed a: the
of the c es a metery board, and any person acting for or on behalf
> ot pYAY os es e ° .- = 2 ‘ w
Airs foviels corporation in connection with; such sale, shall
EM sy o4 : people of the state of New Vork a sum equivalent
a SeaSegst mes t te excess amount so pid Sach penalty may be
4 Th, m a civil action by the cemetery boar, ‘ ae
: Le va > a RE 5 : nee"
brea ahaa of conveyance of any burial lot, plot or part
‘ clude a ¢ escription showing } ;
ce : ng the dimens :
property conveyed. a aes enstons of the
: , and the plot number. sect
i section and bh y
pit he db ar on the cemetery map. ’ block number
J. Whenever ot or :
as races * “ Jot, plot or part thereof shall be purchased by
eel Sea ac uy ener or representative of a decedent from
unless eae eo ohie the burial of the decedent, the deed shall
“The faces ‘ irected, run to the names of his heirs-at-law or
S-dal-law of pe
. tle ea E : , deceased.” If the dee
hall a2 to “The heirs-at-law of 5 gas as
executor mnisteatas: : » GECEASE, © :
oe incnems og area Or representative shall. at he time ros
ered 1e eh to such lot, plot or part thereof file with the
ager ge oi a cai setting forth the names and places of resi-
ahr 4, eae aie ee and the corporation shall be
: i 1e truth of Bs , bk od rea .
ul rett. the statements contained in such
6. All lots ats :
been so conve Pplats] plots or parts thereof, the use of which has
tee aoe Ae separate lot, shall be indivisible except oat,
‘ 1€ lot owner and the corr i vr
ce eae _ 1€ Corporati r as j j
article prov ats Ke : I on, Or as in this
eo pri ada burial therein the same shall be inalienable.
isk the title <a ig provided. Upon the death of an owner of Sach
aie ane - uae erg to his heirs-at-law or devisees subject
> € tollowing limitations d eee oh aces
leaves 3 widow § ns and conditions: (a) If he
S ow and one or more chi i 1 x
: nildren or either, they <
in common the eee : either, they shall have
lives and Tae eee ee care and control of such lot during their
not pass from the Reet 2 fis of them; (b) title to any lot shall
clause of a de ade Nagra by any residuary or other general
nce ae ss a s will unless specific reference js made therein
rene 4 - ae oe shall have the same rights in the tomb
2 S wite as the wife has in tt Eh
/. The survivi : Sar as 1n that of her husband.
oe ving spouse shall have the right of interment for
Be sla hes y in a lot or tomb in which the deceased spouse was
she Ala o at the time of his or her death, and a Hight
ee . : Ps c
therein ae eat fs a aa permanently interred or entombed
; at such body may be remc ;
1 ee: : : € removed therefr Tae
vided in section eighty-nj _ eee ee: PIO-
s : oty-nine. Sucl ; he
; ghty - Such right may be e “C
tected by hic a : § lay be entorced and pro-
y his or het personal representatives. The remains a a
37
spouse, parent or child of a person who is an owner or co-owner
thereof may be interred in such lot or tomb without the consent of
any person claiming any interest therein, subject, however, to the
following rules and exceptions:
[E (1) ] (a) The place of interment in such lot shall be subject
to the reasonable determination by a majority of the co-owners or
in the absence of such determination by the cemetery corporation
or its officer or agent having immediate charge of interments.
[ (2) ] (b) Any husband or wife living separate from the
other and owning a lot in which the other, but for this section, would
have no right of burial, at least thirty days before the death of the
other, may file with the cemetery corporation a written objection
to the interment of the other, and thereupon there shall be no right
of interment under this section.
[ (3) ] (c) A parent or child owning a lot in which the other
would have no right of burial but for this section, at least thirty
days before the death of the other, may file with the cemetery cor-
poration a written objection to the interment of the other, and
thereupon there shall be no right of interment under this section.
In such case, if the parent or child so excluded from burial in such
lot, die without having any place of interment, then the person filing
such objection shall at once provide for the other a suitable place of
burial in a convenient cemetery. The cost of such place of interment
shall be chargeable to the decedent’s estate, if any.
[ (4) ] (d) This section shall not permit a burial in any
ground or place contrary to or in violation of any precept, rule,
regulation or usage of any church or religious society, association
or corporation restricting burial therein. This section shall not
limit any existing right of burial under other provisions of law, nor
shall it limit or curtail the right of alienation, under the rules of the
cemetery corporation wherein such lot is situated, by the owner of
a lot, before the death of the person for whose remains the right
of burial is provided herein, and there shall be no right of burial in
any lot sold by its owner, before the death of the person for whose
remains the right of burial is provided herein.
