
    Nicholas Ryszko, Frank Fuchila, John Panchak and Alex Wislocky, complainants, v. Michael Kaimakan, Paul Yourkevich and Wasyal Yoskosky, defendants.
    [Decided February 25th, 1931.]
   Backes, V. C.

The object of this suit is to enjoin the use of St. Nicholas Eussian Orthodox Catholic Church of Elizabeth for divine services by a priest of that faith, alleged to have been deposed, and to restrain him from interfering with his successor officiating in the church; the legal theory of the bill being to prevent the diversion of church property from the pious use to which it is dedicated and held in trust.

Archbishop Platon, as Metropolitan of the Diocese of North America of the Eussian Orthodox Greek Catholic Church, appointed Father Kaimakan priest of the St. Nicholas parish in 1926. There came discord between some of the parishoners and the priest, and on July 9th, 1929, the Metropolitan ordered his transfer to Singae, approving a resolution of the diocesan council of July 8th that he be removed for his refusal to obligate himself to convene his church committee for an audit of the finances of the church. At that meeting of the council, Father Kaimakan declared that he recognized the diocesan authority and its orders, but refused compliance; the unsettled condition of the finances provoked the trouble ini the church. Father Kaimakan refused to go to Singac and later in the month, and without other than oral announcement from the altar, held a meeting with as many of his parishoners as would follow him, at which a resolution was adopted wherein, after reciting grievances and denouncing Metropolitan Platon as suspended and removed from his high office, and condemning his aim to create an autocephalous church in America, it was resolved to repudiate Metropolitan Platon and to recognize Archbishop Apollinary as the ruling bishop or Metropolitan of the church in America. At the meeting there were forty in attendance, out of a total of more than one hundred parishoners, and of these, twenty-five subscribed to the resolution. Two days before the resolution Bishop Apollinary had appointed Father Kaimakan “as missionary priest of the city of Elizabeth” and certified his appointment under his official seal. Thereafter, August 2d, the diocesan council, with the approval of Metropolitan Platon, suspended Father Kaimakan pending his trial for insubordination, assault upon a parishoner and for sedition, and appointed another priest in his place. The secession was unnoticed. The result is disruption of the congregation of St. Nicholas.

On behalf of those who adhere to the organization over which Metropolitan Platon presides it is set up that “they are without spiritual guidance and are unable to worship the Deity in accordance with their religious faith,” meaning that they worship at or through the medium of the mass celebrated only by a licensed priest; that Father Kaimakan’s canonical functions are suspended and his celebration of the mass is a pretense and gesture, without divine appeal or consolation to their souls; that in his supplication, as part of the liturgy, he invokes divine blessing upon Bishop Apollinary instead of Platon as his spiritual superior, and that, in conscience, they cannot attend the services celebrated by him, and, in consequence, are deprived of the use of the church, and to allow the use of the church by him, to their exclusion, is a diversion of trust property from the use to which it was devoted.

The adherents of the priest, on the other hand, contend that Archbishop Apollinary is the de jure Metropolitan of the church in America and this they claim the records of the church demonstrate. After the Russian revolution in 1918 (Kerenski’s) the church was reorganized upon the former Patriarchal system, which had suffered an interruption during the reign of Peter the Great (a. d. 1689-1725), when the Czar became the titular head. Hnder the reestablishment the management of the church was vested in the Patriarch jointly with the Holy Synod and the Supreme Ecclesiastical Council, responsible only to the Sobor, the supreme authority of the church, legislative, administrative, judicial and supervisory; the Sobor, a council of bishops, clergymen and laymen, convened periodically at established periods. The church is subdivided into dioceses and the dioceses into parishes; the diocese being governed by a bishop and a diocesan council, and the parish by a priest and a parochial council; the parishoners having a voice in the management. North America is a province and the church a foreign mission. Power to appoint bishops to foreign missions is in the Holy Synod, but the Patriarch has authority to fill vacancies.

When the Soviet came into power and the church authorities grew apprehensive, the Patriarch, Holy Synod and the Supreme Church Council (November 7th, 1920) decreed that if dioceses outside of Russia be without communication with the Supreme Church Administration or if the latter for any reason stop its activities, the bishops abroad should form a Provisional Supreme Church Government.

