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Annotated consolidated laws of the state of New York as amended to January 1, 1918 : containing also the federal and state constitutions with notes of Board of statutory consolidation, tables of laws and index online

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Online LibraryNew York (State)Annotated consolidated laws of the state of New York as amended to January 1, 1918 : containing also the federal and state constitutions with notes of Board of statutory consolidation, tables of laws and index → online text (page 49 of 137)
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powers of boards of health in towns. Morton v. St. Patrick's R. C. Church Society
(1907), 56 Misc. 71, 105 N. Y. Supp. 1100.

Duty to protect grave. — No such duty is imposed upon the corporation in the
absence of a statutory requirement or express contract to do so. Therefore, the
corporation is not liable in damages to the relatives of a decedent whose body was
stolen from a grave. Coleman v. St. Michael's Protestant Church (1915), 170 App.
Div. 658, 155 N. Y. Supp. 1036.

§ 8. Lot owners' rights. — Lots in such cemeteries shall be held indi-
visible, and upon the decease of a proprietor of such lot the title thereto
shall descend to his heirs-at-law or devisees, subject, however, to the fol-
lowing limitations and conditions: If he leaves a widow and children,
they shall have in common the possession, care and control of such lot
during her life. If he leaves a widow and no children, she shall have the
possession, care and control of such lot during her life. If he leaves chil-
dren and no widow, they, or the survivor of them, shall in common have
the possession, care and control of such lot during the life of the survivor
of them. The parties having such possession, care and control of such lot



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RELIGIOUS CORPORATIONS LAW. 7599

L. 1909, ch. 53. General proYlsions. { 9.

during the term thereof, may erect a monument and make other permanent
improvements thereon. The widow shall have the right of interment, for
her own body in such lot, or in a tomb in such lot and a right to have her
body remain permanently interred or entombed therein, except that her
body may be removed therefrom to some other family lot or tomb with the
consent of her heirs. 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 designate in writing to the religious corporation which of their num-
ber shall represent the lot, and on their failure to designate, the board of
trustees or directors of the corporation shall enter of record which of said
parties shall represent the lot, while such failure continues. The widow
may at any time release her right in such lot, but no conveyance or devise
by any other person shall deprive her of such right.

Source.— U 1869, ch. 727, § 4, as added by L. 1898, ch. 543, { 1.

Coniolidators' note. — ^L. 1869, ch. 727, was an act entitled "An act authorizing
cities and villages to acquire titles to property for burial purposes and to levy
taxes for the pasnoient of the same." It was amended by L*. 1870, ch. 760, being
a substantial re-enactment of the statute of 1869, and adding a new section, § 3.
Section 1, of L. 1870, ch. 760, was amended by L*. 1873, ch. 452, which latter statute
also re-enacted § 2, of L. 1870, ch. 760. This series of statutes was amended finally
by L*. 1898, ch. 543, by adding §{4 and 5. The original act prior to the amend-
ment of 1898, was applicable to cities, incorporated villages and incorporated rural
cemetery associations. The statute therefore has been consolidated in the General
Municipal Law covering cities and villages and has been considered as covered
by the provisions of the Membership Corporations Law. The act of 1898 which
added a new section to the original statutes made that section applicable to ceme-
tery corporations mentioned in the original acts and to cemetery corporations
provided for in art. 3, of the Membership Corporations Law, and cemeteries be-
longing to religious corporations. The provisions of the statutes of 1898, there-
fore, have been consoUdated in the Membership Corporations Law and in the
Religious Corporations Law. Thus aU of the provisions of the statute of 1869
and its amendments have been provided for and aU of the statutes have been
repealed in their respective consolidated laws.

Removal of bodies. — ^The provisions of the above section authorizing the removal
of the body of a widow from a cemetery lot, "to some other family lot or tomb
with the consent of her heirs" do not entitle the children of a woman who was
buried in a cemetery owned by a religious corporation. In the portion thereof set
apart from persons who did not own a family lot, to exhume the body and reenter
It beside the remains of her husband in a family lot subsequently purchased by
them in another cemetery. Matter of Cohen (1902), 76 App. Div. 401, 78 N. Y.
Supp. 417.

§ 9. Bemoval of human remains from one cemetery of a religious cor-
IK)ration to another cemetery owned by it. — ^A religious corporation, not-
withstanding the restrictions contained in any conveyance or devise to
it, may remove the human remains buried in a cemetery owned by it,
or when such church corporation is situated outside of a city in the
grounds surrounding the church belonging to such corporation, to an-
other cemetery owned by it, or to a plot or lot acquired by it in any other
cemetery located in the same town, or in a town adjoining the town or



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7600 RELIGIOUS CORPORATIONS LAW.