8. At any time when more than one person is entitled to the
possession, care or control of such lot, the persons so entitled thereto
shall file with the corporation a designation of a person who shall
represent the lot, and so long as they shall fail to designate, the
directors of the corporation may make such designation. An heir
may release to the other heirs, and a joint owner may release or
devise to the other joint owners, his right in the lot, on conditions
specified in the release or will, the original or certified copy of
which shall be filed in the office of the corporation. The widow at
any time may release her right in such lot, but no conveyance or
devise by any other person shall deprive her of such right.
9. At any time all the owners of a lot, including a surviving
spouse having a right of interment therein, may execute, acknowl-
edge and file with the corporation an instrument which may (a)
designate the person or persons who may thereafter be interred
38
in said lot or in a tomb in such lot and the places of their inter-
ment; (b) direct that upon the interment of certain named persons
the lot or tomb in such lot shall be closed to further interments ;
(c) direct that the title of the lot shall upon the death of any one
or more of the owners, descend in perpetuity to his or her heirs-
at-law, unaffected by any testamentary devise. Any such instrument
shall be deemed irrevocable unless otherwise provided.
10. At any time when more than one person is entitled to the
possession, care and control of such lot, any of the persons so
entitled thereto may file with the corporation an affidavit setting
forth the names and places of residence of all the persons entitled
to the possession, care and control of such lot, and the corporation
Shall be entitled to rely upon the truth of the statements contained
in such affidavit. The corporation shall be entitled to collect a reason-
able fee for filing and recording such affidavit and other documents
filed in its office.
11. The title of a lot owner shall not be affected by the dissolution
of the corporation, by non-user of its corporate rights and fran-
chises, by any act of forfeiture on its part, by any alienation of its
Property or by incumbrance thereon made or suffered by it.
§ 14. Section eighty-five of such law is hereby repealed, and
such law is hereby amended by inserting therein, in place of such
section, a new section, to be section eighty-five, to read as follows:
§ 85. Conveyance of lots. 1. Except as otherwise provided in
this section, the right to use any lot, plot or part thereof may be
sold or conveyed only by the cemetery corporation.
2
é. It shall be unlawful for any person, firm or corporation to pur-
chase or fora cemetery corporation to sell a lot, plot or part thereof
for the purpose of resale. This provision, however, shall not apply
to the sale of lots, plots or parts thereof, or the right to use any
lot, plot or part thereof, by a membership or religious corporation
or unincorporated association or society which provides burial bene-
fits for its members.
3. Before any burial shall have been made in any such lot, plot
or part thereof, or, if all the bodies therein have been lawfully
removed, the lot owner may sell or convey such lot, plot or part
thereof subject to the prior approval of the cemetery board. Such
approval shall not be granted unless the owner of such lot, plot or
part thereof shall first have offered it to the cemetery corporation
at the original price paid therefor, together with simple interest at
the rate of two per centum per annum, and the cemetery corporation
shall have refused such offer within ten days after the making
thereaf. The secretary of the cemetery corporation shall file and
record in its books all instruments of transfer. An owner may
convey or devise to the corporation his right and title in and to any
such lot, plot or part thereof.
4. It shall be unlawful for a cemetery corporation to pay or offer
to pay to, or for any person, firm or corporation to receive, directly
or indirectly, a commission or bonus or rebate or other thing of
39
] yale art thereof.
value for or in connection with the pe ° oo, ne ee
7 LSIONS is subdivision shall not apply to a per: (
The provisions of this subd ar :
larky oomplowed and supervised by the spaniels oa!» epee te ae
5 iolati is section shall constitute a misde
5. A violation of this secti ee
shall be punishable by a fine of not more than Be anette
or not more than six months imprisonment or both. Each 7
shall constitute a separate offense.
f ie Lorehy “nde ad
15. Section eighty-six of such law is hereby amended to rea
Cr
as follows: , ne
in inali ort of the
§ 86. Lots held in inalienable soit i sip veto Ge aie
neter f i rhich any per:
e : corporation which | ee
cemetery of a cemetery ) a os os
the pee is entitled to use for age lias eevee
ae not removed, shall be sold,
bodies have been buried and i pean
1 cemetery Cc ration [incorp
se 7 the tion. A cemetery corpo
or leased by the corpora \ corp ph bagiatamgeraen
ra ge special law] may convey any ‘
der or bya general or spec ed soa greet
wots such eee or after an interment ae lot phat
: inali > dez f the lot owner shz
foreve : upon the death of 1 )
be forever inalienable, and ee
ers s as may be designatec
$s such person or persons as maj on
ee 1 tion be made, shall descend as pro
reyanc if such designation be made, s ‘ 5 Pro-
vided oes f A : of the owners of
1 in secti ighty- ny one or more :
rided in section eighty-four. . a
fe a lot may release or devise to any other ou os ae
: é : ‘ ‘ = = N ag =) 2 t » = .
