St. Nicholas Cathedral of Russian Orthodox Church of North America v. Kreshik

• Decision Date: 30 December 1959
• Citation: 7 N.Y.2d 191,164 N.E.2d 687,196 N.Y.S.2d 655
• Parties: , 164 N.E.2d 687 SAINT NICHOLAS CATHEDRAL OF the RUSSIAN ORTHODOX CHURCH OF NORTH AMERICA, Appellant, v. Wassil A. KRESHIK, as Dean of Saint Nicholas Cathedral, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 655

196 N.Y.S.2d 655

7 N.Y.2d 191, 164 N.E.2d 687

SAINT NICHOLAS CATHEDRAL OF the RUSSIAN ORTHODOX CHURCH OF

NORTH AMERICA, Appellant, v. Wassil A. KRESHIK, as Dean of Saint Nicholas Cathedral, et

al., Respondents.

Court of Appeals of New York.

Dec. 30, 1959.

Charles H. Tuttle, Ralph Montgomery Arkush, Thomas A. Shaw, Jr., Stuart H. Johnson, Jr., and Walter V. Bouquet, New York City, for appellant.

Philip Adler, New York City, for respondents.

CONWAY, Chief Judge.

Two groups contend in this action for the right to the use and occupancy of St. Nicholas Cathedral in New York City. Both partake of the doctrine, creed and spiritual heritage of the Russian Orthodox Church, which is one of a loose association of eastern orthodox churches tracing a common origin and existence to the year 1054 when the Patriarch of Constantinople ceased to recognize the authority of the western or Roman church. In time, the Patriarch of Constantinople acknowledged various branches of the church in other nations as 'autocephalous' or completely independent for purposes of government and administration. The Russion Orthodox Church, with its own Patriarch of Moscow, achieved the status of autocephaly in the 16th Century.

The Russian Orthodox Church was ruled by the Patriarch of Moscow until 1700 when Peter the Great established a Most Sacred Governing Synod to rule in place of a Patriarch. Throughout Czarist times, the church appears always to have had a very close connection and relationship with the civil authorities, having been supported by State subsidies and having as a member of the Holy Synod a Chief Procurator appointed by the Czar to protect and effectuate political interests.

To serve the religious needs of Russian immigrants, the Russian Orthodox Church, then ruled by the Holy Synod, established the Diocese of Alaska and the Aleutian Islands, later known as the Diocese of North America and the Aleutian Islands, in the latter part of the 19th Century. St. Nicholas Cathedral, the subject matter of this controversy, was built in 1903 as a parish church of the diocese and became a cathedral in 1905 when the See of the diocese was moved from San Francisco to New York.

Synodal rule of the church was terminated and the Patriarchal form of organization was reinstated by a 'Sobor' or convention of the Russian Orthodox Church held in Moscow in 1917-1918 and which was convened in the brief interval of freedom between the overthrow of the Czarist regime and the rise of the Bolsheviks. That sobor, which is conceded by all to have been canonical and valid, elected one Tikhon as Patriarch of Moscow. Shortly after Tikhon's election, when the Communists came to power, there commenced a long compaign of harassment and persecution aimed at eradicating the church from Russian life.

Upon the occurrence of a vacancy, Patriarch Tikhon appointed one Archbishop Platon as head of the North American Diocese. The appointment was made verbally at first, in view of the difficulty in transmitting such a communication out of Russia, but later, in September, 1923, it was confirmed in writing. At that time, the persecution of the church in Russia by the Soviet Government was at its peak of violence and virulence. The Communists, of course, were militant atheists committed to the doctrine that religion is the opiate of the people. Moreover, many of the ruling clergy, having held positions of importance under the Czar, were obviously counterrevolutionary in outlook and belief. The Soviet Government, therefore, attacked the church with every means available, both directly, through confiscations, arrests, imprisonments, exiles and executions, and, indirectly, through cultivation and support of divisive and dissident elements within the church. As a result, by this time, the activity and authority of the Patriarch in Moscow had virtually ceased to exist.

The North American Diocese, clergy and faithful, were bewildered and confused at the inconsistent and improbable reports and orders emanating from Moscow. For example, only five months after his appointment by Patriarch Tikhon, a document appeared here purporting to have been issued by Tikhon which dismissed Platon as archbishop for engaging in counterrevolutionary 'acts * * * directed against the Soviet.' There remains grave doubt as to whether the Patriarch really issued such a document, at least as his own voluntary act. In any event, it had become clear to the North American Diocese that the Patriarch and the church administration in Moscow were no longer in effective control of the church. In addition, as we shall see, imposters were appearing in this country seeking to seize control of the administration of the diocese, and all its properties and temporalities.

