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App. Div.] Fourth Department, March, 1910.

struction of the monument is no consequence, because being an owner in common of the lot, that carries with it ownership in any permanent structure on the lot. For instance, if I am the owner of a farm in common with yon, and you build a building on it, you have no right to remove it, it being a permanent structure and we being owners in common of the property, without our consent. So in this case the monument being on the lot to which she had a common ownership, she was an owner in common of the lot as well as of the monument."

I think the law of fixtures has no application to a case like this. Under the deed from the cemetery association the lot owners acquired only a privilege or license to make interments and use the lot for cemetery purposes. (Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503; Went v. Methodist Protestant Church, SO Hun, 266.) The mere placing of the monument upon the lot did not necessarily give Mrs. Cadwell any interest therein.

Mclennan, P. J. (dissenting):

Subdivision 2 of section 1427 of the Penal Law provides: "Any person * * * who:

"2. Not being the owner thereof, and without lawful authority, wilfully injures, disfigures, removes or destroys a gravestone, monument, work of art, or useful or ornamental improvement, or any shade tree or ornamental plant, whether situated upon private grounds or upon, the street, road or sidewalk, cemetery or public park or place, or removes from any grave in a cemetery any flowers, memorials or other tokens of affection, or other tiling connected with them,

"Is guilty of a misdemeanor."

The indictment charged, in substance, that said Charles M. Otis, on the 24th day of June, 1909, at the town of Watertown, in the connty of Jefferson, within the Brooksido Cemetery, did willfully, wrongfully and maliciously and without lawful authority injure, mutilate, disfigure and deface a certain monument, known as the "Otis" monument, which was upon a certain burial lot in said cemetery, he, said Charles M. Otis, not being the owner thereof.

The chief question presented by this appeal is: Was the defendant, when he committed the acts complained of, the owner of the Fourth Department, March, 1910. [Vol. 137.

monument in question, within the meaning of the provisions of the Penal Law above quoted!

It appears that one David D. Otis, for a long time a resident of the city of Watertown, died intestate in the year 1881. He left him surviving his widow, Sarah A. Otis, and the following children: The defendant, Charles M. Otis, David D. Otis. Jr., Howard N. Otis, Caroline M. Otis, who afterwards married Joseph S. Greene, and Mary Frances Otis, who subsequently married Oliver B. Cadwell. At the time of his death David D. Otis, Sr., was the owner of a lot in the Brookside Cemetery, a duly incorporated cemetery association, and a deed of said lot had been executed and delivered to him by said association in the year 1864. Such deed was lost and after the death of David D. Otis, Sr., and on August 30, 1883, another deed of the lot was executed and delivered to Sarah A. Otis, his widow, and Joseph S. Greene, the son-in-law. It was a duplicate of the former deed, except as to the names of the grantees. In the year 1883, but after the execution of said lastmentioned deed, through tli e negotiations of Howard N. Otis, who was then manager of his father's estate, a monument was caused to be erected upon the lot in question. Such monument was a foursided granite shaft about twelve feet high. How it was paid for does not appear, except that Joseph S. Greene, who had previously married Caroline M. Otis, paid $200 towards the expense of its erection, and the defendant, Charles M. Otis, contributed $100. Howard N. Otis and David D. Otis, Jr., also contributed, but the amounts paid by them do not appear After the monument was erected the name " David D. Otis" was cut on the base on the front side, wbich is the west side of the monument. On the northerly side of the monument was placed a letter " G," which is for " Greene," being the name of one of the married daughters. On the south side of the monument was placed the father's name, David D. Otis, and the names of his two wives, and the east side of the monument was left vacant. The family of David D. Otis, Jr., is buried at Cape Vincent and he and his family are not interested in this controversy.

After the death of the widow, Sarah A. Otis, which occurred in 1903, and after the monument in question had been erected, and after the death of Howard N. Otis in 1885, who had managed the App. Div.] Fourth Department, Mnrcb, 1910.

estate of his until his death, there seems to have been no break in the family relations of this family. Upon the death of Howard, the other son, this defendant apparently was charged with the duty of the management of the estate and he continued in such management for a long number of years. He was finally superseded and the son-in-law, Oliver B. Cadwell, was substituted in his place — whether as executor, administrator, trustee or otherwise does not appear. But it does conclusively appear that the management of the estate was taken out of the hands of the defendant and placed in the hands of Mr. Cadwell, his brother-in-law. This resulted in ill-feeling between them and to such an extent that the defendant destroyed the inscription which had been placed upon the east side of the monument marking the resting place of the child of his sister. In other words, the sister had in the year 1893 placed upon that side of the monument at which the child had been buried the names of its father and mother. It appears that the defendant was present at such burial; that he was one of the bearers thereat. In other words, he knew that a child of his sister had been buried opposite the side of the monument which is in question here. He also knew, according to his own testimony, that the inscription upon such side of the monument was there a year previous to the time when his alleged acts of criminality were committed.

