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In re Application and Petition of Bensel

Supreme Court of New York, Appellate Division

May 12, 1911

In the Matter of the Application and Petition of JOHN A. BENSEL and Others, Constituting the Board of Water Supply of the City of New York, Respondents, to Acquire Real Estate, etc. Southern Aqueduct Department, Section No. 15. Claim of Kensico Cemetery. REESE CARPENTER and Others, Appellants.

APPEAL by Reese Carpenter and others from an order of the Supreme Court, made at the Westchester Special Term and

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entered in the office of the clerk of the county of Westchester on the 14th day of December, 1910, denying the appellants' motion to reopen the proceeding and refer the same back to the commissioners of appraisal.


Morgan J. O'Brien [James Dunne with him on the brief], for the appellants.

I. J. Beaudrias [Archibald R. Watson with him on the brief], for the respondents.


The proceeding, begun in 1909, is for the condemnation of certain lands, for the purposes of the water supply of the city of New York, pursuant to chapter 724 of the Laws of 1905, which included a certain tract of 8.6 acres belonging to the Kensico Cemetery, a corporation organized in 1889 pursuant to an act passed April 27, 1847 (Chap. 133), entitled 'An act authorizing the incorporation of rural cemetery associations' and the acts amendatory. The Kensico Cemetery appeared in the proceeding, filed a claim for damages and received an award. This appeal is taken by holders of certain 'land shares' issued by the said Kensico Cemetery, from an order of the Special Term that denies their motion that the report of the commissioners of appraisal with respect to said tract be not confirmed, that the proceedings be reopened and sent back to the said commissioners to hear the proof and allegations of the said appellants in respect to their interest in the said tract, and to ascertain thereon the just and equitable compensation to the said appellants. These appellants did not appear and were not represented before the commissioners of appraisal. The existence of these land shares was known to the said commissioners, and the contention was made before them by the attorney for the cemetery corporation that, inasmuch as the title to the tract was in that corporation, he 'as far as it is possible' represented the interest of the said shareholders. The learned counsel for the city took the position before the commission that, if the landowners were not before the commission, 'they have three years from the filing of the oath [of the commissioners of appraisal] within which to present such evidence

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as they may desire.' (See ยง 19 of the said act of 1905.) As to this parcel, the commissioners of appraisal determined and reported that $37,840 should be paid to the owners of it and the persons interested in it, in full satisfaction, and that the Kensico Cemetery was 'the owner of the land * * * and the persons entitled to be paid' the said sum. The opinion of the commissioners annexed to the report reads in part: 'Counsel for the City raised the question as to whether the claimant Kensico Cemetery represented all the legally interested parties in any award which might be made. The ground upon which such question is based was that when the portion of the cemetery in which the land condemned is situated, was conveyed to the Kensico Cemetery corporation, there was an agreement between it and Caroline Carpenter, the vendor, that one-half of all the moneys received for cemetery lots should be paid to her and others. Such an agreement is consistent with the cemetery law. The Commissioners regarded this provision as establishing a sort of partnership in the income of the cemetery from the sales of lands for burial purposes, and that the cemetery officials might be regarded as trustees between Caroline Carpenter and themselves of one-half of the moneys accruing from such sales for the benefit of Caroline Carpenter, or her legal representatives, but that notwithstanding the full legal title was in the Kensico Cemetery corporation, and it was the only person to whom an award could be made.'

The learned counsel for the city states in his printed points as follows: 'If, as is contended, these appellants have not appeared in the proceeding no decision of the Commissioners of Appraisal as to their rights or interests or any award to third parties would be binding upon them or cut off their right to compensation, and inasmuch as the Court has set aside said award and reopened the proceedings on other grounds it would seem unnecessary to decide this appeal were it not for the fact that the Commission has decided the order herein is controlling and that appellants cannot be heard before them on the retrial of this parcel.'

The practical question, then, is whether these appellants are entitled to be heard on the retrial of these proceedings.

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Subsequent to the incorporation and organization of the said Kensico Cemetery it acquired certain lands, including the tract in question, pursuant to the provisions of the said act of 1847 that reads as follows: 'Such corporation may agree with a person from whom any lands are purchased for a cemetery, to pay therefor a specified share not exceeding one-half of the proceeds of all sales of the use of lots and plats made from such land, and such share shall be first applied to the payment of such purchase-money, and the residue thereof shall be applied to the preservation, improvement and embellishment of the cemetery, and the incidental expenses of the corporation. Where lands have been so purchased, and are to be paid for as provided by this section, the prices of the use of lots and plats fixed by the directors and 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, their heirs, representatives or assigns.' These appellants are the holders of certain certificates issued by the cemetery that evidence the ownership of one-half of the proceeds of sales of the lots and plats made from such land as aforesaid. This provision of the act of 1847 is revised in section 50 of chapter 559 of the Laws of 1895, and section 70 of article 4 of the Membership Corporations Law, Cemetery Corporations.

In Whittemore v. Woodlawn Cemetery (71 A.D. 257) this court in its First Department held that similar conveyances were with a condition subsequent that the land must be devoted to cemetery purposes, that the estate would be defeated on non-compliance and a re-entry would be authorized. In American Exchange National Bank v. Woodlawn Cemetery (120 A.D. 128) the court say: 'On dissolution of the corporation there can be no doubt that the holders would have had an interest in the proceeds of sale under judicial process. It has been held that they have an interest in the award made in ...

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