Dayton, J.
Epitomized the complaint is as follows: Plaintiff was incorporated under chapter 206, Laws of 1867 of this State, by direction of the Presbytery of blew York, and is the incorporated “ governing body ” organized under the Religious Corporations Law of this State. The Presbytery is a judicatory of the Presbyterian Church of the United States of America, which includes all the Presbyterian congregations within the boroughs of Manhattan and the Bronx, in this city, thereby having jurisdiction of the defendant Westminster Presbyterian Church of West Twenty-third Street, which was organized by the union of several constituent congregations March 24, 1812, October, 1856, April 8, 1889, by appropriate ecclesiastical permission and action as a constituent part of the Presbytery of blew York, and as such received its property and financial aid through and in all ecclesiastical matters subject to the control and discipline of said Presbytery. On March 17, 1908, said Presbytery at a meeting dissolved said church and congregation on account of pecuniary and spiritual turmoil, and authorized the trustees of said Presbytery to take charge of the property “ belonging to the Westminster Presbyterian Church of West Twenty-third Street, blew York, including balance of deposits ” and other specified funds, together with the books, papers and records of said church, 'and referred the question of “ utilizing said church building for religious services in the future and the method of conducting such services to the Presbyteries’ committee on church extension,” and requested said committee to “ continue religious services in the building of the late Westminster Church of West Twenty-third Street.” According to the form of government of the Presbyterian Church in the United States of America an appeal was taken to the Synod of blew York, where the action of said Presbytery was sustained, from which Synod an appeal was talcen as a final court of last resort to the General Assembly of the Presbyterian Church in the United States of America, where, in May, 1909, after due ecclesiastical procedure, the action of the Presbytery was again sustained, whose action is “ subject to no further review in the church courts and is binding on the parties [320] and on the civil courts.” The Presbytery took possession and charge of and conserved the church buildings and property therein contained belonging to the Westminster Presbyterian Church and paid certain judgments, but subsequently other collusive judgments upon claims unknown to plaintiff for legal services, aggregating $4,735.16, and $333.38 for plumbing were taken by default in March and April, 1908, and January, 1909. Plaintiff continued religious work at said church, and on June 8, 190'8, upon petition of members of the congregation formerly worshiping at said Westminster Church and pursuant to due proceedings under the ecclesiastical law, such church was organized November 20, 1908, as “ West Twenty-third Street Presbyterian Church, in charge of a called pastor, without at this time passing upon any of the questions concerning the control of or title to the property of the late Westminster Church of West Twenty-third Street.” The individual defendants claim, as trustees of said Westminster Presbyterian Church, to be vested with the title to the property of said church and the right to dispose of it, repudiating the right of the “ Presbytery of its incorporated 'governing body to control their disposition thereof,” and on March 30, 1909, presented to this court ex parte a petition allowing said church to sell and remove and build elsewhere. A referee was appointed upon that application. Knowledge of this coming to plaintiff it made an application for intervention in opposition to said ex parte proceeding, and an order of reference was made. Both of said references are pending and undetermined. The Presbytery alone has the right to organize and control the successor of said Westminster Church, which, having been dissolved, leaves the “ naked title ” to its property in the individual defendants in trust for the plaintiff, or to the successor of said Westminster Church as plaintiff, which under the laws of this State has power to hold real property. The real property described is of the value of $300,000, subject to a mortgage for $60,000. The relief demanded is an injunction restraining any disposition of said property by the defendants, a conveyance of said property [321] to plaintiff and such other and further relief as may be just and equitable.
Defendants demur on the grounds (1) defect of parties plaintiff; (2) the complaint does not state facts sufficient to constitute a cause of action.
. The first ground of demurrer is overruled.
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Dayton, J.