Accordingly, a Supreme Church Authority Abroad was organized, but was dissolved on order of the Patriarch and the Holy Synod by decree, September 13th, 1922, and a council of all the Russian Churches Abroad was called for November 21st following. The council took over the management of the church outside of Russia, in subordination, however, and as “an undivided part of the autocephalous Patriarchate of Moscow and of All the Russia,” with power to appoint bishops, fill episcopal sees, and have jurisdiction over bishops. Between councils, the synod of bishops was to act. Sobors (conventions) were to be convened by the council of bishops and by the synod.

Metropolitan Platon was a member of the Council of Bishops of the Russian Orthodox Church Abroad, president of its finance commission and participated in its' deliberations; the first provisional synod having resolved (September 5th, 1922) to consider him as ruling pro tempore the North American diocese upon a verbal report made to it of his appointment by the Patriarch. A commission addressed to Metropolitan Platon, purporting to be signed by Patriarch Tikhon, under date of September 20th, 1923, recites his appointment by the Sacred Synod in April, 1922, as pro tempore ruler of the North American dioceses. It is claimed that the commission was a permanent appointment by the Patriarch, but it does not admit of that construction. The Patriarch was without power to make a permanent appointment. The commission simply certifies the pro tempore appointment by the Sacred Synod of Moscow.

While the bishops abroad carried on at Sremsld Karlovtzic, Serbia, the hierarchy at Moscow continued to function, but precariously. Patriarch Tikhon was imprisoned by the Soviet and what became of his Locum Tenans, Bishop Agathangel and later Metropolitan Peter, is undisclosed; but Patriarch Tikhon died in 1925. Bishop Sergius, who succeeded as Locum Tenans seems to have fared better with the Soviet, and in an epistle to the bishops abroad, counseled them to pledge their loyalty to the Soviet, to which they responded that as he and his synod were not free, but under the domination of the Soviet, they released him and it of responsibility for their refusal to recognize the Soviet, and they thereupon resolved that a threatened decree of exclusion for disobedience would be uncanonical and proclaimed that the Eussian Church Abroad considers itself to be an indivisible spiritualty unique branch of the Great Eussian Church and Locum Tenans Peter (not Sergius) to be its head, and while protesting their fealty to the Mother Church, declared themselves self-governing until the church in Eussia should be at liberty and restored; this by authority of the decree of November 7th, 1920.

Disregarding the provisional council of the bishops abroad, the Holy Synod of Moscow, under Locum Tenans Sergius, appointed Bishop Kedrovsky to rule the North American diocese, whereupon the Council of Bishops Abroad roundly denounced him as a mock bishop, at the same time lamenting the decision of the courts of New York recognizing him as the bishop of the North American diocese and awarding him possession of the church property. [Kedrovsky had brought suit against Platon (Eojdesvensky) in the supreme court of New York for possession of St. Nicholas Cathedral in that city, and the appellate division, discrediting the appointment ■of Platon and treating his credentials as unworthy, held Kedrovsky to be the archbishop of the North American diocese appointed under authority of the second Sobor of Moscow and awarded him judgment. Kedrovsky v. Rojdesvensky, 214 App. Div. 483; affirmed, 242 N. Y. 547.]

Meanwhile Archbishop Platon renounced the council of the bishops abroad and the synod in turn held him responsible for the loss of the church property to Kedrovsky, because having repudiated the rule of the council he was without standing to defend in the name of the church abroad, and also held him responsible for the disunity and dissension in the American church, and [March 18th, 1927) discharged him from his office as ruler pending his full repentance and oath of allegiance and forbade him to hold divine services within the boundaries of North America, and appointed Bishop Apollinary in his stead. The Council of Bishops Abroad confirmed the suspension and the new appointment, September 8th, following, with the explanation “that from the date of his suspension the divine services performed by him (Platon) shall be bereft of grace; the sacraments performed by him shall not be sacraments and the ordination by him shall be uncanonical.”

Thus, Metropolitan Platon denies the council’s authority to suspend and supplant him, claiming that he holds office under the Supreme Authority of Moscow. Moscow repudiates both Platon and Apollinary and they in turn impeach Kedrovsky, Father Kaimakan treating Platon as suspended, denies his power to remove him.

