Cemetery was that cemetery association; that the provisions of the trust agreement for a dividend fund were void (for the reasons stated in East Ridgelawn Cemetery Co. v. Frank, supra; and that the trustee (Passaic Trust and Safe Deposit Company, now Passaic National Bank and Trust Company) was entitled to receive the fair value of the estate conveyed to West Ridgelawn Cemetery as of the time of the conveyance, with interest; and that the certificate holders had lost their right to a vendor's lien upon the lands of said Cemetery.
13. In Mack v. Passaic National Bank & Trust Co., 1945, 150 F.2d 474, 477, the United States Court of Appeals for the Third Circuit held that Kurzrok was entitled to intervene in this action, pursuant to Rule 24(a)(2) of the Rules of Civil Procedure, 28 U.S.C., as a lot owner of West Ridgelawn Cemetery, because such lot owners 'are not and cannot be represented adequately by the certificate holders.' (See supplemental opinion of the same Court in 1946, 154 F.2d 907.) On the appeal which evoked the Mandate pursuant to which these findings are made, Mack v. Passaic National Bank & Trust Co., 3 Cir., 1955, 221 F.2d 441, Kurzrok still appeared only as a lot owner in West Ridgelawn Cemetery.
14. In Passaic National Bank & Trust Co. v. East Ridgelawn Cemetery, 1946, 137 N.J.Eq. 603, 606, 45 A.2d 814, and 139 N.J.Eq. 488, 51 A.2d 869, the then New Jersey Court of Errors and Appeals held that the provisions of the deeds and Declarations of Trust aforesaid, for the payment to holders of the certificates of moneys out of the proceeds of sale of burial lots or plots in either of the two cemeteries, were utterly invalid, in contravention of law, and, therefore, void.
15. Ernest Kurzrok, claiming to be an owner of a burial lot in West Ridgelawn Cemetery, was, by order of this Court filed in this action on October 31, 1945, permitted to intervene therein for the sole purpose of protecting his rights as a lot owner of West Ridgelawn Cemetery and the rights of all other lot owners of West Ridgelawn Cemetery who might join in this action. By order made and filed in this action on October 26, 1953, Walter G. Winne, as surviving successor trustee, was directed to note on his records the claims of said Kurzrok that he is the holder of Certificate No. 449 for ten shares of proceeds of sale of lots by the 'East and West Ridgelawn Cemeteries' endorsed to said Kurzrok by Adam Frank on February 5, 1929. By order of this Court, made and filed in this action on July 25, 1955, the said Kurzrok was permitted to withdraw as a party plaintiff in this action, and Samuel F. Slaff was substituted as a plaintiff-intervenor in behalf of lot owners in West Ridgelawn Cemetery, in the place and stead of said Kurzrok.
16. Plaintiffs in this action seek relief as Executrices of Clara B. Prince, deceased, alleged owner of certificate or certificates for 66 shares. By order filed herein on July 19, 1943, Samuel F. Slaff was permitted to intervene in this action upon an assertion of ownership of certificate No. 668, representing 158 shares. By order filed herein on July 9, 1943, Kay Holding Company, Inc. was permitted to intervene as alleged holder of certificate No. 525 for 200 shares. By order of November 4, 1944, Adam Frank, as executor and trustee of the estate of Estelle I. Frank, deceased, was permitted to intervene in this action as alleged holder of certificate or certificates for 2,500 shares. By order filed herein on September 10, 1945, H. Jerome Sisselman was permitted to intervene in this action as alleged owner of certificate or certificates for 25 shares.
17. In East Ridgelawn Cemetery v. Winne, 1953, 11 N.J. 459, 94 A.2d 833, to which were joined as parties defendant Adam Frank as executor and trustee as aforesaid, Sisselman, Kay Holding Company, Inc., Slaff, Mack and Elias as executrices of Prince, deceased, and other holders on behalf of themselves and all other holders of such certificates, as representing the holders of all certificates outstanding, the Supreme Court of New Jersey affirmed the Appellate Division of the Superior Court of that State 1952, 19 N.J.Super. 413, 88 A.2d 635, in holding that the surviving substituted trustee for certificate holders appointed by this Court, was entitled to recover from East Ridgelawn Cemetery $ 50,505 which East Ridgelawn Cemetery realized from the sale of 2,500 of the shares, plus $ 73,380 representing the value of the land at the time of its conveyance to East Ridgelawn Cemetery, plus interest on the latter sum at three percent from January 3, 1907, the date of said conveyance.
