and 120 New York State Reporter mitted in evidence only upon the promise to connect it later, which promise was not fulfilled." It will thus be seen that the defendants did not have the benefit of this item of testimony. As plaintiff himself admits in response to his own counsel, the chattels mentioned in the agreement of March 3, 1901, had been paid for by a note, which is marked "Defts' Ex. C," in the evidence, and which has been described above. If, therefore, the chattels in suit were sold under the March bill of sale, the plaintiff's action must, as we have already said, fall. Inquiry of the plaintiff concerning the identity of the goods covered by this bill of sale was of great importance and materiality. The defendants' counsel should have been permitted to inquire into the facts concerning this agreement, in order to bring out evidence tending to show, if possible, that the chattels were identical and had been paid for, and thus raise a question of fact for submission to the jury. The plaintiff testified that the chattels in question were not sold under the March agreement, and defendants should have been allowed to show, if possible, that this statement was not true. We think that the exclusion of this testimony was an essential error that calls for a reversal of the judgment. Moreover, we must hold that, as to Lese & Deutsch, the complaint should have been dismissed. No matter under which of the two bills of sale the chattels came into their possession, it does not appear to have been an unlawful possession, and they parted with the same before the commencement of this action. It is not alleged in the complaint, nor was it proved upon the trial, that they wrongfully detained the chattels. The judgment and order must be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur. (91 App. Div. 352.) HEYMAN et al. v. SWIFT et al. (Supreme Court, Appellate Division, First Department. February 11, 1904.) 1. PARTITION-CONVEYANCE IN FRAUD OF RIGHTS-BONA FIDE PURCHASERS— BURDEN OF PROOF. Defendant in an action for partition having shown that, as against S., who conveyed to plaintiffs a half interest in the two tracts, he was entitled to a conveyance of such interest in one of the tracts, and to a vendor's lien on such interest in the other tract, and that S. made the conveyance to plaintiffs in fraud of and to defeat defendant's rights, and that he tendered to plaintiff's the consideration he was to pay S., they have the burden of proving that they were bona fide purchasers for value. 2. SAME-RIGHT OF DEFENDANT TO CONVEYANCE FROM PLAINTIFFS-TENDER. Defendant in a suit for partition, to be entitled to a conveyance of plaintiffs' interest, because of his previous contract therefor with S., who conveyed it to plaintiffs, having tendered to plaintiffs before the trial the agreed consideration, need not make a tender on the trial, though plaintiffs' right to the consideration will be guarded by the decree. Appeal from Special Term, New York County. Action by Jacob Heyman and another against John Swift and another for partition. From an interlocutory judgment entered pursuant to a decision made on the trial of the issues at Special Term, defendant Swift appeals. Reversed. Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, INGRAHAM, and LAUGHLIN, JJ. L. C. Ferguson, for appellant. Maurice Marks, for respondents. LAUGHLIN, J. The action is brought for the partition of two parcels of real estate situated in the city and county of New York. On the 9th day of September, 1901, the appellant, who then owned both parcels in fee simple absolute, conveyed an undivided half of each to one John D. Spellman, who in turn conveyed the same to the plaintiffs on the 16th day of September, 1901. The plaintiffs claim an undivided half interest in each parcel, subject to certain liens which are not in controversy, by virtue of this deed from Spellman, which is their only title. The appellant denied plaintiffs' ownership, and alleged that the conveyance from Spellman to the plaintiffs was without consideration, fraudulent, and made pursuant to a conspiracy between them to cheat and defraud the appellant; and, as a counterclaim, he alleges a cause of action for a reconveyance by Spellman of one of the parcels, by virtue of an agreement made prior to the conveyance by Spellman to the plaintiffs, and facts showing that he is either entitled to a reconveyance of the other parcel upon the ground that his conveyance thereof to Spellman was without consideration, and procured by fraud, or in trust to raise money thereon by mortgage, which trust was not performed, or to an equitable lien thereon for the sum of $1,500, and demanded judgment for a reconveyance of both parcels and for $10,000 damages. It appears that Spellman, while he had title, made and executed a sufficient agreement in writing to reconvey one of the parcels to the appellant in consideration of $100 and 50,000 shares of stock in the Colorado Gold & Silver Mining & Development Company, to be delivered upon the organization of said company. The appellant showed that he paid the cash consideration pursuant to this agreement to reconvey, and was ready and willing to perform by delivering the stock as soon as the corporation