Epitomized the complaint is as follows: Plaintiff was incorporated under chapter 206, Laws of 1867 of this State, by direction of the Presbytery of blew York, and is the incorporated “ governing body ” organized under the Religious Corporations Law of this State. The Presbytery is a judicatory of the Presbyterian Church of the United States of America, which includes all the Presbyterian congregations within the boroughs of Manhattan and the Bronx, in this city, thereby having jurisdiction of the defendant Westminster Presbyterian Church of West Twenty-third Street, which was organized by the union of several constituent congregations March 24, 1812, October, 1856, April 8, 1889, by appropriate ecclesiastical permission and action as a constituent part of the Presbytery of blew York, and as such received its property and financial aid through and in all ecclesiastical matters subject to the control and discipline of said Presbytery. On March 17, 1908, said Presbytery at a meeting dissolved said church and congregation on account of pecuniary and spiritual turmoil, and authorized the trustees of said Presbytery to take charge of the property “ belonging to the Westminster Presbyterian Church of West Twenty-third Street, blew York, including balance of deposits ” and other specified funds, together with the books, papers and records of said church, 'and referred the question of “ utilizing said church building for religious services in the future and the method of conducting such services to the Presbyteries’ committee on church extension,” and requested said committee to “ continue religious services in the building of the late Westminster Church of West Twenty-third Street.” According to the form of government of the Presbyterian Church in the United States of America an appeal was taken to the Synod of blew York, where the action of said Presbytery was sustained, from which Synod an appeal was talcen as a final court of last resort to the General Assembly of the Presbyterian Church in the United States of America, where, in May, 1909, after due ecclesiastical procedure, the action of the Presbytery was again sustained, whose action is “ subject to no further review in the church courts and is binding on the parties [320] and on the civil courts.” The Presbytery took possession and charge of and conserved the church buildings and property therein contained belonging to the Westminster Presbyterian Church and paid certain judgments, but subsequently other collusive judgments upon claims unknown to plaintiff for legal services, aggregating $4,735.16, and $333.38 for plumbing were taken by default in March and April, 1908, and January, 1909. Plaintiff continued religious work at said church, and on June 8, 190'8, upon petition of members of the congregation formerly worshiping at said Westminster Church and pursuant to due proceedings under the ecclesiastical law, such church was organized November 20, 1908, as “ West Twenty-third Street Presbyterian Church, in charge of a called pastor, without at this time passing upon any of the questions concerning the control of or title to the property of the late Westminster Church of West Twenty-third Street.” The individual defendants claim, as trustees of said Westminster Presbyterian Church, to be vested with the title to the property of said church and the right to dispose of it, repudiating the right of the “ Presbytery of its incorporated 'governing body to control their disposition thereof,” and on March 30, 1909, presented to this court ex parte a petition allowing said church to sell and remove and build elsewhere. A referee was appointed upon that application. Knowledge of this coming to plaintiff it made an application for intervention in opposition to said ex parte proceeding, and an order of reference was made. Both of said references are pending and undetermined. The Presbytery alone has the right to organize and control the successor of said Westminster Church, which, having been dissolved, leaves the “ naked title ” to its property in the individual defendants in trust for the plaintiff, or to the successor of said Westminster Church as plaintiff, which under the laws of this State has power to hold real property. The real property described is of the value of $300,000, subject to a mortgage for $60,000. The relief demanded is an injunction restraining any disposition of said property by the defendants, a conveyance of said property [321] to plaintiff and such other and further relief as may be just and equitable.
Defendants demur on the grounds (1) defect of parties plaintiff; (2) the complaint does not state facts sufficient to constitute a cause of action.
. The first ground of demurrer is overruled.
Prior to the Act of 1875 it was settled that a religious corporation held its temporalities wholly free from the domination of any ecclesiastical authority, and by a tenure so independent that it could change its creed and denominational character without losing its hold upon the property. But the trustees of the corporation could not divert such property from the general religious purposes contemplated in the creation of the corporation. Matter of First Presb. Society, 106 N. Y. 251; Gram v. Prussian Society, 36 id. 161; Petty v. Tooker, 21 id. 267; Watkins v. Wilcox, 66 id. 634. By section 4, chapter 79, Laws of 1875, and similar statutes subsequently enacted, the trustees of an incorporated church, congregation or religious society are required to hold the property and administer the temporalities according to the discipline, rules and usages of the denomination to which the church members of the corporation belong. Under such provisions the plaintiff contends that when the defendant church was dissolved by the ecclesiastical decree of the Presbytery the right of the trustees of the Presbytery to take and administer the property of the church at once arose by virtue of another statutory provision (which ! shall mention more particularly