Opinion
April 29, 1921.
James F. O'Neill of counsel [ Mann Trice, attorney], for the appellants.
Francis W. Aymar, for the respondent.
The complaint alleges that the plaintiffs are the only next of kin, the sons and daughter of one John Barry, and that he died on the 19th day of December, 1917, and at the time of his death he was in the Central Neurological Hospital, on Blackwell's Island, and his body was transferred on that day to the morgue in the city of New York; that on the twenty-ninth of December following a death certificate was filed in the health department and a burial permit for burial in the city cemetery was issued. On that date the body was not buried, but was turned over by the authorities at the morgue to the defendant corporation. This was a corporation authorized to receive the body under certain circumstances under the statute that will be referred to. It was held by them until February 19, 1918, at which time the body was dissected and the remains cremated. It is further alleged that the plaintiffs were left in ignorance even of the death of their father, and upon ascertaining the fact they demanded the body and were informed that it had been disposed of; that they never gave any permission or consent to the dissection of the body, and the complaint alleges that such dissection and destruction of the remains were unlawful acts of the defendant. It is further alleged that they left an address where they might learn anything that happened to their father. It does not allege where this address was left. It is alleged that they were Catholics and that they were prevented from interring the remains in consecrated ground, and the feelings of the daughter and sons were outraged and they were greatly shocked and were greatly outraged in their religious feelings in respect to the mutilation and destruction of the corpse of their father, and $25,000 is demanded.
The demurrer served by the defendant was sustained, the court holding that the complaint did not state a cause of action.
The defendant claims its right to dissect under section 316 of the Public Health Law (as amd. by Laws of 1913, chap. 335), which requires any hospital or morgue having any uninterred corpse in its lawful possession for keeping or burial, which has not been placed therein in the usual manner by relatives or friends for that purpose, to deliver such corpse under specified conditions to any university of the State having a medical preparatory or medical post-graduate course. It is provided, however, that "No corpse shall be so delivered or received if desired for interment by relatives or friends within forty-eight hours after death, or if known to have relatives or friends without the assent of such relatives or friends; or of a person who shall have expressed a desire in his last illness that his body be interred, but the same shall be buried in the usual manner."
The Special Term held that the primary duty of endeavoring to ascertain whether there were relatives or friends rested with the authorities at the morgue and did not rest with the defendant before receiving this corpse for dissection. ( 110 Misc. Rep. 27.) I think, however, that there is also an obligation upon the medical school or university to make reasonable inquiry. There is no allegation in the complaint that they failed to make reasonable inquiry.
The contention of the plaintiffs is that all that it was necessary to do was to allege a dissection without their consent and that it was for the defendant to plead the facts which justified such a dissection. This contention is, I think, well made. The dissection of a human body without the consent of the relatives or friends is under the common law a wrongful act. If the defendant would justify that act under any special statute, the facts that would bring the defendant within the statute and authorize the act are properly pleaded as an affirmative defense. Those facts need not be negatived in the complaint, which is sufficient if a wrong under the common law has been alleged. ( Darcy v. Presbyterian Hospital, 202 N.Y. 259.)
Irrespective, however, of the statement of the cause of action for the dissection, the complaint states a cause of action for the cremation of the body. Under section 2215 of the Penal Law, it is provided that after dissection the body shall be buried. The cremation of the body was, therefore, clearly a wrongful act, and is, I think, just as actionable as the dissection itself.
The judgment must, therefore, be reversed, with costs, and the demurrer overruled, with costs, with leave to defendant to withdraw the demurrer and to answer on payment of said costs.
CLARKE, P.J., LAUGHLIN, PAGE and MERRELL, JJ., concur.
Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of said costs.