
    (80 Hun, 428.)
    CONWAY v. CARPENTER.
    (Supreme Court, General Term, Second Department
    July 27, 1894.)
    1. Lease—Surrender—Evidence.
    In an action for assault and battery it appeared that plaintiff, the pastor of the M. church, was ejected by defendant, a trustee of the W. church, while preaching in a church building, which was leased from the W. church. The lease provided that the lessor might re-enter in case any disagreement arose in the M. church. There was evidence of a resolution by the M. church vacating the pulpit, and delivery of the keys to the trustees of the W. church, who, after retaining them some time, delivered them to P., a trustee of the M. church, with permission to him to open the church for religious worship, and directing him to return the keys in case of any disturbance. Held, that whether there was a surrender of the lease was a question for the jury.
    2. Religious Societies—Discharge of Minister.
    A church may discharge its pastor during the time of his contract, so as to render him a trespasser in case he afterwards enters the pulpit, though it may be liable to him for breach of the contract.
    
      Appeal from circuit court, Westchester county.
    Action by Alexander M. Conway against Edward 0. Carpenter for assault and battery. From a judgment for $2,910.32, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.
    For former report, see 26 N. Y. Supp. 255.
    Argued before BROWN", P. J., and CULLEN, J.
    Rudd, Hunt & Wilder (James M. Hunt, of counsel), for appellant.
    William Riley (John F. Brennan, of counsel), for respondent.
   CULLEN, J.

This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury at circuit. The plaintiff claimed to be the pastor of the Messiah Baptist Church of Yonkers. The Warburton Avenue Baptist Church owned the church-property occupied by the former church, and leased it to the Messiah Church at a nominal rent, with the reservation that in case of any disagreement in the congregation or board of trustees of the lessee,, or other cause which, in the opinion of the trustees of the lessor, might make it expedient, the lessor might terminate the lease and re-enter. There was dissension and dispute between the plaintiff and his congregation. The pulpit was declared vacant by the church, and the plaintiff excluded from the church edifice. But on the occasion of the subject of this action he followed in some persons engaged in lighting the church, occupied the pulpit, and insisted on preaching. His opponents then applied to the defendant, who was one of the trustees of the Warburton Avenue Church. The defendant had the plaintiff removed by force from the pulpit, and ejected from the church. For this the present action of assault and battery was brought. The defendant justified on the ground that the church had been previously surrendered to the lessor, and that the plaintiff was a trespasser. On a former trial the plaintiff was nonsuited. On appeal that judgment was reversed (73 Hun, 540, 26 N. Y. Supp. 255); the general term holding that the evidence was insufficient to show a surrender, and that, even if there had been a surrender, it was not a justification for the violence of the assault upon the plaintiff. On the present trial additional evidence was given as to the surrender of the church. But the learned trial judge, though disseñting in general terms from the decision referred to, felt bound, by that decision, to instruct the jury that there was no surrender, and that the removal of the plaintiff was unlawful. We think this disposition of the case was erroneous. On the new trial there was shown not only the resolutions of the two church corporations, but the fact that the keys of the church were delivered to the trustees of the lessor, and held by them for some time. The trustees of the lessor authorized a delivery of the keys to one Pollard, a trustee of the lessee church, and he was given permission to open the house for religious service only, and directed, in case of disturbance, to return the keys to the defendant in this action. The return of the keys to Pollard was not necessarily a disclaimer of the surrender by the lessee. As I read the resolution, its intention was to give Pollard a mere personal license, revocable at anytime. We think the question of surrender by the lessee to the lessor should have been submitted to the jury, with instructions that, in case they found such surrender, then the defendant was justified in using such force as was necessary to eject the plaintiff, if the latter, after notice, refused to leave the church. The court also instructed the jury that the plaintiff was the pastor of the church at the time, and that the Messiah Church could not, under its contract, terminate the plaintiff’s position as pastor till the time at which his resignation was to take effect. To this the defendant excepted. We think the charge in this respect was misleading. If the Messiah Church, in violation of its contract, discharged the plaintiff, it would .doubtless be liable to him for damages, but he would not have the right to enter upon the premises of the church against its wish any more than any other employé or servant improperly discharged. The judgment and order denying motion for new trial appealed from should be reversed, and a new trial ordered; costs to abide event.  