Opinion
June 4, 1951.
Order dismissing petition for the removal of the body of petitioner's deceased husband from a plot owned by her husband's family in Calvary Cemetery in Queens County to a plot in St. Raymond's Cemetery in Bronx County, reversed on the law and the facts, with $10 costs and disbursements, and the application granted, with $10 costs. Petitioner, twenty-nine years old, and her husband, who was thirty-two years old at the time of his death as a result of an accident, and their two children were residents of Bronx County. Prior to the funeral, petitioner, at a cost of $1,147, "arranged" for the burial in a different plot, but she acquiesced in the suggestion of the undertaker that the burial be in the plot owned by her husband's family. There always was ill feeling between petitioner and her husband's family. About six months after the burial, petitioner made the instant application, claiming that her consent was given at a time when she was disturbed and distraught. It may not be said on this record that immediately following her husband's death petitioner had any settled conclusions about the burial of her husband. While she consented to have him buried in the present grave, she may not be charged with waiving her rights of burial, nor with consenting at that time to a permanent resting place. Under the circumstances, the dismissal of the petition was an improvident exercise of discretion. ( Darcy v. Presbyterian Hosp., 202 N.Y. 259; Pettigrew v. Pettigrew, 207 Pa. 313, cited with approval in Yome v. Gorman, 242 N.Y. 395; Matter of Clum, 235 App. Div. 705.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur. Settle order on notice.