hereafter) relating to the property of extinct churches; that the only Presbyterian Church known to the law is that represented in this State by the Presbytery, and.. that, as the Westminster Presbyterian Church of West Twenty-third Street has been dissolved, it is excluded from the Presbyterian Church as a denominational body • that its property is held by its trustees under such conditions and is impressed with such trusts that the Presbytery has become the beneficial owner, and that the trustees of the Presbytery are entitled to take the temporalities of said West Twenty-third Street Church and administer them in accordance with the statutes of this 'State. In Matter of First [322] Presb. Socy., supra, while the point was not decided, it was said that the intention of the statutes requiring the temporalities and property of religious societies to be administered according to the discipline, rules and usages of the denomination, to which the members of the corporation her long was doubtless to restrain in some degree the diversion of the church property from one sect to another — to prevent its use in support of some other disconnected institution. Any other construction would do violence to the express language of the statutory provisions; and in Isham v. Trustees, 63 How. Pr. 465, and First Reformed Presb. Church v. Bowden, 14 Abb. N. C. 357, the point was decided, and it was held that if the' trustees of a religious corporation so divert the temporalities from the uses of the denomination, equity will enj oin such diversion, even though but a single, trustee complains, or, it- seems, even at the instance of a private member of the corporation when all the trustees are engaged in the wrong. So plaintiff says that, since the judgment of the governing body dissolving the Westminster Presbyterian Church is final and conclusive on this court, it results that its property cannot be administered in accordance with the discipline, rules and usages of the Presbyterian Church governing body, and, therefore, the trustees of the -governing body are entitled to take and administer such property. The judgment of the Presbytery, affirmed by the several appellate tribunals of the Presbyterian Church dissolving the Westminster Presbyterian Church of West Twenty-third Street, may be accepted as final and conclusive. Baxter v. McConnell, 155 N. Y. 101; Watson v. Jones, 13 Wall. 679. Spiritual courts cannot, however, usurp the jurisdiction or impair the functions of the civil courts to protect and enforce property rights. In the exercise of this jurisdiction the authorities "are conflicting as to how far the courts will inquire into the merits of the action of ecclesiastical tribunals. The question need not be examined minutely here, because, as above stated, the action of the ecclesiastical tribunal in this case is accepted as final, and was so accepted by the Appellate Division in a recent opinion,, not yet reported, upon another phase of the litiga[323] tions pending between these same parties. The civil courts will not attempt to control the action of ecclesiastical tribunals upon questions purely ecclesiastical. Rector v. Huntington, 82 Hun, 125; Westminster Presb. Church of West 23d St. v. Findley, 44 Misc. Rep. 173. For will the civil courts enforce or interfere with the right to the use of church property by persons whose regular succession to the offices in the religious society has been established by the appropriate church tribunal, or review the ecclesiastical action in passing upon the status of persons as members of the church organization, and who are subject to the laws of the body in that regard (Baxter v. McDonnell, 155 N. Y. 83; Connitt v. Reformed Church, 54 id. 551; Chase v. Cheney, 58 Ill. 527; Harmon v. Duher, 2 Speer [S. C.], 87; Watson v. Jones, 13 Wall. 679; Den v. Bolton, 12 N. J. L. 206; Isham v. Trustees, 63 How. Pr. 465; Sharron v. Frost, 3 B. Mon. 253) ; and a minority in choosing to separate themselves into a distinct tody and refusing to recognize the governing body can claim no rights in the property from the fact that they had once been members of the church. Watson v. Jones, 13 Wall. 725; First Ref. Presb. Church v. Bowden, 10 Abb. N. C. 1; 14 id. 326;.Goff v. Greer, 88 Ind. 122. Returning to the case at bar, the members of the church and congregation of the religious society are the corporators, and the trustees are simply the governing body of the corporation. Gram v. Prussian Society, 36 N. Y. 161; Robertson v. Bull-ions, 11 id. 243. The property belongs to the corporation, which consists of the congregation and members of the society, and not to the church at large. Baxter v. McDonnell, 155 N. Y. 94. It would seem, therefore, that, in insisting upon retaining the control of its own property notwithstanding the action of the Presbytery, the defendant corporation is not in the position of those who, as in some of the cases above cited, claim rights in the property of the organization as against ecclesiastical action by which their relation to the organization has been determined. The religious corporation and the church are entirely independent of each other. The church, by the nature of its organization, may be a subordinate part of some general organization or denomination in which there [324] are superior ecclesiastical tribunals with general power of control in some superior judicatures over the whole membership of the general organization. . Id. Before the act of 1875 it was not in the power of the trustees or a majority of the members of the society or the County Court, or of all of these authorities together, to abolish the corporation or dissolve the society unless every individual having an interest in the matter should concur, in which event it might have been done, because there would be no one to question the act, but while any member or members desired to continue the connection, all the others could not by their own act dissolve it. Wheaton v. Gates, 16 N. Y. 