(dissenting.) The action has been brought to secure the interment of the remains of John McGuire, deceased, in Calvary Cemetery, Queens county, in the state of Hew York. The cemetery was acquired and controlled by the defendants under an act of the legislature conferring that power upon the trustees of St. Patrick’s Cathedral. The intestate died on the 19th of February, 1888, and an application was made for his interment in the cemetery, which was refused by the trustees, under the direction of the clerical authorities of the Catholic Church. In his life-time, the intestate, for the sum of money mentioned in it, received the following receipt and agreement:
“No. 726. Calvary Cemetery, Hew York, November 22, 1870.
“266 Mulberry street.
“Received from John McGuire ten dollars, being the amount of purchase money of a grave, two feet by eight, in Calvary Cemetery, with privilege to erect a head-stone thereon.
“D. Brennan, Supt. of Office of Calvary Cemetery.
“Grave 9, plot F, section 8, range 56.”
And prior to his own decease the grave mentioned in the instrument was actually located, and the remains of his wife were interred therein. The grave, as it was located, was sufficient in capacity for the interment of more than two dead bodies; and the object of the action, as well as of the application to the authorities controlling the cemetery, was to secure the interment of the remains of the intestate in the same grave; and by the language of the instrument, and the location of the grave, his representative was entitled to insist upon that right, if the intestate had observed the laws and discipline of the church under whose authority the property was acquired and controlled. The instrument as it was issued, and under which the grave was located, created a privilege or license to this effect, without conveying a title to the land. Kincaid’s Appeal, 66 Pa. St. 411; Page v. Symonds, 63 N. H. 17; People v. Trustees, 21 Hun, 184. And the administrator was empowered to secure this interment if the intestate had complied with the laws of the church controlling the cemetery up to the time of his decease. 2 Bl. Comm. 508; Williams v. Williams, L. R. 20 Ch. Div. 659. And that was the view which was adopted and followed in the decision made at the special term; for it was there held by the court that the plaintiff, as the personal representative of the deceased, was vested with whatever right existed to enforce the contract to be implied from or contained in this instrument. The action, accordingly," did not fail because of any infirmity in the right of the plaintiff, as the personal representative, to maintain it, if that could be done legally upon the facts made to appear by the evidence.
*355Upon the trial of the action, accepted compilations of the laws of the church were proved and read" in evidence, and these laws or regulations defined and declared the causes for which the interment of a deceased person might be forbidden in the consecrated cemetery and grounds of the church; and so far as they existed, and were applicable to this subject, they are required to be observed in the determination of the controversy which has arisen concerning the right of the deceased to burial in this cemetery. By these laws or regulations it was necessary that the deceased should have been during his life a member of the Catholic Church. If he were not such a member, then his personal representative could claim no right to the interment of his remains in these grounds. Dwenger v. Geary, 113 Ind. 106, 14 N. E. Rep. 903. But the right to the interment of these remains was not denied for want of any compliance on the part of the deceased with this regulation or requirement. Neither could it have been; for it was stated positively by the daughter of the deceased, who was sworn as a witness upon the trial of the action, that her father was a member of the Catholic Church in his life-time, and she was no further interrogated as to the correctness of this statement made by her. It appears tohave been accepted as truthful, and it was assumed during the progress of the trial that he was a member of this church. And the complaint, as it is contained in the case, asserts that to have been the fact; for no more was stricken out on the application of the plaintiff than the statement that he died in full communion with the church, leaving the complaint, as it now forms a part of the case, with the allegation that he did die in the faith of the Roman Catholic Church. And it was not for want of any additional evidence as to this fact that the interment of the remains in the cemetery was denied by the authorities of the church or by the trial court. But that denial appears to have proceeded upon the conclusion adopted by the court that it properly belonged, under the usages and discipline of the church, to the decision of the ordinary of the bishop of New York to determine whether .the deceased was entitled to be buried in this cemetery; and the ordinary having made a decision adversely to this right, upon evidence sufficient to give him jurisdiction to act, the remains were not entitled to burial in the consecrated ground of the cemetery.