{ 10. General proylsions. L*. 1909, ch. 53.

city in which the cemetery wherein such human remains are buried is
located, if the trustees thereof so determine, and if either three-fourths of
the members of such corporation, qualified to vote at its corporate meet-
ings, sign and acknowledge and cause to be recorded in the office of the
clerk of the county in which such cemetery or a part thereof is situated,
a written consent thereto, or if three-fourths of the members of such cor-
poration qualified to vote, and present and voting, at a corporate meeting
of such corporation, specially called for that purpose, shall approve
thereof. But if such corporation be a church, previous notice of the ob-
ject of such meeting shall be published for at least four successive weeks
in a newspaper of the town, village or city in which the cemetery from
which the removal is proposed, is situated, or if no newspaper is pub-
lished therein, then in a newspaper designated by the county judge of such
county. Such removal shall be made in an appropriate manner and in
accordance with such directions as to the manner thereof, as may be
given by the board of health of the town, village or city in which the
cemetery from which the removal is made, is situated. All tombstones,
monuments or other erections at or upon any grave from which any re-
mains are removed, shaU be properly replaced or raised at the grave where
the remains are reinterred. {Amended hy L. 1915, cfe. 213.)

Source. — ^Former Religious Corp. L*. (L. 1895, eh. 723) { 8, as amended by Jm
1905, ch. 324; originally revised from L*. 1842, eh. 215, § 2; L*. 1878, eh. 349, as
amended by L. 1887, ch. 600.

Bight of removal. — In the absence of a regulation adopted by a religious corpo-
ration as to who shall determine the right to remove a body buried in its cemetery
the question will be determined by the court upon equitable grounds. If a body
is interred with an intent to remove it equity will enforce the right of removal.
Cohen v. Congregational Shearith Israel (1906), 114 App. Div. 117, 99 N. Y. Supp.
732, afld. (1907), 189 N. Y. 528, 82 N. B. 1125.

§ 10. Acquisition of property by two or more religpions corporations for a
common parsonage. — Two or more religious corporations may acquire such
real property as may be necessary for use as a parsonage, and the right,
title and interest of each corporation therein shall be in proportion to its
contribution to the cost of such property. The trustees of each corpora-
tion shall, from time to time, appoint one of their number to be a trustee
of such common parsonage property, to hold ofBce during the pleasure of
the appointing trustees or until his successor be appointed. The trustees
so appointed shall have the care and management of such property and
may make such improvements thereupon as they deem necessary, and de-
termine the proportion of the expense of the maintenance thereof which
each corporation shall bear. If at any time either of such corporations ac-
quires or desires to acquire for its own exclusive use as a parsonage other
real property, it may, in pursuance of the provisions of law, relating to
the disposition of real property by religious corporations, sell and convey
its interest in such common parsonage property to any one or more of the
other corporations having an interest therein.



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RELIGIOUS CORPORATIONS LAW. 7601

L. 1909, ch. 53. General provisions. S$ 11, 12.

Souroe. — ^Former Religions Corp. L. (L. 1895, ch. 723) { 9; originally revised
from L. 1875, ch. 408.

§ 11. Correotion and oonflrmation of oonveTanoes to religions corpora-
tions. — If, in a conveyance of real property, or in any instrument intended
to operate as such, heretofore or hereafter made to a religious corporation,
its corporate name is not stated or is not correctly stated, but such con-
veyance or instrument indicates the intention of the grantor therein to
convey such property to such corporation, and such corporation has entered
into possession and occupation of such property, any oflScer of the corpora-
tion authorized so to do by its trustees may record in the oflSce where such
conveyance or instrument is recorded a statement, signed and acknowledge^
by him or proved, setting forth the date of such conveyance or instrument,
the date of record and the number and page of the book of record thereof,
the name of the grantor, a description of the property conveyed or intended
to be conveyed, the name of the grantee as expressed in such conveyance or
instrument, the correct name of such corporation, the fact of authoriza-
tion by the trustees of the corporation, to make and record such state-
ment, and that the grantor in such conveyance or instrument intended
thereby to convey such property to such corporation as the said officer verily
believes, with the reason for such belief. Such statement so signed and
acknowledged or proved shall be recorded with the records of deeds in such
office, and indexed as a deed from the grantee as named in such instrument
or in such conveyance to such corporation. The register or clerk, as the
case may be, shall note the recording of such statement on the margin of
the record of such conveyance, and for his services shall be entitled to re-
ceive the fees allowed for recording deeds. Such statement so recorded
shall be presumptive evidence that such matters therein stated are true,
and that such corporation was the grantee in the original instrument or
conveyance. All conveyances heretofore made, or by any instrument in-
tended to be made, to a religious corporation of real property appropriated
to the use of such corporation, or entitled to be so appropriated, are hereby
confirmed and declared valid and eflfectual, notwithstanding any defect
in the form of the conveyance or the description of the grantee therein.