interest therein on such conditions as shall be specified in the
or will. a - Se
"2 A cemetery corporation [incorporated under or MY ee ,
or s ecial law] may take and hold any lot conveyed or 1sec ae
by the lot owner so that thereafter it will be inaliena ey ane oe
interments therein shall be restricted to such person or class of }
sons as may be designated in the ave nie sae at renee
oe ] inalienable lot by an instr
3. The owner of any inalien Jot by a erteee
or by will may change the designation in whole oe in ‘ate oo
f 21 or pers - class of persons.
ict 1 therein to another person or ¢ Ss.
restrict interments there J baating Oise
i sn made in any inalien :
If no burial shall have been m rareme care
/ foe retrom, the lo
ies been lawfully removed the
the bodies shall have be d oo
i > cemetery ration, or the c .
mers W ane t of the cemetery corpo ; :
owners with the consent o1 cence
corporation with the written consent of the lot owners an
their account, may convey such lot.] |
r inserti ere new
§ 16. Such law is hereby amended by oe therein a
section, to be section eighty-six-a, to read as follows:
§ 86-a. Maintenance and preservation; oe ee ee
© re : = z = reg ?
p > fund. Subject to rules an
id; current maintenance fu sa :
Ase cemetery board: 1. Every cemetery He ieee spe poe
| | “in lots, plots and part:
: nae cemetery, including all ‘ |
ee ie. ‘pose such maintenance
} yy the sole purpose of
oreof, in perpetuity. Fc
a fare every cemetery staat oe 3 tei
(a 1 mainte > an b) a e
intat 4 ent maintenance fund,
maintain (a) a perman : | nee
maintenance fund. At the time of making sale of a eae dae
rt thereof, the cemetery corporation shall deposit ten pen |
7 th gross proceeds of the sale into the permanent maintenance
0 e SS c
40
fund. An additional fifteen per centum of the gross proceeds of
the sale shall be deposited in the current maintenance fund.
2. The permanent maintenance fund is hereby declared to be
and shall be held by the corporation as a trust fund, for the pur-
pose of maintaining and preserving the cemetery, including all lots,
plots and parts thereof. The principal of such fund shall be invested
and kept invested only in such securities as are permitted for invest-
ment by savings banks or in a savings and loan association or in
a federal savings and loan association organized under the home
owner's loan act of nineteen hundred thirty-three, as amended,
having its principal place of business in the state of New York.
The income arising therefrom shall be used solely for the mainte-
nance and preservation of the cemetery grounds. The principal of
such fund shall remain inviolate, except that upon application to the
Supreme court in a district where a portion of the cemetery grounds
is located, the court may make an order permitting the principal or
a@ part thereof to be used for the purpose of current maintenance
and preservation of the cemetery or otherwise. Such application
may be made by the cemetery board on notice to the corporation
or by the corporation on notice to the cem etery board. Such ap plica-
tion may also be made by any interested party on notice to both
the cemetery board and the corporation.
3. The current maintenance fund shall be used and applied for
the sole purpose of ordinary and necessary expenses of the care
and maintenance of the cemetery. When all burial rights in the
cemetery have been conveyed, the fund remaining on deposit or to
the credit of the current maintenance fund shall be transferred into
the permanent maintenance fund.
t. dhe percentage of the proceeds of sales required to be
deposited in the permanent maintenance fund or current main-
tenance fund by a particular cemetery corporation may be increased
or diminished by order of the supreme court in a district where any
portion of the cemetery 1s located. Such application may be made
by the cemetery board on notice to the corporation or by the cor pora-
tion on notice to the cemetery board. Such application may also
be made by any interested party on notice to both the cemetery board
and the corporation. :
§ 17. Section eighty-seven of such law, as amended by chapter
two hundred seventy-six ef. the laws of nineteen hundred thirty-
eight, is hereby amended to read as follows:
§ 87. Application of proceeds of sales of lots. [A cemetery cor-
poration shall apply] 1. At least one-half of the proceeds of sales
of lots or the use thereof remaining after the deductions for the
portion thereof required to be deposited in the permanent main-
tenance fund and current maintenance fund together with the
expenses of sale shall be applied by a cemetery corporation to the
payment of the* purchase-price of the real property acquired by it
[until the purchase price be paid, and the]. The remainder of
such proceeds shall be applied by the corporation to preserving,
41
ok be ‘omiater S the avenues
improving and embellishing the cemetery Sounds, ny ne iP pe ps
and roads leading thereto, and to defraying its ie ae
charging its liabilities. After Be oe Cate oF Pa ey Pes
¢ ing < 7 t the ce £
; > expense surveying and laying ou ;
and the expense of survey _ tal : Getseib ThebaaraA.
