
    The First Presbyterian Church of Albany, Resp’t, v. Thomas C. Cooper et al., as Adm’rs, etc., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July, 1887.)
    
    1. Contbact—Subscbiption to benevolent fund—When binding.
    The defendant’s intestate, together with others, subscribed his name and a certain amount to a subscription paper containing the following agreement: “That the undersigned hereby severally promise and agree to and with the trustees,” of the plaintiff, “in consideration of one dollar to each of us in hand paid, and of the agreements of each other in this contract contained, to pay on or before three years from the date hereof to said trustees the sum set opposite our respective names, and upon the express condition, and not otherwise, that the sum of §45,000 in the aggregate shall be subscribed or paid in for the purpose hereinafter stated * * * and the subscription or contribution must equal that sum in the aggregate to make the agreement binding. Held, that valid subscriptions or actual payments to the amount of $45,000 were contemplated as the condition precedent to absolute liability. Following N. T. Exchange Co, v. De Wolf (31 N. Y„ 273).
    
      2. Same—Sunday school cannot make valid subscbiption.
    The full amount was subscribed or paid (as alleged) for the purpose specified, but one of several similar, so-called subscriptions being “Sunday school per R. F. Todd, $500.” - This was made by Mr. Todd, the superintendent of the school, and approved and ratified by a meeting of the officers and. teachers. It was made in good faith, held, that said so-called subscription was invalid; that the “ Sunday school ” was incapable of binding itself as a school by any form or agent; that the entire transaction was simply a testimonial of their good will and willingness to try to raise the sum named.
    3. Same—Estoppel—When waiveb necessaby to cbeate.
    The intestate had paid part of his subscription. As to the remainder, held, that the element of estoppel was wanting and that without it a waiver of the condition precedent essential to the obligation of the contract could not be presumed. Hutchins v. Smith, 46 Barb., 285, and Dutch Church v. Brown, 17 How., 287, distinguished.
    Appeal from a judgment in favor of the plaintiff entered upon the report of a referee.
    
      Thomas P. Crook, a member and elder of the religious society known by the name of the plaintiff, subscribed $5,000 towards a fund of $45,000 to be raised to pay the principal of the mortgage debt existing upon the plaintiff’s lot and church edifice.
    The following is a copy of the subscription paper:
    “That the undersigned hereby severally promise and agree to and with the trustees of the First Presbyterian Church in the city of Albany, in consideration of one dollar to each of us in hand paid, and of the agreements of each other in the contract contained, to pay on or before three years from date hereof to said trustees, the sum set opposite our respective names, and upon the express condition, and not otherwise, that the sum of $45,000 in the aggregate shall be subscribed or paid in for the purpose hereinafter stated, and if within one year from the date said sum shall not be subscribed or paid in for such purpose, then this agreement to be null and of no effect. The purpose of this subscription is to pay off the mortgage debt of $45,000 now a lien upon the church edifice of said church, and the subscription or contribution for that purpose must equal that sum in the aggregate to make this agreement binding
    “Dated May 18, 1884.”
    The referee found that the full sum of $45,000 was subscribed or paid for the purpose specified in the subscription paper; that the subscriptions were solicited and obtained by the trustees and officers of the plaintiff; that the defendants’ intestate, Mr. Crook, actively promoted the raising of the subscription; that'he paid $2,000 thereon; that he died October 10, 1885; that $10,868.30 of the entire subscriptions were collected by the plaintiff before Mr. Crook’s death; that $10,500 thereof had then been paid in reduction of the principal of the mortgage debt, of which $T, 000 were paid upon the express approval of Mr. Crook before the same became due.
    Among the subscriptions made was one of $5,000 by the “Ladies’ Association of the First Presbyterian Church.” This association consisted of such ladies of the church as contributed to the benevolent work of the church. They did not sign any articles of association. Some twenty-five or thirty met together. One of their number presided, and a resolution- was adopted pledging themselves to raise $5,000, the payment to be according to the terms of the above subscription paper, which the lady president signed in the above style.
    Another subscription was, “Sunday school, per E. F. Todd, $500.” This was made by Mr. Todd, the superintendent of the school, and approved and ratified by a meeting of the officers and teachers. It was made in good faith.
    The young men of the congregation, in a meeting regularly organized, passed a resolution pledging themselves to raise, “by entertainments or otherwise, $1,500 towards the paying of the $45,000 mortgage upon the church, and that the chairman be requested to sign and forward this resolution to the treasurer of the board of trustees.” This was done, but the subscription paper was not signed.
    Mr. Crook knew the character and amount of the above so-called subscriptions, and expressed his approval of them. They had not been paid at the time of his death.
    The defendants, his administrators, refusing to pay the balance remaining unpaid at his death, the claim therefor was by the approval of the surrogate referred, and upon trial the judgment appealed from recovered.
    
