Judgment unanimously affirmed, with costs. While we are "of opinion that the action was not properly brought by the plaintiffs’ testator, all the parties are now before the court and this action in equity may be determined upon the present pleadings. In effect the action is one on behalf of defendant Schrader. Upon the facts presented at the trial, we are of opinion that the cemetery was not warranted in preventing the erection of the mausoleum. In addition to the findings upon which this judgment is predicated, we find that the plaintiffs’ testator proceeded with diligence in the performance of the contract and that the mausoleum proposed to be erected was neither offensive, improper nor injurious to the appearance of the surrounding lot or grounds. Present — Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ. Settle order on notice. [135 Misc. 81.]