It is undoubtedly the law that the courts will not review conclusions or decisions of the ecclesiastical authorities of the church relating to mere matters of faith, practice, or discipline. Dutch Church v. Bradford, 8 Cow. 457; People v. German, etc, Church, 53 N. Y. 103; Shannon v. Frost, 3 B. Mon. 253; and German, etc.. Church v. Com., 3 Pa. St. 282, 291. But this exclusive authority vested in the church is not applicable to the disposition or determination of rights or interests in property, or those derived from contracts lawfully entered into. As much as that was stated in Bouldin v. Alexander, 15 Wall. 131. And it necessarily follows from the nature of the transactions through which rights or interests in property, by, virtue of contracts, may be created, that they are to be governed by the secular law, as they are distinguishable from ecclesiastical subjects, and may only be divested, impaired, or forfeited by reason of some act or circumstance upon which the right or contract has been made dependent, or for the violation of rules or regulations which by the sanction and intention of the parties have been made applicable thereto. Rights of this description are recognized and protected by the general law of the state, and that has carefully defined the manner in and the causes for which they may be lost or forfeited; and under that law, if the deceased, as a matter of fact, had violated or failed to observe any of the laws or regulations of the church applicable to and controlling this contract, then the plaintiff could not claim or insist upon his interment in this cemetery. But neither one of these rules or regulations vested the clerical authorities of the church with jurisdiction to determine this right of interment in such a manner as to conclude the party entitled to insist upon the observance of this *356agreement. No hearing whatever has been provided for or took place before the vicar general, by whose order the interment of the remains in these grounds was forbidden; but he acted solely upon information which he had received from no directly responsible source, in reaching the conclusion that the deceased had forfeited his right to this burial. This was done, according to his own testimony, upon mere information,—not a safe subject to be relied upon in any case for the determination of rights of property or contract,— and the determination was made without any notice to, consultation with, or hearing of any person entitled to represent the deceased, or to controvert the correctness of the information received by this clerical official; and under these circumstances the law will not permit a determination arrived at in this manner to forfeit the right which the deceased may have secured through this instrument to burial in the consecrated cemetery of the church. The legal principle, on the contrary, has been declared to be that “there is nothing which our law denounces more explicitly than an adjudication of the rights of a party without offering him an opportunity of being heard in his defense.” People v. Soper, 7. N. Y. 428, 431, and Loubat v. Le Roy, 40 Hun, 546, follows and enforces this principle.
The determination which in fact was made in this manner proceeded upon information that the deceased had died at the Academy of Music at a meeting addressed by Dr. McGlynn, who had been excommunicated from membership in the Catholic Church, and that he was in reality a confederate and abettor of this deposed priest. The vicar general had been informed that McGlynn had abused and denounced the pope, and it was considered a scandal for any good Catholic to be present at his meetings. His own testimony is that he did not know the deceased, but that he had “heard that he had been applauding Dr. McGlynn in abusing the pope a few minutes before his death.” Upon his cross-examination he testified that it was a public fact that the deceased had died there. Thereupon the following questions were put to and answered by the witness: “ Answer. I was not there. I did not see him die. Question. You say it came up from the trustees. By what means? A. The undertaker called upon them. Q. How do you know? A. The clerk told me. Q. His name? A. Mr. Brennan. Q. Where did he tell you so? A. Oh, I can’t remember the exact spot. Q. When did he tell you so? A. Either the day after his death or the following day. Q. What was said? A. Simply the fact that he died at the Academy of Music. Q. And on that you issued the order forbidding the burial? A. I did, sir.” These reports, with the exception of that as to the fact of the deceased dying at the Academy of Music, were of a loose and unreliable character, and could not legally have been the subject of binding action by the vicar general. They were in no sense so authentic as to warrant or justify the conclusion that the deceased approved of the actions or expressions of McGlynn, or applauded any remarks or imputation made by him at the meeting, in this manner referred to, or at any other, and afforded no grounds of jurisdiction upon which he could legally or properly act in declaring the right of the deceased, under this contract, to have been forfeited by any misconduct on his part. The evidence was not of such a nature as to be acted upon, and therefore afforded no jurisdiction over the subject-matter; and the want of jurisdiction, or the power to act, may be questioned in the courts by legal proceedings whenever the legality of the action taken shall be brought in controversy. Ferguson v. Crawford, 70 N. Y. 253, 257; Cagwin v. Town of Hancock, 84 N. Y. 532, 541; Craig v. Town of Andes, 93 N. Y. 405. And to afford jurisdiction by way of support for a quasi judicial determination, it must proceed upon at least colorable evidence of the fact. But here no