Bonroe.— Former Religious Corp. L. (L. 1895, ch. 723) § 10, as amended by L,
189«, ch. 336; originally revised from L. 1863. ch. 45. § 1, subd. 5 (Roman Cath-
olic); L. 1871, ch. 12, { 1, subd. 5 (Greek); L. 1888, ch. 459 (corporations gen-
erally).

§ 12. Sale, mortgage and lease of real property of religions corporations.
— ^A religious corporation shall not sell or mortgage any of its real property
without applying for and obtaining leave of the court therefor pursuant
to the provisions of article four of the general corporation law. The
trustees of an incorporated Protestant Episcopal church shall not vote
upon any resolution or proposition for the sale, mortgage or lease of its
real property, unless the rector of such church, if it then has a rector,
shall be present, and shall not make application to the court for leave



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7602 RELIGIOUS CORPORATIONS LAW.

§ 12. General provisions. L. 1909, ch. 53.

to sell or mortgage any of its real property without the consent of the
bishop and standing committee of the diocese to which such church be-
longs; but in case the see be vacant, or the bishop be absent or unable
to act, the consent of the standing committee with their certificate of the
vacancy of the see or of the absence or disability of the bishop shall suffice.
The trustees. of an incorporated Roman Catholic church shall not make
application to the court for leave to mortgage, lease or sell any of its real
property without the consent of the archbishop or bishop of the diocese
to which such church belongs or in case of their absence or inability to
act, without the consent of the vicar-general or administrator of such
diocese. The trustees of an incorporated Ruthenian Catholic church of
the Greek rite shall not make application to the court for leave to mort-
gage, lease or sell any of its real property without the consent in writing
of the Ruthenian Greek Catholic bishop of the diocese to which such
church belongs or, in case of his absence or inability to act, without the
consent of. the vicar-general of such bishop or of the administrator of
such diocese. The petition of the trustees of an incorporated Protestant
Episcopal church or Roman Catholic church shall, in addition to the
matters required by article four of the general corporation law to be set
forth therein, set forth that this section has also been complied with. But
lots, plats or burial permits in a cemetery owned by a religious corpora-
tion may be sold without applying for or obtaining leave of the court.
No cemetery lands of a religious corporation shall be mortgaged while
used for cemetery purposes. Except as otherwise provided in this chapter
in respect to a religious corporation of a specified denomination, any
solvent religious corporation may, by order of the supreme court, obtained
as above provided in proceedings to sell, mortgage or lease real property,
convey the whole or any part of its real property to another religious cor-
poration, for a consideration of one dollar or other nominal consideration,
and for the purpose of applying the provisions of article four of the gen-
eral corporation law, a proposed conveyance for such consideration shall
be treated as a sale, but it shall not be necessary to show, in the petition
or otherwise, nor for the court to find, that the pecuniary or proprietary
interest of the grantor corporation will be promoted thereby; and the
interests of such grantor shall be deemed to be promoted if it appears
that religious or charitable objects generally are conserved by such con-
veyance ; provided, however, that such an order shall not be made if tend-
ing to impair the claim or remedy of any creditor. If a sale or mortgage
of any real property of any such religious corporation has been hereto-
fore or shall be hereafter made and a conveyance or mortgage executed
and delivered without the authority of a court of competent jurisdic-
tion, obtained as required by law, or not in accordance with its directions,
the court may, thereafter, upon the application of the corporation, or of
the grantee or mortgagee in any such conveyance or mortgage or of any
person claiming through or under any such grantee or mortgagee, upon



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RELIGIOUS CORPORATIONS LAW. 7603

U 1909, ch. 53. General provisions. § 12.

such notice to such corporation, or its successor, and such other person or
persons as may be interested in such property, as the court may pre-
scribe, confirm said previously executed conveyance or mortgage, and
order and direct the execution and delivery of a confirmatory deed or
mortgage, or the recording of such confirmatory order in the office where
deeds and mortgages are recorded in the county in which the property is
located; and upon compliance with the said order such original convey-
ance or mortgage shall be as valid and of the same force and effect as if
it had been executed and delivered after due proceedings had in accordance
with the statute and the direction of the court. But no confirmatory
order may be granted unless the consents required in the first part of this
section for a Protestant Episcopal or Roman Catholic church have first
been given by the prescribed authority thereof, either upon the original
application or upon the application for the confirmatory order. {Amended
hy L. 1912, ch. 290, L. 1913, ch. 128 and L. 1917, ch. 353, in effect May 3,
1917.)

