
    Frank E. Parshley, App’lt, v. The Third Methodist Episcopal Church in the City of Brooklyn, Resp’t.
    
      (Court of Appeals,
    
    
      Filed November 26, 1895.)
    
    1. Religious cobfobation—Contbact—Ratification.
    Where, in an action by an attorney against an incorporated Methodist Episcopal Church for services rendered and expenses incurred in prosecuting before a church tribunal its pastor and securing his suspension from the ministry, it appeared that the board of trustees, acting officially, never employed the attorney or authorized his expenditures,the fact that the board subsequently agreed to pay another attorney for services gratuitously performed with the understanding between him and the board as individuals that the surn so paid was to be paid on plaintiff's claim, fails to establish a ratification by the church of such unauthorized employment.
    
      2. Same.
    Nor does the fact that the board authorized a committee, with advice of counsel, -to. investigate the claim, and determine whether any sum was legally due and ordered it paid if found due, and that such committee, without the advice of counsel, allowed the claim, which action was rejected by the board, make out such ratification.
    3. Same.
    Nor does the fact that a board consisting of the trustees, stewards, class leaders, etc., by resolution recognized plaintiff’s services as in the interest of the church and recommended contributions for payment of his claim, amount to such ratification.
    4. Same.
    Nor does the fact that the resolution of the board for the removal of such pastor from the parsonage recites his suspension from the ministry upon the charges presented against him, constitute a ratification.
    Appeal from order of the general term, of the city court of Brooklyn, which reversed a judgment in favor of plaintiff entered upon the report of a referee and granted a new trial.
    This action was brought to recover the value of services alleged to have been rendered to defendant by plaintiff, and also the amount of expenditures incurred by him in prosecuting the pastor of the defendant church upon charges of immorality, and securing his suspension from the performance of his ministerial duties.
    
      Isaac H. Maynard, for app’lt; George G. Reynolds, for resp’t.
   Finch, J.

It is not at all certain that the trustee of the church, having charge of its temporalities and representing it in its corporate character, have a legal right to contract a debt for the purpose of prosecuting before a church tribunal a preacher charged with immorality. But, waiving any consideration of that question, and assuming for the sake of the argument that such power exists, it still seems to me quite certain that the general term were right in holding that the corporate body never became bound or liable for the debt.

There is no room for dispute about the fact that the trustees .acting officially never employed the plaintiff or authorized his expenditure. A minority of the board, acting only as individuals and promising merely individual and voluntary aid, alone set the plaintiff in motion. The trial court so found and planted its award of judgment wholly upon the ground of ratification, and it is upon that question that the courts below differed and to which our attention is required.

Two main and principal facts are relied on by the appellant, both of which have some peculiar features. There came a time when the plaintiff was pressing for his pay, and the church corporation was about to sell its property to the bridge company. Counsel was, of course, employed to conduct the negotiations and manage the proper transfer of title. That counsel was Judge Groo, who promised to act without compensation or, at least, without charge for his time and services. Nevertheless, the trustees passed a resolution to pay him, first five thousand, and later six thousand dollars, for his services and expenses as counsel. That was the corporate action on its face, and there was no other. But behind it stood the motive for it and the explanation of it. Between the trustees, acting individually and not in their corporate character, and their counsel there was an understanding that the money voted' to Groo should be by him applied to the discharge of plaintiffs’ claim, and thirty-five hundred dollars of it was in fact so applied. Obviously, there was here an attempt to do indirectly what it was supposed could not be done directly, and the indirect action was not at all and not intended to be. of a corporate character. That was carefully avoided and meant to be avoided, and as the result of what was done the plaintiff acquired, not a legal right against the corporation, but a moral right against Judge Groo, founded on the latter’s good faith. The caucus action of the individual trustees was clearly personal and non-official. Sanders v. Frank St. Methodist Church, 114 N. Y. 620. As such it did not and was not intended to bind the church. It recognized, not a legal obligation of the church corporation, but a moral duty of its members which they sought to perform through the agency and operation of an entirely different legal obligation. The very form and manner of the transaction assumed-that the plaintiff had no legal claim against the corporation; that it had no right to pay him, and that it was only by an artifice, and through the liberality of Judge Groo, that the moral duty of reimbursing the plaintiff could be performed. The trustees had sought to obtain funds for him through voluntary subscriptions. They had recognized that no corporate moneys were available for that purpose, and failing to secure a voluntary contribution resorted to the questionable measure of paying the corporate funds to Judge Groo as a counsel fee, leaving him, out of what had become his own money, to do justice to the moral claim of the plaintiff. Whatever else may be said about the transaction it is very certain that it did not amount to a ratification of the acts of individuals and a corporate assumption of their obligations.

But a further step was taken. The plaintiff continued to press for reimbursement out of the corporate treasury, evidently insisting.that he had a legal claim against the church, and in 1892 the board of trustees passed two resolutions. One of them appointed a committee to examine the claim and agree upon the sum, if any, to be paid, but providing that the committee should confer with and act'under the advice of” the attorney of the board. The second resolution authorized the president and treasurer of the board to pay plaintiff the sum, if any, found due by. such committee. These resolutions admitted nothing, acknowledged nothing. They left the question of the corporate liability open to the decision of the committee, acting under', the advice of counsel. There was a legal question to be determined arising upon and out of the facts, the answer to which would settle the doubt about liability and indicate what was the corporate duty. To meet that emergency the committee were authorized to act only after a conference with and under the advice of the counsel of the board. This was a vital and essential condition of the committee’s authority, without obedience to which they had no power to act at all. They disregarded that condition, completely ignored the counsel, neither sought nor took his advice, and made a report in favor of allowing plaintiff’s claim. The board, however, refused to accept the report, as not made in accordance with the condition imposed. Here, again, I am unable to see proof of a ratification. The act of the committee never became the act of the board. There was no original authority conferred upon them to act independently of the advice of counsel, and their unauthorized action was rejected and not confirmed by the board. It is suggested that the resolutions admit the liability but question only the amount. I cannot so read them. They call for an investigation, guided by counsel, as to whether any sum is due at all, and do not admit an obligation for some amount.

There were some minor facts pressed upon our attention as involving a ratification. One of them was the resolution of the official board of 1888. That board consisted of thé trustees, the stewards, the class leaders, the Sunday school teachers, and the local preachers. It had its place and its duties in the Methodist order and discipline, but did not- represent and could not legally bind the corporation." What it did was to say that the plaintiff acted “in the interest of the church,” and to recommend a voluntary contribution to defray the expenses. The word “ church ” was here used in its broad and moral sense, as covering the Methodist church generally in its religious character and aggregation, and not as meaning the particular corporation. It is “ the ” church, and “ the M. E. church,” and not the specific corporate defendant; and the recommendation is to contribute to the expenses, and not to the defendant to enable it to pay.

Our attention is drawn also to the resolution for the removal of Millen from the parsonage, which recites his suspension from the ministry upon the charges presented against him, and the argument is that the defendant took the benefit of plaintiff’s services, and so must pay for them. Yery little need be said 'about that. The rule only applies where the party is free to take them or not. Here the defendant did not take them at all, and simply sought to remove a tenant holding over without right.

The order of the general term should be affirmed and judgment absolute be rendered for the defendant, with costs.

All concur, except Peckhah and Gray, JJ., dissenting. Ordered accordingly.  