Baxter v. McDonnell

• Decision Date: 01 March 1898
• Citation: 49 N.E. 667,155 N.Y. 83
• Parties: BAXTER v. McDONNELL.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 83

49 N.E. 667

BAXTER

v.McDONNELL.

Court of Appeals of New York.

March 1, 1898.

Appeal from supreme court, appellate division. Second department.

Action by John F. Baxter against Charles E. McDonnell. From a judgment of the appellate division (45 N. Y. Supp. 765), affirming an interlocutory judgment sustaining a demurrer to a portion of the answer, defendant appeals. Reversed.

Henry C. M. Ingraham and Joseph E. Owens, for appellant.

L. J. Morrison, for respondent.

VANN, J.

While the question certified to us for decision involves, directly, the sufficiency of the third defense set forth in the answer, it involves, indirectly, as we have held, the sufficiency of the complaint also. Baxter v. McDonnell, 154 N. Y. 432, 48 N. E. 816. When reduced to their simplest form, the substantial allegations of the first cause of action purporting to be alleged are that, by the rules and regulations of the Holy Roman Catholic Church, in the diocese of Brooklyn, the bishop holds all its property, in his own name, as trustee for its benefit, and is liable, individually, upon all contracts for services rendered or materials furnished to the church; that each priest assigned to duty is authorized to hold the bishop, individually, liable for his salary, and that it is the duty of the bishop to provide by will for the devolution of all the trust property to the church or to his successor; that in September, 1885, the plaintiff was appointed pastor of a parish in said diocese by Bishop Loughlin, who died in December, 1891, after devising and bequeathing all the trust property, held by him for the church, to his successor in the bishopric; that in May, 1892, the defendant was installed as bishop, and soon after received the trust property subject to the trust upon which his predecessor had held it, and upon accepting the same on his installation as bishop agreed, by virtue of the law of the church, to pay all debts incurred and to perform all contracts entered into by the late bishop in behalf of the church, in the same manner and to the same extent as if the debts had been incurred and the contracts entered into by himself. There were further allegations to the effect that, upon this basis of liability, the defendant was indebted to the plaintiff in a certain amount. The second cause of action is based on the assignment of the plaintiff to duty as chaplain of a hospital, made by the defendant on the 4th of December, 1892, and it is claimed that by virtue thereof he became entitled, under the constitution and ordinances of the church, to a salary of $1,000 per annum, and that the defendant is indebted to him for the balance unpaid on that basis.

