The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral. The motion here is not to strike out for irregularity. In some of the cases it is held that the rule sought by the moving party is confined to cases of irregularity, and that costs are only allowed in that class of cases. I do not feel inclined to follow any of the cases that hold that the party amending is, or may be, subject to payment of costs in any form under the statute. His right is secured to him by law to amend once, of course, without costs. The motion in this case should be denied, and the defendant allowed twenty days, after service of a copy of the order herein, to answer or demur, without costs of motion. SUPREME COURT. THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD COPPERS and others agt. THE TRUSTEES OF ST. PATRICK'S CATHEDRAL IN THE CITY OF NEW YORK. EDWARD COPPERS and others agt. THE TRUSTEES OF ST. PATRICK'S CATHEDRAL IN THE CITY OF NEW YORK. The right of sepulture - How far religious corporations may control and regulate interments in their burial grounds— Rights under contract or conveyance of burial plots — when mandamus the proper remedy. - A religious corporation has full power, when they have parted with no rights by conveyance or contract, to control and regulate interments in the grounds which they hold for that purpose; and if the doctrines of the church of such corporation forbid the burial of the bodies of any other religious persuasion, they may properly, in such cases, exclude those therefrom. In this case the defendants had entered into a contract or conveyance as follows: "Office of Calvary Cemetery, New York, December 1, 1873. Received from Mr. Denis Coppers, seventy-five dollars, being amount of purchase-money of a plot of ground, eight feet by eight, in Calvary Cemetery. D. Brennan, Superintendent, &c. :" Held, that, looking at the objects and purposes for which the defendants held and owned the lands known as Calvary Cemetery," and the lan The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral. guage of the instrument, it is reasonably clear that the writing was intended to confer not merely the use of, or easement in, the land, for the purposes of burial, but to convey the ownership of the soil, not for any and every use, but for the sole and only one of burying the dead: Held, also, that where the owner of such a plot of ground had died, and his relatives sought to place his body in such plot, it is not in the power of such church corporation, to prevent its deposit therein, upon the ground that the deceased was of another religious persuasion, or for the reason that he was a member of the masonic or any other order. When vaults or burying lots have been conveyed by religious corpora tions, rights of property are conferred upon the purchasers. The right is like that to any other real estate, and it is as perfect without sepulture as it is where the grantee has used it for that purpose. Mandamus may properly issue where a religious corporation refuses or attempts to prevent the burial of a person in a plot of ground, for which he has paid the purchase-price and received a conveyance thereof from such corporation. It properly issues to compel a corporation to do that which, by law, it is required to do, especially when no other adequate remedy exists. New York Special Term, September, 1879. Charles W. Brooke, of counsel for Coppers and others. John E. Develin, T. J. Glover and T. G. Barry, of counsel for the trustees, &c. WESTBROOK, J.-The first of the above entitled matters is a proceeding by mandamus, instituted by three brothers, who are the nearest of kin to one Denis Coppers, deceased, with the exception of two minor children of the ages of nine and thirteen years respectively, to compel the interment by the respondents of the body of the said deceased in Calvary cemetery, in a lot purchased by him in his lifetime; and the second is an action brought by such brothers in this court to prevent the removal by the defendants of the body of said. Denis Coppers from the receiving vault of said cemetery, except for the purpose of burial, as is sought to be compelled by the first proceeding. The proceeding was originally instituted against “Calvary The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral. Cemetery, John Kelly, Hugh Moore and James O'Rourke, trustees and officers of said corporation, exercising the duties and functions of such officers, and being the committee on cemeteries of such corporation, as such officers, trustees and committee," and the action was brought against "Calvary Cemetery," but, by stipulation of counsel and the order of the court, "The Trustees of St. Patrick's Cathedral in the City of New York" were substituted as respondents in the proceeding and as defendants in the action, in lieu and in the place of those first made such. The defendants are a corporation, created by chapter 239 of the Laws of 1817 of this state, and are thereby empowered to hold certain real estate for the purposes mentioned in said act, and, among others, "the said cathedral and burying-place thereto adjoining." By virtue of chapter 87 of the Laws