Selkir v. Klein

This action is brought to impress a vendee’s lien on real estate belonging to defendants for the amount of the deposit paid on account of the purchase price thereof and for the expense incurred in searching title thereto, the vendee having rejected the title as unmarketable. The sole question to be determined is whether defendants had a marketable title to the premises in question; the objection thereto being that the rector, church wardens, and vestrymen of St. James’ Church, a religious corporation, never became legally vested with the title, and therefore could not convey the same to defendants’ predecessors in title. The premises were conveyed to a corporation known as "St. James’ Mission of the City of New York” in 1892. This corporation was incorporated on or about December 31, 1890, under the provisions of chapter 319, p. 447, Laws of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies.” By section 5 (page 448) thereof it is provided that the act in question “shall not authorize the formation of any corporation which can be incorporated under the act entitled ‘An act to provide for the incorporation of religious societies,’ passed April 5, 1813.” The membership corporations law, passed May 8, 1895, being chapter 559, p. 329, of the Laws of 1895, provides, in section 2, art. 1 (page 331), thereof, that the term “membership corporation” means a corporation thereafter incorporated under the said chapter, “or heretofore incorporated under any law repealed by this [said] chap

“The rector, church wardens, and vestrymen of St. James’ Church in the city of New York” is a religious corporation, organized pursuant to the provisions of chapter 60, Rev. Laws 1813 (volume 2, p. 212), entitled “An act to provide for the incorporation of religious societies.” The religious corporations law was passed May 23, 1895, being chapter 723, p. 477, of the Laws of 1895. By section 112 (page 514) thereof, chapter 60, p. 212, Rev. Laws 1813, was expressly repealed. The rector, church wardens, and vestrymen of St. James’ Church- in the city of New York, a religious corporation, thereafter became subject to the provisions of the religious corporations law, under the definition contained in section 2 (page 479) thereof. By section 12 (page 484) of the religious corporations law, two or more incorporated churches are permitted to enter into an agreement for consolidation, which, after approval of the governing body of the denomination to which the churches belong, is to be submitted for approval to the Supreme Court on the separate petition of each church. After notice of'the application and a hearing thereon, the court may order the1 consolidation on the terms agreed on, whereupon the new incorporated church thus formed by consolidation succeeds to the property and estate of the original churches and becomes chargeable with their debts and obligations.

On December 21, 1897, petitions were presented to the Supreme Court, New York county, subscribed, respectively, by St. James’ Mission and by the rector, church wardens, and vestrymen of St. James’ Church, praying for the consolidation of the two corporations under the latter name. The' petition of the first of these corporations recited that it was a religious corporation, without ecclesiastical functions, engaged in missionary work, arid of the second that it was a religious corporation. From the circumstance that each corporation petitioned separately, as well as from the recitals of facts in the petition itself, it is evident that the proceeding was based on the theory that both societies were religious corporations. Upon the petitions an order was made by the Supreme Court, on December 31, 1897, authorizing and approving the proposed consolidation under the name of “The rector,

It has been expressly and often held that corporations cannot consolidate without legislative authority, and it has also been pointed out that the statutes only permit of the consolidation of corporations of a similar nature. Chevra Bnai Israel v. Chevra Bikur Cholim, 24 Misc. Rep. 189 , 52 N. Y. Supp. 712 , citing many cases upon the former proposition; Erste Sokolower Congregation v. First United Verein, 32 Misc. Rep. 269 , 65 N. Y. Supp. 509 . It is true that, in the two cases cited, there had been no application to the court for approval of the proposed consolidation; but, as has been shown, the court, even if appealed to, is without power to legalize the effectuation of the consolidation without legislative provision therefor. “Corporations at common law have certain powers, but not such as would authorize the forming of a partnership or the consolidation of two corporations into one.” New York & Sharon Canal Co. v. Fulton Bank, 7 Wend. 415 . Judgment is therefore directed in favor of the plaintiff, establishing a lien, under the stipulation, in the sum of $475, with costs.

Judgment directed in favor of plaintiff, establishing a lien, under stipulation, in sum of $475, with costs.