
    Saint Nicholas Cathedral of the Russian Orthodox Church of North America, Plaintiff, v. Wassil A. Kreshik, as Dean of Saint Nicholas Cathedral, et al., Defendants.
    Supreme Court, Trial Term, New York County,
    July 3, 1957.
    
      Charles H. Tuttle for plaintiff.
    
      Philip Adler for defendants.
   Henry Epstein, J.

The Supreme Court of the United States has declared article 5-C of the Religious Corporations Law of New York, enacted in 1945 and amended in 1948 (L. 1948, ch. 711) to be an unconstitutional interference with the exercise of religion under the First and Fourteenth Amendments to the Constitution of the United States (Kedroff v. St. Nicholas Cathedral, 344 U. S. 94). The controversy which the statutes sought to terminate must now he decided on this action for ejectment free from such statutory provisions or the intent of said statutes. This court, within the borders of the decision of the United States Supreme Court and following the lines of inquiry directed by the Court of Appeals, must determine whether the use and possession of the St. Nicholas Cathedral in New York City is to be in the appointee of the Patriarch of the Russian Orthodox Greek Catholic Church in Moscow or in the corporate plaintiff by its elected ecclesiastic.

So much has been written in the prior opinions in this litigation and in both prior and subsequent cases involving like issues that this court will not, except as deemed essential to this decision, review, repeat or recast them (see opinions in this case: 192 Misc. 327; 276 App. Div. 309; 302 N. Y. 1; 344 U. S. 94; 306 N. Y. 38; 346 U. S. 893. Also Kedrovsky v. Russian Catholic Church, 249 N. Y. 75; Kedrovsky v. Rojdesvensky, 214 App. Div. 483, affd. 242 N. Y. 547; Russian Orthodox Church v. Risen, Superior Ct. of Cal., Los Angeles County, Dec. 31,1948).

Coneededly, from its incorporation April 8, 1925 and its formal organization pursuant to its incorporation, plaintiff did little, if anything, to establish its claims, now pressed, until 1945. Yet it did and does hold the legal title, but for the beneficial use of the appropriate authorities spiritual.

The Court of Appeals has ordered that at this trial the inquiry must be directed to ‘ ‘ the existence and status of the central church authorities in Moscow and their ability to carry out effectively and faithfully the purposes of the religious trust” (306 N. Y. 38, 47). To that end the opinion of the Chief Judge has indicated that the trial should meet the responsibility of the court: “ to gather all the evidence possible, to entertain the views of expert church scholars, to analyze the available documents and the canon law, to make findings of fact and to exercise sound discretion thereon, building up a record which is suitable for intelligent review and adjudication by the appellate courts.” (P. 53.)

‘ ‘ What is at stake here is the power to exercise religious authority. That is the essence of this controversy.” (Frankfurter, J., 344 U. S. 94, 121.) Thus the technical question of who holds the legal title to and the resultant “ possession ” of the church is no longer important. The trustees who hold such title ‘ ‘ must administer these temporalities * * * for the beneficiaries for whom the trust was originally created.” (306 N. Y. 52.) This conclusion necessarily followed from the note in the opinion of Mr. Justice Reed, writing for the majority in the United States Supreme Court (p. 96): “ There is no problem of title. It is in the appellee corporation. [Plaintiff herein.] The issue is the right of use. St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1, 20, 96 N. E. 2d 56, 66-67.” (Eastern Orthodox Catholic Church v. Adair, 141 N. Y. S. 2d 772-782.) Judgment for defendants: “A church consists of its land and buildings, its trustees and its congregation (the people who more or less regularly attend its religious services), as well as of its faith, doctrine, ritual and clergy; and however- supreme the authority of one of its bishops may be over its ecclesiastical affairs, such a bishop, in accepting consecration as a bishop of another church, does not by that act take the church with him. On the contrary, a bishop of one church who accepts consecration as a bishop of another church, in effect, runs away from the first church, and, instead of thereby affiliating the first church with the one in which he accepts consecration, I think he thereby ceases to be a bishop of that first church.”

