
    Rudolph A. Witthaus, Appellant, v. St. Thomas' Church in the City and County of New York, Sued as the Rector, Church Wardens and Vestrymen of St. Thomas' Church, Respondent.
    First Department,
    March 6, 1914.
    Rights of owner of church pews — destruction of church by fire— provision of deed conveying church pews, construed.
    Where a church is destroyed by fire a pewholder’s rights are gone, and he is not entitled to indemnity.
    Hence, an owner of pews in a church destroyed by fire is not entitled to an allotment of the same number of pews in a temporary structure erected on the same premises.
    The words “so long as the church shall endure,” used in the habendum clause of a deed conveying church pews, should be held to refer only to the church mentioned in the deed.
    Appeal by the plaintiff, Rudolph A. Witthaus, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of August, 1913, upon the decision of the court dismissing the complaint upon the merits after a trial at the New York Special Term.
    
      Eustace Conway, for the appellant.
    
      Hoffman Miller, for the respondent.
   Scott, J.:

Plaintiff, as successor in title to his mother, became the holder of two pews in St. Thomas’ Protestant Episcopal Church in the city of New York, one of which she had acquired in 1874 and the other in 1885. Plaintiff did not use them personally, but rented one for $374 per annum and the other for $302.50 per annum. One pew was subject to the payment of an annual tax of $99; the other was free of tax. The pews seem to have been valued on the books of the church at $1,375 and $1,000, respectively. On August 8, 1905, the church edifice was completely destroyed by fire. The church erected among the ruins a temporary wooden structure which was used pending the erection of a new permanent building.

Plaintiff’s claim is that he became entitled to an allotment of two pews in the temporary structure, corresponding in size and location with those which he held in the destroyed church, and he seeks to compel such an allotment' and to recover damages for the refusal to make such an allotment heretofore. The right which a pewholder has to a pew in a church is very well settled. He possesses no title to the soil upon which the church stands nor to the church edifice. He possesses only a limited usufructuary right of use involving the right to use it when the building is open for services, subject to the reasonable regulations of the church, and there is no right of access to it or right to use it for any other purpose or in any other manner. This right exists only so long as the church stands. If the church edifice has become so dilapidated that it must be removed, or is destroyed by fire, as in this case, the pewholder’s rights are gone and he is entitled to no indemnity. (Voorhees v. Presbyterian Church of Amsterdam, 8 Barb. 135; 17 id. 104; Heeney v. St. Peter’s Church, 2 Edw. Ch. 611; Abernethy v. Society of the Church of the Puritans, 3 Daly, 1, 7; Wheaton v. Gates, 18 N. Y. 395; Went v. Methodist Protestant Church, 80 Hun, 266.) It is only in cases wherein a pewholder is deprived of his pew for convenience or from expediency and not from necessity that he has a right to indemnity (Voorhees v. Presbyterian Church of Amsterdam, supra), and when he has such right his appropriate remedy is by an action at law for damages. The plaintiff claims to have a right to a pew in the defendant church different from the right of pewholders generally. This he seeks to find in the habendum clause in the deeds by which the pews were conveyed to his ancestor, laying stress upon the words “so long as- the said Church shall endure.” He would apply these words to the Protestant Episcopal church at large as an ecclesiastical body, but we consider it quite clear that the words could reasonably have been intended to refer only to the church edifice mentioned in the deed.

Plaintiff sought to show that at one time some officer of the church offered to pay to him the valuation at which his pews were carried on the books of the church, his contention apparently being that by making such an offer the church had admitted his absolute ownership of the pews. It may be that at some time the officers of the church, or some of them, may have believed that plaintiff was entitled as matter of law to indemnity for the destruction of his pews. If they did so believe they were mistaken. At all events the plaintiff refused the offer and it was withdrawn.

The judgment appealed from must be affirmed, with costs.

Ingraham, P. J., McLaughlin, Clarke and Hotchkiss, JJ., concurred.

Judgment affirmed, with costs.  