The primary question here is whether appellant comes within section 71 of the Membership Corporations Law. It appears to be formed to teach the Hebrew religion, especially its ancient law (Torah), and is organized as a religious corporation. It is only in the instance of a membership corporation that the court’s consent can be substituted for that of the corporation, so as to authorize such disinterment and removal of a body lawfully buried in a cemetery. (Matter of Cohen, 76 App. Div. 401; Matter of Owens, 79 id. 236; Matter of Berezoff, 166 id. 903.)
We are constrained, therefore, to-hold that the order should be reversed, with ten dollars costs and disbursements, and the petition denied, without costs.
This determination, however, is without prejudice to a suit in equity or otherwise for the enforcement of the rights of the family of the deceased either as to a deed of the lot, or in regard to the removal of the body therefrom. (Cohen v. Congregation Shearith Israel, 114 App. Div. 117; affd., 189 N. Y, 528.)
Jenks, P. J., Mills, Rich and Kelly, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and petition denied, without costs; same to be without prejudice to petitioner’s remedy by a suit in equity or otherwise.