; of such sales shall be applied to the improvement, pres
»roceeds of such sales shall ee ae teat
Boa and embellishment of the cemetery and to such ex]
liabilities. [Such amen may agreed oo ea he
f : ; reec .
2. Where a corporation has ag : .
-chase -emetery,] to pay
any such lands [are] were purchased [for a c y; ;
any such lands [are] we eegn pete
) ve bes pues e proceeds
‘efor a spec share not exceeding one-half o
therefor a specified share 1 ; "s PERS Clete ey
f ; therei r the use thereof, [and such ; 1
sales of lots therein or t ie cite co a
: hase : e remainder
> payme such purchase price, anc
applied to the payment of $s eaumae ee
ie corporation may continue to make payments as _ sella ae ie
vided however that there be first spalenate rn said prc gated
. ; Nas -hosited in hermanent main-
> required to be deposited in the pe
sales the amount required : er a ae
; > > oresaid togethe
‘rent maintenance fund as af
tenance fund and curre Stead cua
with i expenses of sale. The balance of such proceeds ae
continue to be applied by the corporation to Be oe
improvement and embellishment of the spe” gee : oe si
: . ae ~ ~ “7c, ere > he
iabilities of » corporation[; in such case].
and liabilities of the cor] Tnied Dies of the po
; eS re agreed to pay a specified share
oration has heretofore ag : # <a? he
p ae ; Se- of lan
i fnY pC : ment of the purchase price ’
ceeds as aforesaid in pay ete weer ee : eee
prices of lots or the use thereof in force when such habia a
made, shall not be changed, while the purchase-price : eee Sone
Pe : : Seay s ‘rest O srsons
rithc > writ ‘onsent of a majority in interes :
without the written conse Tei lean Cas cee:
~ rhe . ; were purchased or their legal repre:
from whom the lands were f : : iheria hie.
rchas 2 roperty here
3. No cemetery corporation, in purchasing real 4 ERR pis
after, shall pay or agree to pay more than the fair anc ge a
"ee fs TJ. : ~ : 2 # ; é
market value thereof. The terms of the purchase, Ge u wes $e
price to be paid and the method of -akeeabe tee be , ject, se
OU 2 supreme CO
: > cemetery board, to approval by the su se
notice to the cemetery ard, t er re ie. ‘
. ' the ; ? n determining
; istrict where ! portion of the land 1s located. te ‘
in a district where any p re iia teed
‘” reas 2 market value, the court may ee mt
the fair and reasonable | Cie oie
: : > me } which the purchase price is t
sideration the method by zx a ered
orati yhich has heretofore issued certificates
4. A corporation which has S : Sete Cs OE
: d : ee a specified share in the proceeds
; which e . > owner to a specified share 11 (
shares which entitled the a tae La fae
¢ -chase such certificate ith its surplus
¢ sale ; ’ purchase such certificates w 5s
of the sale of lots, may | su Bese he Gch akc. oe
serve f +: old such certificates for the bene ts
or reserve funds and hold ; eerie meer
plus or reserve funds, but such certificates may not thereafter
sold or reissued. : ie ey
5. On or before the thirty-first day of January in each fabs
year every cemetery corporation shall file Baile ie cemere’s i of
I ye - . Spaee oa < ( Ss
an accounting and report concerning the disposition pi ae eas
sales of lots, plots, or parts thereof, during the preceding cale
year. : : | : es
§ 18. Such law is hereby amended by inserting therein a
section, to be section eighty-eight, to read as follows: .
. er Mer Sh S0ae9 NT >metery ration
S 88. When burial not to be refused. No paises igh Bae inde
shall refuse or deny the right of burial and the privileges inc
42
thereto in any lot, plot or part thereof to those otherwise lawfully
entitled to be buried therein, for any reason except for the non-
payment of the purchase price of the lot, plot or part thereof, in
accordance with the terms of the contract of purchase or except as
provided in section ninety of this article.