The perils and uncertainties then existing prompted Archbishop Platon, still recognized and revered by the American clergy and faithful, to call a sobor of the North American Diocese at Detroit in 1924. The sobor concluded that Patriarch Tikhon was under coercion and duress by the Communists, that failure to act would result in anarchy for the North American Diocese and that it was necessary for the diocese to create its 'own firm Church administration, completely insured against possibility of the direct or indirect influence of the Soviet power.' A resolution was adopted asking Archbishop Platon to head the administration of the church. Another resolution stated it to be the will of the sobor 'Not to break at all the spiritual ties and communion with the Russian Church, but always to pray for her good'.

The Detroit sobor of 1924, in effect, declared that the North American Diocese (or Metropolitan District, as it came to be called) should exercise administrative autonomy free of the Patriarchate with the right of local election of its bishops. This declaration of autonomy was made under a previous ukase or order of the Patriarch issued in 1920 which permitted dioceses to organize on a local basis in the event the activity of the Patriarchate should stop and in the event such cessation of activity should acquire a protracted or even permanent character. During the imprisonment of the Patriarch, the substance of the ukase was repeated in a circular letter sent to all dioceses on behalf of the Patriarch in 1922 directing local hierarchs to 'administer your archdiocese independently, in accordance with the Holy Writ and the holy canons; and until the restitution of the Supreme Church government decide definitely all affairs about which formerly you were wont to request the decision of the Holy Synod.' The ukase of 1920 had also provided that all local measures were to be submitted for confirmation to the 'Central Church Authority' when it is re-established. The Detroit sobor, in establishing the Metropolitan District here, thus stated that the final regulation of questions arising from the relationship of the Russian church and the North American Church would be left to a 'future Sobor of the Russian Orthodox Church which will be legally convoked, legally elected, will sit with the participation of representatives of the American Church under conditions of political freedom'.

Patriarch Tikhon died the following year, 1925. He had provided that the administration of the church, following his death, should be in the hands of a 'locum tenens' or 'guardian of the Patriarchial Throne.' He had nominated the person so to act, plus an alternate, but by reason of arrests and exiles neither of the named individuals was able to serve for any significant period. They in turn had named further appointments, and, ultimately, there emerged one Sergei who as deputy of the Locum tenens became the de facto leader of the church in 1926.

There followed a period of struggle and adjustment between the Soviet State and the church as led by Sergei. He was imprisoned, but later released after he had, in 1927, entered into a modus vivendi with the Soviet under which the Patriarchal church, in return for legal recognition, gave its pledge of loyalty to the government both on behalf of the church in Russia and the church abroad. He 'demanded from the clergy abroad a written promise of their complete loyalty to the Soviet government in all their public activities. Those who fail to make such a promise, or to observe it, shall be expelled from the ranks of the clergy subject to the Moscow patriarchate'. The agreement amounted to a capitulation by Sergei to the Soviet, but under it, or because of it, Sergei was able to act as leader of the Patriarchal church in Russia over the next decade, despite the continuance of strong antireligious propaganda and repressive action on the part of the Communists.

During this period, in 1934, Sergei, as locum tenens, issued a condemnation against the declaration of administrative autonomy adopted by the Metropolitan District in 1924. He placed Archbishop Platon and his successor, Archbishop Theophilus, under a prohibition and appointed Benjamin Fedchenkoff to come to America to establish a diocese subject to the jurisdiction of the Patriarchate. Sergei's insistence upon a pledge of 'loyalty' to the Soviet regime was abhorrent to the members of the Metropolitan District and the overwhelming mass of the clergy and faithful here continued to adhere to the Metropolitan District which grew and prospered in ensuing years.

A subsequent effort at rapprochement between the Patriarchate and the Metropolitan District was made in 1945. Following the patriotic support and service rendered by the Patriarchate to the State during the invasion of Russia by Germany, Stalin permitted a sobor to be convened in Moscow in 1943 which elected Sergei as Patriarch and, upon his death, in 1945 another sobor was called. Delegates from the Metropolitan District of America were invited but were prevented from reaching Moscow until after the sobor had adjourned.

They there found that Alexei had been elected Patriarch. In previous...