such, or indeed any, evidence was supplied; and this, as well as the circumstances that the consideration given to the subject was wholly without notice or an opportunity to be heard by any person interested in protecting the right of the deceased against these aspersions, ren*357dered the determination which was made inoperative for the want of authority over it. But beyond tin's, according to the laws and regulations of the church, which have been made a part of the evidence in the case, the deceased could not be deprived of the right to burial in this cemetery by a simple determination that it had been forfeited or lost by him; for the laws of the church have made this disability to depend entirely, where the deceased shall have been a member of the Catholic Church, upon some act, misconduct, or omission of the deceased. These laws and regulations have in no manner provided that the right to burial in the cemetery, -under an instrument of this description, can be taken away merely by the dictum or decision of a member of the church hierarchy; but the right to such burial by these laws has been declared to be lost or forfeited only by reason of actual misconduct on the part of the person in whose behalf it may in this manner be claimed. It is a penalty imposed for misconduct, either by means of affirmative acts, or delinquent omissions to act, on the part of the deceased. Among the causes for which burial in consecrated ground may be refused are the fact that the deceased died a public sinner, or that he failed to perform some affirmative duty forming a part of his obligations as a member of the church, or had committed some act of scandalous misconduct. The law of the church in these and other matters attaches the loss or forfeiture to the act itself, or to the delinquency of the party, and not to a mere dictum or determination of any member of the clerical authority of the church. And to bring this case within these laws it was necessary, therefore, that the deceased should be shown, as a matter of fact, by way of defense to the action, to have violated or become chargeable with some act of misconduct prohibited by them; thereby forfeiting, under their authority, his right to burial in the consecrated ground of the church. But no such proof in any form has been included in or made a part of this ease.
The evidence concerning the conduct of the deceased was obtained from witnesses either related to or knowing him well, and seeing him at meetings of the Anti-Poverty Society, and of the parishioners of the church of which McGlynn had previously been the pastor; but no witness testifies to the fact that he was present on any occasion when McGlynn addressed the people who. were assembled, or that he in any manner had applauded or approved of his conduct, or sentiments, or the principles which he endeavored to maintain; and upon the occasion when he was at the Academy of Music, the proof is positive, from at least two witnesses, whose evidence is not contradicted, that he died half an hour before the proceedings of the meeting had commenced, and before Dr. McGlynn made his appearance. All that was shown against him was that he was present at the meetings already referred to, but not when Dr. McGlynn was either officiating, or making any remarks or allusions whatsoever. There was no evidence that upon any occasion he had either misconducted himself, or neglected any of his duties or obligations as a member of the Boman Catholic Church. And that was the view which was adopted by the judge presiding at the trial; for by his fifteenth finding he found the facts to be “that the said John McGuire did not at any time after the said 22d day of November, 1870, violate any of the rules or regulations for the management of the said cemetery, and interments therein, theretofore made by the defendants, nor any laws of the Boman Catholic Church theretofore made respecting the burial of the bodies of its deceased members.” And in this state of the evidence, as it cannot be affirmed that he had violated any rule or regulation of the Catholic faith, it follows that he did not forfeit his right to burial in this cemetery.
If, upon a mere mistaken view of the facts produced by unfounded reports, which was all that was before the vicar general, this right of burial may be forfeited, then no security can certainly exist for the protection of any person acquiring and paying for this privilege of burial; for even the most correct *358religious deportment may be sacrificed by the malignant and untruthful reports of persons misrepresenting the acts, conduct, or sentiments of deceased persons. Instead of the right being maintained, as the law requires it to be, as one of a proprietary character, it may then be overthrown or forfeited, after the decease of the party securing it, without any available means of avoiding the result. No Catholic, whatever his standing may be, will be entirely removed from this danger, if upon mere reports, turning out, as they have in this instance, to be untruthful and unfounded, he can be deprived of burial in the consecrated ground of his church by the action of one of its offir cials, induced by reliance upon these reports. The' only safety which exists is that already indicated in reliance upon and mairitaining the laws of the church itself, which require, not rumors or information, but that actual misconduct, or the omission to observe specific obligations, shall be proven to have taken place before a contract or instrument of the description of that, for a good consideration, delivered to the deceased, shall be forfeited or avoided. That proof is wholly wanting in this case, and the judgment should be reversed, and a new trial ordered, with costs to the plaintiff to abide the event.