Gostkowski v. Roman Catholic Church of Sacred Hearts of Jesus & Mary (237 A.D. 910, 1933)

Judgment of the County Court of Suffolk county reversed on the law and the complaint dismissed, without costs. The husband’s right to the possession of the dead body of his wife was paramount to that of the next of kin. This being so, he is the only one who can maintain an action for the wrong committed by the defendants. (See Foley v. Phelps, 1 App. Div. 551, 554.) This action for a trespass and for interference with the right of possession of the corpse rests entirely with the husband. He paid for and received the right of burial in the plot. The common law gives him the sole right to the possession of his wife’s corpse, both for burial purposes and for its protection thereafter, and he is the only one who can maintain this action. Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ., concur.