§ 19. Section ninety of such law is hereby amended to read as
ollows:
§ 90. Taxation of lot owners by corporations. 1. If the funds
of a cemetery corporation, applicable to the improvement and care
of its cemetery [wholly outside of a city of the first or second
class], or applicable to the construction of a receiving vault therein
for the common use of lot owners, be insufficient for such purposes
the directors of the corporation, not oftener than once in anv year
and for such purposes only, may, upon the prior approval of the
cemetery board, which shall determine the necessity and propriety
thereof, levy a tax on some basis to be determined by the directors
of such corporation, but no such tax shall exceed two dollars on anv
one lot, except that with the written consent of two-thirds of the
lot owners or by the vote of a majority of the lot owners present
at an annual meeting, or at a special meeting duly called for such
purpose, such tax may be for an amount which shall not exceed
a total of five dollars per annum per lot, and the tax on any one
lot shall not exceed five dollars per annum but the taxes may be
levied upon each lot in the first instance for a sum sufficient for
the improvement and care of the lot, but no greater sum than five
dollars shall be collected in any one year. The whole tax levied may
be collected in sums of five dollars in successive years in the manner
herein provided. :
2. Notice of such tax shall be served on the lot owners or where
two or more persons are owners of the same lot, on one of them
either personally, or by leaving it at his residence, with a person of
mature age and discretion, or by mail, if he resides in a city. town
or village where the office of the corporation is not located, or in
case the residence or whereabouts of the owner can not be ascer-
tained, by publication once a week for four successive weeks ina
newspaper published in the town where such cemetery is located
or if no newspaper is published in such town then in some newspaper
published in the county where such cemetery is located.
2. If such tax remain unpaid for more than thirty days after
the service of such notice, the president and secretary of the corpora-
tion may issue a warrant to the treasurer of the corporation. requir-
ing him to collect such tax in the same manner as school collectors
are required to collect school taxes; and such treasurer shall baw
the same power and be subject to the same liabilities in executing
such, warrant as a collector of school taxes has or is subject to ke
law in executing a warrant for the collection of school taxés. Bo
Le If the taxes so levied remain unpaid for five years after the
levying of such tax the amount thereof with interest shall be a
lien on the unused portion of the lot which is subject to such tax
43
and no portion of the lot so taxed shall be used by the owner
thereof for burial purposes, while any such tax remains unpaid.
5. If at the expiration of five years from the date of the service
of the first notice of assessment as herein provided, any such assess-
ment or the interest thereon shall remain unpaid, the corporation
may sell the unused portion of such lot at public auction upon the
cemetery grounds, in the following manner: If the person owning
such lot resides within the state, a written notice, under the seal
of such cemetery corporation, if it have a seal, and the hand of the
president or secretary thereof, stating the amount of such tax or
taxes unpaid and that such unused portion of such lot will be sold
at a time therein to be specified, not less than twenty days from the
date of the service of such notice, shall be personally served upon
such owner; if such owner is not a resident of the state, or if the
place of his residence can not with due diligence be ascertained,
or if, for any other reason satisfactory to the court, personal service
can not with due diligence be made upon such owner, such cemetery
corporation, or any of its officers, may present a duly verified
petition stating the facts to the county court of the county in which
such cemetery lands are situated, or to the supreme court, and such
court may upon satisfactory proof, by its order, direct the service
of such notice in the manner provided by the civil practice act, for
the substituted service of a summons. The president or secretary
of such corporation, or any suitable and proper person appointed
by it or by the court, upon filing proof of publication and service of
such notice as provided by section sixty-one of the surrogate’s court
act may make such sale, and such sale may be adjourned from time
to time for the accommodation of the parties or for other proper
reasons. Previous notice of such sale shall be posted at the main
entrance of the cemetery. Prior to such sale such corporation shall
cause such lot to be resurveyed and replatted showing the part
thereof not used for burial purposes and only such unused portion
shall be sold. The cemetery corporation may at any such sale pur-
chase any such lots or parts of lots. The surplus remaining after
paying all assessments, interest, cost and charges shall be set aside
by the corporation, as a fund for the care and improvement of the
portion of such lot that has been used for burial purposes. In case
the proceeds of such sale shall amount to more than thirty dollars
the person making it shall make his report, under oath, to the court,
of the proceedings and shall state the amount for which such lot
was sold and that it was sold to the highest responsible bidder,
together with the names of the purchasers, and the court may and
in a proper case shall, by order, confirm the sale; in all other cases
the person making such sale shall file in the office of the county
clerk of the county in which the cemetery lands are situated a like
report duly verified; on the filing of such order of confirmation
or such report, as the case may be, the ownership of the unoccupied
portion of such lot shall vest in the purchaser thereof.
