Rector v. Rector — 38 N.Y. St. Rep. 120

Majority

p. 120

The Rector, etc., of the Holy Trinity Church, App’lt, v. The Rector, etc., of the Church of St. Stephen, App’lt, James Blackhurst et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 15, 1891.)

Headnote

1. Religious corporations—Appearance by attorney.

A committee of the vestry of a church was appointed to adopt legal measures to consolidate said church with another, but the members thereof were subsequently ousted from office as vestrymen. Notwithstanding this they employed an attorney to appear for the church in an action brought by the other church to enforce the agreement of consolidation. On motion of the remaining vestrymen an order was made striking out the appearance and answer served by said attorney and to compel plaintiff’s attorney to accept notice of appearance from an attorney to be selected by them. Held, no error; that the appearance of said attorney was entirely unauthorized, as the committee after such ouster had no power to act for the corporation.

2. Same—Costs.

The plaintiff having accepted the answer with knowledge of the facts, it was properly charged with costs, although no actual collusion between it and said attorney was shown.

Appeal from order striking out, vacating and setting aside notice of appearance and answer served by Andrew J. Shipman, attorney on behalf of defendant corporation.

Wager Swayne, for def't corporation, app’lt; Charles Blandy, for pl’ff, app’lt; D.G. Hollins, for resp’ts.

This action was brought to compel the defendants to affix the seal of the defendant corporation to an alleged agreement of consolidation, to present the same to the bishop and standing committee of the Diocese of New York for approval, etc.

A committee of the vestry had been appointed by the rector of the defendant corporation to adopt the requisite legal measures for consummating the action of the two parishes. Since their appointment these committeemen have been ousted from their

p. 121

offices as vestrymen, and in the case of the People ex rel. St Stephen's Church v. Blackhurst, decided at the last term of this court it was held that they thereafter had no power to exercise any of their rights as committeemen. 37 N. Y. State Rep., 720.

This action, however, having been brought as above mentioned the said committee, assuming to represent the defendant corporation, employed one Andrew J. Shipman to appear as the attorney of the corporation, virtually confessing judgment.

The three members of the vestry who still remained in office (all the others having been declared to have been fraudulently elected) then presented their petition to have said answer and retainer stricken out, and to compel the plaintiff’s attorney to accept a notice of appearance from an attorney to be selected by them. This motion was granted, with costs against the plaintiff.

It is clear that the appearance of Shipman was entirely unauthorized. The committee who assumed to authorize him no longer had any power to meddle with the affairs of the defendant corporation, and the only representatives of the corporation were the vestrymen who still remained, and who, although they did not constitute a quorum of the vestry, had the right to protect as far as in their power the interests of the corporation; because it cannot be claimed for a moment that there being no sufficient number of trustees of a corporation in existence to constitute a quorum, that thereby the corporation is powerless to protect itself and must allow judgment in every action brought against it by designing persons to go by default

Therefore it was proper for the court to make the order which it did, compelling these plaintiffs to accept the appearance of an attorney authorized by all that remained of the board of trustees of the church in order that the rights and interests of the church might be protected.

As to the claim upon the part of the plaintiffs that they should not be saddled with the costs in this case, we see no reason for interfering with the provisions of the order.

We think it is apparent that this action was brought for the purpose of getting a judgment which might forestall the action of any vestry which might be elected who truly represented the interests of the defendant corporation.

Whether there was collusion with the attorney who appeared or not, we think it is plainly evident that the object of the action was to get a judgment without giving the defendant corporation a real opportunity to be heard upon the merit s; and they knew when they accepted the answer and the appearance from Ship-man that his authority arose from a committee which had absolutely ceased to exist

Under these circumstances, we do not think there was any hardship in imposing costs upon the plaintiff, and the order appealed from should be affirmed, with ten dollars costs and disbursements against the plaintiff.

Daniels and Lawrence, JJ., concur.