Thus, in both counts of the complaint the liability of the defendant is founded upon a promise implied, as it is claimed, from the law of the church. In the first count two promises are said to arise therefrom, one on the part of Bishop Loughlin to become personally liable for the salary of the priests, and the other on the part of Bishop McDonnell to discharge the obligations assumed by his predecessor in office. The theory of the complaint is that, while the bishop holds the property of the church in trust for its benefit, he is personally liable for all services rendered to it in his diocese. No express agreement to that effect is alleged, but simply one to be implied from the rules and regulations of the church. No consideration is suggested, unless one springs from the relation of trust existing between the bishop and the church, and that relation is dependent upon the law of the church. Yet there is nothing to show the nature of the church, except as it may be implied from its name and the names given to certain of its officers. There are no allegations as to its civil rights, power, or capacity. We cannot tell from the complaint, which is our sole guide, whether it is a corporation, a voluntary association, or a mere name, adopted by the pleader for some purpose undisclosed. What it is, what it can do, and what can be done to it; whether it can become the beneficiary of a trust and enforce its rights as such, or sue and be sued,-are not made known to us. No valid trust is alleged, unless the church is shown to be a body capable of making a contract and suing to enforce it. A trust created by the rules of a church which is not shown capable of making contracts, accepting benefits or compelling performance, is not recognized by the law. The pleader seems to have assumed that the court would take judicial notice of the nature and powers of the Holy Roman Catholic Church, so far as its civil rights and duties are concerned, without any averment or proof upon the subject. Judicial notice is to be taken with caution, and every reasonable doubt as to the propriety of its exercise in a given case should be resolved against it. Brown v. Piper, 91 U. S. 37; 12 Am. & Eng. Enc. Law, 151. According to the general practice of the courts in all jurisdictions, proof has been required upon the subject of church rights and powers, and whatever is to be proved must be alleged. Even if we should attempt to take judicial notice of the legal powers and duties of the church, it is doubtful whether the result would aid the plaintiff. Thus, Judge Strong, in his work on Relations of Civil Law to Church Polity, says: ‘A very large portion of the religious societies in the country are unincorporated, and in a few of the states charters cannot be obtained for them. They are, therefore, not legal entities, recognized as having a legal existence. They can neither sue nor be sued in civil courts. They cannot hold property directly, yet they may control property held by others for their use. Donations and grants may be legally made to trustees for the use and benefit of an unincorporated religious society or for the support of the gospel ministry in connection with any particular church.’ Page 71. ‘There is still another mode in which property is largely held in this country for religious or church uses. In the Moravian congregations the property devoted to pious uses is held neither by a corporation nor by trustees, nor yet by the congregation itself. In some of the congregations, and I presume in all, the title to the churches, school houses, and cemeteries is held by the bishop, who transmits it by will to his successor in office. And such is the tenure of most Roman Catholic Churches in the country. The title to the real estate resides in the bishop of the diocese. In a certain sense he is a trustee thereof for religious uses, but there is no declaration of trust, and he controls the enjoyment and transmits the title by devise. The purpose of this arrangement is to exclude the laity from that power of interference which they would have were the title vested in a corporation. But, inasmuch as the holders of such titles are not corporations, either sole or aggregate, as are the English bishops, deans, and even parsons, lands held by them do not pass to their successors in office unless through the instrumentality of a deed or will.’ Page 109.

We have been referred to no statute authorizing the incorporation of the church at large. By chapter 45 of the Laws of 1863, provision was made for the incorporation of Roman Catholic churches, and for the government thereof, but it is confined to a congregation, society, or assemblage of persons accustomed to statedly meet for divine worship. This is now embodied in the religious corporations law, which also provides for the incorporation of ecclesiastical bodies with governing authority over churches. Laws 1895, c. 723, §§ 14, 50, 51; Laws 1876, c. 110; Laws 1886, c. 210; Laws 1882, c. 23.

Under the act of 1813, both real and personal property may be held in trust for the use of an unincorporated religious society without any restriction as to time, except that it shall terminate upon the lawful incorporation of the religious society, when, by virtue of the act, the title vests in the corporation. Laws 1813, c. 60, § 4. This also refers to congregations, and not to the church at large. Indeed, in Petty v. Tooker, 21 N. Y. 267, 270, it was held that the existence of the church proper as an organized body is not recognized by the municipal law. In Van Buren v. Reformed Church, 62 Barb. 495, 497, it was said: ‘In order to give an organization for public worship legal rights, and to impose on it legal obligations as a corporate body, there must be a special law declaring its existence, or there must be an incorporation under the provisions of the general law relating to religious societies.’ And in Hardin v. Baptist Church, 51 Mich. 135,16 N. W. 311, Judge Cooley said: ‘The church is not incorporated and has nothing whatever to do with the temporalities. It does not control the property or the trustees; it can receive nobody into the society and can expel nobody from it. On the other hand, the corporation has nothing to do with the church except as it provides for the church wants. It cannot alter the church faith or covenant, it cannot receive members, it cannot expel members, it cannot prevent the church from receiving or expelling whomsoever that body shall see fit to receive or expel.’ In Silsby v. Barlow, 16 Gray, 329, it was said that ‘churches are not corporate bodies, and commonly have no occasion for the exercise of corporate powers.’ Kynett and Cotton, in their work on Churches and Other Religious Societies, say that ‘these two bodies, namely, the religious corporation and the church, although one may exist within the pale of the other, are in no respect co-relative. The objects and interests of the one are moral and spiritual; the other deals exclusively with things temporal and material. Each as a body is entirely independent and free from any direct control or interference by the other. * * * The church by the nature of its organization may be entirely independent of other ecclesiastical associations; or may be a subordinate part of...