
    The New York Home Missionary Society, Plaintiff, v. The First Freewill Baptist Church and Society of Lawrence, Defendant.
    (Supreme Court, St. Lawrence Special Term,
    July, 1911.)
    Partition — Right and propriety — Persons. entitled — Religious corporations.
    Religious societies — Property and funds — Necessity of order of court.
    The provisions of section 12 of the Religious Corporations Law relate solely to voluntary sales or. dispositions by religious corporations of their real property and an action lies for. the partition and sale of property jointly owned by two religious corporations.
    Demurrer to complaint in action for, partition.
    
      Willis J. Fletcher, for plaintiff.
    John A. Smith, for defendant.
   J. A. Kellogg, J.

The complaint in this action is in the form usual in partition actions. The relief demanded is the partition of property alleged to be owned by the"plaintiff and defendant and, in case a partition cannot be had, that the premises be sold and the proceeds divided. The complaint alleges that the plaintiff is a corporation, but its character is not specified. It alleges that the defendant is a religious corporation. The character of the property sought to be partitioned is not. disclosed.

The defendant demurs to the complaint upon the grounds:

First. The complaint does not state facts sufficient to constitute a cause of action.

Second. The court has no jurisdiction of the person of the defendant.

Third. The court has no jurisdiction of the subject of the action.

The specific point raised is that, inasmuch as the defendant is a religious corporation and the complaint indicates that the plaintiff is also a "religious corporation, a partition action will not lie. It is asserted by defendant that the only proceeding whereby the property of a religious corporation may be sold is one provided for by section 12 of the Religious Corporations Law; and, inasmuch as this action may result in a sale, it cannot be maintained.

I' do not agree with the contention of the defendant. I think the section in question has reference, solely, to the procedure necessary to be employed in the case of a voluntary sale or disposition by a religious corporation of its own property.

I do not believe it to be within the contemplation of the spirit or the requirement of the letter of the statute to forbid the maintenance of a partition action, because a religious corporation is. a holder of one or more undivided shares. If it were, any tenant in common might prevent the partitioning of property held in cotenancy by a resort to the expedient of conveying a small undivided share to a friendly religious corporation.

The provisions of the statute are broad.

Section 1532 of the Code of Civil Procedure provides: “ Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for "the partition of the property, according to the respective rights of the persons interested therein;' and for a sale thereof, if it appears that a partition thereof cannot be made, without great prejudice to the owners.”

Section 37 of the General Construction Law provides; “ The term person includes a corporation.”

The latter provision is a re-enactment of section 5 of the Statutory Construction Law.

• It would seem to me that to exclude, from the general provisions of the statute permitting partition of real property, all property in which a religious corporation held an interest, would produce an incongruous result. .

The section relied upon and the procedure which it invokes was enacted for the purpose of permitting, under the direction of - the court, sales of the property of religious corporations owned by them, in order to avoid the previously necessary proceeding of obtaining" special enactments from the Legislature. It is the successor '-of previous statutes giving to religious corporations powers along this line not previously enjoyed at common law. Madison Avenue Baptist Church v. Baptist Church in Oliver Street, 46 N. Y. 131.

The purpose and effect of the statute was to give the court supervision over such sales; and it was not intended to destroy the .possibility of an adjustment of the rights of cotenants, when one' of -them happens to be a religious corporation, also under the supervision of the court.

The demurrer should be overruled, with the usual leave to the defendant to answer upon payment of costs.

Demurrer overruled, with usual leave to answer upon payment of costs.  