6. The directors of any such corporation may make a contract
with a lot owner which shall provide for the payment by him of an
44
agreed gross sum in lieu of further taxes and assessments and that
upon the payment of such gross sum the lot of such owner shall
be thereafter exempt from taxes and assessments.
§ 20. Sections ninety-one and ninety-two of such law, section
ninety-one having been amended. by chapter one hundred sixty-five
of the laws of nineteen hundred forty-five, and section ninety-two
having been amended by chapter one hundred sixty-four of the
laws of nineteen hundred forty-five, are hereby amended to read,
respectively, as follows:
§ 91. Perpetual care of lots. [Every cemetery corporation sub-
ject to the provisions of this article shall adopt a reasonable and
uniform scale of prices to be charged for the perpetual care of all
lots in its cemetery, which shall be separate from and in addition
to the amount fixed as the price of such lots, and upon] Upon the
application of a prospective purchaser of any [such] lot, plot or
part thereof and upon payment of the purchase price and the
amount fixed as a reasonable charge for the perpetual care of
[the] any lot, plot or part thereof, every cemetery corporation shall
include in the deed of conveyance an agreement perpetually to care
for such lot, plot, or part threof, to the extent that the income
derived by the corporation from such amount will permit. Such
corporation also, upon the application of an owner of any lot and
upon the payment of the amount fixed as a reasonable charge for
the perpetual care of such lot, shall enter into a like agreement
with him. Such agreement shall be executed and may be recorded
in the same manner as a deed. Any corporation organized under or
subject to the provisions of this article which maintains and has
set up a perpetual care fund for the perpetual care of lots in its
cemetery may enter into an agreement in writing with any executor
or executors, trustee or trustees, under a last will and testament to
whom there has heretofore been, or may hereafter be, bequeathed
a sum for the perpetual care of any lot, [or lots] plot or part
thereof in any such cemetery or with any administrator or adminis-
trators with the will annexed under any such will perpetually to
care for such lot, [or lots] plot or part thereof under the provisions
of the terms of such last will and testament, and subject in all cases
to the approval of the surrogate’s court having jurisdiction over
such trust estate. Such approval may be evidenced by the written
endorsemient of the surrogate on a duplicate original of such agree-
ment filed in the surrogate’s court. In case the surrogate shall
approve such agreement any such executor, trustee or administrator
with the will annexed thereupon shall pay over to the treasurer of
such perpetual care fund of such cemetery association any moneys
§ 92. . [Disposition of moneys paid for care of burial lots]
Perpetual care fund. 1. Every cemetery corporation [subject to
45
the provision of this article, every other cemetery fe a
association] and every religious corporation having eae a :
control of a cemetery, which heretofore has been or whic aor
after may be used for burials shall keep separate and ig a
its other funds, all moneys and property received by it, whether by
contract, in trust or otherwise, for the perpetual care and sheds
tenance of any lot, plot or part thereof in its cemetery. pee
and property so received shall be kept in a separate fun ‘ 4
known as the perpetual care fund. Such perpetual care ew :
hereby declared to be and shall be held by the DO OO ee
fund. The [funds so received] principal of such fun xe
invested within a reasonable time after receipt thereof, anc €P
invested [only] in such securities [authorized by law for the ae
ment of trust funds] as are permitted for investment by savings
banks or in a savings and loan association or in a federal seen
and loan association organized under the home owner's loan ee
of nineteen hundred thirty-three, as amended, having its principal
place of business in the State of New York, and the OVE AGUS
therefrom shall be used solely for the perpetual care an ong
tenance of the lot or lots or parts thereof for which such income has
been provided. The officers of the corporation shall keep ee
accounts of such funds separate and apart from its other fun S.
On or before the thirty-first day of January in each calendar Js
the officers of the corporation shall fix and determine that por sam
of the income on the investment of the principal of Berens
care fund during the calendar year immediately pain to be
apportioned to each separate lot or part thereof for sigs a per-
petual care agreement has been made. The cost during suc Hoigeins
calendar year of the care of each lot or part thereof shall be , o-
cated and charged against the income so apportioned to ut we
excess of the income so apportioned over and above the a tag
cost of the care and maintenance of such lot or part thereof shall be
credited to such lot or part thereof, to be used im any future hie
to make up the deficiency if the income apportioned to pe vt
or part thereof should, in any such future year, fall below the cost
of.
