Munson and Sill agt. Willard. There is still another question presented by this motion. I refer to the effect which the recent change in the law in regard to the examination of the parties as witnesses, should have upon the rule of law involved in this motion; as the consideration of this question, however, in the view I have taken of the subject, is not necessary to the decision of the motion, I shall not attempt to pass upon it here. The motion must be denied with ten dollars costs for opposing. SUPREME COURT. MUNSON AND SILL agt. WILLARD. Twenty days is a reasonable time to be allowed for the service of a complaint, after demand under section 130 of the Code. (The opinion in Colvin agt. Bragden, ante page 124, concurred in. Jefferson Special Term, Dec. 1850. This suit was commenced by summons served the 13th day of November last. On the 19th of the same month, the defendant's attorney in pursuance of sec. 130 of the Code, demanded in writing a copy of the complaint; the demand not being complied with on the 21st the papers for this motion to dismiss the complaint under section 247 were served. J. F. STARBUCK, for Defendant. T. C. CHITTENDEN, for Plaintiff. HUBBARD, Justice,―The question arising on this motion is whether the plaintiff has unreasonably neglected to serve the complaint. No time is prescribed by the statute or rules of the court within which service is to be made, and hence as the practice now is, the question of reasonable diligence must be determined by the facts and circumstances of each case. To prevent the evils of uncertainty and contrariety of decisions resulting from such a practice, some general rule should be established. Before the Code, a standing rule defined the time of service of the declaration after notice (Rule 14 of the Rules of 1847). Munson and Sill agt. Willard. Thirty days is there prescribed to be a reasonable time. Under the Code the summons, as the commencement of the suit, takes the place of the capias ad respondendum, and by analogy, thirty days would be a reasonable time for the service of the complaint. Perhaps that length of time is not requisite in ordinary cases, but where a rule of general application is established, ample time should be given to prepare the pleading and serve in the extreme parts of the state. In this case the parties and attorneys reside in the same place, but the requisition of the defendant that the complaint be served within two days, can not be sustained. Under any circumstances that short time is unreasonable, requiring a most extraordinary diligence. The present practice should be assimilated to the former as far as practicable in matters sanctioned by time and experience, and hence twenty days at least should be allowed within which to serve complaint after demand. The necessity for time is as imperative now as formerly. This motion is made, it is alleged, upon the authority of the case of Littlefield vs. Murin (4 Howard, 306). There is a remark, in the opinion of that case, to the effect that perhaps under ordinary circumstances, twenty-four hours would be a reasonable time within which to serve complaint after demand. But it is to be observed that the question of diligence did not arise; the decision was upon the principle that, an omission to serve from August to December, created a presumption of abandonment of the suit. The doctrine of that case is sound; but when Justice Allen alluded incidentally to a supposed analogy with the practice under a peremptory order for a bill of particulars, he evidently from his guarded language, expressly stating that the question of diligence did not arise; did not anticipate that the case was to be quoted as authority requiring the complaint to be served in the short space of twenty-four hours. That case does not authorize this motion. The motion must be denied, but without costs, as the practice is unsettled. Since the decision of this motion as above, the case of Colvin vs. Bragden (5 How. Pr. R. 124), has been published. Justice PAIGE decides that twenty days is a reasonable time, ordinarily, Schoonmaker agt. The Ref. Prot. Dutch Church of the town of Kingston, to serve complaint, after demand. In that decision I fully concur. The time is perhaps sufficient to meet all exigencies of a reasonable and convenient practice. Such a general rule would tend to restore the harmony and beauty of the former system in motions of non pros. like the present. 5 How. 265-FOLLOWED, 6 How. 208, 211. Contra, 5 Id. 272. SUPREME COURT. SCHOONMAKER agt. THE MINISTER, ELDERS &C. OF the Reformed An application to dissolve an injunction made upon the pleadings-the answer 66 Schoonmaker agt. The Ref. Prot. Dutch Church of the town of Kingston. A dedication to public or pious uses, depends upon the intention of the original owner. Long usage, with the continued acquiescence of the original owner, is usually sufficient evidence of such dedication. But where there are circumstances which rebut the presumption of an intention to dedicate arising from long usage, there is, in fact no dedication. At Chambers, November 1850. This was a motion to dissolve a temporary injunction granted by a judge at chambers, re straining the defendants from erecting any church edifice or other building upon the old burying ground situate in the village of Kingston, or digging up or removing any earth therein, or therefrom, or doing any other act or thing, so as in any way or manner to interfere with the graves, or grave stones, erected at the graves of the ancestors, brother, husband and children of the plaintiff, or enclosing or covering such graves by, or with any structures or erections whatever, and from diverting the grave yard to building purposes, or to any other purpose than as a place of repose for the dead. The plaintiff alleges, in her complaint, that the ground in question had been used by the inhabitants of Kingston for a burying ground from the first settlement of the town until the year 1832, when from prudential motives, the directors of the village corporation prohibited further burials there; that the families of the older residents of the town had in the ground, their particular localities for the burial of their dead; that a portion of the ground has been occupied by the plaintiff's family for that purpose, and a great number of her relatives have been buried there, and suitable grave stones have been erected and maintained at their graves; some of them by and at the expense of the plaintiff herself; that the defendants have resolved to proceed forthwith to erect a large stone edifice upon the burying ground, and in doing so, will cover, build over, or disturb the graves of the plaintiff's relatives, and, in digging for and preparing the foundation of the church, they must, of necessity, disturb the ashes and violate the graves of these relatives, and remove the monuments which mark their localities. The plaintiff insists that the lot has been dedicated and appropriated to the public use as a burying ground, Schoonmaker agt. The Ref. Prot. Dutch Church of the town of Kingston. and that the defendants have no right or authority to divert it to any other use. The defendants state that they were incorporated in 1719, and by their charter they had confirmed to them the title to their church lot and burying ground, which had been previously, and while they were yet unincorporated, granted to them by the trustees of the freeholders and commonalty of the corporation of Kingston; that they have ever since been seized in fee of the lot and have held the sole possession, occupancy and control thereof; that no burials have ever been made there without the consent and permission of the defendants, and under the direction of their sexton or other officers; that no right of burial, in any particular part of the premises, has ever been granted by the defendants, or acquired by any other person; that from the year 1688 to 1832, the defendants had maintained a church edifice upon the ground in question; that in 1832 they erected a new house on the opposite side of the street, which they have since occupied, but that now they are desirous of erecting a new and larger house upon or near the site of their old church edifice, and have commenced making arrangements for that purpose. The defendants further state, that in making their arrangements and settling their plans they have had express reference to the present condition of the ground and its former use, and with a view to leave the remains of the buried dead undisturbed, have determined to build no basement to their edifice; to preserve all the grave stones and other memorials designating the graves, and either lay them within the cdifice or remove them to some other portion of the ground at their own expense, as the surviving friends may desire; and generally, to remove and disturb no remains whatever, except at the request of relatives and friends. Some other facts are stated both in the complaint and in the answer; but this statement is sufficient to present the question involved in the motion. M. SCHOONMAKER, for Plaintiff. J. C. FORSYTH and J. K. PORTER, for Defendants. |