18. By order of this Court filed October 4, 1954, there was authorized the execution and performance of an agreement dated September 7, 1954, between East Ridgelawn Cemetery and said surviving trustee, for holders of certificates for proceeds of sale of lots and plots of East and West Ridgelawn Cemeteries, for the sale of 34.389 acres of unimproved land of said cemetery for the purpose of satisfying the judgment recovered by said trustee against said cemetery as affirmed by the New Jersey Supreme Court. 11 N.J. 459, 94 A.2d 833. The said agreement recited that East Ridgelawn Cemetery was indebted to said certificate holders in the amount of $ 162,200. The order last aforesaid conditioned its authorization to said trustee upon his securing the approval of the agreement by the Superior Court of New Jersey. It was upon Kurzrok's appeal from this order that the Mandate of the Court of Appeals, under which this decision is rendered, issued.
18a. Pursuant to the said Order of October 4, 1954, and prior to the filing of the said Notice of Appeal by said Ernest Kurzrok, Walter J. Winne, substituted trustee, on October 7, 1954, signed the aforesaid agreement.
18b. Pending the aforesaid appeal from the aforesaid Order of October 4, 1954, the Superior Court of New Jersey, Chancery Division, by Order dated December 17, 1954, approved the said agreement.
19. On September 7, 1955, there was filed in the office of the Clerk of this Court, in this action, an unsigned and unverified petition of one Harry Dowret, of Elmont, New York, together with an unsigned notice of motion in behalf of said Harry Dowret, for leave to intervene in this action as a plaintiff-intervenor, claiming that he is a plot owner in West Ridgelawn Cemetery.
20. In a written agreement dated November 6, 1926, between 'King Solomon Cemetery (West Ridgelawn Cemetery)' and Harry Dowret, it is recited that the cemetery sold to Dowret a lot twenty by thirty-two feet in the Beth El Section for $ 500. A copy of this agreement was marked Exhibit No. HD-1 in evidence on the hearing of September 13, 1955. Further, by the terms of said agreement, business), undertook to place memorial and still is in the cemetery monument designated by the cemetery, upon cemetery lands, including the lot purchased by Dowret, and in the latter respect without any regard to actual burial use. The buyer was further given the right to remove the stones on sale thereof to any other part of the cemetery and to sell these monuments to other lot owners therein. It was further agreed that the cemetery should receive twelve and one-half percent on all sales of monuments, exclusive of foundations, sold by Dowret to other lot owners in the cemetery and that the buyer should receive 'a cut of ten (10 cents) cents per cubic foot' from the regular price on all foundations ordered by him for his monuments. This agreement further provided that in the event of its termination prior to expressed maturity, either by cemetery's act or by mutual agreement, the cemetery should take over the monuments at their reasonable wholesale market value to be determined, in the event of disagreement, by arbitration. Dowret testified, on the hearing of September 13, 1955, that he displayed the monuments in the cemetery with the object of securing business and that he paid the $ 500 consideration recited in the agreement, at or about the time of the date of the agreement, by check on Public National Bank of New York City, East Side Branch, payable to the order of Adam Frank. He also testified that he received a deed for two plots in the cemetery, but that it had been lost. Ernest Kurzrok testified, as a witness for Dowret, that the $ 500 consideration aforesaid was paid, and that Dowret received a deed for two plots in the Beth El Section of West Ridgelawn Cemetery. Mr. Kurzrok further testified, however, that the Braverman (accountants') report (Exhibit HD-3 of September 13, 1955) failed to disclose a receipt of the $ 500, either by Frank or by West Ridgelawn Cemetery, although Dowret's plot is indicated on maps marked Exhibits HD-2 and HD-4 of the same date. The former map bears date July, 1931. The said Braverman report, however, does list an item of cash received from H. Dowret on September 27, 1928, in the amount of $ 10.80. The report moreover, which covers the period from August 1, 1923 to May 31, 1929 inclusive, reveals consolidated cash receipts charged to the respective accounts of West Ridgelawn Cemetery and Adam Frank, attorney, totalling $ 137,857.96, of which $ 86,025.40 were from lot and plot owners in West Ridgelawn Cemetery and $ 33,537.36 were from sources listed in the report as unknown. Since the hearing of September 13, 1955, the Court has been furnished by Ernest Kurzrok, with a certified copy of a certificate filed in the office of the Clerk of Passaic County, New Jersey, on April 27, 1939, setting forth the name 'H. Dowret' as among the trustees and officers of West Ridgelawn Cemetery, following their annual election on April 17, 1939. N.J.R.S. 8:1-6, N.J.S.A., provides that the care and management of all cemetery associations incorporated (as was West Ridgelawn Cemetery) shall be confided to a board of trustees to consist of not less than three nor more than fifteen members, who shall be plot or lot holders in the association. Section 8:1-11 of the same Statutes requires such cemetery association to file, in the office of the Clerk of the County wherein it is located, a certificate setting forth the names of its trustees and officers, within ten days after the annual election thereof.
