
    In the Matter of the Application of the Westminster Presbyterian Church of West Twenty-third Street, a Domestic Religious Corporation, Appellant, for Leave to Sell Its Real Estate Situated in West Twenty-third Street, Borough of Manhattan, and to Reinvest the Proceeds of Sale in Property in Another Locality, etc. The Trustees of the Presbytery of New York, Respondent.
    First Department,
    March 24, 1910.
    Religious corporations — decision of ecclesiastical tribunal binding — expulsion of church from religious denomination — petition to sell lands — stay. •
    The act of the Presbytery of Mew York in. dissolving a Presbyterian church so that it ceases to belong to-the Presbyterian denomination when affirmed by the appellate tribunals of that church will be accepted by the courts as final and conclusive. .
    A petition by such church, continuing as a secular corporation, for permission to sell its lands will not be granted where-the Presbytery of Mew York has intervened claiming that the lands belong to the Presbyterian denomination and there are actions pending involving the right to the possession and control of ' the property.
    Appeal by the petitioner, the Westminster Presbyterian Church of West Twenty-third' Street, from an order of the Supreme Court, made at the Hew York Special Term and entered in the .office of the .clerk of the county of Hew York on the 17th day of Hovember, 1909, confirming the report of a referee, arid also from an order entered in said clerk’s office on the 3d day of December, 1909, denying the petitioner’s motion for a resettlement of said first order.
    ■ Charles M. Parsons, for the' appellant..
    
      Henry W. Jessup, for the respondent.
   Scott, J.:

In this proceeding for leave to sell church property the petitioner appeals from an order permitting The Trustees of the Presbytery of Mew York ” to intervene and become a party to the proceeding. The order was made after the court, for its own information, had ordered a reference to take testimony as to the right of the intervenor to come-into the proceeding. The Westminster Presbyterian ■'Church of West Twenty-third Street , was a consolidation, in the year 1899, of two churches, and until,March 18,1908, was connected with and under the ecclesiastical control of the Presbytery of Mew York, subject to the discipline, rules, usages, laws and book of government, of. the Presbyterian church in the United States of America. The trustees of said church, as a corporate body, independent of but clearly affiliated with the religious organization, held the property now sought to be sold and which was used by the congregation for church purposes. The intervenor is a domestic corporation organized under chapter 206 of the Laws "of 1867, with power to take for religious and charitable purposes and to hold, convey and .otherwise dispose of real estate and personal property for the benefit of the Presbytery of Mew York in the promotion of the Presbytery’s different charitable and religious purposes.

On March 17, 1908, the Presbytery of Mew York dissolved the religious organization known as the Westminster Presbyterian Church of West Twenty-third Street, and it thereupon ceased to be apart of the Presbyterian denomination and a Presbyterian church. That action appears to. have been " affirmed by the several appellate tribunals of the Presbyterian church. This action we "accept as final and conclusive. (Watson v. Jones, 13 Wall. 679.) It is not questioned that the petitioner, as a secular corporation, still holds title to the real estate in question, but it is the. contention of thé intervenor that such-property is held under such conditions and is impressed with such trusts that the Presbyterian church has'become the beneficial owner and that the intervenor, as the corporation vested by law with the title to and the right of- possession and control of the property of the church in this jurisdiction, is entitled to the possession and control of the real estate held by the petitioner.

. This contention raises a very interesting question and .one which is by no means free from doubt. Prior to 1875 a religious corporation in this State held its temporalities wholly free from the domination of any ecclesiastical'authority and by a tenure so independent that it could change its creed and denominational character without losing its hold upon its property. (Per Finch, J., in Matter of First Presbyterian Society of Buffalo, 106 N. Y. 251.)

In 1875, by section 4 of chapter 79 of the laws of'that year, a marked change was effected in the law by which the denomination was made the dominant body in the church, and the trustees of every church, congregation and religious society' were required to hold the property and administer the temporalities according to the discipline, rules and usages of the denomination to which the church members of the corporation belong,” and were forbidden to divert it to any other purpose. This act has been amended from time to time without, however, altering its general purport and now constitutes subdivision 3 of section 69 of the Religious Corporations Law. (Consol. Laws, chap. 51 [Laws of 1909, chap. 53], § 69, subd. 3 ■; revising Gen. Laws, chap. 42 [Laws of 1895, chap. 723], § 46, subd. 3, added by Laws of 1902, chap. 97.) The complete effect of this change in the law has never been judicially determined, although the Court, of Appeals in the case above cited recognizes the fact that it was the intention of the Legislature to restrain in some degree the diversion of church property from one sect to another. The contention of the interveuor is that the only Presbyterian ■ church known to the law is that represented in this State by the Presbytery; that the petitioner has been excluded from that church, and' that the property sought to be sold cannot lawfully be diverted to the use of any religions body not constituting a part of the Presbyterian church. Without expressing or intimating any opinion as to the soundness of this contention it is apparent, to say the least, that it is arguable and one which should not be determined upon a motion of this character. It appears that upon the expulsion from the Presbyterian church of the petitioner as a religious body, the Presbytery of Hew York took possession of the church property, organized a congregation and appointed a minister and now occupies the property, so that its use for religious purposes is not interrupted. It also appears that two actions are now pending, both involving the right of possession and control of the church property. In one of these, more appropriately than in the present proceeding, can the conflicting claims of the petitioner and the intervene!1 be determined. We are, therefore, of the opinion that the court should not give its assent to a sale while these claims remain undetermined, but that the proceeding should be stayed or suspended until' these matters are definitely determined.' '

The orders should be affirmed, with ten dollars costs and disbursements.

Ingraham. P, J.,"Laughlin, Clarke and Miller, JJ., concurred.' Orders affirmed, with ten dollars costs and disbursements.  