This court has examined with care the record on appeal in St. Nicholas Cathedral v. Kedroff which was stipulated as cognizable by the court for the testimony therein (the prior trial, herein now tried again pursuant to direction of the Court of Appeals, 306 N. Y. 38). The record of the Court of Appeals in Kedrovsky v. Rojdesvensky (242 N. Y. 547) has also been given consideration. Dr. Matthew Spinka, professor of church history at the Hartford Seminary, was an informed witness. Analysis of his testimony, however, reveals no greater, or even as great, a subservience of the church in Russia to the central government as had been acknowledged under the Czarist regimes. Professor Spinka acknowledges that he is not so critical today as he was in his early writings (1927) of the Patriarchate and the Russian church as a functioning organ of religion within the IT. S. S. R.

Prior to 1917 the members of the Synod (representative church body) had to pledge “ loyalty ” to the Czar and unquestionably the church was a State creature. In 1917 there was held a Sobor (convention) under the Kerensky regime which re-established the Patriarchate of Tikhon. The Patriarch was under arrest from 1918 through 1922, either house arrest or in prison. The Karlowitz Sobor of 1921-1922 was an abortive attempt by the exiled nobility to restore the Romanoffs and relied on the Wrangel army in vain. In 1923 a Sobor was held under the overlordship of the Bolshevik Government. Patriarch Tikhon resumed his position in 1923 and functioned as Patriarch until his death in 1925. This' was the year of the formation of the Metropolitan District of the American Church and Metropolitan Platon was dismissed by Patriarch Tikhon. The Patriarch warned against political activity of the clergy and practically adopted the then established policy of the Roman Catholic Church. In 1945 Sobor was attended by Patriarchs of other divisions of the Orthodox Church and Alexis was chosen Patriarch by the bishops in council. The Patriarch of Moscow was recognized as the head of the Russian Church. Archbishop Basalyga’s testimony attested to the recognition of the Moscow Patriarch and the Metropolitan District determined to have “ spiritual intercourse, but not administrative ” relations with the Moscow Patriarchate (emphasis supplied).

The testimony of the chief of the European law division of the Library of Congress of the United States, M. Vladimir Gsovski, reveals that today Soviet legislation does not inhibit or touch creed, or ritual, or selection of clergy or approval of clergy. Nor does law require a loyalty oath to the civil authorities, as required in Spain, France and Italy. There has been a relaxation of taxes on monasteries; disabilities of the clergy have disappeared; compensation to clergy is wholly intra-church and anti-religious activity must be wholly cultural. Anti-clerical publications have practically ended. It is now a criminal offense to interfere with religious services and there has been an established church and religious revival since 1942 and the war.

Samples of ikons and ritual articles were exhibited at the trial which are manufactured, printed and sold in the Moscow Patriarchate itself. Seminaries are revived and monasteries, convents and theological academies are again operating. Churches formerly closed have been restored and reopened. In 1948 there was celebrated the 500th anniversary of the founding or autocephaly (independence) of the Russian Orthodox Church. The Soviet Government “ minister of religion ”, G. G. Karpov, participated. No invidious conclusion can be drawn from the fact that the U. S. S. R. has an established religious department or that its representative is present and speaks at such a church celebration. Nor can this court conclude, as argued by plaintiff, that the Patriarchate is “ a secular arm of an atheistic government bent on destroying the United States ”. The evidence in this record does not permit such a judgment or opinion. The fulminations of an individual, even if he be the Patriarch himself, on matters political in the world, do not vitiate the obligations of the church organization, nor destroy the structure of the church itself. The experience of church history in many lands is ample evidence that the religious faith and its institutions outlast the transitory attacks and their individual exponents.

