
    Trustees of the Presbytery of New York, a Domestic Corporation, Appellant, v. Westminster Presbyterian Church of West Twenty-third Street, a Domestic Religious Corporation, and Others, Respondents.
    First Department,
    February 17, 1911.
    Pleading—supplemental complaint — injunction — sale of church land — demurrer — when supplemental pleading allowed.
    There is no such pleading known to the Code o£ Civil Procedure as an amended and supplemental complaint.
    On a motion for leave to serve a supplemental complaint it is unnecessary to decide whether or not it will avail the plaintiff.
    Where the theory of an action brought by the governing board of the Presby- . terian church in the borough of Manhattan to enjoin a church under its jurisdiction from transferring its property, and to compel it to transfer it to the plaintiff, is that since by the law of the church a place of worship cannot be abandoned without the conseut of the Presbytery, and that it is the duty of the defendant to surrender its properly upon its dissolution, and the court has already held that the defendant has no right to sell its property, it is error to sustain a demurrer to the complaint on the'ground that the plaintiff’s only, authority to take charge of defendant’s property is under section 16 of the Religious Corporations Law on the church becoming extinct and that its dissolution did not render it extinct.
    The plaintiff should be allowed to serve a supplemental complaint showing the extent of the adjudication of the supreme judicatory of the church on the appeal from the resolution of the Presbytery dissolving the defendant church, and the action of the plaintiff in declaring by resolution the church to be extinct, and of the Presbytery in ratifying this action, although the latter resolution was not passed until after the commencement of the suit, and although plaintiff’s motion was for leave to serve an amended and supplemental complaint.
    Ingraham, P. J., dissented.
    Appeal by the plaintiff, the Trustees of the Presbytery of New York, a domestic corporation, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of April, 1910, pursuant to an interlocutory judgment entered in said,clerk’s office on the 7tli day of April, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, with leave to amend, the plaintiff not having availed itself of such leave, with notice of an intention, to bring up for review the said interlocutory, judgment, and also an order entered on the 21st day of April, 1910, denying the. plaintiff’s motion for leave to serve an amended and supplemental complaint under, the interlocutory judgment..
    
      Henry W. Jessup and Rush Taggart, for the appellant.
    
      Charles M. Parsons, for the respondents.
   Laughlin, J.:

' The main-questions involving the merits of this appeal are discussed and decided favorably to the appellant in Westminster Presbyterian Ch. v. Trustees of Presbytery (142 App. Div. 855), which was argued and will be decided herewith.

The plaintiff is the incorporated governing body of the presbytery for' the boroughs of Manhattan and the Bronx in the city of Greater New York of the. Presbyterian church in the United States of America; and it brings this action to enjoin' the defend-, ants from assigning or transferring the church property on West . Twenty-third street' otherwise than as directed by the presbytery and to have the same assigned and conveyed to the plaintiff, subject to the direction of .the presbytery, and for further and other relief, The theory of the action evidently is that it was the duty of the defendants to surrender and to convey the premises to plaintiff on the dissolution of the church by the presbytery, and that the aid of the court of equity is required to' prevent the diversion of the property. It appears that by the law of the church a place of worship may neither be abandoned nor established without the consent of the presbytery of this' denominational church, and, therefore, there is a threatened diversion of the property.,

■All of the defendants, other than the church, demurred to'the complaint on the ground that it did not state facts sufficient- to constitute a cause of action, and two of the defendants separately demur on the ground that there is a defect of parties plaintiff and defendant, but with no specification as to who has been omitted; and another demurs on the ground of a defect of parties plaintiff,, and the specification seems' to indicate that the claim is. that the presbytery as an- unincorporated body, should be a party plaintiff. The demurrers were sustained on the theory that the plaintiff’s only authority to take charge of the church property is under section 16 of the Religious Corporations Law, on the church becoming extinct; and that the dissolution of the church did not render it extinct, and that the defendants are still entitled-to.hold or to sell the property, and to use the proceeds for similar purposes. The individual defendants were trustees of the incorporated church at the time of its dissolution, as a spiritual body.

This court, has frequently held that there is no such pleading known to the Code of Civil Procedure as an amended and supplemental pleading. The plaintiff had, under the leave granted by the interlocutory judgment, the right to serve an amended complaint, and it needed no further leave of the court for-that purpose.. That would have warranted the amendments for which the ■ plaintiff asked leave by the motion ; for the amendments merely amplified the original complaint by setting forth more fully the law of the Presbyterian church applicable to the questions presented. The facts which the plaintiff, desires to allege by way of a supplemental pleading show the full extent of the adjudication of the supreme judicatory of the church on the appeal from the resolution of the 'presbytery dissolving the church and determining the right of the plaintiff to establish a new church to succeed the one which had been dissolved, and the action of the plaintiff declaring the church extinct and of the presbytery in ratifying and approving the same.

Although' the plaintiff’s practice was irregular in asking leave to serve a pleading which is not authorized, yet in view of the nature and importance of the litigation we are of opinion that the court should have granted the plaintiff leave to serve the supplemental pleading, which is all the relief it needed and which it would have been proper to allow.

On the motion for leave to serve the supplemental complaint it is not necessary to pass on the question as to whether or not it will be of any avail to the plaintiff. Ordinarily the merits are not considered on such applications. If the action of the plaintiff in declaring the church extinct be essential to its right to a conveyance of ' the land, then it may well be that although this action is in equity, it cannot obtain that relief, since the resolution was adopted, pending the action, and that, therefore, in that view its cause of action did not exist at the time of the commencement of the action. According to the opinion rendered on the other appeal the defendants have no right to sell the property or to apply to the court for leave to sell it. They did apply to the court for such relief without notice to the plaintiff. The plaintiff is, therefore, entitled to enjoin the defendants from prosecuting the proceeding for a sale of the property and from instituting other like proceedings, entirely aside from the question as to whether it will be entitled to have the premises conveyed t.o it. Moreover, the plaintiff will be entitled to have the material facts with respect to the dissolution of the church and ■the severance of the connection of its members, including the trustees therewith, adjudicated; and if upon such adjudication in this action it should be deemed that the court is without power to adjudge,good title to the plaintiff, or to provide for a conveyance of the legal title to the plaintiff, then, in any event, the adjudication would become the basis for an application to the court pursuant to the provisions of section 16 of the Religious Corporations Law (Consol. Laws, chap. 51 [Laws of 1909, chap. 53], as amd. by Laws of 1909, chap. 408, and Laws of 1910, chap. 185), for the appointment of a trustee -to convey the legal title to the premises to the plaintiff. It may be, in view of the decision about to-be-made, which. necessarily withdraws the privilege accorded to plaintiff to amend its pleading, that it will be necessary for plaintiff to obtain leave to amend in order to present its case properly.

It follows from these views that the final and interlocutory judgments -and order should be reversed, with costs, but with leave to the defendants to withdraw their demurrers and to answer on payment of costs of the appeal and of the demurrers, and plaintiff’s motion, in so far as it was made for leave to serve a supplemental complaint, should be -granted, without costs.

McLaughlin, Miller and Dowling, JJ., concurred; Ingraham, P. J., dissented.

Interlocutory judgment and order reversed, with costs, with leave to defendants to withdraw demurrer and to answer on payment of costs, and plaintiff’s motion granted to extent stated in opinion, without costs. Settle order on notice.  