Opinion
10-27-1896
NEW YORK BAY CEMETERY CO. v. BUCKMASTER.
Babbitt & Lawrence, for petitioner. Tallcott & Meyer, for defendant.
On petition for rehearing. Modified.
For original opinion, see 33 Atl. 819.
Babbitt & Lawrence, for petitioner.
Tallcott & Meyer, for defendant.
PITNEY, V. C. I have re-read the bill and combined answer and cross bill, the opinion filed and the decree made thereon, and have, to that extent, reconsidered the case as originally made.
1. I find I fell into error in stating that Clara Buckmaster was not a party to this cause. I was probably led into it by the fact stated and admitted, but not formally proven at the hearing, that 969 lots of the whole number of which the elder Buckmaster died seised had been set off to her in a sort of partition, and were thesubject of the action in Cemetery Co. v. Buckmaster, 49 N. J. Law, 449, 9 Atl. 591. It was said that there had been a partition between the heirs by proceedings in this court, which, however, were not put in evidence. I naturally supposed that the partition could only have gone so far as to set off Clara Buckmaster's share to her in severalty, leaving the other shares still held in common; for, if there had been a general partition, and each held certain lots in severalty, how could they join in an action of ejectment? And if Clara had her share set off to her, what interest had she in the remainder? The actual status of the case in this respect should, if necessary and proper, be ascertained, so that whatever settlement took place between the company and Clara should have its proper influence, and no more, in the accounting.
2. I also fell into an error in not including in the amount with which the complainant should be charged the amount received by it from single graves sold upon lots owned by the defendants.
3. I think also the master should not only ascertain the number of lots owned by the defendants, but their identity and location by such description by numbers or otherwise as may be practicable.
4. I find no complaint in the combined answer and cross bill to the effect that officers of the complainant made discriminations in their sales against defendants' lots. If such be the case, and it is shown to the court in a proper manner, the court may deal with it, and give the defendants relief in that behalf, if it shall seem equitable so to do, either by special directions to the complainant, or by permitting the defendants to employ an agent to make sales, giving him access to the grounds, etc., or in such other manner, as the case may require.
5. The principal aim of the motion is, in substance, to dispense with the accounting heretofore ordered, and to adopt a compromise arrangement between the parties, such as was adopted in the settlement with regard to the Clara Buckmaster lots. This the court has no power to do. It is said that the proceedings thus far before the master have shown that it will be impracticable to arrive at any just result. I cannot so believe. I do believe the master is competent to properly apportion the expense. The problem may be difficult, but it is not insoluble, and I cannot presume in advance that the master will make any mistake, or allow any extravagant expenditure. If he does, this court is competent to correct it.
I have already expressed orally my view as to several of the special matters noticed in the brief, and I am ready to give further directions upon any matters which may arise during the accounting, upon it being brought before me in such a shape as to enable me to deal with them. I am unable to change my views as to the merits of the case expressed in the opinion. The accounting ordered may be onerous to the defendants, and it may not, at this time, bear them any fruits; but it must be taken sooner or later, and, if the defendants abandon it now, they, in substance, abandon their rights in the lots in question. In fine, if I am wrong in my original conclusions, the remedy is by appeal.