
    In the Matter of the Application of the Westminster Presbyterian Church of West Twenty-third Street, a Domestic Religious Corporation, for Leave to Sell Its Real Estate Situated in West Twenty-third Street in the Borough of Manhattan, and to Reinvest Proceeds of Sale, etc. Trustees of the Presbytery of New York, Appellant; Westminster Presbyterian Church of West Twenty-third Street, Respondent.
    First Department,
    July 9, 1915.
    Practice — religious corporations —proceeding to sell church property —stay.
    Application for an order vacating a stay of proceedings instituted hy a religious corporation for the purpose of selling church property. Two actions, one in ejectment, one in equity, are pending and involve the conflicting claims of the parties.. Under all the circumstances, held, that the court should not vacate the stay, although circumstances may hereafter justify it in doing so.
    Appeal by the Trustees of the Presbytery of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1915, vacating a stay of proceedings herein and directing a sale of the petitioner’s real estate.
    
      Rush Taggart, for the appellant.
    
      Richmond J. Reese, for the respondent.
   Scott, J.:

This is a proceeding instituted by the Westminster Presbyterian Church of West Twenty-third Street to sell its church property. It was begun in 1909, and in the same year the trustees of the Presbytery of New York were permitted to intervene.

In the meantime two actions had been instituted, one in equity and one in ejectment, both involving the conflicting claims of the church and of the trustees to the church property. Both actions are still pending.

On April 8, 1910, an order was made staying all the proceedings to sell the property “until the conflicting claims of Westminster Presbyterian Church and Trustees of Presbytery of New York shall have been finally and definitely determined in a certain action in equity brought by Trustees of the Presbytery of New York, against the said Westminster Presbyterian Church of West 23rd Street as well as against its surviving trustees, or in a certain action in ejectment brought by said Westminster Presbyterian Church against Trustees of the Presbytery of New York to recover the possession of certain property on West 23rd Street, in the Borough of Manhattan, in the City of New York.”

The trustees of Presbytery have been in possession of the • property since March 19, 1908, but, as it is said, have neglected to pay two annual installments of interest on a mortgage upon the property held by the Emigrant Industrial Savings Bank, and have also neglected to pay taxes for the years 1913 and 1914. The petitioner apprehends that the savings bank will proceed to foreclose its mortgage, and, not unnaturally, fears that a fair price for the property cannot be obtained on a forced sale on foreclosure.

Undoubtedly a forced sale of the property is a thing to be avoided if possible, but we are by no means sure that such a sale would follow a denial of the present motion to vacate the stay.

The learned counsel for the respondent, the church, while strenuously urging the affirmance of the order appealed from, very frankly makes the following statement in his brief: ‘£ The respondent deems it only fair to state in this connection that while this present appeal was pending, a bargain was made between the Westminster Presbyterian Church and the Trustees of Presbytery, whereby the former released from the lien of its judgment two valuable parcels of real estate owned by Trustees of Presbytery to enable Trustees of Presbytery to raise a loan of some $40,000,, $9,000 of which ifc agreed to advance to pay the back interest and taxes and to provide for future installments of interest and taxes, and the respondent expects that the appellant will carry out its agreement.”

While ordinarily we do not consider statements outside the record, we feel that in the present case we are justified in considering the foregoing statement of counsel because it is not made for the purpose of influencing our action in his favor, but evidently in the sincere desire that the court may be in possession of all the facts. It is not distinctly stated that the reason which impels the savings bank to threaten foreclosure is that the interest and taxes have been allowed to fall into arrears, but in view of the statements of the petitioner as to the value of the property as compared with the amount of the mortgage, it may well be that the savings bank will be content to permit the mortgage to remain, for a time at least, if the interest and taxes are promptly paid, as it now appears to be probable that they will be. Nor is it at all clear that the property could be sold or mortgaged during the pendency of the present litigations, because we much doubt the power of the court to require the trustees of Presbytery to unite in a deed or mortgage. In view of the disposition we propose to make of this appeal it is not necessary now to decide that question definitely. Under all the circumstances we do not consider it expedient, at the present time, to vacate the stay, although it may be that circumstances will hereafter arise which would justify such an act.

Our conclusion is that the order appealed from should be reversed and the motion denied, without costs to either party and without prejudice to a renewal of the motion if future events should seem to make such action desirable.

Ingraham, P. J.,' Clarke, Dowling and Hotchkiss, JJ., concurred.

Order reversed and motion denied, without costs, and without prejudice to a renewal of the motion should future events seem to make such action desirable.  