The history of the Holy Roman Church reveals many conflicts between church and State and many compromises with State power, tacitly, if not openly, recognized. “ The Election oi Bishops In the Letters of Gregory The Great ” — 590-604 A. D., published by the Catholic University Press (1945), is an instructive research by John A. Eidenschink, O. S. B., B. A., J. C. L.

1 ‘ It must be borne in mind that during the century preceding the pontificate of Gregory the Great, and during his pontificate, the Church in Gaul was in a peculiarly subservient position to the State, even though the primacy of the Pope was recognized. The Pope, his vicar, the metropolitans and the bishops all had to reckon with the royal will or with that of the royal favorites.” (Pp. 13-14.)

“ Gregory the Great intervened in the internal affairs of the East only when such intervention was required to maintain justice and the observance of the canons, and in such cases his intervention was in response to an appeal to the authority of the Roman pontiff.” (P. 65.)

Formula 75 contains, besides a confession of faith, an oath of fidelity to the Holy Roman Empire.” (P. 91.)

This oath, the author indicates, came into being after Gregory the Great, but he does not doubt that it had been exacted from bishops and others for some time.

“ Cuius regio, eius religio ” became a recognized doctrine from the Peace of Augsburg (1555) despite the denunciation by Innocent X in 1648. By the 16th century ‘1 a reformed Papacy shook off the corruption, which had settled upon the Holy See during the Renaissance, and new religious orders * * * came forward to perform the tasks demanded by the new situation.” (Church and State Through the Centuries — A Collection of Historic Documents with Commentaries — Sidney Z. Ehler and John B. Morrall, Newman Press, 1954.)

The finality of the division of Europe into Protestant and Catholic camps became fixed by the Peace of Augsburg (1555) and the Edict of Nantes (1598). A century of wars did not resolve the conflict and there was no religious victory by one or the other. After the defection of Henry VIII of England (1534), Pope Pius V by his Bull “ Regnans in Excelsis ” dethroned Elizabeth I of England (Feb. 25, 1570). This widened the breach and had not the anticipated effect upon England.

Much can be learned from the history of the Papacy (“Pageant of the Popes ” by John Farrow). Zachary (Pope from 741-752) declared “Whosoever has the power is the King.” Yet Pepin was consecrated King of the Franks by the Pope. For almost a century (14th century) a pope held court and ruled the Catholic world from Avignon in southern France. The most powerful influence there exerted was that of the French kings. For a part of the time there were two popes: “ The lamentable stage in its history has been reached rhere rival bishops were claiming authority to the same see and likewise abbots to monasteries and priests to churches, large and small.” (Pp. 174-175.) The suggestion that the Pope be subject to and selected by a council was summarily rejected: “ The Pope would have been merely an executive elected by the clergy for their own convenience.” (P. 176.)

Political realism re-established a firm foundation for Rome. Leo XIII spoke thus to the French people:

“ The Catholic, like every other citizen, has full liberty to prefer one form of government to another, where none of those political or social forms is opposed by its very nature to the teachings of sound reason or maxims of Christian doctrine.” (P. 303.)
“ Governments must change. No one can consider any form of civil government as so definite that it must remain forever immutable.” (Farrow, supra, pp. 303-304.)
“Nevertheless, the supreme advantage of the common welfare and of public tranquility imposes on us the acceptance of those new governments established de facto in place of former governments, which de facto are no more.” (P. 305.)

The historian (Farrow, supra) thus summarizes the attitude of Pope Pius XI to Russia: “ Pius was too great an historian to believe that a whole people could be abruptly deprived of their faith by decree or proclamation, so looking beyond the tragedy of his own time he made preparations for that day when the men and women of Russia could bring their children before their altars and ikons without fear or restriction.” (P. 343.)

The Orthodox faith became the prevailing Russian religion from the early 17th century. Thenceforward it was to be the State religion. The Synod replaced the Patriarch and a State “ministry of religion” controlled the church of all Russia. By the year 1950, out of a total population of some 190,000,000, more than 110,000,000 were members of the Patriarchal (Orthodox) Church. This calculation apparently was made after a census (1936-1937) including a question on belief in God (Paul Anderson, “People, Church and State in Modern Russia,” p. 120).