Source.— Former Religious Corp. L. (L*. 1895, ch. 723) g 11, as amended by L.
1896, ch. 366; L. 1900, ch. 521; L. 1901, ch. 222; L. 1902, ch. 208, and Lr. 1908, ch.
363; originally revised from L. 1813, ch. 60, J 1, subd. 15, as amended by L*. 1868,
ch. 803 (Episcopal); L. 1813, ch. 60, § 11, as amended by L. 1890, ch. 424 (cor-
porations generally); L. 1842, ch. 215, § 1 (corporations generally); L*. 1879,
ch. 310, § 1 (corporations generally).

Beferenoes. — Proceedings for sale of corporate real property. See General Cor-
porations Law, SI 70-76.

AppUoatlon. — ^Thls section refers only to the procedure necessary in the case of
a voluntary sale or disposition by a religious corporation of Its own property. The
fact that a religious corporation is the holder of one or more undivided shares of
property does not forbid the maintenance of an action In partition. New York
Home M. Society v. First F. Baptist Church (1911), 73 Misc. 128, 130 N. Y. Supp.
879.

Object. — ^The object of the statute in requiring a religious corporation to obtain
leave of the court before conveying Its real property, is to protect the society and
its members from loss through unwise bargains, and to prevent perversion of the
association's property. Muck v. Hitchcock (1914), 212 N. Y. 283, 106 N. E. 75.

At oommon law a religious corporation could not sell its real property without
leave of court Muck v. Hitchcock (1912), 149 App. Dlv. 323, 134 N. Y. Supp. 271,
revd. (1914), 212 N. Y. 283, 106 N. E. 75.

JTot applicable to foreign corporations. — ^The words of this section prohibiting
religious corporations from selling their real property without leave of the court
should be limited to domestic corporations. The prohibition does not extend to
foreign corporations. Muck v. Hitchcock (1914), 212 N. Y. 283, 106 N. B. 75; In re
Hefron Co. (1914), 216 Fed 642, 648.

Conitmotion Is binding on Federal Court. — In re Hefron Co. (1914), 216 Fed
642, 648.

Power to sell or mortgage real property is dependent on statute. Mad. Ave.
Bap. Ch. V. Bap. C^h. in Olive St. (1871), 46 N. Y. 131; Bogardus v. Trinity Ch.
(1833), 4 Paige 178, afld. (1835), 15 Wend. Ill; De Ruyter v. St. Peter's Ch. (1848),
3 Barb. Ch. 119, affd. (1850), 3 N. Y. 238. Formerly held otherwise as to mort-
gage. Manning v. Moscow, etc., Soc. (1858), 27 Barb. 52; Battell v. Torrey (1875),
Vol. VII— 22



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7604 RELIGIOUS CORPORATIONS LAW.

§ 13. General provisions. L». 1909, cb. 63.

65 N. Y. 294; Riggs v. Parsell (1901), 66 N. Y. 193. But see Matter of Churcli
of the Messiah (1890), 25 Abb. N. C. 354, 12 N. Y. Supp. 489, and note.

RemoYal of edifloe from lot to another. Consent of court not necessary. Mat-
ter of Second Bap. Soc. (1851), 20 How. Pr. 324.

Absolute sale of pew. — Consent of court necessary. Matter of Ref. Ch. in Sau-
gerties (1853), 16 Barb. 237.

Leave of court to sell or mortgage is not required where lands are devised to
a religious corporation which the testator, before his death, contracted to sell
and convey. Edelstein v. Hays (1906), 50 Misc. 130, 100 N. Y. Supp. 403.

Sui&ciency of consideration. — Sale to another religious corporation may be ordered
on the latter assuming the incumbrances thereon, and the floating debts of grantor
corporation. Lynch v. Pfeifter (1886), 38 Hun 603, aftd. (1888), 110 N. Y. 33,
17 N. E. 402.

