Rector, Churchwardens & Vestrymen of Church of Nativity v. Fleming

Majority

p. 930

Rector, Churchwardens and Vestrymen of the Church of the Nativity, an Incorporated Protestant Episcopal Church, and Thomas L. Settle, as Rector, George Weiderman, Jr., and J. Theus Munds, Jr., as Churchwardens, and Frank R. G. Rowe and Others, as Vestrymen Thereof, Constituting the Trustees of Said Corporation, Appellants, v. Carrie O. Fleming, as Surviving Executor, etc., of Andrew Fleming, Deceased, Respondent, and James V. Mangano, as Sheriff of the County of Kings, Defendant.

Plaintiffs appeal from an order dismissing their complaint on the ground of insufficiency and from the judgment entered thereon. Order and judgment unanimously affirmed, with ten dollars costs and disbursements to the respondent. In this action for a declaratory judgment the plaintiff church seeks to enjoin the defendants from levying execution on its real property on a money judgment, and other relief. No statutory provision is contained in the law expressly exempting church property from sale under execution, and the safeguards provided by the Legislature against voluntary sale, mortgage or lease of real property of a religious corporation do not exempt such property from sale by operation of law. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. [174 Mise. 473.]