      Ward and Cameron, for app’lts; M. Hale, for resp’t
   Lardón, J

■—Assuming „ that the subscription paper signed by Mr. Crook was in such form as to constitute in connection with the subscriptions of others, and the implied promise of the plaintiff to apply the money to the purpose mentioned, a valid contract between him and the plaintiff, still we think the conditions were not so far performed as to make his conditional promise to pay an absolute promise.

The subscription was “upon the express condition, and not otherwise, that the sum of $45,000 in the aggregate shall be subscribed or paid in for the purpose hereinafter stated, and if within one year from the date, said sum shall not be subscribed or paid in for such purpose, then this agreement to be null and of no effect.” Plainly, valid subscriptions or actual payments to the amount of $45,000 were contemplated as the condition precedent to absolute liability. N. Y. Exchange Co. v. De Wolf, 31 N. Y., 273.

The subscription of $5,000 by the “Ladies’ Association,” clearly was not legally binding upon the twenty-five or thirty ladies who assembled and passed the resolution to raise the money, not to make the subscription. They had no actual organization such as rendered the association as such capable to contract.

Their president who wrote the name of thé association to the paper as a subscriber for the $5,000, had no authority to bind any one but herself, and this she did not undertake to do. She did not write her own name to the subscription paper. The entire transaction was simply a testimonial of their good will and of their willingness to try to raise the sum named, but it lacks the essentials of capacity to contract and of a valid contract.

The resolution of the “young men of the church,” is invalid for the same reasons.

The subscription, “Sunday school by R. F„ Todd,” is invalid. Mr. Todd did not assume to bind himself. He assumed to be the agent of a “ Sunday school,” which was incapable of binding itself as a school by any form or agent it might employ or designate. Mr. Todd by making this subscription simply represented that he had all the power and authority the Sunday school could give him; but as it could give no efficient power he cannot be presumed to have represented that he had any; and therefore does not occupy the position ^ ^ agent who represents himself to hold the power h v.oes not possess, to bind a principal, who, if existing, could bind himself, as in the case of Union Hotel Co. v. Hersee (79 N. Y., 455), cited by the plaintiff.

The plaintiff contends that the defendant, with full knowledge of these imperfect subscriptions, waived their imperfections. Bo' doubt he did so to the extent that he made payments, and we may believe that if he had lived he would have waived them still further. But death devolved upon his representatives his legal liabilities, not the fulfillment of his benevolent purposes. There is no evidence to the effect that the payment of a part of his subscription by Mr. Crook, caused the plaintiff to relax any effort or incur any obligation, or do or omit anything to its prejudice. The element of estoppel is wanting and without it a waiver of the condition precedent, essential to the obligation of the contract, cannot be presumed.

The plaintiff cites Hutchins v. Smith (46 Barb., 235), and. Dutch Church v. Brown (17 How. Pr., 287). But in both of these cases the plaintiff did, at the request of the defendant, acts which would be to the plaintiff’s prejudice if the subscriptions were invalid.

The judgment must be reversed, the referee discharged, new trial granted, costs to abide the event.

Learned, P. J., and Bocees, J., concur.  