1 eee the thirty-first day of January in each detect
year every cemetery corporation shall file with the cemetery fies :
an accounting and report concerning the perpetual care le as
such previous calendar year. A copy of such accounting and repor
shall be at all times available at the office of the corporation, during
usual business hours, for inspection and copy by any lot owner or
his representative.
§ 21. Section ninety-seven of such law is hereby amended to
read as follows:
§ 97. Certificates of indebtedness. 1. If a cemetery corporation
be indebted for lands purchased for cemetery purposes, or for
services rendered or materials furnished in [preserving or improv-
ing] connection with the necessary and proper preservation or
46
improvement of its cemetery, the directors, by the concurring vote
of a majority of their whole number, with the consent of the
creditor to whom such indebtedness is owing, may issue certificates
under the corporate seal, signed by the president and secretary, for
such amount, payable at the times and at the rate of interest agreed
on but not to exceed six per centum per annum; provided however
that there be first obtained from the cemetery board an order
approving the issuance of such certificates. Such approval shall be
gwen by the cemetery board only if it determines that the amount
of the certificates proposed to be issued does not exceed the fair
and reasonable value of the services rendered or materials furnished
or the purchase price of real property as fixed in accordance with
section eighty-seven hereof. No certificate issued after the time
when this section as hereby amended takes effect shall be valid or
enforceable unless there has first been issued by the cemetery board
an order of approval as herein provided. No certificate shall be for
less than one hundred dollars[[, nor at a rate of interest higher than
that authorized by law]. The certificate shall be transferable by
delivery, unless therein otherwise provided. :
igo ine directors shall keep an account of the number and amount
of such certificates, the persons to whom issued, the date of maturity
the rate of interest and the purpose for which the same were issued.
Within sixty days after the time when this section as hereby
amended takes effect, each cemetery corporation shall file with the
cemetery board a verified copy of such account. On or before the
thirty-first day of January in each succeeding calendar year, each
cemetery corporation shall file with the cemetery board a verified
statement setting forth all changes in such account during the pre-
vious calendar year.
3. The directors shall set aside from the proceeds of sales of
lots, [and plats,] plots and parts thereof such sums to pay such
certificates at maturity as they deem necessary. Until the certificates
are paid the holders thereof shall be entitled at all meetings of the
corporation, to one vote for each one hundred dollars of the indebt-
edness remaining unpaid. The certificates shall not be a lien u on
any lot, plot or part thereof belonging to a lot owner.
¢ oy ee
re e pum law is hereby amended by inserting in article nine
‘3 oe : our new eae to be sections one hundred six, one
undred seven, one hundred eight and one hundred eight-a. to
respectively, as follows: en ee
§ 106. Judicial review. Any order or determination of the
cemetery board made pursuant to any section of this article shall
be subject to review by the supreme court in the manner provided
by article seventy-eight of the civil practice act; provided, however
that an application for review of such order must be made within
thirty days from the date of the filing of such order, and provided
further that no stay shall be granted pending the determination of
the matter except on notice to the cemetery board and for a period
not exceeding thirty days. Proceedings to review such order shall
ho eutitled ta a preference. “
47
§ 107. Reports; payments; penalties. 1. To defray the expenses
of examination and administration, each cemetery corporation shall,
at the time of filing its accounting and report as to its permanent
maintenance fund, but not later than January thirty-first in each
calendar year, pay to the cemetery board the sum of three dollars
for each acre or fraction thereof of land used by the corporation
for cemetery purposes, or five per cent of the gross income of the
cemetery, which ever is less, but in no event shall the sum paid
exceed one thousand dollars.
2. Any cemetery corporation or individual failing to file any
report or any schedule of rules, regulations and charges required by
this article shall forfeit to the people of the state the sum of one
hundred dollars for each day that each such report shall be delayed
or withheld, except that the cemetery board may extend the time
for filing any such report and may waive payment of any penalty
or part thereof provided herein.
3. The cemetery board may address to any cemetery corporation
or its officers or any person any inquiry in relation to the transac-
tions or conditions of the cemetery corporation or any matter
connected therewith, and may require that a reply be verified. Failure
to submit such reply within the time designated by the cemetery
board shall subject the corporation, officer or person so addressed to
the penalties provided in subdivision two hereof.
4. Wherever under the provisions of this article a person violat-
ing any part thereof is deemed to be guilty of a misdemeanor and
no specific penalty is provided, the penalty for each separate viola-
tion shall be imprisonment for not more than six months or a fine of
not more than five hundred dollars, or both.
§ 108. Powers and duties of the cemetery board. With respect
to any cemetery or cemetery corporation, the cemetery board shall
have the following duties and powers:
1. To adopt such reasonable rules and regulations as the ceme-
tery board shall deem necessary for the proper administration of
this article.
