155 N.Y. 83, Baxter v. McDonnell

Citation:155 N.Y. 83
Party Name:JOHN F. BAXTER, Respondent, v. CHARLES E. MCDONNELL, Appellant.
Case Date:March 01, 1898
Court:New York Court of Appeals

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155 N.Y. 83

JOHN F. BAXTER, Respondent,



New York Court of Appeal

March 1, 1898

Argued November 22, 1897.

Reargument ordered November 30, 1897 [see 154 N.Y. 432].

Reargued January 10, 1898.

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Henry C. M. Ingraham and Joseph E. Owens for appellant. If the allegations demurred to set forth a defense to either of the two causes of action alleged by the plaintiff, the demurrer should be overruled. (Hale v. O. Nat. Bank, 49 N.Y. 627; Henderson v. C. A. Assn., 46 Hun, 504; 111 N.Y. 685; Wheeler v. C. M. L. Ins. Co., 82 N.Y. 543; Boyle v. City of Brooklyn, 71 N.Y. 1; 6 Encyclopaedia of Pleading & Practice, 301.) The allegations demurred to set forth a defense to the plaintiff's second cause of action if not to both causes of action. (Pray v. Hegeman, 98 N.Y. 351-358; Reich v. Cochran, 151 N.Y. 122; 1 Bacon on Ben. Soc. § 77.) The question as to how far the judgment of an ecclesiastical court is per se binding upon a civil court is not necessarily involved in this case. The admissions which flow from the plaintiff's demurrer are conclusive against the plaintiff, even though as matter of fact the defendant is in error as to the allegations constituting his third separate and affirmative defense. (Milliken v. W. U. T. Co., 110 N.Y. 403; A. S. Co. v. Bennett, 73 Hun, 81; Sage v. Culver, 147 N.Y. 241; Zebley v. F. L. & T. Co., 139 N.Y. 461-467; Cornwell v. Clement, 87 Hun, 50; Marie v. Garrison, 83 N.Y. 14; Embury v. Conner, 3 N.Y. 511; Beard v. Mayor, etc., 74 N.Y. 382; Matter of N.Y. L. & W. R. R. Co., 98 N.Y. 447; Foley v. Royal Arcanum, 151 N.Y. 196; Brady v. Nally, 151 N.Y. 258.) The church court having passed upon the question of church law as to the individual liability of the defendant to pay the salary of a priest adversely to the plaintiff, the allegation of fraud found in the plaintiff's first cause of action is immaterial, and such judgment, being upon a question of church law, is conclusive upon a civil court. (Connitt v. R. P. D. Church, 54 N.Y. 551; Rector, etc., v. Huntington, 82 Hun, 125; Walker v. Wainwright, 16 Barb. 486; Union Church v. Sanders, 63 Am. Dec. 187;

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Chase v. Cheeney, 58 Ill. 27; McGuire v. Trustees S. P. Cathedral, 54 Hun, 207; Tuigg v. Sheehan, 101 Penn. St. 363; Rose v. Vertin, 46 Mich. 457; Stack v. O'Hara, 98 Penn. St. 213; Moseman v. Hertshausen, 69 N.W. 957.) The facts set forth in that portion of the answer demurred to constitute an arbitration and award. (Code Civ. Pro. § 500; Wood v. Tunnicliff, 74 N.Y. 44; Howard v. Sexton, 4 N.Y. 157; McNulty v. Solley, 95 N.Y. 246; Valentine v. Valentine, 2 Barb. Ch. 430; 2 Am. & Eng. Ency. of Law [2d ed.] 539; Brazill v. Isham, 12 N.Y. 15; Sawyer v. McAdie, 70 Mich. 386; N.Y. , L. & W. W. Co. v. Schnieder, 119 N.Y. 475; Vaughn v. Herndon, 91 Tenn. 64.) The complaint is insufficient and should be dismissed. (Clark v. Dillon, 97 N.Y. 370; Stanton v. King, 8 Hun, 4; 69 N.Y. 609; Austin v. Munro, 47 N.Y. 360; Ferrin v. Myrick, 41 N.Y. 315; Schmittler v. Simon, 101 N.Y. 554; New v. Nicoll, 12 Hun, 431; Blewitt v. Olin, 13 N.Y. S. R. 76.) The demand in this case is only for a money judgment. In any case, when the vital question is whether the complaint is sufficient, the prayer must show the nature of the action. (Swart v. Boughton, 35 Hun, 281; Edson v. Girvan, 29 Hun, 422; Fisher v. C. O. L. I. Co., 67 How. Pr. 191; Alexander v. Katte, 63 How. Pr. 262; Kelly v. Downing, 42 N.Y. 71.)