A bishop must not lend himself to public affairs, but solely to “ ecclesiastical business ”. Otherwise he must be “ deposed ” (Discussion of Apostolic Canons LXXXI — “ The Church and the Russian Revolution” — Matthew Spinka, published 1922, pp. 266-267). Even in the Church itself there was no unanimity of opinion. “All of these factors contributed mightily to produce the situation which inevitably hurled the church into two hostile camps. And who can say that one party was wholly right and the other wholly wrong? ” (Spinka, p. 270.)

The Christian world was faced with an immediate and vexing-decision. “ Christians in East Europe, confronted by Communist encroachments on conventional aspects of church life, have had to decide whether and where the churches should take a stand, whether it was possible to establish an absolute line beyond which the churches could not go. And in the whole body of the Church Universal, earnest Christians, whether from a sense of impending judgment, or of historic resolution, or for fear of Communist occupation, have found it to be their problem: at what point must the Church boldly and categorically pronounce a resounding ‘No’?” (Tobias — Communist Christian Encounter in East Europe, p. 193.)

Yet so too was the Soviet Government faced with a difficult choice, for ‘ ‘ The churches had proved to be neither an effective scape-goat for Communist failures, nor a whipping post for the people’s frustrations ” (id. p. 16). Stalin himself had been reported as saying “ To close churches is easy, but the peasants build churches in their souls ” (id. p. 20).

‘! Whereas the Communist State may regard the nationalized church as an integral part of its own structure, cooperation as it is presently practiced constitutes a de facto recognition of an esse of the Church which is still separate and independent” (id. p. 96).

The battle of the great powers, civil and spiritual, for the minds of the people was bitter and long drawn out. In 1918 Patriarch Tikhon ‘ ‘ anathematized ’ ’ the Soviet authorities for confiscation of Church property and for secularizing marriage (Spinka — “ The Church in Soviet Russia,” p. 15). Yet religious associations, ‘ ‘ if they were organized in accordance with the specific regulations issued by the government, they could apply for the ‘ free ’ use of the church buildings. But the support of the clergy had to be voluntary, not compulsory ” (id. p. 18).

Tikhon had condemned the Brest-Litovsk Peace (1918) and by his ukaz of November 7, 1920 he granted independent diocesan authority “ until such time as the bishops would have free access and intercourse ” with the central patriarchal administration. ‘ ‘ These, actions resulted in a virtual autonomy of the archdioceses both within the Soviet Union and abroad ” (id. p. 24). In June, 1926 Sergei petitioned the government to register his Church administration so it could be “ legally recognized by the government ” (id. p. 62). By 1938 a definite change had taken place and “Attempts to liquidate religion were ordered discontinued, public disrespect shown to religious rites received official rebuke instead of support. * * * Sunday was made a day of rest ” (id. p. 81).

Denunciation as “war-mongers” of America, Britain, and of the Vatican must be regarded as political and are not unique in the history of the Church, be it Russia or Europe. The Russian Church as a tool exploited by the State was no new phenomenon. “ But so it was under the Tsars ” (id. p. 153). The praise of Stalin combined with prayers for peace and denunciation of “ The transoceanic imperialists” at the 1952 “ Conference In Defence of Peace, etc.” adds little to the basic problem, nor is it a walled barrier to Church existence. Attendance at that conference by representatives of Moslem and Eastern countries and by the “Red” Dean of Canterbury, Hewlett Johnson, if anything, lends some strength to the actuality of Soviet regard for the Church as an institution of national vitality.

“Already in 1934 the anti-religious program in the public schools was proving so harmful to Communism that it was severely restricted ”.

‘s From the failure of the anti-religious program it had become evident that some form of religion was necessary ’ ’ (Tobias, supra, pp. 100, 101).

