The hearing upon the demurrer to the separate defense was brought on as a contested motion and the demurrer sustained. *90Upon the hearing of that motion and upon this appeal the defendant seeks not only to sustain the defense demurred to but also attacks the sufficiency of the complaint. The action is by a widow for damages by reason of an unauthorized autopsy performed upon her husband’s body after he had died in defendant’s hospital.
After alleging defendant’s incorporation and its maintenance of an hospital the plaintiff shows that her husband was received therein as a paying patient in March, 1914, and that after an operation had been performed on him, he died in said hospital on March It, 1914. Then follow the allegations upon which it is sought to hold defendant liable for damages. They read as follows: “Seventh. Upon information and belief,
thereupon the body of the said Bobert Hasselbach was, and until its removal hereinafter mentioned from the said hospital remained, under the care, management and control, and in the possession and custody, of the defendant, subject to the rights of this plaintiff in respect of the said body.
“Eighth. Upon information and belief, thereafter and in the said hospital owned, managed and controlled by the defendant as aforesaid, and while the said body was in the possession and under the control of the defendant as aforesaid, there was wantonly, unlawfully and in violation of .the rights of this plaintiff, and in violation of the Penal Law of this State, performed and perpetrated upon the body of the plaintiff’s said late husband a post mortem operation or autopsy.”
The separate defense demurred to reads as follows: “ III. The defendant alleges that at all the times mentioned in the complaint it was and still is a benevolent and charitable corporation, organized under Chapter 319 of the Laws of 1848, ‘ An Act for the incorporation of benevolent, charitable, scientific and missionary societies, ’ and as such corporation maintained for charitable and benevolent purposes the hospital referred to in the complaint herein, and that the person or persons performing the acts complained of in the complaint herein, were not servants or agents of the defendant, and at the time such acts were performed were pursuing an independent calling, and were not then acting under the direction or instruction of the defendant.”
It will be seen that not only does the plaintiff fail to allege *91that the autopsy was performed by the defendant, or by any of its servants or by its consent, knowledge, privity or procurement, but she expressly admits by her demurrer that the person or persons performing the autopsy were not servants or agents of the defendant, and at the time the autopsy was performed were pursuing an independent' calling and were not then acting under the direction or instruction of the defendant. The question is, therefore, squarely presented whether or not the defendant owed an absolute duty to plaintiff to protect her husband’s body against a post mortem autopsy by any person whomsoever, and to deliver said body to her in the same condition that it .was immediately after death. The plaintiff insists that defendant was under such a duty. We do not so understand the law. Certainly no reported case has gone to this extent.
It is well settled that in the absence of a contrary testamentary disposition, the right to the possession of the body of one who has died belongs to the surviving husband or wife or next of kin for purposes of preservation and burial, and that this right is infringed upon by any one who unlawfully mutilates such a body without the consent of the person entitled to the possession thereof (Darcy v. Presbyterian Hospital, 202 N. Y. 259; Foley v. Phelps, 1 App. Div. 551; Larson v. Chase, 47 Minn. 307), and for a violation of this right damages maybe recovered for the injury to the feelings and the mental suffering resulting from the unlawful act. In all the cases, however, in which such a right of action has been upheld the person held liable has either been the one who committed the unlawful act, as in Foley v. Phelps, or one who caused or procured the autopsy to be. made, as in Darcy v. Presbyterian Hospital. None of them, therefore, are authority for the proposition contended for by the plaintiff in this action. Nor does the defendant’s action or non-action as alleged fall within the purview of the Penal Law which declares that “a person who makes, or causes or procures to be made, any dissection, of the body of a human being, except by authority of law, or in pursuance of a permission given by the deceased, is guilty of a misdemeanor. ” (§ 2214.) It is not alleged that this defendant either made, or caused or procured to be made the autopsy complained of.
Nor can the demurrer be upheld by analogy to a case of a *92bailment of goods where a warehouseman has received the goods in an undamaged condition and delivers them damaged. In the latter case liability is predicated upon the presumption that the bailee has been guilty of breach of contract, or negligence or conversion, and the damages recoverable are for the injury to the property rights of the bailor, and even in such a case the complaint must allege the negligence or conversion of which the damaged condition of the goods is but evidence.
It is well settled, however, that there are no property rights, in the ordinary commercial sense, in a dead body, and the damages allowed to be recovered for its mutilation are never awarded as a recompense for the injury done to the body as a piece of property. (Beaulieu v. Gt. Northern Ry. Co., 103 Minn. 47.) The question at bar is somewhat analogous to that recently considered by this court in Coleman v. St. Michael’s Protestant Episcopal Church (170 App. Div. 658), wherein it was sought to hold a cemetery owner liable for the theft of a body from the cemetery by some third person. The defendant’s liability in that case was sought to be predicated upon some presumed duty to take positive precautions to prevent such an unlawful act, but it was unanimously held that no such active duty was imposed upon the corporation. So in the present case no obligation is imposed by law upon the defendant except to refrain from actively participating, by its servants or otherwise, in the unlawful mutilation of the body of a patient who dies within its walls, and from causing or procuring such a mutilation to take place. To go further would be to charge it as an insurer, and to hold it to an even stricter accountability than would be imposed upon a bailee of merchandise.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the demurrer overruled, with ten dollars costs, with leave to plaintiff to amend her complaint within twenty days upon payment of costs.
Clarke, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer overruled, with ten dollars costs, with leave to plaintiff to serve amended complaint on payment of said costs.