Trustees may make application.— Matter of St. Ann's Ch. (1862), 14 Abb. Pr. 424;
The Mad. Ave. Bap. Ch. v. Bap. Ch. in Olive St. (1871), 46 N. Y. 131.

Disposition of proceeds. — Order should direct. Matter of Reformed Ch. In Sau-
gertles (1853), 16 Barb. 237; Matter of Ch. of the Messiah (1890), 25 Abb. N. C. 354,
12 N. Y. Supp. 489.

Executory contracts may be enforced after consent is procured. Bowen v. The
Irish Pres. Congregation (1860), 19 Super. (6 Bosw.) 245; Congregation Beth. Elo-
him V. Central Pres. Ch. (1871), 10 Abb. Pr. N. S. 484.

Proceeding to sell church property; stay. — ^Application was made for an order
vacating a stay of proceedings instituted by a religious corporation for the purpose
of selling church property. Two actions, one in ejectment, one in equity, are
pending and involve the conflicting claims of the parties. Under all the circum-
stances, held, that the court should not vacate the stay, although circumstances may
hereafter justify it in doing so. Matter of Westminster Presbyterian CHtiurch
(1915), 168 App. Div. 823, 154 N. Y. Supp. 361.

Rescinding sale. — ^Where a religious corporation sells its real estate without
leave of court it is entitled to a decree rescinding sale upon offering to return the
consideration. Associate Presbyterian Congregation v. Hanna (1906), 113 App.
Dlv. 12,. 98 N. Y. Supp. 1082.

Action to set aside sale.— Watkins v. Wilcox (1876), 66 N. Y. 654.

§ 13. Consolidation of incorporated churches. — Two or more incorporated
churches may enter into an agreement, under their respective corporate
seals, for the consolidation of such corporation, setting forth the name of
the proposed new corporation, the denomination, if any, to which it is to
belong, and if the churches of such denomination have more than one method
of choosing trustees, by which of such methods the trustees are to be chosen,
the number of such trustees, the names of the persons to be the first trustees
of the new corporation, and the date of its first annual corporate meeting.
Such agreement shall not be valid unless approved by the governing body
of the denomination, if any, to which each church belongs, having jurisdic-
tion over such church. Each corporation shall thereupon make a separate
petition to the supreme court for an order consolidating the corporations,
setting forth the denomination, if any, to which the church belongs, that
the consent of the governing body to the consolidation, if any, of that
denomination having jurisdiction over such church has been obtained, the
agreement therefor, and a statement of all the property and liabilities and



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RELIGIOUS CORPORATIONS LAW. 7605

L. 1909, cb. 53. General provisions. | 14.

the amount and sources of the annual income of such petitioning corpora-
tion. In its discretion the court may direct that notice of the hearing of
such petition be given to the parties interested therein in such manner and
for such time as it may prescribe. After hearing all the parties interested,
present and desiring to be heard, the court may make an order for the
consolidation of the corporations on the terms of such agreement and such
other terms and conditions as it may prescribe, specifying the name of
such new corporation and the first trustees thereof, and the method by
which their successors shall be chosen and the date of its first annual corpo-
rate meeting. When such order is made and duly entered, the persons
constituting such corporations shall become an incorporated church by,
and said petitioning churches shall become consolidated under, the name
designftted in the order, and the trustees therein named shall be the first
trustees thereof, and the future trustees thereof shall be chosen by the
method therein designated, and all the estate, rights, powers and property
of whatsoever nature belonging to either corporation shall without further
act or deed be vested in and transferred to the new corporation as eflfectually
as they were vested in or belonged to the former corporations ; and the said
new corporation shall be liable for all the debts and liabilities of the former
corporations in the same manner and as effectually as if said debts or
liabilities had been contracted or incurred by the new corporation. A
certified copy of such order shall be recorded in the book for recording
certificates or incorporation in each county clerk's office in which the certifi-
-GBte of incorporation of each consolidating church was recorded; or if no
such certificate was so recorded, then in the clerk's office of the county
in which the principal place of worship or principal office of the new
corporation is, or is intended to be, situated.

Source. — ^Former ReUgious Corp. L*. (L. 1895, eh. 723) § 12, as amended by L.
1896, ch. 56; originaUy revised from L. 1874, eh. 37; L. 1875, eh. 209; L. 1876, eh.



Online LibraryNew York (State)Annotated consolidated laws of the state of New York as amended to January 1, 1918 : containing also the federal and state constitutions with notes of Board of statutory consolidation, tables of laws and index → online text (page 49 of 137)