I have gone into the facts so much in detail respecting the rights and ownership of the respective parties in the lot and monument not so much for the purpose of showing lack of equity, proper excuse or justification on the part of the defendant as to show that under the fair construction and meaning of the provisions of the Penal Law above quoted the defendant is not an owner within the meaning of such act. The language of the section is that a person "not being the owner thereof," etc. Does it mean that a person having a half interest, a one-fortieth interest — it makes no difference which — may deface and destroy the monument of his cotenant if it consists of a monument in a cemetery organized under our laws? I appreciate that under the law of tenancy in common one tenant is the owner of an undivided interest in all the property; but is it possible that such definition of "owner" was intended by the Legislature when apparently it sought to pass an act which Fourth Department, March, 1910. [Vol. 137.

would prevent an irresponsible person from defacing a monument, or a side of a monument, which bad been sacredly devoted to the memory of the dead of one branch of the original owner's family?

I assume to assert that nine-tenths of the burial lots and monuments in the various cemeteries of the State are owned respectively by innumerable persons who may be designated as tenants in common. I think we should not hold that one of such tenants has the right willfully and maliciously to destroy a monument solely upon the ground that he as tenant in common is part owner and, therefore, is entitled to do with his own, so far as the criminal law is concerned, as he pleases.

This is an important question. Innumerable people, through inheritance from their ancestors of a burial lot in a cemetery, are concerned. A group of relatives, to commemorate the memory of their ancestors, erect and letter a monument agreeable to all the parties concerned. It is insisted that one of such group, because a tenant in common of the monument and the ground upon which it is erected, may deface any side of such monument, or destroy the same, because under the provisions of the Penal Law he, as owner of the same, is not subject to punishment. In other words, that he is a tenant in common with the other owners of the monument and, therefore, may do as he pleases with his own. I think the learned trial judge was right in holding that within the meaning of the statute the defendant was not an "owner" of the monument in question. In other words, that it was not intended by such statute that a part owner, even if he be called tenant in common, should be permitted to desecrate and destroy, willfully, the interests of his cotenants in a monument erected in a cemetery organized under the laws of this State.

Under the evidence there is no question but that the jury was justified in finding that the acts of the defendant were willful and malicious. It being concluded that he was not an "owner" within the meaning of the provisions of the Penal Law, to which attention has been called, the jury were justified in finding him guilty as charged in the indictment.

I conclude that, under all the circumstances and within the fair meaning and interpretation of the provisions of the Penal Law above quoted, the defendant was not the "owner" of the monnApp. Div.] Fourth Department, March, 1910.

ment and that, therefore, he having been found guilty of malice upon proper evidence, he was properly convicted.

I, therefore, conclude that the judgment and order appealed from should be affirmed.

Spring, J., concurred.

Judgment and order reversed and new trial ordered upon questions of law only.

Martha Schreiber, Kespondent, v. The Village Of Depew,


Fourth Department, March 9, 1910.

Damages — negligence — verdict not excessive — pleading — amendment of complaint at trial.

A. verdict of §2,500 is not excessive where the plaintiff received a Colles fracture

of the forearm, disfiguring her hand and wrist, and to some extent permanently

impairing their usefulness. The trial court has power to allow an amendment to the complaint increasing

the damages demanded if the plaintiff excuses the failure to apply for the

amendment before trial. But a judgment entered on a moderate verdict will not be reversed because of

an amendment at trial increasing the damages demanded where the defendant

also availed itself of permission to amend the answer.

Appeal by the defendant, The Village of Depew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 2d day of June, 1909, upon the verdict of a jury for $2,500, also from an order entered in said clerk's office on the 15th day of July, 1909, amending the complaint so as to increase the amount of damages asked, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes.

S. Jay Ohart, for the appellant.

John C. Hvbhell \Herman Van Peyma with him on the brief], for the respondent.

App, Div.—Vol. CXXXVII. 28

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