was organized; that in the meantime, and before the organization of the company, Spellman departed from the state, and remained absent, so that a tender could not be made; that by letter and through counsel he tendered the stock to Spellman and to plaintiffs as soon as he obtained it. He also showed that Spellman induced the conveyance of the other parcel upon the representation and agreement that he could and would obtain a loan of $3,000 by giving a mortgage thereon before putting the deed on record, and would turn the proceeds thereof over to appellant; that in violation of this agreement he recorded the deed, and conveyed to plaintiffs, without securing the loan. This and other evidence introduced in behalf of appellant was sufficient to show that Spellman executed the conveyance to the plaintiffs in fraud. of the rights of the appellant, and with the intention of defeating appellant's right to a reconveyance of one of the parcels, and to an in and 120 New York State Reporter terest in Spellman's share of the other, to the extent of one-half of the proposed loan. Upon proof of these facts, it was incumbent upon the plaintiffs to show that they were bona fide purchasers for value. They did not testify, nor was Spellman examined as a witness. The only consideration recited in the deeds from Spellman to the plaintiffs is $1, and there is no evidence of any other consideration passing between him and the plaintiffs. The plaintiffs claimed to be tenants in common of both parcels with appellant. The appellant shows that he is, in equity, entitled to a conveyance of one of the parcels, and either to a conveyance or to a vendor's lien upon the other for $1,500, and interest thereon from the time the loan should have been procured. Of course, the appellant will not be entitled to a reconveyance unless he is prepared to perform the contract on his part by delivering the stock. The appellant does not allege a tender of the stock to the respondents, but he does allege readiness and ability to perform, and that a tender was prevented by the continued absence of Spellman from the state. He, however, proved upon the trial, without objection, an actual tender to the plaintiffs, and no question as to the sufficiency of the tender or pleading was raised upon the trial. This being a suit in equity, the appellant was not obliged to bring the stock into court and make a tender upon the trial, but the right of the plaintiffs to the stock will be secured by a provision in the decree for delivery thereof to them upon their conveying to appellant. Pomeroy's Eq. Juris., vol. 3, § 1407, and note: Crary v. Smith, 2 N. Y. 60-65; Stevenson v. Maxwell, 2 N. Y. 408-415; Freeson v. Bissell, 63 N. Y. 168; Thompson v. Smith, Id. 301; Powell v. Linde Co., 49 App. Div. 286, 64 N. Y. Supp. 153, and cases cited. It follows, therefore, that the interlocutory judgment, which adjudges that the parties are tenants in common of both parcels, as alleged in the complaint, is erroneous, and must be reversed, and a new trial granted, with costs to appellant to abide the event. VAN BRUNT, P. J., and MCLAUGHLIN and HATCH, JJ., concur. INGRAHAM, J., concurs in result. (91 App. Div. 327.) BUTLER v. BUTLER. (Supreme Court, Appellate Division, First Department. February 11, 1904.) 1. CUSTODY OF CORPSE-ACTION-INJUNCTION-PENDENTE LITE. In an action to permit the plaintiff to take charge of the body of his deceased father, as against his stepmother, where an injunction pendente lite has been issued restraining the defendant from interfering with the body, which lies in the receiving vault of a cemetery, the injunction should be continued without any order awarding the custody of the body till the final determination of the action. Appeal from Special Term, New York County. Action by George Howard Butler against Mary Egan Butler to permit the plaintiff to take charge of the body of his deceased father. From an order continuing an injunction pendente lite, re straining the defendant from interfering with the body, and awarding the custody of the body to the plaintiff, defendant appeals. Reversed, and prior injunction order continued till the final determination of the action. Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ. Stephen J. O'Hare, for appellant. HATCH, J. It appears from the papers herein that Asahel Seward Butler was married to Miss Gertrude Sweetser on the 27th day of October, 1874, by Dr. Storrs, in the Church of the Pilgrims, a Congregational church in the city of Brooklyn; that two children. were born of the marriage-Marian Butler, and the plaintiff, George Howard Butler. Marian Butler died in 1882, and was buried in a burial lot in Greenwood Cemetery according to the rites and forms of the Protestant Church. Plaintiff's mother, Mrs. Gertrude Butler, died on or about September 9, 1899, and was buried in the same lot by the side of her daughter. This lot belonged to Asahel Seward Butler up to the time of his death. Asahel Seward Butler remained single until he married Mary Egan on or about April 28, 1903. They were married by a Roman Catholic priest in the city of New York. Asahel Seward Butler died intestate November 16, 1903, having been married about 61⁄2 months. Mary Egan