Zimmer v. Congregation Beth Israel

RICHARDS, J.

This appeal is from a judgment of the superior court in and for the city and county of San Francisco in favor of the defendants in an action instituted by the plaintiffs having for its purpose the prevention of the defendants from interfering with the attempted effort and action of the plaintiffs to place a tombstone of a certain type upon and over the grave of one Bertha Zimmer, the deceased wife of the plaintiff Max Zimmer and’ sister of the plaintiff Joseph B. Kasser, the said grave of said decedent being located in a certain portion of a cemetery known and designated as “Salem Cemetery,” located in the county of San Mateo and maintained and conducted by the defendant Congregation Beth Israel, a religious association, for the burial of persons of the Jewish faith. The decedent, Bertha Zimmer, died on January 20, 1922, in the city of San Francisco. Subsequent to her death her husband purchased from said defendant Congregation Beth Israel the right to bury the body of his deceased wife in said Salem Cemetery and in a portion thereof wherein single graves are sold to persons who do not desire to purchase more than the space for one

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grave. At the time of said purchase and for some years prior thereto the said defendant Congregation Beth Israel had in operation certain duly adopted rules and by-laws of said association with relation to the size, type, and style of tombstones to be permitted to be erected or placed upon and over graves in the several portions or divisions of said cemetery, depending upon their location, which rules and bylaws had, since their adoption, been uniformly enforced. That by virtue of such rules and by-laws no person was to be permitted to erect a full-length tombstone over any grave in the division of said cemetery known and maintained as a single grave portion or division thereof by said rules and by-laws. Said rules and by-laws were peculiarly applicable to those portions or enlargements of said cemetery which had been opened up for burials since the year 1917, and while such rules and by-laws could not be given retroactive operation in the other portions of said cemetery wherein burials had been had and tombstones and monuments erected in the earlier history of said place of interment, they were given application uniformly to the portions and divisions of said cemetery which had been opened up for interments and in which purchases of plots for single graves had been made since said date. That the purpose underlying the adoption and uniform enforcement of said rules and by-laws within the above-named portions and divisions of said cemetery was that of facilitating the care and beautification of said cemetery in the interest of all of those who had or should acquire burial plots therein. The trial court has found upon sufficient evidence that such rules and by-laws were reasonable and were uniformly applied and enforced within the above-named portions or divisions of said cemetery. The said rules and by-laws further provided that no monuments or other adornments of burial lots were to be constructed or placed thereon without the approval of the cemetery committee of said association, and particularly that no monument or gravestone was to be erected thereon until the inscription thereof had been approved by the rabbi of said congregation. The purchase of the burial plot for the interment of said Bertha Zimmer, deceased, in said cemetery had been made by her said surviving husband long after the date of the adoption of said rules and bylaws and while the same were in full and uniform operation