
    James MacLaury, Resp’t, v. A. Bloomer Hart, App’lt.
    
      (Court of Appeals,
    
    
      Filed June 24, 1890.)
    
    Religious corporations.—Consolidation.—Injunction.
    An injunction to restrain action upon an agreement between two Episcopal churches, under chap. 176, Laws 1876, cannot properly be granted, as the effect thereof would be, to forbid the statutory remedy, and draw the whole inquiry and ultimate determination of the controversy away from the appointed tribunal; the statute making the agreement simply the necessary preliminary to the action of the bishop and standing committee, and of the supreme court.
    Appeal from order of the general term of the New York common pleas, affirming order granting injunction restraining action under an agreement of consolidation between two Episcopal churches.
    
      Wager Swayne, for app’lt; David B. King, for resp’t.
   Finch, J.

We reverse the order appealed from upon the ground that the facts stated in the complaint do not justify an award of the equitable relief demanded. We do not review the discretion which grants an injunction temporarily restraining a defendant until final judgment, unless we are entirely satisfied that the plaintiff is not entitled to ultimate relief. The present action seeks to withdraw from the tribunals specially clothed with authority to determine the controversy the right to decide it, and has no adequate foundation except distrust of those tribunals. Two religious corporations cannot consolidate unless, in the case of Episcopal churches, their agreement so to do is approved by the bishop and the standing committee of the diocese, and then by the supreme court, to which is given the fullest and most complete discretion as to all the terms and details of the arrangement Before the bishop and the standing committee this plaintiff can be heard as to every ground of complaint which he has alleged, and as to all the reasons which bear against the consolidation pron posed.

It is not to be assumed that the bishop will refuse to hear any member of his flock coming with a proper and respectful protest, or will decide in any other way than upon a full view of the situation and with an honest and deliberate pmrpose to do what is best for both churches. To him, as the ecclesiastical head of the diocese, and the standing committee as his adviser and associate in the judgment, it was entirely proper that the proposed agreement of consolidation should be submitted. But beyond that the statute requires the assent of the supreme court, which may demand that all parties appear before it and will be quite sure to see that suitable notice is given, and that no interested party is deprived of a hearing. That the statute merely designates the ultimate tribunal and prescribes its authority without specifying the practice to be pursued does not justify an inference that it will proceed in a partial or unjust manner or contrary to its normal rules of action. There is no reason, therefore, why the statute remedy should not be pursued, and a court of equity is never at liberty to draw to its general jurisdiction a question remitted to a competent and sufficient authority by express command of a statute unless under some very exceptional circumstances which do not exist here. People v. Wasson, 64 N. Y., 167; Heiser v. Mayor, etc., 104 id., 68; 5 N. Y. State Rep., 558. The statute, Laws of 1876, chap. 176, not only provides that all parties shall be heard, but makes the agreement of consolidation the necessary preliminary to the action of the ecclesiastical authority and that of the supreme court When the common pleas enjoined any action under that agreement they simply obstructed the statutory remedy and stripped the bishop and the supreme court of jurisdiction in the specific proceeding, and drew to themselves an authority which the law had lodged elsewhere. The agreement, whether made lawfully or unlawfully, honestly or dishonestly, could harm nobody because it bound, nobody, and served only like 'a petition or a pleading to bring the question into court and place it before the appointed tribunal for adjudication. Equity wields the powerful process of injunction to prevent irreparable injury and is somewhat choice of the weapon. In the agreement made, whatever its character or occasion, there was no •danger or harm to the plaintiff or his rights. Before the bishop, before the standing committee, before the supreme court, it would stand merely as a proposal, open to every kind of criticism, exposed to full inquiry, and utterly ineffectual for any purpose except to raise the question. To enjoin any proceeding under such an agreement simply forbids the statutory remedy and draws the whole inquiry and the ultimate determination of the controversy away from the appointed tribunal. The injunction averts no danger to the plaintiff unless it be the danger of a hearing and decision before the statutory tribunal, and its sole office is to effect that result. It must therefore be dissolved.

Orders of general and special term reversed, with costs in both courts.

All concur, except Andrews and O’Brien, JJ., absent  