Butler, the widow of the deceased, is a member of the Roman Catholic Church, and intends to bury his body in the Roman Catholic burying ground, under the rites of that church, against the protestations and wishes of the plaintiff. The plaintiff avers that his father had told him many times that he desired to be buried in Greenwood Cemetery, by the side of his first wife and daughter, and that frequently during the past four years plaintiff and his father visited the family plot in Greenwood Cemetery, and that the father purchased flowers to strew upon the grave. Anne Dudley Butler, a sister of deceased, stated that frequently since the second marriage of her brother he had stopped at her house on Sunday morning, and told deponent that he had been to place carnations upon his wife's grave-carnations having been her favorite flowers; that she had also heard her brother say that he wanted to rest in the lot in Greenwood Cemetery, as that was the only place he owned in the world. The defendant, in her replying affidavits, states that prior to their marriage it was agreed that all the children of the marriage should be brought up in the faith of the Roman Catholic Church; that, as soon as he could inform himself, he desired to accept that faith; that pursuant to his directions she purchased books for him to read that would furnish him with information concerning the Roman Catholic Church and its doctrines, and that upon the day of his death he was regularly admitted into the communion and membership of that church. After their marriage neither of them had contemplated his death, and that the subject of where he wished to be buried had never been mentioned between them. Since the temporary injunction was served upon her, the funeral services had been held, and the body of her husband was rest and 120 New York State Reporter ing in the receiving vault of the Roman Catholic Cemetery of Calvary, Long Island, N. Y., pursuant to the direction of said order. The court below made an order granting the custody of the body to the plaintiff, and from such order this appeal is taken. It is claimed upon the part of the defendant that numerous authorities which she cites establish the rule that, in the absence of any direction or request by the deceased as to his place of burial, the law vests in the widow the absolute right to select the place of interment, and that such right is superior to the right of children; and in support of such proposition she relies upon Foley v. Phelps, 1 App. Div. 554, 37 N. Y. Supp. 471; Secord v. Secor, 18 Abb. N. C. 81; Mitchell v. Thorne, 57 Hun, 405, 10 N. Y. Supp. 682; and other cases. The learned court below was of opinion that such rule should not be applied in this case, but that the law as announced in Snyder v. Snyder, 60 How. Prac. 368, should be applied. This case, in substance, holds that the right to select the place of burial is not absolute in the wife under the circumstances mentioned, but that the determination is to be made, based upon the equities which the particular case presents. Adopting this rule, the court reached the conclusion that, as the deceased owned the burial plot in the cemetery in which the plaintiff desired that his body should be interred, such place should be selected, and to carry out such purpose the body was awarded to the custody of the plaintiff. We do not find it necessary in the disposition of this appeal to determine the particular rule which should be adopted and applied; nor do we think the disposition of such question should be made until the trial of the action has been had. It is readily apparent that the religious convictions of an individual may furnish a controlling element in making selection of his final resting place. In the Roman Catholic Church the place of burial is held to be consecrated ground, and the belief in a future existence held by the members of that church makes the right of burial in consecrated ground a matter of serious concern. On the other hand, the deceased during his lifetime selected a lot, in which were interred the members of his family, and, what is a reasonable presumption at that period of his life, he contemplated being also buried therein. After the death of his first wife he expressed such intention, and continued to bestow upon the grave of his departed wife and child tender memorials of love and affection. While it is testified by the plaintiff and a sister of deceased that the deceased had expressed an intention of being buried in his lot, yet it does not clearly appear that he made expression of such intention after his marriage to the defendant; but that, on the contrary, he had proposed to become a communicant of the church to which she was attached, and did in fact partake of the communion prior to his death. Under these circumstances we think that the final disposition of the body of the deceased should await a determination of the trial of this action. The remains are now in the receiving vault of Calvary Cemetery. There they can remain without interference with the rights of the parties to this action until by solemn judgment, after all the proofs have been adduced, the final resting place of the body is decreed. This result was effectuated by |