
    The Twenty-Third Street Baptist Church, App’lt, v. Jacob W. Cornwall, et al., as Executors of Catherine Weeks, Deceased, Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed October 25, 1888)
    1. Contract—Subscription to a benevolent fund when invalid.
    Unincorporated societies, such as missions, societies, etc., of a charitable kind connected with a church, cannot make a valid and binding subscription to a benevolent fund and the amount subscribed by such societies, but not paid by them, cannot be counted as part of the amount named as-a condition precedent to binding other subscriptions. Following Mrst Presbyterian Church v. Cooper, 10 N. Y. State Rep., 143.
    3. Practice—Motion for a new trial on judge’s minutes—When trial JUDGE CAN ENTERTAIN—CODE ClVIL PRO., § 999.
    Code Civil Procedure, § 999, authorizes a judge presiding at a trial by a jury to entertain a motion for a new trial made upon his minutes, only in a case where there has been a verdict.
    Appeal from a judgment dismissing the complaint upon, the merits with costs, and also upon an order denying a motion for a new trial upon the judge’s minutes, the motion having been tried before a trial court and a jury.
    This action was brought to recover the sum of $5,000, subscribed by the defendant’s testatrix on or about the 14th of December, 1881, towards a church edifice fund of $50,000, then being raised by the plaintiff on condition that the aggregate-of subscriptions found upon the subscription agreement should not be less than $50,000. Upon the faith of this subscription, the plaintiff proceeded with and completed the erection of its church edifice, and expended therein large sums of money and incurred large liabilities. On the 7th of April, 1883, Catharine Weeks died leaving a will which was* duly admitted to probate and by which the defendants were appointed executors thereto. The plaintiff caused a statement of the indebtedness of the testatrix, duly verified to-be presented to the defendants. They rejected the claim, „ and plaintiff thereupon commenced this action to collect-the amount of the subscription.
    The subscription paper read as follows; “ We, the undersigned, hereby agree to pay on May, 1882, or sooner, at our own option, the sums severally set to our names, towards a church edifice fund of $50,000, now being raised by the Stanton Street Baptist Church of New York city, on condition that the aggregate of subscriptions herein found, shall not be less than the said amount of $50,000. Moneys received will be paid into the New York Life Insurance Trust Company. Location of the new building to be Twenty-third street corner of Lexington avenue.” It appeared that the total amount subscribed according to the list put in evidence at the trial, was $52,142. Among the subscriptions* were the following items: “The Ladies Aid Society, Mrs. H. O. Hiscock, president, $5,000. The Young Men’s Mission Society, Harry Angelí, president, $5,000. Youth’s Mission Society, E. D. Garnsey, treasurer, $25.00.”
    These organizations were incorporated societies, of a charitable kind connected with the church. The membership of the societies' was such as their names would indicate, the Ladies Aid Society being composed exclusively of ladies, its president, Mrs. Hiscock, being the wife of the pastor.
    
      Van Winkle, Candler & Jay, for resp’ts. Edward S. Clinch, for app’lt.
   Per Curiam.

The principal question in this case, the one arising on the appeal from the judgment, has been passed upon by the general term of the supreme court, third department, in the First Presbyterian Church, etc. v. Cooper, 10 N. Y. State Rep., 142.

On the authority of that case we hold that the subscriptions of the Ladies Aid Society, Young Men’s Mission Society, and of the Youth’s Mission Society, were invalid, and that the aggregate of subscriptions was less than $50,000.

The motion for a new trial on the judge’s minutes was improperly made. Section 999 of the Code of Civil Procedure, authorizes the judge presiding at a trial by a jury to entertain a motion for a new trial, made upon his minutes, only in a case where there has been a verdict (Dusenbury v. Dusenbury, 1 Civ. Pro. Rep., 292), and cases there cited.

The judgment and order are affirmed, with costs.  