2. To order any cemetery corporation to do such acts as may
be necessary to comply with the provisions of this article or any
rule or regulation adopted by the cemetery board or to refrain
from doing any act in violation thereof.
3. To enforce its orders by mandamus or injunction in a sum-
mary proceeding or otherwise.
4. To maintain a civil action in the name of the people of the
state to recover a judgment for a money penalty imposed under the
provisions of this article.
§ 108-a. Actions affecting cemetery corporations. In any action
or proceeding affecting or instituted by any cemetery corporation
the cemetery board shall be served with notice thereof in the same
manner as any necessary party and shall take such steps m the
action or proceeding as it may deem necessary to protect the public
interest.
|
|
}
48
§ 23. The penal law is hereby amended by inserting therein two
new sections, to be sections four hundred forty-nine and four hun-
dred fifty, to read, respectively, as follows:
_§ 449. Cemetery to state true location. Any cemetery corpora-
tion or employee or agent thereof that shall advertise in a news-
paper, magazine or other publication or in the form of a book,
notice, circular, pamphlet, letter, poster, card, or over any radio
station, or in any other way for the purpose of selling lots, plots or
parts thereof in its cemetery shall in such advertisement state the
actual location and address of the cemetery grounds, including the
city, town or village, and the county and state. A violation of
the provisions of this section shall constitute a misdemeanor and
shall be punishable by a fine of not more than five hundred dollars
or not more than six months imprisonment or both.
§ 450. Unauthorized charges in connection with burial permits.
It shall be unlawful for a society or fraternal organization or a
representative thereof to obtain, receive, or exact or attempt to
obtain, receive, or exact, a fee or thing of value in addition to the
regular dues or charges required to be paid pursuant to the by-laws,
constitution, or rules of such society or fraternal organization as a
condition to granting a permit for or consent to burial. A violation
of this section shall constitute a misdemeanor and shall be punish-
able by a fine of not more than five hundred dollars or not more
than six months imprisonment or both.
§ 24. Section six hundred sixty-three-a of the penal law, as
added by chapter three hundred ninety-seven of the laws of nineteen
hundred twenty-seven, is hereby amended to read as follows:
§ 663-a. Foreign corporations doing business in this state with-
out authority. A foreign corporation, however designated, which
shall do business in this state by carrying on therein any kind of
educational institution, or hospital, or lying-in asylum, or home for
convalescents, or for invalids, or for juvenile delinquents, or for
aged or indigent persons, or institution for the care of children. or
for the care and treatment of the insane or mentally defective
or which shall do business in this state in the selling or offering
for sale of cemetery lots, plots or parts thereof, whether located
within or without this state, without a certificate of authority from
the secretary of state issued in conformity with the requirements of
the general corporation law, and any director, trustee, officer, man-
ager, or superintendent of such corporation engaged in doing its
business in this state, is guilty of misdemeanor. 2
§ 25. The state departments law is hereby amended by inserting
therein a new section, to be section one hundred ninety-eight, to
read as follows: :
~§ 198. The division of cemeteries. There is hereby created in
the department of state a division of cemeteries, in addition to the
other divisions in such department provided by law. The head of
49
such division shall be the cemetery board provided for in article
nine of the membership corporations law.
§ 26. The stock corporation law is hereby amended by inserting
in article two thereof a new section, to be section nine-a, to read
as follows:
§ 9-a. Cemetery corporations. No corporation shall be organized
under the provisions of this article for the purpose of owning,
operating or managing a cemetery, or for the purpose of selling or
conveying lots, plots, or parts thereof in any cemetery.
§ 27. If any word, phrase, clause, sentence, paragraph, section
or part of this act shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder or any other part or portion of this act,
but shall be confined in its operation to such portion, section, sec-
tions, or parts hereof directly involved in the controversy in which
such judgment shall have been rendered.
§ 28. The sum of fifty thousand dollars ($50,000), or so much
thereof as may be necessary, is hereby appropriated to the division
of cemeteries in the department of state from any moneys in the
state treasury in the general fund to the credit of the state purposes
fund, and not otherwise appropriated, for the expenses of such
division in carrying out the provisions of article nine of the mem-
bership corporations law, as amended by this act, including personal
service, operation and maintenance and travel expenses, during the
fiscal year ending March thirty-first, nineteen hundred fifty, payable
on the audit and warrant of the comptroller in the manner provided
by law.
§ 29. This act shall take effect September first, nineteen hundred
forty-nine.
Ss Pi EY
Saeko
— ae