596. From 1875 to 1895 various statutes were enacted embracing provisions for the incorporation .of Presbyteries, requiring the trustees of incorporated churches to administer their property and temporalities in accordance with the discipline, laws and usages of the governing body, and directing the management of the property of extinct churches. Thus the act of 1875; chapter 381, provided that, whenever any church in connection with any such Presbytery (referring to a Presbytery incorporated as provided in the preceding section) should become extinct by reason of the death or.removal of its members, it should be lawful for such corporation (the trustees of the Presbytery) to take possession of the temporalities belonging to the society formed in connection with such extinct church and manage and dispose of the same. The act of 1877, chapter 177, gave to the Presbytery to which the church belonged the right to “ determine when any church is extinct, provided ihai no church having more than nine resident members shall be declared extinct unless it has failed for three consecutive years to maintain the stated preaching *of the gospel.” Here we have a positive provision of law defining the power of a Presbytery to declare a chiirch extinct for the purpose of taking and managing its property. The language of this provision was changed in later statutes which had the same purpose, but the difference in phraseology does not indicate a plain intention to establish a different rule. Hunzinger v. United Press, 52 App. Div. 311, and cases cited. Ultimately the subject [325] found expression in the act of 1895, chapter 723, as amended by the act of 1905, chapter 193, carried into Consolidated Laws 190-9, chapter 53, the words in brackets being added by the act of 1909: “ Such incorporated governing body may decide that a church, parish or society, in connection with it or over which it has ecclesiastical jurisdiction, has become extinct if it has failed for two consecutive years next prior thereto to maintain religious services -according to the discipline, customs and usages of such governing body, or has had less than thirteen resident attending members paying pew rent or making .-annual contribution towards its support, and may take possession of the temporalities and property belonging to such church and manage, or may, in pursuance of the provisions -of law relating to the disposition of real property by religious corporations, sell or dispose of the same and apply the proceeds thereof to any of the purposes to which the property of such" governing religious body is devoted, and it shall not divert such property to any other object. And for the purpose of obtaining a record title to the land, and church edifice * * * the surviving trustee or trustees of said extinct church [or if there be no surviving trustees, then a surviving member of said extinct church] may, without a consideration being paid therefor by such incorporated governing body, convey to it said land and church edifice * * subject, however, to an order of the Supreme or Oounty Court, based upon a petition reciting that said church has become extinct, the names of its surviving trustee or trustees and the names of its members, who must have given their consent to the malcing of said conveyance.” This language does not permit the involuntary dissolution of the church by the Presbytery in order that the trustees of the Presbytery might administer the church property; and certainly the title is preserved in the trustees, for it is only by consent that it may-be conveyed to the trustees of the Presbytery. The statute, then, is the law of the State under which alone a Presbytery governing body may take charge of the property of a church which had been connected with it, and a statute of the -State cannot be superseded by church discipline. Matter of Third M. E. Church, [326] 67 Hun, 86; affd., 142 N. Y. 638. The- complaint alleges as the cause of the action of the Presbytery that the Westminster Presbyterian Church of West Twenty-third street was in “ pecuniary and spiritual turmoil, and was from time to time under the surveillance and discipline of the Presbytery, with the result that finally * * * the Prestytery as a judicatory of the church * *• * took action,” which action, as appears from the minutes set out, consisted of a resolution that the Presbytery, “ in view of the conditions prevailing in that church, deem it for the best interests of the particular congregation and of the church at large, that said church and congregation be dissolved, and therefore declares that same be, and hereby is, dissolved.” There is nothing in the condition and action alleged which shows the right under the statute to take and .administer the property of the church. As already pointed out, the trustees of the church do not alone constitute the corporation, and the property is held for all the members thereof. The action of the Presbytery did not destroy the membership in the corporation. The action “ dissolving ” defendant church was not because of its failure to observe the discipline, usages or creed of the Presbyterian Church. It is not alleged that the members of defendant church intend to use its property for other than Presbyterian denominational purposes. Should such facts appear, it may be that equity and good conscience would require the court to prevent such subversion of the purposes for which defendant church was organized by and under the authority of the Presbyterian Church. The alleged “ dissolution ” was, however, upon grounds not provided by statute; and defendant church, presumably intending to continue to observe its ecclesiastical and -corporate purposes, may by. proper procedure dispose of and continue to use its temporalities. In my opinion the complaint fails to state facts sufficient to constitute a cause of action. The second ground of demurrer is, therefore, sustained, with leave to amend on payment of costs.
Ordered accordingly.