Perry v. Board of Missions of Protestant Episcopal Church

• Decision Date: 13 April 1886
• Citation: Perry v. Bd. of Missions of the P.E. Church, 102 N.Y. 99, 6 N.E. 116 (N.Y. 1886)
• Court: New York Court of Appeals Court of Appeals
• Parties: JOHN S. PERRY, Respondent, v. THE BOARD OF MISSIONS OF THE PROTESTANT EPISCOPAL CHURCH IN THE DIOCESE OF ALBANY, Appellant.

102 N.Y. 99

6 N.E. 116

PERRY

v.BOARD OF MISSIONS OF THE P. E. CHURCH.¹

Court of Appeals of New York.

April 13, 1886.

Appeal from order of general term supreme court, Third department, affirming judgment for plaintiff on report of referee.

E. Countryman, for appellant.

Hamilton Harris, for respondent.

DANFORTH, J.

Upon trial before a referee, the plaintiff has been declared entitled to a lien in the nature of a mortgage upon certain premises on Elk street, in the city of Albany, for a balance due him for advances made for improvements and repairs thereon, and for interest on an existing mortgage amounting to the sum of $4,677.38, besides costs, and, in case the same be not paid within a certain time, that said real estate be sold in the same manner as sales are made upon mortgage foreclosure, and of the proceeds of such sale the plaintiff be paid the amount of said lien, with interest as aforesaid, together with his costs and disbursements. Upon appeal to the general term, the judgment upon this report was affirmed.

Some objections were made by the defendant to the admission of certain testimony, but it is not now contended that the facts found by the referee are not warranted by the evidence, or that they were not within the issues raised by the pleadings. The contention is against the referee's conclusion of law. It appears by his report that in September, 1869, the Right Reverend William Croswell Doane was bishop of Albany; and at that time, by the action of the convention of the Protestant Episcopal church in that diocese, a committee was appointed to take such steps as they might deem expedient for procuring a residence for the bishop; that in February, 1870, the vestry of St. Peter's church, in that city, appointed a committee, of which the plaintiff was chairman, to solicit subscriptions for the above purpose, and in that character he received moneys from various persons, in all to the amount of $12,825, and in June, 1870, under the advice of the bishop, and with the consent of the diocesan committee, he bought the premises above referred to at the price of $18,000, (of which $5,000 was in a then existing mortgage.) He paid the residue, and upon like consent caused the property to be conveyed, subject to the mortgage, to a corporation called ‘The Trustees of the Episcopal Fund of the Diocese of Albany;’ that thereupon ‘the plaintiff, at the request of the bishop, commenced making various improvements, alterations, and repairs in the dwelling upon the premises so purchased, all of which were necessary and proper to make it a suitable and convenient residence for him, and the plaintiff advancedthe moneys required to pay the bills for such improvements and repairs;’ that at ‘the annual meeting of the diocesan convention, in September, 1870, the diocesan committee made a report stating the manner in which the title was taken, described the property, and referred to the repairs and improvements. This report was on motion accepted;’ and at the same time the convention, with the consent of the trustees of the episcopal fund, directed them to transfer the title to said property to the defendant herein, ‘to be held and used for the support of the episcopate, and be a place of residence for the bishop of the diocese, and that the said board of missions be authorized and directed to make a bond and mortgage on the premises to secure the payment of the incumbrance thereon of $5,000, and also the payment of the sum advanced for the repairs and fitting up of the same for the episcopal residence;’ intending thereby to provide for and cover all the expenditures incurred by plaintiff for the improvements and repairs then in progress, and contemplated and included as well the sums thereafter advanced as those which had then been actually paid. The defendant is a corporation having power, among other things, to take and hold property, used, or intended to be used, for ‘diocesan institutions or purposes in the said diocese, and is subject to the directions and instructions which shall be given to it by the said convention. Laws 1870, c. 13. At this time the repairs and improvements were in progress, and only the sum of $173.92 had then been advanced by plaintiff in payment therefor. On the twentieth of October, 1870, in accordance with the above directions, the trustees of the episcopal fund of the diocese of Albany conveyed the premises to defendant, in trust, as a residence for the bishop of Albany, and on the same day, at a regular meeting of the board, passed the following resolution:

‘Resolved, that this board do, in accordance with the direction of the convention, hereby accept the conveyance of the said premises, to be held in trust for the uses and purposes above mentioned;...