of 1864, the defendants also hold certain lands in the county of Queens for burial purposes, and those lands are known as "Calvary Cemetery." On the 1st day of December, 1873, the defendants executed and delivered to the said Denis Coppers, who was then living, but is now deceased, an instrument in writing, in the words and figures following, to wit: OFFICE OF CALVARY CEMETERY, NEW YORK, December 1, 1873. Received from Mr. Denis Coppers seventy five dollars, being amount of purchase-money of a plot of ground, 8 feet by 8 feet, in Calvary cemetery. Denis Coppers departed this life on the 14th day of August, 1879, at Hoboken, in the state of New Jersey, and, by his last will and testament, directed that his body should “ "be buried in Calvary cemetery, New York, with or near the remains of my mother, and in the burial lot of ground now VOI LVIII 8 The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral. owned by me there." In such will he further said: "I do hereby declare my wish and desire to be that my funeral services be had and held in some Protestant Episcopal church, and that such services and funeral shall be under the direction, control and management of the Order of Ancient Free and Accepted Masons." On the 16th day of August, 1879, the undertaker who had charge of the burial, at the request of the relators and plaintiffs, made application at the office of the cemetery to open a grave in the burial plot purchased, as before mentioned, and paid to the parties in such office the sum of seven dollars for the labor of such opening, which money was accepted, and a receipt given therefor. On the succeeding day (August 17, 1879), upon the arrival of the funeral procession with the body of Denis Coppers, the interment in the burial plot and in the grave which had been prepared was refused and forbidden, and permission given to place the same temporarily in the receiving vault of the cemetery, from which its removal and burial elsewhere than in the lot of deceased were threatened, when this proceeding and action were commenced for the objects before stated. Various objections have been made to both the action and proceeding, founded upon technical grounds, which will be hereafter discussed, but the main proposition involved is this: The defendant is a corporation attached to the Roman Catholic church, and claims the right to exclude and forbid the interment of the body in the lot purchased by Denis Coppers in his lifetime, because such burial would be contrary to the doctrines of such church, which, it is claimed, forbid the burial in consecrated ground of the body of a non-Catholic, or of one who was a member of the masonic fraternity. As the point just stated is the most important one involved, it will be first examined. It is not doubted that the defendants have full power, when they have parted with no rights by conveyance or contract, to control and regulate interments in the grounds which they The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral. hold for that purpose; and if the doctrines of the church to which they are attached forbid the burial of the bodies of non-Catholics or of masons, they may properly, in such cases, exclude those therefrom. This authority, when the same has not been surrendered, is not now questioned, but it is claimed by the relators and plaintiffs that the defendants have, by an instrument in writing, parted therewith, having in fact conveyed the fee simple of the land, or at least transferred an absolute and unqualified right, to Denis Coppers, his heirs and assigns, therein for the purposes of burial. The paper executed to Denis Coppers in his lifetime is certainly not a deed, which of itself would transfer the fee; but as it is duly signed, executed and delivered by an officer of the defendant corporation, whose authority to make a valid instrument of that character is not questioned, and as it declares that seventy-five dollars have been paid as the "purchase-money of a plot of ground eight feet by eight feet, in Calvary cemetery," which plot is, by other words and figures in said writing contained, capable of exact location and ascertainment, and as the deceased, in his lifetime, took actual possession of such plot, by placing therein the remains of members of his family, it is difficult to say why, under the well known maxim of the law that "what has been agreed to be done, and what ought to be done, shall, for the advancement of justice, be regarded as done," it should not be treated as a deed in fee. The acknowledgment, by a writing duly subscribed by the owner, that such owner had received from another person the entire "purchase-money of a plot of ground," which is fully designated, the delivery to, and acceptance by, such buyer of the instrument, and that followed by actual possession of the property, would certainly, in ordinary cases, entitle the purchaser to a conveyance in fee simple absolute, and in any controversy between the vendor and vendee as to the use of the premises, though a formal conveyance had not passed, the latter would, both in law and equity, be deemed the owner. Looking, however, at the |