Kappel v. Chaari Zedek Congregation

Headnote

-Action against a religions society on a covenant in its deed— bwrden of showing , irregularity in sale, e. g., that an order was not made authorizing the sale, rests on defendant.

Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit.

The-action was brought to recover $750 damages for a breach of covenants in a deed claimed to" have been made and executed by the “ Biker Cholim Ukadisha ” congregation to the plaintiffs, on the 12th day of April, 1870.

The congregation “ Biker Cholim Ukadisha,” and this defendant were, by an act of the Legislature, passed May 9, 1874, combined and consolidated under the name of the “ Chaari Zedek Congregation.”

The congregation “ Biker Cholim Ukadisha,” and this defendant .are, and were religious corporations. (Chap.-403, Laws 1874.)

The plaintiff was nonsuited, because the evidence did not show that an order was obtained from any court authorizing the making or executing of the deed or the conveying of the property.

The court, at General Term, said : “We think it was error to nonsuit. . The conveyance to the plaintiff was apparently valid. Assuming that an order of this court, for the sale of the property mentioned in the conveyance, was an essential pre-requisite of a valid sale thereof; yet the legal presumption, in an action between, the parties to the conveyance, or their privies, is that such order was duly obtained. A corporation, which sets up alack of power to do a particular act, within the scope of its general powers, assumes the burden of proving such defence.” (Nelson v. Eaton,. 26 N. Y., 415 .)