Religious services are allowed in the IT. ¡3. S. R., but only ‘ ‘ in so far as no breach of the peace is committed and the performance does not infringe upon any of the rights of any citizen of the Soviet Republic ” — and local officials are fully authorized 1 ‘ to take all measures to safeguard public order and security ” (E. Yaroslavsky, “ Religion in the U. S. S. R.”, pp. 22, 23). Not that the central authorities did not try to undermine the Church. The Living Church ” was condemned by Tikhon from the Douskoz Monastery in April of 1925; the ukaz containing which condemnation was released on his death. This “ Living Church” was a clear attempt of the Soviet authorities to promote discord within the Church and the imprisonment of the Patriarch was in pursuance of that aim. But this maneuver to create a schismatic group in the official State representative of religion failed. It found no support in the people. (Timasheff — “ Religion in Soviet Russia”— 1942.)

We. now know that in Poland an accord had been executed between the Roman Catholic bishops and the Government. The Nazis considered both Church and U. S .S. R. Government to be united as a common enemy (Tobias, supra, p. 91). The New York Times on April 22 reports that the bells in Moscow’s churches tolled on Easter and three thousand voices chanted “ Christ Is Risen ” in the cathedral.

In light of the directions of the Chief Judge of the Court of Appeals and the decision herein on the underlying merits pursuant to said Court of Appeals’ direction, this court has deemed it unnecessary to discuss the defenses of laches and Statute of Limitations. Plaintiff has failed to establish adequate grounds for a finding in its favor, or for ejectment, using as a guide the express directions of the Chief Judge of the Court of Appeals. The briefs of both sides have been helpful to the court. It is the decision of this court that plaintiff has not met the burden of proof; that the evidence drawn from testimony, literature, and reasonably accurate information warrants the conclusion that the Patriarchate of Moscow is the head of a functioning religious order and that the Saint Nicholas Cathedral of the Russian Orthodox Church in North America is under his direction. The present bishop designated to the cathedral is an American citizen, Dimitrius John Diachenko, designated as Archbishop Dionisius. He has been made a party defendant herein (June 13,1957). His prior affiliation with the Metropolitan District of the. Russian Church (in the.context of this case said body is the alter ego for the plaintiff) does not vitiate his appointment by the Moscow Patriarchate or Ms authority to be joined as a party. The fact of his designation, the time of his affiliation and designation have had no part in the consideration of the court in arriving at its decision (stipulation of parties in open court on the return date of the motion). Judgment may be entered dismissing complaint.

Submit findings, conclusions and judgment consistent with the foregoing by August 19, 1957. 
      
       The court, among other exhibits, records of appeal and court decisions in other cases, has read and given careful consideration to the following:
      Modern Nationalism and Religion, Salo W. Baron — Harper’s 1947 The Soviet Union — Symposium Edition by Waldeman Gurian — Notre Dame 1951 (Rebirth of Religion in Russia — 1941-1950)
      Communism in Action — Study, Library of Congress — U. S. Printing Office 1946
      Status of Jews Behind the Iron Curtain, N. Y. Journal American 1956 — Sept.
      Conference in Defense of Peace of All Churches, etc. in U. S. S. R.— May 9-12, 1952, In Troitse Sergiyeva Monastery Communist Christian Encounter in East Europe, Robert Tobias —1956 The Church and the Russian Revolution, Matthew Spinka, Ph.D., MacMillan 1927
      The Russian Church and the Soviet State —1917-1950, John Shelton Curtiss — Little, Brown & Co. — 1952
      The Church in Soviet Russia, Matthew Spinka 1956, N. Y. Oxford Press Extracts from Articles in Journal of The Moscow Patriarchate —1950-1956 (Translated)
      The Changing World of Soviet Russia — David J. Dallin, Yale U. Press — 1956
      Pageant of The Popes — John Farrow, Sheed & Ward — N. Y. Ninth printing — 1956
      Church, State and Freedom — Pfeifer
     