N.Y. Not-for-Profit Corporation Law § 1401: Private and family cemetery corporations

§ 1401. Private and family cemetery corporations.

(a) Private cemetery corporation. Seven or more persons may become a

private cemetery corporation by setting off for a private cemetery

enclosed real property, to the extent of not more than three acres, and

by electing at a meeting of the owners of the property so set off, at

which not less than seven shall be present, three of their number to be

directors, to hold office for five years. The chairman and secretary of

such meeting shall make, sign and acknowledge, and file in the office of

the clerk of the county in which such real property is situated, a

certificate containing the name of the corporation, a description of the

lands so purchased or set apart, and the names of the directors. No such

cemetery shall be located within one hundred rods of any dwelling-house

without the written consent of the owner thereof. Additional lands not

exceeding three acres may be acquired by a private cemetery corporation;

but no additional lands so purchased or otherwise acquired shall be used

for the purpose of burial within three hundred feet of any dwelling

without the written consent of the owner thereof.

(b) Removal of remains from private cemeteries to other cemeteries.

The supervisor of any town containing a private cemetery may remove any

body interred in such cemetery to any other cemetery within the town, if

the owners of such cemeteries and the next of kin of the deceased

consent to such removal. The owners of a private cemetery may remove the

bodies interred therein to any other cemetery within such town, or to

any cemetery designated by the next of kin of the deceased. Notice of

such removal shall be given within twenty days before such removal

personally or by certified mail to the next of kin of the deceased if

known and to the clerk and historian of the county in which such real

property is situated and notice shall be given to the New York state

department of state, division of cemeteries. If any of the deceased are

known to be veterans, the owners shall also notify the department of

veterans' services. In the absence of the next of kin, the county clerk,

county historian or the department of veterans' services may act as a

guardian to ensure proper reburial.

(c) Family cemetery corporations. Any person, by deed or devise, may

dedicate land to be used exclusively for a family cemetery. The

executors, administrators or trustees of a deceased person, with the

written authority of all of his surviving heirs, next of kin, devisees

and legatees, executed in person or by an attorney, or if infants, by

legal guardian, may dedicate lands of such deceased person exclusively

for a family cemetery, or may purchase with the funds of the estate,

suitable lands therefor. The land so dedicated shall not exceed three

acres, not be located within one hundred rods of a dwelling-house,

without the consent of the owner, unless such land, at the time of

dedication, is in actual use for burial or cemetery purposes within the

limits of a city. The instrument dedicating such land shall describe the

same, may appoint directors to manage such cemetery, prescribe, or

provide for making rules, directions or by-laws for such management,

direct the manner of choosing successors to the directors, specify their

qualifications, and grant to them and their successors money or personal

property as a fund for maintaining, improving and embellishing the

cemetery, in accordance with the deed or will, or the written authority

of the heirs, next of kin, devisees and legatees. The instrument

dedicating land for a family cemetery, together with the authority, if

any, of the heirs, next of kin, devisees and legatees of the deceased

person, shall be filed in the office of the county clerk of each county

in which the cemetery is to be situated. The directors before entering

on their duties, shall file in the office of the county clerk of each

such county, a written acceptance of their appointment; and thereupon

they and their successors shall constitute a corporation under the name

designated in such instrument. A fund created by will for the purpose of

maintaining, improving and embellishing such a cemetery shall not exceed

ten per centum of the net value of the estate of the testator. Such

corporation before receiving any property, money or funds for improving,

maintaining and embellishing the cemetery, shall execute to the

surrogate of the county in which such real property is situated, a bond

with sureties, or the bond of a surety company, approved by him, in a

penalty of twice the principal sum of the fund placed in charge of the

corporation, conditioned for the faithful preservation and application

thereof according to the rules, directions or by-laws prescribed in the

instrument under which the appointment of such directors was made, and

renew such bond or execute a new bond whenever required so to do by such

surrogate. At least once in each year and oftener if required by the

surrogate the corporation shall file with him a verified account of its

receipts and expenditures on account of the funds in its hands, or under

its control, together with vouchers for all disbursements. Any person

may bequeath or transfer to, and any such corporation may take, money or

personal property by will, deed or other transfer, upon trust, to hold

and apply to dispose of the same for the purpose of maintaining,

improving and embellishing any lot, plot or portion of such cemetery,

either according to the discretion of the directors, or for such time

and upon such terms and conditions, if any, as to the application,

investment and reinvestment of the principal and income and otherwise as

shall be stated in the instrument creating the trust as agreed upon, but

no such trust fund created by will shall exceed ten per centum of the

net value of the estate of the testator. The corporation shall give

security and account for such money or personal property as hereinbefore

provided.

If security is furnished by a surety company bond, the reasonable

expense thereof shall be a charge against the funds of the corporation.

(d) Type of corporation. A family or private cemetery corporation is a

charitable corporation under this chapter.

(e) Private and family cemetery corporations; prohibitions. (1) No

private or family cemetery corporation shall, directly or indirectly:

(i) sell, or have, enter into or perform a lease of any of its real

property to a funeral entity, or use any of its property for location of

a funeral entity;

(ii) commingle its funds with a funeral entity;

(iii) direct or carry on its business or affairs with a funeral

entity;

(iv) authorize control of its business or affairs by a funeral entity;

(v) engage in any sale or cross-marketing of goods or services with a

funeral entity;

(vi) have, enter into or perform a management or service contract for

cemetery operations with a funeral entity; or

(vii) have, enter into or perform a management contract with any

entity, other than a not-for-profit cemetery corporation.

(2) Only the provisions of subparagraphs (i) and (ii) of subdivision

one of this paragraph shall apply to cemetery corporations with thirty

acres or less of real property dedicated to cemetery purposes, and only

to the extent the sale or lease is of real property dedicated to

cemetery purposes, and such cemeteries shall not engage in the sale of

funeral home goods or services, except if such goods and services are

otherwise permitted to be sold by cemeteries.

(3) For the purposes of this paragraph, "funeral entity" means a

person, partnership, corporation, limited liability company or other

form of business organization providing funeral home services, or

owning, controlling, conducting or affiliated with a funeral home, any

subsidiary thereof or an officer, director or stockholder having a ten

per centum or greater proprietary, beneficial, equitable or credit

interest in a funeral home.