The church in America, divided and triple headed, has led to great bewilderment of the faithful. Platon, Kedrovsky and Apollinary each claims to be the de jure Metropolitan and as such each rules a part of the flock in this country. Platon lays claim to two hundred and fifty-nine churches, Apollinary to one hundred and seven; Kedrovsky’s fold is undisclosed; he has the cathedral. In the present suit and rivalry for supremacy between the followers of Platon and Apollinary, the existence of Kedrovsky was ignored or suppressed; it was brought to the court’s notice in examining the law of other states. The Kedrovsky rule, however, has no bearing upon the present issue, though it adds to the confusion. All three prelates avow they hold under the Patriarchate of Moscow; Platon and Kedrovsky directly, Apollinary indirectly. Which of the three, if any, is de jure and the other usurpers is not within the present controversy. We are not particularly interested in whether Moscow or Sremski Karlovtzic governs. Whether the Sobor, sanctioned by Locum Tenans Sergius, was not the lawful supreme successor and unlawfully elected Kedrovsky; or Platon’s appointment was unauthorized or his credentials fictitious; or whether the council of the bishops abroad was an unlawful assembly and their control of the church abroad and their declaration of self-government usurpations, and their removal of Platon and the appointment of Apollinary, the repudiation of Sergius and the recognition of Peter as Locum Tenans were unwarranted assumptions of power, are all questions unessential to the decision of the issues here involved. Which of the three divines is de jure involves the title to the office of Metropolitan and must be litigated by the principals or decided by the legally constituted church authority, to the conclusion of the civil courts. Eor present purposes it is enough that the proofs show that Archbishop Platon and his diocesan council continue to function over his flock (but one church of the many, Scranton, Pennsylvania, over which he rules has withdrawn from his jurisdiction and submitted to that of Bishop Apollinary) and that he holds under color of right, if not de jure at least de facto, the office of Metropolitan of the diocesan organization of churches of which St. Nicholas is an integral part, and having appointed, had the power to remove Father Kaimakan. A member priest of his group, with a handful of parishoners, cannot, upon defection and discharge, be heard to deny his jurisdiction, and set up the denial in justification of a diversion of the organization’s property to a new allegiance. Their course was to quit. It was Father Kaimakan’s privilege, and that of his followers, to change masters, but not to purloin the ship; to renounce the authority to which he had committed himself, but not to thwart it. It is pretty clearly indicated that his apostacy was one of expediency, not conscience, subterfuge, not conviction, to evade discipline. Shifting allegiance was preferable to bowing to discipline; desertion, to submission. Father Kaimakan’s protest that he learned of Bishop Platon’s removal and Bishop Apollinary’s appointment only shortly before his change, if true, was unfortunately coincident with the dissatisfaction in his parish and his refusal to be transferred to Singac. They occurred two years before. And it is strange that a circular letter of July 10th, 1927, sent by the bishops abroad to the Russian flock in America notifying them of the suspension of Bishop Platon and the appointment of Bishop Apollinary and denouncing Platon as “a church rebel, deserved to be unfrocked,” and exhorting them to pay filial obedience to Bishop Apollinary escaped him. He may have been in ignorance, but it is almost incredible that this important church document, sent twice, did not reach the xectox of a church of such prominence in church circles as St. Nicholas of Elizabeth. It is also peculiar that at the hastily called meeting of the parishoners, to renounce the supremacy of Metropolitan Platon, he had in his pocket the new commission to the rectorship by Bishop Apollinary. That meeting was obviously unlawful and futile to serve the intended purpose. If the congregation had voted secession a different question would be presented, but an arbitrary minority could not deprive the congregation of its church for divine worship under guidance of its chosen spiritual leader.

The contract made by trustees of St. Nicholas Church with Eeverend Kaimakan for his services for a term of years, not yet expired, is subordinate to the rules and discipline of the church and was brought to an end by the severance of pastoral relations by the church authorities. The pastor was lawfully suspended.

The church remains a part of the diocesan organization presided over by Metropolitan Platon and the congregation continues under his guidance. There will be an injunction.

The bill should be amended into a class bill. The church, should be made a party; it is a corporation. The bill should also set up more specifically the cause as presented at the hearing.  