21. In Atlas Fence Co. v. West Ridgelawn Cemetery (to which Ernest Kurzrok was a party) 1936, 120 N.J.Eq. 239, 184 A. 638, affirmed 1936, 120 N.J.Eq. 615, 187 A. 366, the Court of Chancery of New Jersey was affirmed by the Court of Errors and Appeals in authorizing the Receiver, appointed by said Court of Chancery for West Ridgelawn Cemetery, to accept the bid or offer of one Aaron Sacks for conveyance by the Receiver of fourteen and one-half acres of land of said cemetery, dedicated for cemetery purposes and to be used for nonsectarian burials, subject to the rules and regulations then or thereafter in effect governing said cemetery, for the sum of $ 35,000; the bidder agreeing to expend for the improvement of said lands a certain amount of money, and to the retention from the sale of all lots the sum of six cents per square foot for the perpetual care fund to be used for the perpetual care of said fourteen and one-half acres, and to be turned over to the trustee or its successor.
22. H. Jerome Sisselman testified at the hearing of September 13, 1955 that he is and has been, since 1940, Secretary and Treasurer of West Ridgelawn Cemetery, and as such, in charge of all of its books and records. He further testified that these records fail to indicate that Dowret owns or has any interest in any lot or plot in West Ridgelawn Cemetery; and that included in the lands of said Cemetery which were sold by the Receiver thereof, pursuant to order of the Court of Chancery last aforesaid, was the property claimed by Dowret. Mr. Sisselman further testified that the perpetual care fund of West Ridgelawn Cemetery, composed of six cents per square foot of lands sold for burial purposes, neither now has nor ever had any connection with any similar fund of east Ridgelawn Cemetery.
Upon the foregoing findings, the Court concludes as follows:
1. No person, association, or corporation having an interest in West Ridgelawn Cemetery, or in its property, or in the moneys, if any, constituting a fund for the perpetual care of burial plots or lots therein, has any right, title or interest in East Ridgelawn Cemetery, or in its property, or in the moneys, if any, constituting a fund for the perpetual care of burial plots or lots therein.
2. Neither Ernest Kurzrok, nor Samuel F. Slaff as his successor, as an owner of a burial plot or lot in West Ridgelawn Cemetery, has any right, title or interest, either individually, or as a representative of any owner or owners of plots or lots in said Cemetery, in any land of East Ridgelawn Cemetery, nor in the proceeds of sale of any burial plots or lots therein, nor in any fund for the perpetual care of any such burial lots or plots in East Ridgelawn Cemetery.
3. Neither said Kurzrok nor said Slaff, by virtue of ownership of certificates, if any, issued by either or both of said Cemeteries, has any right, title or interest in the lands of East Ridgelawn Cemetery.
4. While petitioner Dowret was a plot or lot owner in West Ridgelawn Cemetery on April 17, 1939, there is insufficient evidence to enable this Court to determine whether he is still a plot or lot owner in said cemetery; but, whether or not he is still such plot or lot owner, he is not entitled to intervene in this action because he has no right, title or interest in the perpetual care fund, if any, established for West Ridgelawn Cemetery, nor in the proceeds of sale of the lands of East Ridgelawn Cemetery.
5. Neither Samuel F. Slaff, as successor to Ernest Kurzrok, by virtue of ownership of any of the certificates of shares of proceeds of burial lots or plots, issued by East Ridgelawn Cemetery and West Ridgelawn Cemetery, nor any other holder of any such certificate, has any right, title or interest in either of the perpetual care funds aforesaid nor in the lands of either of such cemeteries.
6. Decision upon remaining issues in this action is deferred pending compliance by the surviving substituted trustee with the terms of an agreement signed by him on October 7, 1954, which agreement is hereby approved and affirmed.
An order may be submitted in accordance with the foregoing conclusions.
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