L. J. Morrison for respondent. This appeal brings up for review the question certified by the court below, and no other. (Code Civ. Pro. § 190, subd. 2; Grannan v. W. R. Assn., 153 N.Y. 449.) No judgment of any court, not recognized by the laws of this state, constitutes a legal defense to an action brought in the courts of this state. (Dunstan v. Higgins, 138 N.Y. 76; 3 Black. Com. 23; Glass v. Betsy, 3 Dall. 8.) The respondent having demurred to one of the defenses in appellant's answer, the respondent himself is called upon to sustain the sufficiency of his pleading as if the same were assailed by demurrer on the part of the appellant. Hence, for the purpose of considering this aspect of the appeal, all the facts alleged in the complaint must be taken by the court to be

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true. (Cutler v. Wright, 22 N.Y. 472; Douglass v. Phoenix Ins. Co., 138 N.Y. 209.)Defendant's predecessor in the bishopric was personally liable to plaintiff as employer under an express contract. (Williams v. Hutchinson, 3 N.Y. 312; Wood on Master & Servant, § 67; 1 Pars. on Cont. 446; Kent v. Q. S. M. Co., 78 N.Y. 159; Flint v. Pierce, 99 Mass. 68; Cummings v. Webster, 43 Me. 93.) The appellant in this case is liable both under the rules and regulations of the church and upon his express agreement. (Kent v. Q. S. M. Co., 78 N.Y. 159; 1 Perry on Trusts, § 95; Baldwin v. Humphrey, 44 N.Y. 609; Ryan v. Dox, 34 N.Y. 307; Despard v. Walbridge, 15 N.Y. 374; Wood v. Rabe, 96 N.Y. 414; Gridley v. Gridley, 24 N.Y. 130; Taylor v. Dodd, 58 N.Y. 335; Brown v. Knapp, 79 N.Y. 136; Etter v. Greenawalt, 98 Penn. St. 422; Dodge v. Manning, 1 N.Y. 298.) The transfer of the property to the appellant was a good consideration for his promise to pay the debts of the deceased contracted with respect to the property transferred. (Austin v. Munro, 47 N.Y. 360; Davis v. Stover, 58 N.Y. 473; Gifford v. Corrigan, 117 N.Y. 258; Harlan v. Harlan, 20 Penn. St. 303; Clark v. Gaylord, 24 Conn. 484; Powell v. Brown, 3 Johns. 100; Lawrence v. Fox, 20 N.Y. 268; Chitty on Cont. [ 3d ed.] 29; Todd v. Weber, 95 N.Y. 181; F. Nat. Bank v. Chalmers, 144 N.Y. 432.) The question for this court to determine is whether, assuming all the facts alleged to be true, enough has been well stated to constitute any cause of action. (Sage v. Culver, 147 N.Y. 241; Coster v. Mayor, etc., 43 N.Y. 399; Wheeler v. C. M. L. Ins. Co., 82 N.Y. 543; Boyle v. City of Brooklyn, 71 N.Y. 1.) The third separate and affirmative defense is insufficient in law upon the face thereof to constitute a defense. (Const. art. 6, § 19; People ex rel. v. Porter, 90 N.Y. 68; Dunstan v. Higgins, 138 N.Y. 76; 3 Black. Com. 23; Glass v. Betsy, 3 Dall. 8; Coffin v. Tracy, 3 Caines, 129; Dudley v. Mayhew, 3 N.Y. 9; Worcester v. Georgia, 6 Pet. 515; Matter of Ferguson, 9 Johns. 239; Masterson v. Townshend, 123 N.Y. 458; Bogardus v. N.Y. L. Ins. Co., 101 N.Y. 328.)

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The contention that there is in any way a question of church law involved is not borne out by the record. (Commonwealth v. Worcester, 3 Pick. 462; Austin v. Searing, 16 N.Y. 112; Graham v. Machado, 6 Duer, 517; Myers v. Machado, 6 Abb. Pr. 198; Turner v. Roby, 3 N.Y. 193; McLaughlin v. Nichols, 13 Abb. Pr. 244; 2 Black. on Judg. § 523; Watson v. Gaivin, 54 Mo. 353.) The appellant is in no position to urge the decision of the church tribunal as an arbitration and award. (Brazill v. Isham, 12 N.Y. 9; Denny v. Smith, 18 N.Y. 567; Lorenzo v. Deery, 26 Hun, 447; Gihon v. Levy, 2 Duer, 176.)


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.) 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

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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...

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